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Islamization of Laws in Pakistan

Criticism for Zia’s Islamization process was rooted in the perception he was trying to use it to legitimize his rule and not for legal reforms

by Khaled Ahmed

Pakistani scholar Osama Siddique, writing in Pakistan’s Experience with Formal Law (Cambridge 2013), analyzes the Islamization of the country’s laws and legal procedures during the rule of General Ziaul Haq from 1977 to 1988. While present in varying degrees throughout the country’s 75-year history, the Islamization process was most visible during Zia’s martial law and thus cannot be decoupled from its larger political context and Zia’s subsequent attempts to entrench his regime through the adoption of “Islamization” as a political philosophy and strategy of rule. Zia’s Islamization program operated both at a level of introducing certain fundamental structural changes to the judicial system and the so-called Islamization of particular laws.

To furnish ideological oversight and justification, an Islamic Ideology Council was formed six weeks after Zia’s coup in 1977. It was entrusted with the task of preparing the outline of an Islamic state and also had a panel on Islamic law. One of Zia’s most important steps towards Islamization of the legal system was the creation of a parallel apparatus, comprising the Federal Shariat Court (FSC) and the Shariat Appellate Bench of the Supreme Court. The FSC—a practical supra-constitutional body—was authorized and mandated to ensure uniformity of all legislation with the Quran and Sunnah, and disown any law that it considered repugnant to either or both. The composition of both the FSC and SAB cemented the role of the ulema (Islamic religious scholars) in Pakistan’s legal system.

Enter Hudood laws

Apart from alterations to the structure of the judicial system, the enactment of the controversial blasphemy laws and the equally contentious Hudood (Islamic criminal) laws for governing various aspects of private conduct and personal morality were also a very important part of Zia’s Islamization program. The significant changes made to laws were repeatedly questioned by moderate and liberal elements in society, human rights groups, and diverse political and legal commentators. Critics raised several incisive questions about their Islamic legitimacy at a theological level and also highlighted their operational defects and vulnerability to abuse. They condemned the introduction of new punishments such as stoning to death, amputation, etc.

The overarching lack of confidence in the integrity of Zia’s Islamization-oriented legal and judicial reforms, however, stemmed from a larger and scathing political critique of his rule and actions as inherently mala fide and motivated by a desire for regime legitimization. Zia’s legal reforms were thus deemed, to use a metaphor in a somewhat different connotation from its commonly accepted legal nuance, the fruit of the poisonous tree. To their many detractors, they severely lacked the basic integrity to promote either Islam or good laws. Furthermore, they left no room for deliberation, dialogue, and dissent. This was both due to the fact that Zia’s authoritarianism simply did not allow it, and also because it was considered pointless to acknowledge them as a framework for discussion, tainted as such interventions were by their underlying objective.

Islam and Zia’s oppressive regime

Zia’s intrusions into the legal and judicial spheres continue to be widely criticized as the supporting pillars of an illegal and oppressive regime—with “Islam” used as justification for its illegality and oppression—and not as a sincere alternative ethos or vision for actual legal and social reform. The notion of “Islamization” was also abused by Zia as a handy tool—and was a leitmotif of that period—when he wanted to thwart any legitimate opposition to his rule and policies. Quite conveniently for Zia’s ulterior purposes, such opposition could simply be labeled un-Islamic and thus ignored. It is, therefore, unsurprising that Zia’s “Islamic” laws are still perceived in popular and specialized discourses as part of a larger pattern in which the subjugation of democratic legislation and independent adjudication to political expediency subverted the processes of justice in Pakistan.

Critics have also laid bare several of Zia’s laws as highly discriminatory against the rights of women, and inherently retrogressive and unrepresentative of what they consider to be the true spirit of Islam. Women’s rights groups in Pakistan and abroad in particular continued to regularly document, analyze, and protest against the laws. Their critique emerged both from a doctrinal and sociological perspective, but also through exhaustive empirical assessments of the several controversial aspects and manifestations of the laws. Given all this, it comes as no surprise that some of Zia’s interventions continue a highly controversial life three decades after their genesis.

Objectives Resolution comes in handy

In fact, there has been rearguard action on part of judges who favor religiously dominated interpretation of the laws and the Constitution. The most illustrative example of this is the Supreme Court jurisprudence deliberating the constitutional reading of one of Zia’s Islamic provisions, i.e. Article 2-A of the Constitution. The language of the current Article 2-A was originally enshrined in what is referred as the “Objectives Resolution,” which acted as the preamble to previous Pakistani constitutions. Zia, however, made it become an operative part of the current Constitution in the shape of Article 2-A, in order to unequivocally redefine the ethos of Constitution as non-secular.

A series of Supreme Court cases during and soon after Zia’s rule held probing discussions on whether Article 2-A was at par with the other provisions of the Constitution, due to its broad, overarching, and all-encompassing content. It ought to be looked upon as the grundnorm (underlying basis) of the Constitution. An important implication of the latter reading was that Article 2-A could then potentially trump any conflicting provisions of the Constitution on the litmus test of whether they were in violation of Islam. Consequently, it could bestow vast powers on judges willing to interpret and employ it as such.

Jurisprudence to the rescue

However, more recent Pakistani judgments have put to rest the argument that Article 2-A can trump other constitutional provisions. They have declared instead that it stands on an equal footing with other provisions of the Constitution. As a matter of fact, they have firmly advised against an interpretation of Article 2-A which would raise it to the pedestal of a litmus test for gauging, evaluating, and potentially becoming a justification for striking down any other constitutional provisions. While acknowledging that various constitutional provisions may be inconsistent with Article 2-A, the courts have clearly warned that such an interpretive approach would undermine the entire Constitution.

Notwithstanding the above, in other court judgments Article 2-A is frequently used for bolstering the courts’ stated commitment to the larger notions of justice and morality that permeate the Constitution. At the same time, Zia’s Islamization ethos also continues to sporadically influence some judges in invoking principles and common law in order to fill statutory gaps. However as an alternative model of legal and judicial reform, it is safe to say that it has neither any prominent champions, nor any considerable political or popular backing in contemporary Pakistan.

The Sherry Rehman case

In 2011 PPP leader and MNA Sherry Rehman was forced to withdraw a bill she had tabled at the National Assembly to amend the Blasphemy Law. She said she was not consulted on the matter. But, even though she had not been taken into confidence, she said she would abide by the prime minister and her party’s position on the matter. That meant further discussion of even any procedural amendments to the controversial Blasphemy Law was precluded and its abuse at the hands of the extremists was to continue.

Her bill sought to make some humane changes in the law as it stands today. Submitted in the wake of what happened after the victimization of a Christian woman under the law, the bill also sought to return the legislation to its earlier formulation allowing only life imprisonment as maximum punishment. The universally criticized aspect of Section 295-C of the Penal Code was the minimum sentence of death, which precluded bail under mitigating circumstances and tied the hands of the judge to hand down a verdict commensurate with the seriousness of the blaspheming content.

Treatment of Christian Aasia Bibi

Two members of the PPP took a courageous stand at the victimization of Aasia Bibi and the death sentence handed down to her by a sessions judge: Punjab governor Salmaan Taseer and MNA Sherry Rehman. The governor was killed by a policeman after the clergy joined hands across their sectarian squabbles and issued fatwas of death against him. Rehman was targeted next, after which she was forced to arrange for extra security because the agitators no longer resorted to legal means of achieving their ends in Pakistan.

Across the world, opinion turned negative about Pakistan, realizing that in some cases even discussion of disputed laws was no longer possible in the face of extremist pressure. The PPP government, probably earlier thinking of pardoning the victim, was quickly put under pressure by the desertion of its coalition partners and the opposition. It was daunted by the successful appeal made by the clergy to all leaders of the funeral prayer not to join the ritual of Governor Taseer’s last rites. Not only that, all politicians decided to bury their heads in sand and the lawyers’ community came forward to glamorize and defend the killer of the governor in the court of law.

Take back the bill!

Seeing how successful their campaign was, the clergy closed their ranks and launched a further attack on the government, demanding that the bill tabled by Sherry Rehman be taken back. They also demanded that the government undo the committee formed to discuss the draft of the proposed legislation. Because of the backing of the Tehreek-e-Taliban Pakistan (TTP), the clergy then started a countrywide show of strength and increased the temperature of reaction through their patently false argument for retaining the Blasphemy Law as it is.

Sherry Rehman’s explanation of what she was trying to do was persuasive but no one paid any heed to it: “No Muslim would expect not to protect the Holy Prophet’s (PBUH) name, and no Pakistani would ever suggest anything other than that. The changes I had submitted were simple: that people be given a chance to prove their innocence like in all laws, and that cases be tried at the Higher Courts, that penalties be given according to the Quran, and that no one who makes false charges in the name of the Holy Prophet (PBUH) who swore always to defend the innocent and the vulnerable go unpunished.”

The clerics coming on TV channels took advantage of the illiterate and scared TV hosts to claim that the holy Quran clearly ordered death to the blasphemer. No one has yet shown the precise “100 or so verses” of the holy Quran containing the edict of death. In some cases where the verses were recited it was discovered that the said cleric had cleverly omitted certain in-between verses to connect blasphemy with (hypocrites) spreading schism among Muslims who are ordained to be killed. Unfortunately, what one can say in Pakistan in English one can’t say in Urdu, with the result that the Urdu press has by and large allowed the controversial law to stand by default.

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