SOLUTIONS are context specific. Outside context, the solution becomes a problem. Like for centuries it made sense for people to dig wells when they needed water, except trying that in a city now will cause a civic crisis as it will destroy fibre optic cables, disrupting the sanitation system and possibly severing electricity.

Now move that logic to the state. In pre-state societies or where the state was weak and distant or had not developed the means of implementing its diktat, people found ways of mediating conflicts, fixing responsibility and providing justice, for instance through the jirga system. The state evolved in response to a need to have a neutral authority fulfilling these very functions.

Once the state has extended its presence, it cannot allow these substitutions because they present challenges to the justification for the state’s existence. The state’s legitimacy rests on providing security and justice, and the killing of any of its citizens must, therefore, be a crime against the state. The state cannot afford either competing centres of power or equations that factor out the state entirely.

Islamic scholars have spoken out against how the diyat law is currently misused in the country.

Which brings us to the qisas and diyat laws. Qisas provides for the aggrieved to have the right to inflict injuries equal to those sustained by the victim, though such verdicts have never been handed out through formal courts. Diyat allows the offender to provide compensation or blood money for the crime to the victim’s family. The law privatises the crime, the state becomes a passive observer as people make independent decisions on whether the killing of citizens should be punished, forgiven or bargained over.

The provision to forgive murders has been particularly harmful for women. With interfamily marriages being so common, women are routinely murdered in the name of ‘honour’ by men in their family and the perpetrators forgiven by other men in the family. In countless cases, this has meant a father forgiving his son for killing his daughter, or an uncle forgiving his nephew. After decades of such injustices, there have been recent changes in the law qualifying when diyat is applicable. But the issue did not register in the public consciousness till invoked in two high-profile cases involving the murder of men: Raymond Davis, and now, Shahrukh Jatoi. That diyat protects Pakistan’s rich and powerful at the expense of justice is clear through both cases, but people are hesitant to openly challenge the law given the emotions that erupt at any criticism of laws based on religion.

But the law mirrors the same tribal code prevalent in many parts of the world in the seventh century, including in the nomadic tribal society of Arabia. Diyat was a formula with which tribes could administer justice in a standardised way that did not require the presence of a centralised authority and provided an alternative to vengeance where blood feuds raged. It existed in the form of an important legal mechanism in early Germanic society, and was called weregild in what is today England, ericfine in Ireland, vira in Russia and glowsczyzna in Poland. It was a critical part of Teutonic laws in the Frankish Salic Code applicable in what is today France, Netherlands and Belgium, and it continued to be in effect till the Holy Roman Empire put an end to it in the 12th century.

Islamic scholars have spoken out against how it is currently misused in the country, as documented in a report by the National Commission on the Status of Women. Tahir Wasti in his book The Application of Islamic Criminal Law in Pakistan illustrates how it works against all norms of justice. The book contains data showing the increase in the murder rate and in acquittals, and the decrease in convictions since the law was passed. For instance, the Supreme Court’s conviction rates went down from 79 per cent in 1984 to 35pc in 2000.

The politics of its selective invocation is illustrated through its origin in Pakistan: when Gen Zia was in the process of Islamising laws via the Nizam-i-Islam, diyat was left out; it was not incorporated because Z.A. Bhutto would have utilised it to escape being hanged. Diyat was introduced as an ordinance in 1990 and passed as a law in 1997.

One immediate outcome has been the creation of a culture of ‘compoundability’, or ‘sullah safai’ where police and state institutions actively encourage parties to settle matters outside the state’s ambit. This results in fewer crime records and reduces investigative and prosecution work. It helps the more powerful party pay its way to safety. It also creates untenable positions: the state is willing to assert itself and prosecute a crime such as kidnapping or robbery, where the issue is collective injury to society, but will step back if a murder is involved — in the latter case, it is a problem for the murdered individual’s family to take care of. Proposed amendments include that diyat agreements should not be considered valid till the verdict is announced so that the aggrieved party can accept diyat, but from a position of strength.

The larger issue is systemic. Diyat cannot be used in cases that create terror, chaos and disorder in society (fasad-fil-arz). It could be argued though, that the absence of the state itself causes chaos and disorder in society, as illustrated from Fata in the northwest to Sindh’s katcha in the southeast. Wherever the state retreats, chaos ensues. Diyat is predicated on the retraction of the state, which in turn creates uncertainty and distrust in the law, hence its current applicability may be questionable.

There is little space left for a rational debate on anything once it gets flagged as a religious issue. The qisas and diyat laws were brought about on the insistence of the Federal Shariat Court. Whether parliamentarians or bureaucrats or the armed forces, all concede space by ignoring that what happens in Faizabad doesn’t stay in Faizabad. It cannot be about dispersing protests or consolidating alliances or pandering to the right wing when the basic role of the state is in question.

The writer is a researcher and consultant in the social sector.
nazishbrohi.nb@gmail.com
Twitter: @Nazish_Brohi

Published in Dawn, January 3rd, 2018