Hudood Ordinance: ‘The law is in line with Islam but court procedures in Pakistan are not’

Published: April 11, 2011
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Islamic scholar defends Hudood Ordinance, explains witnesses’ dilemma.

Islamic scholar defends Hudood Ordinance, explains witnesses’ dilemma.

KARACHI: 

An Islamic scholar and university professor defended the controversial Hudood Ordinance on Wednesday at a lecture in the Aga Khan University Hospital and affirmed that the laws are “in accordance with Islamic principles”.

Kamaluddin Ahmed, who is pursing his PhD at the Oxford University and has taught at both the Lahore University of Management Sciences and the Aga Khan University, cautioned that while the laws might be in line with Islam, “the procedure of this law in Pakistani courts is not”.

Ahmed was raised in New York and holds a list of degrees from western liberal arts universities.

His lecture was attended by women wearing white lab coats over  burqas as well as by women in T-shirts and jeans. There were the usual nods of agreement and the disgruntled whispering in the crowd as women leaned over and shared their views with their friends.

Ahmed started the lecture by emphasising the equality of women and men as explicitly stated in the Holy Quran. His primary position throughout the lecture was that Islamic law must be understood in the context of Islamic theology. He said that Islamic law is often misinterpreted by the media and the courts, even in Islamic countries.

The Hudood Ordinance was passed under Ziaul Haq to implement punishments as stipulated by the Sharia law for extramarital sex, theft and prohibition. The ordinance has been internationally criticised for making rape survivors vulnerable to prosecution in the absence of four upright male witnesses. According to these laws, the penalty for zina, or extramarital sex, is death by stoning or public whipping.

“Scholars can find only two instances in which this capital punishment was implemented during the Holy Prophet’s (PBUH) life,” Ahmed said, explaining that in two separate occasions, a man and a woman confessed to zina and were stoned. He also noted that in the history of Pakistan, no woman has ever been stoned or lashed (as a legal punishment).

Meanwhile, in the more general context of financial laws, Ahmed rationalised the mandate for male rather than female witnesses.

“Allah called for multiple witnesses so that they can confer secretly behind closed doors and help each other remember exactly what they saw,” he said. “Bring two men and if you can’t find two men, bring a man and two women. This is because in Islam, a man and woman are not to confer behind closed doors together.”

He also said that the presence of a man is necessary to bear the brunt of the confrontation in court.

“Witnesses take up the obligation to appear in court and they expose themselves to harm. The male witness should go first and break the ice,” Ahmed said. “The requirement is not a testament to women’s intelligence, but rather for women’s safety. Even in the west, there are certain high-stress combat missions that women are not allowed to participate in.”

In the media’s presentation of Islamic law, and particularly in the 2009 debate surrounding the Hudood Ordinance on a private TV channel, “a lot wasn’t shown and a lot was misstated”, said Ahmed. “It was a tragedy because NGOs and Islamic scholars and feminists would all have agreed that there shouldn’t be women in jail or languishing in court…it was a lost opportunity for genuine dialogue.”

 

The writer is a graduate of Columbia University’s Journalism School and a fellow for The Express Tribune. She blogs at chereefranco.wordpress.com

Published in The Express Tribune, April 11th,  2011.

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Reader Comments (20)

  • Jeddy
    Apr 11, 2011 - 11:17AM

    In Surah Al Noor It is said: “The adulterer (or fornicator) shall marry an adulteress or an idolatress, and adulteress may marry an adulterer or marry an idolater. Those who defame honourable women or cannot produce four reliable witnesses – shall be given 80 lashes.”
    The reliability of the witnesses is absolutely essential. The Hudood Ordinance violates what is written in the Quran Recommend

  • moiz bilwany
    Apr 11, 2011 - 11:25AM

    This is a vile & barbaric law.A woman’s body is her own property,to do with as she pleases,this sick need for control & ownership of women’s bodies by men in our society is the reason we are stuck in a society of savages.

    Stoning & whipping of women are horrific crimes which themselves should be punishable by death but in our land these barbaric acts are handed out as punishments to women.

    it’s time our society stood up to all the draconian,barbaric,inhuman laws made in the name of religion by religious nutcases.Recommend

  • Apr 11, 2011 - 11:27AM

    You can find justification for anything. And all this comes from a person educated in the best international universities…I am thankful that when Raja Rammohan Roy was first exposed to western education, he fought Sati – he did not try to intellectualise it and find some weird justification for the abhorrent practice. Two women for one man indeed!!!Recommend

  • aamir khan
    Apr 11, 2011 - 11:30AM

    These animalistic “laws” belong in the dark ages of ignorance & barbarity not in the civilised world.Infact these “laws” are not worthy of being called “laws”,these laws are based on oppression of the female gender by the male gender & are nothing but attempts to subjugate women & keep them under the feet of men.

    it is time our women woke up & started challenging these hideous laws & demand the repeal of all these laws which humiliate & degrade women by giving them inferior status to men.Recommend

  • shakeel anjum
    Apr 11, 2011 - 11:35AM

    separate mosque & state,as long as religion is allowed to poke its nose in the affairs of the state such horrific laws will continue to be in force.repeal all these savage laws made in the name of religion.

    These were made to please the religious extremists in our society & are inhumane & chauvinistic.Religion has to be made a private affair & has to be prevented from ruining the state.Recommend

  • faraz bawany
    Apr 11, 2011 - 12:01PM

    this law is an insult to anyone with a functioning brain.it is sorely an antiwomen law made by men looking to stamp their authority on women and to keep women under their feet.The brutes can only approve of such laws,no decent,rational person can think of calling these black edicts as laws.Recommend

  • umar
    Apr 11, 2011 - 12:56PM

    @all
    is any of you are religious scholar or law expert
    i hope none of you is
    than how you comment on fields which is not related to you
    when you or your any relative is ill than to whom you consult doctor why not engineer Recommend

  • Hassan Bajwa
    Apr 11, 2011 - 1:40PM

    @ Umar

    Interpreting, understanding and expressing personal opinions about religion is NOT the exclusive premise of “scholars” (no matter how much they insist that it is).

    Islam is for “ALL OF HUMANITY” and to attempt to restrict the freedom of believers to understand and interpret ones own faith is another example of how Islam has fallen prey to the very same moral arrogance and self-affirming corruption that preceding religions did in their time. Islam as people like you promote it, is no different from christianity in the heyday of the corrupt Papacy.

    Who are you to say that people are not permitted to comment on the religion that is VERY MUCH related to them. As a believer in Islam you are as related to it as is humanly possible.

    religion/faith is about man’s relationship with the Creator. This relationship does NOT need “experts”, “scholars” or “professional qualifications”. That is exactly why islam has no concept of clergy.

    This “consulting the doctor” argument that is so often put forth by the mullah brigade is a FALSE argument that goes against the fundamental spirit of a religion meant FOR ALL.Recommend

  • M M Malik
    Apr 11, 2011 - 2:38PM

    The Hadood laws are not in accordance with Islamic principles as outlined in the Quran. The two instances where capital punishment was awarded relate to Jews in the early days of Islam. The Jews were treated as per the Mosaic law; as the punishment for adultery had not been conveyed by Allah in the Quran by that time.

    Secondly, why do we always start with Islamic punishments? What about an Islamic welfare state? Why do we have cart before a horse?Recommend

  • siddiqui
    Apr 11, 2011 - 3:47PM

    these foreign bred so-called intellectuals are much more conservative than you would normally find in pakistan…Recommend

  • sameer
    Apr 11, 2011 - 3:54PM

    Hassan Balwa, Umar has a very strong point. Instead of reading medical books or law books ourselves, we go to see doctor or lawyer respectively for an expert advice. If you want an interpretation of Pakistan constition, only judges can interpret it not all the people including those who can read or write even though Pakistan constitution is applicable to all individual in Pakistan.
    Then why do we not go to islamic scholar to learn about Islam since scholar has studied Islam more than us and therefore he would know more about it. If every tom and harry start interpreting Islam, then there is bound to be chaos since there would a lot of conflicting opinion. That is how Al Qaeeda has sprung up; to my knowledge there is no scholar in that organisation. You have an opinion on Islam, but that opinion would not be expert opinion if you have not immersed yourself in the study of religion.

    You are also confusing clergy and Islamic scholar;they are two different things. You do not need scholar or clergy to pray, but you certainly need an scholarly advice on how to pray.Recommend

  • faraz
    Apr 11, 2011 - 4:39PM

    According to Hudood Law, rape cant be proved even if it takes place infront of hundreds of women as women become a witness!Recommend

  • Huma
    Apr 11, 2011 - 5:52PM

    The laws in Pakistan of a woman not being equal to a man extend beyond the Hudood Ordinance to legal documents as well. I worked as Head of Credit in a multinational bank in Karachi where as part of my job I had to sign customer loan documents on behalf of the bank. Because I am a woman I had to get a man (any one of my subordinates) to sign after me as a witness.

    So in the legal sense my work experience and qualifications make me subordinate to even the chaprasi in the office -just because I am a woman. So for all the apologists for this law please explain the logic to me as I feel discriminated and disadvantaged by it.Recommend

  • Hassan Bajwa
    Apr 11, 2011 - 6:37PM

    @ Sameer

    It is an apples and oranges comparison when you try to compare the professional advice of doctors and engineers to the purely subjective interpretations of scholars.

    It doesn’t matter how well versed a scholar is in islamic history.. ultimately religion is a matter of the individual’s relationship with the Creator. That means that a scholar can at best give advice based on his personal interpretation of the Quran. However his word is neither law nor infallible. That is why i object so strongly to people telling others to shut up because they are “not qualified”.

    I do not claim that scholars should necessarily be avoided, but i certainly take issue with the notion that they are more qualified to understand the meaning of the Quran than anybody else. By what criteria do they justify that claim? Does knowledge of the ruling of long-dead scholars make you more qualified OR does it restrict your ability to interpret the Quran in the light of the present? Does a deep knowledge of rituals necessarily imply and equally deep knowledge of the SPIRIT of those rituals?

    In fact considering where the muslim ummah stands today and considering the schisms, the moral degradation and the wholly unislamic nature of our “devout jihadis” , does it not stand to reason that it is the limited, merciless, uncompromising and intolerant interpretation of our long-dead islamic scholars that have landed us in this predicament?

    It is a society’s dependence on “scholars” that give salvation-peddlers that excuse to create a clerical profession. once the profession is established, they proceed to convince the population that they alone have the right (they call it “qualifications” but this is what they mean) to interpret the faith.

    we all seem to forget that Allah chose to reveal his message to illiterate shepherds and not “qualified scholars”. Does that not give you a clue?Recommend

  • Sameer
    Apr 11, 2011 - 8:00PM

    Hassan, your comment imply scholar who devoted their whole life are not more qualified than a quack who study Quran probably once a year. Maybe I should say Supreme Court judges are not more than qualified than common man on intrepreting constitition or an historian is no more qualified than a common in history subject. That is an very absurd and illogical argument. Scholar have more knowledge than a average man. If you want to follow your own whim instead of scholar, then there is seriously something wrong with you.
    It is actually absence of scholarship that has led to chaos.
    Btw do you study and interpret yourself on how to pray, haj? Recommend

  • ba ha
    Apr 11, 2011 - 9:43PM

    The Christians have private confession in church.

    WE POOR MUSLIMS NEED A BLASPHEMY DEDICATED WEBSITE WHERE WE CAN ASK: “DOES THIS CONSTITUTE BLASPHEMY”? With a big “CONFIDENTIAL ASK” button.

    It sure would be an improvement to the present state of affairs (see no evil, hear no evil so obviously do nothing)Recommend

  • Salih Deen
    Apr 12, 2011 - 12:39AM

    I was at this event and the article represents a very poor summary of the presentation.
    1. The presentation was on gender equality, inheritance, testimony, and lastly hudood.
    2. Hudood was the least covered part and the speaker only made two or three points in which he pointed out that the Hudood ordinance allowed for a women who was raped to file a case under Ta’zir and that would not require any male witnesses in order to prosecute. This is what was according to Islam. His point was only that the media failed to portray this aspect and made it sound as if both Islam and the Hudood ordinances offered no reprieve for a rape victim. His point was that Islam does allow such a reprieve and so did the Hudood ordinance and that was what was in accordance with Islam. He showed on screen the relevant sections of the Hudood ordinance and how the media pundits had misquoted them. Then he continued to say that there were a lot of problems in the implementation of these laws and they were misused to accuse innocent women. That was it. It was not really a presentation on Hudood just a couple of points at the end of a presentation.
    3. On testimony, the speaker said that a women’s testimony is equal to that of a man’s in many areas of Islamic law including hadith transmission. It was only the area of financial disputes that Islam prefers that women not have to be summoned to court to testify. A woman has the ability to witness but Islam doesn’t want her to have the burden of testimony.
    Recommend

  • Omar
    Apr 12, 2011 - 4:35AM

    Interesting debate, i noticed that a lot of people take it as law against women. According to the law both man and woman can be stoned (whoever is married). But no man or woman has ever been stoned in Pakistan.
    First of all let’s decide if here should be a law to punish adultery. Every culture and country has their own laws. Some western countries do not have any punishment for adultery but have for incest; others do not consider even incest punishable. We have to consider our culture and religion first. I am in favour of a punishment, especially in case one of the people involved is married ( we see lots of married men abusing their social status and have so called consensual sex with unprivileged girls), rarely see it other way around. At the same time I am in favour of suspending (not abolishing) the law till we determine what is the acceptable method of investigation (with modern medical science it is not hard to prove even without witnesses), and also what is an acceptable punishment. In Quran punishment mentioned is lashes and not stoning. It was carried by prophet Muhammad SAS, because it was a law of Torah. When a Sahabi was asked if prophet carried on the punishment, before the nuzool of ayah stating lashes as a punishment or after, he said that he does not know. So it is certain that stoning was carried on as a law from Torah but not sure if it was before or after the law of Quran. Drinking was permissible once but later it was forbidden, one cannot say since it was once allowed we can still drink under Islamic law.
    Summary
    1) Keep adultery punishable (But only after we have done following)
    2) Revise punishments
    3) Improve and revise investigation techniques.
    Same opinion on Blasphemy laws.
    We shouldn’t abolish all the punishments because our investigation and judicial system has failed, because in that case we should end every punishment including penalties for rape and murder because in our country every law is abused and we do not see rich and powerful getting punished, however we can suspend some punishments (especially one that involves capital punishment) till we can (hopefully) improve our investigation techniques and prosecution system so that innocent do not get caught.Recommend

  • jahanzebb
    Apr 18, 2011 - 8:12PM

    The amount of ignorance in the people posting here is amazing. Ms. Cheree Franco has done a terrible job with the summary, as this is a lecture that I have attended personally and I say honestly that Maulana Kamaluddin’s views are totally being misrepresented here. Let me just explain one idiotic, no-brainer comment to plead sanity in the rest of the people posting comments:

    faraz – “According to Hudood Law, rape cant be proved even if it takes place infront of hundreds of women as women become a witness!”

    I distinctly remember Maulana Kamaluddin stating over and over again that for any and every punishment other than capital punishment, the witness of even one woman , even that of the victim herself, is enough the put the rapist in jail for life. You can implement the entire system of prosecution of rape used in the United States legal system (because the punishment there is not death), and that would be totally fine with Islam, no problem at all.

    Please keep in mind that Maulana Kamaluddin is no small scholar. He gives lectures at Oxford University, LSE, Imperial College etc., and has a huge following of scholars as well as non-scholars, throughout the world. All who have heard him believe that he has extremely balanced views based firmly on Shariah. You’re giving views here without ever having listened to him. That is extremely unethical no matter what system of ethics you follow. That much I hope you’ll agree, and refrain from giving uninformed opinions.

    Thank you,
    A fellow citizen.

    P.S. Ms. Cheree Franco, seeing as you’re a graduate of Cambridge, one would have expected at least honest journalism from you, and a true and detailed account of Maulana Kamaluddin’s views on the topic. It’s a shame you decided to distort the views of a senior Islamic scholar, and turn away the masses from the benefit they could have gained from him. Thoroughly disappointed in you miss, thoroughly :)Recommend

  • abu bakr
    Apr 19, 2011 - 7:36AM

    For some of our wonderfully “enlightened” and “educated” friends posting comments here, the definitions for Intellectual and So-Called Intellectual seem to be as follows:

    strong textIntellectual – Anyone who agrees with our views, the perfect views.

    strong textSo-Called Intellectual – Anyone who dares disagree with our perfect views, and dares hold an opinion that is not the same as ours. Whatever his/her reasoning might be, we do not care as to its validity or strength, we do not care even to hear it out, for we are the almighty knowers of truth, and in us and us alone is contained all that is true and good.

    So much for “tolerance”, the value you so passionately worship, my “enlightened” and “educated” friends. Disgusting bigotry of the worse kind :). Goodbye sanity.

    Yours,
    Abu Bakr.Recommend

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