By
Ikram Sehgal
February 5,
2021
The Quaid’s
vision of Pakistan was of Muslims being a nation that was ‘Islamic’ as a state
and as a society. The way democracy and governance thereof has been operated by
Pakistani rulers, we have failed, at least so far, to create that nation, that
state and that society. Citing justice in his writings as the “first virtue of
social institutions”, of which a government is one example, John Rawls
highlights the importance of justice and of its centrality in a “well-ordered”
society. Failing to provide justice equally to all, socio-economic, ethnic and
other differences continue dividing the population. For the state to provide
equal justice to all its citizens is not only according to Western political
theory and ethics but very much at the core of Islam.
In
pre-Islamic times laws to provide justice were unaware of the principle of
equality, mainly because they were made without understanding the will of God.
One such example is the Code of Hammurabi. Named after the sixth Babylonian
king this Code is one of the oldest deciphered laws in the world (1754 BC). It
consists of 282 rules with scaled punishments, adjusting “an eye for an eye, a
tooth for a tooth”. Based on social stratification depending on social status
and gender, of slave versus free, man versus woman, other parts deal with
contracts, business dealing, family law, regulations of government. It was one
of the first formalized codes of law of humanity. While in theory the Code of
Hammurabi was trying to achieve equality, in actual practice singular bias
existed against those categorized in the lower end of the social spectrum.
Justice was not based on equality of men, different laws provided for different
justice for the three classes of men in society: property owners (or the
elite), free men and slaves. Punishments for someone assaulting someone from a
lower class were far lighter than if he had assaulted someone of equal or
higher status. For example, if a doctor killed a rich patient, he would have
his hands cut off, but if he killed a slave, only financial restitution was
required.
Justice was
different for men and women. While men were allowed to have out of wedlock
sexual relations, women were punished severely for the same. Women could
receive punishments that their male counterparts would not, as men were
permitted to have affairs with their servants and slaves, whereas married women
would be harshly punished for committing adultery. The Hammurabi Code suggests
that the code may be better understood as a codification of Hammurabi’s
supplementary judicial decisions, and that, by memorializing his wisdom and
justice, its purpose may have been the self-glorification of Hammurabi rather
than a modern legal code or constitution.
While there
is no direct connection whatsoever between ‘Hammurabi and Islam’ there is no
doubt that the Quran’s basic connection with Arab law current at the time of
the Prophet (PBUH). Islam could not have succeeded if an entirely new
commandment unconnected to the current life would have come to them.
There is an
evolution visible in the understanding of humanity of God, the world and the
purpose of life. The history of revelations and prophets is a step-by-step
revealing of the Truth by God in accordance with the level of understanding
that humanity had gained by the time of revelation. With the last revelation to
the last prophet, Prophet Muhammad (PBUH), the complete Truth (all knowledge that
is needed to be able to live according to God’s wishes and intentions) has been
given to humanity and humanity is now ready to live according to the ordained
rules.
In Islam,
justice is a result of Aman (to be safe) and to have Am?nah (trustworthiness).
Thus, the one who upholds safety and is trustworthy is Am?n. The prerequisite
for justice is trustworthiness. For peace and justice to prevail in an Islamic
society, we do not require only laws of justice, but also people of justice who
treat all those who come before them as equal human beings. Justice is not only
the task of the courts but of individual Muslims as well. An important part of
justice in both western and Islamic understanding is the idea of equality.
Everybody across the social, ethic religious divide, needs to be just to
himself and to others and he has to have secure and easy access to justice. The
state has to provide this, but with the state and its institutions consisting
of individuals, the practice of justice and equality has to be nurtured in the
character of the people.
Unfortunately,
in practice this seems to have been conveniently overlooked by Pakistani rulers
with the result that today’s Pakistan is lacking much of this basic requirement
of justice be it western or Islamic – in state and society of the country. What
goes here for a system of justice rather reminds one of the Hammurabi Code two
thousand years before Islam. The rich in our country have easy access to courts
and lawyers through their money and -sometimes- their connections or even the
infamous client-patron relationship. For the middle classes, justice is already
much more removed; it is expensive, long delayed and the outcome is anybody’s
guess. An if you get the verdict you had expected there is nobody who would implement
it for you. The majority of our people who are poor have no money left to
pursue years or decades of staying in the courts, thus justice is unavailable
-like in Hammurabi’s times. In any case Pakistan’s justice system in practice
is far from being Islamic.
While NAB
must be commended for holding many crooks, businessmen, politicians and public
servants, etc. accountable and recovering billions of rupees, most of our more
notorious scoundrels are still free and continuing to cause not only political mayhem
but acting against the State by targeting the Army. They mostly using the garb
of political victimisation to camouflage (and thus legally escape) their
crimes. The use of the political card has botched attempts at accountability by
NAB in many cases. Moreover, the accountability process being stretched out
over years has damaged the reputation of the accountability. While ‘justice
delayed is justice denied’ is a maxim that holds true not without reason, one
of most compelling positive factors about justice in Islam is that it is not
delayed like it has been done in the Daniel Pearl case. The intervention of
High Courts (and even the Supreme Court (SC)) in doling out bail for the
accused on one pretext or the other has also badly compromised the process of
accountability. Look at “Born Again” Nawaz Sharif sipping coffee walking around
Hyde Park in London!
On the
other hand take our faulty “evidence” process and procedure thereof. Consider
just the Daniel Pearl murder case that had happened in 2002 being finally
decided just recently. The acquitting of the accused may be due to missing or
insufficient evidence but that decision should have taken into account that
Omar Shaikh had confessed to the kidnapping of Danial Pearl and was therefore,
at the very least, guilty of abetment in his murder. A major impediment to
justice is that perjury is done freely and the courts accept it without using
the available laws for punishment of telling lies in court. Those guilty of
perjury (or causing perjury to be done shall be given exemplary punishment).
The centre
piece of the state and the nation, Justice is what holds the nation together
and allows its citizens to identify themselves with their state and its
institutions and government. Everywhere in the world people learn not from
sermons but from example. And that starts in childhood at home and in school.
Especially young people get frustrated when they are treated unjust or when
they experience that their elders violate the ethical principles that they are
preaching, be it lying, treating others disrespectful or deny them equal and
just treatment. And when these young children grow up with such scrambled
ethics they might finish university and become lawyers, judges, businessmen and
teachers. But what kind of professionals they will be? Knowledge in any resort
of science can only be applied successfully in life when it is supported and
practiced with the right ethics.
The result
of the lack of justice is that both state and society in Pakistan lack
stability, even after seventy years and despite the so many attempts to make
the country ‘Islamic’, Pakistani society is torn apart by economic inequality,
social strife and ethnic and religious separation, complicated by a weird
understanding of Islam. The state and its institutions are not trusted and are
marred by corruption and incompetence. Bureaucrats, politicians, even teachers
are thinking “If I cannot trust that I will be treated with justice why should
I be true to the state?” Justice is the basic requirement of the law and of
life and is important for maintaining order in society. And while justice is
not only a task of the law it is the law that has to uphold it at last. As long
as the basic demand for justice is not upheld, Pakistan will fail to fulfil its
destiny. We cannot continue to practice the Hammurabic Code while keeping
justice on public display as is practiced in Islam in theory only
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Ikram
Sehgal is a defence and security analyst
Original
Headline: The Hammurabic code instead of Islamic justice?
Source: The Daily Times, Pakistan