IS IGNORANCE OF LAW NO EXCUSE? A STUDY IN ISLAMIC PERSPECTIVE

IS IGNORANCE OF LAW NO EXCUSE <!--[if gte mso 10]> IS IGNORANCE OF LAW NO EXCUSE? A STUDY IN ISLAMIC PERSPECTIVE By Mehboob Pervez Awan, M.A.,LL.B. Maxim: Ignorantia Facti Excusat Ignorantia Juris Nonexcusat "Ignorance of fact excuses -- Ignorance of law does not excuse" is a dictum accepted by the holders of the Roman and the common law in the West. This may be true in societies where arrangements to make people law conscious is the duty of the State, where literacy percentage is comparatively high and where knowledge of the rights and obligations is equally valued; but not in the society where rights and obligations are Greek to each other. The main justification for this rule is that responsibility should be imposed on all members of the community and people to know what is and is not allowed. Ignorance may be either of law or fact i.e. if the heir is ignored of the death of his ancestor, he is said to be ignorant of a fact, but if, being aware of the death and of his own relationship, he is nevertheless ignorant that certain rights have already become vested in itself, he is ignorant of law and as a general rule ignorance of a material fact may excuse a party from legal consequences of his conduct but ignorance of law which every man is presumed to know does not afford excuse as described by Broom's in his "Legal Maxims". How this principle is equally applicable in the societies where majority of population lives in rural areas who are not aware of their rights specially our womenfolk lack this disability. Our Superior Courts also felt this disability and rightly observed in case Ghulam Ali v. Mst. Ghulam Sarwar Naqvi P L D 1990 S C 1 that: "In the rural areas where 80% of the female population resides, the inheritance rights of the female are not protected and enforced as Islam requires ..It is a pity that while an urbanised brother who is labourer in a neighbouring Mill has the protection of such mass of labour laws, his unfortunate sister is deprived of her most valuable right of inheritance." Why they are being deprived of their rights, because they do not know their rights including that of inheritance, that is why the Supreme Court in case Naseem v. Fayyaz Khan PLD 1991 SC 412 emphasised the extreme urgency of taking immediate measures and initiating social uplift programmes in rural areas to ameliorate the miserable plight of the poor illiterate classes of people living there and suggested for establishing a statutory committee. Due to lack of proper education they cannot effectively resolve their marital problems, sometimes a valuable right is defeated mere on technical ground of limitation; how many people know the period of limitation to seek timely remedy, even our well-educated people do not know the period of limitation to seek their remedy. These are some of the questions which need serious consideration and give rise to the need of day that at least basic legal education must be provided to mass population without which it cannot be ensured proper remedy to needy. Unless people are made aware of their rights and obligations they cannot be held responsible because according to the law of the Holy Qur'an, a person is held responsible for his offence only when the law has been duly explained to him. The Holy Qur'an provides: "We do not chastise until we raise a messenger." (17:15) and for the convenience of the people and for their better understanding of the law, messengers are raised amongst the people who explain it in their own language: "And we sent no messenger but with the language of his people, so that he might explain to them clearly." (14:4) The knowledge and explanation in the language of people should be the sine qua non for taking action or proceeding against or in default of proper and adequate education, ignorance of law should be treated a valid excuse. In this regard a well-known tradition of the Holy Prophet (p.b.u.h.) in case of Muaz's Confession of the commission of rape is worth mentioning wherein the Holy Prophet (p.b.u.h.) after ascertaining himself by putting various questions put a very significant question to him "Do you understand what is Zina?" he replied "Yes" (Abu Dawood). The wisdom behind this question was to ascertain whether the person making confession is fully aware of the nature of offence and consequences thereof. Similarly in the reign of Hazrat Umer (r.a.t.u.) a case of extra-judicial confession of Zina was reported to him wherein Hazrat Umer said: "Ask the accused whether he had knowledge of the prohibition of Zina, if he had knowledge then punish him accordingly; if he had no knowledge then tell him Zina is prohibited in Islam and if he commits it again, then punish him." (Ahkam-e-Shariah Main Halaat-o-Zamana ki Riayat by Maulana Muhammad Taqui Ameen p.221). In another administrative directive, Hazrat Umer commended; " .when you want to chat speak on the topic of inheritance". The purpose behind was, so that people may be aware of their legal rights and obligations. (Hazrat Umer Kay Sarkari Khatut p.393-399 compiled by Prof. Khurshid Ahmed Tariq) Dr. Muhammad Yusuf Guraya in his book "Judicial System under the Holy Prophet and the first two Caliphs (p.253) states: "Islam gives the benefit of ignorance to the persons concerned if the State agencies fail to perform their duty of educating the people and making them aware of their duties and obligations. God has made accountable only those people whom he has conveyed his message." Before inflicting punishment the educating agencies will take account of themselves whether they have really given legal education and have ensured that the accused had duly received it. According to Fiqh of Islam, ignorance is also a valid excuse as stated by Muhammad Taqi Ameeni in his book entitled, "Fiqah Islam Ka Tariki Pas Manzer, (p.378)." Now it is the need of hour that steps should be taken to make people law conscious (law knowing) and for this purpose information about the law in plain and understandable language must be widely published and circulated amongst the people in easy comprehensible language preferably in Urdu or local languages. Law should be in plain language, clear and not clever; community education and information system should be evolved to give legal advice free of cost, if not possible, on nominal charges and this system can easily be utilized if legal advice centres are established at mohalla or ward level. However, the primary duty individually and collectively is to work specially in our rural areas where 80% of our population is residing. If we could achieve these objectives, then we can say ignorance is no excuse, otherwise ignorance of law should be treated a valid excuse. *** SCHEME FOR THE PROTECTION OF HUMAN RIGHTS OF ALL CLASSES OF SOCIETY IN THE COUNTRY Reasons, Aims and Objects: The mandate given to the nation by the founding-fathers in the shape of the Objectives Resolution, now a substantive part of our Constitution, and other Articles of the Constitution, ensuring and guaranteeing all fundamental human rights and emphasising social, economic and political justice to all has yet to fully achieve its promise in practical terms. The Judiciary, before and after independence, time and again has come to the rescue of the citizens by safeguarding their rights whenever the dictates of justice so demanded by following our own ethos and conscience and by invoking directly, Muslim Law and Jurisprudence in individual cases for the protection of human rights in the society e.g. nearly a century ago Syed Mahmood, Judge of Allahabad High Court in his judgment (ILR 7 All. 775) also adopted this trend which is still continuing. Superior Judiciary has clearly emphasised the need for a genuine effort for re-construction of the Islamic concepts in this field and for evolving steps in an indigenous manner for guiding and motivating the citizens and the State for asserting, promoting and enforcing the legal rights of citizens guaranteed and provided by Islam, the Constitution and the Law. The Supreme Court in its various recent judgments has also emphasised the need for taking more practical steps towards this end e.g. in the Bonded Labour case it was observed:-‑ For the same purpose the other important elements in these Fundamental Rights, may be collected together and put in a self-contained Code. It might cover all aspects of human dignity, deprivations and misery, including those rights in this behalf which are ensured, in addition, as basic human rights in Islam. This Court has in the Shariat jurisdiction dealt with some of them. There is no bar in the Constitution to the inclusion in such law of these rights, in addition to the Fundamental Rights contained in Chapter I, Part II thereof. This comprehensive law should deal with the compulsory education of the classes concerned for making them aware of their rights; the detection of the infringement thereof as the duty of the State; and providing remedial mechanism also at the instance of the State whenever the will to assert or exercise them is lacking on the part of a citizen. These aspects of the enforcement of Fundamental Rights guaranteed by the Constitution and other basic human rights ensured by Islam can, by law be made also into an independent inalienable right, with self-operating mechanism for its enforcement as well." (Darshan Masih's case PLD 1990 SC 513). Similarly the Supreme Court in Women's Rights case devised an outline of a mechanism which is as follows:-‑ "A large number of members of the legal fraternity have live contacts with the rural life from where the majority of them come. They also are aware of the malady and many may be involved in the tragedy. They can carry this burden adequately. While the Bar always seeks the protection of its rights through legislation, an amendment therein to honour the honourable members thereof with the duty of the protection of the rights of (if not all the deprived classes of society) at least the women-folk of rural areas to start with, will not be out of place. There can be statutory committees for this purpose of the Pakistan and the Provincial Bar Councils with the collaboration of the local Bar Association. They can be headed by the Judges of the Superior Judiciary as it is for the other existing committees and tribunals. A network can be created with the inclusion of the lawyers who belong to the respective localities as also the departmental representatives of education, health, labour, social welfare and revenue departments. They can also point out prospective and actual cases of infringement of rights--failure to do so might also incur penalty, even for the lawyer, before his domestic disciplinary tribunal, of the respective Bar Council." (Mst. Naqvi's case PLD 1990 SC 1). In the meetings of the Chief Justices Committee held in Quetta and Islamabad on 9-3-1990 and 13-4-1991. The Chief Justices took a unanimous decision and requested the Chief Justice of Pakistan to frame a comprehensive Scheme on the lines indicated in the above-referred judgments. After elaborate study the Scheme was developed by the Pakistan Law Commission under the guidance and directions of the Chief Justice of Pakistan and was placed in the meeting of Chief Justices held in Murree on 18-5-1991. After considering it at length, the meeting approved it and Secretary Law Commission was directed to make it public as well as to solicit opinion of Judicial and Administrative District heads of the country for further improving the Scheme. 70% of District heads responded and 95% out of them supported the Scheme. After incorporating their suggestions the Scheme was considered by the Chief Justices Committee on 11-7-1991 at Rawalpindi and finally on 14-8-1991 at Quetta. When on the same day a formal Declaration was also signed by the six Chief Justices of Pakistan namely Chief Justice of Pakistan, Chief Justice of Federal Shariat Court and four Chief Justices of High Courts. Thereafter, it was thoroughly examined by the Judicial Conference on 15-8-1991 at Quetta. While developing the Scheme, due to the Constitutional mandates, special care and attention has been focussed on the poor and the deprived classes of society.. The Chief Justices observed that despite Articles 4 and 25 of the Constitution which envisage equality before law, only the rich and the resourceful, to some extent, are able to protect their rights, while the poor are left undefended due to the, fact that either they are unable to afford actions or are not aware of their legal rights. Therefore, the doors of the traditional legal system in a way have been closed to the poor due to this disparity with the result that they are disillusioned and are losing confidence in the whole system of administration of justice. In order to rectify the situation and to eliminate this disparity as well as to eradicate other social evils prevalent in the society it was thought necessary that a body should be created from the existing judicial and administrative set-up in the country by assigning certain functions to it so that all citizens and especially the deprived and unaided sections of the community become conscious and assertive of their rights guaranteed by Islam, the Constitution and the law. And simultaneously the 'consciousness and will to exercise these rights be matched with a full-fledged machinery to help, protect and enforce them as also to make the citizens aware of their obligations towards their fellow citizens, State and the society. Superior Judiciary of the country, therefore, in order to achieve the above said aims and objects have decided to go ahead and reiterated their resolve in the QUETTA DECLARATION of 14th August, 1991 as follows:‑ JUDICIARY, an organ of the State, being cognizant of its duty and responsibilities under the Constitutional set-up of Pakistan: And IN order to achieve the Constitutional objectives: And DERIVING the necessary authority from Articles 2-A, 4, 5, 7 to 40, 184 (3), 187, 189, 190, 199, 201, 203, Chapter 3-A of Part VII of the "Constitution" and the "Objectives Resolution": DO HEREBY DECIDE AS FOLLOWS:-‑ (1) to make and operate a country-wide Scheme for the protection of Human Rights of all Classes of Society through a set-up to be headed by the Chief Justice of Pakistan for awareness, protection and promotion of Human Rights of all classes of society; (2) to ensure that all citizens, particularly the deprived and unaided sections of the society, become conscious and assertive of their rights and obligations as guaranteed and provided by Islam, the Constitution and the Law and in order to achieve this objective, to provide an efficient machinery at the door-steps so that they can protect the rights and fulfil the obligations; (3) to strive for realizing the objectives set out in the "OBJECTIVES RESOLUTION" as well as in the "CONSTITUTION" with particular emphasis on Islamic social justice; (4) to eradicate all social evils and to inculcate a way of life in which justice and rule of law prevail so that one who seeks justice must also do justice; and (5) to operate the scheme through enforceable judicial pronouncements on all relevant matters which are lawfully brought before or otherwise are necessary to be decided by the Superior Courts in accordance with law. All organs of the State as well as all citizens are expected to contribute and actively participate in the enforcement of the Scheme. However, the Bar and especially the statutory organizations thereof shall act as vanguard and main vehicle for the success of the Scheme--the Judiciary providing the necessary umbrella to everyone who would strive for it but all in accordance with law and, remaining strictly within the Constitutional set-up of Pakistan (Inshallah) Note: 1. It is clarified that while the duty to achieve all that which is envisaged above, remains that of the citizens and of all three organs of the State, it is hoped and expected that efforts of each would supplement those of the others; 2. At this initial stage, independent legislation and finances are not required. As and when the Scheme is geared up and experience also indicates the absolute need for legislation and/or finances, necessary request would then be made to the Government. NOW, therefore, to implement the DECLARATION the following SCHEME is hereby made and enforced:-‑ SCHEME There shall be a "Central Council for Awareness' and Enforcement of Human Rights and Obligations" (hereinafter referred as the Central Council). The Central Council shall consist of the following members divided into two segments: (I) Controlling working section: (1) Chief Justice of Pakistan as its Chairman. (2) One senior most Judge of the Supreme Court of Pakistan. (3) Last retired Chief Justice of Pakistan. (4) Last retired senior puisne Judge of the Supreme Court. (5) Chief Justice of Federal Shariat Court. (6) Chief Justice of Lahore High Court. (7) Chief Justice of Sindh High Court. (8) Chief Justice of Peshawar High Court. (9) Chief Justice of Balochistan High Court. (10) Vice-Chairman, Pakistan Bar Council. II. Supportive section: (11) Federal Minister for Finance. (12) Federal Minister for Law, Justice and Parliamentary Affairs. (13) Attorney-General for Pakistan. (14) Wafaqi Mohtasib. (15) Chairman Council of Islamic Ideology. (16) Chairman Central Zakat Council. (17) All Secretaries to the Federal Government. (18) Chairman, University Grants Commission. (19) One senior Journalist to be nominated by the Chief Justice of Pakistan. (20) Such other members from different walks of life as required and nominated by the Federal Government on the recommendation of the Chief Justice of Pakistan. For carrying out the programmes of the Central Council the Secretary of the Pakistan Law Commission will act as Secretary of the Central Council. The main functions of the Central Council shall be as follows: (1) to lay down policy guidelines for the awareness and protection of Human Rights in the country; (2) to advise and supervise authorities working under it with respect to different programmes and schemes laid down by the Central Council; (3) to organise a media campaign to make the citizens aware of their rights and obligations; (4) to co-ordinate the efforts of the bodies functioning under this Scheme with the Government and other institution; (5) to investigate any infringement or denial of Human Rights. The Controlling Section of the Central Council shall be primarily responsible for the implementation of this Scheme. For this purpose, the persons mentioned under the Supportive Section shall be under an obligation to join in the proceedings of the Central Council as and when required, according to the need and circumstances, by the Chairman of the Central Council. The second tier shall be at the Provincial level and shall be called "Provincial Council for Awareness and Enforcement of Human Rights and Obligations" (hereinafter referred as the Provincial Council). The Provincial Council shall consist of the following members divided into two segments:-‑ (I) controlling/Working section: (1) Chief Justice of Provincial High Court as its Chairman. (2) Two next senior most Judges of the Provincial High Court. (3) Last retired Chief Justice of the Provincial High Court. (4) Vice-Chairman, Provincial Bar Council. (5) President High Court Bar Association at principal seat. (II) Supportive section: (6) Provincial Minister for Finance. (7) Provincial Law Minister. (8) Chairman Provincial Zakat Council. (9) Advocate-General of the Province. (10) Chief Secretary of the Province. (11) Other Administrative Secretaries of the Province. (12) Additional Chief Secretary (Planning and Development) of the Province. (13) Inspector-General of Police. (14) All Presidents of High Court Bar Associations at various Benches. (15) Representatives of various Universities in the Province to be nominated by the respective Universities in consultation with the Chairman of the Provincial Council. (16) Representatives of Minorities, Women, Voluntary Social Welfare Organizations and Journalists to be nominated by their respective Organizations in consultation with the Chairman of the Provincial Council. (17) Such other members from different walks of life as required and nominated by the Provincial Government on the recommendation of the Chairman of Provincial Council. For carrying out the functions of the Provincial Council, Registrar of each High Court will act as Secretary of the Provincial Council. The main functions of the Provincial Council shall be as follows: (1) to exercise general superintendence and control over the Boards for Awareness and Enforcement of the Human Rights constituted at district level under the Scheme; (2) to take notice of all cases and situations where Human Rights remain unexercised and/or unprotected due to any reason as reported by various Boards functioning under the Scheme or which otherwise come to the notice of the Provincial Council; (3) to ensure implementation of different programmes made by the Central Council; (4) to constitute, re-constitute from time to time, the Boards and Committees in accordance with the requirement of the local areas; (5) to investigate any infringement or denial of Human Rights. The Controlling section of the Provincial Council shall be primarily responsible for overseeing and co-ordinating the activities of various Boards constituted under this Scheme. For this purpose, the persons mentioned under the Supportive section shall be under an obligation when required, according to the need and circumstances, by the Chairman of the Provincial Council. The third tier shall be at the district level and shall be called "Board for Awareness and Enforcement of Human Rights and Obligations" (hereinbefore and after referred as the Board). The Board shall consist of the following members divided into two segments:-‑ (I) Controlling/Working section: (1) District and Sessions Judge as its Director. (2) President of the local District Bar. (3) Deputy Commissioner. (4) District Attorney. (5) All members of Provincial Bar Council in the District. (II) Supportive section: (6) Mayor of Municipal Corporation or his nominee/Chairman Municipal Committee. (7) Superintendent of Police. (8) Chairman of the District Council. (9) Chairman of District Zakat and Ushr Committee. (10) All district heads of various Departments. (11) Two representatives each of Minorities, Women, Voluntary Social Welfare Orgnizations, Journalists, Labour and Non-Governmental Organizations working in this field to be nominated by their respective Organizations in consultation with the Director. (12) As many service oriented lawyers from the Bar as required duly nominated by the District and Sessions Judge (Director) in consultation with the Chairman of the Provincial Council. For carrying out the functions of the Board, the President of local District Bar Association will act as Secretary of the Board, unless for stated reasons the Director orders otherwise. The Controlling section of the Board shall be primarily responsible for overseeing and co-ordinating the activities of various Committees constituted under this Scheme within its jurisdiction. For this purpose, the persons mentioned under the supportive section shall be under an obligation to join in the proceedings of the Board as and when required, according to the need and circumstances, by the Director of the Board. In case of any difficulty the Director of the Board shall report to the Provincial Council instances of non co-operation by the executive branch or any other person faced by him during the proceedings, taken up the Board or otherwise while performing his functions under the Scheme. All Boards in order to regulate their functioning shall make and adopt their own bye-laws, with the approval of respective Provincial Councils. To co-ordinate the activities of the Board and to help the Director in the implementation of this Scheme an Additional District and Sessions Judge shall be exclusively assigned the primary responsibility to help the Director in implementing this Scheme. In any Province, due to any reason or constraint if the District and Sessions Judge is temporarily or permanently not available, a suitable person shall be appointed by the Chairman of the Provincial Council to act as the Director of the Board. The main functions of the Board shall be as follows: (1) to constitute Committees at local Council level for rectifying wrongs with the approval of the Provincial Council; (2) to determine and recommend persons of various Committees to the Provincial Council for conferment of powers under sections 14, 22, 22-A and 22-B of Cr.P.C.; (3) to monitor the working of these Committees; (4) to ensure implementation of decisions of these Committees within the territorial and other limits permitted by law; (5) to quarterly report to the Provincial Council on the functioning and progress of these Committees and other programmes and schemes of the Central Council; (6) to report to the Provincial Council all cases where Human Rights remained unexercised and/or unprotected due to any reason. The fourth tier shall be at the electoral units level in urban areas and union councils in the rural areas and shall be called "Citizen's Committees for Protection and Promotion of Human Rights and Obligations" (hereinbefore and after referred as Committees). These Committees shall be constituted from amongst the following persons:-‑ All lawyers in various categories (even non-resident ones), all ex-civil servants, all pensioners, all serving civil and Government servants located at the local Council level, all teachers, doctors, graduates, retired military personnel, all retired' judicial officers, Chairman Local Council, Lambardar, all Imams of Mosques within the area, Chairman Local Zakat Committee, Chairman Local Salat Committee, all recognised local notables and all other personnel who have held any office in connection with affairs of the State and whose residence is in the geographical limits of the local Council concerned (hereinafter referred as the assigned persons) representing the electoral unit (Ward) in the urban areas and Union Council in the rural areas. The lists of all the assigned persons in various local Councils within a district shall be prepared by the Director minus those assigned persons who incur disqualification stated in Article 63(a), (c), (f), (g), (h), (i), (j) and (1) of the Constitution of Islamic Republic of Pakistan , 1973. The Committees shall consist of not less than 20 and not more than 30 assigned persons. The non ex-officio members of the Committees will be rotated annually by the Board as far as possible. All professionals and serving civil servants amongst the assigned persons shall be duty bound to inform infringements of Human Rights to the concerned Committees, their failure to do so shall entail punishment/penalties by their respective domestic disciplinary tribunals/departments. The offices of members of various Municipal Corporations/Committees in the urban areas and the offices of Union Councils in the rural areas shall be utilised for the meetings etc. of the Committees. The main functions of these Committees shall be:-‑ (1) On information received and/or discovery of any infringement of human rights from any source relating to their area, the Committee will immediately take cognizance of the matter and try to rectify the infringement by all lawful means of persuasion, thereafter if it fails, the Committee will, through its bar component (lawyers), take appropriate action in existing legal forums e.g. by providing free legal aid etc; (2) To act as watchdogs, in connection with any infringement of Human Rights, on the administrative authorities functioning within their area; (3) To act as forums for the resolution of petty and day to day disputes of the poor by way of negotiation, conciliation and settlement; (4) To ensure proper maintenance/implementation of basic amenities/community services within their area; (5) To act as local assessment Committees for judging status-wise the capacity of a person to contribute to the State needs; (6) To act as primary vehicles of social justice, an Islamic mandate, for ensuring maximisation of national wealth, and its circulation on the Islamic principles; (7) to enforce mass literacy programmes and specially to provide free legal advice service through computerisation; (8) To help improve the quality of life of the citizens, within their area, by ensuring their rights as consumers, by working for the protection of the environment; (9) To check and improve the quality/health of education/educational institutions in their area; (10) To organise Camps in their respective areas in a systematic pattern to educate people regarding their rights and discover infringements; (11) To perform such other functions as assigned to them by the Boards/Councils; (12) To report their progress and difficulties to the Board. (Sd.) Chief Justice of Pakistan (Sd.) (Sd.) Chief Justice Chief Justice Federal Shariat Court Balochistan High Court (Sd.) (Sd.) Chief Justice Chief Justice Sindh High Court Lahore High Court (Sd.) Chief Justice Peshawar High Court Issued by Secretary, Pakistan Law Commission. (Sd.) Secretary Pakistan Law Commission