Spirit of Islamic justice

By Prof. Mohammed Rafi

The Islamic concept of law exposes injustice, fights it boldly and lays stress on the compensation of its victims. No other social order lays so much emphasis on human rights as Islam. The term justice may be defined as lawfulness, equitableness or moral uprightness. It is fairness in the way the people are treated.

It is also the legal system that a country or society uses in order to deal with people who break the law. Doing justice means to determine the justness of an argument, act, claim or deed; bringing to justice means to determine what is just according to law or some moral code of conduct; and delivering justice means to administer punishment or penalty upon misconduct or misdeed.

The comprehensive term "justice" appears to have two dimensions - rightfulness and righteousness - and each requiring some criterion or standard to determine what is right and what is wrong, and what is good and what is evil.

Excellence in behaviour, often expressed as righteousness, is a manifestation of moral values such as love, compassion, kindness humility, rectitude, patience, steadfastness, etc.

Any deviation from the norms set by those values leads to amoral or immoral behaviour, reprehensible under a code of conduct. The Quran puts the article of faith, devotional prayers and deeds of goodness under the rubric of righteousness; making spirituality the foundation of morality, and morality a matter of religious responsibility. (2:177).

In several ayaat of the Quran, Allah has commanded the establishment of justice. "And Allah commands you to judge between them by what Allah has revealed and follow not their vain desires..." (5:49). We find an excellent model in the life of the Nabi (PBUH) who made an everlasting contribution to the goodness and peace of the entire humanity.

The teachings of Islam seek to promote justice and to eradicate injustice, corruption and indecency from society. The Quran provides a complete framework of doctrines, standards, principles, rules and some basic laws to develop a system of justice. The Islamic state of Madina founded by the Nabi which operated under the sovereignty of the Divine laws of justice, is another model for the guidance of humanity.

The most distinctive characteristics of the Islamic judicial system in the early period was the cheap, just and quick decisions and their prompt execution. Its exceptionally unique and unusual feature was that the Naib who was the head of the state and the judiciary and also the commander-in-chief, made himself accountable to the Divine Law and even presented himself for adjudication on the complaint of a common man.

According to Dr. Guraya 'This unparalleled and unprecedented distinctive peculiarity of the Islamic judicial system can be appreciated only when it is read with the constitutional and judicial provision of the civilized West which upholds the dictum 'The king can do no wrong." (Islamic jurisprudence and the Modern world).

In the last hundred years the Shariah as a working legal system to be applied to business and commercial life of a modern state has proved absolutely inadequate. In Central Arabia Abdul Wahab (1744) emphasized God's unity (Tawheed) and condemned imitation (Taqleed) of the early jurists. He equated Taqleed with the worship of saints and gods and protested against the closure of the gate of independent reasoning in Islamic system of justice.

The dynamism of the Islamic justice system was stunted during the Abbasid period and accelerated after the fall of Baghdad. The orthodoxy which was encouraged in the beginning of this period asserted itself throughout the later period and the uneasy compromise between the rulers and the subjects caused a great havoc to the later development of legal institutions. People sought refuge under the easy formula of imitation or Taqleed.

Ibn-i-Taimiyyah (1263-1328) strongly criticized the rigidity of the ulema in their blind imitation of different law schools. His disciple Ibn-i-Qayyum believed in the evolution of laws and wrote "Legal interpretations should change with the change in time, place, conditions, intentions and customs." Both these great scholars took up the cause of 'Ijtihad' or a reappraisal of Islamic laws.

Had the Abbasids not hampered the natural flow of reason in jurisprudence, Al-Ghazali, Ibn-i-Sina, Ibn-i-Rushd and others would have been the greatest lawyers of Islam. Imam Abu Hanifa and his followers made extensive use of independent reasoning. Rules were given a wide scope under the plea of necessity and mitigation of hardships.

In the first century of Islam, independent reasoning and opinion played a vital role in the Islamic system of justice. With the expansion of the Islamic state, the jurists found themselves compelled to seek solutions based on reason, logic and opinion.

According to Ibn-i-Qayyim "the foundation of the Shariah is wisdom and the safeguarding of people's interests. Every rule which transcends justice to tyranny, the good to the evil and wisdom to triviality does not belong to the Shariah."

According to Ibn-i-Khaldun "The conditions, customs and sects of the world and nations do not continue according to any specific programme or pattern. There is always change from time to time and from one condition to another. This applies likewise to countries, ages and states. Such is God's order amongst His creatures "(Muqaddama)."

Clearly the Islamic social order is distinct and different from the secular social order of the West in fundamental ways. The modus vivendi of the Muslim masses and the modus operendi of the Muslim society are based on Divine-human relationship, expressed by the concept of Tawheed through which Allah is recognized as the Creator, Provider, Nourisher and Protector of all.

He is One, Unique, Sovereign in authority, Merciful, Forgiving and Just. All human beings are equal.... the eyes of His laws. Every human being has been endowed with a free will and as such every human being is personally responsible for his actions and has the right to establish direct relationship with Allah and enjoy His blessings.

The Islamic system of justice is geared towards doing justice equally to all. It protects the life, dignity, property of all without any fear or prejudice of race, religion and language.

The Divine laws define human rights, responsibilities and relationships and offer a code of conduct and framework to help build a justice system. The Quran says 'For each of you We have appointed a law and a way of life' (5:48).

The Nabi guided the Muslims to make decisions on matters of common interest through mutual consultation and showed them the way how to use reason in resolving issues through Ijtehad and Qiyas.

The spiritual, oral and intellectual foundations of the Islamic state were so solid and strong that within the next 50 years it emerged as the most progressive and prosperous civilization in human history.

It dominated the whole world and benefited humanity through its cultural heritage of knowledge and learning for almost nine hundred years. Muslim minds of the time made significant advances in all fields of knowledge, science, literature and jurisprudence.

During the last 500 years, the intellectual activities of the Muslims have remained mostly confined to matters of faith and religious rites, suppressing the creativity of the Muslim mind and destroying the vigour and vitality of the vibrant Muslim society.

The Muslim theologians have often wasted time and energy in the hair-splitting discussions and debates on peripheral issues, causing confusion and division in the Muslim Ummah.

The field of Islamic jurisprudence faced another serious problem when the Fuqaha (Jurists) refused to differentiate between what was fundamental, permanent and immutable and what was temporal, ephemeral and replaceable. Shah Waliullah (1703-1765) criticized this narrow approach very severely.

He pointed out that the articles of faith, moral principles, values, injunctions and prohibitions revealed in the Quran must be accepted as the permanent truth which can neither be changed nor compromised. But any laws, punishments and penalties derived on the basis of Ijtehad and Ijma are subject to critical review and change.

Allam Iqbal (1877-1938) expressed his concern and said: 'The ultimate spiritual basis of all life, as conceived by Islam, is eternal and reveals itself in variety and change.

A society based on such a conception of reality must reconcile in its life, the categories of permanence and change. It must possess eternal principles to regulate its collective life. (Reconstruction of religious thought in Islam).

During the last two centuries a number of reform movements were started in different parts of the world. After making some initial progress, most of these movements now appear to be receding and retreating.

A growing Taqlidi trend focusing on historically conditioned thinking and attitude, and an increasing tendency towards extending the purpose and role of law by defining Shariah as a pure way of life appear to be the most important factors which are causing a setback to true Islamic values.

A renewed interest in the study of Fiqh, represented by the different schools of thoughts, is sapping intellectual energies that might have been invested in some useful pursuits.

In the final analysis we find that the younger generation is not being sufficiently motivated to participate in the march of history as torch-bearers and promoters of truth, justice and goodness. This finding may provide some food for thought for those who are, or claim to be, movement-oriented.

Minorities' share in governance

By M.H. Askari

The 56th death anniversary of the founding father of Pakistan, observed early this month, should serve as a reminder that a somewhat rigid concept of the place of religion in Pakistan has become a strong perhaps unalterable factor in national politics.

Patriotism has come to be equated with unquestioning adherence to what all goes under the label of "Islamic ideology" - a term that hardly ever found place in Mohammad Ali Jinnah's political lexicon as he led the campaign for a Muslim homeland.

In fact, he believed in the separation of religion from politics and his innumerable statements and observations on the subject are an evidence of that belief. It is, however, equally manifest that Pakistani politics perhaps no longer reflects the Quaid's ideals.

At a panel discussion in Karachi the other day, on the eve of the Quaid's death anniversary, an eminent Hindu lawyer from Sindh, Rochi Ram, bluntly expressed his disappointment over poor representation of the members of his community in the institutions of governance in Pakistan.

He was particularly unhappy over the fact that the Thar region of Sindh with its overwhelmingly Hindu population, which had (according to him) cast about 150,000 votes in favour of Mr Shaukat Aziz, remains virtually unrepresented at the Centre.

Not a single non-Muslim minister had been included in an unusually large federal cabinet. Incidentally, Mr Rochi Ram was also not too happy at the way Hindu temples were being managed in Sindh.

The admittedly poor share of the Hindu community in the institutions of governance in Pakistan can to an extent be attributed to the lack of sufficient political enterprise on the part of the community. However, the problem appears to be also rooted partly in the general apathy of the majority community towards the political rights of the minorities.

The growing strength of near-fundamentalist elements in the political apparatus cannot be expected to work in favour of the religious minorities. This is fundamentally contrary to the guiding principles for the state of Pakistan as enunciated by Quaid-i-Azam Mohammad Ali Jinnah in his speech at the inauguration of the Constituent Assembly on August 11, 1947.

The Quaid's deep concern for the rights of the minorities was strongly evident from what he said on the occasion. In fact, in a statement made about a month before Pakistan came into being, he had expressed a similar sense of anxiety.

It seems that with the approach of the deadline for independence the Quaid was becoming increasingly concerned about the future of the religious minorities who would be left in both India and Pakistan. His own views were quite explicitly known.

He had unambiguously made it clear that the rights of the minorities would be fully safeguarded in both countries. He felt extremely disturbed at the suggestion by certain elements that if Muslims in India were unfairly treated, Hindus in Pakistan would meet a similar fate. He firmly believed that Islam expected Muslims to be just and fair to non-Muslims wherever they were.

The Quaid sincerely hoped that the authorities in both India and Pakistan would treat the minorities in a manner that would give them a sense of security and confidence. However, 56 years after the Quaid's death, the fate of the religious minorities is at variance with what he had envisaged. From what Mr Rochi Ram said it was clear that the Hindus have developed strong misgivings about what the ruling elite says and the reality with which the minorities have to live.

The Muslims in India are obviously going through a similar experience. An eminent Indian Muslim author and politician, Dr Rafiq Zakaria has called the phenomenon of the growing estrangement between Muslims and Hindus in his own country as a "widening divide."

He has conceded that so much ill-will has been generated in the minds of the adherents of both communities over the years that "a herculean effort will be required to eradicate it."

That religion has been a strong motivating factor in the genesis of the Kashmir dispute is also undeniable. Lieutenant-Colonel Webb, British resident in Srinagar on the eve of the partition, in a communication to Lord Mountbatten had pointed out that though the Hindus and the Dogra communities of the state of Jammu and Kashmir were inclined towards India, "the bulk of population are Muslim and if consulted would probably favour Pakistan."

The Maharaja's prime minister Pandit Ramchandra Kak Clearly "saw the implication in Webb's comment and felt that if Kashmir joined either state (Pakistan or India), especially India, it would mean serious trouble."

Webb has also been quoted as stating when Pandit Kak was replaced by Major-General Janak Singh, that the new prime minister "although inclining towards India, as a Hindu realizes that bulk of Muslims will not accept the decision for the state to accede to India."

The "widening divide" is implicit in New Delhi's inability to create trust and confidence in the minds of the Kashmiri people, about 75 per cent of whom were Muslims at the time of partition and are about 80 per cent of the state's population today.

Nationalist Indian Muslims such as Dr Zakaria are inclined to attribute the Kashmiri people's lack of trust in New Delhi's leadership to the inadequacies of those who wielded power in the state after partition, particularly after Shaikh Abdullah's death.

Dr. Zakaria seems to contend that the leadership has been unable to defeat "anti-Indian forces" in the state. He somewhat naively suggests that the corruption and mismanagement of the Indian leaders who have been at the helm of affairs in the state has distanced the Kashmiri Muslims from the Indian Muslims and that "in desperation the Kashmiri Muslims began to look to Pakistan for bettering their lot."

This is rather too simplistic an explanation and does not explain the scale and intensity of the Kashmiri freedom fighters' resistance of India's domination and the role of its security forces.

The simple fact is that the Kashmiri people want complete freedom to decide what their future should be. They tend to link their future with Pakistan rather than with India.

This has been evident from the fact that on the eve of the Agra summit and during the present composite dialogue the leaders of Kashmir's All Parties Hurriyat Conference (who represent the bulk of the freedom fighters) have demonstrably been close to Pakistan: they have made no secret of their desire to seek the counsel of Pakistani diplomats in New Delhi.

Both India and Pakistan have to realize that the growth of extremist religious sentiments (as demonstrated by Pakistan's partisan role in Afghanistan at the time of the Soviet occupation and the rise of militant Hindutva in India) has tended to destabilize both countries and additionally threatened the security of the region as a whole.

In the larger context of Hindu-Muslim relations it goes without saying that the religious minorities have to be fully integrated in the mainstream of national politics. For the sake of Pakistan's internal stability it is imperative that the religious minorities do not continue to suffer from the sort of frustration that one finds in the sentiments expressed by lawyer Rochi Ram.

Making the votes count

By Sherry Rehman

The bedrock of the democratic process is premised on a fair and free election by which the will of the people is ascertained through a nation-wide poll. If a democratic state cannot administer a transparent election under which there is a basic consensus by all stakeholders, then it fails in its first duty to the people it seeks to hold sovereign.

In the history of Pakistan's chequered experience with democracy, only the epochal 1970 election has been held as free and fair. In India, however, the democratic process has taken a different trajectory, which has allowed its institutions to slowly develop their independence and credibility by strengthening each other.

In this entire process of evolution over 57 years, Indian democracy has relied on its courts, its election commission and its military to play by the rules as established by its constitution.

Politicians and political parties have proved to be the weakest link in the democratic chain in the Indian system, interspersed in recent times with an alarming number of criminal, incompetent, fundamentalist or corrupt elements.

Yet, at no stage has the democratic experience been challenged either by the military, or by disbelievers in the value of democracy. Are their laws any better intrinsically, or have they applied existing laws, and improved on old ones? The answer to that question lies in all three of the above. With reference directly to the electoral process, it would be profitable for us to compare our own model with the Indian template.

In the Indian constitution, there is a whole chapter on the election commission by Ambedkar, which ascribes a high value to the process and institutions involved in the Indian democratic apparatus.

Article 324 is, in fact, invoked by almost every officer of the commission like a mantra even in the most casual conversation. In Pakistan, too, an entire section, from Articles 213 to 226, is dedicated entirely to the holding of free and fair elections but despite some laws actually being better in theory, the failure of the EC in Pakistan lies in the absence of their enforcement more than anything else. There are many similarities in the actual laws, but key differences emerge in the actual implementation of these.

The actual composition of the EC in India is different from that of Pakistan. In the latter, we have five members of the EC, all of whom are required by the law [Article 213 d] to be either serving judges of the Supreme Court, or qualified to be appointed to the SC from the High Court, one from each province for a term of three years.

In India, there is great emphasis on the idea that judges must not be appointed members of the EC, as it is administrative work, and they are taken from the civil service for the period of their service, which is six years. There are only three members of the EC in Delhi as it is felt that decision-making by consensus is all-important.

By Article 329 of the Indian constitution, the courts are barred from interfering in the work of the election commission, and election petitions in the hundreds are entertained by the EC. In Pakistan, too, election tribunals are appointed by the EC, but they hold little credibility as they are not known to overturn questionable results.

The manner in which elections are manipulated in some countries is by a process known as pre-poll rigging. This is when the party in power uses state resources and government agencies to abuse the advantages of incumbency, as was recorded by the print media, election observers and human rights groups in Pakistan in 2002.

In India too candidates spend way more than the state allows them to. But in recent years strict regulations on government misuse of state resources have been applied by the EC.

The first real challenge to incumbent-abuse from the commission came in the 1970s. After the Congress began to be seen as a party that could be challenged, Indira Gandhi's second election campaign had to face a petition which found its way to the superior courts.

She was rebuked for using her staff officer during the election campaign. She then declared an emergency and suspended fundamental rights. But from then onwards, the support from the courts to the election commission increasingly strengthened the institution.

In Pakistan, much of the superior judiciary has become a victim of PCO oaths and has delivered doctrine of necessity judgments that allowed the democratic process to be subverted by military coups. In India, increasing electronic media vigilance has contributed immensely to the transparency of the electoral process.

The Indian model code of conduct, agreed to by all parties in 1968, was actually implemented in 1991 as a major instrument of ensuring free elections. Essentially, the code of conduct is designed to bring the party in power to the level of the opposition.

Through the EC and its observers this moral compass ensures that the sitting government does not get an undue advantage over its political rivals. While in Pakistan, political rivals are kept out of the mainstream by the military, in India the EC is now powerful enough to ban transfers and postings once the election date has been announced.

The mechanism by which 50 per cent of opposition voters are disenfranchised in Pakistan is the misuse of electoral rolls. These lists of eligible voters is often found to be completely mismatched with the ones used at the polling booths, with the result that parties and their voters are helpless on polling day when their lists don't tally with the ones purchased by them earlier from the election commission, and all the voters whose names are missing from the rolls inside the polling booths simply cannot vote.

The Pakistan EC claims that it has computerized 72 million voters, but the reality is completely different, as stated by the HRCP and EU election observers. In India, the electoral rolls are actually revised every year at the beginning of each year, either through a revision or intensive exercise.

As it stands the electoral rolls of various states are already on websites and can be changed as requested by the political parties even up to one day before the last day of nominations.

Again, unlike in Pakistan, the election commission of India has actually taken steps to curb bogus voting by starting to issue elector's photo ID cards [EPICs] since August 1993. This eliminates the massive fake ID card issue which plagues ballot boxes in every undocumented economy in the world.

A photo identification on electoral roll has the levelling effect of introducing instant transparency into the process. Since in India the state bears the expense of providing its citizens with both the ID card and the EPIC, voter registration is considerably higher than in Pakistan, where the rising ranks of the poor, particularly in remote rural areas, have little or no access to voting unless their candidate registers them.

The third most revolutionary change the Indian EC has introduced successfully is the use of the electronic voting machine [EVM]. This eliminates the ballot box and ballot paper, eliminates one more step in the electoral process where rigging or ballot-stuffing can take place.

The failure rate of the machine is one per cent, it is a stand-alone machine operating on cheap batteries and is manufactured in India at the cost of Rs. 10,000 fitted out with an imported burnt chip. The control unit is kept with the presiding officer, while the balloting unit is kept in the polling compartment at the time of the process.

Each EVM can record upto 3,600 votes at any one time, while the seal on the machine is only broken to count the votes in the presence of all the polling agents and presiding officer after it has been taken away to the district EC. The machine is easy to use even for the most illiterate voter as it carries symbols and names of all candidates to resemble a traditional ballot paper.

It has been a singular achievement of the EC that the last general election in India (2004) was conducted entirely electronically and the EC was able to announce the result for 389 million voters by 2 pm the next day after polling. If the Pakistan EC wants to rid itself of the kind of counting controversies that take place in every election, particularly the recent Tharparkar bye-poll, where there were supposedly an unprecedented 154,000 votes polled in the most arid zone of the country, it may want to consider introducing the same EVMs at home.

Since the location of a polling station is critical to a candidate in terms of where she or he can bus the voters, or in case it is suddenly moved to an area of low support, several controversies and inequities can arise out of the placement of these stations.

In Pakistan for instance, thousands of voters are routinely disenfranchised in scores of constituencies where their polling station is arbitrarily moved, or even made to disappear as was reported from many areas of Sindh in election 2002. To counter this trend, the Indian EC decided to become extremely vigilant about any such attempts, since the early 1990s.

The UN has actually signed an MOU with the Indian Election Commission, because of its growing prestige both at home and abroad, to assist in holding elections in Afghanistan and Iraq.

Can civil society in Pakistan wake up to its role in pressuring government to start taking itself more seriously? The mainstream political parties too need to start working on a code of conduct that will apply to all stakeholders in an election process.

They will need the support of the judiciary in upholding this resolve, and the cooperation of the international community in understanding that little can be gained if the military in Pakistan is not re-assigned its job of guarding the boundaries of the country which need not be as porous to terrorism as is the case.

If security agencies continue to run a parallel electoral process in any country, there can be no movement forward for political parties to reinvent themselves, nor for civil society to become more vigilant.

The writer is a member of the National Assembly.

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