Implementation of Hudood Ordinances
10 February 1979, President Ziaul Haq promulgated four ordinances, collectively referred to as the “Hudood Ordinances” which were crafted to make significant revisions in Pakistan’s criminal law system. The intent of the ordinances, a stated by president Zia, was to bring Pakistan’s legal system closer to the precepts of Islam. Accordingly, revisions were made in criminal statutes bearing on sex-related crimes (zina) and theft. In addition, new laws were introduced through the vehicle of the ordinances bearing on prohibition and qazf (the wrongful imputation of zina)} In keeping with the Islamic intent of the ordinances, each established distinctions between hadd (lit. “limit”) crimes expressly defined in the Qur’an and Sunnah, and tazir (non-hadd) crimes, both in regard to punishments and evi- dentiary requirements. For instance, the hadd offense of theft, as established by the Property Ordinance, requires that two adult male witnesses, free from major sin, witness the actual theft of property worth more than 4.457 grams of gold (nisab) from the place in which the property was protected 0hirz). If such evidentiary requirements are met the thief is subject to the amputation of his right hand at the wrist. If such evidentiary requirements are not met the accused is tried under tazir, with conviction carrying punishments including imprisonment, fines, and/or stripes.
Coupled with the introduction of the Hudood Ordinances, Zia’s administration also introduced judicial reforms that restructured Pakistan’s higher judiciary. Originally, Shari'ah benches were grafted onto the high courts, the former designed in part to hear appeals generated by the operation of the Hudood Ordinances. Then in June 1980 a separate Federal Shariat Court (FSC) was established in Islamabad, and was granted wide powers both to hear appeals against conviction as well as acquittal under the Hudood Ordinances. It was also granted powers to examine laws for “repugnancy to Islam” and to entertain “Shariat petitions” filed by private citizens. The implementation of such judicial reforms occasioned more than their due share of administrative confusion and complexity. In fact, as of March 1985, such concerns had generated 27 separate “revisions” in Pakistan’s Constitution. When the dust settled, however, a fairly straightforward pattern of judicial procedure relevant to the Hudood Ordinances emerged. Original jurisdiction for crimes falling under the Zina and Qazf Ordinances and most crimes falling under the Property and Prohibition Ordinances lies with the district and sessions courts. The Federal Shariat Court serves as the first court of appeal against either conviction or acquittal in such cases. Decisions of the FSC can be appealed to the Supreme Court of Pakistan (Shariat Appellate Bench). Typically, the overwhelming majority of convictions under the Hudood Ordinances are appealed to the FSC, and approximately 10 percent of acquittals. Less than 10 percent of the FSC decisions are appealed to the Supreme Court.
This article presents preliminary Findings pertaining to the implementation of the Hudood Ordinances. In particular, it addresses such questions as how many cases and what kind of cases have been tried; to what extent are the decisions of courts of original jurisdiction different from the decisions of the courts of appeal; what are the socioeconomic characteristics of the actors in the process; and what are the effects of gender and region on the implementation of the ordinances?
The most direct way to answer questions such as these is to examine decisions of the relevant courts. Accordingly, the sample of cases was drawn from the files of the Federal Shariat Court, in particular, a random stratified sample of all criminal cases tried by the court. The “stratification” was made on two levels: the venue of the FSC bench (Islamabad, Lahore, Quetta, Peshawar, and Karachi); and the year the appeal was filed (1980-84). In each sub-sample one-fourth of the cases were included. For each case several documents were examined including the decision of the original court, the decision of the FSC, the copy books of evidence, and the First Information Report (FIR) of the police. Material was gathered and coded for 426 cases pertaining to 84 relevant variables. The observations that follow are based on this file.
Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.