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| August 18, 2006 | Friday | Rajab 22, 1427 |
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The ‘Islamabad Declaration’
Violence at the Quaid’s mazaar
Principle of legality in Islam
IN modern systems of criminal justice, the principal that protects against the abuse of power by the judges and the state, guaranteeing the security of individuals, while informing them of what is illegal and what is its punishment, is Nullum Crimen Nulla Poena Sine Lege (i.e., there is no crime or punishment unless established by law). The principle of legality ensures individual freedom by clearly defining the sphere of prohibited activity on part of the judiciary and the state.
ENCOURAGED perhaps by doubling of annual exports from $8.2 billion to $16.5 billion in seven years ending June 2006, the Planning Commission is now working on a strategy to boost exports to $40 billion per annum over the next five years. With exports restricted to a few low-priced items, the target seems much too ambitious. Despite marked improvements in leading sectors like textiles in recent years, the traditional export-oriented industries have not moved fast enough to produce the required level of value-added goods of international quality which could substantially boost export earnings by fetching better prices. Quite a sizable earning from textiles include both yarn and cloth: some $2.5 dollars being recorded for nine months of last year. None of the textile exporters sell branded products or manufacture anything under any international brand franchise. While nearly 90 per cent of the exports are of semi-manufactured and manufactured goods, the share of higher and medium technology in the overall manufacturing is a mere 35 per cent — as against Indias 58 per cent and Chinas 61 per cent. It shows how urgent is the need to further upgrade technologies and trade skills in export-oriented industries.
Yet another key issue is to create larger trade surpluses not by depressing domestic demand which is fuelling economic growth but by diversifying export products. While setting the export target, the deputy chairman, Planning Commission, says that the Commission would examine incentives and policies for pioneering industries, new products, process and technologies. The move may be appropriate, but special care has to be taken not to make the export-oriented industries dependent on crutches. No less important is that any export strategy has to be part of an overall development strategy. Investment, production and export are inter-linked. Instead of attracting foreign investment for privatisation of existing capacities, foreign direct investment should be encouraged for transfer of technology and trade skills for setting up new export-oriented industries. With much larger markets in the neighbourhood, Pakistan can only be made an attractive destination for global capital by providing access to the domestic as well as the regional markets. So far, foreign investment has come into import-oriented industries. Here, trade diplomacy has to play a vital role. China has benefited from relocation of manufacturing facilities by multinationals, responsible for much of the Chinese export boom in developed markets. Pakistan is still not part of any regional or global supply chain under which two or more countries jointly produce components of a single product for the international market. It is time for manufacturers and exporters to catch up with the latest trends in foreign trade and export-related foreign investment.
Of the $16.5 billion exports, about 11 per cent comes from primary commodities including rice, raw cotton, fish and fish products and fruits. The value of these products can be enhanced by better marketing practices. Grading and packaging of rice with brand names in small packets can fetch better price than bulk sales. The growing livestock population has a good potential for dairy products and meat processing industry. With exports at a low level of 13 per cent of the GDP, the Rs40 billion target may appear to be ambitious but it is worth making the effort. One area which needs to be specially focused on is high technology goods that now contribute a mere one per cent of the total exports of manufactured goods.
THE context was global but the issues highlighted at the recent International Judicial Conference in Islamabad could easily be Pakistan-specific. Among other measures, the August 14 ‘Islamabad Declaration’ called for greater judicial review of administrative processes to check abuse of power and to introduce transparency in governance. The judiciary, the declaration noted, is a “powerful force that can bring about social change”, adding that “its intervention is required in neglected issues or [taboo] subjects”. It was befitting that this call for judicial activism came at a conference organised in connection with the 50th anniversary of the founding of the Supreme Court of Pakistan. The country’s apex court has lately taken the lead in issuing notices when and where social and national interests are threatened, prominent examples being the decision to halt the sale of Pakistan Steel Mills and an earlier ruling restraining developers from denuding the Murree hills. At a time when public confidence in the government is critically low, the Supreme Court has come to be seen as a vigilant defender of individual and collective interest. The conference also underlined the need for speedy justice, rooting out corruption in government and the lower judiciary, amending family laws and eliminating gender bias in the legal system. Emphasis was laid on checking human trafficking and exploitation of children, cracking down on organised crime and protecting the rights of consumers. All these are serious problems in Pakistan and must be addressed urgently.
In a wider context, the Islamabad Declaration stressed that universally accepted human rights must be incorporated in local legislation the world over. Achieving this end may seem simple on paper but in practice presents a monumental challenge, especially in Muslim societies where many argue that no charter of rights is globally applicable. Given this tendency to interpret what is equitable or lawful in terms of culture and tradition, the enforcement of human rights laws will continue to be an uphill task. Basic rights must be made universally applicable through legislation so that deprivation and discrimination is not justified on grounds of cultural constraints and exigencies. Human dignity and rule of law cannot be sacrificed at the altar of obscurantism.
THAT today’s society holds nothing sacred can be gauged from the violence that erupted at the Quaid’s mausoleum on August 14 in which a seemingly manageable incident led to no-holds-barred brawl, damaging whatever came its way. A group of female visitors at the packed mazaar on Independence Day are said to have complained of being harassed which resulted in people taking sides and resorting to violence. Consider the extent of the fight by the damage caused to the property: several doors were broken, as were lights, 40 marble dustbins, 58 flower boxes, over 700 feet of marble lattice and 40 garden benches, to name a few things. The damage has been estimated at one crore rupees. But all this was inconsequential to those who had to prove that they were on the side of right. That not one sensible voice could be heard calling on the unruly crowd to stop is tragic but understandable given how frightening it can be to confront a violent mob. However, one cannot understand the virtual absence of the security personnel, especially on a day that attracts more visitors than usual to the mazaar. This is particularly strange since 600 policemen had been earlier deployed at the premises in deference to the annual VIP pilgrimage to the mausoleum.
Repair work needs to be immediately carried out so that the mausoleum can re-open. But how does one offer a remedy or a way out of the kind of madness that erupted? What can one say about an increasing number of people going into rage at the slightest provocation? People need strong and wise leadership that can steer them in the right direction — one that will teach them to respect and tolerate each other under all circumstances and adhere to norms of responsible public conduct.
Under this principle, an act cannot be deemed a breach of law unless so explicitly declared in the penal law in force at the time the act was committed. Only those acts can be punished that are committed after their prohibition by law; the judge can impose upon the criminal only those penalties that are authorized by law.
In the West, the judges possessed an extensive power in criminalising deeds that were not anticipated in the written texts, and had the discretion to choose punishments as they considered fit.
It was the Declaration of the Rights of Man (1789) that proclaimed the principle of legality in order to put an end to the arbitrariness of judges.
From then onwards, individual freedom became the basic ingredient of the western systems of criminal justice.
The occidentals staunchly believe that the principle of legality was invented in Europe and that Islamic law does not adhere to any such concept. This attitude depicts the faulty and deficient understanding by the Europeans of the Islamic legal system.
In fact, long before the Declaration of the Rights of Man, the Islamic system of criminal justice operated on an implied principle of legality. Though a study of the Quran and the Traditions shows the absence of an expressis verbis of the principle; nevertheless, both the sources contain provisions that provide for everything that the legality principle stands for. The Quran says:
“...Nor do We chastise until We raise a messenger. “ (17: 15) “And thy Lord never destroyed the towns, until He had raised in their metropolis a messenger, reciting to them Our messages, and We never destroyed the towns except when their people were iniquitous.” (28: 59)
Similarly, the Prophet (PBUH) did not punish offences that had occurred prior to Islam. In the farewell sermon, he said: “Any blood guilt traced back to the period of ignorance should be disregarded, and I begin with that of Al-Harith Ibn Abd AalMuttalib; the usury practised during the period has also been erased starting with that of my uncle, Al Abbas Ibn Abdl Al-Muttalib.”
The interest collected during the age of ignorance did not have to be returned, but that which remained due after the Islamic revelation did not have to be paid.
On the basis of the Quran and the Traditions, Muslim jurists have derived two main components of the principle:
1. No punishment shall be inflicted for conduct that no law has criminalised; and
2. There can be no retrospective operation of law.
Islamic law applies and employs the principle of legality to all offences. Offences are divided into the following three classes:
1. Crimes of Fixed Punishments (Hudood);
2. Crimes of Retaliation and Blood-Money (Quesas and Diyya); and
3. Crimes of Discretionary Punishment (Tazir).
The principle of legality is embodied in each of these three categories of crime:
1. Crimes of Fixed Punishment (Hudood): These are the crimes for which punishment has been clearly specified in the Quran, leaving no room for the judge to resort to any discretionary authority. The principle of legality is observed most strictly in these crimes.
Offences of this class are of a grave nature because they cause injury to the primordial interest of the society. These are:
a. Adultery: “The adulteress and the adulterer, flog each of them (with) a hundred stripes, and let not pity for them detain you from obedience to Allah, if you believe in Allah and the Last Day, and let a party of believers witness their chastisement.” (24: 2)
“Then if they (the slave girls) are guilty of adultery when they are taken in marriage, they shall suffer half the punishment for free married women. This is for him among you who fears falling into evil.” (4: 25)
b. False Accusation of Adultery: “And those who accuse free women and bring not four witnesses, flog them (with) eighty stripes and never accept their evidence, and these are the transgressors.” (24: 4)
c. Theft: “And (as for) the man and the woman addicted to theft, cut off their hands as a punishment for what they have earned, an exemplary punishment from Allah...” (5: 38)
d. Rebellion, Threat to Peace, and Robbery or Dacoity: “The only punishment of those who wage war against Allah and His Messenger and strive to make mischief in the land is that they should be murdered, or crucified, or their hands and their feet should be cut off on opposite sides, or they should be imprisoned.” (5: 33)
It must be mentioned that jurists often include drinking of alcohol and apostasy in the list. This is wrong because though the Quran mentions these offences, it does not specify penalties for them.
2. Crimes of Retaliation and Blood-Money (Quesas and Diyya): These are the crimes for which the Quran and the Traditions have provided the victim or his legal heirs, as the case may be, either of the following two options:
a. That the offender be punished in the same way and by the same means that he used in harming the victim; or
b. That the victim or his legal heirs accept pecuniary compensation from the offender and forgive him.
The crimes of retaliation and blood money comprise homicide and battery. In these crimes, only the victim or his heirs hold the right to prosecute the offender; the public authorities have no jurisdiction to interfere.
3. Crimes of Discretionary Punishment (Tazir): This category encompasses all criminal acts that are beyond the scope of the previous two categories of offences.
Tazir may also include an act prohibited by the Quran for which a commensurate punishment is not present.
Examples of such crimes are: gambling, breach of trust, tampering with weights and measures, giving false evidence, bribery, etc. Tazir also applies to Hudood crimes that are not properly established.
In this class, the criminalisation of acts and the punishments given for them is left to the discretion of the ruler or even the judge. It would not be wrong to say that, in some cases, the judge creates the offence, selects the penalty, and imposes it.
Though it seems that the principle of legality does not operate in Tazir; however, analysis shows that this discretion does not free the ruler and the judge from the application of the principle: they can only act fairly, with fair warning and no retroactive penalties, and in the public good.
The discretion of a judge in an offence falling under Tazir is never absolute. He is a delegate of the ruler, and, in most of the cases, the ruler, through his decrees, defines the punishable acts.
In the absence of such a decree, custom provides or augments the list of offences.
In Tazir, freedom of the judge exists mainly in the appliance of the sentence anticipated by law in accordance with the severity of the incriminated act. He is bound to consider objective culpability, nature of the crime, subjective culpability, and the situation of the criminal.
The judge is also not at liberty to devise any imaginable penalty sua sponte. Moreover, majority of the Muslim jurists hold that the punishments of Tazir must always be less in severity to those of Hudood.
At times, cases of Tazir result from the performance of acts regarding which the victim has remitted the legal remedy to which he is entitled under Quesas and Diyya. If the injured party foregoes his rights, the state can intervene under Tazir.
In short, though the judge has good deal of discretion in Tazir but it is within the bounds of legality.
In ascertaining the offence and settling the punishment, the discretion of the judge is restrained by the guidelines explained above.
Islam protects and balances individual, family, and community rights, by categories of offences which grant the authority to punish variously, to the family of the victim, to the community under specific command of God, and to the representatives of the community under general guidelines laid down by God.
Of these categories of crime, one is based on specified retribution, one on explicit legality with minimal discretion for the judge, and one on implicit legality with maximal discretion for the judge.