By Ejaz Haider
September 28, 2011
The defence for Mumtaz Qadri, the self-confessed murderer of slain Punjab governor Salmaan Taseer, has adopted a simple strategy to save the remorseless killer. Taseer’s statements were “unbecoming of a Muslim” and therefore Qadri, a devout Muslim, could not control his emotions and resorted to an instantaneous act. For good measure, the court hearing the case was also told that Taseer’s statements could have inflamed the passions of any Muslim which means that even if Qadri had not committed this heroic act, someone else would have.
So, Qadri’s lawyers are presenting his act as sudden provocation, automatism in legal terms, meant as a defence by negating the existence of actus reus, the actual act of committing a crime. This is supplemented by referring to religion, religious teachings and the sanctity of the Prophet (PBUH) not just to ground the automatism plea but to appeal to the court’s own conscience and piety.
Implied in this is also a veiled threat that some issues stand above and beyond the law and institutional hierarchy and must be treated on a touchstone other than that which placed Taseer in a position of authority. Ironically, this effect is to be achieved by referring to Taseer’s alleged conduct as violative of the blasphemy law and the inability — or unwillingness — of the state to proceed against him which, in this case, forced Qadri to act on his own. The inevitability of Taseer’s murder is argued by the defence as “if Qadri had not killed him, someone else would have”.
It should be clear that Qadri’s lawyers are cleverly relying on chunks of law even as their underlying argument is grounded in the justification of the act as being religious and supra-legal and therefore not to be judged on the basis of legalities.
The problem with this defence is not just its logical inconsistency but also the fact that Qadri’s act, from what we know, does not fall under the automatism plea. He murdered Taseer in cold blood and with meticulous planning. He was waiting for an opportunity and when he found it, he unleashed his fire power on a defenceless, unsuspecting man.
The questions, therefore, do not relate to provocation. Even if we factor out common legalities, we are left with at least two questions: what does the tradition say about someone killing a person he is entrusted to protect and do so through deception, which is what Qadri did? Two, is it acceptable defence under Islamic law if someone says that he executed another person because the latter had done something un-Islamic and the state didn’t act, forcing him to take the law into his own hands?
My queries to some scholars tell me that the tradition is clear on both counts. For instance, most exegetes believe that the Holy Quran (8:72) points out that jihad, even against those who were opposing the Prophet (pbuh) and oppressing Muslims, was not permitted in violation of a treaty. In effect they agree that a promise or trust must be honoured. Qadri broke the trust through deception.
Similarly, taking the law into one’s own hand is strictly prohibited by all mainstream Sunni jurists (for example, Qazi Abu Bakr Jassas in his Ahkam al-Quran points out that jihad or implementing hadd cannot be permitted without the authority of the ruler, in modern times the state, not the clerics and certainly not by a semi-literate policeman.
On both counts the exegetes say the crime committed by Qadri may be punishable by death. This makes sense because if it is accepted that the organising principle under Islam is the state then it cannot be argued that because the state did not act an individual has the right to do so. One doesn’t need to be a logician to see the chaos such an argument would unleash on a collection of people. In fact, going by what we are witnessing, one doesn’t require conceptual finesse to understand it. There is enough empirical evidence for even a village idiot to appreciate the consequences of such an approach.
But let’s assume for the sake of the argument that Taseer had crossed a line. Exegetes agree that he would still have the luxury of a trial and a defence. Let’s now assume that Qadri is right in saying that the state did not act against Taseer. He, like any other citizen of this country, could have taken the issue to the court. But he did not because he wanted to emerge a hero and in this country that means committing a spectacular act of violence in the name of Islam. He is already a hero, a murderer raised to the level of a saint that is even respected by the jail staff.
Imagine if he is let off.
Source: The Express Tribune, Lahore