Miscarriage of Justice - Part 2
By Shah N. Khan, moderator and founder Pakistan post
The Need for improving laws & court procedures.
No civilization would ever have been possible without a framework of stability to facilitate the flux of change in social interaction. Besides the moral standards laid down in Holy Scriptures, foremost among the stabilizing factors, more enduring than customs, manners and traditions, are the legal systems that regulate our life in the world and our daily affairs with each other. However, the law is only one of several imperfect and more or less external ways of defending what is better in life against what is worse. By itself, the law can never create anything better. Establishing respect for the law does not automatically ensure a better life for that, after all, is a job for people and not for laws and institutions.
The purpose of law enforcement is not simply
to punish people for crimes they have committed, but to deter crimes that
are being contemplated and purpose of imprisonment is to reform criminal
and to discourage him to commit the offense again. That enables law enforcement
to send strong signals about the dangers of crossing the line by bringing
cases that penetrate the public consciousness. But the job of reforming
the conduct of the prisoners to enable him to lead clean life is generally
neglected in most of the countries. In US it is said that almost $ 40,
000 a year on the average are spent on maintaining a prisoner but in spite
of that great majority of criminals fail to become good citizens.
The constitution of Islamic Republic of Pakistan stipulates that all its laws are to be based on Holy Quran and Sunnah. The highest court in Pakistan is the Supreme Court, while a Federal Shariat court administers Islamic law and resolves the differences of opinion on different sharia issues.
Some politicians talk about enforcing the Islamic system without providing any tenable description of what their perceived system is. The fact is that the laws of Pakistan with certain exceptions have been molded according to Islamic ideals. But the politicians including those in religious parties as well as the people at large have not adopted Islamic ideals of conduct and have not inculcated the spirit of Islamic brotherhood. Few of us fulfill our duty and obligations to Allah and our fellow human beings as enunciated in the Holy Quran. After all these commandments and the laws of the land are meant to help us distinguish between right and wrong and what is better in life against what is worse. By itself, the law can never create anything better. Establishing respect for the law does not automatically ensure a better life for that, after all, is a job for people and not for laws and institutions. It is difficult to make our material condition better by the best law, but it is easy enough to ruin it by bad laws.
There are a number of commandments and prohibitions in Holy Quran and the sayings of the Holy Prophet regarding different social and financial matters. They relate practically almost all aspect of life such as murder, thefts, robbery, corruption, adultery, marriage, divorces, Zakat, bequests and inheritance, rights of widows and orphans, blood-money, trusts, compensation for work, virtues of charity, business, trading, spending in the way of Allah for welfare or help of the poor and needy, slavery, trade, weights and measures, loans, usury, trusts, contracts, prohibition for professional beggary, misrepresentation, profiteering and hoarding etc. Most of our people are not aware of them and most of those who them do not conform to them. Our politicians give lot of lip service but they have done little to modify existing laws or to introduce new ones to conform to the spirit of Quran and Sunnah. Modern Western Laws regarding protection of consumers in a way conform to Islamic ideals of trading but their absence in Pakistan has been queer and the International aid agencies have been pressing for their promulgation.
Although most of us believe that banking interest (rather than usury) is prohibited in Holy Quran, we have not taken measures to regulate bank interest on credit card advances and other loans on the lines of the USA where in many States the laws prohibits the bank from charging more than 9 to 12 % interest. Hudood Ordinance was hastily drawn in 1978 ub pursuance of the political agenda of General Ziaul Haque without formal approval of the Parliament.
Exploitation in the name of Islamic
If you had taken loan of RS. 10, 000 from a bank on 8 % interest for that purchase you would be paying for 24 months much smaller installment than RS. 800/- pm. But these days though Bank pay hardly 5 to 6 % interest or profit on deposits, they charge 18% or so on loans and call it service charge, rent or something like that but rarely interest! You can call it exploitation of consumer in the name of Islam. Similarly the House Building Finance Corporation has Islamized interest as 'rent' and now acquisition of loan has become more expensive and wide difference in rent charges exist from place to place.
If people in USA and most other countries get loans for purchases of cars, houses, appliances etc. hardly at 6 to 9 % why we Pakistanis have to pay such exorbitant interest or service charge as high as 20 % and even 52% pa on some credit card purchases
The fact remains that banking is banking - and economics is economics - whatever name you may give it according to the policies and practices adopted. The concepts of Western Interest Free Banking are not much different than what have been introduced here as Islamic Banking. Most of the terms have been adopted giving Arabic sounding names Islamic Banking is the reinvention of wheel in ancient traditional ways. Few realize that it is the cruel exploitation in the name of Riba (usury) which is prohibited and condemned and not the provision for loss of purchasing power of the currency and reasonable margin for administrative cost and profit as in verse 2.279 Holy Quran refers to a just refund of principal value of the loan and in the same Surah the need for written agreement is also mentioned.
In the old days the money consisted of coins of gold and silver whose purchasing power remained stable and often tended to appreciate. Now we have paper currency without any commodity base which in by itself is a usurious practice as the following extract from an article by Dr. Lawrence Parks would indicate.
“"Today, fiat money, money that is created out of nothing and without work, is used worldwide. The reason monetary authorities have gotten away with this prima-facie fraudulent money is a combination of coercion (specifically legal tender laws in every nation and restrictions the IMF has put in place internationally that prohibit member countries from linking their currencies to gold, and only to gold), misrepresentations, and nondisclosure of material information. Since the 8th century in China, every experiment with fiat money has ended in disaster, many times destroying the middle class, that group that protects society from the barbarians. To counter this risk and to protect and preserve our civilization, it is essential that we once again return to "the standard of every great civilization": gold-as-money.".
Criminal Laws in Saudi Arabia
But in Saudi Arabia according to media
reports, we find much smaller incidence and ratios of crimes. For instance
since the last one decade we find such low figures per year as 7,553 cases
for thefts, 5,085 cases for the production, sale, and consumption
of alcohol, 3,651 cases for altercations and quarreling, and 2,576 cases
moral offenses. There were fifty-six murders and 340 cases of attempted
and threatened murder in 1990. There were twenty-nine cases of arson and
574 cases involving forgery or fraud. In the West these figures are
taken skeptically and it is believed that crimes are not recorded properly.
But the fact remains that Saudi press reports incidence of crimes truthfully
By all standards the incidence of crime has always been considered to be relatively much lower in Saudi Arabia, and violent street crime was particularly unusual. Crime rates had, however, risen with the presence of foreign workers. Supporters of severe punishment under Sharia believe that, although carried out infrequently, amputation of finger or hand for professional thievery serves as much more effective deterrent than the jail confinement.
In Saudi Arabia the crimes subject to the death sentence include murder, apostasy, adultery, drug smuggling, and sabotage. Under certain conditions, rape and armed robbery could also lead to execution. Executions could be carried out by beheading, firing squad, or stoning of the convicted person in a drugged state. The highest number in a year for such executions was only seventeen in 1990 and all were beheaded.
The sharia sets forth rigorous requirements for proof of adultery or fornication. For the crime of adultery, four witnesses to the act must swear to having witnessed the crime, and if such an accusation does not hold up in court, the witnesses are then liable to punishment. In many years only one or two cases occur.
Under the sharia, repetition of theft is punishable by amputation of the right hand, administered under anesthetic. Because of its severity, a number of qualifications have been introduced to mitigate the punishment. If the thief repents and makes restitution before the case is brought before a judge, the punishment can be reduced; furthermore, the victim can demand recompense rather than punishment or can grant a pardon. Highway crime has been subject to more severe punishment. Theft of serious nature can be punished by cross-amputation of a hand and a foot. Such cases have been unusual, but Amnesty International reported four of them in 1986. Since 1990 fewer than ten hand amputations took place in any one-year and more than half of them were administered to foreigners not well versed with Saudi laws.
Flogging with a cane is often imposed for offenses against religion and public morality, such as drunkenness, unruly behavior in public such as throwing garbage or damaging State property, gambling and doing business in prayer timing and eating publicly during Ramzan. Although the flogging is painful, the skin is not damaged irreparably. The purpose is to degrade rather than cripple the offender and serve as a deterrent to others. American and Europeans have been flogged for alcohol related offenses, usually receiving from thirty to 120 strokes. A Kuwaiti sentenced to prison in connection with terrorist bombings in Mecca was condemned to receive a total of 1,500 lashes over the course of his twenty-year sentence.
In 1987 death penalty was introduced for drug smuggling according to a fatwa by the ulema. Drug smugglers and those who received and distributed drugs from abroad were made subject to the death sentence for bringing "corruption" into the country. First-time offenders faced prison terms, floggings, and fines, or a combination of all three punishments. Those convicted for a second time faced execution. By the end of 1987, at least nine persons had been executed for offenses that involved drug smuggling, most of them non-Saudis. By late 1991, more than 110 drug sellers had been arrested since the law was put into effect. Saudi officials claimed that the kingdom had the lowest rate of drug addiction in the world, which they attributed to the harsh punishments and the pious convictions of ordinary Saudis. Western media reports that surreptitious use of drugs and alcohol still persists among wealthy younger Saudis who acquired the habit abroad and who exert influence on law enforcement.
Recently in Iran the punishment of death by stoning for adultery has been postponed as there were many moderates who believed that the punishment of stoning is not prescribed in Holy Quran and it was included in Sharia in 7th Century according to Jewish practice and old scriptures of Torah.
Crimes and Punishment in Pakistan
Pakistan had inherited Criminal code from British Raj. But in 1978 General Zia ul Haque hastily introduced Hudood Ordinance in his bid to Islamize laws. There was worldwide reaction about couple of convictions under the Blasphemy laws even before the sentences of death were passed by the courts. Death penalty under this law has not been passed despite lapse of over a decade but cases have been allowed to drag on for years resulting in denial and miscarriage of justice.
In common law in the West, Blasphemy is
a crime of speaking or publishing words that vilify or ridicule God, the
Bible, or religious beliefs. Scurrility and a resultant tendency to provoke
a public disturbance are the criteria for blasphemy. Laws that condemn
it are held to be in consonance with the laws that protect freedom of speech.
Blasphemy is still a crime in Britain and in most of the United States,
but prosecutions are now rare. But in medieval Europe people used to be
burned alive or killed for blasphemy. Ridiculing Pope and Clergy was treated
as a form of blasphemy.
Retd. Justice Majida Rizvi in a seminar said the existing Hudood Ordinance promulgated in 1978 by late General Ziaul Haq is not in conformity with the spirit of Divine Laws given in Holy Quran. She had headed a commission for submitting recommendations regarding repealing or amending the Hudood Ordinance and is believed to have recommended to repeal it.
Enlightened Pakistan believes that punishment of stoning to death for adultery is not prescribed in Holy Quran. So is true of punishment for blasphemy, rape, bribes, frauds, adulteration of medicines and other food items and we are free to prescribe our own laws. The laws for adultery and blasphemy were inducted in Sharia by Ijthead and are based on Torah and Bible. In the seventh century in the newly formed Islamic State the punishments used to be given to Jewish criminals in consultation with the rabbis according to Torah as mentioned in some Hadiths. The laws inducted in Shari by Ijethad centuries ago cannot be given the status of permanence as the Divine laws of Holy Quran enjoy. They also believe that Holy Quran and Sunnah are not legal codes and we are commanded to use reason and wisdom in interpreting them, as there are quite a few allegories and similitude where underlying principle need to be understood rather than the blind adherence to literal meaning. And we must take them into consideration for formulating our own laws through parliament.
Salman Rushdie, born in 1947 in Bombay India became infamous by writing a deplorable book ‘The Satanic Verses’ in 1988. The book contained mischievous and disparaging remarks about the Holy Prophet (PBUH) and distorted facts about his life and Islam. It was banned in several Islamic countries. The publishers and the author tried to cash in on these protests and intensified publicity for its sale. In 1989 Iran's Ayatollah Ruhollah Khomeini took notice of this devilish campaign and declared that Rushdie and everyone involved in the book's publication deserved to be put to death. Rushdie's went in hiding in Britain having acquired British nationality.
In Pakistan Dr. Mohammed Younas a lecturer
of homeopathic college was sentenced to death by a district court in Islamabad
two or three years ago. A group of students had complained that during
a lecture he had made blasphemous remarks. The accused denied the charges
and submitted a written statement to the court that he had full faith in
Islam and could not even think of committing blasphemy. The International
media was treating the incident as an indication that like Afghanistan,
Pakistan is also going in the hands of
While the nation remains divided over the issues of Hudood Ordinance, Blasphemy law and employment of Interest in banking operations, the crime rates are increasing sharply mainly due to unemployment, inflation and lack of good governance at different levels of government and beauracracy
While the need for amending the Hudood Ordinace cannot be denied, we must realize that the legal code inherited by us from British Raj has not been efficacious in containing the crimes. Though situation cannot improve by the laws alone, imperfect laws and lengthy procedures create hindrances in administration of justice and deterring crimes.
The huge number of pending cases and increasing crime rates warrant revolutionary measures. Appointing Qazi courts to deal with crimes in the same manner as in Saudi Arabia but with some liberalization according to the opinion of enlightened Ulema and jurists of Pakistan would be a step forward in ensuring speedy trials. The punishment of flogging and other sentences in Sharia would be more efficacious then the present jail system under which the criminals become much more hardened criminals instead of being reformed.
Shah N. Khan.