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Islamic Law in Practice: The Application of Qisas and Diyat Law in

Tahir Wasti*

1 INTRODUCTION

The phrase “the Islamisation of law”, according to Al-Muhairi,1 is used in Islamic countries2 to refer to the offi cial programme of replacing laws of ‘western origin’ with laws based on ‘Islamic’ sources. This term connotes wider meaning in case of Pakistan. It is not confi ned to the replacement of western codes with Islamic ones but includes the making of new institutions of state, laws, and even Constitutions, in consonance with the injunctions of Islam. Since the establishment of Pakistan in 1947, there has been a confl ict between ‘traditionalist’ and ‘non-traditionalist’ forces in the country over whether an Islamic order should be enforced in the country or whether it should be allowed to develop along secular lines as a modern nation state. This struggle has some linkage with, if not its roots in, the movement for Pakistan. “Pakistan was achieved in the name of Islam” has been the popular slogan of the traditionalist ulema3 in Pakistan, irrespective of whether or not they had taken part in the movement for a separate homeland. Even the ‘indifferent’ Abul Ala Maududi (1903–79) had said, “why should we fool- ishly waste our time in expediting the so-called Muslim-nation state and fritter away our energies in setting it up, when we know that it will not only be useless for our purpose, but rather prove an obstacle in our path”.4 However, while delivering a speech at the Law College, Lahore, on January 6, 1948, he moved away from his

* PhD, SOAS, University of London, Senior Lecturer, Islamic College for Advanced Studies, Middlesex University, London. 1 Butti Sultan Butti Al-Muhairi, ‘Islamisation and Modernization within the UAE Penal Law: in the Modern Era’, Arab Law Quarterly, 35, 1997. 2 Islamic states are those whose Constitutions declare it to be Islamic or Muslim. 3 Ulema is plural of alim. The literal meaning of alim is ‘learned in Islamic theology’. It is also used to mean ‘religious leader’; I have used the word in this sense. 4 Abul Ala Maududi was one who did not support the Congress unlike other ulema like Rashid Ahmad Gangohi, Ataullah Shah Bokhari, Maulana Hussain Ahmad Madni, yet criticised the Muslim League and its leaders vehemently for their stance on the idea of Pakistan. That is why he has been viewed as ‘indifferent’ to the Pakistan movement by some authors. For details see, I.H. Qurashi, Ulema in Politics, Lahore, 1972, and Khalid bin Saeed, Pakistan: The Formative Phase, Karachi, 1960. 98 Tahir Wasti previous stance: “. . . it [Pakistan] has been achieved exclusively with the object of becoming the homeland of Islam”.5 It was only in 1979 that for the fi rst time a head of government declared that Pakistan had been created for the sake of Islam. While introducing the notorious Laws6 on August 14, 1979, Gen. Muhammad Zia- ul-Haq7 proclaimed that Pakistan had been achieved to become an Islamic state and promised to enforce an Islamic order in the country. The establishment of Shariat Benches dealing with Shariat (Islamic) law in every provincial High Court of the country was the most signifi cant outcome of that policy. In 1980 was created the to examine “whether or not any law or provision of a law is repugnant to the injunctions of Islam, as laid down in the holy and Sunnah”.8 The process of the Islamisation of law has been opposed by ‘non-traditionalists’ on the authority of the writings and speeches of the leaders of the movement of Pakistan. Mohammad Ali Jinnah (1876–1948) who led the movement for Pakistan and who is honoured as the Father of the Nation, had maintained that the new state would be a modern democratic state, with sovereignty resting in the people, and with every member of the new nation having equal rights of citizenship regardless of religion, caste creed. As Jinnah himself put it in a radio interview in 1947: “nationality, rather than religion, is the basis for a separate homeland for the Muslims of India”.9 The statement often quoted as proof of the ideology that created Pakistan, ‘Pakistan ka matlab kya, La Ilahlah Illallah’ (‘what does Pakistan mean? Pakistan means that there is no God other than Allah’) was in fact one that had never been raised in the plat- form of the Muslim League. An election slogan coined by a Sialkot poet during the 1945 elections to decide the partition of India, it was vehemently opposed by Jinnah himself at the fi rst and last meeting of the All Pakistan Muslim League10 held under his chairmanship in 1947. The incident is quoted in the memoirs of a member of the Council of the Muslim League: During the meeting, a man, who called himself Bihari, put to the Quaid that “we have been telling the people Pakistan ka matlab kya, La Ilaha Illallah.” “Sit down, sit down,” the Quaid shouted back. “Neither I nor my working committee, nor the Council of the All India Muslim League has ever passed such a resolution wherein I was committed to the people of Pakistan. Pakistan ka matlab, you might have done so to catch a few votes”.11

5 Abul Ala Maududi, The Islamic Law and its Introduction in Pakistan, Lahore, 1960, p. 10. 6 These were fi ve Ordinances pertaining to the establishment of Islamic criminal law: (1) The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 (VI of 1979); (2) The Offences of (Enforcement of Hudood) Ordinance, 1979 (VII of 1979); (3) The Offences of Qazf (Enforcement of Hudood) Ordinance, 1979 (VIII of 1979); (4) The Prohibition (Enforcement of Hudood) Ordinance, 1979 (VIII of 1979); (5) Execution of the Punishment of Whipping Ordinance, 1979. 7 Mohammed Zia-ul-Haq was the head of Government in the period 1977–88. 8 Article 203D was added to the Constitution of 1973. It stipulated that the Court, at the request of a citizen or the government, will carry out this examination and can rescind any law or provision which it fi nds repugnant to the injunctions of Islam. 9 Edward Mortimer, Faith and Power, London, 1982, pp. 188–89. 10 The Muslim League, a political party founded in 1906, led the movement for the creation of Pakistan. Jinnah was its most prominent member. 11 Malik Ghulam Nabi, Daghon ki Barat, cited in Ahmad Bashir, ‘Islam, Shariat and the Holy Ghost’, Frontier Post, Peshawar, 9.5.1991.