Here is the situation that currently prevails in the Land of the Pure. Tomorrow, in a fit of anger or passion, or even as part of a deliberate plan, I could walk up to someone and murder them. Should I subsequently be arrested for this crime, several outcomes are possible. Assuming there is irrefutable proof that I committed murder, it is likely that I would be convicted of the crime and sentenced to be punished accordingly. However, at this point in time, I could use my money and influence to arrive at a settlement with the victim’s family, promising to give them compensation in exchange for their ‘forgiveness’. Alternatively, I could use that same money and influence to coerce the victim’s family, threatening them with dire consequences should they not ‘forgive’ me. Either way, once ‘forgiveness’ is secured, I would not have to go to jail or be punished by the state in any way. I would walk away from the entire affair a free man despite being convicted as a murderer by a court of law.

This is essentially what happens under Pakistan’s Qisas (retribution) and Diyat (compensation) laws. First introduced in 1990 through an ordinance by President Ghulam Ishaq Khan in 1990, and subsequently enshrined in law through an act of parliament passed by the PML government of Nawaz Sharif in 1997, the Qisas and Diyat laws apply to all offences against the human body and have two main effects; firstly, they ensure that crimes against the body (such as murder or rape) are strictly assumed to involve individuals, meaning that the state and society cannot be party to any proceedings relating to these crimes, and secondly, the victims of such crimes, or their heirs, can reach private settlements with the accused, allowing for the payment of compensation or even outright forgiveness to take the place of the kinds of punishment that might otherwise be imposed by a court. There are only two sets of circumstances under which the Qisas and Diyat laws can be bypassed; either when the accused are tried as terrorists under Pakistan’s anti-terror laws (in which case the state automatically becomes party to the proceedings, negating the possibility of a private settlement), or when a court decides that, under section 311 of the Pakistan Penal Code, the offence in question constitutes an outrage against society. In the past, both of these scenarios have rarely been invoked.

The Qisas and Diyat laws are once again in the news because of the blatant way in which they continue to be misused. In the Shahzeb Khan murder case, for example, the accused Shahrukh Jatoi and his alleged accomplices have been set back to prison by the Supreme Court after it set aside an earlier decision by the Sindh High Court that had nullified the sentence passed by the anti-terrorism court that first heard the case. The fear, as expressed by activists who had petitioning the Supreme Court to take up the case, was that sans the charges of terrorism that had initially been filed against Jatoi, any retrial in a sessions court would simply be subverted by a private settlement under the Qisas and Diyat laws. Indeed, the family of Shahzeb Khan has repeatedly said that it has ‘forgiven’ Shahrukh Jatoi, and has no interest in pursuing the matter further. What is problematic about this is the existence of some evidence, gleaned from statement made by extended members of the family, suggesting that the Jatois and their supporters have been coercing the family, using their power and influence to force a settlement.

In a similar set of cases, reports have been coming from around the country of families forgiving rapists and pedophiles who were caught targeting their children. Much like the Shahzeb Khan case, the facts of the matter are depressingly familiar; relatively poor and marginalized families are coerced into reaching settlements with the criminals who target them, with the pressure to do so coming from influential local leaders, elders, and others. Sometimes, this forgiveness in given freely. In other cases, the offer of monetary compensation is often something that is difficult for the heirs of the victims to refuse; given the dysfunctional nature of the police and the criminal justice system, some may rightly believe that money represents a more tangible form of relief than justice that is unlikely to be delivered.

Whatever the circumstances, the problems with the Qisas and Diyat laws are plain to see. What they essentially do is provide the rich and powerful with the means by which to evade responsibility for any crimes that they might commit. Time and again, in case after case, it is blatantly obvious that this is the purpose served by these laws and whatever the original intent may have been behind their introduction, the fact is that they have institutionalized a two-tier justice system, one in which those without resources and influence are subject to the full force of the law, while those who possess both are able to legally pay or bully their way out of punishment. It is often said that the law functions differently for the rich and the poor, and there is perhaps no better demonstration of this than the way in which the Qisas and Diyat laws have allowed murderers, rapists, and others to literally get away with their crimes.

Many would argue that the Qisas and Diyat laws are a sensitive issue in Pakistan given their religious provenance. This is not incorrect, but there is a deeper principle that is worth pondering. Those who support these laws on the basis of their Islamic origins would undoubtedly agree with the idea that principles of justice and fair-play must underpin any legal system, and that Islamic provisions and laws are not meant to simply provide mechanisms through which the powerful can do as they please. To suggest otherwise would be to endorse the idea that Islamic law is fundamentally unjust, an idea that would find very few takers. Given that there is overwhelming evidence to support the notion that the Qisas and Diyat laws, as they currently exist, facilitate injustice, it is imperative that there be a discussion about ways in which they could be reformed to address the loopholes that lead to their exploitation. There may be room for concepts like ‘forgiveness’ and ‘compensation’ in the Pakistani legal system, but it is vitally important that they be included in a manner that promotes, rather than impedes, the provision of justice.

 

The writer is an assistant professor of political science at LUMS.

hassan.javid@lums.edu.pk