Details

Technical Note

A Note on Pregnancy as Proof of Guilt Under Pakistan;s Hudood Laws - Cases and Controversies

Moeen Cheema

INDUSTRY : Judicial System Pakistan

AREA : Corporate Law

ORGANIZATION : Seed

LENGTH : 18

LUMS No : 10-002-2005-2

PUBLICATION YEAR : 2005

KEYWORDS:

Pregnancy,Law,Proof of Guilt,Pakistan's Hudood Laws,Cases,Contoversies

DESCRIPTION:

Pakistan¿s controversial Hudood laws were promulgated by the military regime of General Zia ul Haq in its early years, arguably to further the process of ¿Islamization¿ in Pakistan. Grafted upon the country¿s Common Law system, a remnant of British colonial rule, these laws sought to criminalize adultery, fornication and the consumption of alcohol, as well as to bring into conformity with Islamic injunctions the laws relating to certain offences against property. Along with the promulgation of Hudood laws, the military regime introduced a parallel system of ¿Islamic¿ judiciary consisting of the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court. These courts were empowered to review and declare invalid any law found not to be in conformity with Islamic injunctions. This paper will review the jurisprudence of the Federal Shariat Court of Pakistan relating to the following narrow issue: whether pregnancy may be used as a proof of the commission of the offence of zina (consensual adultery/fornication) in order to secure the conviction of a female accused of the crime. Using the insights developed through this exercise, the paper will then tackle some broader aspects of the debate surrounding Hudood laws. It will then attempt to incorporate into the discussion the role of the Shariat Courts in re-shaping the laws and demonstrate that a more effective and credible challenge to Hudood laws is only possible if based upon an Islamic critique of Hudood laws, i.e., a challenge from within rather than from without the fold of the pro-Islamization camp. The argument will proceed thus: Part 1 of the paper will provide an overview of the relevant provisions of the Offence of Zina (Enforcement of Hudood) Ordinance, 1979, the context in which the issue of pregnancy as proof has arisen and the nature of the criticisms of Hudood laws that have resulted. Part 2 of the paper will examine the precedents of the Federal Shariat Court that deal with this issue and outline the evolution of the substantive laws in the light of these precedents. Part 3 will seek to introduce a nuanced view of the controversy surrounding the Hudood laws, an appreciation of which may enable the adoption of widely acceptable and more practicable solutions to the problems

LEARNING OBJECTIVES:

N/A

SUBJECTS COVERED:

Law