By
Yasser Latif Hamdani[1]
Abstract
In Pakistan, the state’s constant struggle to define the role of religion in governance and policy has also been reflective of the struggle of the Muslim community in South Asia to define itself politically. The question before us in Pakistan, which is so self-consciously aware of its Islamic identity as a state, is whether those early traditions of classical Islam can be reconciled with the institutions of English common law that we inherited from the British. A failure of imagination has, for the most part, stagnated the growth of reconciliation between these heritages in a country that under its present constitution is a self-declared Islamic republic and where no law that contravenes the dictates of the Quran and the Sunnah, the bedrock of Islamic legal tradition, can exist. To the modern legal mind therefore, Pakistan’s English legal system and Islamic heritage have worked at cross-purposes. By narrowly construing Islamic principles and straitjacketing liberty and freedom, the Ulema have slaughtered Islamic principles and reduced them to medieval laws that seem tragically out of place in the modern world. Unfortunately no real attempt has been made to formulate Islamic jurisprudence as a code of public conduct where jurists and not clerics cull universal principles from the Quran and the Sunnah, classify them, and expound them as a part of civil law or a criminal code. The efforts of the imams in the Eighth and Ninth Centuries have over time ossified and been cast in stone as the final word. – Author)
Constitutions are formulated to safeguard the weakest sections of society against the tyranny of the majority. What is tyranny and arbitrary action? John Locke prescribes a simple test in his Two Treatises on Government. He states that tyranny and arbitrary action is when “a governor, however entitled, makes not the law but his will the rule and when his commands and actions are not directed towards the preservation of his people but the satisfaction of his own…other irregular passion.”Is what happens in the name of religion and ideology in this country not a continuing and perpetual irregular passion? It may not be out of place to see the Objectives Resolution which forms part of the preamble to the Pakistani constitution as well as its substantive part under Article 2-A.
“OBJECTIVES RESOLUTION
Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust;This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan;Wherein the State shall exercise its powers and authority through the chosen representatives of the people;Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah;Wherein adequate provision shall be made for the minorities to freely profess and practice their religions and develop their cultures;Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed;Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality;Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes;Wherein the independence of the Judiciary shall be fully secured;Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded;So that the people of Pakistan may prosper and attain their rightful and honored place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity.”
If a Constitution fails to fulfill its basic purpose, it becomes merely an administrative document. Pakistan’s Constitution seeks to balance out this requirement with its other aspirations of enabling its Muslim citizens in living their lives according to dictates of the Quran and Sunnah. Here the important part is to recognize that the Constitution talks about enabling not enforcing Islam. This critical distinction has blurred over the years where, increasingly, the Islamizing state has sought to enforce a rigid interpretation of Islam – starting with General Zia’s overzealous dictatorship.
Much of General Zia’s Islamization is unsustainable and flies in the face of reality of the modern nation state. However the problem with Muslims in general is that they want themselves to be held to a different standard than that to which they hold others. In the West, in general, Muslims seem to be perpetually outraged against ‘intolerant majorities’ for the slightest of slights. Goal posts change once it is a Muslim majority country. The human rights that Muslims assert in the west are almost always deemed as irrelevant to Muslim countries. There is no Muslim country in the world without a harrowing tale of minority persecution. From Coptic Christians in Egypt to Hindus in Pakistan and from the Druze to Ahmedis, almost every Muslim country has a minority or two that has been forcibly oppressed and targeted by a majority that is incapable of accepting diversity, not just vis a vis non-Muslims but also within Islam. Bahais and Sunnis face the wrath of the majority in Iran.In Saudi Arabia, all non-Muslim modes of worship are banned and for expatriates living in Saudi Arabia, being a Shia may lead to deportation (though Saudi Shias are somewhat tolerated). The situation in Pakistan was considerably better until 1984 but since then, not just Ahmedis, but Christians and Hindus have also faced systematic persecution. It is not enough to claim that Islam provides the most rights for non-Muslims; there should be some practical example of these rights. Going by what we have in the world today, that example seems to elude us.
The irony is that at a time when the world was in darkness, Islam gave unprecedented religious freedom to non-Muslims. The Meesaq-e-Medina is evidence enough — Jews and others were declared one Ummat, one community, with the Muslims of Medina. That pact was perhaps the first genuinely pluralistic compact between a diverse people. Amongst the later Caliphs, Mamun-ur-Rasheed’s rule stands out for its acceptance of religious diversity and personal freedom. That his rule corresponded with the zenith of Islamic civilisation is no accident. The Ottoman Empire, in its heyday, was a prime example of this. Sultan Mehmet Fateh — the great conqueror of Constantinople — and Sultan Suleiman the Magnificent were both known for their enlightened and tolerant religious policy towards the non-Muslims in their realm. Far from theocratic Caliphs, these masters of realpolitik realised the importance of keeping their non-Muslim subjects happy. Fateh even assumed, for a time, the title of the head of the Orthodox Christian Church and its protector. Much like Akbar the Great, the Mughal Emperor, Mehmet Fateh and Suleiman the Magnificent refused to give in to the whims of the Muslim clergy. Their courts were models of pluralism and heterodox ideas, which is why Jews and Christians, who together outnumbered Muslims in the Ottoman Empire, remained loyal subjects of the Empire. Even Aurangzeb — who was the most puritan and fundamentalist of the Mughal emperors — had to adopt a measure of religious tolerance and pluralism towards the Hindus of his realm though it was not nearly enough in the end.
Legislation in Islam:
The legislator does not legislate on the basis of exception. If Islam is the higher law by which we are to conduct ourselves, we must investigate as to what the general rule in Islam is. One is reminded of an incident soon after the conquest of Egypt by Muslims. Amr bin Aas (RA) was appointed governor of the new province. In a city square where the governor resided was a statue of Jesus Christ held sacred by the Coptic Christians. One night, some Muslim soldier allegedly broke the nose of the statue and then disappeared. The Copt leaders protested and lodged a complaint with the governor. They demanded, as restitution, the right to build and similarly defile a statue of the Holy Prophet (PBUH). Amr bin Aas (RA) politely told them their request was not possible as the Holy Prophet (PBUH) was the most sacred personage to him but he offered to have his own nose cut off instead as punishment. These were those fine traditions of tolerance and religious harmony, too fine for the philistines as it were, that made Islamic lands centres of excellence, learning and enlightenment while the entire world was in darkness. Today, what we have instead is the picture that our mullah is hell-bent on painting of Islam and of the Holy Prophet (PBUH).
Like English common law, the Islamic equivalent relies largely on precedent and the legal opinions of jurists. Ijtehad, that is, reinterpretation; Ijmah, that is, consensus; and Qiyas, that is, analogy, form the basis of an opinion or decision. The last of these is known to those who have practiced law in common law jurisdictions.
Islam, Legislation and the Pakistani Experience
In theory Pakistan is the most Sharia compliant country in the world. We have legislated or forced by ordinance all the laws that are presumed to be Islamic. However if the aim and objective of Islam was to create a fair and just society we have fallen well short of that target. This is because, we have ignored theMaqasid or Objectives of Shariat and concentrated on purely form.
The Ulema strengthened their position after the Constitution of 1973, which for the first time in Pakistan’s history, introduced the concept of a state religion and created an institution called the Council of Islamic Ideology. The Islamic provisions of this Constitution were also far more comprehensive and it created a position of primacy for the clergy, which for all practical purposes falsified the claim that Pakistan was not a theocratic state. The new Constitution also laid the foundations for the use of laws to persecute the Ahmaddiya community.The theocratic nature of the Pakistani state was further cemented when in 1979, Muhammad Zia-ul-Haq, the then military dictator, promulgated the qisas and diyat laws which amended criminal procedure to allow for the payment of khoonbaha (blood money) in exchange for acquittal of the charge of murder.
To further understand, following are the details of the Qisas and Diyat Laws as per Pakistan Penal Code.Section 310 of the Pakistan Penal Code (PPC) gives wali (heir) of a victim of qatl-e-amad to compound qisas, a right to demand “death” for such a murderer. This Section reads as under:
“(1) In the case of qatl-e-amad, an adult sane wali may, at any time on accepting badal-i-sulh compound his right of qisas: Provided that only giving a female in marriage shall not be a valid badal-e-sulhl(2) Where a wali is a minor or an insane, the wali of such minor or an insane wali may compound the right of qisas on behalf of such minor or insane wali:(3) Provided that the value of badal-i-sulh shall not be less than the value of diyat.(4) Where the government is the wali it may compound the right of qisas:(5) Provided that the value of badal-i-sulh shall not be less than the value of diyat.Where the badal-i-sulh is not determined or is a property or a right of the value which cannot be determined in terms of money under shariah the right of qisas shall be deemed to have been compounded and the offender shall be liable to diyat.Badal-i-sulh may be paid or given on demand or on a deferred date as may be agreed upon between the offender and the wali.In this section badal-i-sulh means the mutually agreed compensation according to shariah to be paid or given by the offender to wali in cash or kind or in the form of movable or immovable property.”
The value of diyat is given under Section 323 of the PPC, which reads:
“The Court shall, subject to the injunctions of Islam as laid down by the Holy Quran and Sunnah and keeping in view the financial position of the convict and the heirs of the victim, fix the value of diyat which shall not be less than the value of thirty thousand six hundred and thirty grams (30,630 grams) of silver.”
In other words, murder, which was till then an offence and a crime against the state, became a matter of tort for all intents and purposes. General Zia-ul-Haq also promulgated the Islamic Hudood laws, which provided for the punishment of “sins” such as fornication, adultery, and consumption of alcohol. To provide overall legal cover for these laws, the Objectives Resolution, merely a preamble up to that point, was made a substantive part of the Constitution. This was later ratified by Parliament through the Eighth Amendment to the Constitution. Similarly the Federal Shariat Court (“the FSC”) was also created with the power to review any law that was challenged as being repugnant to the Quran or Sunnah. Parliament also saved the substitution of the law of evidence with the Qanoon-e-Shahadat Order (“the QSO”), which was an Islamised version of the law of evidence, and the community-specific and extremely discriminatory anti-Qadiani legislation incorporated as Sections 298B and 298C of the Pakistan Penal Code (“the PPC”). The constitutional challenge to Sections 298B and 298C under Article 20 of the Constitution (which provides for – subject to considerations of law and order – freedom to practice and propagate one’s religion) failed at the Supreme Court in Zaheeruddin v. The State, 1993 SCMR 1773. One of the darkest chapters in Pakistan’s judicial history, Article 20 was practically read out of the Constitution. In 1986, the controversial blasphemy provision had been added to Section 295C of the PPC.
The systematic discrimination and marginalisation of minorities and women in the 1980s occurred in parallel with the rising ambitions of the Council of Islamic Ideology and the FSC to make their mark in the economic sphere. The FSC, while vested with extraordinary jurisdiction over many matters Islamic, was not empowered to rule on issues pertaining to Muslim personal law, the Constitution, and fiscal matters, for a period of three years. This period was increased to ten years by General Zia-ul-Haq through a Presidential Order to curb overzealous Islamic fundamentalists like Dr. Tanzilur Rahman, who, in 1980, was a member of the Council of Islamic Ideology. Dr. Rahman had helped create a comprehensive report on Islamic financing and banking and had proposed substantial steps for a Riba-free economy in Pakistan. General Zia-ul-Haq merely introduced cosmetic changes, which did not abolish Riba, but gave it a facade of Islamisation.
By 1990, Dr. Rahman became the Chief Justice of the FSC and used his new position to implement his vision of Islamic law and economics as expressed in the report of the Council of Islamic Ideology. The government of that time also failed to increase the period for which the FSC was not allowed to entertain petitions pertaining to economic and fiscal matters. November 14, 1991 was a red-letter day for Islamists in Pakistan. The FSC ruled in Mahmood ur Rahman Faisal v. Secretary of the Ministry of Law, PLD 1992 FSC 89, that modern interest banking constituted “ar-Riba” or prohibited augmented profit from loans that the Holy Prophet (P.B.U.H.) had in his time forbidden as being exploitative. Therefore, in keeping with the constitutional and legal changes that Pakistan had undergone through the 1980s, interest banking was declared completely forbidden. As many as sixty-seven appeals were filed before the Supreme Court of Pakistan’s Shariat Appellate Bench by the federal government and by financial institutions. The Supreme Court kept these appeals pending for six years. The Nawaz Sharif and Benazir Bhutto governments were only too happy to keep them in cold storage, delaying the abolition of interest-based banking in Pakistan.
Ironically, the revival of this issue began when Sajjad Ali Shah, the Chief Justice of the Supreme Court of Pakistan, fell out with Nawaz Sharif. The Shariat Appellate Bench decided to hear these appeals as a way to pressure Nawaz Sharif. Nawaz Sharif tried to outmaneuver the Islamists politically by attempting to elevate the office of Prime Minister to that of an Islamic Caliph, all but in name. Thus began the unfortunate saga of the Fifteenth Amendment to the Constitution of Pakistan. Nawaz Sharif saddled himself with an authority that would ensure that he – and not the Council of Islamic Ideology or the Federal Shariat Court – would be the final authority on all matters pertaining to Islam, the Quran, and Sunnah. In 1999, in its judgment in Dr. Mohammad Aslam Khaki v. Syed Mohammad Hashim, PLD 2000 SC 225, the Shariat Appellate Bench of the Supreme Court upheld the judgment of the Federal Shariat Court and laid down directions for the abolition of interest-based banking by the year 2000. By this time, General Musharraf had taken over. In United Bank Limited v. Farooq Brothers and Others, PLD 2002 SC 815 however, contested ably by senior commercial lawyer Raja Mohammed Akram, the Shariat Appellate Bench revisited its judgment and overturned it as being ill-conceived, thus bringing the banking industry back from the brink.
Islam was also deployed to defeat land reforms. In Haji Niamatullah v. N.W.F.P. Government, Shariat Petition No. 1 of 1979, the Peshawar High Court declared ceilings on land holdings un-Islamic. The judgment held that despite Islam’s presumption in favour of the sanctity of personal wealth and property, laws providing for the state’s regulation of land, including pre-emption rights for tenants, ceilings on landownership, and the resumption of lands by the state for public use, were not wholly prohibited by Islam. In 1986, pre-emption claims were declared un-Islamic in Government of North West Frontier Province v. Said Kemal Shah, PLD 1986 SC 360. The Shariat Appellate Bench of the Supreme Court of Pakistan finally decided to accept appeals against these decisions in QazalbashWaqf v. Chief Land Commissioner, Punjab and Others, PLD 1990 SC 99, which struck down land reforms as un-Islamic. In this judgment it was held that property rights under Islamic law were to be treated as absolute rights granted by Allah to the owner without any limits. It also raised questions about the operation of the Land Acquisition Act, 1894.
In Pakistan, the state’s constant struggle to define the role of religion in governance and policy has also been reflective of the struggle of the Muslim community in South Asia to define itself politically.The question before us in Pakistan, which is so self-consciously aware of its Islamic identity as a state, is whether those early traditions of classical Islam can be reconciled with the institutions of English common law that we inherited from the British. A failure of imagination has, for the most part, stagnated the growth of reconciliation between these heritages in a country that under its present constitution is a self-declared Islamic republic and where no law that contravenes the dictates of the Quran and the Sunnah, the bedrock of Islamic legal tradition, can exist. To the modern legal mind therefore, Pakistan’s English legal system and Islamic heritage have worked at cross-purposes. By narrowly construing Islamic principles and straitjacketing liberty and freedom, the Ulema have slaughtered Islamic principles and reduced them to medieval laws that seem tragically out of place in the modern world. Unfortunately no real attempt has been made to formulate Islamic jurisprudence as a code of public conduct where jurists and not clerics cull universal principles from the Quran and the Sunnah, classify them, and expound them as a part of civil law or a criminal code. The efforts of the imams in the Eighth and Ninth Centuries have over time ossified and been cast in stone as the final word.
Why has Islamic Law stagnated?
Law- good law especially requires rigor of intellectual exercise through revision. All England Law Reports — the most reliable record of English case law — date back to 1558. Recorded case law dates back another 400 years prior to that. In 1558, the English began to see the benefit of compiling and publishing case law for easy reference.Institutions like Lincoln’s Inn had already been serving the legal community since the 13th century when a papal decree forbade clergy from teaching common law, thereby separating temporal law from the church. Thus, by the time All England Law Reports were being organised, the modern English legal system was already into its third or fourth century. Consider, then, that in 1558, Mughal emperor Akbar the Great ruled as a despot with a remarkable concentration of power and Suleiman the Magnificent ruled the Ottoman Empire as God’s shadow on earth. These two great monarchs were literally the law, while in England, the greatest queen to rule the western world, ruled limited by the Magna Carta — arguably the world’s first modern constitution.Civilisations are not built overnight. The British Empire was the greatest empire in human history precisely because the English had disciplined themselves into a realm of laws long before others. While the extravagant absolutists who ruled from Constantinople to Delhi, acting on their whims, even the best of them, the queens and kings of England ruled responsibly, allowing fullest expression to ideas of liberty, citizenship and the social contract. Thus, while Aurangzeb Alamgir was getting his brother trampled under an elephant and having his elderly father’s eyes gouged out, John Locke was writing his treatise on the true end of government and when Aurangzeb Alamgir was executing the Sikh Gurus, the English parliament was passing the bill of rights.
Feeling against ancient tyrannies was palpable and while, purely for economic reasons, 13 North American colonies rose up against the British Empire, it was the culmination of a process grounded in the age-old ancient English idea of justice and fair play. The colonies cried out: “No taxation without representation”. This was around the same time the saying in the plains of Punjab was, “Whatever we eat and drink is ours, the rest belongs to Ahmad Shah Abdali.” Ahmad Shah Abdali, the hero of our Pakistani textbooks and a first-class marauder, would have wondered what all the fuss was about when his contemporaries Edmund Burke and Fox took Robert Clive to task in the English parliament for his corruption. Many of our modern day Ahmad Shah Abdalis still would not understand. Even the much touted lawyers’ movement has failed to instil the sense of justice and fair play that fired up Burke and Fox in the closing decades of the 18th century.There are some who are driven by a vague sense of anti-imperialism and an unfortunate romantic idea of the independence movement. Under Sir Syed Ahmed Khan’s guidance, the Muslims of the subcontinent prospered. Even in his day the great Sir Syed was abused by the likes of Jamaluddin Afghani — the Pan-Islamist revolutionary.
It is forgotten, of course, that even today many of our people are forced to live in conditions far worse than feudal England. This is particularly true of places where the British influence during the Raj was limited. The people there are bound by horrendous customs and are left to subsist below a reasonable human level. The excuse given to them is a religious one and the way out is also religious. Mullahs and pirs, our witchdoctors and shysters, mislead the people into accepting their lot. The reaction is even worse — Taliban recruitment. The Taliban give the dirt poor an opportunity to stand up on the authority of religion. In its callousness, the rich Anglophone Pakistani elite has shot itself in the foot.
The solution is for us to take stock of our situation honestly and without any illusions. First and foremost, we must realise that civilisation is one and indivisible and our attempts to stall progress by hiding behind non-existent ‘Eastern values’ and religious excuses is simply indicative of our inability to accept change. Secondly, we must understand that borrowing is an essential part of the human experience and that we ought not to reinvent the wheel. Third, as Pakistanis, we must embrace again, wholeheartedly, the finer elements of our magnificent British heritage: modern institutions and a first rate legal system. Finally, we must realise that, as citizens of the world in the 21st century, we have certain obligations to our people as well as to the world. We cannot live in isolation and in an integrated world, we cannot forever keep our people mired in ignorance and as second and third class citizens in their own country.
A Muslim society tends to be a high context low trust society. Hence, there is such emphasis on the ‘imputation’ of our words. One wonders what the insecurity really is that we have to subject even our fundamental right to freedom of speech to the qualifier of the glory of Islam. In the 1,400 years of Islam’s history, the great faith has sustained onslaughts both from within and without, without its glory dimming even slightly. On the contrary, the true glory of Islam is that it embraced, accepted and even celebrated its most vociferous critics. What great names from Islamic history such as Rhazes, Avicenna and Omar Khayyam wrote would give even the most strident of blasphemers today a run for his or her money. It is a credit to early Islamic civilisation that these gentlemen were not only allowed to live as free men and expound their ideas but were celebrated for their achievements in medicine, science and literature by Muslims, better Muslims than you and I, and certainly more enlightened Muslims than the boors who are ready to kill, maim and burn in the name of our great faith. What was the result? The world of Islam was the centre of civilisation and progress for over three centuries. The world came to Baghdad and Cordoba to learn at a time when Europe was in darkness. It is not for nothing that Averroes, a great Muslim polymath, scientist and jurist of the Maliki school, is featured prominently in Raphael’s School of Athens along with the greats of human civilisation. The Chapel at Princeton University in New Jersey has an image of Muhammad Ibn Zakariya Al Razi on one of its windows. The glory of Islam was never dimmed by dissent, it was enhanced.
The result has been that lawyers and judges have been excluded from the determination of positive law on the touchstone of Islam by the Ulema, who have fantastic and ancient notions of morality, virtue, vice, and crime. Where attempts have been made at codification, they have been limited by an orthodox approach, which has been too dogmatic to evolve a practical system. The consequence has more often than not been regressive laws such as the blasphemy and hudood laws. It needs to be acknowledged however, that there has not been any instance anywhere in the Islamic world to evolve a modern universal code applicable equally to every citizen of a state without discrimination. The reason for this is the absence of a discourse by Islamic scholars and philosophers that distinguishes Islamic jurisprudence as a system governing secular conduct between human beings from Islam as a faith and pillar of spiritual strength for the believer. The former requires that the Islamicate as a whole be viewed as a social and civilisational construct, which is evolving and is capable of including religious minorities instead of excluding them. The latter would limit Islam to an exclusive religious code of social conduct for believers,that is Muslims alone, and is therefore incapable of having a universal dimension or application.
Pakistan – an Islamic state? Or a Democratic state?
Prince Aly Khan, Pakistan’s representative at the UN and the father of the current Agha Khan, described Pakistan’s unique status as an Islamic Republic and an inclusive democracy on May 27, 1958:
“Pakistan, with a personality of its own in the Muslim world, calls itself an Islamic Republic, in the sense that the overwhelming majority of its people, are of the Muslim faith and aspire to a social and political order based on justice and equality, in accordance with the spirit of the injunctions of Islam that I have quoted. The appellation ‘Islamic’, however, does not imply that Pakistan is a theocratic state, run by religious fanatics who seek to reduce the non-Muslim minorities in Pakistan to the status of inferior citizens. The relevant provision of our constitution, under which Pakistan became a democratic Republic on the 23rd of March 1956, lays down: ‘Section 5 (1): All citizens are equal before law and are entitled to equal protection of law’.The constitution further nullifies as void, any law, custom, or usage, which is inconsistent with the fundamental right to equality under the law, which is an enforceable right under an independent judiciary, the Supreme Court of Pakistan.This means that non-Muslims are guaranteed equality with Muslims under the laws of Pakistan.While it is true that the president of Pakistan must be a Muslim, he is, in fact, the symbol of the state, and the executive powers are vested almost exclusively in the prime minister and his cabinet. Pakistan is not unique in basing its political institutions on fundamental religious concepts. For example, a number of European nations, such as Sweden, Norway, Denmark, Ireland, Greece and the UK restrict the office of the head of state to those who profess the predominant religious beliefs of their countries.The leaders of the government of Pakistan are liberal and enlightened men, responsible to a freely elected parliament in accordance with the popular will. They function entirely within the framework of the constitution and laws of Pakistan. I am well aware that the people of the US are deeply committed to the doctrine of separation of church and state. We, in Pakistan do not have an established church as such. Basically, the fundamental values and virtues which you cherish and try to practice in the US, are virtually identical with those we believe in and try to practice in Pakistan.”
Unfortunately the fondest hopes that men like Aly Khan had have materialized. The Council of Islamic Ideology’s recent rulings calling for an undoing of Muslim Family Laws Ordinance 1961’s clauses pertaining to polygamy as well as doing away with the minimum marriageable age has shown that when you create an institution for interpretation of a religious edict, it inevitably becomes a subjective exercise. Instead of the modernists and enlightened men the founding generation of Pakistan’s leaders had hoped for, the regressive and orthodox ulema have taken over the Council of Islamic Ideology, reducing it to a marginal body churning out impractical and inane understandings of Islamic Law.
For the reformulation of Islamic principles for the modern day, the function of expounding and classifying all law, including Islamic principles, should be vested exclusively in the judiciary. The notion of a religious scholar as a mufti or a jurist is no longer tenable or acceptable. A religious scholar may well enjoy a limited role as amicus curiae for Islamic principles. The legislature, elected through adult franchise, alone should determine what is lawful and unlawful and the judiciary alone should determine the extent to which the constitutional state entity can interfere in the personal religious preferences and moral choices of an individual citizen in the presence of the fundamental rights guaranteed by the Constitution. The constitutional fundamental rights guaranteed by the constitution of the republic should guide the judiciary. Here, the obvious question is whether judges presiding over the determination of Islamic principles as part of law will have to be Muslims? I do not see any reason why this should be mandatorily the case. Two of the finest books on Islamic law in the subcontinent have been by a Parsi and a Hindu. D.F. Mulla’s brilliant work on Mahomedan law is well known both in India and Pakistan. Less known is B.R. Verma’s work, which is in the opinion of this author, the finest book on Islamic legal principles by any author. In recent years, the foremost authority on Islamic law within the Pakistani Supreme Court has been (Retired) Justice RanaBhagwandas, who hails from a Hindu family in Sindh.
Once Islamic legal principles have been brought within the common law, the role of the Ulema will become mercifully redundant. At the moment, most of Pakistan’s problems with religion emanate from the multifarious fatwa-mongering mullahs, who pose a direct threat to the writ of the state. The institution of the fatwa should by law and the Constitution, be dealt with as a judicial action and not a discretionary ruling by the imam of every mosque and madrassa. In the absence of the idea of some sort of a church in Islam, the role of the mufti, as the source of all religious doctrines, is what the Ulema have used to assert themselves politically. Once the role of mufti has been taken away and the notion that every Muslim is his own priest takes root, it will be possible to finally confront the challenges of modernity and consequently, more progressive and modern interpretations of Islamic principles in line with the dictates of the modern age will be possible. The idea is to have the legislature legislate any kind of laws and then have the judiciary see whether that law is constitutional and Islamic on the touchstone of fundamental rights and the precedents of Islamic law. It can be a useful exercise if Islamic law is not insufficiently imagined as merely a code governing dietary habits and dress codes for women. Indeed, those matters should remain in the personal space of an individual and should be out of the state’s purview. Instead, Islam should be imagined as a liberation theology seeking to uplift marginalised sections of society and ending social and economic inequities without any communal distinctions. The real impact of Islam would then be in creating a just and equitable society where every citizen has equal opportunity on a level playing field.
For this to happen, legal practitioners of Islamic jurisprudence and law would have to make a clear distinction between their field as being limited to the secular or temporal sphere alone and not applicable to the spiritual plane which should be recognised as the inviolable personal space of an individual. Having created the distinction between the legal principles applicable to society and the religious principles applicable to the individual, Islamic jurisprudence may then be applied to criminal law, civil law, and the law of contract. Once the spiritual is taken out of the picture, the regulation of private conduct is taken off the table. It may be remembered that Islam endorses this separation of the spiritual from the secular. For example, the punishment for adultery, that is, stoning to death, requires evidence of four pious and righteous individuals who have seen the deed with their own eyes. Needless to say, no pious and righteous individual will breach the privacy of a home, which Islam recognises as sacred. In other words, while allowing this pre-Islamic punishment, Islam was raising the bar of the evidence required to make conviction impossible. If we were to then apply analogical reasoning, it would be fair to say that the punishment of rajm or stoning to death does not form an essential part of the Islamic law, which seeks not to regulate personal conduct but public morality.
Having thus separated the spiritual from the secular, it may become possible for one to conceive the possibility for a non-Muslim to be an equal citizen of an Islamic state in all possible ways. This is a logical extension of the idea that Islam is a civilisational construct and not a religion in the ordinary sense of the word. If it is a construct that purports to govern human conduct, it must treat human conduct in the non-spiritual and temporal sense equally and without discriminating on the basis of the religious beliefs of individuals.
International Obligations
Pakistan’s Islamic status cannot exist in a vacuum unfettered by the fact that it is bound by international law. The Islamic Republic of Pakistan signed the International Covenant on Civil and Political Rights (ICCPR) in 2008 and ratified it with reservations in 2010. In 2011, the Pakistan government, on instructions from Prime Minister Gilani, withdrew almost all of the reservations.
Hence, since July 2011, Pakistan has ratified the ICCPR almost completely. This means that Pakistan has committed itself to upholding the civil rights and political rights of its citizens almost entirely. To get a full sense of the legal position, it is instructive to read an article by Qasim Rashid, a young Pakistani-American lawyer, in the Richmond Journal of Global Law and Business (vol.11/1), which lays down in some detail the history of the ICCPR, Pakistan’s ratification and subsequent lapses.
In Article 18 of the ICCPR is the guaranteed freedom of thought, conscience and religion. The right to religion includes the freedom to adopt and profess in public or private, freedom of worship and unstinted and unfettered right to believe and manifest one’s religious beliefs accordingly. Article 19 goes further and says that everyone shall have the right to his or her opinions — without interference. Article 20 of the ICCPR forbids any advocacy of religious hatred.
All of the aforesaid have been placed in the non-Muslim category under Article 260 of the Constitution of Pakistan. For Christians, Hindus and other minorities, the factum of their status as non-Muslims is acceptable provided there is no discrimination.
Ahmedis, however, protest their forced categorisation as central to their faith is their belief that they are a Muslim community. Not content with declaring Ahmedis non-Muslims for the purposes of the law and constitution, Pakistani lawmakers in the 1980s also ratified Ordinance XX of 1984, which essentially outlaws Ahmedi modes of worship and religion by making it unlawful for this community to use what are known as Shair-e-Islam. A Supreme Court judgment in 1993 (Zaheeruddin Vs State, 1993, SCMR 1718), upheld two to one the said law as constitutional and not in conflict with Article 20 of the Constitution that promises freedom of religion and the freedom to profess and propagate one’s religion. The Honourable Supreme Court resorted to using logic germane to intellectual property such as trademarks, etc. The question now is whether this law is sustainable after the ratification of ICCPR by Pakistan. The answer has to be an overwhelming no. The freedom to profess one’s religion is integral to the ICCPR and therefore any law that abridges that freedom is in violation of and in contradiction to Pakistan’s international commitment.
In passport application forms, officially sanctioned Muslim citizens are required to abuse and curse the Ahmedi religious beliefs, which amount to religious hatred sponsored by the state itself. Furthermore, Pakistan reintroduced joint electorates after a gap of about 24 years in 2002. This logically meant one electoral roll for every Pakistani regardless of his religious belief. Yet, in what was a sheer surrender to religious bigotry, the so-called enlightened and moderate regime of General Musharraf placed Ahmadi names on a supplemental ‘non-Muslim’ voting list. This discriminatory and bigoted move was done to disenfranchise Ahmadi voters, amounting to censure for holding their own religious beliefs. The existence of supplementary rolls is, therefore, also a clear violation of Pakistan’s commitment to safeguard the political rights of its citizens.
While Christians, Hindus, Sikhs and others are not subject to such open discrimination, their situation is only marginally better. In Sindh, Hindu women are being abducted and forcibly converted to Islam. Many Christians are suffering under the blasphemy law, a law which itself is in contradiction to the ICCPR. Churches, temples and other places of worship are routinely destroyed. In Pakistan, no one is free to go to their temples, mosques or any other place of worship other than the Sunni Muslim majority and even they go to their mosques under threat of terrorist attacks and violence. Even amongst the Sunni Muslims, the Barelvi sect faces ruin and destruction vis-à-vis the mazar and dargah. This is also leading to radicalisation within the Barelvi, who are now competing with the Deobandi and Ahle-Hadith in intolerance and bigotry.
To sum up, Pakistan is in complete and total violation of its international obligations vis-à-vis religious freedom, civil and political rights. The consequences can be severe and it is entirely possible that in the extreme, foreign governments might stop accepting or honouring Pakistani passports as a valid travel document. South Africa faced such international isolation and was forced to give up its bigoted racial policies. Pakistan has many more international enemies than South Africa did in the 1970s. Therefore, isolation along these lines will lead to a terrible disaster for an already ailing economy. The upshot, of course, would be that Pakistan would be forced to undo the institutionalised discrimination in its legal system against non-Muslims but at what cost? Let us voluntarily rectify these problems instead of becoming the subject of international humiliation and ridicule.
The author is a practicing lawyer based in Lahore. He is also the author of the upcoming book “Jinnah; Myth and Reality.” He can be contacted at (0300) 555 2232 or at [email protected]
