This past week, the Council of Islamic Ideology (note: Council), opined that the laws relating to multiple marriage (for men) in Pakistan are un-Islamic, and require reform.  Specifically, Maulana Mohammad Khan Sheerani, Chairman of Council, announcing the Council’s opinion, declared that the existing laws of Pakistan, which require men to seek written permission from previous wives, in order to conclude a subsequent marriage contract, offended the mandate of Islamic injunction.  The Council also decided to write a letter to the Supreme Court to “seek information about the pending cases related to religious issues,” and urged the government to formulate “Sharia-compliant laws related to nikkah, divorce, adulthood, and will.”

At the heels of this progressive opinion, pushing our country a step closer to the brink of the dark ages, the Council also, at the conclusion of its 191th meeting this week, declared that the laws relating to minimum age of child marriage were un-Islamic, and that children – under the fold of Islamic law – could get married at “any” age.  In a show of unlikely compassion and humanity, the Council was kind enough to also make a distinction between ‘nikkah’ and ‘rukhsati’.  The Council opined that while the conclusion of a valid marriage contract (the nikkah) could be done at any age (through a guardian), the rukhsati should not be done till… wait for it… puberty!  And that since the age of puberty varied from person to person, it was up to the parents to deem whenever the child (girl) had reached the age of puberty, and then ‘rukhsat’ her to the husband’s house, for the consummation of marriage.

In essence, the Council has concluded that a girl could be betrothed into a nikkah at the time of birth, and then sent off to the ‘husband’, to consummate the marriage, at the age of, approximately, nine.  How considerate.  This certainly sounds like what a religion for all ages, for all of humanity, would want our society to be!

The problem with the Council, and its verdicts, does not stop with family matters.  In the past, the Council has also concluded that no less than four eye-witnesses are needed to prove the offence of rape, and no undisputable medical evidence (e.g. DNA testing) could be used in its stead.  This body of ‘ulemas’ has also opined that eyewitnesses – more than one – are necessary to convict terrorists… including suicide bombers, and that modern modes of evidence such as cyber and electronic records, are not sufficient for this purpose.  They have opined that women, under no circumstances, regardless of their intellectual prowess or educational background, can bear witness in financial matters.  That a daughter can only get half that of a son, in the father’s inheritance.  That the right of divorce to women must explicitly be granted to them by their husbands (or the courts), otherwise they have no option but to live with an abusive partner.  That a husband can ‘rape’ his wife, and the same is not an offence. That a private person can kill an alleged blaspheme with impunity, and it is perfectly Islamic to convict an Ahmedi to months of imprisonment if he or she were to utter “Islamic greetings” (Assalam-o-Alaikum).

What is the Council of Islamic Ideology?  What sanctity do they hold in our constitutional dispensation?  And are its opinion binding upon our executive, the legislature and courts of law?  Can we reform this conservative body of religious scholars?  Or are we condemned to forever live in a tarnished view of religion, and a bigoted philosophy of law?

In terms of the Constitution, the Preamble (text of which has been made a substantive part of the Constitution through Article 2-A) declares the supremacy of Quran and Sunnah over all other laws.  This works well in a country where over 95% of the people claim to be Muslims, and where Article 2 of the Constitution declares, “Islam shall be the State religion of Pakistan”.

The real influence of (subjective interpretation of) religion, into our laws, derives from Article 203-A through 203-J (which establishes the Federal Shariat Court, giving it the power to declare any law “repugnant to the Injunctions of Islam.”), and Part IX of the Constitution (Islamic Provisions), which endeavors to bring all laws “in conformity with the Injunctions of Islam”.   For this purpose, Article 228 establishes the Council, with up to twenty members.  Benevolently, Article 228(3) of the Constitution stipulates that “so far as practicable various schools of thought [shall be] represented in the Council”, and that “at least one member [shall be] a woman.”  The interpretation given by this Council, along with the Federal Shariat Court, for all Constitutional purposes, is the declarative interpretation of the injunctions of Islam in our country. 

The problem with this structure, to begin with, is that for large periods of our history, no woman has served on this Council, ensuring that the opinions of the Council have a deep-rooted gender bias. Additionally, for virtually the entire span of our constitutional history, only a minimal number of schools of Islamic thought have been represented on this Council. As a result, the opinions of the Council, which, while not being binding dictas, form an integral part of the discourse in our legislature and the Federal Shariat Court, have a tangible bias in favor of certain sects of Islam.

Reform of this constitutional paradigm necessarily entails (1) a reform in the ideology of our esteemed ulemas (which is a tall endeavor) and (2) a re-thinking of who we appoint to the Council of Islamic Ideology. The endeavor of our education, the discourse of our nation, and the compassion of our souls, will eventually result in the reform of Pakistan’s religious ideology. This change in the words of Max Weber, shall come “in excruciatingly small increments.” The other part of who we appoint to the Council, is a much simpler, much quicker reform. It is simply a function of the government’s choice and will. And by extension, in a democracy it is a function of our own choice and will.

Islam, being a religion for all times, for all of humanity, cannot be anchored to a bygone philosophy. The perfection of the Book, the immaculateness of the Messenger, and the infinite wisdom of the Almighty, cannot be the domain of a handful of bearded men, whose morality and humanity seem to have divorced all semblance of a just society. We, as a people, as believers, as soulful beings in His merciful Kingdom must reclaim the purpose of our creation. If Merciful is His most pronounced attribute, and justice is His final promise, then we who have been created in His own shadow – as the most perfect of all His beings – cannot simply sit back and allow His divinity to be interpreted in a cruel and unjust manner. To do so, will not only be a crime against ourselves, but what is more, a rebuking of His faith in us.

The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

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