In this blog, I would like to explore reasons why some of us feel the importance of protest and demonstrations and take to the streets. Recently there have been fully blown demonstrations and protests in different countries of the world. To my surprise the protests have not only hit third world countries but also super power countries of the world, countries with impeccable record of economic performance as well as democracy and rule of law.
In the United Kingdom, students tuition fees hiking plan triggered student protest, Conservative Government cuts plan also triggered protests from the public. Protest I think, is the only way of expressing resent from those policies that would ultimately affect our well being or acts that are already encroach our birth rights.
Demonstration is a mass expression of public sentiments: popular celebration, anger, presentation of political demands, or protest (a march or meeting of some kind). It is a right governed by and enshrined in the constitution that can be exercised at anytime.
In the 21st Century most of these demonstrations have revolved around presentation of political demands or protest. In a democracy, there is always a standard of governance that is anticipated from political leaders in control. These standards are fairly explained in their manifestos which when presented to the people they are done in the form promises, the government of the day is expected to uphold and live up to that promise.
It is not true that the police or powers that may be should have the power to stop or authorise the protest but it is important that the law enforcement agencies be notified about their taking place.
Before the victory of the socialist system, the political demonstration was a form of revolutionary struggle by the proletariat and the toiling masses. The development of the revolutionary movement was accompanied by political demonstrations; they were already a widespread phenomenon in the 17th- and 18th-century epoch of bourgeois revolutions, especially in the years of the Great French Revolution of 1789-94. In the 19th century, the political demonstration became an important form of working-class political struggle. Great political demonstrations took place during the struggle of English workers for electoral reform, the Lyon weavers uprising of 1831-34, the Chartist movement, the Revolution of 1848, and the Paris Commune of 1871.
Political demonstrations took on an especially sharp character in the imperialist epoch and were widespread in both the metropolitan centers and the colonies as a powerful form of struggle against imperialism, colonialism, racism and the unleashing of imperialist wars, and for peace and socialism.
Nelson Mandela and black South Africans used protests and demonstrations to stamp out the brutal regime of Apartheid White rule. In Ukraine and elsewhere in the world demonstrations have helped to sort out various political problems resulting from unfair and rigged elections.
Governments of the world cannot therefore rule out the possibility of having their citizens demonstrate against their policies, economic failure, nepotism/racism and rampant human rights violations.
Mass demonstrations follow where the government has conspicuously failed to accommodate the wish of the people who ushered them to power. As an example in Egypt, people were tired with rampant corruption and abuse of power from Hosni Mubarak and his government. In the Republic of Malawi, people are tired of unchecked nepotism within the ranks of the government, Forex shortage, fuel and abuse of power by the president and his political aides. There is also mass human rights violation which goes to the heart of those absolute liberties that cannot be derogated no matter what. The leader has ignored the wish of the people who voted him to power and forgotten his responsibility of upholding the rule of law.
Protest is not civil unrest but they are synonymous, political leaders would use to suppress protest in fear of civil unrest but they are not necessarily the same unless where the government does not seem to listen and not seen to be doing something about the public displeasure.
Civil disorder, also known as civil unrest or civil strife, is a broad term that is typically used by law enforcement to describe one or more forms of disturbance caused by a group of people. Civil disturbance is typically a symptom of, and a form of protest against, major socio-political problems; the severity of the action coincides with public expression(s) of displeasure. Examples of civil disorder include, but are not necessarily limited to: illegal parades; sit-ins and other forms of obstructions; riots; sabotage; and other forms of crime. It is intended to be a demonstration to the public and the government, but can escalate into general chaos. This is what happened in Egypt at Tahrir Square, Mubarak took the voices of the public for granted but ultimately was forced to resign and held responsible for those who lost their lives under his authority.
Finally I think it is a blessing in disguise to have people demonstrate against their governments. It is the only way of having the government to connecting with its people at a national level and should not look like a protest to depose that government or the president unless the president does not want to listen to their voices and their sentiments.
To all political leaders of the world I say sort out the mess or people will not stop demonstrating because it is of right to do so.
Thursday, 28 July 2011
Friday, 1 July 2011
Comparative Law: Necessity in Islamic Law and English law
There is a general concept similarity in what constitute a defence of necessity in English and Islamic legal systems. In both legal systems, the individual committing an offence has to be driven by a circumstance of necessity. Duress of circumstance in English law or Ikrah in Islamic law also falls under this category of law.
Although English law has over the years been reluctant to accept and apply it as a defence until recently, the courts are ready to accept it as a defence of some offences in criminal law. Duration and the limit of how far an individual can go in order to eliminate the circumstance is one of importance and the type of the offence involved is very crucial when it comes to accept the defence of necessity. Therefore a mere circumstance of necessity would not constitute the defence.
The defendant must stop committing the offence as soon as s/he reasonably can as duress of circumstances cannot excuse the commission of an offence after the time when the threat has ceased: R v Pommell. I will demonstrate below how this also applies in Islamic law but it is worth remembering that if the court is satisfied an acquittal is the only outcome. And as in Islamic law no sin/offence is said to be committed under necessity.
I think the main reason is that for someone to have sufficient motive and intention to commit an offence or break the law all the circumstances to it must be under his control not faulting other operatives that led him to lose his control to do what he did. More recently the courts have begun to show a willingness to allow the defence of necessity, or duress of circumstances as some judges have described it, where there is a fear of death or serious bodily injury.
The three principles of the defence and the two-stage test were explained by the Court of Appeal in R v Martin (1988). The word necessity implies a situation where having explored all the available options one would not do without having to commit the alleged crime. This principle is a general defence in English law in certain offences and the leading case is R v Dudley & Stephens (1884), where two shipwrecked sailors killed and ate the cabin boy. They were convicted of murder. This case was affirmed by the House of Lords in R v Howe (a case on duress by threats) and until recently it was commonly thought that a general defence of necessity did not exist in English law.
In Islamic law, necessity arises where an individual is forced by circumstances to have done what he did. Necessity or Dharurah as it is called in Arabic is governed by the Quran and the Sunnat and their application has been an extensive area where Jurists of the four schools of Islamic Jurisprudence have differed on what really constitute a defence of necessity. This is clearly seen in their various books of Islamic Jurisprudence belonging to these schools; I will not attempt to discuss them individually but will suffice to flag up two or three correct opinion on the subject.
There is a leading and principle maxim on the law of necessity in Shariah which has various minor branches protruding from it. It has a general application and accepted in shariah law on issues such as Jinayaat (crimes), muaamalat (transactions) and other religious aspects observed by individual such as consuming wine for medical purposes when advised to do so by physicians or doctors.
Examples of offences under this category; eating anything from animals slaughtered not in the name of Almighty as prescribed in the Quran (haraam meat), quenching thirst with wine and denouncing Allah under duress of circumstances. The maxim of “Necessity makes things that are prohibited by the law not prohibited” is sourced from the verse in the Quran 5:3, “…….but as for him who is forced by severe hunger with no inclination to sin (such can eat these above mentioned meats) then surely, Allah is Oft-forgiving, most merciful”.
It is also worth mentioning that necessity in Islamic law includes Dharurat, haajat, makhmaswat and all these names are used in the Quran and sunnat to imply necessity. Another maxim emanating as a branch from the leading maxim above is that “need is of the same category as necessity”. It illustrates that there may be a difference between “necessity” and “need” but dire need may be of the same category as necessity.
Consequently, need may be a defence and generally accepted in the Islamic courts as in the examples above. Muslims are not allowed to eat pork or any extracts from it but they can do so in time of need/haajat such as the time of starvation and famine where food is scarce. The principle is that it has to be done without inclinations to commit a sin. Necessity works to suspend the law at the time the alleged sin is committed. A typical example in Islamic law among other events is that of a man who was caught stealing during the reign of Omar Bin Alkhtwaab, the second caliph. He was set free when he claimed a defence of necessity to have driven him to what he did and because at the time there was rampant food shortage in the country.
Of recent, scholars have extended this law to transactions such as mortgages and loans where in conventional banks no credit agreement comes without a requirement of paying interest on them including credit cards. Riba or usury/interest is not permitted in Islam and those who take and pay interest are considered to have waged war against the Almighty God and usury is one of the greatest sins in Islam.
The law of necessity will only apply under those circumstances if all other means of purchasing a property islamically i.e. without interest have been exhausted and there is a dire need of that property. Besides, there has to be greater harm in order to use this defence to the well being of the family and that it is very expensive to rent properties in the country. I don’t really see how a person who owns a property would use this kind of defence to buy a second home as his/her need will be out of question in this case.
In the law of necessity there is also a requirement of directness and immediacy which was explained by the Court of Appeal in: R v Cole. At the defendant’s trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him, his girlfriend and child. The Court of Appeal held that the defence of duress of circumstances was not available. For the defendant to rely on the defence of duress of circumstances there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the commission of the offence had been a spontaneous reaction to the prospect of death or serious injury.
Islamic law on Immediacy, the requirement is that whatever is allowed has to be measured according to the need.
Although English law has over the years been reluctant to accept and apply it as a defence until recently, the courts are ready to accept it as a defence of some offences in criminal law. Duration and the limit of how far an individual can go in order to eliminate the circumstance is one of importance and the type of the offence involved is very crucial when it comes to accept the defence of necessity. Therefore a mere circumstance of necessity would not constitute the defence.
The defendant must stop committing the offence as soon as s/he reasonably can as duress of circumstances cannot excuse the commission of an offence after the time when the threat has ceased: R v Pommell. I will demonstrate below how this also applies in Islamic law but it is worth remembering that if the court is satisfied an acquittal is the only outcome. And as in Islamic law no sin/offence is said to be committed under necessity.
I think the main reason is that for someone to have sufficient motive and intention to commit an offence or break the law all the circumstances to it must be under his control not faulting other operatives that led him to lose his control to do what he did. More recently the courts have begun to show a willingness to allow the defence of necessity, or duress of circumstances as some judges have described it, where there is a fear of death or serious bodily injury.
The three principles of the defence and the two-stage test were explained by the Court of Appeal in R v Martin (1988). The word necessity implies a situation where having explored all the available options one would not do without having to commit the alleged crime. This principle is a general defence in English law in certain offences and the leading case is R v Dudley & Stephens (1884), where two shipwrecked sailors killed and ate the cabin boy. They were convicted of murder. This case was affirmed by the House of Lords in R v Howe (a case on duress by threats) and until recently it was commonly thought that a general defence of necessity did not exist in English law.
In Islamic law, necessity arises where an individual is forced by circumstances to have done what he did. Necessity or Dharurah as it is called in Arabic is governed by the Quran and the Sunnat and their application has been an extensive area where Jurists of the four schools of Islamic Jurisprudence have differed on what really constitute a defence of necessity. This is clearly seen in their various books of Islamic Jurisprudence belonging to these schools; I will not attempt to discuss them individually but will suffice to flag up two or three correct opinion on the subject.
There is a leading and principle maxim on the law of necessity in Shariah which has various minor branches protruding from it. It has a general application and accepted in shariah law on issues such as Jinayaat (crimes), muaamalat (transactions) and other religious aspects observed by individual such as consuming wine for medical purposes when advised to do so by physicians or doctors.
Examples of offences under this category; eating anything from animals slaughtered not in the name of Almighty as prescribed in the Quran (haraam meat), quenching thirst with wine and denouncing Allah under duress of circumstances. The maxim of “Necessity makes things that are prohibited by the law not prohibited” is sourced from the verse in the Quran 5:3, “…….but as for him who is forced by severe hunger with no inclination to sin (such can eat these above mentioned meats) then surely, Allah is Oft-forgiving, most merciful”.
It is also worth mentioning that necessity in Islamic law includes Dharurat, haajat, makhmaswat and all these names are used in the Quran and sunnat to imply necessity. Another maxim emanating as a branch from the leading maxim above is that “need is of the same category as necessity”. It illustrates that there may be a difference between “necessity” and “need” but dire need may be of the same category as necessity.
Consequently, need may be a defence and generally accepted in the Islamic courts as in the examples above. Muslims are not allowed to eat pork or any extracts from it but they can do so in time of need/haajat such as the time of starvation and famine where food is scarce. The principle is that it has to be done without inclinations to commit a sin. Necessity works to suspend the law at the time the alleged sin is committed. A typical example in Islamic law among other events is that of a man who was caught stealing during the reign of Omar Bin Alkhtwaab, the second caliph. He was set free when he claimed a defence of necessity to have driven him to what he did and because at the time there was rampant food shortage in the country.
Of recent, scholars have extended this law to transactions such as mortgages and loans where in conventional banks no credit agreement comes without a requirement of paying interest on them including credit cards. Riba or usury/interest is not permitted in Islam and those who take and pay interest are considered to have waged war against the Almighty God and usury is one of the greatest sins in Islam.
The law of necessity will only apply under those circumstances if all other means of purchasing a property islamically i.e. without interest have been exhausted and there is a dire need of that property. Besides, there has to be greater harm in order to use this defence to the well being of the family and that it is very expensive to rent properties in the country. I don’t really see how a person who owns a property would use this kind of defence to buy a second home as his/her need will be out of question in this case.
In the law of necessity there is also a requirement of directness and immediacy which was explained by the Court of Appeal in: R v Cole. At the defendant’s trial for robbing two building societies, he pleaded that he had done so because of his inability to repay money lenders who had threatened him, his girlfriend and child. The Court of Appeal held that the defence of duress of circumstances was not available. For the defendant to rely on the defence of duress of circumstances there would have to be a greater degree of directness and immediacy between the danger to the defendant or others and the offence charged. What was required was evidence that the commission of the offence had been a spontaneous reaction to the prospect of death or serious injury.
Islamic law on Immediacy, the requirement is that whatever is allowed has to be measured according to the need.
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