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.
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.
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