NO one can deny the enormously serious political impact that the Sharia regulation will have. Our major political parties bury their heads in the sand when a meteorite hits our political landscape and jolts our whole constitutional infrastructure. Alongside the adverse effects it will have on the overall governance of the state, the Nizam-i-Adl regulation will have widespread legal repercussions.
A reading of the text of the Regulation 2009 indicates that members of our parliament hurriedly passed the resolution without exerting their right of reading and carefully studying several provisions of the regulation. The regulation lacks all the essential qualities of good legislation: clarity, accuracy and constitutionality. Ambiguity and vagueness ruin the very purpose of the legislation and are the two qualities that one may find floating on the surface of this law.
Had Mr M.D. Tahir been alive he certainly would have challenged this law under the constitution as it makes not only various constitutional provisions redundant but also marginalises the role of constitutional bodies, for instance, the Islamic Ideology Council, and even parliament.
According to the 1973 Constitution, as it was originally drafted, to legislate law in consonance with the Quran and Sunnah is the task assigned to parliament. Even when Zia amended the constitution and established the federal sharia court (FSC) and granted it the power to examine laws on the touchstone of the Quran and Sunnah (Article 203D), the FSC was bound to refer the matter to the president to make amendments in case the court found any law or its provision repugnant to the injunctions of Islam.
The FSC is not empowered to make law and proclaim that this law will now be applicable. In the absence of such a provision, when qazis will declare any law un-Islamic, they will also assert what the Islamic law is. Then, their version of Islamic law will begin to apply.
To pass on this burden of legislation to qazis is delegating their responsibility to individuals who will enforce their personal interpretation of Sharia on others. It is beyond comprehension as to how and on what basis the parliament can pass on its role of legislation to another body of the state, more so when the authority is passed to individuals, who have neither technical education nor the experience of dispensation of justice, keeping in view the fundamental human rights enshrined in our constitution.
Anyone who has not been educated about the Pakistani constitution and various other fundamental procedural statutes and their principles cannot dispense justice that is in consonance with our basic law and the treaties that Pakistan has signed in the UN. Sharia under Section 2 (j) of this Regulation means: ‘the injunctions in Islam as laid down in Quran, Sunnah, ijma and qiyas’. Now what are these injunctions? Where is codification of these injunctions? Most lay Muslims believe that whatever law, ritual and custom they practise in their everyday life, including wife-beating, killing in the name of honour, depriving women of higher education, are based on these four sources of law.
Sub-clause 3 of paragraph 6 of the Regulation enables qazis to deal with the cases on the basis of the ‘established principles of Shari’h’. Is there any definitive and exhaustive list of these principles that one may study and refer to? If there is no provision or clear legislation to interpret then qazis are, in effect, empowered to legislate what is Sharia and what are its established principles. This is not the application or interpretation of law, a specific role that is constitutionally assigned to the judiciary. In effect, this is lawmaking.
The sources of law cited in this regulation were employed by the great imams of various Muslim schools of law when they interpreted various commands of the Quran and Sunnah. Generally speaking, this was an exercise in ijtihad carried out by the imams of the majority sects of Pakistan. All of their fatwas, though based on the use of these four sources of Islamic law, are markedly different from each other. In modern times, and especially when we have elected national and provincial assemblies, the responsibility to legislate lies with these bodies, an exercise of the right of ijma. They are duty bound to lay down the law and provide clear legislation to the administration for its application. The judiciary then will make sure that the law is applied in letter and spirit.
According to this regulation the duty to make law has been bestowed upon qazis who would declare what is and what is not in accordance with the Quran, Sunnah, ijma and qiyas. Until a qazi, in a particular case, lays down a ruling the administrative machinery would not be certain if an individual or an agency is acting in accordance or in violation of the injunctions laid down in the four sources of Islamic law.
Even if the administrative authority does exercise its discretion and takes a view, there is no surety that the qazi or qazis above him will agree with that particular interpretation of the sources. This regulation will play havoc with people’s lives as there is no final interpretation of any Islamic injunction and since no one can claim any particular authority over others in a better understanding of the injunctions of Islam.
It was the function of parliament to legislate laws which do not violate the injunctions of Islam and treaties Pakistan is a signatory to. To delegate such an authority to qazis who enjoy ample discretionary powers will espouse sectarian interpretations of Islamic law and dispense injustice. It is a dangerous trend that will influence the members of the judiciary all over Pakistan and they will begin to legislate what they think is based on the ‘true’ interpretation of Islamic injunctions.
Another important character of this piece of legislation that shows its departure from the constitutional norms is the emphasis of the four sources of the injunctions. The constitution does not warrant that laws should be in accordance with the four sources cited in the Regulation. It clearly lays down that the laws must be in accordance with the Quran and Sunnah. The constitution does not permit that a law should be in conformity with one source only. It stipulates that a law be in conformity with both. That is why various legislations for instance, the punishment of stoning to death and consuming alcohol or intoxicants were challenged in the FSC, since both are based only on Sunnah.
The other two sources — qiyas and ijma — were available to the assembly of 1973 and their non-inclusion in the language of the 1973 Constitution means that the assembly was cognisant of the fact that the inclusion of these two sources would breed sectarianism and a polemical interpretation of Islamic laws.
Qiyas and ijma are defined differently not only by various scholars and sects but even the imams of five established schools of thought describe qiyas and ijma in dissimilar forms. Therefore, if an injunction is based on the Quran and Sunnah it may be acceptable to most Muslims but if it is based on qiyas and ijma it will not be acceptable to those who do not accept these two sources of Islamic law.
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