|
| December 15, 2006 | Friday | Ziqa'ad 23, 1427 |
Please Visit our Sponsor (Ads open in separate window)
Freudian slip
Drug trade ban in Bara
Islamic law of evidence
The neoliberal nirvana
ISLAMIC law covers all aspects of a social order whereby an Islamic state can come into existence and prosper. One of these is siyasah shariyah i.e. administration of justice.
THE other day I caught sight of one of those leaflets that fall out of magazines. This one featured pictures of a swimming pool and a radiant, pastel-clad couple, with the offer of “learning the secrets that could help you become a property millionaire”.
UNICEF, which acts as a watchdog keeping an eye on governments’ performance vis-a-vis children, has just released its annual State of the World’s Children report. In it Pakistan cuts a sorry figure. It is inexcusable that this country has failed to take care of its children and provide them the health and protection that are their birthrights. Thus, of the 4.7 million children born every year, nearly 500,000 die before they reach the age of five. Those that survive are not all in a proper state of health — 38 per cent being underweight and 37 per cent stunted, which is a sure indication of malnutrition. It is significant that Unicef’s 2007 report links the well-being of children to the well-being and empowerment of women. As the UN secretary-general observes in his message to Unicef, “When women are healthy, educated and free to take the opportunities life affords them, children thrive and countries flourish.”
It is, therefore, not surprising that those countries where the record for children makes poor reading also happen to be the ones where the status of women is most dismal. Pakistan is a case in point. With low contraceptive prevalence (28 per cent) and antenatal care so poor (36 per cent of pregnant women receive it), women bear too many children and their pregnancies are not sufficiently spaced (total fertility rate 4.00). This affects not just the maternal health of women, it is also a major factor in the high infant mortality rate, low birthweight and the severe undernourishment of children. Besides, educated and confident mothers give birth to healthy babies who do well in all spheres of life. Conversely, when women are denied equal opportunities in a society, children also suffer. This basic truth has now received universal recognition. When the concept of providing protection and care to children, who constitute the most vulnerable segment of society, was addressed seriously by the international community, it realised that women would have to be empowered. It proceeded to adopt the convention on the elimination of all kinds of discrimination against women. The convention on the rights of the child which followed later would have been meaningless if women were not given the capacity to provide the best to their children.
It is strange that in Pakistan the concept of gender equality has yet to win recognition. As the Unicef report points out, when discrimination against women is eliminated it enhances the influence of women on decision-making, not just in the household but also in public life. In the family, women are usually the caregivers and as such play a positive role when they are enabled to make decisions regarding healthcare and the upbringing of children. In public life the input of women becomes a key determinant in shaping government policies that have a bearing on child development and education. It is time we recognised the importance of this issue because the future of the country is linked to the future of our children whose future, in turn, is linked to the status of women. Proclamations about the rights of women have not proved to be enough because they have yet to be translated into action. The failure of Pakistan to promote the equality of the sexes and give women the self-esteem that is essential for them to play a full role in the family and society have proved to be a major factor in our social and human underdevelopment.
EVEN if Mr Ehud Olmert had not been guilty of that Freudian slip, everyone knew Israel was the Middle East’s only nuclear power. The cause of the Israeli prime minister’s outrage was Mr Robert Gates’s testimony before the Senate Armed Services Committee in which Mr Donald Rumsfeld’s successor made it clear that Israel was in possession of nuclear weapons. Testifying before the committee, Mr Gates had — from Mr Olmert’s point of view — the audacity to say that Israel had nuclear weapons. The words he uttered were: “Iranians are surrounded by powers with nuclear weapons: Pakistan to their east, the Russians to their north, and the Israelis to the west” as well as the US which was based in the region. There was a storm in Israel over Mr Gates’s disclosure, because he violated what Tel Aviv expects Washington to follow dutifully — “the strategic ambiguity” which Israel has maintained over its nuclear programme. Mr Gates’s remarks gave away no secret. It has long been known that Israel possesses a stockpile of nuclear weapons, estimated to be 200. Two decades ago, its nuclear weapons programme was made known to the world when Mordechai Vanunu, who worked at Israel’s Demona nuclear reactor, told a British newspaper that Israel was working secretly on nuclear weapons. Vanunu was kidnapped by Mossad, brought back to Israel, tried and convicted. He was released in 2004 after serving an 18-year term.
Angry at the Gates disclosure, Mr Olmert admitted his country’s possession of nuclear weapons when he told a German television channel, “Iran openly, explicitly and publicly threatens to wipe Israel off the map. Can you say that this is the same level — when they are aspiring to have nuclear weapons — as America, France, Israel and Russia?” Already under fire from the opposition for his incompetence during the 34-day war with Hezbollah, Mr Olmert then addressed a joint press conference with German Chancellor Angela Merkel in a futile exercise in damage control. Now the Gulf Cooperation Council has demanded UN action against Israel under Chapter VII, while an Iranian foreign ministry spokesman said on Wednesday that Mr Olmert’s “confession reveals a real threat to security and stability in the Middle East and shows the evil aims and plots of this regime”.
THE political authorities of Khyber Agency have made a wise decision — long overdue — by banning the thriving opium trade in Bara bazaar. Its opium market is one of the largest in the tribal areas and on Monday authorities shut down about 100 shops dealing in the banned drug. This is a welcome development, especially since the drug trade has been flourishing in recent years. While the Taliban had curtailed poppy farming when they were in power in Afghanistan, after the war on terror began they encouraged its cultivation for monetary reasons as a means to procure arms and ammunition. The Bara market served as a staging point to smuggle the drugs in and out. The ban will only be successful if it is properly enforced and those violating it are given strict punishments. The political agents will have to exert their power, especially as opium traders have said they will simply move their business elsewhere if the ban is strictly enforced. The authorities cannot cave in to this or any kind of pressure if they are serious about bringing peace and stability to the region.
For far too long, the tribal belt has been ignored and no serious efforts have been made to bring its people into the mainstream. As a result, people have had no choice but to resort to illegal activity like arms and drug trading to earn their livelihood. The government has made little effort to create jobs. In January 2004, the federal government announced plans to set up two industrial estates in Darra Adamkhel and Khyber Agency and it was hoped that people in these areas would benefit from employment opportunities. There has been no word on the progress of these projects. It is time the government started work on development projects that will create gainful employment and earning opportunities.
It is an elaborate legal system which, widely interpreted, includes not only formulation of courts of law and procedure for conduct of trial, but also the intricate concept of evidence; “Surely, We have sent down to you the Book in truth so that you might judge between men by that which Allah has shown you...” (4:105)
The term ‘evidence’ means and includes all those legal means, exclusive of mere argument, which serve to either prove or disprove an issue placed before a judicial body. The object of presentation of evidence is to decipher the truth out of a jumble of conflicting statements and views presented by both parties.
Muhammadan law of evidence is governed by the principle that all judicial decisions should be based on conviction, not speculation, so aiming at enforcement of justice as far as possible; “...when you judge between men, you judge with justice...”(4:58) “Say: My Lord has commanded justice...” (7:29) Under Islamic law, evidence has been categorised into the following main kinds:
Testimony: this is an oral evidence given in court by the witness who is under a moral duty to give correct and true information through his statement which is to acquire the status of evidence before court and so influence a judicial decision (shahadat).
“O you who believe! Stand out firmly for Allah as just witnesses; and let not the enmity and hatred of others make you avoid justice. Be just; that is nearer to piety; and fear Allah. Verily, Allah is Well-Acquainted with what you do.” (5:08) “...conceal not the evidence, for he who hides it, surely, his heart is sinful,” (2:293)
The right of acting as witness may be exploited by a person due to either inaccuracy of discernment or bias. It is thus necessary to take all steps necessary to avoid a court being misled; the same is accomplished through tazkiya-al-shuhood. ‘Tazkiya’ means purgation of witnesses. It is conducted with the primary object of acquiring reliable knowledge as to the competency and other virtues of a witness in order to have faith in his statement, which bears evidential value in conviction in cases of hudood and qisas.
Maturity of understanding and power of perception is essential in a witness, thus a small child and a lunatic are not competent to act as witnesses in court. The evidence of the following persons is not admissible in court; (1) a man or women given to treachery. (2) a person who has been whipped for an ordained crime. (3) an adulterer or an adulteress (4) person dependent on the family in whose favour he is giving evidence. (5) a relative. (6) a person under an obligation to either one of the parties. (7) a slave in favour of his master. (8) a person who has enmity with the accused. (9) a person convicted for the offence of qazf (false accusation of immorality on a chaste woman); “And those who accuse chaste women, and produce not four witnesses, flog them with 80 stripes, and reject their testimony forever...” (24:4).
Numerical strength of witnesses varies from case to case; in matters of private rights and transactions between men, the evidence of two men, or one man and two women is admitted; “...And get two witnesses out of your own men. And if there are not two men (available), then a man and two women, such as you agree for witnesses, so that if one of them errs, the other may remind her.” (2:282)
In cases of hudood i.e. punishments prescribed by God Almighty, the rule as to witnesses is more stringent. Women are specifically excluded from being witnesses. The testimony of two just men is required. Certain matters of which women alone are aware, such as birth of a child, can be proved by the testimony of a single woman.
When a man testifies as against himself, or as against his own interests, the same is called admission (iqrar). This is admissible in evidence; “O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves...” (4:135)
Oath: an oath is swearing by Allah that what the person is stating is true. An oath is acceptable in matters which are civil in nature, but is not accepted in criminal matters. It is on the whole a weak form of evidence and as opposed to credible evidence on the other side it is not taken into consideration; “...When death approaches any of you, and you make a bequest, (then take) the testimony of two just men of your own folk or two others from outside, while you are travelling... let them both swear by Allah, for then indeed we should be of the sinful.” (5:106)
Evidence derived from circumstances is also accepted in a Court of law. For example presumption of paternity is derived from circumstances i.e. where a couple are living together as man and wife, it shall be presumed that the child is born out of this union. “O you who believe! When you contract a debt for a fixed period, write it down. Let a scribe write it down in justice between you...” (2:282). This verse serves to show that documentary evidence, provided the document itself is authentic and not a forged copy, is admissible as evidence before a court of law.
It is one of the primary rules of evidence, that direct form of evidence or first hand information has great probative value as opposed to mediate or indirect or what is termed as hearsay. Hearsay or second hand knowledge (word of mouth) is admissible as evidence on the basis of doctrine of necessity.
It is an exception to the general rule that if the matter refers to a fact which was heard, the same must be narrated by the one who heard it, or if it is perceivable by any other senses, it should be told by the person who himself perceived the same. Hearsay evidence is admissible where the person having first hand knowledge has either died, or cannot be found or if calling him would serve to exhaust a lot of time and money.
Having so considered the various kinds of evidence, it is but fair to uphold the claim that Islamic law of evidence is well equipped to meet and cater to the requirements of implementation of justice. The cardinal principle of this legal system being enforcement of justice, we have direct evidence on the one hand and hearsay evidence in certain exceptional circumstances on the other so as to focus as far as possible on a fair solution.
It was doubtless intended to whet the same modern appetites as all those TV shows about scaling the property ladder, though you could also sense the legacy of those dreams rolled out in the 1980s, when Thatcher and her free-market courtiers championed the property-owning democracy - as not only the basis of a new society, but the meritocratic means by which those with the right instincts could move upwards.
This month has brought more news to make such promises look threadbare. In a survey by the Joseph Rowntree Foundation of all 307 council districts in England, Scotland and Wales, the number of areas in which people aged under 40 needed more than five times their income to buy a first home had doubled in a year to 78, and the impossible economics of London life were highlighted by the fact that around half of young(ish) capital-dwellers have no chance of property ownership. For some, the key issue is simply a decent place to live; a couple of weeks ago Shelter launched its Wall of Shame campaign, emphasising right-to-buy’s corrosion of our social housing stock.
So let’s be blunt. The housing market that took root in the Thatcher years — elemental not only in terms of its effects on millions of lives but also in its symbolising of popular capitalism — has once again failed. Scanning recent headlines, it’s not the only aspect of the ‘80s inheritance that’s looking so tarnished.
The Eddington report might have advocated pricing drivers off our congested roads, but three days before it was published the private train operators announced ticket hikes that would shove more people back on to them. No matter that wholesale gas costs have recently tumbled; like textbook oligopolists, the big energy companies have announced yet more big price increases.
Meanwhile, the market’s ethical vacuum is pointed up by social and political headaches: the poverty, debt and corporate irresponsibility that came to a head with the demise of Farepak; the role of “flexible” labour markets in the mess of issues surrounding migrant workers; the fact that the sacred interplay of demand and supply offers no answer to the looming environmental crisis.
Look closely, though, and you can discern something potentially era-defining: signs that the free-market credo might be in terminal trouble. The political wind wafting across the Atlantic suggests as much. The Republicans received their thumping in last month’s elections not just because of Iraq, but also thanks to the inadequacies of an economy increasingly built on low pay and flimsy health and pension provision.
Among required reading for switched-on Democrats is a book by Yale academic Jacob Hacker, entitled The Great Risk Shift, a grim portrait of Bush’s Thatcher-esque promise of an “ownership society” being supplanted by insecurity and powerlessness. The president’s more savvy opponents have also been focusing on the tendency of unregulated markets to foster malignant concentrations of power. Senator Barack Obama, for example, has set himself on an “absolutely vital” battle to force Wal-Mart to look at its low-wage, low-benefit ethos.
Some of this is stereotypically American — not least the fact the new mood has tipped over into calls for ramped-up protectionism. But even in Westminster, where market-worship still exerts an all too powerful spell, you can sense the first stirrings of a sea change.
How telling that the leaders of the party that led us towards neoliberal nirvana now affect the jitters. Their ideas may be traceable to opportunism, and fatally compromised by topsy-turvy solutions, but in alighting on issues such as overlong hours, affordable housing and skyrocketing debt, the Cameroons seem to have divined the market-related anxieties edging into our lives. —Dawn/Guardian Service