We live in the age of human rights.  We live in a time when the character of a nation is judged by the strength of its fundamental rights regime – especially as it relates to minorities, women and children. We live in the embrace of that pivotal curve of history, when domestic constitutions as well as international treaties, carve out an immutable space for (a universal) protection of inalienable rights.  

However, despite such global trends, Pakistan seems to be lagging in the adoption and implementation of (international) rights discourse.  Even though our Constitution incorporates an entire chapter on ‘Fundamental Rights’, and our State is signatory to numerous international conventions, still, our nation continues to suffer at the hands of those who have no regard for the expanding empire of law.  

In perhaps the latest episode of mindless opposition to the expansion of the fundamental rights, the Council of Islamic Ideology (CII) has opposed the government’s desire to ratify the on the (the 1980 Hague Convention).  Members of the learned CII have declared that parts of this convention are… wait for it… un-Islamic!

Before commenting on this ludicrous opposition of the 1980 Hague Convention by CII, it is pertinent to understand the nature and ambit of the said convention.

At its core, the 1980 Hague Convention attempts to facilitate the repatriation of children to the State of their “habitual residence”, in cases where custody battles (between separated parents) results in the wrongful removal or retention of a child.  In simpler terms, for a society like Pakistan, this convention is of particular relevance to women who have gotten married to individuals who live in a foreign State; in case of breakdown of such a marriage, a woman is frequently prohibited (through court orders of the foreign State) from returning to Pakistan with her children.  Similarly, a parent (especially men) will be unable to illegally keep children in a foreign member State, without granting rights of access to the other parent.  

The convention also recognises that, in some cases, a parent might be fleeing an abusive environment, and may have to take the child along.  For such cases of abuse, the convention allows the victim parent (especially women) to be able to settle abroad, in a member State, without there being any compulsion of repatriation.

With an intention to ratify this convention, the Federal Ministry of Law sent a draft of the same to the CII for its input.  Unsurprisingly, however, the CII has found certain provisions of this permissive and compassionate convention to be un-Islamic.  Specifically, in this regard, worthy members of CII have conclude that Article 20 of the 1980 Hague Convention – which stipulates that “return of a child” to a member State “may be refused if this would not be permitted by the fundamental principles of the requested State relating to the protection of human rights and fundamental freedoms” – is un-Islamic!  Why?  No detailed reasons has been provided; perhaps because none are available.

This is not the first time that CII, under the regressive stewardship of Maulana Muhammad Khan Sheerani, has opposed measures designed to improve the fundamental rights matrix in Pakistan.  In the past, the CII has opined that laws restricting multiple marriages (for men) in Pakistan are un-Islamic, and require reform.  Specifically, CII asserted 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. This effected no change in the laws and consent is still very much required for multiple marriages. At the heels of such regressive opinion, one whose holders have never emerged from the dark ages, the CII has also 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. Naturally this is not the law in Pakistan, and child marriages are illegal and prosecuted accordingly.

On other occasions, the CII has opined that the Human Rights Charter to be un-Islamic.   This body of ‘ulemas’ has opined that eyewitnesses – more than one – are necessary to convict terrorists… including suicide bombers, and that modern modes of evidences such as cyber and electronic record, is not sufficient for this purpose.  Once more, one must defend one’s country and say that these clerics hold no law-making power, and the laws of our country are not in any way reflective of the views of the CII, much though the CII wishes. They have opined that a private person can kill an alleged blasphemer with impunity, and it is perfectly Islamic to convict an Ahmedi to months of imprisonment if he or she were to utter “Islamic greeting” (Assalam-o-Alaikum). None of this is what the laws of Pakistan say. It is what the CII wishes they would say. Just like they would rather not have seen the Women’s Protection Act pass. But it did, and with full support and public acclaim.

Our grief and tiff, in regards to these opinions, should not be with members of the CII; instead, it should be with our governance structure and our social fabric that gives time to the rants of misguided mullahs.

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”. Furthermore, Article 228 establishes the CII, 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 [CII]”, and that “at least one member [shall be] a woman”.  

However, the advice rendered by CII, after deliberations — thankfully — is only advisory in nature – having no binding effect under the Constitution or other laws.  As a result, there is no obligation, whatsoever, on any individual or State institution, to abide by any opinions the CII expresses.

It is time for us, as a nation, to recognize CII’s opposition to progressive laws for what it is: bearded bigotry.  It is time for us to look past such shenanigans, in order to embrace the full measure of an expanding fundamental rights regime. 

It is time for Pakistan to adopt and ratify the Hague Convention on Civil Aspects of International Child Abduction.