Reviewing the Debate on Hudood Ordinance

If the premise was that Hudood Ordinance is problematic, the debate was a non sequitur. But it doesn't come as a great surprise because debates and discussions are never the usual movers towards reaching conclusions in Pakistan. However this debate was not irksome like the most of the rest which we compulsively witness everyday on tv in search of a tinge of wisdom.

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the hudud due to fear of inviting strong criticism from people, they are actually trying to get the complete ordinance repealed.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.

Grand Debate on Hudood Ordinance

Zara Sochieye (think for a moment) is a series of debates/discussions on various conflicts within Pakistani society arising due to contradicting interpretations. Here is an excerpt of the ad from Geo TV website:

The Hudood Ordinance was enforced in 1979 during the rule of Gen. Zia ul Haq. Since its inception there has been a great debate on the Hudood laws – a debate that has involved people belonging to all walks of life – religious scholars, lawyers and human rights activists. The debate continues, without any resolution, till this day.

GEO aims to bridge the gaps that have been created within the Pakistani society and bring people together to the same platform to discuss matters with knowledge, tolerance and integrity. GEO will focus its programming and discussion on the most controversial law within the Hudood, which is the Zina Ordinance. There is one group of people who believe that the injunctions within the Ordinance are in accordance with the Quran and Sunnah. There is another group that believes that the Hudood Ordinance is man made which has lead to a misrepresentation of Islam.

The current debate (which will be in Urdu) primarily features Javed Ahmed Ghamidi and Mufti Muneeb ul Rahman (a mainstream barelwi scholar from Pakistan). There are few other speakers also and a considerable portion of time is alloted to views/grievances of audience which are mainly lawyers and feminist activists.

I hope it will be aired on Geo US and Geo UK as well. Please confirm local TV schedules.

'Halal' Biros

Is it competitive advantage on the cost of insinuating inadvertently what is not Islam?

Amal-e-Ahle Madina (3) - Imam Shafii's Criticism

If Imam Shafii's charge on the Medinese school has to be expressed with just one word, it would perhaps be 'arbitrariness' or more precisely, 'inconsistency'. However the aim at present is not to ruminate over the entire significance of his criticism but just the aspect of relying over 'practice' rather than 'traditions'.

Shafii's case against Madinese is multidimensional and perhaps the most misunderstood partly because of its complexity and partly because he was the pioneer in laying down the foundations of Usul al-Fiqh. The latter though seemingly subtle is most telling because the reference to the problems of Usul (methodology) in his predecessors' writings are occassional and peripheral as opposed to the thoroughgoing discussions that he has produced in his writings. The study of critcism directed at this alleged lack of method is apt to impair our vision unless we disentangle the different dimensions and set them against what is percieved as Medinese school in Shafii's time. Only in this manner we might be able to visualise the lack of methodology in Medinese schools as a methodology itself.

I have already presented this beauteous simplicity of method in words of Malik and an equally uncomplicated riposte by a worthy contemporary. Its important to understand that Shafii's criticism against the principle of amal-e-ahle Madina (practice of Madinites) is not against the practice of Madinites per se (which will obviously be understood as an intrinsic disapproval of practice if seen in the light of an equally important and strong case in favor of Hadith [1]) but against arbitrariness and inconsistency of approach.

In my opinion, major part of Shafii's criticism against the practice of Madinites (as source of legal doctrine) should be seen in the light of his discussions of definition and validity of Ijmaa (juridical consensus) as a source of various rulings of Fiqh. However the times when this criticism should be seen as strengthening the case of Hadith is when Malikis prefer practice over Khabr-e-Ahad (a solitary hadith) and they always do so when both sources lead to diametrical conclusions. Keeping the discussion in the perimeters of Ijmaa, Shafii is found presenting his case repeatedly on two lines of reasoning. First and foremost is that a valid Ijmaa does not derive its cogency from the consensus of jurists of one region (Madina in this case) but becomes binding only if jurists of all the regions do agree about a ruling. Secondly, there are scholars from Madina disagreeing with the rulings regarding which Madinese bring the claim of Ijmaa as an evidence. This is the same line of reasoning which was used by Laith ibn Saad previously.

Even extending the discussion inside the realms of Hadith, it cannot remain uninvolved with the intricacies of Ijmaa. This is because Madinites according to Shafii cannot bring anything as a proof even when they are opining against an ahad hadith (a solitary tradition from Prophet) except a claim of consensus or a practice of some companion. On the other hand he brings argument after argument with amazing consistency to project their lack of method in deriving various rulings. Shafii's critique is objective as his aim is not to bring about arguments in support of right doctrine but to lay down the right doctrine itself.

Pursuing the same aim, his predecessors (and especially Malik in this case) refered informally to variety of sources. Their attitudes were characterised by trust in respective doctrines whom they acknowledge as their authorities. For instance the doctrines of Ahl al-Raa'y (the people of opinion) and Ahl al-Hadith (the people of tradition). In Malik's case this trust was specifically derived from the sacredness and continuity of 'practices' that constituted the Islamic way of life. As long as this trust remain unchallenged, no formal touchstones were required to test against and choose the particular source among many which ought to be made the basis of some legal ruling. However by the time of Shafii the scientific criticism on Hadith reached at a particular stage of development where it was not difficult for Shafii to insist about some overriding authority superceding all the other sources except Quran.

Therefore on the one hand subjective factors like intuitive conviction, commonsense, gumption and gut feeling about the veracity of a particular source were considered inconsistencies and arbitrary methods by Shafii. On the other hand agreed upon practice of a particular region, traditions from companions and all the claims of consensus were considered overridden in principle by traditions (in case of conflicts) which can be authentically traced back to the mouth of Prophet.
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1. As seen by Shacht for instance in his Origins of Muhammadan Jurisprudence.