|
||
|
||
|
||
|
||
|
||
|
||
From the outset, politics and religion have been intertwined both conceptually and practically in Islam. Because the Prophet established a government in Medina, precedents of governance and taxation exist. Through the history of Islam, from the Ummayyad (661-750) and Abbasid empires (750-1258) to the Mughals (1526- 1858) and the Ottomans (1300-1923), religion and statehood have been treated as one. Indeed, one of the beliefs of Islam is that the purpose of the state is to provide an environment where Muslims can properly practice their religion. If a leader fails in this, the people have a right to depose him.
The process of Islamization that has taken place in Pakistan, especially in the Zia years, has raised considerable concern about criminal law. In 1977 the government of Zulfiqar Ali Bhutto outlawed alcohol and changed the "day off" from Sunday to Friday, but no substantive Islamic reform program was implemented prior to General Zia's Islamization program. Starting in February 1979, new penal measures based on Islamic principles of justice went into effect. These carried considerably greater implications for women than for men. A welfare and taxation system based on zakat and a profit-and-loss banking system were also established in accordance with Islamic prohibitions against usury.
In February 1979, President Zia established the Federal Shariat Court to hear appeals arising from the new code. The Federal Shariat Court also has extensive other powers. It lies within the discretion of the court of first instance to decide whether to try a case under civil or sharia law. If the latter, then the appeals process goes to the Federal Shariat Court, rather than to the high courts.
Sharia law was not intended to replace the criminal code but to bring specific parts of it into accordance with the Quran and the sharia. Its most notable provisions are contained in the hudood (sing., hadd) ordinances promulgated in 1979. The first ordinance deals with offenses against property, the second with zina (adultery) and zina-bil-jabr (rape), the third with qazf (false accusation of zina), and the fourth with prohibition of alcoholic beverages. Under the ordinances, there are two levels of cases: hudood cases, which have particularly strict Islamic evidentiary requirements and call for specific "Islamic" punishments; and tazir cases, where the evidence requirements are less strict and the punishments less draconian.
A later decision by the Federal Shariat Court has made defiling the name of the Prophet Muhammad punishable by a mandatory death penalty. This decision has raised concerns in Pakistan's small Christian community and especially among the badly persecuted Ahmadiyya religious minority. Orthodox Pakistani Muslims consider Ahmadiyyas heretical, and the group has been prohibited from asserting any claim to being Muslim - even the use of everyday Islamic greetings.
As a hadd crime, rape is punishable by hanging; adultery and fornication, as well as qazf, by stoning to death. Crimes against property of substantial value call for amputation of hands or feet. Public drunkenness and, in the case of Muslims, any consumption of alcohol, is punishable by flogging.
For the most part, Islamic punishments have not been carried out, the sole exception being flogging, which has been imposed primarily for tazir crimes, as well as for narcoticsrelated crimes. In addition, alleged political crimes also resulted in flogging during the last period of martial law (1977- 85). Hudood sentences of amputation have been passed but either have been reversed on appeal or have not been carried out. Occasional stonings for adultery have always taken place in tribal and other rural areas, but no sentence of stoning under the 1979 hudood laws has been carried out.
The Federal Shariat Court has been involved mainly with noncriminal matters, aside from the review of hudood convictions, which in most cases the Federal Shariat Court has reversed. In other matters, such as provision of equal treatment under the law and requirement for a standard of evidence, its application of Islamic principles has even served as a liberalizing factor, including in the military justice system. Overall, as of early 1994 Islamic legal intrusions have had only a limited effect on criminal law, although the potential for growth is there, especially under the more activist leadership that the Federal Shariat Court has shown since 1990.
Among the more notable peculiarities of the new enactments is the issue of rape (zina-bil-jabr). On the one hand, the crime is rarely proven because four adult Muslim males of good reputation must appear as witness to the act. If the charge fails, then the woman who has brought it can be punished for false accusation (qazf) or, more commonly, for adultery (zina) herself because through her charge she has admitted an illicit sexual act. In 1991 two-thirds (some 2,000) of the women imprisoned in Pakistan were being held on such charges. This treatment, of course, has a very chilling effect on women who are raped.
Laws passed in the 1980s give the victim of a murder or other violence, or the victim's heirs, the right to inflict an equivalent harm. At the same time, however, there is a legal alternative in payment of blood money, which enables wealthy Pakistanis to avoid punishment by paying money. Under the law, only half of the amount must be paid if the victim is female.
In 1984 parts of the Indian Evidence Act of 1872 were changed with much fanfare to meet Islamic criteria, but there was little substantial change. Demands by Islamic enthusiasts that the testimony of two women be considered the equivalent of that of one man were met only symbolically. The hudood ordinances, however, do contain evidential provisions that discriminate sharply against women.
In May 1991, the National Assembly passed the Shariat Bill, intended to bring the entire justice system into accord with Islamic norms. These norms had not yet been established, and, as of early 1994, no serious attempt had been made to draft and pass the laws and constitutional amendments that would be required. Many observers believed that the act was meant as an empty sop to Islamist extremists, but it seemed likely that there would be constant pressure to implement the act more fully.
A controversial law, Section 295-C of the Pakistan Penal Code, drew a great deal of attention from critics associated with the Human Rights Commission in 1993-94. Introduced in 1986 by Zia, the law, referred to as "the blasphemy trap," states that "whoever by words, either spoken or written, or by visible representation or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Prophet Muhammad shall be punished with death or imprisoned for life and shall be liable to fine." The law extends to Muslims and nonMuslims alike, but it has been indiscriminately used against members of minorities.
According to Amnesty International, several dozen people had been charged under Pakistan's blasphemy laws by early 1994. In all cases, these charges appear to have been arbitrarily brought and to have been based on an individual's minority religious beliefs or on malicious accusations. The current government of Benazir Bhutto, sensitive to Pakistan's image in the world community, has attempted to approve changes in the blasphemy law in order to "curb abuses of the law"--especially those involving false accusations and fabricated cases. Critics claim, however, that Benazir, constantly under attack for being too liberal by the religious right, has been overly cautious and slow to introduce amendments to the law.
Data as of April 1994; Source: Library of Congress Country Studies
-->