HUMAN RIGHTS: ISLAMIC LAW PERSPECTIVE

HUMAN RIGHTS: ISLAMIC LAW PERSPECTIVE Many writers use the term 'Public Rights' alternatively with the 'Rights of God' and rightly state: 'Rights of former class (i.e. Rights of God) are such as involve benefit to the community at large and not merely to a particular individual. They are referred to God because of the magnitude of risks involved in their violation and of the comprehensive benefits, which would result from their fulfillment. It is not to be understood that those rights are called rights of God because they are of any benefit to God for He is above all wants, nor because they are the creation of God for all rights are equally the creation of God who is the Creator of everything. The rights of God correspond to public rights and since the Mohammedan Law regards the observance of obligatory devotional acts as being beneficial to the community there is no difficulty in describing all rights of God as Public Rights'.3 Abdur Rahim beautifully elucidates the difference between the two in the following words: 'What chiefly distinguishes such a right from a right of man or a private right is this, the enforcement of the former is a duty of the stare, while it is at the opinion of the person whose private right is infringed whether to ask for its enforcement or not. It may be that certain acts, which give rise to a public right, affect some particular individuals more than the others do but that fact will not entitle those individuals more to condone the acts of the offender. It is, however, entirely at the discretion of the individual injuriously affected by the infringement of a private right, whether to pardon the wrongdoer or to insist upon redress.'4 To illustrate the Human Rights in Islamic Law, let us cite some of the examples from the Holy Qur'an and Sunnah [especially from the Farewell Sermon of the Holy Prophet (p.b.u.h.)], which is regarded as the first comprehensive charter found on the, basic fundamental rights of man).5 3. Abdur Rahim. Mohammedan Jurisprudence. pp.201-202 4. Ibid 5. Dr. Nasim Hassan Shah. Law, Justice and Islam. P.7 1. THE RIGHT TO LIFE: The right to life is of supreme importance in Islam and severe punishment is prescribed for a person infringing this right. The right to life is one of the 'Rights of People'. 'And do not kill anyone which Allah has forbidden except for a just cause...6 The punishment imposed on its infraction is very serious and is put in the following words: 'And We ordained therein for them: Life for Life...7 Similarly, the Holy Prophet (p.b.u.h.) in his Farewell Sermon said: '... Your blood and your property are as sacred as is this Day and this Month (i.e. 9th Zul-Hijja)... ' The same right to life is also envisaged in the Constitution of Pakistan, 19738 and is a right which is of universal nature and all the nations and their people acknowledge it. Therefore the Universal Declaration of Human Rights which is a manifestation of acknowledgement of Human Rights internationally declares that 'Everyone has the right to life'.9 A cognate right to the Right to Life is right of Private Defence. which has been provided in Pakistan Penal Code, 1860.10 It extends to cause grievous injury or even death (in case of imminent fear of death, grievous hurt, rape. unnatural lust, kidnapping or abducting and wrongful confinement) of the person trying to deprive a person of his right to life unlawfully. This Right of Private Defence is not alien to Islamic law; it existed right from the day one of Islam and has so much significance that a person fearing apprehension to life and in state of extreme duress may even utter word of infidelity. 6. Al-Quran (Al-Isra: 33) 7. Al-Quran (Al-Maida:45) 8. Article 9 is the second Article of Chapter 1 of Part 2 of the Constitution of Pakistan, which deals with the Fundamental Rights. It reads: 'No person shall be deprived of life or liberty save in accordance with law'. 9. Article 3. 10. Section 96 to Section 106 of Pakistan Penal Code. 1860. 2. THE RIGHT TO PROPERTY: After the right to life, a lot of significance has been given to the right to property. Allah says: 'And eat up not one another's property unjustly (in an illegal way)'11 11. Al-Baqarah: 179. In conferring right to property, Islamic law equally bestows non‑Muslims with this right notwithstanding their religion, belief and status. Holy Prophet (p.b.u.h.) while exhorting Muslims to be trustworthy and fair towards their brothers and to all members of a Muslim society said (on the eve of his (p.b.u.h.) Farewell Sermon): 'He who is entrusted with property belonging to another should deliver his trust to whom it belongs'. Likewise, on the eve of Battle of Khyber, a shepherd who was looking after the cattle of Jews against whom the Muslims were gathering to fight for the cause of Allah, came to Holy Prophet (p.b.u.h.) and embraced Islam. He then asked for Holy Prophet's (p.b.u.h.) permission in order to participate in the Battle. Holy Prophet (p.b.u.h.) ordered him to first return the property (i.e. the cattle) of Jews and thereupon join the Muslim army for the holy war. Hence, this is the way in which extreme reverence is shown towards others' rights. No emergency, martial law or dictatorship can suspend or revoke the rights given by Islam to its subjects. No more serious emergency than State of war can be conceived and even then as illustrated above the rights of, not only members of a Muslim society but those of enemy are also kept intact. This is the epitome of preservation of rights, which sets both: highest standards of all times and examples to be followed. This right too, is accepted universally by all civilized societies and is, therefore, rightly incorporated in the Constitution of Pakistan.12 In the Universal Declaration of Human Rights, 1948, it is provided that everyone has a right to own property of which he cannot be deprived arbitrarily.13 In Pakistan Penal Code, the right to private defence is also extended with respect to protection of property.14 It gives a member of Pakistani society a right to cause grievous hurt or even death for preservation of his property. 3. RIGHT TO LAWFUL RETRIBUTION (QISAS): Lawful retribution is a broad-based principle of Islamic Law and all the chaos and lack of stability observed in the extant Muslim world are due to non-observance of this principle. Allah has, repeatedly in His Book, highlighted the significance and utility of this principle. For example, He says. 'And there is (a saving of) life for your in Al-Qisas, O' men of understanding that you may become pious'15 12. Articles 23 and 24 of the Constitution of Pakistan. 1973. 13. Article 17 of the Universal Declaration of Human Rights, 1948. 14. Section 103 of Pakistan Penal Code. 1860. 15. Al-Baqarah: 179. Establishing the board principle in unequivocal terms, He says: 'And we ordained therein for them: Life for Life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds equal for equal'.16 This right of retaliation has neither developed nor incorporated in Islamic Law but could be found instilled and imbibed from the very first day, in a society where no such concept had its roots and whole of the tribes were used to be killed against a single person. This shows originality of Islamic Law. The right to lawful retaliation provides in itself a complete operative mechanism of justice. This is one of the characteristics of Islamic Law by virtue of which it bestows upon its subjects such rights as would not be even anticipated by any other legal system or religion. 4. RIGHT OF EQUALITY BEFORE LAW: Equality before law is the hallmark of Islamic Law. This right derives its legality from the following: Allah says: 'O mankind! Be dutiful to your Lord. Who created you from a single person (Adam), and from him (Adam) He created his wife, and from them both, He created mended women, both'.17 And He says: 'O you who believe! Al-Qisas is prescribed for you in case of murder: the free for free, the slave for slave and the female for female'.18 16. Al-Maidah: 45. 17. Al-Nisa:1. 18. Al-Bagra: 178. Holy Prophet (p.b.u.h.) said (on the eve of Farewell Sermon); 'All of your are equal as the fingers of a hand'. He also said: 'The Arabs are not superior to non-Arabs, nor the non-Arabs to the Arabs.' Yet, many, more explicit texts of Islamic sources of prime nature can be quoted on the point to establish it significance, it seems apposite to see how far this principle is inducted in your Constitution. Our Constitution's chapter dealing with the Fundamental Rights states: 'All citizens are equal before law and are entitled to equal protection of law. There shall be no discrimination on the basis of sex alone'.19 Likewise, this right given first by Islam is now followed as a principle of universal nature as the Universal Declaration of Human Rights 1948, phrases it as: 'All are equal before law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination'20 5. RIGHTS OF PERSONAL FREEDOM This right, which is thought by many to be a concept of recent times, was indeed, present from the very beginning of Islam. Allah says: 'He it is, Who has made the earth subservient to you, so walk in the path, therefore, and eat of His provision, and to Him will be the resurrection'.21 And He says: 'O you who believe! Avoid much suspicion, indeed some suspicions are sins'.22 19. Article 25(1) of the Constitution of Pakistan. 20. Article 7 of the Universal Declaration of Human Rights, 1948. 21. Al-Mulk:15. 22. Al-Hujurat: 12. Holy Prophet (p.b.u.h.) in his life had given tacit approval of this right. Dr. Nasim Hasan Shah, in his book stated it in the following words: 'Inferred from Sunnah by Imam Khattabi and Imam Abu Yusuf. A Tradition is reported by Abu Daud to the effect that some persons were arrested on suspicion in Medinah in the time of the Holy Prophet (p.b.u.h.). Subsequently, while the Holy Prophet (p.b.u.h.) was delivering the Friday Sermon, a Companion enquired of him as to why and on what grounds had these persons been arrested. The Holy Prophet (p.b.u.h.) maintained silence while the question was repeated twice, thus giving an opportunity to the prosecutor, who was present there, to explain the position. When the question was put for the third time and it again failed to elicit a reply from the prosecutor, the Holy Prophet (p.b.u.h.) ordered that those persons should be released. On the basis of this Tradition, Imam Khattabi argues in his 'Mualim-ul-Sunnan' that Islam recognises only two kinds of detention: (a) Under the orders of the Court, and (b) For the purpose of investigation. There is no other ground on which a person could be deprived of his freedom'.23 Umar (RA) has said: 'In Islam no person can be put behind the bars except in accordance with the law'.24 The Constitution of Pakistan, 197325, writes down that no person should be detained and arrested unlawfully and whoever is detained or arrested must be produced before a Magistrate within twenty-four hours. 23. Dr. Nasim Hasan Shah, Law Justice and Islam, pp.9-10. 24. Dr. Riaz-ul-Hassan Gillani, The Reconstruction of Legal Thought in Islam, p.244. 25. Article 10 of the Constitution of Islamic Republic of Pakistan. Articles 9, 10 and 11 of Universal Declaration of Human Rights, 1948, put the principles dealing with personal freedom and protection against arrest, detention and unlawful confinement. Freedom of religion, rights of minorities, protection against wrongs of others, freedom of opinion, of association, of privacy, right to disobedience of sinners and ingrates, and the right to reputation, to inheritance, to fair trial etc., are some other examples of the human rights provided in Islam and have same binding force as those mentioned above. Family members' rights are given a lot of importance, and one can find a full range of these rights. From right of maintenance for wife to inheritance rights evince the social orientation of Islamic Law. Non-Muslims and the persons who have contracted with Muslim State for asylum have their human rights, which are considered as sacred as those of Muslims. Besides, these legally enforceable human rights, there are rights which are not enforceable through judicial medium and are included in moral and ethical values of Islam. For example, in Islam one neighbour has right over another, by virtue of which neighbours are bound to take care of each other and share each other's jubilation and woe. These rights cum values may not be enforceable by a judicial authority but will be rewarded or punished (as the case may be) in hereinafter. The rights-cum-values are not based on rhetoric or speculations; they are derived and based on the authentic sources of Islamic Law. Conclusion In summing up, it seems appropriate to quote some examples from the traditions of Holy Prophet (p.b.u.h.) demonstrating respect of Human Rights and the values akin to rights in Islam: The Prophet (p.b.u.h.) said: 'I swear by God he does not believe, I swear by God he does not believe, I swear by God he does not believe'. He was asked who is the person, who does not believe? He replied, 'the one from whose injurious conduct his neighbours are not safe'. 'The believer is not who eats, and his neighbour beside him hungry' 26 26. Suzanne Haneef, What Everyone should know about Islam, p.80 Making fear of God (taqwa) and Faith (iman) basis for all deeds of a person, Islam elucidates number of moral and ethical values. The amalgamation of the values with Human Rights, which when combine with judicial mechanism of Islamic society, give rise to a strong inner thrust in every member of the society for accomplishment of the human rights stated above. Islam does not merely envisage these values, it provides a system for inculcating these good values into character of a Muslim. For example, it is obligatory to pray five times a day. This obligation, when performed, brings self-discipline, self-control and due consideration to cleanliness in character of a person: Zakat, which is also obligatory, develops the sense of fraternity, charitableness, generosity and benevolence among Muslims. Responsibility and contentment are the traits, which are outcome of observance of this duty. Once these traits develop in a person's character, he strives his best to fulfill his duties and consequently the rights are given to the deserving ones with free will of society. Dignity, honour, self-respect, purity, modesty, and chastity, all are part of a Muslim's character and thereupon, on macro-level, these are reflected in whole of the society. It is the obligatory Hajj, which gives rise to virtues as humility, patience, endurance, courage and thankfulness. The basic principle, of 'Exhortation for Virtues and Prohibition of Vices' is the hallmark of Islam, which serves as a safety valve for protection of human rights.