Monday, April 20, 2009

What Sharia Regulation in Swat Stands for?

Sharia regulation in Swat
By Tahir Wasti; Dawn, 20 April, 2009

NO one can deny the enormously serious political impact that the Sharia regulation will have. Our major political parties bury their heads in the sand when a meteorite hits our political landscape and jolts our whole constitutional infrastructure. Alongside the adverse effects it will have on the overall governance of the state, the Nizam-i-Adl regulation will have widespread legal repercussions.

A reading of the text of the Regulation 2009 indicates that members of our parliament hurriedly passed the resolution without exerting their right of reading and carefully studying several provisions of the regulation. The regulation lacks all the essential qualities of good legislation: clarity, accuracy and constitutionality. Ambiguity and vagueness ruin the very purpose of the legislation and are the two qualities that one may find floating on the surface of this law.

Had Mr M.D. Tahir been alive he certainly would have challenged this law under the constitution as it makes not only various constitutional provisions redundant but also marginalises the role of constitutional bodies, for instance, the Islamic Ideology Council, and even parliament.

According to the 1973 Constitution, as it was originally drafted, to legislate law in consonance with the Quran and Sunnah is the task assigned to parliament. Even when Zia amended the constitution and established the federal sharia court (FSC) and granted it the power to examine laws on the touchstone of the Quran and Sunnah (Article 203D), the FSC was bound to refer the matter to the president to make amendments in case the court found any law or its provision repugnant to the injunctions of Islam.

The FSC is not empowered to make law and proclaim that this law will now be applicable. In the absence of such a provision, when qazis will declare any law un-Islamic, they will also assert what the Islamic law is. Then, their version of Islamic law will begin to apply.

To pass on this burden of legislation to qazis is delegating their responsibility to individuals who will enforce their personal interpretation of Sharia on others. It is beyond comprehension as to how and on what basis the parliament can pass on its role of legislation to another body of the state, more so when the authority is passed to individuals, who have neither technical education nor the experience of dispensation of justice, keeping in view the fundamental human rights enshrined in our constitution.

Anyone who has not been educated about the Pakistani constitution and various other fundamental procedural statutes and their principles cannot dispense justice that is in consonance with our basic law and the treaties that Pakistan has signed in the UN. Sharia under Section 2 (j) of this Regulation means: ‘the injunctions in Islam as laid down in Quran, Sunnah, ijma and qiyas’. Now what are these injunctions? Where is codification of these injunctions? Most lay Muslims believe that whatever law, ritual and custom they practise in their everyday life, including wife-beating, killing in the name of honour, depriving women of higher education, are based on these four sources of law.

For complete article, click here

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