Zia's Children

By Ayesha Siddiqa

As the entire Pakistani nation watches video footage of a 17-years-old
girl screaming on their television screens during the process of her
torture at the hands of the brutal Taliban in Swat, one wonders if the
mothers, sisters, daughters and the male members of this nation will
ever take time out to think about this system of justice advocated by
these men who are not even qualified to interpret the Quran and Sunnah.

How did these men know that she had committed adultery? Or were
the men in Iran, who ran a jeep over both the arms of a young boy to
punish him for stealing sure about his economic circumstances?
Sadly, all this will be justified in certain quarters as upholding of
Sharia. But the legal system of any land is meant to do justice
which is not just the application of some legal norms, but the
application of law in conjunction with sensitivity towards the
economic, social and political conditions of a place.

The application of Sharia is extremely complex as it entails a
stringent mechanism for evidence. For instance, a witness has to
meet certain conditions. The witness has to be one: (a) who has
never been punished for any crime, (b) has always said all his
prayers in time, (c) never urinated standing up, (d) never eaten from
a market place, (e) never committed any major sin, (f) never
committed any minor sin, and
(g) never failed to carry out obligations prescribed by Quran and
Sunnah. These conditions are so stringent that according to Pakistan's
former Chief Justice Sajjad Ali Shah even he would not qualify
to be a witness.

Referring to the case of the girl flogged in Swat, the fact of the
matter is that this is one example of the dire conditions of women
in a large number of Muslim societies where there is no legal system
for this particular gender to prove their innocence. In Pakistan in
particular where the Hudood laws were formulated under the Zia
regime, the objective was not to bring justice in the society but to
throttle all forms of justice. In this respect, the Taliban in Swat and
those who ruled Afghanistan for some time are Zia'children. They
use force arbitrarily and apply laws without the real context to
enhance their own power.

For those, who think of General Ziaul Haq as an exemplary
marde momin, it would be beneficial to read Tahir Wasti's seminal
work --- Application of Islamic Criminal Law in Pakistan: Sharia
in Practice". The book published in January this year and authored
by a man, who has experience of both Islamic law and British common
law, is the first detailed research enlisting the ramifications of the
application of sharia law in Pakistan. The writer argues that Zia's
decision to impose Nizam-e-Islam on February 2 1979 was not a
sincere act. Wasti, in fact, argues that had the military dictator been
sincere he would have also invoked the law of Qisas and Diyat as
part of his Islamic regulations that mainly consisted of the five laws
pertaining to: drinking, Zina (adultery), Zakat and usher, highway
robbery, and theft. The punishment for some of these crimes is not
even prescribed in the Quran.

The reason that Zia left out Qisas and Diyat, which finally became an
ordinance in 1990 during Benazir Bhutto's government and finally
passed as a law after twenty minutes of debate in parliament
under Nawaz Sharif was because he was too eager to hang Bhutto.
Such a law would not have allowed for the approver Masood
Mehmood, which, in turn, means that Bhutto could not have
been sentenced to death.

Not surprisingly, Bhutto had filed a review petition number 5-R of
1979 on 13/02/1979 in the Supreme Court asking that his case be
tried under Sharia or Nizam-e-Islam through first invoking the law
on Qisas and Diyat. Notwithstanding the fact that while in power
Bhutto himself played to the gallery by using religion, in case of
his trial his plea to use the religious law was primarily as a legal
point that would technically stop the Zia government from sentencing
him to death. Interestingly, as Wasti points out in his book, Zia kept
returning the draft of this law until he had managed to put Bhutto
to death. The Supreme Court justices gave a split decision on the
Bhutto case arguing on page 29 of the decision of the said review
petition that under section 302 of the PPC read with section 109 of
the PPC, this was a case of unintentional murder in which there was
no room for the witness of an approver. The decision including the
said review petition by Bhutto is reported in PLD 1979 Supreme
Court 741 and the two volumes on "Bhutto's Trial Documents"
published by Justice Afzal Haider.

Zia's government also challenged other cases in which such a law
needed implementation. Unfortunately, the author states, it were
judges like Justices Tanzeel-ur-Rehman and Afzal Cheema who
helped Zia cheat the entire country by bringing about amendments
in the sharia law that suited the military dictator's interests and
allowed him not to pass the law on Qisas and Diyat as long as he was alive.

What is even sadder is that such discrepancy in Nizam-e-Islam
was never seriously challenged by any quarters. Even after the Qisas
and Diyat law came into force, first as an ordinance, and later, as
law, no one really pointed out the problem in invoking the said law.
As Wasti points out in his book, since it is difficult to find a witness,
the law of Qisas was never implemented and the government
basically uses tazeer or diyat to pass judgments. Diyat allows for
compromise in case of murder, a law which was framed not to bring
peace and justice in the society according to religious principles,
but to suit the interests of the more powerful. There are cases
after cases reported in Wasti's book in which poor and weak
people were forced to accept a compromise and forgive the
murderers of their loved ones. The law even encouraged
exchange of women as part of a settlement. Reportedly, since
the law came into force some judges showed their magnanimity
by ordering the payment of blood-money in addition to exchange
of women. Interestingly, the system was never fully challenged
by the legal community due to what senior lawyer and now
human rights activist Iqbal Haider termed, on the floor of
parliament in 1990, as greed of the legal community. This law
permits lawyers to claim their fee without putting in effort that
they would otherwise have to do to in defense of their clients.

The screams of the young Swati girl are the knock on the door of
the entire society to wake up and not allow these men and others
like them, who are at best Zia's children in terms of their sense
of legal fairness, to bring violence in this country in the name
of religion. This is not just about better treatment of women but
also a matter of justice for all and peace and tranquility in the
society. What is being presented as sharia is in reality a system
that protects the unquestioned power of those who have monopoly
over violence and resources in the society. A legal system is an
ever-evolving process that needn't mimic the past without taking
into account the circumstances. In the words of Maulana Amin
Ahsan Aslahi, religion of the past is history of the present which
can only be used as a good reference point and no more.



The writer is an Islamabad-based social scientist and author
of Military Inc. Email: ayesha.ibd@gmail.com