By Dost Mittar
A few days back, I read in an Urdu newspaper a report by a journalist of his encounter with a father-son Sikh duo displaced from Swat and staying in an Internally Displaced Persons’ camp. The Sikhs said that they had no problem with the Nizam-e-Adal based on Islamic Sharia; the elder Sikh was particularlyenthusiastic about its application as he had seen it in action during the regime of the Wali of Swat and was quite satisfied with it.
The reporter was very surprised at the reaction of the Sikhs. He should not have been: I have no doubt that Nizam-e-Adal used in Swat was fully compliant with the Pakhtoonwali code, which the Sikhs of Swat shared with their Muslim Swati brethren. Like the Pashtoon, the Sikh did not want to give too much freedom to his daughter; he too did not want her to go out unaccompanied by a male relative or not covered by a chaadar; he also thought that too much education would render his daughter unfit for raising a family; he too thought that a woman’s witness is not as reliable as that of a man; he too would have preferred his daughter or sister to be dead rather than marry someone against his will and he too thought that the harshest punishment for adultery was necessary to keep a harmonious and stable social order. He believed that the end of justice should include not only deterrence but also avenging the wrong done to the victim.
The Swat example is not an isolated one. BBC did a documentary on the working of sahria in one of the Nigerian province. It noted that although Islamic sharia courts are mandatory only for Muslims, many Christians preferred to use these courts over public courts to settle their disputes. The reasons are that the sharia courts are not corrupt, are accessible to everyone regardless of their income level and provide quick and cheap justice. It is easy to see why such attributes would endear sharia courts not only to Muslims but non-Muslims as well.
In calling for the return of Nizam-e-Adal, the Swatis were also showing their dissatisfaction with the system of justice that had replaced the earlier system. The attraction of sharia for some non-Muslims is also a condemnation of the common law as it is practiced in most Western countries and especially in some developing countries. They feel there are many troublesome attributes of the Western justice system.
To start with, it is an adversarial system of arriving at truth based on the assumption that the truth will emerge when the opposite sides of a case are presented forcefully by the counselors well-versed in laws. A fiction is maintained that both the prosecution/counselor for the appellant and that for the defendant/respondent are officers of the court who are assisting the judge and/or jury to arrive at the right conclusion.
But this fiction is just that – fiction; the reality is that the opposite lawyers coach their clients as well as witnesses to suppress all evidence that goes against their clients’ case but may be necessary for arriving at the truth. The second premise of the Western justice system is that a person is considered innocent until proven guilty; in other words, the accused person does not have to prove his or her innocence, the burden of proving guilt lies with the prosecution. The rationale for this imbalance is summed up by the oft-repeated cliché that it is better to let nine murderers go free than to hang one innocent person.
The primary purpose of the Western system of justice is reformation and rehabilitation of the criminal, followed by deterrence, so much so that the Canadian prison system is now called Correctional Services and the prisoners its ‘clients’. This emphasis on correction has led lawyers to ask even those accused of being serial murderers to plead “insanity” so that they can be eligible to be treated as “sick” rather than criminal. In this system, the rights of the society to be protected against a criminal take a second place, let alone the rights to justice of the victims and their families.
There is an oft-repeated cliché that justice delayed is justice denied. The Western system fails miserably on that criterion, especially in India. Several reports have shown that in many cases people held on trial have served more time in jail than they would have if they were guilty of the crime for which they were being held. In some cases, the accused have even forgotten the crime for which they were being held. A judge of the Supreme Court once remarked that, at the current pace of disposal, it would take 327 years for the court backlog to be cleared in India.
Lastly, the Western justice system is not equally accessible to everyone – an O.J. Simpson can get away scott free because he can hire a team of expensive lawyers while many poor people rot on death rows because they could not afford adequate representation.
The Sikh gentleman’s endorsement of Nizam-e-Adal should not mean that non-Muslims have no problem with the sharia system. For starters, the Wali of Swat did not impose jazia on the Sikh, or else he would have been less enthusiastic about that Nizam. He also probably did not know what happened to a fellow Sikh in the tribal agency two years ago: in that case, the daughter of a Sikh married a Muslim boy and the family was against that marriage. The Sikh went to the Jirga elders and invoked traditional Pakhtoonwali to demand that the daughter be returned to the family, which would have normally happened under the Pakhtoon code. However, the tribal elders refused to intervene in the case as it involved the legitimate right of a Muslim boy to marry a non-Muslim girl, even though it was against her family’s wishes.
When there is a conflict between Islam and culture, Islam always trumps culture under sharia. The most publicized cases of conflict between Muslims and non-Muslims have not come from Pakistan but from that poster child of moderate Islam, Malaysia, which has a large non-Muslim minority which has not (yet) been tamed into total submission. In one of the publicized cases, non-Muslim children of a dead man have been taken away from the family and his dead body refused to be handed over to the family because someone claimed that the dead man had converted to Islam before death, even though he had never told of any such conversion to his family or friends. When the family went to public courts to seek justice, the courts refused to intervene and referred them to Islamic courts, as are all cases involving religious disputes between Muslims and non-Muslims.
There is also the sword of a true or fabricated charge of blasphemy hanging over the head of any non-Muslim who falls foul of a Muslim neighbor or colleague for any reason. In addition to the discriminatory treatment on the basis of religion, the gender bias of many sharia laws would also be unacceptable to most modern non-Muslims who would want it to be modified to bring them in line with the demands of the contemporary society.
Sharia is an Arabic word meaning ‘the path’ whose Urdu equivalent is Shaara (e.g., shaara-e-aam). The word therefore suggests a flexibility in the concept of sharia as it denotes a path and not a destination. Except for a few laws derived from the Quran known as The Hadood, most of the sharia laws are derived from the precedents set by early Muslim rulers and subject to modification according to time and place. What can be modified, and how, can only be determined by Islamic scholars.
Finally, just as sharia needs to be modified to make it acceptable to non-Muslims, the Western system of justice can learn from Sharia and other culture-friendly systems of justice such as Panchayats and Native justice circles to make them simpler and easily accessible to all regardless of their social and economic status.