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.

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 21^st 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.