Appendix-I
GENERAL ZIAUL HAQ (1977-1988)
 

On December 2, 1978, General Ziaul Haq made a dramatic announcement on the occasion of the first day of the Hijra year to enforce the Islamic system in the country. In a nationwide address, General Zia accused politicians of exploiting the name of Islam saying: "many a ruler did what they pleased in the name of Islam. After assuming power the task that the present government set to was its public commitment to enforce Nizam-e-Islam. As a preliminary measure to establish an Islamic society in Pakistan, General Zia announced the establishment of Shariah Benches. Speaking about the jurisdiction of the Shariah Benches he said: "Every citizen will have the right to present any law enforced by the government before the "Shariah Bench" and obtain its verdict whether the law is wholly or partly Islamic or un-Islamic." But General Zia did not mention that the Shariah Benches jurisdiction was curtailed by the following overriding clause: " (Any) law does not include the constitution, Muslim personal law, any law relating to the procedure of any court or tribunal or, until the expiration of three years, any fiscal law, or any law relating to the collection of taxes and fees or insurance practice and procedure." It meant that all important laws which affect each and every individual directly remained outside the purview of the Shariah Benches. However, he did not have a smooth sailing even with the clipped Shariah Benches. The Federal Shariah Bench declared rajm, lapidation, to be un-Islamic, Ziaul Haq reconstituted that court which declared rajm as Islamic.

In his drive of Islamization General Ziaul Haq announced further measures on Feb. 10, 1979. In a speech on the occasion of the birthday anniversary of the Holy Prophet Mohammed he said: All major political parties despite their other differences are agreed that the Islamic system should be introduced in this country ...... I am formally announcing the introduction of the Islamic system in the country." The Islamic meas ures were enforced through presidential orders and ordinances under which the existing laws relating to the offenses of theft, robbery and dacoity, adultery, false charge of adultery and wine-drinking were replaced by the fixed punishments prescribed by the Holy Quran and Sunnah. One of the ordinances was related to the execution of the punishment of whipping.

Under Offenses Against Property (Enforcement of Hudood) Ordinance 1979, the punishment of imprisonment or fine, or both, as provided in the existing Pakistan Penal Code for theft, was substituted by the amputation of the right hand of the offender from the joint of the wrist by a surgeon. For robbery, the right hand of the offender from the wrist and his left foot from the ankle should be amputated by a surgeon.

Drinking of wine (i.e. all alcoholic drinks) was not a crime at all under the Pakistan Penal Code. In 1977, however, the drinking  and selling of wine by Muslims was banned in Pakistan and the sentence of imprisonment of six m onths or a fine of Rs. 5000/-, or both, was provided in that law. Under Prohibition Order these provisions of law were replaced by punishment of eighty (80) stripes for which an ijma of the companions of the Holy Prophet ever since the period of the Second Caliph Umar, was cited.

Under the Zina Ordinance the provisions relating to adultery were replaced as that the women and the man guilty will be flogged, each of them, with hundred stripes, if unmarried. And if they are married they shall be stoned to death. It was argued that the section 497 of the Pakistan Penal Code dealing with the offence of adultery provided certain safeguards to the offender in as much as if the adultery is with the consent or connivance of the husband, no offence of adultery was deemed to have been committed in the eye of law. The wife, under the prevailing law, was also not to be punished as abettor. Islamic law knows no such exception.

The Pakistan Penal Code and the Criminal Procedure Code, were amended [through ordi nances in 1980, 1982 and 1986] to declare anything implying disrespect to the Holy Prophet, Ahle Bait (family of the prophet), Sahaba (companion of the prophet) and Sha'ar-i-Islam (Islamic symbols), a cognizable offence, punishable with imprisonment or fine, or with both. Instructions were issued for regular observance of prayers and made arrangements for performing noon prayer (Salat Al Zuhur) in the government and semi-government offices and educational institutions, during office hours, and official functions, and at the airports, railway stations and bus stops. An "Ehtram-i-Ramazan" (reverence for fasting) Ordinance was issued providing that complete sanctity be observed during the Islamic month of Ramazan, including the closure of cinema houses three hours after the Maghreb (sunset) prayers.

By amending the constitution, General Zia also provided the following definition of a Muslim and a non-Muslim: (a) "Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophet hood of Mohammed (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed to be a prophet in any sense of the word or of any description, whatsoever, after Mohammed. (b) "Non-Muslim" means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Bhuddist, or Parsi community, a person of the Qadiani Group or the Lahori Group (who call themselves Ahmadis), or a Bahai, or a person belonging to any of the scheduled castes.

Within the framework of Islamization of economy, the National Investment Trust and the Investment Corporation of Pakistan were asked to operate on equity basis instead of interest as of July 1, 1979. Interest-free counters were opened at all the 7,000 branches of the nationalized commercial banks on January 1, 1980. But interest bearing National Savings Schemes were allowed to operate in parallel . The Zakat and Ushr Ordinance was promulgated on June 20, 1980 to emp ower the government to deduct 2.5 per cent Zakat annually from mainly interest-bearing savings and shares held in the National Investment Trust, the Investment Corporation of Pakistan and other companies of which the majority of shares are owned by the Muslims. Foreign Exchange Bearer Certificate scheme that offered fixed interest was exempted from the compulsory Zakat deduction. This ordinance drew sharp criticism from the Shia sect which was later exempted from the compulsory deduction of Zakat. Even Sunnis were critical of the compulsory deduction and the way Zakat was distributed.

On December 13, 1980, to the surprise of General Zia, the Federal Shariah Court declared the land reforms of 1972 and 1977 as eminently in consonance with Islamic injunctions. Then the so-called Ulema were brought in who traditionally supported the landlord class. Three Ulema _XE "Ulema "_were inducted into the Federal Shariah Court and two i nto the Shariah Appellate Bench of the Supreme Court which reversed the FSC judgment in 1990. After the imposition of martial law, many landlords were reported to have told their tenants to seek the protection of their benefactor, namely, Bhutto. Thousands of tenants were forcibly evicted from the land in various districts. The martial law regime made it clear that it was not committed to redistributive agrarian policies and described the land reforms as ordinary politics to reward supporters and punish enemies.

REFERENDUM: In the mid-1983, General Zia realized that despite his extremely repressive and barbaric measures, which included whipping the dissidents, the Movement for the Restoration of Democracy (MRD) had not only survived but had also gained strength. Faced with the inevitability of a return to civilian rule, the general tried to make his position secure by getting himself elected as the head of state through a process, in which the people were asked to vote for their religion. On December 1 9, 1984, a referendum was held on the Islamization policy of the martial law regime. Announcing the referendum plan, General Zia said that if the people say yes to his Islamisation process he would consider it as an endorsement of his rule for the next five
years.

The people were asked a loaded question: "Do you endorse the process initiated by General Mohammed Ziaul Haq, the President of Pakistan, for bringing the laws of Pakistan in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah of the Holy Prophet (peace be upon him), and for the preservation of the Islamic ideology of Pakistan, the continuation and consolidation of that process, and for smooth and orderly transfer of power to the elected representatives of the people."

Given that the country was created in 1947 specifically as a Muslim state, and that 95 per cent of the population is of that faith, it is inconceivable that even a sizable minority, let alone an actual majority, would dissent. A nd therein lies the General's strategy, said The Times, London on Dec. 20, 1984. The Gazette, Ottawa described the referendum exercise as an insult to the intelligence of the helpless masses and said: "The referendum will not bestow upon Mr. Zia the aura of legitimacy --international and domestic -- he so desperately is seeking" (18.12.84). There was no criticism of the referendum in the Pakistani press since any criticism of the political manoeuvring was outlawed.

International Commission of Jurists said "Zia manipulated the referendum on his Islamisation policy in order to remain in power for a further five years. His subsequent amendments to the constitution giving him sweeping powers, the continuing use of martial law, charges of torture and increasing control of the media -- all cast severe doubts on President Zia's claim to be working toward restoration of democracy" (UPI dated 9.7.1985).

SHARIAH ORDINANCE: On June 15, 1988, two weeks after dissolving the national and provincial assemblies (elected on non-party basis) and disbanding ministries (formed on party basis), General Zia promulgated a new Shariah Ordinance to declare Shariah as the supreme law of the land with immediate effect. Article 3 of the Act for the enforcement of the Shariah said "the Shariah that is to say, the injunctions of Islam as laid down in the Holy Quran and Sunnah shall be the supreme law of Pakistan. Explaining the reasons for taking this dramatic step, he said it was unfortunate that the enforcement of Shariah could not attract due attention of the members of the National Assembly, which the nation expected of them. Under the Shariah Ordinance were eligible to be appointed as judges of the court which were empowered to challenge almost all existing laws of the country.

However, it was apparent that the whole exercise was primarily meant to put extensive powers in his own hands to be exercised through his nominees on various courts. The president was given powers to make rules for t he appointment of the Ulema judges to the courts. Even Ulema of different schools of thought denounced the Shariah Ordinance and described it a move seeking cheap publicity. A Jamat-i-Islami leader declared that the Shariah Ordinance does not conform to the Shariah and it has been enforced by the rulers to save themselves from accountability. Jamiat-i-Ulema Pakistan expressed the apprehension that leaving the interpretation of Quran and Sunnah to the Ulema will open a new pandora's box.

Like many near-bankrupt military regimes in Muslim countries, General Zia used the so-called "Islamisation process" to legitimize and perpetuate his narrowly-based military rule marked by public and political executions,  flogging of people in thename of Islam and confusing the country's judicial system by simultaneously operating the Shariah courts, the military tribunals and the common law civil courts. Justice Shafi Mohammad, Judge of the High Court of Sindh, while allowing quashment of criminal procee dings against two accused booked under the Hudood Ordinance remarked:

"It is the considered opinion of many religious scholars that Islamisation in 1980s as adopted by the government of General Ziaul Haq was devoid of the real spirit of Islam and the same created complication not only for the prevailing judicial system, but also ambiguity about Islam instead of solving the problems of this country" (Dawn 9.6.1995).

Pakistani legal experts fully agree that Islamic criminal law thoroughly suited tribal Arab society. This is especially so if we look at the Islamic law of murder. Murder is considered a private vengeance and in tribal Arabian society the avenging of a murder fell on the victim's next-of-kin; so it was the right of the family to demand satisfaction. Punishment was effected on the principle of retaliation, commuted to a payment of blood money or compensation for the injury. Cutting of limbs, stoning to death and flogging were also prevalent as punishments (in the tribal Arab society. The position of women in tribal society was also secondary to that of men. In the light of modern developments in criminology where the insistence is on reform and rehabilitation of criminals, the claim of the Muslim traditionalist, however, is that Islamic concepts are not contrary to the modern spirit of criminology.

Pakistan is one of those Muslim countries (the first being Saudi Arabia) where Islamic criminal law has partly been put into practice. Generally speaking, there has been a significant increase of crime in Pakistan since the implementation of Islamic punishments in 1979. This is notably in crimes against property, which include highway robbery, theft fro m petrol pumps, housebreaking and bank robbery, cattle rustling, motor vehicle thefts etc. An increase of crime has also been noted in Zina, Qazf and prohibition of alcohol cases.

Modernists question whether the criminal policy adopted in Pakistan is compatible with the requirements of a modern society. The modernist deman d in this respect is that the codification of Islamic criminal law should be done in the light of modern circumstances. There can be no return to the past. Islamic law has to face the challenges of the modern world. Otherwise, Islamic law is just a mockery, as we now know from the experience of Pakistan.

Islamic criminal law is certainly not compatible with the status that women already have in Pakistani society. It was a shock to the women of Pakistan to have to accept that they are not accepted as full human beings, that in Hudood cases they are not considered capable of appearing as witnesses and that in financial matters two women are considered equal to one man. (Rubya Mehdi, Islamisation of the Law in Pakistan)

The women became the special victims of Islamisation and its inconsistencies. The Zina Ordinance carried grave injustices and untold miseries on women in the country and prompted bitter international criticism. Women's rights groups helped in the production of a film titled "Wh o will cast the first stone?" to highlight the oppression and sufferings of women under the Hudood Ordinances. In September 1981, the first conviction and sentence under the Zina Ordinance, of stoning to death for Fehmida and Allah Bakhsh were set aside under national and international pressure.

In many cases, under the Zina Ordinance, a woman who made an allegation of rape was convicted for adultery whilst the rapist was acquitted. This led to a growing demand by jurists and women activists for repealing the Ordinance. In 1983, Safia Bibi, a 13-year-old blind girl, who alleged rape by her employer and his son was convicted for adultery under the Zina Ordinance whilst, the rapists were acquitted. The decision attracted so much publicity and condemnation from the public and the press that the Federal Shariah Court (Safia Bibi v. The State, PLD 1985 FSC) of its own motion, called for the records of the case and ordered that she should be released from prison on her own bond. Subsequently, on appeal, the finding of the trial court was reversed and the conviction was set aside.

In early 1988, another conviction for stoning to death of Shahida Parveen and Mohammed Sarwar sparked bitter public criticism that led to their retrial and acquittal by the Federal Shariah Court. In this case the trial court took the view that notice of divorce by Shahida's former husband, Khushi Mohammed should have been given to the Chairman of the local council, as stipulated under Section 7(3) of the Muslim Family Laws Ordinance, 1961. This section states that any man who divorces his wife must register it with the Union Council. Otherwise, the court concluded that the divorce stood invalidated and the couple became liable to conviction under the Zina ordinance.

The International Commission of Jurists ' mission to Pakistan in December 1986 called for repealing of certain sections of the Hudood Ordinances relating to crimes and "Islamic" punishments which discriminate against women and non-Muslims. The c ommission cited an example that a Muslim woman can be convicted on the evidence of man, and a non-Muslim can be convicted on the evidence of a Muslim, but not vice versa.

ISLAM AND POLICIES IN PAKISTAN
1958 CONSTITUTION
ZULFIQAR ALI BHUTTO (1971-1977)