What is the source of Authority? Some might believe it is God, the people or somewhere in between. Quran, The Holy Book of Islam only regulates God's Legal Limits, an absolute, universal and timeless legal limits. Everything else is decided through legislation made by interested parties. This legislation can be in the form of treaties, constitutions, experts consensus and traditions. Traditions includes Prophet's and His Companions traditions called Sunnah.
There are at least three forms of government in the modern day Islamic State.
- Madinah: A form of government pioneered by Prophet Muhammad. Madinah literally means Civil Society. This type depends on treaties or constitutions to formalize Quran as source of Law. This treaties or constitutions does not required to mention Islam nor Quran, see s:Constitution of Medina (well known as Mithaq-e-Madina)
- Khalifah: A form of government pioneered by Prophet Muhammad's successors. Khalifah literally means successor. This type does not requires any written treaties nor constitutions. Quran and Sunnah is sufficient as source of law. The interpretations of those sources are depends on the ruler or experts appointed by the ruler.
- Imamah: A competing form of government Type against Khilafah, pioneered by the follower of the Fourth Khalifah. His followers believes that he should be the First Khalifah instead. Basically similar to Khilafah system, but the leader should be the descendants of Prophet Muhammad. Imam literally means leader.
Islamic Sacred Law or Sharia is a form of Legislation in the modern day Islamic State. Sharia literally means water source. The interpretation of Sharia depends on the form of government of a particular modern day Islamic State. Experts consensus is sufficients to formalize Sharia in Khilafah or Imamah form of government. Mutual treaties or people referendum is a must to formalize each item in Sharia, in Madinah form of government.
Some experts argue that Madinah is an obsolete form of Government because it is formed while delivery of Quran is not yet completed. But Madinah is de facto most popular form of government in the modern day Islamic States, relatives to the popularity of Khilafah and Imamah form. Until the fall of Ottoman Empire, a single Khilafah Empire rules a wide region between the modern day Spain to the modern day Iraq. These experts wish to form a single Khalifah Empire back again.
This book wishes to discuss legislation on modern day Islamic State. This book will focus on Malaysia, Arab Saudi and Iran as representatives of those three forms of Government. Similar Legislation also implemented in Pakistan, some part of Canada and some part of Indonesia.
On December 2, 1978, General Muhammad Zia-ul-Haq delivered a nationwide address on the occasion of the first day of the Hijra calendar. He did this in order to usher in an Islamic system to Pakistan. In the speech, he accused politicians of exploiting the name of Islam, saying
- many a ruler did what they pleased in the name of Islam.
After assuming power the task that the government set to was its public commitment to enforce Nizam-e-Islam (Islamic System) a 180 degree turn from Pakistan's predominantly Anglo-Saxon Law. As a preliminary measure to establish an Islamic society in Pakistan, General Zia announced the establishment of Shariah Benches. Speaking about the jurisdiction of the Shariah Benches, he said,
- Every citizen will have the right to present any law enforced by the government before the "Shariah Bench" and obtain its verdict whether the law is wholly or partly Islamic or un-Islamic.
But General Zia did not mention that the Shariah Benches' jurisdiction was curtailed by the following overriding clause: " (Any) law does not include the constitution, Muslim personal law, any law relating to the procedure of any court or tribunal or, until the expiration of three years, any fiscal law, or any law relating to the collection of taxes and fees or insurance practice and procedure." It meant that all important laws which affect each and every individual directly remained outside the purview of the Shariah Benches. However, he did not have a smooth sailing even with the clipped Shariah Benches. The Federal Shariah Bench declared rajm, or stoning, to be un-Islamic; Ziaul Haq reconstituted the court, which then declared rajm as Islamic.
Under Offenses Against Property (Enforcement of Hudood Ordinance 1979), the punishment of imprisonment or fine, or both, as provided in the existing Pakistan Penal Code for theft, was substituted by the amputation of the right hand of the offender from the joint of the wrist by a surgeon. For robbery, the right hand of the offender from the wrist and his left foot from the ankle should be amputated by a surgeon. Hudood ( Arabic حدود, also transliterated Hadud, Hudud; plural for Hadh, حد, limit, or restriction) is the word often used in Islamic social and legal literature for the bounds of acceptable behaviour.
In legal terms (Islamic law being usually referred to as Sharia, شريعة) the term is used to describe laws that define a level of crime classification. Crimes classified under Hudud are the most severe of crimes, such as murder, theft, and adultery. There are minor differences in views between the four major Sunni madhhabs about sentencing and specifications for these laws. It is often argued that, since Sharia is God's law and states certain punishments for each crime, they are immutable. However, with liberal movements in Islam expressing concerns about hadith validity, a major component of how Islamic law is created, questions have arisen about administering certain punishments. Incompatibilities with human rights in the way Islamic law is practiced in many countries has led many to call for an international moratorium on the punishments of Hudud laws until greater scholarly consensus can be reached. It has also been argued by some that the Hudud portion of Sharia is incompatible with humanism or human rights.
Drinking of wine (i.e. all alcoholic drinks) was not a crime at all under the Pakistan Penal Code. In 1977, however, the drinking and selling of wine by Muslims was banned in Pakistan and a sentence of imprisonment of six months or a fine of Rs. 5000/-, or both, was provided in that law. Under the Prohibition Order, these provisions of law were replaced by the punishment of eighty stripes, for which an ijma of the companions of Muhammad ever since the period of the Second Caliph Umar, was cited. However, the law does not apply to non-Muslims, who can possess a license to drink and/or manufacture alcoholic beverages from the government. The most famous of these is the Murree Brewery.
Adultery (Zina) OrdinanceEdit
Under the Zina Ordinance the provisions relating to adultery were replaced as that the women and the man guilty will be flogged, each of them, with a hundred stripes, if unmarried. And if they are married they shall be stoned to death. It was argued that the section 497 of the Pakistan Penal Code dealing with the offense of adultery provided certain safeguards to the offender in as much as if the adultery is with the consent or connivance of the husband, no offense of adultery was deemed to have been committed in the eye of law. The wife, under the prevailing law, was also not to be punished as abettor. Islamic law knows no such exception.
Women bore much of the burden of Zia's Islamization and its inconsistencies. The Zina Ordinance prompted bitter international criticism about the perceived injustices and miseries brought about by the Zina Ordinance. Women's rights groups helped in the production of a film titled "Who will cast the first stone?" to highlight the oppression and sufferings of women under the Hudood Ordinances. In September 1981, the first conviction and sentence under the Zina Ordinance, of stoning to death for Fehmida and Allah Bakhsh were set aside under national and international pressure.
In many cases, under the Zina Ordinance, a woman who made an allegation of rape was convicted for adultery whilst the rapist was acquitted. This led to a growing demand by jurists and women activists for repealing the Ordinance. In 1983, Safia Bibi, a 13-year-old blind girl, who alleged rape by her employer and his son was convicted for adultery under the Zina Ordinance whilst, the rapists were acquitted. The decision attracted so much publicity and condemnation from the public and the press that the Federal Shariah Court of its own motion, called for the records of the case and ordered that she should be released from prison on her own bond. Subsequently, on appeal, the finding of the trial court was reversed and the conviction was set aside.
In early 1988, another conviction for stoning to death of Shahida Parveen and Muhammad Sarwar sparked bitter public criticism that led to their retrial and acquittal by the Federal Shariah Court. In this case the trial court took the view that notice of divorce by Shahida's former husband, Khushi Muhammad should have been given to the Chairman of the local council, as stipulated under Section-7(3) of the Muslim Family Laws Ordinance, 1961. This section states that any man who divorces his wife must register it with the Union Council. Otherwise, the court concluded that the divorce stood invalidated and the couple became liable to conviction under the Zina ordinance.
The International Commission of Jurists mission to Pakistan in December 1986 called for repealing of certain sections of the Hudood Ordinances relating to crimes and "Islamic" punishments which discriminate against women and non-Muslims. The commission cited an example that a Muslim woman can be convicted on the evidence of a man, and a non-Muslim can be convicted on the evidence of a Muslim, but not vice versa.
The Pakistan Penal Code (PPC) and the Criminal Procedure Code were amended, through ordinances in 1980, 1982 and 1986 to declare anything implying disrespect to Muhammad, Ahle Bait (family of the prophet), Sahaba (companions of the prophet) and Sha'ar-i-Islam (Islamic symbols), a cognizable offence, punishable with imprisonment or fine, or with both.
Religious Offences and PunishmentsEdit
Use of derogatory remarks etc., in respect of holy personages
|3 years imprisonment, or with fine, or with both|
|298B||Misuse of epithets, descriptions and titles etc., reserved for certain holy personages or places, by Ahmadis||3 years imprisonment and fine|
|298C, or Ordinance XX||An Ahmadi, calling himself a Muslim, or preaching or propagating his faith, or outraging the religious feelings of Muslims, or posing himself as a Muslim||3 years imprisonment and fine|
|295||Injuring or defiling places of worship, with intent to insult the religion of any class||Up to 2 years imprisonment or with fine, or with both|
|295A||Deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious beliefs||Up to 10 years imprisonment, or with fine, or with both|
|295B||Defiling, etc., of Quran||Imprisonment for life|
|295C||Use of derogatory remarks, etc; in respect of Muhammad||Death and fine|
These laws to this day are controversial and under fire by human rights organizations all over the world and have been questioned by Liberals and Moderates in Pakistan as well. The US Assistant Secretary of state, Robin Raphel, testifying before the Senate Foreign Relations sub-committee, on March 7, 1996, said that the United States recognize that the religious parties in Pakistan have "street power" and not "ballot power" and this is a major constraint for the Benazir Bhutto's government to repeal blasphemy laws. She revealed that more than 150 blasphemy cases have been lodged in Pakistan since 1986. Most of these have been brought against members of the Ahmadi community. None of the cases against Ahmadis have resulted in convictions. During the same period, at least nine cases have been brought against Christians and nine against Muslims. There have been convictions in some of these cases, but no one has been executed under the law's mandatory death penalty. Some convictions have been overturned and several individuals are currently appealing their convictions.
The Lahore High Court, on February 22, 1995, acquitted Salamat Masih and Rehmat Masih of blasphemy charges. They were sentenced to death by a Sessions Judge on February 9, 1995, for allegedly writing blasphemous words on the wall of a mosque in 1993. The death sentence was quickly overturned following an international uproar. During the appeal hearings there were almost daily demonstrations by small religious groups demanding that the sentence should be carried out. After the judgment, all religious groups observed a protest day throughout Pakistan to protest against the acquittal.
The year 1995 also witnessed a ghastly incident of religious frenzy, when Dr. Sajjad Farooq was beaten to death by people outside a police station in Gujranwala. He was declared an apostate and accused of having desecrated the Qur'an. Dr. Farooq, who was later reported by the press to be a staunch Muslim, was dragged out from the police station where he was lodged and stoned to death by frenzied mobs. On the basis of a rumor, apparently circulated by someone out of personal enmity, he was proclaimed to be a Christian through the loud-speakers of the mosques in his locality.
Instructions were issued for regular observance of prayers and arrangements were made for performing noon prayer (Salat Al Zuhur) in government and quasi-government offices and educational institutions, during office hours, and official functions, and at airports, railway stations and bus stops. Today, in practice, people are usually free to skip prayers in government institutions.
Reverence for fasting OrdinanceEdit
An "Ehtram-e-Ramazan" (reverence for fasting) Ordinance was issued providing that complete sanctity be observed during the Islamic month of Ramazan, including the closure of cinema houses three hours after the Maghrib (post-sunset) prayers.
Definition of MuslimEdit
By amending the constitution, General Zia also provided the following definition of a Muslim and a non-Muslim:
- (a) "Muslim" means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophet hood of Muhammad, the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed to be a prophet in any sense of the word or of any description, whatsoever, after Muhammad (P.B.U.H).
- (b) "Non-Muslim" means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Buddhist, or Parsi community, a person of the Qadiani Group or the Lahori Group (who call themselves Ahmadis), or a Bahá'í, or a person belonging to any of the scheduled castes.
Zia's Islamization of EconomyEdit
Within the framework of Islamization of economy, the National Investment Trust and the Investment Corporation of Pakistan were asked to operate on equity basis instead of interest as of July 1, 1979. Interest-free counters were opened at all the 7,000 branches of the nationalized commercial banks on January 1, 1980. But interest-bearing National Savings Schemes were allowed to operate in parallel.
Zakat and Ushr OrdinanceEdit
The Zakat and Ushr Ordinance was promulgated on June 20, 1980 to empower the government to deduct 2.5% Zakat annually from mainly interest-bearing savings and shares held in the National Investment Trust, the Investment Corporation of Pakistan and other companies of which the majority of shares are owned by the Muslims. Foreign Exchange Bearer Certificate scheme that offered fixed interest was exempted from the compulsory Zakat deduction. This ordinance drew sharp criticism from the Shia sect which was later exempted from the compulsory deduction of Zakat. Even Sunnis were critical of the compulsory deduction and the way Zakat was distributed.
On December 13, 1980, to the surprise of General Zia, the Federal Shariah Court declared the land reforms of 1972 and 1977 as eminently in consonance with Islamic injunctions. Then the Ulema were brought in who traditionally supported the landlord class. Three Ulema were inducted into the Federal Shariah Court and two into the Shariah Appellate Bench of the Supreme Court which reversed the FSC judgment in 1990. After the imposition of martial law, many landlords were reported to have told their tenants to seek the protection of their benefactor, namely, Bhutto. Thousands of tenants were forcibly evicted from the land in various districts. The martial law regime made it clear that it was not committed to redistributive agrarian policies and described the land reforms as ordinary politics to reward supporters and punish enemies.
General Zia's advice to the deprived and the dispossessed was that "It is not for the employers to provide roti (bread), kapda (clothes) aur (and)makaan (homes) (referring to a well-known PPP slogan used by Bhutto). It was for God Almighty who is the provider of livelihood to his people. Any increase or decrease in your sustenance comes from Him. Trust in God and He will bestow upon you an abundance of good things in life."
Demands for higher wages, better working conditions, social security, old age benefits and compensation for accidents, were no justification for protests and strikes. Industrialists were assured that any kind of industrial unrest resulting from strikes or any other trade union activity would be suppressed. Maximum punishment to the offenders was three years rigorous imprisonment and/or whipping. On January 2, 1978 police mercilessly killed 19 workers as the management of the Colony Textile Mill in Multan sought assistance from the police in its dispute with the striking workers.
Qisas and Diyat Ordinance 1990Edit
With the passing of the Qisas and Diyat Ordinance in 1990, the victim (or heirs of the victim) of a crime now have the right to inflict injuries on the offender identical to the ones sustained by the victim. The law also allows offenders to absolve themselves of the crime by paying compensation to the victim or their heirs if, and only if, the family of the victim is willing to accept it.
Islamization was sometimes used as a political process. Zia's interpretation of Islam may have contributed to the rise of fundamentalism, obscurantism and retrogression. Since the death of General Zia in 1988, inconsistency and instability has prevailed in Pakistani laws.
Instability means that the law is frequently changing or is under threat of change because of differences of opinion among the ruling factions. Three of the most obvious inconsistencies in Zia's Islamic law are:
- Those between legal norms and socially observed norms;
- Those between statutory legal norms and the norms applied in practice in the courts (e.g. Hadd is difficult to implement as confession, retraction of confession and strict standards of proof make it difficult to execute);
- Those between different formal legal norms (e.g. non-compliance with the Muslim Family Laws Ordinance is compromised by the courts but is strictly punished under the Zina Ordinance). Another example of this contradiction is that the constitution assures women equal status on the one hand but, on the other hand, they are greatly discriminated in criminal law.