| 05 March 2004 | Friday | 13 Muharram 1425 |
Laws that are abused
Islamic economic system is primarily based on justice. It discourages concentration of wealth in a few hands and provides for its diffusion. It prohibits accumulation of wealth by dishonest and devious means. the lawfully acquired wealth is to be used for the benefit of the widest possible circle.
The system of inheritance is an important mechanism and is unique in the range of beneficiaries to include even uncles, aunts, and, in some cases, even living grand parents. Islam encourages to give something even to non-heirs. It ensures that the corpus is not unnecessarily reduced to the disadvantage of the heirs.
Before the advent of Islam, women suffered tremendously and one of the injustices was denial of any share in inheritance of their parents. One such incident was the occasion (shan-i-nazool) for the revelation of Quranic teachings about inheritance.
Jabir bin Abdullah reports, "Sa'd bin Rabee's wife took along with her two daughters to the Holy Prophet and said, 'These are two daughters of S'ad bin Rabee who was with you in the battle of Uhd and was martyred.
Their uncle has taken away all the property, not leaving anything for them. They cannot be married without wealth.' The Holy Prophet (PBUH) said, 'Allah will decide this matter.'
Thus were revealed the Quranic verses about inheritance and he directed their uncle to give to the girls two-thirds and their mother one-eight and to keep the rest.
The Quran says, "For men is a share of that which parents and near relations leave; and for women is a share of that which the parents and near relatives leave, whether it be little or much - a determined share.
And when other relations and orphans and the poor are present at the division of heritage, give them something therefrom and speak to them with word of kindness. And let those fear God, who, if they should leave behind their own weak offspring, would be anxious for them.
Let them, therefore, fear Allah and let them say the right word. Surely, they who devour the property of orphans unjustly only swallow fire into their bellies, and they shall burn in a blazing fire.
"Allah commands you concerning your children; a male shall have as much as the share of two females; but if there are females only, numbering more than two, then they shall have two-thirds of what the deceased leaves; and if there be one, she shall have the half.
And his parents shall have each of them a sixth of the inheritance, if he has a child; but if has no child and his parents be his heirs, then his mother shall have a third; and if he has brothers and sisters, then his mother shall have a sixth, after the payment of any bequests he may have bequeathed, or of debt.
" This fixing of portions is from Allah. Surely, Allah is All-Knowing, Wise. And you shall have half of that which your wives leave, if they have no child; but if they have a child, then you shall have a fourth of that which they leave, after the payment of any bequests they may have bequeathed, or of debt.
And they shall have a fourth of that which you leave after the payment of any bequests that you may have bequeathed, or of debt. And if there be a man or a woman whose heritage is to be divided and he or she has neither parent nor child, and he or she has a brother or a sister, then each of them shall have a sixth.
But if they be more than that, then they shall be equal sharers in one-third, after the payment of any bequests, which they may have bequeathed, or of debt, without prejudice to the debt. This is an injunction from Allah, and Allah is All-Knowing, Forbearing.
"These are the limits set by Allah; and whoso obeys Allah and His Messenger, He will make him enter Gardens through which streams flow; therein shall they abide; and that is a great triumph. And whoso disobeys Allah and His Messenger, and transgresses His limits, He will make him enter into Fire; therein shall he abide; and he shall have a humiliating punishment." (4:8-15)
"They ask thee for instructions. Say, 'Allah gives His instructions concerning "Kalala.' If a man dies leaving no child and he has a sister, then she shall have half of what he leaves; and he shall inherit her if she has no child.
But if there be two sisters, then they shall have two-thirds of what he leaves. And if the heirs be brethren - both men and women - then the male shall have as much as the portion of two females. Allah explains this to you lest you go astray, and Allah knows all things well." (4:177).
"It is prescribed for you, when death comes to any one of you, if he leaves much wealth, that he make a will to parents and near relatives to act with fairness; it is an obligation on those who fear God.
And he who alters it after he has heard it, the sin thereof shall surely lie on those who alter it. Surely, Allah is All-Hearing, All-Knowing. But whoso apprehends a partiality or a wrong, and makes peace between them, it shall be no sin for him. Surely, Allah is Most Forgiving, Merciful." (2:181-3).
Who can understand the Quran as much as the Holy Prophet (PBUH)? Abu Umama Al-Bahili reports, "I heard Allah's Messenger say during the course of his sermon in the year of the farewell pilgrimage; 'Verily Allah has granted every one who has a right what is due to him. So there can be no will in favour of a heir." "Give equal treatment to your children. Give equal treatment to your sons."
The Holy Prophet has forbidden gift to a heir by a person in his life time, as this would deprive other heirs. Nau'man ibn Bashir relates his father took him to the Holy Prophet and said, "I have gifted one of my slaves to this son of mine."
He inquired, "Have you made a similar gift to every one of your children'? He said, "No." The Holy Prophet said, "Then take the gift back." One version is that he said, "Be mindful of your obligation to Allah and do justice between your children."
Another version is that he asked Bashir if he had other children beside that one. As he answered in the affirmative, he first asked whether he had given the gift to all of them.
Hearing "No" from him, the Holy Prophet said, "Do not make me a witness, for I will not be witness to a wrong. Would you desire that they should behave equally well towards you?" As Bashir said, "Certainly," the Holy Prophet said, "Then why do not you?" According to another Hadith, the Holy Prophet inquired from Nau'man himself about the slave and directed him to return the slave.
Sa'ad ibn abi Waqas, a fabulously rich companion relates that once he fell seriously ill and when the Holy Prophet came to enquire after his health, he said, "Messenger of Allah, you see how it is with me. I am a man of means and my sole heir is my daughter.
May I give away two-thirds of my property in charity?" The Holy Prophet said, "No" "Then half of it, Messenger of Allah." He said, "No' "Well one-third, Messenger of Allah."
He said, "One-third, and one-third is ample. It is better you should leave your children in easy circumstances rather than in want, reduced to soliciting alms from others."
This set the outside limit for gifts by way of will for non-heir or any other purpose however noble it may be like charity. Hazrat Abu Bakr (RA) was of the view that this should be less than the prescribed outside limit and preferred one-fifth.
He said, "I like one-fifth more than one-fourth and one-fourth more than one-third. Whoso wills one-third, he does not leave any thing for the heirs" "One-fifth is normal, one-fourth is hardship and one-third is permitted by the court."
Laws that are abused
Even in these hard times, there are days which bring glad tidings. Last week we received an e-mail from a former death row prisoner who has won his freedom after being acquitted by the Sessions Court, Islamabad.
Dr M. Younus Sheikh, a doctor and a teacher, had been accused of blasphemy - falsely, it is now clear - in October 2000. In September 2001 he was sentenced to death. He had denied the charges.
A slow and protracted process of appeal and retrial followed leaving him languishing in solitary confinement on death row for more than two years until his release in November 2003.
Although found innocent, Dr Sheikh had to remain in hiding even after he was a free man because he continued to receive death threats. He has now left the country to take asylum in Europe.
There is a positive dimension to Dr Sheikh's case. It shows that the judiciary in Pakistan still has judges who are fearless and conscientious and who are prepared to hand down judgments based on their sense of justice and fair play.
But one cannot overlook the fact that this country continues to have laws on its statute books which were instituted in the name of Islam by an autocratic ruler and are all too frequently misused by unscrupulous persons against those they perceive as their enemies for not sharing their dogmatic interpretation of Islam.
The blasphemy law is one of them. According to the International Humanist and Ethical Union (IEHU) today more than 100 people are in Pakistani prisons accused of blasphemy.
There are also the Hudood laws which are a travesty of justice. Today a large number of women are in prison because they have been charged with adultery under Zina Ordinance.
The law has been so much abused that the National Commission on the Status of Women last year issued a report after much deliberation by jurists and experts recommending the abolition of the Hudood laws. Its chairperson, retired justice Majida Rizvi, has been campaigning relentlessly for their annulment. She has so far failed to succeed.
The mere fact that many people arrested under both the laws are later acquitted shows that the laws offer ample opportunity for abuse. Many a times, blasphemy charges are brought against a man on flimsy grounds and he finds himself in prison under the shadow of death.
He wins his freedom only after a long judicial process and the judge is brave and fair. Similarly, an innocent woman is charged and thrown into jail on baseless allegations that hold no water in a court of law.
Until the poor woman is acquitted as no adequate evidence is found, a few years have passed during which her reputation is totally ruined, her family scattered and she herself is so thoroughly demoralized that her acquittal hardly brings any relief to her.
Since we do not have an activist social scientist such as Asghar Ali Engineer in our midst, no one has analyzed the real factors behind the cases brought against various people under these laws.
Obviously, the reason would vary from person to person. For instance, many women are charged by their former spouses out of anger or vindictiveness. Even in blasphemy cases, at times economic factors play the main role.
Why should we have laws which can be so misused? Why can't these laws be amended or, better still, dropped so that there is no room for abuse? President Pervez Musharraf tried to amend the blasphemy law a few years ago.
It was a very minor amendment which he had suggested that would have only modified the procedure of registering an FIR for blasphemy.
The police would have been required to carry out preliminary investigations to see if there were any grounds for a case of this nature. Even that was unacceptable to the religious leaders who were so vocal in their protest that the president had to backtrack.
As for the Hudood Ordinances, they have never attracted any attention except from the women's groups and the human rights activists. Is it because most women who are jailed under this law are poor and illiterate and have no political clout and have no connections with the centres of power.
The sufferings of the voiceless in our society generally go unnoticed. Hence it is now for the women's groups, human rights activists and international bodies such as Amnesty International and the IHEU (who took up Dr Shaikh's cause) to struggle for a change in such laws.
Why do those who have the power to introduce changes and want Islamic precepts to govern our public life, opt for the obscurantist and narrow interpretation of Islam? Why is it that Islam is presented as a religion that is repressive, harsh and devoid of humanism? In the absence of any resistance from any quarters, the obscurantists get a free hand.
Even though most people would not subscribe to these views and would never uphold the brutal punishments prescribed under these laws, they have been so thoroughly indoctrinated that they do not want to challenge what the so-called purveyors of Islamic teachings have been propagating.
The SPDC report which made a detailed study of education in Pakistan found the madressahs producing students who are "unable or unwilling to be amenable to conduct that does not conform to prescribed norms".
The curricula of the madressahs are heavily indoctrinated by religious subjects and at the higher level comparative religion is taught in the form of theological debates wherein the student learns to refute the beliefs of other doctrines (radd) rather than tolerating them.
As such the products of the madressahs tend to be doctrinaire and intolerant of pluralistic ideas. Their mindset is "one-sided and exclusivist" and "insular and self-righteous".
The madressahs have always been there with their rigidly orthodox curricula. How come they have assumed such an important role now as to worry all sensible people? True their numbers have grown enormously. What is more, the products of these institutions have now gained ascendancy in state policymaking in many areas. Hence laws such as the blasphemy law and the Hudood Ordinances.
Yet the number of children passing out of secular institutions is much higher. What should cause greater concern is the fact that education in general schools (which are not madressahs) is equally doctrinaire in its contents.
An analysis of the textbooks clearly establishes that children are taught to be proud of war, intolerant of other religions, nationalist to the extent of being jingoistic By distorting history, teaching it selectively, drumming in the greatness of our own religion while by implication showing no respect for other faiths, the school textbooks produce students who, according to the SPDC, look at the world in terms of "black and white" and "us versus them" with a mindset that is "single-dimensional" and "exclusivist".
Then above all, the majority of the people are illiterate. In these conditions, there might be some people who have managed to develop an independent mode of thinking - their own personal experience may have taught them that other religions also teach virtues and goodness. But they never have the confidence and intellectual capacity to challenge the prevailing mindset.
Of course the ideal approach would be to correct the curricula in all the schools so that the mindset of the entire nation changes. But this is a slow process for it would take a generation to change this outlook. Besides, who would bell the cat? The problem is that many who can bring about changes have their own hidden agendas which do not always coincide with their public positions.
Meanwhile, it is important that we do not provide any opportunity to unscrupulous elements to misuse the laws and brutalize the people in the name of religion.