As the firestorm of protest in the wake of the sudden change of heart of Shahzeb Khan’s family subsides, it is time to mull over the Sharia-inspired Qisas and Diyat (Q&D) ordinances, which are seemingly based on the principles of equal retribution and compensation and were meant, originally at least, to end the cycle of violence and vendetta. Yet, what Pakistanis have seen, over and over again, is that it has become a get-out-of-jail-free card which has led to the release of at least one foreign spy and one rich young murderer.

“Flawed laws promulgated in the garb of religion provide for protection of the generally rich and influential perpetrators,” was Bushra Gohar’s reaction when the former national assembly member first heard that Shahrukh Jatoi had been pardoned. As with so many others, it also reminded her of Raymond Davis’ case.

Since then, and even before, many civil society activists have called for a review of the law calling it a ‘privatisation of justice’ since it favours the rich who can pay off the aggrieved family, thus allowing murderers to go free. Also, human rights defenders feel that honour killings have increased in Pakistan ever since this law was introduced because the perpetrators are sure that the victims families will agree to out of court settlements when money is involved. And those who cannot be swayed by riches, can simply be intimidated into pardoning the killers.

For eminent academic, Dr Pervez Hoodbhoy, the “odious smiling gangster [Shahrukh Jatoi], flashing a victory V-sign” after his release, was telling the world that “he and his kind can kill at will; he was right!” Terming these laws anachronisms of “long gone times” which have no place in modern societies, he said their application only lead to “grotesque distortions of justice”.

“We’ve been saying all along that those with resources are able to get away with murder and only the poor are sentenced to death,” said an exasperated Zohra Yusuf, chairperson of the Human Rights Commission of Pakistan.

With enraged youth activists and a vigilant relentless media unwilling to let the horrific crime disappear from our collective memory, perhaps the time is right to start an informed debate about these laws.

“It’s a particularly good time since Shahzeb Khan’s case has created an opening for the law to be repealed or amended,” said Babar Sattar, an Islamabad-based senior advocate.

“There is a social consensus; people were outraged by the murder and are now appalled by the pardoning of the killer by the heirs. Even religious scholars are dismayed. I think the media played a very encouraging role,” he added.

The pardon had made a mockery of Pakistan’s justice system by showing just how out of step the country was with the modern world and how little its people understood the functions and priorities of the modern state that they supposedly aspire to be. However, Shahrukh Jatoi is not a free man. At least, not yet.

“One, since this is a matter of religious texts, the parliament does not want to touch it and invoke the ire of mullahs,” says Sattar, who has extensively written on the subject. “There is a larger need for the parliament to reclaim its turf, but anything to do with the Islamisation laws of Zia’s era are left untouched, even if the legislators agree that it is being abused because they may get accused of propagating a Western liberal agenda, which they do not want,” he adds.

The other reason, Sattar states, is that the law itself suits the ruling elite who are themselves rich and powerful. “There is an economic and class benefit that also plays its part here, since it actually benefits the ruling elite to keep this law,” Sattar adds.

However, parliamentarians feel that even if they have attempted to change or address problems in laws like these — they have met with serious resistance from the parliament itself.

Sherry Rehman, a former member of the National Assembly, and ex-Ambassador to the United States had proposed changes to the law during the Musharraf regime in the early 2000s but failed to achieve change. “Most of the parliamentarians did not agree with it because they belonged to a [religious] lobby that sees any such change as West-driven,” Rehman says.

Later, Rehman also tried to bring amendments to the controversial blasphemy law — but even those efforts were shot down by her own government. “It’s a very uphill battle and takes years to build consensus. And with rising extremism around Pakistan, the space for such debate has been shrinking,” she adds.

Rehman feels that a number of stakeholders need to be involved in order to convince the parliament to bring changes to such laws. “We need active input from non-governmental organisations, which is missing. Also, we need to involve progressive religious scholars, and get their endorsements to create such an atmosphere,” she adds, saying that her efforts in this regard did at least ensure that the Sexual Harassment at Workplace 2010 Act which was passed by the last government made it through the parliament.

Rehman says that though she failed to get the Qisas and Diyat ordinance amended during Musharraf’s rule, she was however able to raise this debate and ensure that the judiciary at least reviewed its decisions regarding such cases.

While not referring to this case in particular, the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhary, famously pointed out recently: “Pardoning in the name of Almighty Allah in a murder is fasad fil arz (mischief done in society)”, while Justice Jawad S. Khwaja, also a Supreme Court judge, remarked: “Pardoning in the name of Almighty [should not] be made a custom.”

“Murder should be considered a crime against the state and society and not a matter for families to settle privately,” said Yusuf emphasising that the HRCP was against the cruel practice of death sentence.

Ironically, says veteran human rights activist I.A. Rehman, the law came in very handy for scores of ‘honour’ killers when it was invoked to excuse premeditated murders of women by their families. “Today when a rich family is buying its way out, the society is up in arms,” he said, pointing out that this wasn’t the first time this law was abused.

“While it may be difficult to repeal the laws” at this stage, Rehman said, the loopholes in them can be plugged.

Other lawyers argue that if Islamic law is to truly be applied in Pakistan, it should be modernised and brought up-to-date with modern realities including the theory of statehood where the true end of government is to protect its people.

The good news is that at least a conversation and debate has begun that will hopefully bring clarity to the previously myopic focus on the law and its application. But the question is who will lead this debate and take it forward?

Gohar believes this is an opportunity for the “legislators to open a debate and call for either a repeal or an amendment”.

To that Hoodbhoy added laconically: “The new parliament, like the previous one, will not dare.”

After the way Raymond Davis was allowed to quietly and swiftly sneak out of the country, few have any confidence in the powers that be.

“Unfortunately Zia’s dark laws were stifled by a religious extremist mindset cultivated over the years by the state through its radicalised policies and state-sponsored extremist outfits,” conceded Gohar.

That is perhaps the reason why Sattar believes the parliament should be avoided. “If it goes to the parliament the legislators will only get entangled in a discussion on the common law versus sharia law when it comes to definitions and nothing will come out of it. We may even lose out on interpreting other draconian laws like the blasphemy laws, etc,” he said.

Instead, he said it was an opportune time for the court to use its authority to interpret relevant provisions of the said law to guard against its abuse, especially given the fact that the Shahzeb case and other cases that involve this question of legal interpretation are pending before the courts.

By asking the amicus curiae (a brief presented by someone interested in influencing the outcome of a lawsuit but who is not a party to it) to interpret and define what falls within the precincts of fasad fil arz, the apex court has taken the first step and extricated the ordinances out from the maulvi’s hands, he says.

“So if the Supreme Court is able to interpret that the crime of murder is not a private matter but a crime against society, it can use its discretion to punish the killer irrespective of the pardon given by the heirs,” Sattar concluded. n — Additional reporting by Taha Siddiqui