November Issue 2009
The Limits of Islamic Law
The word Shariah invokes the thought of a frigid, God-given code of law which cannot be reviewed or changed. However, Tahir Wasti’s book, The Application of Islamic Criminal Law in Pakistan: Sharia in Practice, challenges this archaic and traditional perspective. Analysing the qisas anddiyat law, which was conceptualised during the Zia regime, passed as an ordinance by the Benazir Bhutto government in 1989 and later enacted by the Nawaz Sharif government in 1997, Wasti discusses the law in a religious-historical perspective and also the manner in which it was enforced in Pakistan.
The writer builds his hypothesis on the logical principle that laws are meant to generate stability and peace in society and if the said objective is not being achieved, this calls for a reassessment of the said law to make it more rational. Unfortunately, as Wasti concludes in his study based on an analysis of the law, history and data of homicide in Pakistan, the application of the qisas and diyat law in the country has been quite irrational and has not served the purpose of providing justice to the ordinary citizen. In fact, the manner in which the law was conceptualised and later interpreted by the judicial system and the legal community was basically meant to serve the powerful and the affluent but not the poor and ordinary citizen.
Although a legal book, its language is comprehensible even to a layperson and helps in clarifying different concepts. The earlier portion of the book argues that Islamic criminal law is not something prescribed in the Quran but has evolved over a period of time and is based on a human interpretation of the Quranic text, hadith,ijma (consensus of legal opinion), qiyas (analogy), ijtihad (independent reasoning), istihsan (jurist reasoning), and uruf (custom and usage). The author has constantly referred to Islamic history, providing references where certain punishments were not carried out or some laws were not applied due to political expediency. For instance, Caliph Omar suspended punishment for theft during the famine in Arabia. In another case, Caliph Usman decided not to punish Omar’s sons for violating the rules of qisas. According to the existing Shariah, Omar’s sons should have been punished for killing men not directly responsible for their father’s murder, and by not applying the rules of qisas, the caliph had himself violated the law or used his authority for political expediency that statesmen require. Indirectly, this book also examines the relation between religion and politics and helps answer the question that confronts most Muslim societies today: Should religion be used for politics?
There is also a debate over the fact that the division between public and private crime in Islam is very blurred, which has allowed certain rulers to use it to their advantage. The Abbasids, for instance, who were responsible for the formal codification of law, treated homicide as private law — a practice which was challenged by advocates like Zakaullah Lodhi. One of the most interesting conclusions that the book draws is that the application of theqisas and diyat law in Pakistan has “added to the uncertainity and disbelief in the law and undermined the state’s efforts and authority in relation to controlling the crime of murder.”
This is, indeed, a brave book to write in a society that has become extremely closed-minded as far as issues pertaining to religion are concerned. This myopic culture is a gift from General Zia-ul-Haq, the initiator of the Nizam-e-Islam. Interestingly, as Wasti observes in his book, the only law that was not included in the Nizam-e-Islam bill was the one pertaining to qisas and diyat. This was mainly because Zia knew that he could not hang Bhutto using the Shariah law. In Islamic law, there is no provision for an approver, which would have ensured Bhutto’s acquital. The guilty verdict against Bhutto rested largely on the testimony of Masood Mahmood, then director-general of the Federal Security Force, who turned approver against Bhutto. While an eye-for-an-eye or blood money are two methods of compensating the victim’s family, in Bhutto’s case it would never have come to that as he would have been found not guilty under Shariah law.
However, Zia then enforced a truncated version of qisas and diyat to fool the people — an effort in which he was helped by several judges such as Justices Tanzeel-ur-Rehman and Afzal Cheema. The trick was to delay the application of the true procedure and only apply qisas rather than diyat. This had negative implications on many cases other than Bhutto’s. Wasti finds major lacunae in the judgment by Justice Karam Shah, mainly the fact that the judge did not appreciate the richness of Islamic literature in penning down his judgment that didn’t favour Bhutto, who had requested that his case be tried under the Shariah law. Bhutto had filed a review petition number 5-R of 1979 on February 13, 1979 in the Supreme Court asking that his case be tried under Shariah or Nizam-e-Islam through first invoking the law on qisas and diyat which was the only way to stop Zia’s kangaroo courts from giving an adverse judgement. But some of the judges mentioned earlier are accused of using a very narrow interpretation of religious law and literature to deliver a dead Bhutto to Zia.
The politics of the promulgation of the said law is also interesting. It was passed as an ordinance in 1989 by the PPP government to appease the religious clergy. The fact itself exposes a major flaw in the country’s political system where successive political and military leaders, including those who appear to be socially liberal, have used religion to negotiate with the religious right and, in turn, lost their grip on the socio-political discourse in an Islamic society. The secular leadership could never win a religious debate since that has always been the forte of the ulema. So, the qisas and diyat law that Wasti discusses was gradually implemented without the leadership ever bothering to calculate the human and social cost of it.
There are cases after cases in the book highlighting how different judgments failed to bring justice in society. According to Tahir Wasti, the qisas and diyat law, with emphasis on diyat (blood money), is manipulated by the rich and powerful to the disadvantage of the poor and powerless. He then cites numerous examples in which the law was wrongly interpreted or manipulated to benefit the culprit rather than the victim. However, the biggest lacunae is that the law treats homicide as a private crime rather than a public issue. In one case, for instance, a brother went scot free after murdering both his sisters because he was pardoned by his sister’s kin which happened to be their father. The various cases discussed by the author are eye-openers as they highlight the negative role played by some senior judges in the application of the law. Ostensibly, they were driven by their personal desire to ingratiate themselves with Zia. The book has extensive data from South Punjab to prove the author’s earlier mentioned argument.
Wasti’s book is invaluable in that it opens up the mind to various aspects of Islam and helps in furthering the discourse about a religion that seems to be currently in the eye of the storm. Perhaps it will serve as a small but sure step to dispel that storm.
The writer is an independent social scientist and author of Military Inc. She tweets @iamthedrifter