Reviewing the Debate on Hudood Ordinance
Javed Ahmed Ghamidi and Dr Muhammad Tufail Hashmi were teamed up to object the ordinance and its implementation and Mufti Muneeb ul Rahman and Maulana Abdul Malik were there to defend it.
The Initial Remarks:
Dr Hashmi and Mufti Muneeb were alloted 5 minutes each to make their respectives stands clear to the house. The first speaker Dr Hashmi said that the contentions of ordinance being within the injunctions of Quran and Sunnah are grossly erroneous. 81 out of its 101 clauses are not related in any way to Quran and Sunnah. These procedural clauses are subject to change by judiciary and legislature any time. The rest which are presented as hudud have been incoherently picked up from Quran & Sunnah without reflecting upon the nature of crime and criminal. As a result hundreds of women were kept in jails for years waiting for hadd to be implemented. There is a deterioration in the state of law and order as enactment of the law itself gives loopholes to misuse it. The resentment compiled over years ultimately led different groups of society to talk against the Islamic law in general.
Rather than commenting on the ordinance, Mufti Muneeb began with a protest (in his alloted time) that hearts of the people of Pakistan are deeply attached with Islam. Since no one can talk openly against the hudud due to fear of inviting strong criticism from people, they are actually trying to get the complete ordinance repealed. It is similar how many people who want to criticise Islam end up criticising the maulvi. There wont be any new revelation delineating the procedures for implementation of punishments. Experts can only comment on the errors in implementation but complete ordinance cannot be revoked. He rejected it as a propaganda that women were mistreated using the ordinance per se. He confirmed the juristic ruling that women should not be put in jails and said that taazira'at in the ordinance should be removed and made part of the Pakistan Penal Code instead. Rather than discussing the ambiguities related to zina bil raza (adultery) and zina bil jabr (rape) in ordinance he irrelevantly went into history of Islamic law and gave an example or two that both crimes were differentiated by Islamic jurists throughout history.
[In my view, Dr Hashmi's presentation was accurate enough keeping in view the scarcity of time. His main points can be understood further in the light of his book. I dont want to be accused of pleonasm in trying to prove the absurdity of Mufti Muneeb's method of argument. As I have already said in the start, it was not a classical argument in favor of the ordinance - it was just an irrelevance indulgence into emotionalism.]
Role of Police in Implementing the Ordinance:
A movie was played showing women who were in jails since three years (and more) without evidence. The recent case proceedings of Aruna and Muazzam Ali (who were present on the occassion) were also shown. In response to moderators' questions Aruna replied that both of them (she and her husband Muazzam) were caught by the police after an FIR was launched under hudud ordinance by her parents who said that Muazzam has kidnapped their daughter. In the courtroom magistrate didn't pay heed to whatever she said and kept looking at her father. The overall response of judiciary was pathetic and she thought about requesting the mainstream ulema to help her.
In response to a question regarding how to resolve complications arising due to false FIRs, Maulana Abdul Malik said that police should never chase the adulterers at first place. Totally disregarding that an ambiguous ordinance adds to the complications, he put the entire blame on the system of police reminding the house that its a British system. Making this comment further absurd, he added that police should be well versant with Quran and Sunnah [thereby agreeing, though he would be unaware of this subtlety, that requisite awareness about any law may be a prerequisite of its application]. Mufti Muneeb said that Anglo-Saxon law equates FIR with a nass (reasoning from a known injunction - a valid shari'i evidence).
In response to another question whether police should record the FIR for adultery at all, Dr Hashmi said that police has no role in cases of zina bil raza. Javed Ghamidi said that police should demand four witnesses before recording the FIR and Quran is clear on this. That was perhaps the only point in the complete debate where all the panelists agreed.
The Issue of Qadhaf:
The point of concern before the house was that qadhaf (punishment for slander) in Zina Ordinance cannot be exercised unless the case is re-prosecuted. That was perhaps the best part in the complete debate in terms of mirthfulness as well as deep frustration. I present this diatribe here from my notes.
Abdul Malik: No seperate legislation should be done for qadhaf. Prophet (pbuh) applied qadhaf as well as hadd in cases of zina. Judge is a legislator as well as an implementer of law.
Mufti Muneeb: It is necessary that people like Aruna should come to judge and ask for their qisaas (retaliation) because qadhaf is a kind of qisaas.
Javed Ghamidi: No. It may not be necessary that women should come to judge as this is against their honor according to norms of our society. In addition to that its an issue of procedural law and there is nothing in Quran and Sunnah which can be used to establish that women should come to judge demanding hadd-e-qadhaf to be implemented on one who has blamed them falsely.
Tufail Hashmi: The complete ordinance of qadhaf is ambiguous. Did Ayesha (r) formally demanded the hadd-e-qadhaf. The case of Mughira bin Shu'ba (r) is another example when hadd-e-qadhaf was implemented automatically.
Javed Ghamidi: The court has all the right to exercise hadd-e-qadhaf without a formal petition.
Mufti Muneeb asks Javed Ghamidi: How can court send forces to identify people who are falsely blaming others?
Javed Ghamidi: I am talking about a specific case which is already in court and it has been proved that accuser was wrong.
Abdul Malik: Ideally a judge should be a mujtahid (an independant jurist) in limited capacity.
Javed Ghamidi: I have been stating categorically since few years now that either the requisite amendments should be made in the ordinance or the complete ordinance should be repealed.
Abdul Malik [outbursts]: He [while poiniting towards Ghamidi] is actually opining that hudud Allah should be repealed.
Javed Ghamidi: I have no doubt that implementation of hudud Allah is obligatory but the ordinance under discussion is made according to human understanding and can be repealed or amended.
Abdul Malik [shouts]: This is a conspiracy against hudud of Allah and we would never let it happen in this country.
[After that moderators intervened and sought clarification from Javed Ghamidi who re-clarified his already clarified stance which had been grasped by everyone viewing the debate except the two opposing panelists.]Does Zina bil Jabr Invoke Hadd?
Speaking first, Javed Ahmed Ghamidi said that zina bi jabr should be dealt with under the law of hiraabah (maleficence in land) as expounded by verse 5:33. He explained that rape is a multiple crime involving adultery as well as harassment and molestation and Prophet (pbuh) himself defferentiated between both on number of occassions. Dr Hashmi said that evidence in cases of zina and zina bil jabr are different. The ayah that noble women should come out of their houses covered was specifically revealed so that they should not be a subject of sexual harrassment. He gave examples of Maliki Jurists like Qadi Iya'd and Qadi Ibn Arabi (the jurist and not the sufi) who believed that rape should be dealt with under the law of hiraabah. Mufti Muneeb disagreed and said that zina bil jabr if proved invokes rajm (stonning to death). Abdul Malik said that there is no need to do ijtihad when Quran is clear.
Amendments Proposed by Panelists:
Mufti Muneeb suggested that all the procedural clauses and punsihments which are not hudud (therefore taaziraat) should be excluded from the ordinance and made part of PPC and a qadi who is also a qualified jurist should be included in the system. There is no question of repealing the complete law. Maulana Abdul Malik said that he agrees with Mufti Muneeb and gave another emotive political statement (which has now become a trademark of MMA) that no disguised conspiracy against Hudud would be tolerated. He reiterated that police and judges should be trained according to Islam.
Javed Ghamidi quickly presented five of his main objections against the ordinance. These are:
1. Adultery should be explicitly differentiated with rape not only in terms of definition (which it does now) but in terms of procedural methods and their implementation.
2. The ordinance in its current form applies punishment according to the degree of evidence. It should be recodified to invoke punishment on presence or absense of punishment.
3. There should be no gender discrimination in the application of ordinance.
4. Cases of rape should be dealt with according to law of hiraabah.
5. Appropriate clauses should be added to the ordinance to explicate the degree of doubt that can be given for the benefit of the accused.
Dr Hashmi while agreeing with Ghamidi said that any new law should not be projected as a law of Allah so that there will always remain the room for improvement and change.
Viewing the debate was another very frustrating experiencing for me. Not because the lack of objective scholasticism on part of panelists in favour of the ordinance but lack of sense in people of media regarding how to conduct and organise such debates. First of all the title "Grand Debate on Hudood Ordinance" was a misnomer as the Ordinance of Zina was the actual topic of discussion. Not even a brief summary of the agenda was presented to educate the panelists as well as audience to avoid repetitive digression. The choice of hosts was also confusing as both were journalists specialised in political and social issues rather than discussing conflicting religious interpretations. As a result it was more of an informal discussion based on conventional wisdom rather than sources of religion and law. I still fail to find the reason why a person like Maulana Abdul Malik was invited as a panelist who just kept on nodding his head in favour of whatever Mufti Muneeb uttered. Not to mention his funny and caustic remarks against panelists on other side.
The only good that can come out of such debates is the exposure of actual depth of scholarship of mainstream ulema who have more excess to people due to their politicised and emotive slogans. The in-depth scholarship is not popular enough to come out of the books and reach streets even in cases where lines of religious interpretation and social reforms crisscross. This was a indeed a good platform for people to get acquainted with faces representing religion on a different intellectual plane and for a different cause than meeting twice a year for sighting moons.