Zia's Raj: The Politics of Prudential Islamization

Although Zia’s personal predilections and his government’s policies were far more attuned to the concerns of Islamic activists than predecessor rulers and regimes, Zia, nonetheless, envisaged a slow, incremental application of policies designed to “Islamicize” Pakistan’s polity. At the core of Zia’s designs was the Federal Shariat Court (FSC). The FSC was Zia’s creation, the product of 12 Presidential Ordinances8 promulgated between 1980 and 1985 and grafted on to Pakistan’s Constitution in 14 subsections as Chapter 3-A.9 This welter of martial law activity carved out an extensive jurisdiction for the new court:

1. The FSC was granted appellate and revisional jurisdiction over convictions or acquittals from district courts in cases involving Zia’s newly-promulgated Islamic criminal laws (Hudood);10
2. exclusive jurisdiction to hear “Shariat petitions” brought by citizens of Pakistan or the federal or provincial governments challenging “any law or provision of law” as repugnant to the Holy Qur’an and Sunnah;
3. exclusive jurisdiction to examine “any law or provision of law” for repugnancy to the Holy Qur’an and Sunnah.

Such broad jurisdiction was constrained in two respects. First, the decisions of the FSC both in regard to criminal cases and in regard to its power to declare laws un-Islamic were made subject to appeal before the Shariat Appellate Bench of the Supreme Court. Second, and more importantly for our purposes, the FSC’s jurisdiction was limited by Article 203-B of the Constitution:

Law includes any custom or usage having the force of law but does not include the constitution, Muslim personal law, any law relating to the procedure of any court or tribunal, or until the expiration of ten years from the commencement of this chapter 13-A], any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure.

In practice, the superior courts’ interpretation of Article 203-B resulted in the FSC’s being denied jurisdiction in many realms important to would-be Islamic reformers of Pakistan’s legal system. For instance, in the Mst. Farishta case, decided in 1981, the Supreme Court ruled that Article 203-B excluded judicial review of cases emerging from the Muslim Family Laws Ordinance, 1961. Similarly, the FSC interpreted Article 203-B’s ban on the consideration of “fiscal law” in a broad sense as applicable to most issues relevant to financial interest (riba), thus excluding the court’s jurisdiction from relevant cases. Moreover, the FSC adopted a strict constructionist view of its jurisdiction to consider only “laws or provisions of law.” Accordingly, the Court refused to consider on merits many Shariat petitions challenging; for instance, standardized Ramazan fast timings, the participation of women in the National Guard, the validity of Shia or Bohra rituals and practices, the existence of a national flag, the practice of allowing “singing girls” to perform in public, or the practice of slaughtering livestock before it was one year old.

Given the confluence of Zia’s reluctance to move “recklessly” on Islamic reform, as demonstrated by the above-mentioned constitutional restrictions on the jurisdiction of the superior courts, and the reluctance of the FSC and Supreme Court to extend their jurisdiction through an activist interpretation of their constitutional mandate, the advocates of rapid Islamization of Pakistan’s legal system were left stymied. This situation prevailed throughout the period of martial law. However, after the lifting of martial law and the “restoration” of the Constitution on 19 March 1985, two new avenues of reform were made available to would- be reformers. The first was to the newly-established National Assembly. Because the National Assembly could amend the Constitution, it perforce possessed the authority to lift constitutional restrictions on the jurisdiction of the superior courts. The second avenue ran via the superior courts themselves. For the first time, the 1985 Constitution had incorporated the Objectives Resolution into the text of the Constitution. Among other things the Objectives Resolution in turn mandated that in Pakistan “Muslims shall be enabled to order their lives in accordance with the teachings and requirements of Islam as set out in the Holy Qur’an and Sunnah.” Therefore, if the courts could be convinced to adopt the doctrine that the Objectives Resolution held precedence over competing provisions of the Constitution it would follow that the courts would have jurisdiction to rule accordingly. That is, the courts could employ the Objectives Resolution as a vehicle to assume a more activist role in the Islamization process.

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

The Frontal Assault: Shari7ah Bills and Ninth Amendments

Less than three months after the National Assembly was convened, on 13 July 1985, two ulema members of the Senate, Qazi Abdul Latif and Maulana Samiul Haq, submitted a bill to the Senate entitled the Enforcement of Shari'ah Act, 1985. The most salient provisions of this proposed bill provided that “all suits shall be decided in accordance with the Shari‘ah;...[and] all the courts of the country shall be bound to decide all kinds of cases, including financial, etc. according to the Shari'ah.” The proposed bill defined “Shari'ah” as the Qur’an and Sunnah and the consensus of scholars (ijma).

This bill was submitted to a Select Committee of the Senate chaired by Maqbool Ahmed Khan, Minister of State for Religious Affairs. The committee submitted its report25 and its proposed bill on 12 December. Although the “report” of the Select Committee claimed that its text closely followed the lines of the senators’ bill, in reality, the Select Committee’s bill differed in many significant ways from the original proposal. Most importantly, the Select Committee’s version of the bill did not contemplate revising Article 203-B as it applied to the FSC. Rather, the bill stated that the FSC would “without exception have jurisdiction in all matters and cases” but it was also stated that such jurisdiction would not confer authority to overturn the Constitution, of which Article 203-B is a part.

As the Select Committee labored, ten senators under the intellectual guidance of Senator Professor Khurshid Ahmad, submitted a Ninth Amendment Bill to the National Assembly on 31 October, which proposed to revise Article 203-B to read: “ law1 includes any custom or usage having the force of law, but does not include the constitution.” That is, save for the constitution, it proposed the removal of restrictions on the FSC’s jurisdiction. Also, the proposed amendment called for the inclusion of a clause in the Fundamental Rights which read: “The Qur’an and Sunnah shall be the supreme law of the country and the chief source for legislation and policy-making.”

Not to be outdone, the Ministry of Law and Parliamentary Affairs, through its Minister Iqbal Ahmed Khan, countered by drafting its own Ninth Amendment Bill, which was submitted to the National Assembly on 5 January 1986. This bill incorporated verbatim the suggestions made in Khurshid Ahmad’s Ninth Amendment regarding the revision of Article 203-B. Also, it proposed provisions which would further amend Article 203-D of the Constitution, enjoining the FSC: (a) when considering revi- sions in fiscal law to consult “persons having special knowledge in the subject”; and (b) making the application of any such revised fiscal law prospective from the date on which the new law was enacted. It is important to note, however, that the Law Ministry’s version of the Ninth Amendment did not include any clause making the Shari'ah superordinate to the Constitution.

Therefore, by early 1986, there were four competing versions of Shari'ah legislation pending before Pakistan’s national legislature - two proposed by the government and two by individual senators. The task of forging a consensus on these matters fell to the weakly institutionalized government of Muhammad Khan Junejo. It soon became apparent that this task would prove too difficult for his regime to accomplish. Three irreconcilable positions emerged in the legislature. The first, associated with the activist Jamaat-i-Islami, coalesced around the leadership of Qazi Hussain Ahmad and Khurshid Ahmad, and pressed for the passage of either, or both, of the Senate-sponsored bills. The second, formed around the Muslim League, advocated, albeit unenthusiastically, the government’s versions of Shari'ah legislation. The point of contention was the former’s insistence that any Shari'ah bill should include provisions that made the Shari'ah supra-constitutional, and its implementation binding upon the courts. The official government position, at least as expressed by President Zia and some concurring ministers, was that the jurisdiction of the superior courts should expand in order further to Islamicize the legal system, but that the newly “restored” 1985 Constitution should not be scrapped in the process. A third group, represented at least tacitly by the loyal opposition, Opposition Parliamentary Group (OPG), and quite vocally by the extra-parliamentary Movement for the Restoration of Democracy (MRD), agreed that the passage of any Shari'ah bill was neither necessary nor desirable. Rather, advocates of this lattei* position argued that the debate over the Shari'ah bill was designed, in part, to bolster the fading legitimacy of an unpopular regime. Further, as the MRD leader Benazir Bhutto consistently argued, “Zia’s Islamization policy” was reactionary, anti-democratic, barbaric and discriminatory to the rights of women. Opposition to the adoption of Shari'ah legislation was also voiced by members of Pakistan’s Shia community. The Tehrik-i-Nifaz Fiqh Jafaria(TNFJ - Association for the Enforcement of Shia Personal Law) contended that the passage of any of the Shari'ah bills before the legislature would result in the enforcement of the majority Sunni personal law over the personal law of the Shias. The latter contention was highly publicized.

Prime Minister Junejo’s government attempted on several occasions to reconcile the conflicting positions of pro-Shari'ah bill legislators in order to gain passage of some form of Shari'ah legislation. Perhaps the most serious attempt at reconciliation followed the boycott of both the Senate and National Assembly by members of the United Shariat Front (Sunni legislators favoring passage of pending Shari'ah legislation) in June 1987. However, such attempts came to naught and the fate of pending Shari'ah legislation was sealed in a state of legislative limbo during the remainder of Junejo’s tenure.

By his own account, President Zia grew impatient with the pace of Islamic reforms, and on 29 May 1988 he dismissed the National Assembly. One of the reasons Zia gave for his action was the slow progress of Islamization, and the inability or unwillingness of Junejo’s government to work for the passage of any Shari'ah bill. Two weeks after the dismissal of the government, on 15 June, Zia took matters into his own hands and promulgated his own Shari'ah bill — the Enforcement of Shari'ah Ordinance, 1988. Zia’s ordinance attempted to effect a compromise on the issues of the supremacy of the Shari'ah and the jurisdiction of the superior courts to interpret the Shari'ah:

1. Supremacy of the Shari'ah: Shari'ah shall be the supreme source of law in Pakistan and the grand norm for guidance of policy-making by the state and shall be enforced in the manner and as envisaged thereunder.
2. Court to decide cases according to Shari'ah: If a question arises before a court that a law or a provision of law is repugnant to the Shari'ah, the court shall, if it is satisfied that the question needs consideration, make a reference to the Federal Shariat Court in respect of matters which fall within the jurisdiction of the Federal Shariat Court under the Constitution [Article 203-B] and that court may call for and examine the record of the case and decide the question within sixty days:

Provided that, if the question relates to Muslim personal law, any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure, the court shall refer the question to the High Court which shall decide the question within sixty days.

This “compromise” won few converts. The United Shariat Front argued that Zia’s ordinance did not specify that the Shari'ah was supra-constitutional. Clause 4 still exempted the Constitution from the purview of the courts. More importantly, Zia’s ordinance assigned jurisdiction for interpretation of matters that fell outside the purview of the FSC as per Article 203-B with the High Courts, not the FSC. It is generally acknowledged that Pakistan’s four High Courts contain few Islamic activists, nor, for that matter, do they contain many individuals conversant with Islamic law or related issues. Consequently, it was assumed that the pace of Islamization would stall or perhaps even be reversed under the terms of Zia’s ordinance. On the other hand, to those who were opposed to the passage of any Shari'ah bill, Zia’s ordinance was considered at best unnecessary and, at worst, obscurantist or anti-democratic.

In any case, Zia’s ordinance proved ephemeral. The 1985 Constitution mandates that a presidential ordinance stands repealed if it is not considered for legislation and passed by the legislature within four months of its promulgation. Zia’s untimely death, in August, effectively eliminated any significant political support for the bill, although President Ghulam Ishaq Khan promulgated a “revised” Shari'ah Ordinance (in fact, identical to Zia’s) on 15 October. The latter ordinance was presented to the newly-elected National Assembly, headed by Benazir Bhutto, in December 1988. The assembly took no action on the bill, allowing it to expire with no legal effect on 15 February 1989. showed no inclination to revive the issue of the adoption of a Shari'ah bill. Indeed, Benazir took the position that Zia’s Islamization program should be dismantled, ideally through the repeal of the Eighth Amendment and the restoration of the 1973 Constitution.

Nevertheless, by early 1990 sentiment had grown in the Senate, controlled by the opposition Islami Jamhoori Ittehad (Islamic Democratic Alliance - IJI), to disinter Zia’s Shari'ah Ordinance. Accordingly, in May 1990, the Senate passed yet another version of the bill, the Shari'ah Bill (Senate Version), 1990, which was similar in most respects to Zia’s ill-fated ordinance. Many of those who had opposed Zia’s ordinance in 1988 had dropped their objections on either of two grounds. First, Zia’s ordinance, although flawed, was better than no ordinance at all. Second, passage of the Senate bill would force the consideration of a similar bill in the National Assembly. The Senate reasoned that prospective debate on such a bill in the National Assembly would prove very embarrassing to Benazir’s shaky coalition government. It would be easy to characterize Benazir’s anticipated opposition to the bill as further evidence of her “anti-Islamic” sentiments, which in turn would serve to weaken her government. However, on 6 August, the eve of the scheduled debate on the new Shari'ah bill in the National Assembly, President Ghulam Ishaq Khan dismissed Benazir’s 20-month-old government and installed an IJI-led coalition under a caretaker Prime Minister, Ghulam Mustafa Jatoi.

The November 1990 general elections resulted in an overwhelming victory for the IJI, and installed its leader, Mian Nawaz Sharif, as Prime Minister. Sharif, the former Chief Minister of Punjab, had been a close political ally of the late Ziaul Haq, and he was on record as being both ideologically and emotionally committed to the passage of a Shari'ah bill. Accordingly, in late March 1991, he established a committee of senators, members of the National Assembly, judges, lawyers and ulema to draft another version of Shari'ah legislation. On 12 May the fruit of this committee was presented to the National Assembly, wherein it rapidly gained passage, on 16 May. Twelve days later (27 May) it passed the Senate. In both houses support for the legislation di- vided along partisan lines - members of the IJI voted overwhelmingly to support the bill; members of Benazir Bhutto’s Pakistan People’s Party (PPP) voted against the bill in the National Assembly and abstained in the Senate.'

Despite considerable self-serving hyperbole by government officials, the Enforcement of Shari'ah Act, 1991 will have a negligible impact upon the pace of Islamization in Pakistan. First, as an “act” of the legislature it does not amend the constitutional provisions that limit the scope of superior courts’ jurisdiction. Second, the 1991 Act does not address the jurisdictional issue between the High Courts and the FSC, the main point of Zia’s 1988 Shari'ah Act. Third, and perhaps most importantly, the 1991 Act’s “supremacy of Shari'ah” clause does not contemplate any revision of the superior courts’ long-established standard of interpretation-:

Supremacy of Shari'ah: The Qur’an and Sunnah (Shari'ah) shall be the supreme law of Pakistan;

1. While interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the court; and
2. Where two or more interpretations are equally possible, the interpretation which advances the principles of policy and Islamic provisions in the Constitution shall be adopted by the court.

Therefore one may conclude that the primary significance of the Enforcement of Shari'ah Act, 1991 is political, not legal. The political message is that Nawaz Sharifs government was able to deliver a Shari'ah Act when two previous regimes had failed to produce the goods. Moreover, the PPP’s opposition to the passage of the 1991 Act was characterized skillfully by the IJI and the pro-government press as proof of the PPP’s and Benazir Bhutto’s “anti-Islamic sentiments”. In this context the content of the Shari'ah Act became secondary to the symbolic importance of its passage.

In the absence of political leadership or societal consensus the real determinant of the content and pace of Islamic reform has been the superior courts themselves. Throughout, the key issue has been courts’ posture toward the interpretation of their jurisdiction to consider matters “repugnant to Islam.” The remainder of this article turns to a consideration of this issue.

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