Source/Credit: My Law | myLaw.net
By Yasser Latif Hamdani | October 01, 2011
The Islamisation of the legal system in Pakistan is replete with irony. Its main proponents have been those Ulema and religious parties that had, prior to 1947, opposed the creation of Pakistan and supported the cause of a united India. Starting with 1949’s Objectives Resolution however, the Ulema found themselves in the driving seat, defining Islam and its role in the new state. Nevertheless, the Constitutions of 1956 and 1962 remained ambiguous about Islam’s role in determining the new state’s relationship with Islam, and the legal system remained more or less secular. The earliest generation of Pakistan’s leaders seemed to understand that if the state were to become embroiled in sectarian and theological disputes, it would cause dissensions among Muslims more than anything else. In fact, emphasising the economic and political conditions of Muslims as a communal group vis-a-vis the Hindu majority instead of religious and theological arguments, was an important factor in the All India Muslim League being able to bring Muslims of all sectarian and cultural persuasions together.
Islam in the Constitution
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.
Islam and criminal law
The theocratic nature of the Pakistani state was further cemented when in 1979, when Muhammad Zia-ul-Haq, the then military dictator, promulgated the qisas and diyat laws which amended criminal procedure to allow for the payment of khoon baha (blood money) in exchange for acquittal of the charge of murder. 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.
Islam and commercial laws
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 did 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 outmanoeuvre 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 and land reform
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 appeals against these decisions in Qazalbash Waqf 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 great poet and philosopher Dr. Allama Muhammad Iqbal, considered the state’s spiritual father, expressed the view (in a letter to Mohammed Ali Jinnah dated May 28, 1937) that the law of Islam when sufficiently reformulated and developed in light of modern ideas could provide subsistence for all, but that such development would only be possible in an independent Muslim state.
Mr. Jinnah’s two-nation theory in contrast was at best a consociationalist counterpoise containing legal arguments about why Muslims constituted a distinct group to defeat the numerical disadvantage that the community faced in united India. Therefore, when Pakistan was created, as a consequence of a political deadlock, Mr. Jinnah arguably placed before it a secular and inclusive ideal. Pakistanis chose not to follow Mr. Jinnah. They did not follow Mr. Iqbal’s prescription for a reformulation of Islamic law either. Consequently, Pakistan has gone down the slippery slope of a misconceived Islamisation spearheaded by the very clergy that was anathema to both Mr. Iqbal and Mr. Jinnah. The ill-conceived Islamisation project has only served to weaken Pakistan’s legal system and wreak havoc on both its society and economy. It has also ensured that issues of human rights and individual freedoms are constrained to a backseat for the foreseeable future. Contrary to Dr. Iqbal’s high hopes, all process of development of Islamic law in light of modern ideas has been brought to a complete halt with reformers and thinkers being hounded out of the country. Hope remains that having faced extraordinary turmoil over the last decade, a knowledge revolution will force Pakistanis to rethink their priorities much in the same way that the turmoil of the civil war forced Americans to come to grips with modern realities in increasingly secular terms and notions. Perhaps once that happens, a future generation of Pakistani lawyers, academics, and jurists will attempt to revisit the intellectual foundations of Islamisation of the legal system and its full impact on Pakistan’s polity and society.
In the coming weeks, I will discuss ideas for the reformulation and modernisation of Islamic law - both personal and public - in Pakistan.
Yasser Latif Hamdani is an advocate of the High Courts of Pakistan practicing mainly in commercial and constitutional matters. You can contact him at yasser.hamdani@gmail.com.
Read original post here: A brief history of Islamisation
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