Islam’s pioneering role

DESPITE efforts to achieve world peace in the wake of two world wars, armed conflicts remain a prominent feature of our human landscape. Even in the 21st century, the resort to arms by nations, people and ethnic groups continues, with the accompanying high toll of death and suffering. It is very ironic that the West is trying to achieve world peace through wars. In such a situation, there is a dire need to preserve a measure of humanity in the midst of war. Even in war there are limits.

In the days when Islam came into existence the world was completely unaware of the concept of humane and decent rules of war. The West became conscious of this concept for the first time in the 17th century. But the actual codification of the laws of war began in the middle of the 20th century when the West drafted the four Geneva Conventions and afterwards their two additional protocols. Prior to this, no concept of civilized behaviour in war was found in the West. All forms of barbarity and savagery were perpetrated in war, and the rights of those at war were not even recognized.

Islam made these rules centuries ago. The rules which have been framed by Islam to make war civilized and humane are the injunctions of God and His Prophet (PBUH) which are to be followed by Muslims in all circumstances, irrespective of the behaviour of the enemy. Let us now examine what rights and obligations Islam recognizes for an enemy in the war field.

Islam first distinguished between combatants and the non-combatants. Islam considered women, children, the old and the infirm, etc, to be non-combatants. The Prophet (PBUH) said: “Do not kill any old person, any child or any woman” (Abu Dawud). “Do not kill the monks in monasteries” and “Do not kill the people who are sitting in places of worship” (Ibn Hanbal). Wounded soldiers who are not fit to fight nor actually fighting should not be attacked. Islam grants them complete protection and full medical assistance. The Prophet (PBUH) said: “Do not attack a wounded person.” (Abu Dawud).

Islam guaranteed full protection of the prisoners of war. Muslims are ordered to behave with such prisoners in a humane way. The Holy Prophet (PBUH) said: “No prisoner should be put to the sword.” (Ibn Maja). He prohibited the killing of anyone who was tied or in captivity. In the Hadith there is a saying of the Prophet that: “Punishment by fire does not behove anyone except the Master of the Fire” (Abu Dawud). So it is prohibited to torture the enemy with fire.

Regarding loot and plunder,”The Prophet (PBUH) has prohibited the believers from loot and plunder” (Bukhari; Abu Dawud). The first caliph Hazrat Abu Bakr al-Siddiq used to instruct the soldiers while sending them to war, “Do not destroy villages and towns, do not spoil cultivated fields and gardens, and do not slaughter cattle.”

Muslims are not allowed to take anything from the general public of a conquered land without paying for it. They have no right to use things belonging to the people without their consent. If they need anything, they should purchase it from the local population or obtain permission from the owners. Abu Bakr al-Siddiq, while instructing the Muslim armies being dispatched to the battlefront would go to the extent of saying that Muslim soldiers should not even use the milk of the cattle without the permission of their owners.

Islam clearly prohibited the destruction and dishonouring of religious places. The Prophet (PBUH) said: “Do not kill the monks in monasteries” or “Do not kill the people who are sitting in places of worship” (Ibn Hanbal). Islam prohibits the disgracing or mutilating of the corpses of enemies. It has been said in the Hadith: “The Prophet (PBUH) has prohibited mutilating the corpses of the enemies” (Bukhari; Abu Dawud).

The abdomen of Hazrat Hamzah, the uncle of the Prophet (PBUH), was ripped open by the Quraish; his liver was taken out and chewed by Hind, the wife of Abu Sufyan, the leader of the Makkan army. The Muslims were naturally enraged by this horrible sight. But the Prophet (PBUH) asked his followers not to mete out similar treatment to the dead bodies of the enemies.

In another event, at the Battle of Ahzab a very renowned and redoubtable warrior of the enemy was killed and his body fell down in the trench which the Muslims had dug for the defence of Madina. The unbelievers presented ten thousand dinars to the Prophet (PBUH) and requested that the dead body of their fallen warrior may be handed over to them. The Prophet (PBUH) replied: “I do not sell dead bodies. You can take away the corpse of your fallen comrade.”

Islam has strictly prohibited treachery. One of the instructions that the Prophet (PBUH) used to give to the Muslim warriors while sending them to the battlefront was: “Do not be guilty of breach of faith.”

There is a famous incident in the peace treaty of Hudaybiyyah, when after the settlement of the terms of the treaty, Abu Jandal, the son of the emissary of the unbelievers who had negotiated this treaty with the Muslims, came, fettered and blood-stained, rushing to the Muslim camp and crying for help. The Prophet (PBUH) told him “Since the terms of the treaty have been settled, we are not in a position to help you out. You should go back with your father. God will provide you with some other opportunity to escape this persecution.”

These are the laws and rights which fourteen hundred years ago Islam gave to man as war laws. It strengthens our faith in Islam and makes us proud when we realize that Muslims are in possession of such a splendid and comprehensive system of laws. Even in this modern age which is of progress and enlightenment, the world has not been able to produce more equitable laws than those given by Islam to mankind some 1400 years ago.

Zia’s carrot and stick policy

NORMALLY, the government, whether civil or military, is always anxious to tame the judiciary or befriend it, and for that purpose a policy of carrot and stick is followed. This formula was applied with full force after martial law was imposed on July 5, 1977, by General Ziaul Haq, the then chief of army staff.

We were under the impression that after the insertion of Article 6 in the Constitution of 1973, the remaining half of the country would not see martial law again, because doing so now amounts to an offence of treason punishable with death.

But that was not to be and marital law struck again for the third time suspending the Constitution. The military government felt nervous about the judiciary, so Presidential Order No. 1 was issued on July 7, 1977, requiring all judges of the High Courts to take fresh oath with the omission of words “to defend the Constitution”. The Supreme Court was left alone after a meeting took place between the chief martial law administration and Chief Justice Yakoob Ali Khan of the Supreme Court of Pakistan.

The carrot part was that all the chief justices of the High Courts were appointed governors of the provinces and the judges at number two were appointed acting chief justices. This facility lasted for about one year.

In the Supreme Court Begum Nusrat Bhutto filed a constitutional petition challenging the validity of martial law. The military government did not want Chief Justice Yakoob Ali to hear that case, hence the Sixth Amendment in the Constitution was withdrawn resulting in his retirement. Justice Anwar-ul-Haq at No. 2 took over as the new chief justice and the judges of the Supreme Court took a new oath with the omission of words “to defend the Constitution”. The case filed by Begum Nusrat Bhutto was heard and concluded, validating martial law on the ground of state necessity, and the CMLA was given power to amend the Constitution and hold elections whenever he deemed fit and proper. It was also held that all actions taken and laws passed by martial law government were subject to judicial review.

In consequence many writ petitions were filed by aggrieved persons calling in question orders of martial law authorities, which angered the government. Scrutiny was made of appointment of judges in the High Courts by the toppled government and so many judges were retired who were found to be appointed for political considerations.

CMLA General Ziaul Haq enacted a Provisional Constitution Order of 1981 on March 24, which was in fact a mini-Constitution to strengthen martial law and prevent interference of the High Courts with the machinery of the military government allowed by the judgement of the Supreme Court under the doctrine of judicial review.

PCO excluded about 17 articles from the suspended Constitution of 1973 and declared that all martial law regulations and orders passed on or after July 5, 1977, were valid and could not be challenged in any court of law on any ground notwithstanding any judgment of any court. By this action, the door of judicial review was shut on the courts and further steps were taken to downgrade the judicial structure and intimidate the judges by pressure of insecurity.

The PCO provided for decentralization of the High Courts by setting up benches in the remotest parts of the provinces and the chief justice of each High Court was authorized to nominate judges, without their consent, on those benches for one year. This is how judges were controlled not to fall out of line and be on the right side of the government.

As if whatever is said above was not enough, the martial law government demanded that judges take oath under the PCO of 1981 to follow and defend it as a substitute for the Constitution. Under Article 17, the martial law government reserved the right of choice of inviting or not inviting chief justices and other judges of the superior courts for oath under the PCO. Those not invited stood retired. This was at the discretion of the government, and judges who were not liked or suspected to be linked with the deposed political government were dropped. This was done without any inquiry or show cause notice.

In the Sindh High Court, in the morning all the judges were called to assemble in the chamber of the Chief Justice, where it was revealed that no court work was to be done and judges would be required to take the oath under the PCO. As directed by the federal law ministry, the chief justice went to see the governor of Sindh, came back and informed that excepting Justice Abdul Hafeez Memon and Justice G.M. Shah, all other judges were cleared and invited to take oath before the governor at 2 p.m. The two judges who were not invited said goodbye to their colleagues and went home.

The other judges of the Sindh High Court, including myself, debated this issue in the presence of Justice Zafar Hussain Mirza and other senior judges and disapproved of the manner in which judges were dropped without inquiry. Some judges were of the view that oath should not be taken but the preponderant view was that in order to protect the interest of the judiciary, it was better to be inside. We were unaware of what was happening in the Supreme Court and other High Courts and we believed that this was being done intentionally. After oath was administered at 2 pm, we learnt more about what had happened elsewhere.

In the Supreme Court a meeting of the judges was held and Chief Justice Anwarul Haq first asked the most junior judge, Fakhruddin G. Ebrahim, whether to take oath or not. Justice Fakhruddin replied without any hesitation that he would not take oath because the PCO nullified the judgment of the Supreme Court in the Begum Nusrat Bhutto case, refused to accept the jurisdiction on the principle of judicial review and curtailed powers of the judiciary.

Justice Fakhruddin was followed by Justice Dorab Patel and Chief Justice Anwarul-Haq. The other judges took the oath. Justice Moulvi Mushtaq Hussain was not invited for oath.

Similar was the situation in other High Courts, where some judges were not invited while others were. I think it was most unfair the way the judiciary was dealt with and injustice done to the judges who are required to do justice to the people honestly, fairly and without any fear or favour. For courage and uprightness, I give full marks to Justice Fakhruddin G. Ebrahim and other judges, who did not take oath. Had we known what happened in the Supreme Court before oath, possibly we would have thought differently.

The writer is former Chief Justice of the Supreme Court.

No more Watergates

IN the beginning, seasoned political reporters at the Washington Post disdained the Watergate story as insignificant, implausible and unserious. But two young journalists doggedly pursued every lead, helping bring about Richard Nixon’s resignation. Three decades later, Bob Woodward had come to embody the ultimate Washington insider.

Over the past month, however, he has personified the stonewalling and covering up he once shattered to launch his brilliant career. His unravelling is as surprising and symptomatic a story of Bush’s Washington as his making was of Nixon’s.

On October 27, the night before Vice-President Dick Cheney’s chief of staff, Lewis “Scooter” Libby, was indicted on five counts of perjury and obstruction of justice, Woodward appeared on CNN. Asked about the case, he said: “I’m quite confident we’re going to find out that it started as a kind of gossip ... There’s a lot of innocent actions in all of this ... I don’t know how this is about the build-up to the war.”

He expressed his sympathy for those who might be indicted: “ ... what distresses me is, you know, so and so might be indicted and so and so is facing ... And it is not yet proven.” He concluded with invective against Patrick Fitzgerald, “a junkyard dog prosecutor”.

On November 16 Woodward admitted he had been called to testify on November 3 before the prosecutor, having been given up by a source after Libby’s indictment. Woodward, it turned out, was the first journalist to learn of Plame’s identity. “I hunkered down,” he told his own newspaper. “I’m in the habit of keeping secrets. I didn’t want anything out there that was going to get me subpoenaed.”

Woodward claimed he heard about Plame in an interview he conducted in June 2003 for his book Plan of Attack, which failed to contain this startling information. While two Post reporters testified before the prosecutor, Woodward hid his role as material witness. With the disclosure, the storyteller lost the plot.

Woodward advocates no ideas and is indifferent to the fate of government. His fabled access has been in the service of his technique of accumulating mountains of facts whose scale fosters an image of omniscience. As his bestsellers and wealth piled up, he lost a sense of journalism as provisional and inherently imperfect, seeing it instead as something engraved in stone. But his method made him particularly vulnerable to manipulation by cunning sources.

Woodward’s 2002 book Bush At War, based partly on selected National Security Council documents leaked to him at White House instruction, was invaluable to the administration for its portrait of Bush as strong and decisive. Its omissions are as striking as its fragmentary facts, such as the absence of analysis of the disastrous operation at Tora Bora that allowed Bin Laden to escape. Plan of Attack includes intriguing shards of information about the twisting of intelligence to justify the war, but he fails to develop the material and theme.

By the publication of Plan of Attack, Woodward was “hunkered down,” hiding his “secrets” from his newspaper, its readers and the prosecutor. He cryptically told one of the subpoenaed Post reporters to “keep him out of the reporting”. He said there were “reasonable grounds to discredit” Joseph Wilson, the whistleblower. He asserted that a CIA assessment had determined that Plame’s outing had done no damage, but the CIA said no damage assessment report had been done. But when a source outed Woodward to the prosecutor, his cover-up was revealed. Above all, the extent of his credulity is exposed.

It is more than paradoxical that the reporter who investigated Nixon and worked closely with professionals in government alarmed by the abuses should exhibit so little scepticism about George Bush. — Dawn/The Guardian News Service

The writer is a former senior adviser to President Clinton