OVER A COFFEE : Shahzeb case: auctioning the dead — Dr Haider Shah
If we wish to retain the Qisas and Diyat law, we need to bring it in conformity with the morality of the present day world
When the TV channels sensationally revealed that the parents of the murdered young man Shahzeb Khan had forgiven the ‘proud’ killers of their son in the name of Allah, everyone seemed to be shell-shocked. I was not one of those though, as without claiming to be a clairvoyant I had already predicted this outcome in my column titled, “Jessicafication of the Shahzeb case” (Daily Times, January 12, 2013). We are, however, used to not seeing the wood for the trees. In ‘greedy’ parents, we have found a convenient scapegoat for offloading our chests.
Using the Raymond Davis, Jessica Lal and Samia Sarwar cases as case studies, I had proposed three causes of failure of the criminal justice system in my January piece. First, the case is damaged by the investigative agency by its dishonest use of power. Second, even if the police are not complicit, the accused use their influence through threats or bribery, purchase witnesses and other pieces of evidence, and hence secure a favourable judgment from the court. Third, when even these efforts fail to defeat the criminal justice system, the law itself can provide an escape route as we saw in the cases of Davis and Sarwar. I had predicted that even if the first two factors failed, the accused would walk free using the open gate of the Diyat provision (compensation payable to the victims or their legal heirs) in the law.
Centuries ago, a famous female mystic, Rabia Basri, had expressed her desire to torch paradise and extinguish hell so that ordinary people are freed from the slavery of two self-seeking passions of greed and fear. We are unable to feel the urge to call for changing laws that help rapists and murderers go scot-free in the 21st century because we are fearful of a certain group of people who monopolise the business of issuing visas to paradise and hell. Only after overcoming these fears can we have a fresh look at the role of laws in any society. Laws are like medicine. Just as every medicine needs regular re-evaluation to remedy its side effects, every law needs updating once its loopholes and shortcomings become evident. There is neither a single magical cure for all times nor are there any fixed laws forever.
Laws originate from local customs and notions of propriety. Their general acceptance helps ensure the stability of a community. Like humans, cultural norms are also organic in nature and they keep evolving. For instance, Juliet, the love of Romeo, is a 13-year-old and is still taunted by her mother for not getting married. Moreover, no girl could then do the role of Juliet as in Shakespearean times appearance of women on stage was considered a social taboo. Hence young boy actors would do the female roles. Today, the mother of Juliet would be booked for a child marriage offence as the notions of right age for consensual sex have undergone a big change. Similarly, Juliet would have found herself excluded from her voting rights by the Great Reform Act, 1832, and would have to struggle till 1928 to exercise this right at par with her male counterparts. Considering another example, in India, when in 1890 the British government raised the age of consent from 10 to 12, after the death from haemorrhage of a 10-year-old Hindu bride, both Hindus and Muslims found common ground to oppose the change in law, terming it as an attack on their religions and culture. Today, however, even in Pakistan if any child of 10 is married the parents or guardians would be arrested, no matter how many religious citations are made by the offender.
In the tribal Arab society the case of murders or other bodily harm was viewed as a wrong against the person or his heirs, as in tribal societies the notion of the state is underdeveloped. In many tribal societies of the world the wrong against a person was settled either by returning the wrong in equal terms (Qisas) or by payment in kind or money (Diyat). In developed countries both of these remedies are also exercised. However, it is the state that assumes the role of a complainant and prosecutor at the criminal level stage. In religious terms perhaps the notion of fasad fil arz (creating anarchy) comes closer to the essence of a secular criminal system. The Diyat principle is practised not as an option but as a separate legal procedure where the claim of ‘wrongful death’ is filed against the accused as a civil action to claim damages by the heirs of the deceased.
If we wish to retain the Qisas and Diyat law, we need to bring it in conformity with the morality of the present day world. Instead of using Qisas and Diyat as two separate options, these should be merged. Qisas should be the basis of criminal prosecution by the state while Diyat should become the basis of civil action by the legal heirs of the deceased. God has given us the faculty of thinking. He will be very happy if we put it to some use. We also need to develop courage to pass all our laws through the filter of rationality and rescue our legal system by removing the insertions made by a military dictator to please a religious lobby that formed an important part of his support base.
The writer teaches public policy in the UK and is the founding member of the Rationalist Society of Pakistan. He can be reached at email@example.com