By Nimra Azmi
From 1979 until 2006, the Zina Ordinance, a subsection of the Hudood Ordinances, governed rape under Pakistani law.[1] The Hudood Ordinances were implemented during the rule of President Zia ul-Haq, who presided over the country from 1977-1988 as a military dictator. Representing a conservative Islamic orthodoxy of a Ḥanafī bent, Zia ul-Haq replaced the Pakistani Parliament with the Majlis-e-Shura through which he introduced the Hudood Ordinances into Pakistani national law.[2] The sections on rape and theft in the Hudood Ordinances replaced those found in the Pakistani Penal Code, a British law dating from 1860. The Pakistani Penal Code continues to form the bedrock of Pakistani criminal law today.
Covering theft and prohibiting alcohol, the Hudood Ordinances are most infamous for regulating sexuality through the criminalization and strict penalization of zinā’ or sex outside the confines of marriage. Although the Zina Ordinance in practice generally disadvantaged women and are rightfully regarded as a harsh measure, certain of its components can be read as having had a progressive potential that ultimately failed to take root.
To further the implementation of the Hudood Ordinances, President Zia ul-Haq’s government advanced a series judicial reforms. First, Shariat Benches, or courts designed to apply Pakistani sharī’a, were added to the existent High Court to hear Hudood Ordinance-generated appeals. In 1980, the government established the Federal Shariat Court, a separate court on par with the appellate High Courts, which had jurisdiction over questions of Islamic law as well as appeals stemming from lower criminal court Hudood Ordinance convictions.[3]
The Hudood Ordinances categorized rape as zinā’ bi’l jabr, a subset of zinā’ characterized by force.[4] The Ordinance defined zinā’ bi’l jabr as sexual intercourse outside of marriage (a) against the victim’s will; (b) without the victim’s consent (c) with consent obtained by threat of harm, or (d) by deceiving a victim into thinking they were married.[5] This 1979 formulation of rape borrowed almost wholesale from the1860 Pakistani Penal Code, which textually carved out space for rape to be both forced sex or sex without affirmative consent.[6] Accordingly, the Zina Ordinance superficially cleaved together British definitions of rape with “Islamic” standards of evidence and punishment. This cosmetic fusion moved the Hudood Ordinances beyond a straightforward codification of “sharī’a” and into something where the lines between “Western” and “Islamic” law were not quite so neat.
In maintaining the British definition of rape and its inclusion of sex without the victim’s consent, the Zina Ordinance’s formulation of rape seems to have established a legal requirement of affirmative consent. This requirement is striking given the continuing debate around affirmative consent in the United States. However, given Pakistan’s continuing societal problems with rape and widely maligned legal culture surrounding rape often attributed to the Hudood Ordinances, it is doubtful that courts applied or examined affirmative consent in their judgments, which is to say nothing of the failure of those legal standards to trickle down and shift Pakistani mores. Rather, affirmative consent was frequently used as a defense to accusations of rape.[7]
A key difference and moment of clear progress between the Pakistani Penal Code and the Hudood Ordinances was the Zina Ordinance’s express recognition of both men and women as perpetrators or victims. The British law specifically envisaged a male perpetrator and female victim. The Zina Ordinance facially did away with that gendered vision, stating, “A person is said to commit zina-bil-jabr if he or she has sexual inter-course with a woman or man, as the case may be.”[8] Nonetheless, the accused in zinā’ bi’l jabr cases continued to be largely if not exclusively male and the victims continued to be largely if not exclusively female.
On the other hand, the Zina Ordinance also regressed on certain matters. For example, it removed a Pakistani Penal Code provision that rendered any sex with a girl under sixteen statutory rape. By defining an “adult” as a man who had reached eighteen or a woman who had reached sixteen or the age of puberty, the Zina Ordinance theoretically—and practically—permitted prosecutions of children who had previously been protected. Furthermore, the Ordinances, by specifying zinā’ bi’l jabr as an extramarital act allowed no space for marital rape in its conception of rape. Even past the problematic statutory drafting, in practice, the brunt of Zina Ordinance fell more heavily on female victims.
In addition to the Zina Ordinance’s problematic formulation of rape, many Pakistanis and international groups also balked at the harsh punishments laid out. Under the Zina Ordinance, a muhsan or sane adult who committed zinā’ bi’l jabr knowing he or she was unmarried to their victim would be executed by public stoning. If not muhsan, he or she would be publicly whipped one hundred times with potential additional punishment. At the court’s discretion, this additional punishment could be as steep as the death penalty. If the perpetrator were not an adult, he or she could be fined and imprisoned for not more than five years with an additional potential punishment capped at thirty lashes.[9]
To prove that the crimes committed merited these punishments, the Zina Ordinance subjected an accusation of zinā’ bi’l jabr to the same level of proof as an accusation of zinā’. A defendant could either confess before the court or four credible Muslim adult male witnesses would have to testify to penetration.[10] If the victim were non-Muslim, non-Muslim witnesses would suffice.[11]
While the high level of proof required under zinā’ was a defendant-friendly standard in a crime with no clear individual victims, applying the same requirements to rape proved deeply victim-unfriendly. Due to this arduous standard, the hadd punishment for zinā’ bi’l jabr was never carried out against male perpetrators.[12] Not only did the high evidence standards prevent the convictions of perpetrators, but failure to prove zinā’ bi’l jabr would sometimes be wielded against victims and result in convictions of zinā’ for them.[13] In addition to a potential conviction for zinā’, failure to adequately produce evidence could result in the victim being convicted of qazf, or false imputation of zinā’. The Qazf Ordinance, another component of the Hudood Ordinances, punished qazf with 80 lashes and forbad the person found guilty of qazf from testifying in court.[14] Qazf had to be proven by either confession in court, making the false imputation before the court, or through the testimony of two adult male witnesses.[15]
It is difficult to argue against the importance of a high standard of proof for the conviction of defendants. However, the double-edged nature of bringing accusations in a (global) culture already inclined to mistrust rape victims may have stifled accusations and prosecutions of rapists. To the further detriment victims, delay in reporting could be considered evidence of consent and pregnancy a confession to zinā’.[16]
If the victim could not provide the hudood-level of evidence (which placed a greater burden of evidence production on the victim) and was not found guilty of qazf or zinā’, the defendant could be found guilty of zinā’ bi’l jabr liable to ta’zīr. Ta’zīr was a discretionary form of punishment subject to a lower evidentiary standard—although the Zina Ordinance does not define precisely what evidence led to ta’zīr. As such, it provided judges with discretion in determining the appropriateness of its application. Practically, it ended up being the only type of punishment meted out for zinā’ bi’l jabr under the Ordinance—which may have partially been due to the high evidence standard but may also have been attributable to severe punishments under the Hudood. When ta’zīr was applied, rapists were punished with imprisonment not less than four years but not exceeding twenty-five along with 30 lashes.[17] If two or more people were involved in the zinā’ bi’l jabr (gang rape in other words), they would be put to death.
By blending British law with a formulation of rape in sharī’a, the Hudood Ordinances created a law ripe to be wielded against women, even if certain components like the lines of affirmative consent could in fact have benefited the legal and social culture in Pakistan of sex and rape. It is unsurprising that Hudood Ordinances continued to be heavily criticized, resulting in the National Assembly of Pakistan passage of the Protection of Women Act in 2006.[18] The PWA was designed to bring rape (and fornication) under civil law.[19] Even so, adultery remains within the auspices of a reduced Zina Ordinance.
The Hudood Ordinances were widely maligned and rightfully so. They advanced a formulation of rape law in Pakistan that systematically disadvantaged victims, primarily women and established draconian punishments for perpetrators. Nonetheless, the Zina Ordinance did create a progressive space in theory where victims and perpetrators could belong to either gender and where principles of affirmative consent were enshrined in law. Unfortunately, what bubbled to the fore and what will prove to be the Hudood Ordinances’ lasting legacy is not its kernels of progressivism but rather its harshness and deeply misogynistic application.
Notes:
[1] See generally, The Offence of Zina (Enforcement of Hudood) Ordinance, No. 7 of 1979, The Gazette of Pakistan Extraordinary, Feb. 10, 1979 (hereinafter Zina Ordinance), available at http://beta.shariasource.com/documents/201.
[2] The Majlis-e-Shura was comprised of individuals appointed by the president to advise and assist him on Islamization.
[3] For more on the implementation of the Hudood Ordinances see Charles H. Kennedy, The Implementation of the Hudood Ordinances in Pakistan, Islamic Studies (1987), available at http://www.jstor.org/stable/20839856?seq=1#page_scan_tab_contents.
[4] Whether the understanding of rape as zinā’ is true to classical Islamic law has been debated. Asifa Qureshi holds the rape was understood as a type of bodily injury meriting blood money. Asifa Qureshi, Her Honor blah blah, page. On the other hand, Hina Azam finds that zinā’ in the Classical period comprised both consensual and coercive sex, with both being viewed as Hudood crimes. (p. 15).
[5] See Zina Ordinance, supra note 1, at § 6.
[6] See Pak. Penal Code § 375 (1860) (“A man is said to commit rape who has sexual intercourse with a woman under circumstances falling under any of the five following descriptions (i) against her will (ii) without her consent (iii) with her consent, when the consent has been obtained by putting her in fear of death or of hurt (iv) with her consent with her consent, when the man knows that he is not married to her and that the consent is given because she believes that the man is another person to whom she is or believes herself to be married; or (v) With or without her consent when she is under sixteen years of age.”).
[7] See e.g., State v. Abdul Khaliq et al. (2011) 6 PLD 554 (SC) (Pak.).
[8] See Zina Ordinance, supra note 1, at § 6.
[9] See Zina Ordinance, supra note 1, at § 7.
[10] See id. at § 8.
[11] See id.
[12] Current Legal Framework: Adultery in Pakistan, International Models Project on Women’s Rights (last updated Jul. 12, 2011, 10:03), http://www.impowr.org/content/current-legal-framework-adultery-pakistan.
[13] Asifa Quraishi, Her Honor: An Islamic Critique of the Rape Laws of Pakistan from A Woman-Sensitive Perspective, Islamic Stud., 403, 406 (1997).
[14] The Offence of Qazf (Enforcement of Hudood) Ordinance, No. 8 of 1979, § 7, The Gazette of Pakistan Extraordinary, Feb. 9, 1979 (hereinafter Qazf Ordinance).
[15] Id. at § 6.
[16] See Katherine M. Weaver, Women’s Rights and Shar’ia Law: A Workable Reality? An Examination of Possible International Human Rights Approaches Through the Continuing Reform of the Pakistani Hudood Ordinance, Duke J. of Int’l & Comp. L. (2007), available at
http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1087&context=djcil.
[17] See Zina Ordinance, supra note 1, at § 10.
[18] See generally, Protection of Women (Criminal Laws Amendment) Act, No. 6 of 2006, The Gazette of Pakistan Extraordinary, Dec. 1, 2006 (hereinafter PWA).
[19] While true in theory, a 2010 Federal Shariat Court case held these provisions of the PWA invalid. The Pakistani government appears to be appealing the decision to the Pakistani Supreme Court. This commentary delves further into the issues that the PWA raised.