Karl Marx famously wrote that Religion is the opium of the masses. Marx didn’t get the opportunity to visit Pakistan to witness the fulfillment of his prophecy. A country created to safeguard the interests of the emerging Muslim salaried class, with a majority Muslim population, was always ripe for flirtations between Religion and Politics. Following the creation of Pakistan, the Lahore Resolution of 1940 was consigned to the waste-bin and the “Objectives Resolution” was passed in the constituent assembly despite vocal protestations by non-Muslim members of the house. The question to be pondered was whether, in a Muslim majority country, the laws practiced should be “Islamic”? There is a fine line however, between being a Muslim country and an Islamic country.

The Indian version of “Objectives Resolution” was passed in January, 1947. Its Pakistani incarnation opened the door wide open for religious interference in matters of the state. The new country’s official name, “Islamic Republic of Pakistan” was proposed by none other than the father of the nation, Abu’l Ala Maududi. While India was adopting its new constitution in 1950 guided by Dr. Ambedkar, a Dalit leader and legal expert, Pakistan’s first law minister (who was a Hindu), had to resign in the same year because of religious discrimination against members of his community. Right after partition, the major issues being discussed in the media were whether Mr. Jinnah should be declared Amir-ul-Momineen [leader of the faithful] and his name be added to Jumma Sermons, whether Pakistan should be declared a Caliphate, whether Arabic should be declared the national language. Pakistan got its first constitution in 1956, converting its status from a British Dominion to a republic. This document was secular in orientation, with a few Islamic provisions. In 1958, it was suspended due to the imposition of Martial Law by Iskander Mirza.

Iskander Mirza was overthrown by a commander of Pakistan’s valiant armed forces, Ayub Khan, who ruled the country for the next decade. He gave the country a new constitution in 1962, which was also secular in character but established institutions to “Islamize” the laws. One such institution was the Council of Islamic Ideology. According to Dr. Martin Lau’s book, ‘Role of Islam in the legal system of Pakistan,’ The Council of Islamic Ideology could only make recommendations regarding the conformity of laws with the injunctions of Islam to the President and the government, but had no power to supervise or to enforce the implementation of its recommendations. Article 8 of the 1962 Constitution provided that none of the Directive Principles of State Policy could be used to determine the vires [powers] of any law or any action of an organ or authority of the state. The Supreme Court of Pakistan confirmed in the case of Tanbir Ahmad Siddiky v. Province of East Pakistan, that Islamic law could not be used to strike down a law as unconstitutional.

The 1973 Constitution contained a separate chapter called ‘Islamic Provisions,’ which provided for the setting-up of a Council of Islamic Ideology (CII). Again, as in previous constitutions, the Council had essentially only an advisory role and enjoyed no inherent jurisdiction to ensure that its recommendations were acted upon by parliament.

Another source of Islamisation of law has been Pakistan’s judiciary. The most famous example of this factor is the celebrated Asma Jilani case of 1972, which expressly recognized Islam as the basic structure of Pakistan’s legal system. Justice Sajjad Ahmed wrote the following words in the decision of the said case, “The State of Pakistan was created in perpetuity based on Islamic ideology and governed on all the basic norms of that ideology, unless the body politic of Pakistan as a whole, God forbid, is reconstituted on an un-Islamic pattern, which will, of course, mean the destruction of its original concept. The Objectives Resolution is not just a preface. It embodies the spirit and the fundamental norms of the constitutional concept of Pakistan.”

In 1976, Badi-Uz-Zaman Kaikus, a retired judge of the Supreme Court, moved a writ-petition in the Lahore High Court, challenged the entire legal system of Pakistan as being un-Islamic and argued that all Muslims, including the judges of the High Court, were under an obligation to follow Islamic law. Moreover, Kaikus sought a declaration that the President, the Prime Minister and the national and provincial members of parliament had ceased to be Muslims because they had taken the stand that Islamic law was not applicable unless expressly enacted as valid laws.

When Nusrat Bhutto challenged the imposition of Martial Law by Ziaul Haq, Islam was used to justify the coup. Chief Justice Anwaar ul Haq wrote in the decision, “The Courts of Justice are an embodiment and a symbol of the conscience of the Millat (Muslim community), and provide an effective safeguard for the rights of the subjects.” Justice Muhammad Akram added, “Ours is an ideological State of the Islamic Republic of Pakistan. Its ideology is firmly rooted in the Objectives Resolution with emphasis on Islamic laws and concept of morality. In our way of life we do not and cannot divorce morality from law. The pure theory of law has no place in our body politic and is unacceptable to the Judges charged with the administration of justice in this country.”

Zia may not have taken the ruling directly but his influence/pressure to use the judiciary to justify and legitimise his takeover and use Islam to justify dictatorship cannot be ruled out. The specter of ‘ideology’ was created to facilitate the incursion of religious dogma into the realm of law.

Misconceptions about Shari’a abound. Scriptures mention punishment for only four sins, known as ‘hadood.’ Eminent Lawyer Sadakat Kadri in his book, ‘Heaven on Earth’ explains that, “Until 8th century A.D., Islam simply lacked any settled traditions about how to judge according to the Shari’a. Abbasid Caliph Al-Mansur(714-775 A.D.) started appointing religious scholars as judges. The first shari’a-influenced legal codes were enacted by Ottoman Sultan Mehmet II(1432-1481).

Imposition of Shari’a is favored by, perhaps, a majority of citizens in Pakistan but the nitty-gritty of this suggestion and its practicalities are not deemed important enough for discussion.

The writer is a freelance columnist.

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