By Murtaza Haider
30th October, 2014
Consuming pork is sinful and forbidden in Islam. However, Islamic law does not prescribe whipping or incarceration to those who consume pork. The religious doctrine may prohibit certain behaviours and consider them sins. This does not make those acts a crime.
The Supreme Court of Pakistan has taken up the task of determining if the physical punishment prescribed for the use of alcohol under the Prohibition (Enforcement of Hadd) Order of 1979 is Islamic.
Earlier, the Federal Sharia Court declared that the current punishment for consuming alcohol is un-Islamic. A five-member bench of the Superior Court will hear the government’s appeal against the FSC’s verdict. This landmark case will open the much-needed debate on the difference between sin and crime in Pakistan.
Since the mid-seventies, Muslims across the globe have faced violent political movements that used religion to further their political causes. Such movements have emerged as revolutions (Iran), military coups (Pakistan), and rebellions (Egypt), and ultimately radicalised the respective societies.
The perpetrators behind these political movements used Islamisation as the smokescreen to advance their political agendas. Harsh punishments were introduced into the legal systems, using religion as justification.
A systematic review of all these politicised legal frameworks is now in order. The Law should deal only with crime and leave sin as a matter between man and his Maker.
Alcohol consumption is a crime in Pakistan and several other Muslim countries. The Pakistan penal code, under the Prohibition (Enforcement of Had) Order of 1979, awards 80 lashes to those convicted of consuming alcohol. This raises several concerns.
Muslim jurists and theologians document sufficient evidence to confirm alcohol consumption, like usury or pork, is forbidden. However, the evidence to suggest that alcohol consumption is a punishable crime is not without controversy.
A consensus (Ijma) on how to deal with alcohol has eluded Muslim jurists for more than a millennium.
Under the Islamic law, the definition of a crime and its punishment originate either as Hadd (defined explicitly in Quran or the Sunnah) or as Tazeer, which are discretionary punishments awarded by the jurist (Quazi).
The former military dictator, late General Zia ul Haq, set out to revise the legal frameworks in Pakistan. He was motivated to enforce his personal views about religion on the rest of the society. His regime introduced laws that blurred the line between sin and crime. He criminalised certain behaviours that for centuries had remained outside the domain of legal frameworks.
While alcohol prohibition was initiated by Prime Minister Zulfiqar Ali Bhutto, it was General Zia’s regime which declared alcohol consumption a crime punishable by 80 lashes.
The dictator wilfully and deliberately committed high treason by suspending the Constitution of Pakistan. It served his interests to criminalise the rest of the society so that he may enjoy immunity from high treason, which he continued to commit for 11 years until his death in 1988.
The 40/80 Dilemma
At present, consuming alcohol is punishable by 80 lashes in Pakistan. The popular discourse and the commonly held belief in Pakistan is that this punishment is based on religious injunctions, which enjoy consensus (Ijma). This may not be true.
These punishments are more in line with the Hanbali school of thought, which is followed in Saudi Arabia. General Zia was inspired by the Saudis and hence his legal interventions bear a strong resemblance to the Saudi/Hanbali legal system.
The Noble Quran addresses alcohol consumption at five different instances. In certain verses, the Quran prohibits alcohol (Khamr) consumption. There is, however, the fact that Quran does not prescribe a penalty for consuming alcohol. The only reference for such a punishment during the life of the Holy Prophet (PBUH) is a Hadith by Anas Bin Malik, who recalled that the Prophet prescribed 40 lashes for someone accused of consuming alcohol. The 40 stripes were administered with two palm branches.
Still, many jurists do not consider this reference a strong precedent to treat alcohol consumption under Hudood. They believe it falls under discretionary punishments (Ta’azir).
Historians have documented the controversy of 40 or 80 lashes that lasted for some time. Even today, the Maliki, Hanbali, and Hanafi schools of thought consider 80 lashes as the punishment, whereas the Shafi’i consider 40 lashes.
Do Not Drink and Legislate
Since the Islamic legal traditions did not provide for formal prosecutors, investigators, and other officials needed to investigate an allegation; the Quazi exercised significant discretion in settling disputes.
This raises certain interesting concerns related to prosecuting those accused of consuming alcohol. Given the paucity of reliable examples from the Sunnah regarding alcohol consumption, Muslim jurists developed much of the legal frameworks centuries later.
For instance, what constitutes as proof for alcohol consumption? If someone’s mouth smelled of alcohol, Imam Malik and Imam Hanbal considered it sufficient proof of alcohol consumption.
Imam Shafi’i and Imam Abu Hanifa, on the other hand, considered this insufficient because of other factors that may be making the mouth smell of alcohol.
Then there is the question of possession of alcohol. Is it a crime to possess alcohol? Some Muslim countries consider it so and award physical punishment for possession. Imam Abu Hanifa had an interesting take on this matter:
He argued that if a person were to be punished for possession of alcohol, they might as well be punished for fornication in light of possessing sex organs.
Is it 40 or 80 lashes? Can one substitute palm branches with a can or leather whips? What constitutes as proof for consumption?
These are not trivial matters. But the Hudood laws in Pakistan paid no attention to these details.
The controversy is not about prohibition, but about how to enforce it. The Noble Quran is silent on this matter and the Hadith does not cover the matter in sufficient detail. This makes a strong case of saying that alcohol consumption may not be dealt under Hudood, because no fixed punishments have been prescribed in either the Quran or the Sunnah.
What Should Pakistan Do?
The purpose of this piece is not to advocate abolishing all regulations regarding the sale and consumption of alcohol. Even western countries, where consuming alcohol is legal, the sale and consumption of alcohol is strictly regulated. In Canada, serving alcohol at public places without a permit carries a hefty fine. Driving under the influence of alcohol carries severe penalties, including fines up to $5,000 and six months of imprisonment. In the United States, it is illegal to serve alcohol to persons under 21 years of age.
It is also not the purpose of this piece to downplay the harmful impacts of alcohol consumption on a society. In 2012, 10,322 people were killed in traffic accidents caused by alcohol-impaired individuals in the United States alone. This accounts for almost one in three traffic-related deaths in the United States, where the police arrested over 1.2 million drivers in 2010 for operating vehicles under the influence of alcohol or other drugs.
In 1995, the British Medical Association revealed that alcohol was a factor in 60-70 per cent of homicides, 75 per cent of stabbings, and 50 per cent of fights and domestic assaults.
The purpose of this article is to raise awareness about the legal and historic constructs that should inform prohibition laws in Pakistan. The 1979 Hudood Ordinance made alcohol consumption a crime. That was not the case before. The result is that low-income consumers are forced to consume inexpensive harmful moonshine while the well-off freely obtain imported alcohol.
The consumption of alcohol in Pakistan and its abuse has not declined since prohibition, though given the substitution of commercially produced alcohol with moonshine, incidents of alcohol-poisoning did rise significantly.
At the same time, the Hudood laws convicted mostly low-income individuals who lacked the means to mount a legal defence. Such discrimination against the poor can be addressed if alcohol consumption is regulated rather than criminalised.