Electronic copy available at: http://ssrn.com/abstract=1525412 Electronic copy available at: http://ssrn.

com/abstract=1525412

Rape and Hudood Ordinance:
Perversions of Justice in the Name of Islam
Courtesy: Islamicity [December 5, 2006]
Dr. Mohammad Omar Farooq
1



Introduction
In February 2006 in a village in Bangladesh, a woman was awarded 101 canes for adultery.
The primary evidence was that she became pregnant. The former husband of the woman, who
supposedly was responsible for this woman's pregnancy, received a penalty of 10,000 Taka, as
he was absconding.
2
In early 2005, a woman accused of adultery was stoned to death in
Badakhshan, Afghanistan.
3
In 2002 Zafran Bibi in Pakistan was convicted of Zina (adultery)
and sentenced to death by stoning, even though she claimed to have been a victim of repeated
rape.
4
In 2001 Safiya Husaini, from the Northern Nigerian state Sokoto, claimed to be a victim
of rape, was convicted for illicit sexual relationship and sentenced to death by stoning by a local
Islamic court.
5

In all these cases, these women claimed that they were raped, but they ended up convicted
under the Shari'ah/Hudood law for adultery. Some of these cases are well known and received
worldwide attention. Had these been isolated cases, it would have been different. However, the
overall statistics is more than disturbing. In case of Pakistan, "Of the 7,000 women in jail
around the country awaiting trial, 88 percent are accused of crimes under Hudood, according to
the Lawyers for Human Rights and Legal Aid. Ninety percent of these women have no lawyer,
and 50 percent do not know they are entitled to contact one. Most women accused of Hudood
violations are acquitted, but lose an average of five years to confinement, and lose their
reputations as well."
6
Under the new Hudood law, the incentive for any woman to report any
rape is gone. "Hudood has also unwittingly become a major factor in rape cases. Many rape
victims refuse to file charges, because under Islamic law, four male Muslim witnesses are
required to prove charges of rape. Women who cannot produce this many witnesses often end
up in jail themselves for adultery, a crime against the state punishable by stoning to death."
7

Under such a caricature system, rape victims have less reason to accuse anyone as a rapist.
This is a travesty of Islam, since Islam is essentially "gender-egalitarian." [Quraishi, p. 288] In
this paper, we examine the problems with these Hudood laws that put women in a serious
double jeopardy. Before proceeding further, let me point out that the following is an important
premise in my approach to dealing with any contemporary Islamic issues. The essential source
of Islamic guidance is the Qur'an and the Sunnah. We are to be respectful of and we must take

1
The author is an associate professor of Finance and Islamic Banking/Finance at Royal
University for Women, Bahrain. To share feedback, he can be contacted at
farooqm59@yahoo.com.
2
Woman awarded 101 canes for adultery," New Age, Bangladesh, Feb. 18, 2006.
3
"Afghanistan: 4 years after the US-led invasion," Revolution, October 30, 2005.
4
"In Pakistan, Those Who Cry Rape Face Jail," WeNews, May 16, 2004.
5
"Shari'ah Law, Adultery and Rape," ISHR Germany, undated.
6
"Pakistani religious law challenged," Christian Science Monitor, Mar 02, 2005.
7
Ibid.
Electronic copy available at: http://ssrn.com/abstract=1525412 Electronic copy available at: http://ssrn.com/abstract=1525412
into consideration the opinions of our pious and capable ancestors and their valuable
contributions. However, we are not to imitate or follow them verbatim, if in conscientiously
understanding, interpreting or practicing Islam in contemporary times we need fresh thoughts
and solutions.

The problem
In 1979, under the military rule of late Gen. Ziaul Huq, the Pakistani government decided to
implement Shari'ah, a very misunderstood, misinterpreted and misapplied concept. [Farooq_2]
Hudood is plural of Hadd, a few boundary limits for the lawful and unlawful from God.
The haddpunishments are specific, fixed penalties laid down by Allah for specified
transgressions or crimes. As part of that, a comprehensive Hudood ordinance was enacted,
which included The Offence of Zina (Enforcement of Hudood) Ordinance, VII of
1979. Zina (adultery/fornication) is prohibited in the Qur'an and it is a punishable offence. This
ordinance defined zina a lot more liberally, where zina means adultery, fornication, prostitution
and rape. Thus, rape became a type of zina, zina al-Jabr.
Notably, the classical Islamic jurisprudence treated rape as a special case of assault, not of
zina. "Using ... examples of Umar as sources, the Islamic legal schools began recommending
payment of compensation in rape cases and dealing with rape as a violation of property,
orightisab (from the root ghasb, or usurpation), of what belonged to another." [Sonbol, p. 311]
Unless it is treated as violation of the property of the victim, this approach has some faults as at
some levels of jurisprudence, women are reduced to property and that must be avoided and
rejected. Notwithstanding that shortcoming, there is at least potential to further develop this
approach without the "property" angle. However, by including rape under zina, for all practical
purpose, it undermines the special dimensions of this crime. One related, pivotal problem is the
the witness requirement.
Anyone accused of rape is considered to have been involved in zina (adultery/fornication). The
accuser (victim) must then produce four credible male witnesses to give testimony against the
accused that he has raped the accuser. If the accuser fails to meet the witness requirement,
then the accuser, usually a female, is by default charged of zina and, if convicted, given the
punishment prescribed under the Hudood law. If the female does not bring up the accusation of
rape, then the woman is by default charged with zina.
Unconsenting sexual intercourse is termed zina-bil-jabr, and carries a tazir penalty for the
perpetrator of 25 years in prison and 30 lashes; there is also a more severehadd punishment,
but, as noted, this has never been carried out. However these penalties offer little protection to
women since, in practice, a woman who has been raped and makes an accusation of zina-bil-
jabr is laying herself open to accusations of adultery, and thus to conviction for zina. [Marcus,
p. 9]
Many women who, once accused of zina, have claimed to have been rape victims, were
charged and imprisoned under this Hudood law, as they failed to produce the supporting
witnesses. Thousands of women have been languishing in prisons of Pakistan under this
Hudood law. A society that presumably wants to implement such laws for protection of morality
and decency seems to be oblivious to the fact that these raped victims are further sexually

8
Rubya Mehdi. "The Offence of Rape in the Islamic Law of Pakistan," WLUML Dossier
18, October 1997.
9
Farooq Hassan. Women's Protection Bill: Perception and Realities, Islamonline, Nov.
28, 2006.
10
Scholars agree on need to amend Hudood laws, Daily Dawn, June 12, 2006.
victimized in prisons by police.
8

Also, pregnancy without marriage (or a counter-charge of rape) is recognized as a basis for
prosecution for zina. It is not difficult to contemplate that a woman can become pregnant due to
rape, and even so, it may not be easy in a male-dominated society to bring the charge of rape
against the rapist. There is no direct basis from the Qur'an or the Prophet to treat pregnancy of
unmarried women as a prima facie evidence of zina. There are some prominent companions
who have held it as prima facie evidence, but that's their opinions. Neither there is any
unanimity on this among the Companions of the Prophet, nor any basis of it from the Qur'an or
the Prophet is given. The subsequent generations of scholars and jurists have widely differed
on this. [Quraishi, p. 300] Any such provision without direct sanction from the Qur'an or the
Prophet can't and shouldn't be given too high a status, where the social conditions may prevent
a woman becoming pregnant due to rape from bringing up the rape charge.
Zina vs. Zina bil Jabr: Treating rape as a subcategory of adultery
Zina relates to adultery or fornication - any extramarital sex - and is prohibited in Islam.
However, an essential aspect of zina is that it is consensual. Rape, thus, can't be classified
under zina. The term zina bil Jabr is oxymoronic, because literally translated, it means
"consensualextramarital sex by force". Had it been only a matter of oxymoronic expression or
semantic, it wouldn't have been of great significance. However, because it has serious legal
implications and has impacted the lives of many women, this matter can't be taken lightly.
A major problem with the orthodox Islamic law, as exemplified in the Hudood Ordinance of
Pakistan, is approaching rape as zina bil Jabr. Because zina is legally prohibited and regarded
as morally one of the most reprehensible acts, the very charge of zina bil Jabr casts a negative
spotlight on the accused. A rape victim, already a victim, is further traumatized and stigmatized
by such label that is regarded by the society as reprehensible. This label is an obstacle to
seeing and treating a raped victim, as a victim, and victim only. Instead, the very charge is
under a presumption that the victim along with the rapist have been involved in a morally
reprehensible act.
Thousands of women, who have claimed to be rape-victims, are now languishing in jail or have
their lives ruined even after being acquitted, due to trying them under zina bil Jabr of Hudood
Laws. [Jahangir and Jilani, chapters III-IV] "No distinction has been made between Zina and
Zina Bil Jabr (rape), resulting in it becoming an instrument of exploitation and oppression."
[Niaz, 2001]
While Islam places very high value on morality and decency, and thus there is harsh
punishment for promiscuity, the entire issue is also subject to Islam's essential commitment to
justice, with a special focus on protecting the weak and the vulnerable. When this commitment
is undermined, Islam itself is undermined, contrary to the examples from the Prophet
Muhammad.
While punishment for sex outside of marriage may still seem harsh to some in the context of
contemporary Western society, the important point to note for the sake of this study is that the
Prophet did in fact differentiate between consensual and nonconsensual actions and punished
individuals accordingly. This fact underscores the Prophets commitment to justice and to
womens dignity and honor. [Norman, p. 2]
Well, it is to be acknowledged that Rape is one of those crimes that is most difficult to prove in
any society and thus extra considerations must be there to protect the accused who might be
innocent and to get justice for the accuser who may have been a rape victim. [Jahangir and
Jilani, p. 13; Asma Jahangir's The Hudood Ordinances: A Divine Sanction is probably the first
and only systematic study of Hudood Ordinances and a must reading.] Yet, how is it possible
that Shari'ah or Hudood laws that are purportedly based on Islam's explicit pursuit of justice
and protection of the weak and wronged end up either against the wronged or exacerbating the
problem? A major part of the problem is that people often don't know about the problem in
depth and the scholars (especially religious scholars) rarely undertake any systematic,
research-oriented study before or after they pronounce fatwas or enact laws.
Interestingly, all these groups are looking at the Hudood Ordinances more in the light of what
they think they are, than what they actually are. Most participants in the debate have not made
an attempt at a serious and systematic study of these laws. They have largely gone by
impressions and their own biases. [Jahangir and Jilani, p. 21]
First, the Qur'anic commandment regarding zina and its punishment makes two things
abundantly clear. (a) Islam treats very sternly adultery/fornication or any sexual relationship
outside what is permissible. However, this is not based on the vigilance of an watchful and
intrusive role of the government. (b) The threshold of witness requirement makes any
conviction virtually impossible. Anyone, including the public authority, accusing someone (male
or female) of adultery has to produce four, credible and pious eyewitnesses, who have seen at
least the penetration. Such high and strict evidentiary requirement for conviction for
adultery/fornication can hardly ever be expected to be fulfilled in a Muslim society. That's why
the cases of punishment for adultery during the time of the Prophet was generally based on
voluntary confession by someone, who, due to fear of God, wanted to have the punishment of
his or her sins in this world, in lieu of any punishment in the life hereafter.
Yes, the punishment for adultery/fornication in Islam is harsh, but the threshold for conviction is
so high that it is expected to be virtually non-existent. That, in contemporary times, there are
easy accusation and conviction, especially of so many women under the Hudood Ordinance in
Pakistan and where raped victims frequently end up in jail, is simply inconsistent with the
purpose of the Qur'anic commandment in this regard.
Secondly, women's witnesses are not recognized and admitted. "At least four Muslim adult
male witnesses, about whom the Court is satisfied, having regard to the requirements
of tazkiyah al-shuhood [credibility of witnesses], that they are truthful persons and abstain from
major sins (kabair), give evidence as eye-witnesses of the act of penetration necessary to the
offence." [Quraishi, p. 290]
Inadmissibility of women's witnesses is a pathetic subversion of laws and codes in the name of
Islam. Except the arguable exception of women's witness in case of business-related matters,
women's witness needs to be recognized at par with men. Even the exception is moot in
modern context, where women are successfully and competitively assuming positions of
responsibility at all levels of society, there is no reason why in ALL respects witness of men and
women should not be put on equal footing. Notably, even if one wants to argue about the
exception, where the orthodox Islamic law allows qualified women to assume positions of
judge, it is ludicrous and utterly unacceptable that women's witness should be rendered
inadmissible even where they themselves are victims, or where their lives are affected.
As far as the requirement of four Muslim adult male witnesses, who are also credible, honest
and pious, and who must be eye-witnesses of the act of "penetration" is simply mind-boggling.
Let's consider the details. For four persons to witness a sexual act or rape, it almost has to be a
public event or an orgy (and in case of rape, with a woman as non-consensual participant).
Anyone familiar with Muslim societies knows that it would be a rare event. That they have to be
eye-witnesses of "penetration" is a reasonable and just requirement in case of
proving zina (making conviction virtually impossible), but it is an unacceptably high threshold of
evidence in case of rape. That the witnesses have to be pious to the extent that they must be
free from major sins is another unacceptable condition that rarely can be met through public
scrutiny.
Now, let's assess the problem taking the issue of witness requirements into consideration. As
soon as either (a) a woman files a complaint of rape or (b) a woman accused of zina in turn
brings up the charge of rape, the burden of proof shifts to the accuser. If the charge is initiated
as a rape charge, the accuser must come up with four male, adult, pious, credible Muslims to
prove her case. Anything less would mean that the accuser can be punished of zina and (and
often also false accusation). So, there is a double jeopardy. If the woman was accused
of zina and in turn brings up the charge of rape (zina bil jabr - an oxymoron), once again, now
the burden is on her to meet the same witness requirement. She can't bring female, non-
muslim or minor witnesses. She also can't bring either witnesses who are not pious (to the
extent that they are free of major sins) or witnesses who have not been eye-witnesses of the
"penetration." In such cases, she would by default be charged of zina.
It is this predicament that has entrapped women under Hudood laws. The problem is further
compounded by two additional factors. Since the punishment for rape (zina bil jabr) is greater
than just zina (adultery), the accused rapist has all the incentive to claim that it was an
adulterous relationship. This is also typical in most rape related charges in western
countries. Thus, when the rape charge is brought, the burden of proof falls on the accusing
women. However, since women's witness is not accepted and rapes rarely occur in public view
to have four reliable, pious Muslim witness who have sighted the penetration, generally the
rape charge can't be made to stick.
It must also be assumed that witnesses are not manipulated by the power of status or wealth
by the rapist. "There is evidence that police have deliberately failed to file charges against men
accused of rape, often using the threat of converting the rape charge into a zina prosecution
against the female complainant to discourage women from reporting" [Quraishi, p. 291]
Furthermore, "the Pakistani police proved to be disappointingly criminal in practice, by refusing
to register cases under Zina bil-Jabr i.e. rape and recording it instead as a case of Zina i.e.
adultery." [Aslam, 2003]
Actually, the law enforcement agencies of Pakistan go much further in subverting justice
through their gender-bias.
Police officials often fail to file reports, lose reports, or even persuade women not to file a
report through harassment or even abuse. In the unlikely event that a report is even filed, the
police often conduct improper investigations or fail to even investigate the crime at all. As a
result of these inadequate or non-existent investigations, men who have been reported to have
committed these violent acts are often not arrested or charged with the crime.
A prevailing view among police officials is that women who have been raped are either scorned
lovers or fear family reprisals, thus they fabricate a story to frame the men. Police officials
often view domestic violence, including honor killings, as a private matter to be resolved within
the family or tribe, not the criminal justice system. [Bettencourt, p. 12]
As is all too well known, most Muslim societies, including Pakistan, are strictly hierarchical
society, where an authoritarian structure prevails at almost all levels, and domestic violence is
also widespread.
"Male dominance and commodification subjects women to violence on a daily basis in
Pakistan. Approximately seventy-percent to ninety-percent of Pakistani women are subjected to
domestic violence.4 Typical violent acts include, but are not limited to, murder in the name of
'honor,' rape, spousal abuse including marital rape, acid attacks, and being burned by family
members (often labeled an accident by family members). A rape occurs in Pakistan every two
hours with one in every 12,500 women being victims of rape. Five women per day are killed
and two women per day in the region of Punjab alone are kidnapped.5 Incidents of women
being burned by men throwing acid, an act that severely disfigures its victims, has increased as
well." [Bettencourt 2000, quoting Human Rights Commission of Pakistan]
The typical rapist is not a stranger in a community, and usually more powerful in various ways
than the victims. Thus, witness manipulation by the rapist is a very common problem.
This problem is further exacerbated by the reality that most of the victims of rape are from
socio-economically disadvantaged strata of the society. Many of them are illiterate and rarely
any of them have literacy about the laws and ordinances. "According to the 1999 report by the
Human Rights Commission of Pakistan, only two percent of Pakistani women participate in the
formal sector of employment. Ninety-three percent of rural women and seventy-two percent of
urban women are illiterate." [Bettencourt, 2000, p. 3] While women of diverse background can
get accused, ultimately, it is those "women who cannot afford lawyers are those most likely to
be charged and jailed" [Khan, p. 2].
Studies have shown that many of those women who have been subjected to the existing laws
and/or are languishing in prison under Hudood laws don't know or understand as to what
happened to them. Many of them didn't know or understand the especial jeopardy of accusing
another party of rape, even when they were raped.
As the Ordinance of 1979 stated, the Hudood laws were meant "to bring in conformity with the
injunctions of Islam the law relating to the Offence of Zina." However, it is now all too clear that
rape has been usually made subject to ta'zir (a discretionary punishment based on judge's on
interpretation, specific to the school of jurisprudence prevailing in the country),
not Hadd(irreducibly applicable punishment specified by the Qur'an and Sunnah). Classifying
rape underzina has exposed women to double jeopardy and emboldened the men who seek to
impose themselves upon vulnerable women.
Although the Hudood Ordinance was promulgated in 1979, it seems that now, 8 years later,
men have become more confident of the manner in which they can get away with the sexual
exploitation of women-rape. [Sumar and Nadvi, 1987]
Based on the predicament of these women, many of them are double victims (first raped, and
then sexually assaulted by the police or prison guards). Where Islam is categorically for justice,
especially to protect the weak and vulnerable, the current Hudood laws not only have failed to
deliver justice, but in reality has become a legal nightmare for the less powerful and the
disadvantaged segments of the society.

Some relevant suggestions
All those women who are languishing in jail due to the unacceptably faulty Hudood laws must
be freed and Muslim men and women must come forward for a campaign to free them. The
religious scholars have a special responsibility before the people (and before Allah) to educate
themselves about the consequences of the laws they promulgate and uphold on these hapless
women.
To better ensure the moral values of the society and uphold Islam's commitment to justice,
several steps must be taken to address the pertinent problems.
1. Rape needs to be legally separated from Zina.
Zina bil jabr is not just an oxymoron, but also a proven legal black hole for women, where they
are getting entrapped and their lives ruined. It is an unintended, but serious and unacceptable
consequence of the current Hudood laws. Rape needs to be tried under assault laws. Further
exploration of this matter is needed to better deal with rape from the viewpoint of Islamic laws.
There is a misperception, and potentially misinformation, that the Hudood Ordinance as it
pertains to the Zina/Rape aspect, has been repealed. But that in reality is not so.
9

2. Woman's witness must be legally recognized
There is absolutely no reason why female witness wouldn't be recognized in the name of Islam.
The orthodox position that women's witness is not equal to men's needs to be confronted and
changed based on the very principles of Islam that is meant to be just and balanced. In the
short run, there should be necessary changes to recognize female witness in such pertinent
cases. In the long run, both Islamic fiqh and the established laws need to put male and female
witness at par.
3. Women's participation in the Islamic legal discourse and legal system needs to be
ensured
One of the fundamental problems in Islamic legal discourse is absence of participation of
women after the glorious earliest period after the Prophet. Gradually, the Islamic discourse in
general and legal discourse in particular became an exclusive domain for men. The lack of
women's presence in this field was not merely a loss of balance from the gender perspective,
but also the male-exclusive legal discourse produced laws and codes that were most restrictive
and insensitive in regard to women's concerns or viewpoints. [Ramadan, pp. 139-143]
Muslims need to reject any legal discourse and legal system that either fails to accommodate
or work toward ensuring the necessary participation of women. Women's participation needs to
be facilitated in the formulation of Islamic laws. Their participation is also a must at the judicial
level. Without it, it is neither fair nor Islamic.
4. Islamic law must come through an Islamic political system characterized by
representation, participation and accountability.
Hudood Ordinances of Pakistan were introduced and enacted under the military junta, who
took over the power through military coup, which put aside the constitution as well as all
elected bodies. General Ziaul Huq formed a Majlis-e-Shoora (a consultative body), which was
unelected and it was that body that enacted the Hudood laws. [Jahangir and Jilani, p. 31]
Islam is incompatible with authoritarian, autocratic, hereditary or hegemonic system. After the
Prophet Muhammad, rightly-guided leaders were based on a constitutional/representative,
participatory and accountable system. This system got subverted through a counter-revolution,
leading to an unislamic system, where it became hereditary and/or autocratic. [Farooq_1, 2002]
Whenever the political system doesn't have Islamic validity, as was the case of the military
junta late General Ziaul Haque, Islamic laws introduced under such system would be naturally
vulnerable to abuses and failures at the core. Muslims need to reject any effort to introduce so
called Shari'ah laws under unrepresentative, Islamically-illegitimate regimes.
5. Islamic law requires independence of judiciary and rule of law, where protection of the
weak and vulnerable must be a priority
In any society, characterized by widespread illiteracy and poverty on one hand and serious
maldistribution of power and wealth, there has to be additional protection for the weak and the
vulnerable. For this, independence of judiciary is a must and women's participation in this area
is also vitally important.
6. Requirement on the framers of Islamic law to have ongoing empirical work
Of course, there was hardly empirical work to study the social phenomenon as a consequence
of such laws and codes. How do the laws pertaining to divorce impact the society in general
and women in particular is never studied as part of empirical social research. The entire
approach is deductive and the discourse remains in the realm of books. Indeed, the Islamic
laws are exclusively text- or book-oriented, without the benefit of life-orientation. [Farooq_3]
What would be or was the consequence of the Hudood laws is usually not studied by those
Islamic scholars or experts who formulate the laws and codes. Islamic scholars and
educational institutions with which they are affiliated need to undertake empirical social
research before AND after formulating and implementing laws.
7. Parallel to others, Ulama need to monitor any abuse and failure of the system,
including any vigilante abuse
Any society based on rule of law or Shari'ah must not allow individuals or groups to take law
into their own hands. There have been several widely reported cases in various parts of the
Muslim world, where a village tribunal without any legal or Islamic authority has given fatwa and
attempted to enforce it, the target of which is usually women.
Our Islamic scholars and experts need to extend their role beyond scholarly and legalistic
works. They also need to have organized efforts to keep a tab on the legal system's abuse and
failure and actively work with the victims for protecting their rights. There is a serious human
rights issue that often get ignored by the religious scholars, and they fail to look at the problems
from practical social as well as human view points.
As a long-waited development, almost 25 years since the Hudood Ordinance in Pakistan, the
Ulama are waking up to the wrongs and ills of the Hudood Ordinance, the way it was enacted
and implemented. But better late than nenver. This recognition of the mistakes is important.
The Ulama need to be humble that they are fallible, and learn from this lesson to preempt such
egregious wrongs in the name of Shari'ah in future. They also need to have some ex-post
reflection as to how and why such serious mistakes in the name of Hudood or Shari'ah
occurred.
It is now hoped that beyond the recognition of mistake and ills, the relevant and appropriate
reforms would be made without delay, the wronged parties would be compensated and
extensive public awareness campaign would be undertaken to help the victims be
reassimilated in the society.
10

8. Ta'zir does not have any divine sanction and thus its human fallibility must be
acknowledged and taken into consideration
There is a gross misunderstanding as well as misrepresentation that entire gamut of Islamic
laws is divine and thus sacrosanct. Quite the contrary, even in case of Hadd (Qur'an-specified
punishment for certain major offences), the interpretation at the level of details and its
implementation is all too human. The issue of Ta'zir (discretionary punishment estimated by a
judge that is not specifically prescribed in the Qur'an or the Sunnah) is particularly relevant
here.
If the evidence falls short of what is required for maximum punishment but the case is still
proven, the accused is charged under a lesser class of punishment known asTazir. Here,
unlike in the case of Hadd, women may testify on their own behalf if the judge should so allow.
The Tazir punishment for adultery or fornication is up to ten years in prison, thirty lashes with a
whip and a fine of an indeterminate amount. TheTazir punishment for rape is up to twenty-five
years in prison and thirty lashes. For the purposes of Tazir, no distinction is made between a
married and unmarried offender. Insufficient evidence to impose a Hadd punishment may still
result in conviction under Tazir. When women are unable to prove rape under Hadd or
evenTazir they can be charged with illicit sex under Tazir. [Khan, p. 2]
While a judge may be guided by the Qur'an and Sunnah and other Islamic legal precedence,
the fact of the matter is that the entire matter of ta'zir is discretionary and as such it is fully
loaded with human interpretation and factors. This must not be given a level of sanction as if it
is divine.
By allowing prosecution for zina as a tazir punishment, and thereby loosening the evidentiary
rules, the Pakistani Zina Ordinance has succeeded in contravening the very Quranic verse
upon which it is based. In fact, zina is the only hadd crime for which the Quran sets out a
specific punishment for not meeting its strict evidentiary rules. The Quran thus indicates that,
unlike other hadd crimes, there can be no tazir punishment for zina. [Quraishi, p. 312]
9. Raped victims must not be further victimized by forcing the rapists to marry them
One particularly troubling problem is when a local, informal tribunal forces a rapist to marry the
raped victims. It is considered to be a punishment for the rapist, without any consideration for
the victim's consent to such marriage or the life time consequence for the victim. In reality, it
becomes a double whammy for the raped victim, in both cases (rape and subsequent
marriage) deprived of her freedom and dignity. There are some precedents reported from
Hadrat Umar. However, Hadrat Umar offered this as an option to the victim [Norman, p. 3],
which is generally not the case in many rural communities of our time. Furthermore, even if
Hadrat Umar offered this as an option, this was his juristic position, not necessarily with any
support from the Qur'an or the Prophet.


Conclusion
In its essential guidance for mankind, Islam is wholesome and balanced. Its primary emphasis
is on the inner God-consciousness (taqwa) that motivates people to be informed and respectful
of the moral values and standards. To balance this inner consciousness as a human beings
compass, Islam also has some (actually, few) well-defined limits (Hudood) that are in
consonance with universally recognized values. Parallel to nurturing God-consciousness and
fostering an environment where people uphold values due to their volition than enforcement,
Islam has those few limits (Hudood), the transgression of which is regarded abominable
enough to warrant harsh consequence. However, it is important to note that since all these not
just are for human beings, but also to be upheld and implemented by fallible human beings.
Thus, there are appropriate level of checks and balances to ensure that justice and moral
values do not become convenient or easy substitutes.
Islam teaches that human life is sacrosanct. Islam also take moral values very seriously. Thus,
while in some cases (Hudood, to be specific) very harsh punishments have been specified, the
threshold of conviction has been set so high that it is virtually impossible to convict someone,
except in EXTREMELY RARE situation. For example, conviction of Zina requires four adult,
credible witnesses, who had directly witnessed the actual penetration. This is such a high
threshold that during the time of the Prophet, there was never any conviction based on
charges, but only a handful exemplary cases of confessions, who believed that that they have
transgressed against God's guidance and they wanted to be punished so that they receive
salvation in the life hereafter. These sensibly high threshold has been turned onto its head by
applying the threshold for rape. This is further exacerbated by corrupt law enforcement agency,
a judiciary that is not independent, a system that is insensitive to injustice and human suffering,
and a society where most people are poor and uneducated become easy prey or victim.
Without rectifying those abetting factors, attempts to enforce Hudood, even as envisioned in
Islam, can be unjust. When Hudood implementation is attempted in a society that is rotten at its
core (corrupt police, non-independent judiciary, an authoritarian system based on an elitist and
hierarchical power structure, wide spread poverty and illiteracy, openly tolerated promiscuous
entertainment, legalistic religious establishment that is insensitive to issues at the human
level), Islam that is supposed to uphold justice and moral virtue through people's own volition
and consciousness can itself become victim of such perversion in its own name. Muslims have
the collective and mutual responsibility to be better educated about Islam and to uphold its
noble and balanced guidance for their own welfare and to offer a model worthy of emulating.


Bibliography
"Debate rages over women and Sharia," BBC News, June 11, 2003.
"Warlord rapes going unchecked in Afghanistan," RAWA/AFP, March 12, 2005.
Shaheen Sardar Ali. "Law, Islam and Women's Movement in Pakistan," in Shirin Rai (ed.).
International Perspectives on Gender and Democratization (Macmillan Press, 2000), pp. 41-
63.
Gken Art. "Women and Sexuality in the Fatwas of the Sheikhulislam in Seventeenth Century
Ottoman Empire," in Pinar Ilkkaracan (ed.), Women and Sexuality in Muslim Societies (Turkey:
Women for Woman's Human Rights, 2000), pp. 81-90.
Maleeha Aslam. "The Process and Impact of Ideologization of Islam in Pakistan," MPhil Thesis,
University of Cambridge, 2003.
Alice Bettencourt. Violence against women in Pakistan, Litigation Report, Spring 2000.
Mohammad Omar Farooq_1. "Islam and Democracy: Perceptions and Misperceptions,"
Message International, May 2002.
Mohammad Omar Farooq_2. What is Shariah? - Definition/Description potpourri [Online
discussion]
Mohammad Omar Farooq_3. "Islamic Fiqh (Law) and the Neglected Empirical Foundaiton,"
[Unpublished; July 2006]
Asma Jahangir. "How far are penal laws effective in protecting women," WLUML Dossier 3,
June/July 1988
Asma Jahangir and Hina Jilani. The Hudood Ordinance (Sang-e-Meel Publications, 1990)
Shahnaz Khan. "Gender, Religion, Sexuality and the State: Mediating the Hadood Laws in
Pakistan," Center for Research on Violence against Women and Children, 2001.
Rachel Marcus. Violence against women in Bangladesh, Pakistan, Egypt, Sudan, Senegal and
Yemen, WID Report, March 1993.
Rubya Mehdi. "The Offence of Rape in the Islamic Law of Pakistan," WLUML Dossier 18,
October 1997.
Unaiza Niaz. "Overview of Womens Mental health In Pakistan," Pakistan Journal of Medical
Science, 2001, 17(4) 203-209.
Julie Norman. Rape Law in Islamic Societies: Theory, Application and the Potential for
Reform, paper presented CSID Sixth Annual Conference, Washington, DC, April 22-23, 2005
Asifa Quraishi. "Her Honor: An Islamic Critique of the Rape Laws of Pakistan from a Woman-
Sensitive Perspective," Michigan Journal of International Law (1997, Volume 18, pp. 287-
320).
Tariq Ramadan. Western Muslims and the Future of Islam [Oxford University Press, 2004]
Amira Sonbol. Rape and Law in Modern Ottoman Egypt, Women and Sexuality in Muslim
Societies. Ed. Pinar Ilkkaracan. Istanbul: WWHR, 2000. pp. 309-326.
Sabiha Sumar & Khalid Nadvi. "Zina: the Hudood ordinance and its implications for women," 21
November 1987, WLUML Dossier 3.