Pakistan: a mixture of Shariah and law

Loopholes for legally committing crimes

Pakistan has had a tumultuous journey to the country that it is today. And since its inception it’s been plagued with a disaster identity crisis. In the same vein, while the nation prides itself on being an Islamic Republic it has failed to settle down with a single coherent ideology. The effects of this are now becoming more obvious in the context of its legal system. The recent pardoning of Shahrukh Jatoi by the heirs of the murdered Shahzeb Khan has once again brought to light the disturbing manner in which the Shariah system can be manipulated through power play.

Shariah is not the primary basis through which laws are created or developed in Pakistan, nor is it the dominant influence in the constitution. It is, however, imposed in the country through different provisions and acts made over the course of the nation’s existence. Despite the fact that Shariah provisions are not many in number, they supersede any other part or stipulation of the constitution. Despite the creation of a Federal Shariat Court (FSC) a grand debate rages on what truly lies within Shariah and what does not. In the case of Shahrukh Jatoi and Shahzeb Khan the recent turn of events lies absolutely, and unfortunately, within Islamic law.

Most felt that something was off as Jatoi celebrated his own death sentence only a few weeks ago, so it’s not shocking that he’s been pardoned in the name of Allah by his victim’s parents. Amidst great hue and cry over the outcome, Islamic scholars have concluded that the exoneration will stand. This is a legal system that allows one man to murder another with great facility – provided he has enough money in the bank account or enough clout or both. This is a legal system that is terribly flawed. Anywhere else in the world (sans Shariat following countries) there was no question of such an outcome taking place.

With witnesses and evidence stacked against him, Jatoi was sure to rot in a jail cell for his crime. However, in Pakistan, a family can be pressured into forgiving their own son’s killer ‘in the name of Allah’. When such an option exists it’s only a matter of who has more power and not a matter of what legal clauses can be pursued.

In Pakistan men can also legally rape women, and the credit can in part be delivered to Shariah laws again. If the Mazar Rape case was anything to go by, then all a rapist has to do is commit the act. Pakistan’s ridiculous legal stance on rape stems from the 1979 Hudood Ordinance courtesy of the Zia regime. During the Musharaf era of pseudo-enlightened moderation the bill was revoked in favour of the 2006 Women’s Protection Bill. While it sounds like an improvement on its predecessor the 2006 bill does nothing to change the legal stance on rape.

The ruling for the Mazar Rape case acquitted all three accused for lack of proof, in spite of the glaring testimony in the form of DNA evidence against the perpetrators. The courts along with the Council for Islamic Ideology of Pakistan concluded that DNA evidence is not admissible in a rape case against a rapist when it is admissible in paternity disputes.

It has been long since argued that the orthodox Islamic stance on rape is not the one being practiced through the Pakistani legal system. While some see this as a manipulation of Shariah, others term it a shortcoming of the legal framework itself. The fact remains that there is a problem and it’s a problem that is yet to be fixed.

Rape and murder are joined by their sibling blasphemy in this confusing mix. The blasphemy law puts forth that anyone accused of blasphemy i.e., disrespect of any religion, can be brought to punishments ranging from a fine to death. The problem is that almost all blasphemy cases that have come to light thus far have targeted non-Muslims. Many have additionally turned out to be the result of personal gain or enmity where being a non-Muslim has landed one party at the shorter end of the stick. Rimsha Masih’s case elucidated just what a disaster this particular manipulation of Shariah law can be.

The conundrum – for both liberals and Islamists alike – is that the argument can be made for and against blasphemy quite convincingly, using nothing but Islamic scripture. The two divergent views can both be taken into the context of Islam and proven. Setting that aside we have to understand the utility of the law itself. In its present form the blasphemy law only appears to exist to torment those of a different faith within Pakistan.

It is also exceedingly ironic that Pakistan, which is a UN charter signatory, promises equal rights to its citizens – rights which it cannot practically deliver under Shariah clauses that supersede all others. This is a country where Ahmadis are non-Muslims while atheists/agnostics do not exist. Minorities are routinely harassed in addition to everything else and everything is justified under some Shariah clause or the other. Equal rights would permit people to identify with religions as they see fit.

What we need to realize is that we cannot cherry pick parts of the Shariah that are amenable to some and parts that we don’t agree with. In Pakistan a staggering majority of people agree that Shariah law should prevail, but an equally staggering majority of the same people have no idea what the said law would entail when implemented in full. In essence, if Pakistan is to be an Islamic Republic then it needs to embrace Shariah, if it is to be something else then it needs to stop referring to itself as an Islamic Republic. We cannot lament the outcome of a Shariah decision, such as that of Jatoi’s acquittal in the name of God, while promoting Shariah.

The writer is a journalist based in Lahore. She can be emailed at [email protected]. She tweets @luavut