Should murder be a private crime?

The pardoning of American secret operative Raymond Davis, accused of murdering two Pakistanis, against payment of diyat seems to have upset a lot of people. There is the urban-educated crowd, alias the ghairat brigade, which still cannot fathom how an Islamic law was used to let an American murderer go. We are definitely more civil then this to have such a tribal law? Their explanation — it can only be the machination of the cunning Pakistan ambassador in the US, Husain Haqqani.

Then there are others represented by Mufti Muneeb, who think that the law is great, except that it should not have been applied on Davis. And finally, there is the legal fraternity, which has been blowing hot and cold, claiming that this was but a travesty of justice since the law wasn’t correctly applied. Davis didn’t even confess to the murder.

The bigger tragedy is that it has now all blown over and people are not seriously discussing an extremely problematic law, passed off as an Islamic law. For those who think it was unfairly applied, the answer is that this law inherently encourages injustice, and supports and strengthens the strong and rich, versus the poor and powerless. It will help people if they would take some time out and read Pakistani scholar and lawyer Dr Tahir Wasti’s seminal work on the qisas and diyat law, The application of Islamic criminal law in Pakistan (Brill Academic Publishing, 2009), which was basically the brainchild of General Ziaul Haq and his lackeys in the higher judiciary.

The ulema claim that the law is Islamic, but its application and implication cannot be understood without detaching it from the tribal environment that existed at the time of the prophet. The tribes would get into a feud and kill each other, for which the Holy Quran specified the principle of an ‘eye-for-an-eye’. However, the concept of blood money was introduced to contain the continuation of a cycle of vengeance and bloodshed. Later, the Abbasids documented it as part of Sharia. Homicide was a private crime which would be dealt with by the family of the victim rather than as state responsibility.

The concept itself is highly un-Islamic as it creates imbalance in society. Therefore, when the law was being made and debated, Maulanas Shirani and Azam Tariq, and Maulvis Siddique Shah and Mohammad Amin, opposed it. Interestingly, Ziaul Haq did not introduce the law in his lifetime because of its implications, such as that he could not have hung Zulfikar Ali Bhutto because the same law of evidence which applies to qisas and diyat does not allow the use of an approver. The whole concept, which was the brainchild of justices Afzal Cheema (privately called Ibn Taimiya) and Tanzeelur Rehman, became an ordinance in 1990 under Benazir Bhutto’s government (encouraged by Ishaq Khan to please justice Afzal Zullah) and finally a law in 1997 under Nawaz Sharif’’s second regime.

According to the statistics quoted by Wasti regarding the impact of this law, the cancellation of cases increased from 4 per cent in 1981 to 11 per cent in 2000. Similarly, conviction at trial stage fell from 29 per cent in 1981 to 12 per cent in 2000. There is an extensive history of how the lower and higher judiciary and the legal community allowed the law to flourish so that they could make money without making a lot of effort. Wasti’s book shows collusion between the legal community and the law enforcers to apply this law.

Some of the core problems with this law are that the judicial system has no mechanism to ensure that the compromise is genuine. In fact, as was obvious from Manzoor Ahmed versus The State, the court was eager to change the sentence on the basis of an invalid compromise. The former chief justice of the Lahore High Court, Khwaja Sharif, even waived the right of minors to have a share in a compromise. Moreover, in a majority of cases, settlement between two parties was allowed even before the completion of police investigation.

It is a fact that, had it not been for this law, the ISI would not have found an easier way to let go of Davis. But shouldn’t this be held as an opportunity to review a law, which seems to have encouraged instability and violence in the society only because the state and its institutions became party to setting a price for human life, which could be paid by anyone who is powerful? Even divine laws are for a purpose. The goal is to see if the objective is being fulfilled. Otherwise, it is time to review such laws.

Published in The Express Tribune, March 27^th, 2011.