Criminal Law Reform

On 10 Eebruary 1979, President Zia promulgated four ordinances, collectively referred to as the “Hudood Ordinances” which called for revisions in Pakistan’s criminal law system. The Zina Ordinance established criminal penalties for sex-related crimes (adultery, rape, kidnapping, enticement, attempted rape, sodomy, prostitution, conspiracy to engage in prostitution, and deceitful marriage). The Qazf Ordinance established criminal penalties for the wrongful imputation of zina. The Prohibition Ordinance established criminal penalties for the possession of alcohol and prohibited drugs. And the Property Ordinance established penalties for theft.

In keeping with the Islamic tenor of the ordinances, distinctions were drawn between hadd (plural hudood — crimes with expressly sanctioned evidentiary requirements and specified penalties) and tazir (discretionary evidentiary requirements and penalties) crimes. For instance the hadd crime of zina specifies that four adult, sane males, free from major sin, witness the actual act of penetration. The specified penalty for such a crime so witnessed is stoning to death. Any other crime that falls short of such standards of evidence is tried under tazir with penalties including a combination of imprisonment, monetary fines, and/or whipping.

As I have reported in detail elsewhere, the implementation of the Hudood Ordinances has had only a marginal impact on Pakistan’s criminal law system. No hadd penalties have been meted out in the state, and only two hadd convictions have ever been upheld by the FSC. Both were later overturned by the Supreme Court.

Further, it is important to note that the introduction of the Hudood Ordinances, with the exception of the hadd crimes and penalties, did not create any new “crimes” that were not already on the books. The preexistent Pakistan Penal Code already specified that each tazir crime, as specified in the Hudood Ordinances, was unlawful. Also, the tazir penalties specified in the Hudood Ordinances are similar to the penalties specified in the Pakistan Penal Code.

There has been considerable sentiment for extending Islamic criminal penalties to include crimes of bodily hurt (murder, manslaughter, attempted murder, and assault). But so far, despite a FSC decision which declared qisas (punishment by similar hurt) Islamic, and several reports by the Council of Islamic Ideology which propose qisas and diyat (compensation for injury) legislation, no such legislation has become law.

In sum, therefore, Islamic legal reforms — structural, procedural, and criminal — have had only a minor impact on the corpus of Pakistan’s legal system. Structural reforms have been confined to the creation of a new court, the FSC. The latter institution’s functions, ethos, and procedures are in consonance with pre-existing legal structures. Procedural reforms have included the introduction of a new law of evidence, the Qanoon-i-Shahadat, but it differs from the 1872 Law of Evidence in only one arguably insignificant detail. Finally, in respect to criminal law, four new ordinances have been introduced, but they specify few changes in Pakistan’s preexisting criminal law statutes. Their implementation has also been cautious, and no hadd penalties have been imposed.

So, one may well ask, if the Islamic reforms have had little impact upon Pakistan’s institutions why were issues relevant to their promulgation so much discussed in the political environment of Pakistan during Zia’s administration? To address this question requires a consideration of the role of Islamic reform in the policy-making process of the state.

Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.