Wednesday, 26 March 2014

Need for Shariah Standard on Halal Consumer Products by Muhammad Akbar Khan

Accounting and Auditing Organisation for Islamic Financial Institutions (AAOIFI) has issued various Shariah standards regarding Islamic modes of finance for the proper regulation of Islamic Banks and financial institutions. This happened to be a very fruitful and successful effort in order to harmonise and uniform Islamic commercial law and almost all the Islamic banks and financial institutions around the world are following these standards today. However such efforts are greatly required in other fields as well especially in matters of halal (permissible) and haram (prohibited). There is great need felt by Muslim consumers in every corner of the globe to know the exact parameters of halal and haram in consumer products especially in this age of advance technology. It is, therefore hoped that an adequate Shariah standard should be promulgated by AAOIFI or any other body of the Organization of Islamic Conference (OIC) to guide the relevant authorities and Muslim consumers in ascertaining halal and haram products for the benefit of Ummah as a whole. This will not only help to uniform Islamic law of halal and haram especially in modern age when many products are process mysteries and consumers know nothing about them. On the other hand, many Muslim and non-Muslim countries have established halal regulatory bodies and authorities but the basic concern of these bodies is to expand the business portfolio and maximum export of the products rather than protection and preservation of faith which is the basic concern of the notions of halal and haram in Islam. Indeed it is allowed to earn profit and export halal products but such gain should not be at the stake of faith of the Muslim consumers. Moreover, absence of a uniform Shariah standard on halal products makes them doubtful not only for the relevant authorities but also for the Muslim consumers and easily escapable for the perpetrators. While making Shariah Standard on halal products the important areas such as Islamic law regarding edibles, beverages, manufactured products such as medicines, cosmetics, packaging and labelling, metamorphosis, issue of alcohol, and intoxication etc should not be ignored. In this context whatever is prohibited by Shariah should thoroughly be reviewed in the light of interpretations of Muslim jurists. Liability for manufacturing haram products with halal logo should also be prescribed in the standard and strict compliance should be insured. The use of halal logo needs proper attention in this regard as most of the time a producer once issued a licence to sell halal products later on stops following the rituals but continues selling products with halal logo. This and other unfair practices should strictly be controlled by the relevant authority. To ascertain the legitimacy of a particular product under Shariah along with the religious scholars food technologists must also be taken on board and views of the common consumers should also be considered. Once such a Shariah Standard is promulgated all the Muslim countries and organisations of Muslims in non-Muslim countries should unanimously apply the standard and make it a part of their respective jurisdiction. This will help building confidence of the Muslim consumers regarding halal products and promotion and protection of faith of Muslim masses which is the primary objective of Shariah in halal and haram. This is not the task of any particular community to uphold the standard of halal and haram rather it is the duty of the Ummah as a whole which can only be achieved through an adequate Shariah standard that will lead to the establishment of concerned authorities throughout the world. Thus making any authority without having a proper Shariah Standard will be a futile exercise which may result in financial gain for the time being but in long run it may not be able to maintain confidence of the Muslim consumers. 

The author is lecturer in law at the International Islamic University, H-10 Islamabad, Post Code: 44000, Pakistan. He can be reached at: ; Cell No: +92-3329424065 

Wednesday, 19 February 2014

Should we implement Sharia in Pakistan?

At the heart of the negotiations between the Taliban and the Government of Pakistan is the issue of the implementation of Sharia. The negotiators have presumed that the Pakistani legal system is un-Islamic and it needs to be replaced with the Islamic legal system. This is in sharp contrast to the views of secularists in Pakistan. They find the Pakistani legal system too Islamic and argue that Islamic laws should be repealed to ensure women’s rights and protection of minorities. Thus Pakistan is caught in a dilemma, which was faced by an Urdu poet who complained about being viewed as a kafir by the rigid clergy, while a kafir considered him to be a Muslim.

In this article, I want to engage with this dilemma of the Pakistani legal system. An impartial viewer would regard the Pakistani legal system as a hybrid of Islamic and English legal systems. Our family laws are based on uncodified Sharia (Fiqh) and they survived the Anglicisation of the Indian legal system during the British colonial rule. Various Pakistani constitutions provided that no law against the injunctions of Islam could be promulgated.

Right after gaining Independence, our courts embarked upon the process of judicial Islamisation of laws. This process was exacerbated in the late 1970s with the establishment of the Federal Shariat Court and Shariat Appellate Bench at the Supreme Court. Any citizen of Pakistan can challenge any Pakistani law as un-Islamic and many laws have been judicially Islamised under this process. Qisas and Diyat law is the prime example. Zia ul-Haq did not introduce this law despite promulgating various Hudood ordinances and taking other measures to Islamise the Pakistani legal system. It was after the end of Zia’s rule, that the Shariat Appellate Bench declared the provisions of Pakistan Penal Code, regarding murder and bodily harm, as un-Islamic. The government was forced to promulgate the current law, which is in accordance with the principles of Fiqh.

Certain parts of property law such as pre-emption, land reform laws and rent laws were also judicially Islamised in the 1990s. In its famous judgment in 2000, the Supreme Court also declared riba unlawful, though the government filed a review petition and this case has yet to be finally decided. Therefore, one of the fifteen points of Taliban demands the end of interest based banking system in Pakistan. If this demand is met, Pakistan would be the only Muslim country which will eliminate interest (as interest taking is permitted even in Saudi Arabia and Iran).

Despite the Islamic character of our legal system, that is enshrined in the Constitution, the overall perception is that the Pakistani legal system is un-Islamic because of its origins, structure and impact. The hierarchical judicial structure was introduced by the British, who also transplanted the representative form of government in colonial India. The utter failure of the political and legal system to deliver effective governance and ensure administration of justice has provided further impetus to the call for the implementation of Sharia as a panacea for wide scale injustice and inequality in our society. Hence the fourteenth point of the Taliban calls for the replacement of the democratic system of governance with Islamic system.

One of the criticisms of our judicial system is that it operates under the common law procedures, which involve delays and is also replete with corruption. Therefore, the simple and straightforward procedures of a Qadi court are offered as a remedy. This was also presented as one of the key achievements of the Taliban led Afghanistan, before they were toppled following 9/11. We find an echo of Taliban demands in other parts of the Muslim world. For instance, the slogan of Muslim Brotherhood in Egypt is al-Islam howa al-ḥall (Islam is the solution).

The ordinary citizen of Pakistan is facing a moral dilemma. The Taliban appeal to the principles of Islam and claim to be fighting in the way of Allah. They have chosen the path of armed resistance and suicide attacks. Such acts can hardly be justified as Islamic under Fiqh. However, the slogan of promulgating God’s law on God’s earth is used as a justification. One may ask that if Taliban are struggling to impose Sharia, then why don’t they first follow it themselves? There are clear rules on the conduct of war in Islam and these rules have been flagrantly violated by the Taliban.

One of the questions, which the Taliban fail to answer, is that how could religiously inspired Sharia be imposed through the institutional set up of the modern state? This question is closely connected with the concept of ‘law’ in Islam. Islam as a religion provides a code of conduct, based on ones conscience and a sense of responsibility before God. Therefore, imposing Sharia backed by the authority of the state does not fit into the principles of Islam.

This, however, does not mean that Sharia and modern state are incompatible with each other, as it is erroneously proposed by one of the leading Western scholars on Islamic law, Wael Hallaq in his recent book, The Impossible State. What it means is that Sharia is not a state law and the very term ‘Sharia Law’ is an oxymoron. In order to transform Sharia into law imposed by the state, further consultative procedures have to be followed.

Therefore, medieval Muslim jurists did not use the term ‘Sharia’ for the rules they drew from the Qur’ān and Sunnah. Rather, they used the term ‘Fiqh’ (literally understanding). This showed their humility since none of the jurists claimed to have discovered the actual will of God. Hence, when the Taliban claim to implement Sharia, it begs the question; what do they mean by Sharia? It is important to establish this because Fiqh texts are discursive in their content, containing multiple juristic views on a particular issue.

Historically, the pre-colonial legal systems of Muslim countries relied upon state law (qānūn/ā’yn) and custom (‘urf) in addition with Fiqh, in order to create legal certainty. Both state law and custom derived their validity under Fiqh doctrines of Siyāsa (governance), Istiṣḥāb (continuity) and Maṣlaḥa (public interest). However, the advent of the modern state disrupted the traditional arrangement, which was based on a balance of Fiqh, state law and custom. The formal state promulgated laws claimed supremacy, while Fiqh and custom were reduced to the status of informal laws.      

The fact of the matter is that the Taliban are not offering any solution to this problem, which is posed by the advent of modernity in the form of modern impersonal state, to traditional exposition of Fiqh. Their demands appear as nothing but political slogans in order to win the sympathies of ordinary Pakistanis, who in their conscience feel duty bound to follow Sharia as a religious obligation.

Taking into account the legal system of other Muslim countries, it can well be argued that the current Pakistani legal system, despite its failings, offers the best accommodation to the principles of Sharia. Following the advice of Allama Muhammad Iqbal, our representative system embodies the Qur’ānic principle of Shūrā (consultation) and juristic principles of Ijtihād and Ijmā’. The Federal Shariat Court provides an institutional mechanism to incrementally Islamise the laws. The ‘ulamā’ judges are part and parcel of this process. It could be argued that this is not an ideal system. However, labelling the legal and judicial system of Pakistan as totally un-Islamic is not justified. 

It is interesting to note that, although the Taliban are challenging the existing political and legal system of Pakistan, they do not offer a clear picture of the alternative. In fact, there is a contradiction between Taliban’s Demand No. 2, which requires the ‘introduction of Sharia in courts’ and Demand No. 15, which requires the replacement of ‘the democratic system of governance with Islamic system’.

Does this mean that Sharia will be implemented under the existing judicial system, while the overall political structure will be replaced with the Islamic system? It is yet to be known what exactly is the ‘Islamic system’ proposed by the Taliban and how it will ensure justice to the various members of our society. After all, even an un-Islamic system of governance based on the principle of justice is preferred in Islam over a so-called ‘Islamic system’, which perpetuates injustice and intolerance.

Thursday, 28 November 2013

Need for Legal Protection of Digital-Content Consumers in Pakistan

Muhammad Akbar Khan

Today, a large number of population in Pakistan consumes digital content such as apps, online games, videos or music downloads software or e-books etc. Although exact number of users of digital content are harder to come by but there are almost 30 million internet users of digital content in Pakistan. Despite its large scale consumption unfortunately at present there is no proper law on the subject in the country that provides adequate protection to the consumers of digital content. Sometime the digital content, bought by a consumer, causes greater harm to his other data that result great loss. Most of the countries have promulgated laws on the subject but no initiative can be seen in Pakistan for making such a law. In Pakistan various laws provide protection to the consumers in transactions of goods and services such as Sale of Goods Act, 1930, Islamabad Consumer Protection Act, 1995, NWFP Consumer Protection Act, 1997, Punjab Consumer Protection Act, 2005, Balochistan Consumer Protection Act, 2003 and Sindh Consumer Protection Ordinance, 2007. However, under the existing regime, it is not clear in terms that whether digital content falls in the category of goods or services. It is also not mentioned anywhere in the said laws that if a digital content causes damage to the other data whether or not the manufacturer, supplier or retailer can be held responsible for such loss. Due to its importance and day by day increase of digital content in modern times it is proposed that there should be a proper legislation on the subject that ensures adequate protection for the consumers of digital content. In order to protect rights of the digital-content consumers, all contracts for digital content should include an implied term guaranteeing the safety, quality of the digital content and fitness for the purpose. The consumers should be entitled to refunds or other remedies for defective or poor quality content. Issues related piracy of such products should also be given due consideration in the proposed legislation. Though it is possible that the purpose may be achieved through amendment in the existing laws but it is highly recommended that a new legislation should be enacted on the subject as there are many loop holes in the current consumer laws such as lack of harmony and analytical inconsistency among them. There should be a national policy which should be followed by promulgation of laws in all provinces for the protection of digital content consumers. Organizations in Pakistan that work for the protection of consumers should also give due consideration to the issue of digital-content and spread awareness among the masses for the need of such a law. This law in long run will not only protect consumers but also producers and businesses dealing in digital content product. It is, therefore, highly recommended that government should take keen steps in formulating concrete national policy on the subject and making laws for the protection of the consumers of digital content.
Please comment and share your views on the topic.

Wednesday, 9 October 2013

Distinguishing Right from Wrong

The issue I raised will remain intact even after the solution suggested by Dr Wasti is adopted as the basic problem is not in the law but in its application. The problem is more than legal.

Again it is no argument to undermine a particular legislation just because the same was promulgated by a military ruler. It is also not just to refer the Qisas and Diyat laws to Gen. Zia ul Haq as the same were promulgated in 1990 during the PPP era, long time after the death of late Gen. Zia. There may be problems in any legislation whether promulgated by military ruler or anyone else. But it is not justified to say, without  impartial analysis, that a particular legislation is bad just because it is enacted by a military ruler.

As for as its transformation to the modern state theory is concerned, there is no problem in regard to the current Qisas and Diyat laws and they can be well adjusted in any kind of modern set up.

 It is also pertinent to explain the meaning of Syasah here. It simply means the administration of justice according to Shariah. It never gives the ruler any authority to deviate from the principles of Shariah as mentioned by Jörg Fisch in Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769-1817. The basic objective of the Syasah jurisdiction is to fill the gaps left over to the state by Shariah and achieve the high purposes of Islamic law rather than deviate any of them.

Thus any change in the law, without giving any attention to the other factors, will be more like to deceive one`s self.  The main problems of the judicial delay, corruption, nepotism, and politicisation which result in reducing the level of social confidence in the overall judicial system will continue to exist. The point I want to make here is that all other factors that affect the administration of justice in Pakistan should be taken into account while formulating any policy regarding criminal justice. Merely changing the substantive provisions would not be of much help. The soul never thinks without a picture (Aristotle). 

Distinguisihing State law (Siyasa) from Sharia

Akbar Khan has raised the pertinent question of coordination between CII, Federal Shariat Court and Shariat Bench of the Supreme Court. Islamic Research Institute and Shariat Academy of International Islamic University Islamabad should also be included in this list. His second question is even more important. It relates to corruption in judiciary and regards it as the main culprit along with the ignorance of judges of Islamic law. The solution, according to Akbar Khan, lies in the eradication of corruption and preventing the political misuse of sublime laws by the mighty and influential segments of the society. This is the view of majority in Pakistan and Akbar Khan is not alone in expressing it. According to this view, there is no problem in Islamic law as promulgated by General Zia or any other government. A different strand of this view argues to first Islamize the society and then laws.

There are two problems with the above view. Firstly, it does not provide a mechanism to eradicate corruption and Islamize the society. And when it does try to provide a mechanism, it is too idealistic to be workable. Secondly, this view does not appreciate the transformation in the nature of the state in the nineteenth and twentieth centuries. Modern state is an impersonal machinery run by rules and laws independent of the persons who apply them. Modern state thus rises above the personal, familial, communal and tribal relations. This puts it in direct conflict with the collectivist norms of Islamic law. There is nothing denying the divine sanctity of Sharia and its superiority over man-made laws. The problem however arises when man-made laws are given divine sanctity due to political motivations or emotional attachment to Islam. 

Historically, Muslim jurists solved the problem of conflict between the norms of Sharia and maintenance of order in society through the doctrine of Siyasa Sharia which in effect means political expediency. This gave rulers authority to deviate from the principles of Sharia without expressly violating them. Historical research conducted upon the system of the administration of criminal justice in pre-colonial Bengal provides evidence of the interplay between Sharia and Siyasa. (See Jörg Fisch's Cheap Lives and Dear Limbs: The British Transformation of the Bengal Criminal Law, 1769-1817 and Radhika Singha's A Despotism of Law: Crime and Justice in Early Colonial India).

The existing provisions of Pakistani penal law do incorporate the doctrine of siyasa by providing tazir punishments under certain circumstances. This however causes uncertainty in the law and our superior courts and legal experts have yet to take steps towards organic development of law based on judicial precedents in order to make law clear, certain and just.

Tuesday, 8 October 2013

Rethinking the question: How Your Lordships at the Supreme Court can stop Fasad fil ard?

The post on “How Your Lordships at the Supreme Court can stop Fasad fil ard?” is a good article by the author.  I would also like to post some of my random thoughts on the subject. 

Unfortunately the focus of legal scholars in Pakistan is always on changing the existing laws and never considering other factors that could lead to the abuse of laws. In my humble view there is no problem in the current Qisas and Diyat laws. All the three cases referred to in the article are the outcome of state`s non- seriousness in the application of laws without any discrimination between stronger and weaker segments of the society. The judges are the real culprits in this scenario as the law on Qisas and Diyat has never said that if a Qisas punishment is compounded or waived it would plainly mean the acquittal of the accused rather S.338 of the Pakistan Penal Code clearly mentions that where an offence has been waived or compounded, the court may, in its discretion having regard to the facts and circumstances of the case, acquit or award Tazir to the offender according to the nature of the offence. Thus, the judges, most of whom are corrupt, not being loyal abuse their discretionary powers and allow the acquittal of the offenders. Thus the problem is more in the persons applying the law rather than the law itself.

 With regard to the Islamic Ideological Council it has been constantly victimised by every regime as everyone brings his own brand of Islam when he/she comes in power. Due to this reason till this date there is no particular methodology defined for the Islamization of laws in Pakistan. Consistent policies are indispensable for any institution to achieve its ultimate goals. Unfortunately, there is no institutional link at all between Council Islamic Ideology, Federal Shariat Court, Shariat Appellate Bench at the Supreme Court of Pakistan and other organisation dealing with Islamic legal matters which causes inconsistencies in their actions and attitudes towards Islamic Law. This results in challenging many laws in the Federal Shariat Court which have been recommended by the council and passed by the Parliament. The Women Protection act may be one example of it.  The fate of Riba case is also unknown.

Therefore, in my view acting upon the recommendation of Dr Wasti that compromise should only be used as mitigating circumstance alone is not enough. It is also need of the hour to purify judiciary from all sorts of political influences and recruit judges who not only know about the laws but also understand their spirits. Plus the institutional reforms at national level and enabling institutional link among the relevant organs will insure clarity about all the laws including criminal laws. Then it would not be a big deal whosoever may the Chairman of the council be. 

How Your Lordships at the Supreme Court can stop Fasad fil ard?

Pardoning the murderer in the Shahzeb case has highlighted the inadequacy of penal laws in Pakistan yet again. This is the third high profile case involving this issue, other two being the cases of cold blooded killings of Sarfraz Shah by Rangers in Karachi and two Pakistani citizens by American security agent Raymond Davis. The abuse of Islamic legal principle of diyat (blood money) by the rich and influential is also proved by empirical research based on data collected from ten districts in the Punjab, Multan bench of the Lahore High Court, the Federal Shariat Court and the Supreme Court. In his doctoral thesis entitled ‘The Application of Islamic Criminal Law in Pakistan’, Dr Tahir Wasti showed how the provisions of qisas and diyat law were systematically exploited to the detriment of the poor and downtrodden. By comparing the overall impact of this law during the ten years of its operation (1991-2000) with the previous ten years (1981-1990), he finds that the new law caused an increase in the number of murders. 

It is in this context that huge public attention has been drawn towards the formation of a large bench at the Supreme Court to deal with the issue of pardoning the convicted murderers under qisas and diyat law. Chief Justice, Mr Chaudhry has rightly commented that the purpose of qisas and diyat under Islamic law is to establish order in society; however, he observed that the waiver of capital punishment is being misused to defeat this purpose. 

The honourable Chief Justice is right to remark that it is the duty of the legislature to rectify the law in order to curb its misuse. However, it needs to be appreciated that judges are partners of the legislature in the operation of the legal system. It is true that under the constitutional arrangement, legislature rather than judiciary is empowered to enact laws. Nevertheless, it is the judiciary which applies the enacted laws, and it falls very much in the ambit of judges to disallow mischievous use of laws.

Recently, our judiciary has shown resilience against political powers, both civil and military. In addition, judges provided legal protection to the underprivileged in society (transgenders’ case is one such example). It needs reminding that right after the creation of Pakistan, these were the judges, who recoursed to the principles of Islamic law, in order to protect fundamental rights of citizens. In this way, they were the ones who initiated the process of judicial Islamization to curb the powers of the executive. Later, they also resisted Zia’s political manoeuvring of Islamic law. Their positive role vis-à-vis Islamic law is shown in another doctoral thesis, ‘The Role of Islam in the Legal System of Pakistan’, written by Dr Martin Lau who finds that the process of Islamization in Pakistan was primarily judge-led. Their lordships softened the rigours of hudud laws when the political motivations for the enforcement of such laws were obvious (Safia Bibi v The State (1985) and Rani v The State (1996)).

On the issue of qisas and diyat laws, however, the challenge before the Supreme Court is of a different kind. This time, the honourable judges are not questioning the authority of the mighty military, or powerful politicians. Rather, these are the political ulama who portray any change in Islamic law as an attack on Islam. The capture of the Council of Islamic Ideology by Jamiat Ulama-e Islam, has deprived this constitutional body of its neutrality. The Shariat Bench of the Supreme Court is rightly posed to fill this gap. It already has superior constitutional authority over the Council, because its decision provides a binding precedent. The presence of highly qualified and politically impartial ulama judges at the Supreme Court enables it to lay down a mechanism, in order to curb the mischievous operation of sublime principles of Islamic law.
Here the question is that why should judges drag themselves in the dirty politics that is going on in Pakistan in the name of Islamic law? The answer is that they are best placed to deal with this issue. Unlike the legislature, the judiciary develops legal principles organically through adjudication on a case-by-case basis. The judiciary has authority, rather a duty, to ensure administration of justice through proper application of laws. Therefore, not only does the judiciary have sole authority to interpret legislative enactments objectively, it can also strike down any piece of legislation under its power of judicial review. 

Now what legal authority does the SC have to deal with the evil of the exploitation of qisas and diyat laws? To my mind, the judges have authority under Islamic procedural law, known as adab al-qadi; Articles 2A (The Objectives Resolution) and 3 (Elimination of exploitation) of the 1973 Constitution; and the principles of justice, equity and good conscience. Based on his analytical study, Dr Wasti recommends that compromise in murder cases should only be allowed after the conclusion of the trial. It should only be used as a mitigating circumstance and should not result in automatic acquittal of the convict. In this way, by making the state a stakeholder (wali) in murder cases, the negative impact of current law of homicide can be removed. This would be the best legal solution to accommodate the collectivist approach of classical Islamic law in order to meet the requirements of an increasingly individualistic society that exists in 21st century Pakistan.

History of Qisas and Diyat laws in Pakistan

1790-1817 East India Company gradually replaced Islamic criminal law with English law in Bengal.

1860            Indian Penal Code replaced Islamic criminal law in British India.

Feb1979     Islamic criminal laws (Hudud) promulgated with the exception of Qisas and Diyat laws.

Oct 1979    Shariat Bench of Peshawar High Court declared law of homicide un-Islamic.

Sep 1980    Federal Shariat Court comes to the same conclusion.

Oct 1980    General Zia’s govt appealed against the above decisions. Zia did not promulgate qisas and diyat laws during his eleven year rule.

Jul 1989     Shariat Appellate Bench of the SC dismissed govt’s appeal. Govt filed a review petition.

Sep 1990    Qisas and Diyat Ordinance 1990 promulgated, one month after the first govt of Benazir Bhutto was  dismissed by President Ghulam Ishaq Khan.

Apr 1997    Criminal Law (Amendment) Act 1997 passed by the PML (N) govt.

Judges who Islamized Pakistani Penal Law

Afzal Cheema (1913-2008) Politician, Supreme Court judge, served as the Chairman of the Council of Islamic Ideology (1977-1980). Under him, Hudud laws were drafted along with Qisas and Diyat law.
Dr Tanzilur Rehman (b. 1928) Chairman of CII (1980-84) and Chief Justice of the Federal Shariat Court 1990-92. Following his predecessor, he asked Zia to promulgate Qisas and Diyat law.

Afzal Zullah (1928-2011) Member of the Shariat Appellate Bench (1979-82) and the Chief Justice of Supreme Court (1990-93). During the constitutional crisis caused by the dismissal of the first govt of Benazir, his position as the Chief Justice was one of the key factors behind the promulgation of the Qisas and Diyat Ordinance 1990.