Critical Analysis of Qualified Immunity Jurisprudence: A Theoretical Study of English Law and Shariah
Keywords:Doctrine, Immunity, Caliphs, English Law, Islamic law
The doctrine of qualified immunity, is globally practiced as a shield, has frequently been misused as a sword by law enforcement agencies against suspects that results in violation of citizens’ constitutional rights. Instead of protecting lives it promotes a culture of police violence in the name of public order and crime control that bitterly represent “shoot first think latter” approach. Pakistan is no exception as its ‘thana culture’ has been intact since the colonial era as a sign of public insecurity. Recently, police brutalities on international as well as national levels have compelled legislators, scholars and public alike either to alter or eliminate this lawless and ruthless prerogative that is a means of expanding the gulf of hatred between rulers and the ruled. Islamic polity cannot tolerate to encourage confiscation of human lives and dignity on the grounds of suspension rather it promotes doctrine of proportionality and moderate use of force when it is needed inevitably as it considers everyone accountable for his actions. This paper intends to find out theoretical basis of the doctrine in English law in the light of case law and important judicial precedents while comparing it with Shariah system of justice. Likewise, due place has been assigned to Shariah immunity-free justice system and some instances from the Prophetic and rightly-guided khulafa’s life with a view that the current qualified immunity doctrine may be codified in the light of Shariah principles of justice, equality and fairness.
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