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Islamisation of Laws in Pakistan by Salman Akram Raja (OctoberDecember 2003 South Asian Media Journal)

The debate inside Pakistan regarding the role of religion in the constituti onal and legal framework of the state has been based, for the most part, on a broadl y shared acceptance that Islam has made definite prescriptions about the conduct of the affairs of the state. While interventions in this debate from a secular standpoi nt have been vocal, and at ti mes significant in terms of impact1, the secular-intellectua l discourse has flown at a tangent to the mainstream. The argument wi thin the framework of 'acceptable controversy' 2 has been between Islamists with a conservati ve or orthodox hue and those who clai m3, in the name of ijtehad, that i mplementation of Islamic l aw must be based on modern re-interpretation of the tradi tional sources..4 The Islamist standpoi nt, in common wi th most modernists, is based on the thesis that Islam as a religion requires of its adherents the i mplementation of Islamic law or the shariah through the authority of the state. Within this broad school are those who find in the Quran a direction to the believers to stri ve for the attainment of political authority as a matter of religious compulsion so as to able to enforce the shariah. The clearest articul ati on of this interpretation was made by Maulana Abul Al a Maudoodi in the 1930s.5 Since then, this view has gained wi des pread acceptance wi thin the Pakistani religio-political discourse and has been espoused by modernists such as Fazlur Rehman6, Dr. Javed Iqbal7 and Ghulam Ahmed Parvez8, the last-named otherwise seen as the arch-nemesis to Maudoodi's rigid support for the classical forms of punishments in Islamic law, putting women in purdah, limited political partici pati on for the religious minorities and his opposition to acquisition by the state of land for the purposes of redistribution. It is perhaps not surprising that the vision of Islam as a movement in constant struggle for political actualisation of the i deal shariah has come to occupy a prestigious place i n the set of i deas s ponsored by the state, l argely since the Zia years (1977-88) as the Ideology of Pakistan.9 In the reading of history made by text books prescribed by the various government textbook boards, the creati on of the state of Pakistan is seen as the realisation by the Muslims of Indi a of the di vi ne command to attain political authority.10 Provi dence itself is seen to have ai ded in this realisation. The writings of those such as Waheed-ud-Din Khan, originall y a leader of Maudoodi's Jamaat-e-Islami who stayed back in India after parti tion and later challenged the view that Islam i mposes on the believers an obligation to struggle for political authority in the form of an Islamic state as part of the uni versal khilafah, have remained suppressed in the Pakistani political discourse of the last fifty six years. In publicly disagreeing with Maudoodi, Waheed-ud-Din Khan reiterated the classical understandi ng of Islam's primary objecti ve as a religion: Moral refor m of the indi vi dual in accordance with di vine gui dance.11 This understanding was consistent with the established Muslim tradition of treati ng political authority as a historical contingency rather than a religious goal. It must, however, be appreciated that even though Waheed-ud-Din Khan and others, before as well as after him,12 have rejected the thesis that Islam craves the assumpti on of political authority, even this group of thinkers maintains that in the event of a Muslim population findi ng itself in political authority over a defined territory, such assumpti on of authority being a purely temporal occurrence, the imposition of the shariah becomes obligatory. While this group denies that Muslim separatism in Indi a was as a matter of religious obligation, the view that the legal framework of the Muslim majority state created in 1947 has to be based on the shariah is accepted.

The consequence of the absence of support for the secular standpoint wi thin the vari ous shades of opini on that make up the Islamic discourse is that secular political i deals have to be based on a synthesis of modern human rights norms, cultural moti fs of uni versal love and disgust wi th the parochial bi ases of the mullah and the pundit found i n sufi poetry along wi th the now iconic speech made by the Quai d-e-Azam Mohammad Ali Jinnah on 11 August, 1947 to the first Constituent Assembl y of the soon-to-be-born state of Pakistan. Mr. Jinnah had sai d:

You are free; free to go to your temples, you are free to go to your mosques or to any other places of worship in this state of Pakistan. You may belong to any religion or caste or creed that has nothing to dowith the business of the state. We are starting in the days when there is no discrimination, no distinction between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one state. . Now I think we should keep that in front of us as ourideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in thepolitical sense as citizens of the State.
Subjected to official plunder and distorti on 13 this speech, handed down in officially approved texts, such as Hector Bolitho's bi ography of the Quai d, came to read:

'You are free; free to go to your temples, you are free to go to your mosques or to any other places of worship in this state of Pakistan. You may belong to any religion or caste or creed-that has nothing to do with the fundamental principle that we are all citizens and equal citizens of one state. Now I think we should keep that in front of us as our ideal '
The question of distortion, of text as well as meaning and intent, remains a recurrent theme in the Islamisation debate among the Pakistani intellectual, religious and political elites.14

Family Laws
Doctrines that clai m origin in the vast body of texts15said to contai n the injunctions of Islam can be identified at several levels in the present constituti onal and legal framework of Pakistan. At one level is legislation that regulates s pecific areas of acti vi ty, mostly cri minal offences and questions of personal status including inheritance. Such legislation can be traced back to the traditi on of pre-i ndependence laws such as the Musal man Wakf Vali dation Act, 1913, the Shariat Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939. Post-Independence legislation clai ming basis in Islam occurred in two waves of legislative acti vi ty. The first wave resulted in the Muslim Family Laws Ordi nance, 1961, promulgated in liberal ti mes, al beit by a military dictator. The Ordi nance of 1961 attempted to reform significant areas of tradi tional Islamic fi qh 16 on questions of marriage, di vorce and inheritance. The reform was undertaken through avowed reliance on available interpretations of the tradi tional texts that offered outcomes more in line with the constitutional princi ples against gender discrimination and that appeared to address issues of contemporary concern. In a departure from orthodox Islamic law, a second or subsequent marri age was

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made subject to the existing wife's consent. Di vorce was subjected to a process that entailed the invol vement of an arbitrati on commi ttee prior to the issuance of a di vorce certificate. This replaced the traditi onal irrevocable and immedi ate di vorce effected through a tri ple pronouncement of talaq (di vorce). The object was to provi de the parties with a cooling off period and to allow greater deli beration and dignity to attend the termi nation of a marri age. Chil dren of a pre-deceased son or daughter were allowed an inheritance right in the estate of the grandparents. Tradi tional Islamic law, of all schools,17 recognises only the chil dren ali ve at the time of a person's death as heirs while excludi ng the grandchil dren from a pre-deceased chil d. The subject matter of the Ordi nance of 1961, along wi th its reformist intent, allow this legislation to be seen in the tradi tion of the pre -independence AngloMohammedan law that had confined l aws grounded in religious precepts to the regulation of as pects of pri vate life. Such groundi ng had accompanied attempted reform of cl assical Islamic law. The Shariat Application Act of 1937 had sought to repl ace customary practices that were frequently inimical to the interests of women by the formal rules of classical Islamic law as recognised in Indi a. This was an advance in that it meant that the courts coul d overri de customary deni al of women's inheritance rights by relying on the definite recogni tion in all schools of classical Islamic law of women's right to inherit from their parents as well as the husband. In the same spirit, the Dissolution of Muslim Marri ages Act of 1939 had provi ded statutory cover to a woman's right, disputed by some interpretations of the Hanafi school of classical Islamic law, to seek dissolution of marriage in specified circumstances includi ng cruelty of conduct (not necessarily restricted to physical ill-treatment) as well as a general reference to any ground for dissolution recognised by Islamic law. While the Act of 1937 had overri dden custom by elevating classical Islamic law, the Act of 1939 had, in turn, subjected classical Islamic law to statutory reform.

Gen. Zia's Islamisation

The second wave of Islamic legislation, initiated i n the late 1970s and the 1980s, sponsored by General Zia-ul-Haq was al together different in its intent and scope. The intent this time around was to incorporate provisions of traditi onal Islamic fi qh, human juristic effort presented as the di vinel y ordained shari ah, into the body of the l aw beyond the tradi tional confines of family law and i nheritance. The scope of this legislation ranged from an ' Islamic' overhaul of the Evi dence Act, 1872 through the Qanun -e-Shahadat Order, 1984, to the full inclusion of traditi onal hudood18 laws. These hudood l aws not onl y repl aced the existing penal provisions with respect to muder, theft, adultery and rape, turning large areas of offences against the state into pri vately compoundable wrongs, but also added entirely new categories of offences such as Qazf (false accusation of sexual i mpropriety) , fornicati on between consenti ng adults and bl as phemy. Perhaps no as pect of the Islamisation of laws has had a l arger impact on the lives of ordinary people, women in particular, as the Offence of Zina Ordi nance of 1979-one of the fi ve hudood l aws promulgated in that year.19 While sex outside marri age, or even the allegation of such contact, has traditi onally been, and still is, a grave religious and cultural offence in all parts of Pakistan. The Zina Ordi nance declares consensual sex outside marri age a distinct crime punishable by law. It also provi des punishment for zina-bil-jabr (rape). The Zi na Ordi nance provi des two different punishments for the same offence dependi ng on the nature of the evi dence ag ainst the accused. For the hadd punishment of rajm (stoning to death), the offensive act shoul d have been wi tnessed by four male, Muslim wi tnesses of good repute. If, however, the offence is proved by any other form of evi dence, the Court can award punishment that may include a prison

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sentence as well as whi pping. The latter category of sentences is subsumed under the headi ng of tazir, the technical term in Islamic Law for punishments that fall in the discretion of the state. The popular percepti on of the Zina Ordi nance, largely based on the i mage carried in the press, is that a raped woman must produce four male wi tnesses against the accused for a convicti on. The legal position that a conviction leadi ng to a tazir punishment can be maintained on the basis of other evi dence, including that of the woman herself, is generally absent in the popul ar understanding of the Zina Ordi nance. This has led to further presumpti on that a woman who has accused and failed to produce the four male wi tnesses required by the l aw must face the charge of slander in terms of the Qazf Ordi nance, 1979. Several judg ments in the last two decades have served to support this impression of the Zina and Qazf Ordinances. In Safi a Bibi's case,20 a blind girl, raped by her empl oyers, was convicted by a lower court for the offence of zina on account of her pregnancy even though the accused were acquitted for lack of evi dence. Even though Safia Bi bi's convicti on was later set aside in appeal by the Federal Shariat Court the psychological i mpact of the earlier conviction has subsisted. More recently, in 2002, the case of Zafran Bibi made international headlines. In Zafran Bi bi's case, the compl ainant, an illiterate woman who had accused her hus band's brother of havi ng assaulted her, was convicted by a l ower court, once ag ain on account of having concei ved during a period when her hus band was serving a prison sentence. No evi dence was found ag ainst the accused brother-in-law who was, therefore, acquitted. In appeal the Federal Shariat Court set aside Zafran Bi bi's conviction and hel d:21 'Mere pregnancy by itself when there is no other evi dence at all, of a married lady, havi ng no access to her husband or even of an unmarried girl is no ground for imposition of hadd punishment, if she come out wi th the defence that (the pregnancy) was the result of commission of rape with her.' The statement of law by the Federal Shariat Court notwi thstanding, it is clear that Zafran Bibi was not the last woman to be abused by the judicial process in the name of the Zina Ordi nance. In a patri archal society, a woman abused is a woman condemned. The colonial legislators were well aware of this fact. The 1997 Report of the Commission of Inquiry for Women22 set up by the government noted: That under the Penal Code of 1860 a woman coul d not be tried for zina. Zina then was only a cri me in the form of adultery Compl aints of adultery coul d only be made by the husband of the adulteress. But females coul d not be punished under the law. The authors of the Penal Code had argued that within the prevalent feudal and patriarchal social structures women were rarely in total control of their li ves and actions. Making them liable to willing adultery in such unequal circumstances, when even a false hint of it woul d s pell doom for the women for life, woul d frequently amount to injustice. Besides the very criminal liability of a woman woul d have the effect of enl arging the chances of her victi misation since she woul d then be open to bl ack mail, to threat of her i mplication in willing acts of zina. Finally, it was thought that such a provision woul d lead to the traditional rules and norms being made even more inhi biting for women and raise the level of their social oppression and of familial control over their li ves. Thus the writers of Penal Code concluded that they woul d not throw into a scale already l oaded against women the addi tional weight of penal law. Their apprehensions proved only too true after the Ordinance came in. In the pre-Zi na Ordi nance peri od, there were only a handful of reported cases of adultery. As soon as the law was changed to include women within the scope of its punishment, allegations of zina started to run into thousands. This clearly indicates that as long as it was only the male who coul d be punished for adultery, there was a reluctance to prosecute. The Ordinance became a tool in hands of those who wished to expl oit women.23

The view expressed by the 1997 Report has been expressed by greater vehemence by the Report of the National Commission on the Status Women, 2003. Declaring the Hudood Ordi nances, the Zina Ordinance in particul ar, to be manifestly unjust, irrational and contrary to the injunctions of Islam, the Commission has called for the i mmedi ate repeal of the Ordi nances.24

Sword of Amputation

The Offences against Property (Enforcement of Hudood) Ordi nance, 1979, stipulates the hadd punishment for theft of property pl aced in encl osed premises or in a container or in the custody of a person. Instances of criminal misappropriation or cri minal breach of trust not entailing the physical removal of any property have been left out of the scope of the Ordinance. The shariah punishment stipulated by the Ordinance includes amputation of the right hand for first time offenders and amputation of the left foot for persons committi ng the offence for a second ti me. The i mposition of the hadd punishment requires the testimony of two Muslim, adult, male wi tnesses of good character. The testi mony of a non-Muslim may be considered for the purposes of the hadd onl y if the accused is a non-Muslim. In the event of evi dence, as prescribed by the Ordinance of 1979, not being available, the court may award as tazir the same punishment as under the Penal Code of 1860. Though trial courts have, at ti me, i mposed the hadd punishment of amputation such i mposition has never been sustained at the appellate stage. However, the fact that the threat of amputati on, al ong with that of stoning in terms of the Zina Ordinance, remains on the statute book, is not wi thout i mport. Asma Jehangir and Hina Jilani have commented:25 'Nevertheless one cannot ignore its psychological effect. Taking the law as a moral sanction a crowd of people in the Frontier Provi nce took the law into their own hands and literally stoned a man to death.' Woman as half-wi tness

The Evi dence Act of 1872 was repealed and replaced by the Qanun-e-Shahadat Order, 1984 with the avowed intenti on to Islamise the law. The discrimination contained in the Hudood Ordinances between the evi dence of men and women for the purposes of impositions of the hadd punishment was expanded by Article 17 (2)(a) as regards matters pertaining to financial or future obligations: Article 17(2)(a): In matters pertaining to financi al and future obligati ons, if reduced to wri ting, the instrument shall be attested by two men, or one man and two women, so that one woman may remind the other, if necessary, and evi dence shall be read accordingly. Article 17(2)(a) as eventually promulgated, though still discriminatory, reflects the impact of the heroic struggle waged by the then nascent women's rights movements in Pakistan. The original version of the law had equalled the testi mony of two women, regardless of intellect and educati on, to the testimony of a single male witness for all purposes. It was onl y after country-wi de protests by human rights and women acti vists with the resultant attraction of international attention that the proposed law was watered down to

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financial and future transactions.

Blasphemy law

The offences of the defiling of the Hol y Quran and use of derogatory remarks in respect of the Holy Prophet (pbuh) were added to the Pakistan Penal Code in the form of Sections 295-B and 295-C, respecti vel y, through Ordinance 1 of 1982 and Cri minal Law (Amendment) Act (III of 1986). Together, the two provisions have served to constitute bl as phemy a frequently expl oited instrument of oppression agai nst the religious minorities, political opponents as well as rival claimants to property. A mere accusation of bl as phemy is enoug h to trigger the oppressive force of the police machinery against the accused. The accused is, as a rule, promptly arrested and made to s uffer a trial in highly enraged circumstances before a judge who must fear for his own security in the event of an acquittal verdict being passed in favour of the accused. Such fear is by no means exaggerated. The judge of the Lahore High Court, who authored the acquittal order in the case of Salamat Masih and Rehmat Masih26, two Christians accused of bl as phemy in 1995, was assassinated not long after the verdict. It is, therefore, no surprise that bl asphemy trials invariabl y result in convictions and where the charge framed is of bl as phemy in respect of the Hol y Prophet (pbuh) the death sentence is the only sentence that may be granted. Section 295-C, as originally promulg ated, had allowed the judge discretion to grant the sentence of life imprisonment instead of the capital punishment. However, in 1991 the Federal Shariat Court decl ared, in Muhammad Ismail Qureshi vs. Pakistan,27that the law as drafted was repugnant to the injunctions of Islam in so far as it allowed the grant of any punishment other than death to a person convicted of blas phemy in res pect of the Hol y Prophet (pbuh).

Segregating Qadianis

Attempts by the Musharraf g overnment to enhance its liberal credenti als by amendi ng Section 295-B and 295-C so as to provi de for inquiry by a senior officer prior to the registration of a case of bl asphemy were scuttled in the face of stern threats by the religious parties during the course of the year 2000.28 Of all the religious minorities the Qadi anis* have been the most affected by legislation purportedl y in the cause of Islam. Sections 298-B & 298-C were added to the Pakistan Penal Code by Ordinance XX of 1984 wi th express intent to 'control' Qadiani acti vi ties. Section 298-B prohi bi ts members of the Qadiani community from using words or re presentations similar to those used by Muslims as regards persons held in respect as founders of the Qadi ani creed. Section 298-C bars members of the Qadiani community from referring to their faith as Islam or posing as Muslims or from preachi ng or propag ating their faith. Both sections provi de a punishment of up to three years along wi th fine. These provisions were relied upon by

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the provi ncial government to ban the centenary celebrations of the group in 1984. The constituti onal challenge to these provisions on the basis of Article 20 of the Constitution that guarantees the fundamental right of all citizens to profess, practice and propag ate their religion was turned down by the Supreme Court of Pakistan in Zaheer -ud-din vs. The State.29

Murder and Blood-money

Amendments made to the Penal Code by the Cri minal Laws (Second Amendment) Ordi nance of 1990 and reenacted by the Cri minal Laws (Qisas and Diyat) Act 1997 introduced the possibility of the heirs of the deceased victi m entering into a compromise with the convicted murder who coul d then be acqui tted by the court. Under Section 302(a) death sentence can be awarded to a person convicted of qatl-i-amd (deli berate murder) by way of qisas. Qisas is the right to punishment made available to the heirs by God rather than by the state. Under Section 302(b) death sentence or a prison sentence can be awarded by way of tazir to a person convicted of intentional murder. Tazir sentences are not di vinel y specified and are to be awarded where the quality of evi dence required for a qisas punishment is not available or where the victi m or the victi m's heirs and the offender are related in a s pecified manner. As regards the qisas punishment of death awarded under Section 302(a), any adult sane heir30 of the victi m may wai ve his right of qisas in terms of section 309 of the Penal Code. In the event of some of the heirs of the victi m not agreeing to wai ve the right of qisas they are to be pai d their share of diyat (bl ood money). The quantum of di yat is to be fixed by the government from ti me to ti me. Where even one of the heirs has wai ved qisas the death sentence ag ainst the convicted murderer is to be substituted wi th i mprisonment that may extend up to 25 years by way of tazir in terms of Section 311 of the Pakistan Penal Code. Even where all the heirs of the victi m wai ve the right of qisas the court may still sentence the offender to i mprisonment of either description for a term that may extend to 14 years. Such sentence may be imposed as tazir keeping in view the pri nci ple of fasad-fil-arz (serious disruption in society) in terms of Section 311 of the Pakistan Penal Code. For the purpose of the princi ple of fasad-fil-arz the court may take into account the past conduct of the offender, includi ng any previ ous convictions, as well as whether the manner in which the offence was committed was outrageous to the public conscience and whether the offender is a potenti al danger to the community. While Section 309 deals with wai ver of qisas section 310 deals with the compounding of qisas. Under Section 310 an heir may compound his right of qisas by accepting money instead. The princi ples of section 311 as regards the jail sentence that a court may nevertheless impose also apply in the event of a compounding of qisas under Section 310. The general rule, in practice, is that once the heirs have wai ved or compounded the offence the courts refrain from punishing the offender who then walks free. Where the death sentence has been awarded not as qisas but as tazir under section 302(b) sections 309, 310 and 311 of the PPC are not applicable. A tazir punishment may only be compounded i n terms of Section 345(2) of the Cri minal Procedure Code. The offence of qatal-e-amd liable to tazir may be compounded only wi th the permission of the court and with the consent of all of the heirs of the victi m. Once such composition of the offence has occurred the court must acquit the offender in terms of Section 345(6). In the event of any one of the heirs of the victi m refusing to compound, no composition of the offence may occur and the sentence granted under Section 302(b) will remain enforceable. 31 Apart from the radical change in the nature of the offence of murder the so-called Islamisation of the

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law has introduced a scheme that has served to make the murder of women a lower category of offence, in terms of likelihood of punishments. The enhanced vulnerability of women is a natural consequence of sections 306 and 307 of the PPC. Under Section 306(b) qatl-i-amd shall not be liable to qisas where an offender has caused the death of his child or grand-child, how-low-so-ever. Section 306(c) states that qisas is again inapplicable where any heir (wali) of the victi m is a direct decedent, how-low-so-ever, of the offender. Under Section 307 qisas will not be enforced where any wali voluntarily wai ves the right of qisas under section 307(b) or compounds under section 310. Under Section 307(c) qisas will also not be i mposed where the right of qisas devol ves on the offender as a result of the de ath of the wali of the victi m or on a person who has no right of qisas against the offender on account of being a direct descendent of such offender. One or more of the instances quoted in the law reg arding the non-applicability of qisas appl y to the great majority of murders where the victi m is a daughter, sister or wife of the offender. Even where a sentence has been awarded by way of tazir for murders inside the immedi ate family the offender's chances of walking away free are very high. For instance, in a case where a daughter has been killed by a father (a particul arly unfortunate feature of most so-called honour killings), the heirs of the victi m are likely to be the offender's own wife and other chil dren. The likelihood of these heirs forgi ving the offendi ng father is high, who woul d then have to be acquitted by the court. Reporting the results of research carried out on the i mpact of the qisas and di yat l aw, the 2002 report of the Human Rights Commission of Pakistan states: 'after the adopti on of qisas law the inci dence of murder in Pakistan had gone up while the rate of conviction had gone down. This is because the courts were approvi ng compromises without ascertai ning whether an offence was compoundable under the law.'32 Research on the gender and class skewed-ness of compromises is yet to be carried out.

Islam and the Constitution

Apart from legislation wi th respect to specific offences, marriage, di vorce and i nheritance, the Constitution has also been Islamised over ti me. While the bulk of this Islamisation occurred during the Zi a era, the Constituti on of 1973 had, at its incepti on, decl ared Islam to be the state religion.33 Article 227 of the Constituti on had declared that parliament woul d bring all existing laws into conformi ty with the injunctions of Islam and enact no law repugnant to the Hol y Quran and Sunnah. Articles 228 to 230 had set up the Council of Islamic Ideology for the purpose of advising the federal parliament as well as the provi ncial assemblies as regards the injunctions of Islam on any issue referred to it or even on other matters considered important by the Council for the purpose of enabli ng the Muslims of Pakistan to order their lives indi vi dually and collecti vely 'in accordance with the princi ples and concepts of Islam as enunci ated in the Holy Quran and Sunnah.'34 The advice of the Council was, however, not made bi nding. Similarly, as regards Article 227, the superi or courts have consistently hel d that it was not meant to provi de any ground for judicial review of legislation: the direction contained in Article 227 is addressed to parliament and it is for parliament itself to determi ne whether the i njuncti ons of Islam are vi olated by any particular legislation. 35 The first 'Islamic' additi on to the original constitutional text was made in 1974 through the Constitution (Second Amendment) Act sponsored by Mr. Zul fikar Ali Bhutto's government. The effect of this amendment, whereby the definiti on of 'non-Muslim in Article 260(3) stood al tered, was to declare the

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Qadi ani community non-Muslim. Islamisati on of the Constitution during the Zia years resulted in three significant additi ons to the constitutional structure: The Federal Shariat Court and the Shari at Appellate Bench of the Supreme were created through additi on of Chapter 3A to the Constitution in 197936 which was then amended in 1980.37 Article 2A, making the Objecti ves Resolution of 1949 a substanti ve part of the Constituti on, was added in 1985.comparison_ asean.htm Article 51(4A) of the Constitution was amended in 1985 so as to bar non-Muslims from voting in elections to the general seats of the National Assembly. After the amendment, non-Muslims coul d onl y vote for non-Muslim candi dates contesting on reserved seats for the religious minorities.39

Shariat Courts

In 1979, a month before deposed Pri me Minister Zulfikar Ali Bhutto's executi on, General Zi a set up shariat benches in each of the High Courts of the country and a Shariat Appellate Bench in the Supreme Court of Pakistan. These benches were vested with s pecific authority to carry out judicial review of all laws, not including the Constitution itself, on the touchstone of repugnance to the injuncti ons of Islam. Excl uded from the jurisdicti on of the shariat benches were Muslim personal law and, for a period of three years, fiscal, banking and insurance laws. These benches were also vested with appellate jurisdiction wi th respect to cases prosecuted under the then newl y enacted Hudood Laws. In 1980, the provinci al shariat benches were made repl aced, through Presidential Order No. 1 of 1980, with the Federal Shariat Court.40 The judg ments of the Federal Shariat Court were made bindi ng on all other courts includi ng the High Courts. The centralisation of the authority to enforce the shariah reflected early nervousness on the part of General Zi a, gi ven that Islamic texts coul d be made to support diametrically opposed positions on issues ranging from the authority of the usurper of political authority, punishments such as stoning and the power of the state to effect l and reforms. The fact that the Federal Shariat Court was expected by General Zia to act as his hand-mai den was made clear to all, most of all to the judges of the Shariat Court, in 1983 when the incumbents were peremptorily removed and the court reconstituted in order to review the judg ment in Hazoor Buksh's case.41 In 1981 the Shariat Court, headed by a modernist chief justice,42 decl ared that the punishment of rajm (stoning to death) for the offence of adul tery was not a punishment sti pulated by the shariah. This decl aration by the Shariat Court was at vari ance wi th the views of the vast majority of the tradi tional ulema.43The possibility of the Shari at Court mounti ng a li beral challenge to the orthodoxy came as a shock to General Zia and his religious constituency. While General Zia, might have hel d personal empathy for the orthodox view of the shari ah, by 1981 the Afghan jihad was already underway and the military coul d no longer ignore the mullah. A reconstituted Shariat Court was promptly directed to reconsi der the original decision on rajm in Hazoor Buksh's case. The review order passed in 1983 set aside the original judg ment and asserted the orthodox view on the obligatory nature of rajm with obvi ous official approval.44 The reversal in Hazoor Buksh's case set a tone that has continued to mark decision-making by the Shari at Court. Wi th its brief encounter wi th modernist interpretati ons of Islam snuffed out, the Shari at Court spent the rest of the Zi a years followi ng a conservati ve line. The Shariat Court defined its jurisdiction narrowl y and for the most part found little in existing legislation requiring review on the grounds of repugnance to the injunctions of Islam.

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Abetting Feudalism

The two most prominent declarations of repugnance to the injunctions of Islam made during this period were comfortabl y consistent with the Zi aist opposition to the socialistic overtures of the Bhutto years. In 1981 in the case of M. Ameen vs . Pakistan,45 the Federal Shariat Court hel d that Islam disallowed the forci ble acquisition by the state of any property, including land for the purpose of redistri buti on. As a result the provisions of the Land Reforms Regulation of 1972 empowering the state to acquire land were hel d to be repugnant to the injuncti ons of Islam. In appeal the decision was uphel d by the Shariat Appellate Bench of the Supreme Court of Pakistan in Qazal bash Waqf vs. Chief Land Commissioner. 46 With the declaration that l and reforms were prohi bited by Islam the Shari at Court had, in effect, declared the heart of the political agenda of the left in Pakistan to be un-Islamic. In 1986 the Shariat Appellate bench of the Supreme Court hel d, in Sai d Kamal's case,47 that the provisions of MLR 115 of 1972 granting tenants of agricultural land the first right of refusal in the event of sale by the l andl ord were also repugnant to the injunctions of Islam. The l and reform and the tenants' pre-emption right cases presented the shariah as an i deological abettor of the status quo. Havi ng denied a l arge number of existing pre-emption cl aims as 'un-islamic' , the Shari at Apellate Bench reflected: 'According to learned counsel, thousands of i nnocent parties, who have invested all their life savings in prosecuting their suits for pre -emption, which were institute d on the strength of statutory provisions vali dl y in force for decades, will be rui ned and their lifelong efforts reduced to nought for no fault of theirs. Believing as I do that law is for the citizen and not the citizen for the law and being a protagonist of the princi ple that the 'law may be bli nd but the Judge is not', I have personally been deepl y moved by this submission. But I also cannot overlook the glorious struggle waged by millions of Muslims to establish this Islamic State of Pakistan and the heart rendi ng sacrifices made by them for bringing into being this great polity wherein they coul d fulfil their cherished wish to conduct their affairs in accordance with the ' Injunctions of Islam', as enshrined in the Hol y Quran and the Sunnah. The price they are now called upon to pay on account of the overthrow of the un-Islamic provisions of the Punjab Pre-empti on Act, 1913 to pave the way for the Islamic Law of pre-empti on is, I believe, one further sacrifice that they must make in the cause of establishing this Islamic polity and for ensuring that the generations to follow will be g overned by the laws of Islam and Islam al one.'48

Prohibiting Interest

It was onl y in the post-Zia years that the Shariat Court started to assume positions that coul d be seen as causing discomfi ture to the government of the day. Part of the reason for the enhanced profile of the Federal Shari at Court was also the expiry i n 1990 of the ten year restriction on the Shari at Court's jurisdicti on wi th respect to fiscal and financi al laws. The greater self-confi dence felt by the Shariat Court mani fested itself in Allah Rakha's case.49 In 1981 the Shariat Appellate Bench of the Supreme Court had hel d, in Pakistan vs. Farishta,50that the Muslim Famil y Law Ordi nance of 1961 could not be considered to be part of Muslim personal law and hence was not excluded from review by the Federal Shari at Court.

11

However, it was not until the year 1999 that the Shariat Court took up, in Allah Rakha's case, examination of the Ordi nance of 1961. Based on this examinati on, the court hel d that the inheritance right in the estate of a grandparent made available by the Ordinance of 1961 to orphaned grandchil dren was contrary to the dictates of the shari a. The Shari at Court, however, itself moved to ameliorate the harsh consequences of denying an orphaned grandchil d a share in the grandparents' estate by declaring that in all circumstances the grandparents be deemed to have made a will in favour of the otherwise disinherited grandchil d. The judg ment in Allah Rakha's case revealed the Shariat Court intellectuall y torn between allegiance to tradi tional conceptions of the shari ah and the needs of contemporary social reality. While the judg ment in Allah Rakha was able to achieve a casuistic balance between traditional form and social need, the Shari at Court felt unable to maintain such balance in Dr. Mahmood-ur-Rehman Faisal vs. The Government 51in which bank interest in all forms or l oans and deposits was decl ared to be prohi bited by the injunctions of Islam as falling within the prohi bited category of 'riba'. The judg ment in Dr. Mahmood-urRehman' s case was appealed against by the government and a status quo order obtained. However, the existence of the judg ment continued to pl ace all bank related financing in Pakistan under serious threat. For ten years, after the initial hearing, the Shariat Appellate Bench of the Supreme Court felt unable to take up the appeal. During this period all financing arrangements in the country contai ned force majeure clauses containi ng reference to the possibility of the riba judg ment being finally uphel d. In 1999 the Shariat Appellate Bench fi nally took up the appeal and affirmed that the modern bank interest was covered by the Islamic prohi bi tion ag ainst riba.52 A ti me-table was lai d down for the complete overhaul of the financial system, not l ater than 30 June 2002. While the Government set up several committees and task forces for reinventing the economy pri or to the deadli ne, it was clear that the impossible woul d not be achieved. In early 2002 the Government urged a reconstituted Shari at Appellate Bench of the Supreme Court to review its earlier judg ment. It is significant that pri or to the review petition being taken up Maulana Taqi Us mani, an ali m member of the be nch since 1980 was removed by the President. In June 2002 the Shariat Appellate Bench set aside its own earlier judg ment and referred the matter back to the Federal Shariat Court.53 While a reprieve had been achieved by the government, the fundamental fault at the heart of the system remains. The status quo cannot continue i ndefi nitely.

Objectives Resolution

The Objecti ves Resolution passed by the first Constituent Assembly in 1949 has long been described in superior court judg ments as the grundnorm of Pakistani constituti onalism. That Resoluti on passed, in lieu of a Constituti on, had declared: 'Whereas sovereignty over the entire uni verse belongs to Allah Al mighty alone and the authority which He has delegated to the State of Pakistan, throug h its people for being exercised wi thin the li mits prescribed by Hi m is a scared trust In the years since 1949 the tussle over the authority to s peak in Allah's name has threatened the stability of the constitutional framework time and again. Standi ng apart fr om the 'grundnormists' at the other end of the i deol ogical rhetoric are those who see in the Resoluti on of 1949 a negati on of the Quai d-e-Azam' s

12
vision expressed in his speech of 11 August 1947 to the Constituency Assembl y. That the Objecti ves Resolution was at all passed is frequently attri buted to the political rootless-ness of the cohort of politicians seeking legitimacy throug h recourse to religious grand-standing. This, of course, is a charge made wi th greater vehemence with respect to General Zia's Islamisati on. It was General Zia who, through an amendment to the Constituti on in 1985, lifted the Objecti ves Resolution from its status of a pre-constitutional document with a long shadow but little juri dical impact and made it a substanti ve part of the Constitution. In The State v. Zi a-ur-Rehman 55the Supreme Court of Pakistan had held in 1973 that the Objecti ves Resolution was not a substanti ve part of the Constituti on and, therefore, coul d not be relied upon by any court for the purpose of judicial review of legislation. The inclusion of the Objecti ves Resolution as a substanti ve part of the Constituti on was clearly a response to the judg ment in Zi aur-Rehman' s case. General Zia's emphasis on the Objecti ves Resolution was, however, not without distortion. One of the paragraphs of the original Resoluti on reads: Wherein adequate provision shall be made for the minorities to freely profess and practise their religions and develop their cultures. In the 1985 incorporati on of the Resoluti on the word 'freely' was left out. As expected, the additi on of the Objecti ves Resoluti on to the Constituti on opened the fl oodgates to challenge existing legislation as well as the provisions of the Constitution itself. For several years the entire constitutional framework of the country appeared to be vulnerable to dis mantling by a small number of religiously inspired members of the superior judici ary. In Qamar Raza vs . Tahira Begum,56 parts of the Muslim Famil y Laws Ordi nance of 1961 were decl ared to be of no effect being in vi olation of the shari ah. Matters came to a head when in Sakina Bi bi vs. The Government,57 a full-bench of the Lahore High Court struck down Article 45 of the Constituti on as being repugnant to the injunctions of Islam. It was the Supreme Court of Pakistan itself, rather than parliament, that acted in 1992 to cut down the i mpact of the Objecti ves Resolution. In the case of Haki m Khan vs. The State,58 the Supreme Court hel d that despite the adoption of the Objecti ves Resolution as a substanti ve part of the Constitution no part of the Constitution coul d be subjected to judicial review on the basis of repugnance or inconsistency with the injunctions of Islam. The following year, in 1993, the Supreme Court further hel d in the case of Kaneez Fati ma vs. Wali Mohammed,59 that the Objecti ves Resolution coul d not be empl oyed even for the purpose of striking down ordinary legislation. The combi ned effect of the judg ments in Hakim Khan and Kaneez Fati ma is that Article 2A and the Objecti ves Resolution cannot be relied upon by the courts to provi de tests of vali dity either for the Constituti on or for ordinary legislation. The courts may, however, rely on the Objecti ves Resolution and the injunctions of Islam in order to exami ne the vali dity of executi ve action. Further, the courts can i mport the princi ples of Islam to cater for situati ons left untended by express legislation. This amounts to a role for the injunctions of Islam that had been recognised by the courts even pri or to the incorporation of the Objecti ves Resolution into the Constitution. 60 The fact that des pite the abri dgement of the potentiall y open-ended i mpact of the Objecti ves Resoluti on, the role left for the injuncti ons of Islam in the interstitial spaces of the legislative framework, can have farreaching consequences was underscored by the challenge that mounted in Abdul Waheed v. As ma Jahangir61 to the capacity of a woman, of any age and ability, to enter into marri age without the consent of a male guardian. It was argued on behalf of a father whose adult, educated daughter had married against his wishes that the provisions of the Muslim Family Laws Ordinance of 1961 pertaining to the formalities of marriage di d not excl ude the requirements of the shariah. It was claimed that in fact there was a gap in the Ordi nance of 1961 which required recourse to the rules of vali d marri age recognised by traditional Islamic l aw. It was also argued that the view taken by the Maliki and Shafii

13
schools of Islamic law as regards the limited capaci ty of a woman to enter into marriage was preferable to the view of the Hanafi school that has tradi tionally recognised complete capacity in women. While the Lahore High Court ulti mately deci ded, by a two-one majority, in favour of a woman's complete capacity the matter was argued over a year and a half and kept the entire country ri veted. Many women woke up, for the first ti me, to the obscurity and the distressing relevance of tradi tional thought. In the end the ulti mate result of the case reflected the i mpact of the struggle launched by the women's rights organisati ons across the country with a high degree of visibility in the nati onal and international press. While the appeal ag ainst the judg ment of the Lahore High Court remains pending before the Supreme Court, marriages similar to the one that was in issue in Abdul Waheed vs. As ma Jahangir are being dealt with in routi ne by the High Courts in favour of women's capacity to order their personal li ves.62This is an important example of secular rights acti vism having forced a li beral judici al advance.

Conclusion
The electoral success of the Mutahi da Majlis -e-Amal (MMA), a political alliance between six conservati ve religious parties, in the elections of October 2002 has added a new immediate di mension to the political debate. Those who might have thought of the review of the ri ba judg ment as a final turning of the ti de against the Islamist worl d-view had clearl y presumed too much. This was, in any case, before September 11 and the polarisati on caused since that event. In August 2003 the MMA government in the North West Frontier Provi nce tabled a bill before the provincial assembly that, if enacted, woul d require the mandatory wearing of the veil by women.63 Gi ven the support for the MMA in the house the bill woul d have been passed into law but for frantic behind the scenes lobbying by the Musharraf government. With the bill before the NWFP assembly seen as an emblem of obscurantist religious thought in the country, the modernists and the secular groups have responded with vigour. The debate and the power -pl ay goes on.

(Salman Akram Raja is a constitutional lawyer and was member of the Presidential Steering Committee on Higher Education Reform in 2002).

References 1. See the discussion infra on the i mpact on the l aw of evi dence and on the issue of a woman's capaci ty to enter into marri age without the intervention of a male guardian. 2. See the distincti on made by H.L.A Hart, The Concept of Law, (Clarendon, 1994), between the internal and external points of view. The insiders' discourse is based on common presumptions as regards the normati vi ty of norms that are accepted as valid. The attitude of the insiders' towards these norms is that of critical reflexi vi ty: the norms are taken as gui des to behavi our and basis for criticism of others actions. The outsiders simply observe the practices surroundi ng the norms, and the consequence of these practices, wi thout attempting to step into the insiders' discourse. 'Acceptable controversy' can be taken to be controversy wi thin the insiders' discourse. 3. For the different shades of opini on on the role of Islam in the state see Ishti aq Ahmed, The Concept of an Islamic State, (Frances Pinter, London, 1987).

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4. See Allama Muhammad Iqbal, The Reconstruction of Religious Thought in Islam, (Institute of Islamic Culture, Lahore, 1989) 5. See Maudoodi , Islamic Law and Constitution, (Islamic Publications, Lahore, 1980). 6. See Fazlur Rehman, Islam, (Chicag o, 1979) pg 1: 'What constitutes the Communi ty is the conscious acceptance of its status as the pri mary bearer of the Will of God, the 'Command of God for man' _ the Sharia; this trust being sought to be i mplemented throug h its governmental and collecti ve institutions. The Sharia is the constitution of the Muslim Community.' 7. See Dr. Javi d Iqbal, Islam and Pakistan's Identity , (Vanguard B ooks, 2003) pg 13: 'Since the Muslims are expected to be governed under the Shariah in all s piritual and temporal matters, and can onl y render obedience to the rulers from those among them, they must as pire to establish a state of their own, wherever it is possible to create a viable state.' 8. See Ghul am Ahmed Parvez, Islam: A Challenge to Religion, (Tulu-e-Islam, Lahore, 1996). 9. See Sharif ul Mujahi d, Ideolog y of Pakistan, (Islamic Research Institute Press, Islamabad, 2001). 10. On the teaching of history in Pakistan see K.K. Aziz, The Murder of History, (Vanguard, 1993). 11. See Wahi d-ud-din Khan, Taabeer ki Ghalti, (Dar-ut-Tazkeer, Lahore, 2002). 12. See Javed A. Ghami di, Al-Meezan, (Dar -ul-Ishraq, Lahore, 2002). 13. See In the name of religion? by Ardeshir Cowasjee i n the daily Dawn, October 5, 2003. 14. See infra on the distorti on of the Objecti ves Resoluti on of 1949. 15. While the basic sources are the Quran and the collections of ahadi th, reports regarding the Prophet's conduct and s peech, the large body of juristic works, fiqh, are taken to contain the eluci dation of Islamic l aw based on the two pri mary sources. 16. Fi qh can be loosely translated as juristic thinking. The terms fi qh and shariah are often used interchangeabl y, reflecting a collapse between the conti ngent nature of fi qh and the transcendental quality of the i deal shariah. Also note Shariat is the Urdu version of the Arabic Shariah

17. The main classical schools of Islamic l aw are the Hanafi, Maliki, Shafii and Hanbali among the sunnis and Jafari a among the shias. Most sunni Muslims in the sub-continent have traditionally subscribed to the Hanafi school . 18. Hudood literally means 'limits' but is used to refer to punishments hel d to be Di vi ne prescri ption for certain offences. 19. The four other hudood l aws are Offences Ag ainst Property (Enforcement of Hudood) Ordinance, Offence of Qazf (Enforcement of Hadd) Ordinance, Prohi bition (Enforcement of Hadd) Ordinance and Executi on of the Punishment of Whi ppi ng Ordinance, all of 1979.

15

20. PLD 1985 Federal Shariat Court 120. 21. PLD 2002 Federal Shariat Court 1 22. See page 66 of the Report. 23. Ibi d page 67. 24. The Report of the Commission was not available at the ti me of going to press. The Chair of the Commission Justice (r) Maji da Rizvi has, however, addressed several seminars, including one at the offices of the Human Rights Commission of Pakistan on 5 October, 2003.

25. Asma Jahangir and Hi na Jilani, The Hudood Ordinances: A Di vine Sancti on? (S ang-e-Meel, Lahore, 2003). 26. 1995 PCrLJ 811 27. PLD 1991 FSC 10. 28. Hi na Jillani, 'A Craven Retreat', Newsline, (May 2000). * The Qadi anis emerged in North India as a religious group within Islam during the last two decades of the 19th century. Orthodox Islamic sects consider Qadiani beliefs contrary to the fundamentals of the Islamic faith. 29. 1993 SCMR 1718. 30. Heirs for the purposes of qisas are the same as the heirs in the estate of the deceased. 31. Muhammad Aslam vs . Shaukat Ali, 1997 SCMR 1307. 32. State of Human Rights in 2002, Human Rights Commission of Pakistan, Lahore. 33. Article 2. 34. Article 230. 35. Hakim Khan vs. The State, PLD 1992 SC 595. 36. Presidential Order No. 3 of 1979 had created shariat benches in the four provinci al High Courts rather than a centralised court. 37. Presidential Order No. 1 of 1980 substituted the present Chapter 3A whereby the Federal Shariat Court was created. 38. Presidential Order No. 14 of 1985. 39. Presidential Order No. 14 of 1985. The exclusion of the religious minorities from mainstream political process came to an end with the repeal of Article 51(4A) by Chief Executi ve Order No. 24 of 2002. While

16
this was a fulfillment of a demand that most minority leaders had maintained since 1985 the circumstances of the repeal are highly controversial. Along with the repeal of Article 51(4A) General Musharraf introduced a large number of other constitutional amendments unacceptable to the entire opposition in the Nati onal Assembl y, the bar councils and large segments of the intelligentsia. General Musharraf has refused to submit these amendments before Parliament. The courts have started treati ng these amendments as fi at accompli. 40. The exclusion of jurisdicti on as regards fiscal and financial l aws was extended to fi ve years and then, through P.O 14 of 1985, to ten years. 41. Hazoor Baksh vs. The State, PLD 1981 FSC 145. 42. Justice Aftab Husain. 43. The significant exception among the ulema was Maul ana Amin Ahsan Islahi. See his Tadabur -e-Quran, (Faran Foundation, Lahore, 2000). 44. The State vs. Hazoor Baksh, PLD 1983 FSC 255. 45. PLD 1981 FSC 23. 46. PLD 1990 SC 99. 47. PLD 1986 SC 360. 48. Aziz Begum vs. Federation of Pakistan, PLD 1990 SC 899. 49. Allah Rakha vs. The Federati on of Pakistan, PLD 2000 Federal Shariat Court 1. 50. PLD 1981 SC 120. 51. PLD 1992 FSC 1. 52. M. Aslam Khaki vs. Syed Mohammad Hashi m, PLD 2000 SC 225. 53. United Bank Limited vs. Farooq Brothers and Others, PLD 2002 SC 800. 54. Presidential Order 14 of 1985. 55. PLD 1973 SC 49. 56. PLD 1988 Karachi 169. 57. PLD 1992 Lahore 99. 58. PLD 1992 SC 595.

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59. PLD 1993 SC 901. 60. See Nizam Khan v. Additi onal District Judge, Lyall pur, PLD 1976 Lahore 930. Also M. B ashir v. The State, PLD 1982 SC 139. 61. PLD 1997 Lahore 301. 62. Humaira Mahmood vs. The State and others PLD 1999 Lah. 494 63. The Hisba Bill 2003.

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