Twenty-Five Years of Hudood Ordinances-A Review

Table of ContentsI. Introduction 1292II. The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 1295III. Reforming the Zina Ordinance 1298IV. The Protection of Women (Criminal Laws Amendment) Act, 2006 1306V. Conclusion 1313I. IntroductionIn 1979, General Zia ul-Haq promulgated a series of ordinances which were to revolutionize the legal system of Pakistan. ' Zia had come to power two years earlier, in the summer of 1977, in a coup d'etat, which had toppled the government of Prime Minister Zulfikar Bhutto.2 He initially called himself "Chief Martial Law Administrator,"3 but assumed the title of President a year later.4 In 1984, Zia had himself confirmed as President of Pakistan by a referendum, which also gave him a mandate to Islamize the legal system of Pakistan.5 The ordinances introduced into the legal system of Pakistan were ostensibly Islamic criminal laws.6 As a result, theft, consumption of intoxicants including alcohol, extra-marital sex including rape, and making false allegations of adultery were all governed by Islamic criminal law.7 Until 1979 diese offenses had been governed by the purely secular Pakistan Penal Code-legislation enacted in 1860 by the British colonial government and later adopted by Pakistan at the time of independence in 1947.8 Adultery and fornication had not been criminal offenses at all.9Zia's attempt to make the legal system of Pakistan more Islamic was based largely on political motives.10 The country had come into existence following the dissolution of colonial British India in 1947.11 The decades leading up to the withdrawal of the British colonial rulers had been marked by the division of the Indian independence movement along religious lines, with the Muslim minority being represented by the Muslim League.12 The Hindu majority, who outnumbered Muslims four-to-one, was represented by the Indian National Congress-a party which, at least in terms of its constitution, was open to all religious communities.13 The Muslim League's demand for the creation of an independent homeland for Muslims in the event of dissolution of British India was based on the fear that, in a united independent India, Muslims would be oppressed by the Hindu majority.14 Communal tensions and riots in the 1940s reached such threatening proportion that the colonial rulers eventually agreed to the demand of the Muslim League.15 On August 15, 1947, British India was divided into the dominions of India and Pakistan, the latter consisting of a western and an eastern part separated by more than a thousand miles.16 Arguably, a ship sailing from Karachi in West Pakistan could reach Marseille more quickly than it could reach East Pakistan.It was Pakistan's failure to turn itself into an Islamic state which provided Zia with the justification for his coup d'etat.17 The first nine years of independence were marked by tensions between the country's western and eastern blocs.18 The first Constitution of Pakistan, adopted in 1956, made Pakistan an Islamic republic, but it did not change the essentially secular character of the legal system.19 The same applied to the Constitution of 1962.20 An uprising against West Pakistani rule led to the cessation of East Pakistan in 1972, which now called itself Bangladesh.21 Pakistan was now reduced to the provinces of Punjab, Sindh, the North Western Province, and Baluchistan-all geographically contiguous. Pakistan's population was now overwhelmingly Muslim.22 A provision in the 1973 Constitution provided that all laws should be in accordance with Islam, but crucially, this article could not be enforced in a court. …