Ali Eteraz (online) - April 30, 2009
A recent sharia-for-peace deal between militant groups and
the civilian government in
Both of these views, rooted in the “war on terror” frame of
Most people in the world, including some Pakistanis, live
under the illusion that the country is secular and just happens to have been
overrun by extremists. This is false.
Under a section entitled “Islamic provisions,” the ‘73 constitution proposed a Council of Islamic Ideology (CII), a board of anywhere from eight to twenty religious scholars, who were to represent a cross section of Islam. The Council’s role would be to advise legislative bodies as to whether the laws under consideration were in conformity with Islam. The CII, incidentally, had an anti-democratic history: it grew out of a 1962 organ called the Islamic Advisory Council which had been created by the military dictator Ayub Khan to pacify the religious parties.
Chapter 3A of the ‘73 constitution, inserted in 1980, also
gave the government the authority to create a
Under the constitution, the FSC’s rulings were binding on every court except the Supreme Court. At first blush this would suggest a neutral oversight mechanism, except that appeals from the FSC did not go to the full bench. Instead, there was to be a special appellate division within the Supreme Court, composed of two ulama, or religious scholars, and three judges, all of whom had to be Muslim.
The Islamization of the ‘73 constitution, in other words, had two parts: the CII existed at the front end of legislation while the FSC monitored.
Bhutto’s Islamization, however, was cynical rather than
sincere. He cared not so much about empowering the Islamists as about
appropriating their agenda—which allowed him to represent
Even though Bhutto did not actually erect the institutions
in the constitution, the open affirmation of a religious approach led
Almost as if to prove that the 1973 constitution encouraged a leader to flout the rule of law—and get away with it by calling it “Islam“—in 1977 a general by the name of Zia ul Haq engineered a coup and hanged Bhutto. To legitimize his rule, Zia affiliated his government with an old theological term known as “Nizam-e-Mustafa“—the “Way of Muhammad.”
The Islamists, ever principled, cheered Bhutto’s hanging and declared Zia their savior.
Zia created the religious institutions for which Bhutto left
the blueprints. Seventeen Islamic scholars were appointed to the Council of
Islamic Ideology in 1977, commissioned with producing a report about Islamizing
the country. The group represented a who’s who of traditional religious
scholarship, but just to make sure that the Council didn’t come up with an
interpretation of Islam that undermined Zia’s dictatorship, a consultant named
Ma’ruf al-Dawalibi was brought in. He was the former prime minister of
Not surprisingly, the report that the council released was all about the hudud punishments, which included flogging, whipping, amputations and stoning. Legislation based on the council’s report, called the Hudood Ordinances, was promulgated in early 1979 and introduced an era of legal miasma, especially in the arena of rape, adultery, and the crime of premarital sex. The punishment for a man who engaged in fornication was the same as that of an unmarried man who committed rape (100 lashes); meanwhile, a married woman who was victimized by rape could also be accused of adultery, which was a capital crime.
Though one notable scholar, Charles Kennedy, has argued that the ordinances, at least in the eighties, were never truly actualized, the existence of these rules on the books was sufficient to move the cultural barometer towards harsher readings of Islam. Many traditionally trained Islamic scholars complained that Zia’s reading of sharia was un-Islamic, but given that they were not in the executive branch, their concerns were overruled.
The ordinances expanded in the mid-eighties and included the fearsome blasphemy law, which was punishable by death and was used to target those that dissented against Zia ul Haq.
Along with imposing the Hudood Ordinance in 1979, Zia also
formally established the
Unlike a papacy, which has a mechanism for dealing with the
loss of a pontiff, the sudden death of Zia ul Haq in 1988 meant that Islam in
Secular Pakistanis complained, but they had become politically irrelevant. The battle in the country was no longer defined as one between secularists and Islamists but between reformist Muslims, conservative Muslims and ultra hard-line Muslims. In a sense, everyone had to couch their positions in religious terms. Obviously, such a state of affairs marginalized anyone who was not a Muslim or who, like the ahmadiyya, was not allowed to be.
The System Sinks In
Over the 1970s and 1980s,
In 1994, the poor locals of the quasi-autonomous Swat region, languishing in a broken colonial-era legal scheme, agitated for a more efficient system called “Sharia Nizam e Adl.” This system, being local and cultural in origin and mostly the construction of a man named Sufi Mohammad, had very little in common with the sharia that exists in the classical books of Islamic Law. But the Swatis figured that appealing to Islam would work, because, after all, everyone else did the same when they wanted their material concerns addressed. They turned out to be right. Benazir Bhutto’s government quickly consented.
Around this time, the same thing happened with the poor Pashtun people in the Federally Administered Tribal Area. Long excluded from the political center, not allowed to organize into political parties, and never given developmental assistance, many of them linked up with a post Afghan-war group called the Taliban who, under the banner of “Islam” or sharia, were promising law and order and representation.
A more recent manifestation of an alienated group of
Pakistanis invoking Islam in order to call attention to economic and social injustices
occurred during the 2006 Red Mosque fiasco in
New Pope—New Rules
With General Musharraf’s coup in 1999 the state of Islam in
In 2002, the Council released a report suggesting that it was turning against the Hudood Ordinances, at least in the area of sex crimes, and in 2005 declared them patently un-Islamic. The group also argued that there should be no distinction between male, female, or non-Muslim testimony and non-Muslim judges could adjudicate any type of case.
This reformist impulse also found its way to the
Interestingly, many of the new rulings contain references to the Universal Declaration of Human Rights and the judges have justified consistency with international law by appealing to the Islamic principle of upholding treaties.
The rise of the reformists, however, is only an illusory victory because once all the Musharraf appointees retire it will be up to President Zardari to appoint new judges. One can only imagine the people he will promote, given that his cabinet contains one minister who is not opposed to honor killings against women and another who is against female education.
The Status Quo
What is happening with the widespread religious militancy in
This is precisely what happened in Swat last month. A quasi-autonomous region with bankrupt judges and ineffectual police force found a way to address its needs by telling the government it wanted sharia.
Adding to the trouble today is the fact that Pakistan has attracted a cornocupia of international terrorists who cry havoc every time the government is put in a position of rejecting someone‘s—anyone’s—demand for Islamic Law. Many of these terrorists have infiltrated, if not completely, taken over the country’s social justice movements.
Zardari’s government is pursuing the only solution that it
can think of: segregate and sever the various sharia invoking movements by
playing one against the other. Under this approach,
The decision was made under duress by a Machiavellian politician who did not care very much for religion, which was why he was so happy to exploit it—not to mention that in the guise of Islam he smuggled in anti-democratic institutions from the dictatorship that preceded him. The subsequent empowerment of Islamist groups; the religious tyranny of Zia ul Haq; and the rise of Talibanization, legal balkanization, and militancy calling itself Islamic are all clear proof that 1973 led Pakistan down a dark and dangerous path.
The irony is that Pakistanis cannot simply ignore the ‘73 constitution and go to an earlier document, largely because one such instrument does not exist and also because, for all its flaws, that constitution has become central to the modern Pakistani state. For example, both dictators that followed Zulfiqar Ali Bhutto—Zia and Musharraf—felt they had to manipulate the ‘73 constitution rather than step outside of it. It is also not possible to delete the nearly four decades of Islamization.
For a long time I believed that rather than deletion the better option was that of dilution. Under this approach, one would add more liberal interpretations of Islamic law into the mix to soften the hard-line wahhabi version that has dominated since Zia ul Haq’s time. Such an approach would use “good” or humane Islam to defeat “bad” or inhumane Islam. The hope would be that over time these moderate views would become mainstream.
The dilution strategy was on display in 2006 when reformers
from the CII successfully argued that various elements of
I no longer ascribe to the dilution strategy. Not because it
does not sometimes work but because it does nothing to challenge the essential
flaw in Pakistani society: the state currently empowers citizens on the basis
of their relationship to Islam rather than upon their status as “people” of
Fadel believes that constitutional Islamization of the sort
While Fadel has not made any explicit proposals with respect
Ali Eteraz was an Outstanding Scholar at the U.S. Department
of Justice and later worked in corporate litigation in
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