Taking Away My Rights! (Protection of Pakistan Act 2014) by Muhammad Wajid Munir

The recently promulgated Protection of Pakistan Act (PPA) has come under scathe criticism. Many legal analysts believe that it violates fundamental rights and some salutary principles of criminal jurisprudence. However, others argue that we are facing extraordinary situations which require extra-ordinary solutions because certain procedural and substantive laws in the country provide too much relaxation to criminals.

The critics of the PPA are of the view that law enforcement agencies have been given ubiquitous powers and ‘license to kill’ (shoot at sight) after giving a ‘sufficient warning’ (Section 3). One shudders to think who will standardize ‘sufficient warning’? There are chances that it can be used in a negative way. The prevailing practice is that law enforcement agencies have been given power to use force but in limited context, such as:

Ø  Cr.P.C:128:  Officer in charge of police station may proceed to disperse assembly by force and may require assistance of any male person, not being an officer of armed forces. Provided that firing shall not be resorted to except under specific directions of an officer of the police not below the rank of an Assistant Superintendent or Deputy Superintendent of Police.

Ø  Cr.P.C:130 (2): Police Officer shall use minimum force, and do as little injury to person and property.

Ø  Cr.P.C:46: According to this section Police Officer shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word of action.

Ø  Cr.P.C:50: Person arrested shall not be subjected to more restraint than is necessary to prevent his escape.

Consequently, section 3 of the PPA is double edged sword which might be used in a negative way and it also paves the way for notorious encounters. It was held in Muhammad Ifzal v. Home Secretary, Government of Punjab (1996 PLD Lah. 325) “that dignity of man is granted by the constitution and no citizen can be subjected to torture by law enforcement agencies. Primary duty of the police is to detect crime and to bring the criminals before the court of law and not to punish them themselves.”

In Muhammad Yaqub v. State (1992 SCMR 1983) it was held that “public functionaries are to act in aid of enforcement of Article 9 of the constitution rather than to violate them. An encounter simpliciter will not entitle a police party to killing discriminately persons who are allegedly in the encounter”.

Similarly, according to section 3(2) (b) of the PPA law enforcement agencies may arrest without warrant even on the basis of suspicion! This is not only against the constitution but also against the respected UDHR to which Pakistan is a signatory. 

Ø  Article 4: Right of individual to be dealt with in accordance with law etc. Art. 4 (a) no action detrimental to life, liberty, body, reputation or property of any person shall be taken except in accordance with law.

Ø  Article 10: Safeguard as to arrest and detention.

Ø  Fair Trial Act, 2013: Section 8: Application for issue of warrant: Application for issuance of warrant shall be made by authorized officer to judge.

Ø  Fair Trial Act, 2013: Section 15: If judge is of the view that officer has mala fide intention; he may recommend departmental action against him.

Ø  UDHR: Article 9: No one shall be subjected to arbitrary arrest, detention or exile.

Ø  UDHR: Article 10: Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.

It is worth noticing that Section 34 (1) (a) (c) of the PPA and Cl. 36 Rowlett Act, 1918 also deal with search and arrest without warrant. Rowlett Act was notorious due to clauses like this that’s why it spurred wide-spread protest in the sub-continent.

On top of all, the real howler is section 14 of the PPA. Under this section the accused will not be entitled to the benefit of doubt, which is a blatant violation of the cardinal and universally accepted notion of ‘burden of Proof’. It is a recognized principle of criminal law that onus to prove is on the prosecution. Better than ten guilty persons escape than that one innocent suffer (William Black Stone). Article 117 and 118 of “Qanun-e-Shahadat Order” clearly states that burden of proof is on the prosecution. Likewise, Article 11 (1) of UDHR states that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence”.

Another thorny point is under PPA, reports of investigation will also be admissible in evidence against the accused (section 7). The current practice in Pakistan is that the reports of investigation like police reports (Section 157, 168, 173 of Cr.P.C and Section 25 of Fair Trial Act, 2013), Experts opinion (Section 510 of Cr.P.C and Article 59 to 65) are not “admissible” in evidence. These reports are relevant but not admissible. As in Saeed Ahmad v. State (PLD 2003 SC 389) it was held that expert opinion normally, is not safe to treat.

Shockingly, some conducts (long march, strikes or to sit in etc) against government have been termed as offences against the state—“waging war against the state”. Indeed, it is a flagrant violation of Article 16 and 19 of constitution because they are not against the state but a government and its wrong policies.

Ø  Art. 16: Freedom of Assembly; Every citizen shall have the right to assemble peacefully and without arms, subject to any reasonable restrictions imposed by law in the interest of public order.

Ø  Art. 19: Freedom of Speech; Every citizen shall have the right to freedom of speech and expression, and there shall be freedom of the press, subject to any reasonable restrictions imposed by law in the interest of the glory of Islam or the integrity, security or defence of Pakistan or any part thereof, friendly relations with foreign States, public order, decency or morality, or in relation to contempt of court, commission of or incitement to an offence.

Lastly, Preventive detention for ninety days and minimum quantum of punishment for ten years also comes under scathing criticism. There is a huge debate regarding preventive detention and majority of criminal law experts believe that it is against human rights. Same is the case with minimum quantum of punishments, which will be now wobbling “ten years”. What about theory of reformation and rehabilitation!

It is worth mentioning that India also legislated some laws against terrorism but it was an abortive attempt owing to provisions like burden of proof and arrest without warrant. Such legislation included;

Ø  Terrorist and Disruptive areas Act (TADA), 1987

Ø  The Prevention of Terrorism Act (POTA), 2002

Ø  Terrorist and Disruptive Areas Rules, 1987

Ø  Maintenance of Internal Security Act (MISA), 1971 

All above mentioned laws were misused and later done away with. TADA lapsed but was re-enacted on 24 May 1987. It was amended in 1993 and again thereafter but was allowed to lapse on 23 May 1995. The Prevention of Terrorism Act (POTA) was enacted in 2002, only by a joint session of Parliament on 26 March 2002, but was repealed in 2004 and replaced by the Unlawful Activities (Prevention) Amendment Act, 2004.

In a nutshell, PPA smells more of Rowlett Act, 1918 which the British came up with to quell terrorism. There is no denying the fact that we are facing extraordinary situation, which require extra-ordinary solutions but it does not mean to take away fundamental rights of our citizens.

Because the PPA violates fundamental human rights, it can be declared ultra vires the constitution. In Chief Justice of Pakistan Iftikhar Muhammad Chaudhary v. President of Pakistan (PLD 2010 S.C. 61) it was decided that “the Supreme Court is empowered to examine the legislative competence to declare a statute or a legal document ultra vires the Constitution, or the action of the State authorities void if it is in conflict with the provision of Constitution, in exercise of its power of judicial review”. Similarly in Baz Muhammad Kakar v. Federation of Pakistan (PLD 2012 SC 870) it was held that “Judiciary had a duty to examine the constitutionality of any law if it was concluded that it had been promulgated in derogation of the Fundamental Rights as envisaged under Art. 8 of the Constitution, or where any provision of any law was found contrary to the Constitution”.

Instead of strict laws government should focus on education so as to weed out terrorism from its very roots. Meanwhile, reforms in police department are the need of the hour and a prerequisite for any meaningful legislative action against the menace of terrorism. The police department needs to be depoliticized and it should be given more autonomy in order to resist against corrupt politicians and powerful sections of the society.

How is the Co-existence of Sharia and Modern State Possible?

In its recent judgment Vishwa Lochan Madan vs Union Of India, the Indian Supreme Court rejected a petition requiring the abolition of informal Sharia tribunals in India, on the pretext that ‘adjudication of disputes is essentially the function of sovereign State, which can never be abdicated or parted with.’ The petitioner contended that such tribunals were functioning all over India as a parallel judicial system, administering justice amongst Muslims in accordance with the Canonical law of Islam, based on the teachings of the Qur’an and traditions of the Prophet. Specific references were made to various fatwas issued by some such tribunals, which violated women’s rights. Such fatwas included the cases of Muslim women who were raped by their fathers-in-law. The tribunals which dealt with their cases required them to wed the rapist after getting divorced from their husbands. This view was supposedly supported by the classical jurists of the Hanafi school.

While refusing to accept the petitions, the Supreme Court postulated a positivist account of law by asserting that ‘the power to adjudicate must flow from a validly made law.’ The Court noted that the Sharia tribunals do not exercise any function of adjudication and their opinion does not have any authority of enforceable law. Neither do these opinions have any legal or constitutional status whatsoever. Indeed, these fatwas are ‘expert’ opinions. They are not decrees, hence they are not binding on the courts, the State or the individual. Thus the issuing of fatwas is not illegal per se. This mode of administering justice was characterised as an ‘informal justice system’ which tries to bring an amicable settlement of disputes between the parties. The opinion of any Sharia tribunal is not binding and it solely depends upon the discretion of the individuals involved to either accept it or reject it.

However, as a balancing act, the court deemed it appropriate to put some control on vexatious issuance of fatwas, which violate the human rights of individuals,  specifically protected under the Indian Constitution:

‘Having regard to the fact that a Fatwa has the potential of causing immense devastation, we feel impelled to add a word of caution. We would like to advise the Dar-ul-Qaza or for that matter anybody not to give any response or issue Fatwa concerning an individual, unless asked for by the person involved or the person having direct interest in the matter… Fatwas touching upon the rights of an individual at the instance of rank strangers may cause irreparable damage and therefore, would be absolutely uncalled for. It shall be in violation of basic human rights. It cannot be used to punish innocent. No religion including Islam punishes the innocent. Religion cannot be allowed to be merciless to the victim. Faith cannot be used as dehumanising force.’

This is a remarkable judgment, which strikes a right balance between adherence to the principles of Sharia, on the one hand, and human rights within the legal framework of the modern state and international law, on the other. While the judges refused to grant the petition declaring all Sharia tribunals illegal, they nevertheless felt it appropriate to add a word of caution for such tribunals to adhere to: ‘However, we observe that no Dar-ul-Qazas or for that matter, any body or institution by any name, shall give verdict or issue Fatwa touching upon the rights, status and obligation, of an individual unless such an individual has asked for it.’ This effectively means a restricted regime for fatwas as a ‘valid’ fatwa after this judgment could only be issued if all the parties involved are agreed to get it. However, as most of the fatwas are issued with anonymous names of parties, this restriction will have only a limited effect.

In this judgment, the Indian Supreme Court has adopted a middle-of-the-road approach, going against a free regime for fatwas in Pakistan and a fatwa restricted regime of Bangladesh.

Full text of the judgment is available at http://www.indiankanoon.org/doc/22464727/

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. 

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

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.