La La Land: Where Might Is Right And The Lawless Are Flawless

La La Land: Where Might Is Right And The Lawless Are Flawless

History has proven over numerous occasions that this land has paid the price for blatant and habitual disobedience of the principle “right man for the right job”, be it allowing dictators (only trained to be soldiers) overthrowing democratically elected governments unconstitutionally to end up running the affairs of the state; electing corrupt politicians and criminals to safeguard national interests; or even allowing a small section of general public passing extra-judicial verdicts in violation of Article 175 of the of the Constitution of the Islamic Republic of Pakistan 1973.

We live in la la land where might is right and the lawless think of themselves as flawless and where a small section of notorious people is always ready to take the law into its own unclean hands.

Why is there so much greed for power? Where does this sense of entitlement to exercise unfettered discretion and pass verdicts come from? Is this how democratic societies behave? Why did they kill an innocent boy over mere allegations and hearsay (false and baseless according to initial reports) in sheer violation of his constitutional right to life and due process of law enshrined under Articles 9 and 10-A of the Constitution?

This is not the first time when mobs have been looking for an opportunity to turn into merciless and ignorant executioners. We saw lynching of two young innocent brothers in Sialkot in 2010, we have heard of the assassination of the then Governor of Punjab, Mr. Salman Taseer (late) over the unproven allegations of blasphemy in 2011, and now this incident of Mardan in 2017. These incidents are unjustifiable on both legal and moral grounds.

From a religious point of view:

Imam Al-Qurtubi from Islamic Spain (Maliki school of thought) said:

“There is no dispute among the scholars that all criminal punishments; such as execution, cannot be carried out except by those in authority who are obliged to carry out the qisaas and hadd punishments etc. The evidence for this is that Allah has addressed the command regarding punishments to all the Muslims; however, it is not possible for all the Muslims to get together to carry out the punishment; this is why they have appointed a leader who may represent them in carrying out the qisaas and hadd punishments.” (Tafseer al-Qurtubi, 2/245-246)

Imam Al-Kasaani from Syria (Hanafi school of thought) said:

“The only one who implements criminal punishment is the ruler or the one the ruler has appointed for this duty (i.e. the courts).” (Badaa’i As-Sanaa’i, 7/57)

Ibn Rajab from Baghdad (Hanbali school of thought) said:

“It is not permissible to transgress the authorities or take authority into ones hands, even if the authorities themselves are falling short in fulfilling their responsibilities …” (Majmo’o Rasaail Ibn Rajab, 2/608)

The scholars of the Standing Committee of Saudi Arabia ruled:

“The one whose job it is to establish proof of crime and carry out punishments is the authority who is in charge of the affairs of the Muslims, to ward off evil and to close the door to chaos in the society (i.e. by people taking law into their own hands).” (Fataawa al-Lajnah ad-Daaimah, 1/552)

Shaykh Saalih Al-Munajjid said in one of his verdicts:

“It is not permissible for the ordinary people to carry out the hadd punishments, whoever does that is sinning, because carrying out the hadd punishment requires examining the matter and Islamic knowledge in order to know the conditions and proofs. The ordinary people have no knowledge of such things, and the carrying out of one of the hadd punishments by the ordinary people leads to many evils and the loss of security; whereby people will attack one another and kill one another on the grounds that they are carrying out punishments on the criminals (or traitors or on the ones who commit blasphemy). If the door is opened for people to carry out the punishments, chaos will reign in society and no one’s life or wealth will be safe.

If the ruler does not do what is required of him of carrying out punishments prescribed in Islam, then no one of the Muslim masses has the right to do that. At the time of the Prophet (SAW), he was the only one who used to judge between the people; nobody else besides him and those whom he had authorized judged. After the Prophet (SAW) passed away, this job was taken over by the judges among the Sahabah, the Tabi’een and the scholars who took office after him (SAW).

Hence; the ones who try to implement the punishments by themselves, claiming that they have evidence from the Sunnah to justify their actions, their arguments and evidence are very weak. In conclusion, (I say that) if anybody commits treason by either abusing the Prophet (SAW) or by any other way, nobody is allowed to implement the punishment on him except the judge of the Islamic Court.” (Islamqa.info, Fatwa no: 228482, Arabic version)

Abu Bakr Ad-Dimyati (Shafi school of thought) said:

“… Only the authority is allowed to kill the traitor (which includes the one who abuses the Prophet). If anyone else kills the traitor other than the authorities, then he will be punished for transgressing against the authorities.” (I’aanat ut Taalibeen, 4/157)

From a legal point of view:

It is an offence under section 302 of the Pakistan Penal Code 1860 to murder someone. Under section 6(2)(g) of the Anti Terrorism Act 1997, terrorism involves taking the law in own hand, award of any punishment by an organization, individual or group whatsoever, not recognized by the law, with a view to coerce, intimidate or terrorize public, individuals, groups, communities, government officials and institutions, including law enforcement agencies beyond the purview of the law of the land.”

In Malik Mumtaz Qadri v. The State, PLD 2015 Islamabad 85, the conviction and death sentence of Mumtaz Qadri for killing the former Governor of Punjab, Mr. Salman Taseer (late) over hearsay and baseless allegation of blasphemy was upheld in the following terms:

“…After framing of the Constitution of 1973, no individual person or individual citizen of the state was left with any authority to take the law in his own hands and pass the judgments for himself touching the rights of the others.” (At para 22)

The above decision was partly upheld in Malik Mumtaz Qadri v. The State, PLD 2016 SC 17, in which it was held that:

“…The law of the land does not permit an individual to arrogate unto himself the roles of a complainant, prosecutor, judge and executor.” [At para 27]

In Malik Mumtaz Qadri v. The State, PLD 2016 SC 146, the review filed by Mumtaz Qadri was dismissed.

In Gul Muhammad v. State, PLD 2012 Quetta 22, the conviction for so-called honour-killing (mere allegation of siyahkari) was upheld in the following terms:

“The appellant has committed the murder of three innocent people on the fake allegation of siyahkari, while taking the law in his own hands, which certainly would have created a sense of fear, panic and terror amongst the villagers.” [At para 13]

“….no license can be granted to anyone to take the law of the land in his hands and start executing the culprits himself instead of taking them to the Courts of law.”  [At para 14]

In Muhammad Akram v. State, PLD 2001 SC 96, the Supreme Court commented on honour killings in the following manner:

“Legally and morally speaking, no body has any right nor can anybody be allowed to take law in his own hands to take the life of anybody in the name of “Ghairat “. Neither the law of the land nor religion permits so-called. honour killing which amounts to murder (Qatl-I-Amd) simpliciter. Such iniquitous and vile act is violative of fundamental right as enshrined in Article 9 of the Constitution of Islamic Republic of Pakistan which provides that no person would be deprived of life or liberty except in accordance with law and any custom or usage in that respect is void under Article 8(1) of the Constitution. [At para 3]

In Allahwasayo v. The State, 2011 YLR 2194 [Sindh], it was held in the context of fake encounter by police that:

“….Every person is innocent, unless proven guilty through process of court of law.” [At para 11]

Hence, both the law of the land and teachings of the Islam are unequivocal in saying that no individual or group of individuals is entitled to award punishments to ordinary citizens as the judicial powers are for the courts to exercise otherwise chaos may result and the law of jungle may prevail, taking humanity back into the darkest of ages.

 

The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.

Asfandyar Khan Tareen

Author: Asfandyar Khan Tareen

The writer is a Barrister from Lincoln’s Inn and heads Tareen Barristers Chambers in Lahore. He can be contacted at [email protected]