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.