Pakistan’s notorious Hudood Ordinances were promulgated in 1979 by the military regime of General Ziaul Haq. The most controversial of these are the two laws pertaining to sexual offences, i.e. the Zina and Qazf Ordinances. These laws created six distinct categories of sexual offences and assigned punishments for each:
(1) zina liable to hadd;
(2) zina liable to tazir;
(3) zina-bil-jabr liable to hadd;
(4) zina-bil-jabr liable to tazir;
(5) qazf liable to hadd; and
(6) qazf liable to tazir.
The introduction of these laws resulted in the offences of rape and adultery in the Pakistan Penal Code (PPC) to be repealed as they were substituted by these offences. The primary distinction between the hadd and tazir offenses is that the hadd offences require a higher standard of proof than is needed in tazir as the Islamic punishments are more severe.
For example, under the Zina Ordinance, zina was liable to a hadd penalty if the accused confessed before the trial court or if there were four adult Muslim male witnesses who met an Islamic test of probity, i.e. tazkiyah al shuhood, who testified to being eyewitnesses. The hadd punishment given to such an adulterer was stoning to death while the penalty for a fornicator was public whipping of 100 lashes. However, if the evidence requirement for zina liable to hadd is not met but the crime is proven beyond a reasonable doubt then the tazir punishment of imprisonment for up to ten years can be given. Rape, now referred to as zina-bil-jabr, was similarly made liable to either the hadd or the tazir penalty depending on the type of proof available.
This law was considered intrinsically misogynistic since its application resulted in women being convicted of adultery/fornication if they reported a case of rape, as their report was treated as a confession. Furthermore, in addition to other problems created by these laws, their judicial application also made it easier to get away with crimes against women such as honour killings and general degradation and humiliation of women in society.
It was no surprise hence, that women’s rights activists were against the law and demanded a safeguard against it.
After heated parliamentary debates between the liberal parliamentarians and the more conservative ulema a compromise in the shape of the Women’s Protection Act, 2006 was reached.
Overtly misogynistic problems have hence been diluted, for example, the offence of zina liable to tazir and qazf liable to tazir have been expunged however, an offence of ‘fornication’ and ‘false accusation of fornication’ have been included in the PPC. It is to be noted that the offence of fornication as included in the PPC is defined almost identically as the tazir offence of zina and is punishable by imprisonment for up to five years and a fine.
Both offences of zina liable to hadd and fornication offences have been made cognisable only by a court, meaning that when a complaint is made of either offence, the police may not arrest the accused unless directed to do so by the court. This is to discourage one step of humiliation of women. The Act has also abolished the offence of zina-bil-jabr liable to hadd, instead introducing the offence of ‘Rape’ in the PPC, and has introduced the offence of marital rape.
Though this legislation does not redress all the problems introduced by the Hudood Ordinances, substantial changes have been made, which is a step in the right direction. — Nida Paracha