The conceptual and logic related problems in applying Islamic law in Pakistan

shaikh

Minister (2k+ posts)
The print mediais filled upto its brim with complaints that orders of superior courts are not followed in letter or spirit by thegovernment . It is entirely pertinent tostate at this point that a institution of state be it judiciary which does not have rock soliddiscipline within itself is unlikely to prevail upon other governmental institutions however strong may be its ownlegitimacy .

For example , Atone time in colonial rule there wereactive office of the senior inspection judges , it is unheardoff now that someone from higherjudiciary inspected a far off court to review any functioning or decisions or matter of lower courts and later dismissed or suspended such and suchjudges , rather all disciplinarymeasures are made in city offices .

There is no control of field itself ofhinterland .It is considerednormal for any court reader , typist orrelated subordinate of the any junior judge to charge extra for any signed copy of judgement in capital cites right under nose of thesupreme court . This amount covers the "Cha Pani" of the office orreader or, even the judge nobody knows.Does that amount to discipline , it does not .

Suppose a lower court civil judge is not following the requisite procedure for a legal matter and case is ongoing , now if either of the litigant parties to the matter goes to the supervisory session judge or senior civil judge , thetradition definitely is not of promptaction , rather a senior judge or session judge will clearly state that he does not interfere in the judicialadjudication of junior judges , which is clearly absurd as a junior judge canonly gain experience if that experienceis supervised by a senior judge but opposite is the tradition .

It is like a trainee getting training without a trainer .Many examples can be quotedrest assured . Even if a complaint is sent to chief justice of a province youwill never receive a reply in any reasonable time period , some one will arrangefor application to be rejected for want of this or that .A good exampleof junior judiciary following a parallel set of rules with no attention to Lawtext or precedents and orders andpractises of the higher courts including supreme court is "The Illegal Dispossession act2005" .

For example in 2007AD byvirtue of a landmark judgement byjustices of the supreme court , illegal occupations of all immovable types of property without distinction were interpreted to be covered under criminal law by way ofthe "The illegal dispossession act 2005". Now since such proceeding under this act are to be heard bythe session courts so despite precedents , session courts write in their decisions all types of alreadyoverturned arguments to get rid ofadjudication of such cases , allmeant not to provide relief to litigants who lodge cases under theact rather this action is meant so that not too many legal cases come totheir courts and people use civil suits to be heard by junior judges instead .

A case of avoiding work load that is .Ahelp to criminal again right under nose of supreme court . Parliament made thelaw , sometimes supreme court itself violate both the text of law and the its own precedent of law. Any reader is mostwelcome to argue , we will give examples . Todate it is notpossible for any one to know if any legal matter is pending in any court ofPakistan against him except for higher courts as no central reporting system exists except faulty functioning website of higher courts only . All thisdespite eating up of most of the hundreds of millions of Rupees of funds of "Access to justice" programme

. If supreme court hastimely audit of this in itself willraise the prestige of the higher courts .Alas , thingsare not too rosy , so even the basics of modern justice are not clear tojudiciary itself , for example , in countries where the state appoints its own judicial officers(AG, DAGs etc) for representinggovernment's view points in courts , such cases are not decidedby merely another legal officer of thestate such as a state judge as inPakistan but it shall be decided by an impartial jury in trial court .

In Pakistan both judgeand state attorney generals and deputy and assistant attorney general are governmentalchaps so there is no possibility of justice to third party which may be private citizen .Notonly that even these state officers i.e DAG, AAG, are allowed private practises against fellowcitizens . some thing which if policeSHO does the later gets into jail at hands of this veryjudiciary.

Even thesacrosanct laws of Quran are sometimes codified in a way which remainunclear as to the aim of legislation ,for example some Islamic statues which were incorporated in Pakistan Penal code , thenthey merely added punishments to existent punishments and bore no respite to humanity as intended in Quran .For example in Qisas and diyat , instead of replacing existent PPC sections altogether , these laws were added to PPC as subsections , thuseven after settlement under Islamic principles the state still remained a party and jail punishments was addable a matter resolved under Quraniclaw .

This made a mockery of the spirit of Islamic law .statutes which regard amatter settled by a Islamic statute as acomprehensively settled matter and thusre-opening under alibi of state as a party is a kind of the blasphemy .Pakistan's Jailpunishmetns are a kind of kingly punishment , jail punishments are NOT the main form ofpunishments in Quran or Islamic law ,whereas they are the bedrock of thePakistan's criminal code .

A person sent to jail for any matter is made tobreak the covenant and duty of care to his children father, mother brother ,sister and near community to satisfy punishmentrequirements of some other crimes . It does not tally with system ofsimultaneous observances of duty toevery body and a punishment unless for a grevious crime must not interfere withduties of person to community . In Islamicsystem , matter of outstanding levy or debt cannot convert to more jail terms , only debt has to be arranged toreturned , in our system it is assumed that jail term is somehow a replacementof money siphoned off .

It is not.Serious conceptual errors exist in the whole judicial structure of Pakistan .Even in theconstitution of Pakistan there are a few contradictory clauses , on one hand we incorporate objectiveresolution and consider Islam as the most superior doctrine of law to befollowed , yet under constitution at present we allow propagation of otherreligions i.e other's doctrines to ourown people . I would say thatall said and done judiciary shall be not able to enforce its rulings if itcannot offer discipline is its own rank .

Pakistan actually needs a newconstitution to correct some of the serious flaws , for example our judicialstructure is province and thus by default race based , this emanates fromconstitution whereas in Islam such distinctions of provinces based on race areerroneous and pre-Islamic practise . Similarly the limitations put onunfettered, perpetually inheritable property right of Islam are severely curtailed by the constitution ofPakistan where state in larger cities are offering not more than 99 year leasesfor property bought by citizens atastronomical price for which the state cannot get more anyway at the time .

Agood example is Islamabad , property was forcibly bought from originalresidents and paid 70/- rupees per canal to them in early sixties. Some gotabout Rs 4 /canal . Then at 100 times this price the land was so called“Leased” for various terms to others. Market price of the land was much lowerthan what was asked of subsequent allotees . So by Islamic concept since CDAcould not get any price more than what CDA got so essentially it sold theproperty , a sold property is a sold property, one cannot get full price andsay that it rented the land also. State of Pakistan does not believe inperpetual property rights of Islam .

Prophet of Islam’s first question aboutland of first mosque was who owned the land . Besides selling (Leasing they say) land at 100 times price is Riba .In essence theproblem is not just the non enforcementof judicial discipline but of fundamental concepts of Islamic law and personal freedoms bogged down by a disjointedconstitution trampled eighteen times and needing repairs if not and better still a new constitution . The constitution of Pakistan as it stands now is anegg which will every time an egg of this type as now and will not allow reformation of judicial and even health or educational system of Pakistan , it will rather destroy it .


 
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