Repugnancy to Islam - Who Decides?

Since the creation of the State of Pakistan in 1947, views concerning the appropriate role of Islam in the political process of the newly-created “Muslim homeland” have been widely divergent. At one end of the spectrum are “Islamic activists,” those wedded to the expansion of Islamic law and Islamic practices in various spheres of Pakistani national life. Conversely, “Islamic modernists” take a more restrictive view of the proper role of Islam in the State.They are lukewarm to the expansion of Islamic law or practices; and some may even advocate development along the secularist lines of the West.

It took Pakistan nine years to adopt its first constitution. One major reason for the delay was contention over prospective Islamic provisions in the document. The first task of the Constituent Assembly was to define the basic directive principles of the new State, and in March 1949 the fruit of this exercise, the Objectives Resolution, was passed. It contained the following provisions dealing with Islam:

• The Government of Pakistan will be a state
• Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed;
• Wherein the Muslims of Pakistan shall be enabled individually and collectively to order their lives in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah.

Once established, these provisions have remained virtually unchanged in the otherwise quite fluid environment of constitutional law that has characterized Pakistan’s statehood.

Once such objectives were established, the more difficult task of implementation faced the Constituent Assembly. The report of the Basic Principles Committee took nearly three years to compose. Regarding Islam it recommended that the head of State constitute a Board of Ulema (religious scholars — singular alim) of not more than five persons “well versed in Islamic law” to review all provisions passed by the National Assembly. If it was the unanimous opinion of this board that any pending legislation “was repugnant to the Holy Qur’an or Sunnah,” the bill would be referred back to the legislature for requisite amendments. This recommendation received a cold response when it was released to the general public, and the final Basic Principles Report eventually adopted by the Constituent Assembly in 1955 deleted mention of the Board of Ulema?

Provisions for the establishment of such an institution were also not included in the final draft of the 1956 Constitution. Instead the President was empowered to appoint a committee that would look into the question of “[bringing] existing law into conformity with the Holy Qur’an and Sunnah.” Other Islamic provisions of the 1956 Constitution were similarly without teeth. The preamble adopted the vague wording of the Objectives Resolution. The “directive principles of state policy” provided that the “state shall endeavor ... to make the teaching of the Holy Qur’an compulsory [for Muslims]; [and] to promote the unity and observance of Islamic moral standards.” The State was also to “endeavor” to “prevent prostitution, gambling, the taking of injurious drugs; and ... the consumption of alcoholic liquor other than for medicinal ... purposes.” The preamble also called upon the State to “eliminate riba [financial interest] as soon as possible." Pakistan was to be an “Islamic state” but the mechanisms designed to implement such a vision were intentionally weak, vague or ill defined.

The 1956 Constitution proved short-lived. It was abrogated in 1958 as a consequence of a military coup. During the debate preceding the adoption of the subsequent 1962 Constitution, the issue of the status of Islam in the state was again raised. Once again the views of the Islamic modernists prevailed. And, when it came time to draft the 1973 Constitution (the 1962 Constitution was suspended in 1969, and abrogated in 1972), a similar outcome resulted. Although disappointed by the Islamic provisions of Pakistan’s chequered constitutional history the dreams of Islamic activists never died. Rather, the policy agenda advocated by such activists became increasingly well defined and more clearly articulated.

By the early 1980s the policy agenda of Islamic activists was quite extensive. In regard to criminal laws, activists advocate the introduction of hadd penalties (penalties expressly sanctioned by the Holy Qur’an) for theft, the use of prohibited intoxicants and for sex-related crimes. They also advocate that fornication be made a crime. Additionally, they call for a wholesale revision of the Pakistan Penal Code’s treatment of laws regarding bodily hurt (murder, manslaughter, assault, etc.). Such crimes, they contend, should be compoundable by the victim or by the victim’s heirs; and relevant laws should allow for punishment by similar hurt to the perpetrators of such crimes. Islamic activists also call for a change in procedural law regarding the admissibility of evidence, and oath taking. Moreover, Islamic activists advocate a restructuring of Muslim personal law which would, inter alia, change the procedures relevant to divorce; the laws governing inheritance; the practice of alimony, maintenance and dowry; rules regarding the custody of children; and the laws of pre-emption. Of even greater significance to Islamic activists, however, has been the demand that riba should be eliminated from all aspects of Pakistan’s economic system including banking, insurance and international trade.

To many Islamic activists the most unambiguous path to achieve such an agenda is perceived to involve a revision of Pakistan’s constitutional structure so that the Shari'ah (the corpus of Islamic law) is made superordinate to the constitution, thereby transferring “law-making” authority from the National Assembly to the courts or ulema in their role as interpreters of the Shari'ah. Of course, in such a revised constitutional environment the role of political parties would be reduced, as would the necessity for elections.

Islamic activists proved unsuccessful in gaining serious consideration, let alone passage, of their ambitious program of reform during Pakistan’s first 30 years of statehood. But circumstances changed dramatically during the period of political ferment that led to the ousting of Prime Minister Zulfikar Ali Bhutto in 1977. Opposition to Bhutto gravitated around the Pakistan National Alliance, a nine-party coalition that called for Bhutto to be ousted in part on the grounds that his regime had forsaken Islam. The subsequent military coup in July brought General Ziaul Haq to power. As is detailed below, Zia’s regime proved far more amenable to the demands of the Islamic activists.

Source: Islamization of Laws and Economy: Case Studies on Pakistan, Charles Kennedy. Republished with permission.