Supremacy of the Sharjah

If we look back into the constitutional debates of the first Constituent Assembly of Pakistan, we notice that the Objectives Resolution, the Reports of Majlis Talimat-e-Islami, the mass movement for Islamic constitution (since April 1948), and the declaration on the principles of an Islamic State by 31 ulema (1951) representing all schools of Muslim thought represent major milestones toward the evolution of an Islamically acceptable constitution. They also indicate a serious concern among people to see Islam recognized as the decisive factor in their national policies. The enrichment of Muslim constitutional and legal thought as a result of this movement represents a creative contribution of the Muslim scholars and legislators and is a pace setter for other Muslim communities.

The response of the ruling political parties (Muslim League, Awami League, People’s Party in particular) and for a considerable period, the bureaucracy, and the army was not that favorable; yet under public pressure they had to concede to a number of popular demands. With the advent of President Ziaul Haq’s rule, the climate recorded a visible change: he tried to project his reign as one in which Islam became its mainstay.

An objective evaluation of this period is still to be made. However, it deserves to be noted that a major issue brought to light is the role of judiciary in the context of the Shari'ah’s supremacy. It calls for serious consideration. In secular Western democracies, the US Supreme Court, for example, not only guards the letter and spirit of the constitution but also interprets the constitution to an extent that new dimensions embedded in old phrases can get constitutional sanctity. How issues like equality, race, sex discrimination, federalism, obscenity, right to life, and so forth have changed over time speaks of the role the Supreme Court has played in the evolution of law. This court has also declared as void some 200 acts passed by the federal and state legislatures. The Federal Shariat Court in Pakistan is assigned a similar role though with greater restrictions and reservations.

The issue has at least three important dimensions: first, the role of superior courts; second, the role of democratic institutions; and third, the role of the ulema. While there is no organized church in Islam, ulema, because of their scholarly contributions, do enjoy respect at the national and international levels. Their views do matter for the people. Positions taken by them, for example, under the dictatorial rule of General Ayub idian on the Family Law Ordinance, received popular support in the country. The ulema earlier made a major contribution to the Pakistan movement. The inclusion of Article 2-A in the 1985 Constitution too was an index of their influence. Therefore, it is logical to consider the role of ulema, once the Shari'ah’s supremacy is enshrined in the constitution of Pakistan. Does it mean a comeback of theocratic rule in the country?

The role of judiciary, particularly the Federal Shariat Court is clearly defined in Chapter 3-A (articles 203-B, 203-J) of the constitution. Matters decided by the Shariat Court however can be revised by the Supreme Court. The Shariat Appellate Bench of the Supreme Court remains the final authority in all such matters.

It is evident that the Shari'ah bill or any other act of Parliament (Majlis-i-Shura, i.e., National Assembly and Senate) can neither overrule the constitution nor can it deprive the Supreme Court of its authority vested by the constitution. Any legislation made through elected democratic institutions, the National Assembly and the Senate, can however be brought to the scrutiny of the Shariat Court or the Supreme Court in order to vouchsafe its conformity with the constitution. In this respect, the role of the superior courts, even after the supremacy of the Shari'ah is established, remains unaltered and decisive. In fact, the supremacy of the Shari'ah is achieved through all the three processes of the state: the executive, the legislative, and the judiciary. Their roles are complementary and not in suppression of each other. This is the position in all the countries which have a written constitution. In the case of Pakistan, an effort has been made to achieve the national ideals through constitutional organs.

The role of democratic institutions — as visualized by Muhammad Iqbal (d. 1938) and Sayyid Abul A’la Maududi (d. 1979) — was to exercise ijtihad in economic, political, social, legal and other areas of life. The incorporation of Article 2-A in the Constitution has reinforced their role. The availability of human resources with the requisite qualities for making ijtihad remains, however.

The two-century-old education system, designed by the British colonialists, offers the least suitable mechanism for production of such human resources. The traditional religious education system, on the other hand, focuses on fiqh relating to rituals and worships (fiqh al-'ibadat). With inadequate information on the current social, political, economic and legal issues, it cannot meet this need either.

A serious effort for Islamization must begin, among others, with the development of institutions that can produce the proper human resources. The legal practitioners as well as the elected representatives in the Majlis-i-Shura shall have to develop direct access to the Qur’an, the Sunnah, and the fiqh sources. It is only with the help of such qualified individuals that the process of Islamization can become meaningful.

Historically speaking, the shura (parliament), the law courts (qada), jurisconsults (muftis), the institution of ijtihad (individual systematic reasoning), and ijma (consensus of scholars), each has its role in the process of law-making, review, and interpreta- tion. But it is only through interaction between all of them that evolution of legal thought is destined to take place in the future, as it did in the past. The suggestion that supremacy of the Shari'ah will entail veto power of the ulema or allow any institution to dictate or supersede the constitution is totally uncalled for. Needless to say, Islam does not recognize the infallibility of any mujtahid, or 'alim.

The fear that the Islamization of laws may lead to a “fundamentalist,” “theocratic” rule in Pakistan is unfounded.

Some critics have surmised that the Islamization process through hudood, qisas, diyat, zakat, ushr and, the law of evidence, or some other legal reforms was politically motivated and as such may not have a direct relevance with the issue of the Shari'ah’s supremacy. This too is a conjecture. The way in which the Zia-Junejo or the Ishaq Khan-Nawaz Sharif governments in Pakistan dealt with the whole issue of Islamization does indicate a piecemeal approach, at times even frivolous attitude toward Islamic reforms, which could justifiably be looked upon by some as an exploitation of Islam for political purposes. This failure of the political leadership should not be confused with the ultimate commitment of the people to Islamic ideals, something that forces politicians to gravitate back to what people want. The real process of Islamization would begin only when truly committed individuals and Islamically competent bodies are empowered for the job. Whatever be the tensions, and even political game-playing, people’s aspirations are bound to prevail in the long run. The deciding forum is bound to be the people’s will. Having said so, it cannot be denied that the political leadership has failed to come up to the expectations of the people.

Sometimes, laws are relegated a minor role in moral transformation. True social change has an important inner dimension — that is, the human soul, which must be cultivated for a genuine, long-lasting change. Nevertheless, laws and spiritual change are not mutually exclusive: these are two sides of the same coin. For the soul to be cultivated, it is important that the individual who houses it must conform to a social norm. Laws, as tools of a belief system, help thrive on the values that they encapsulize. At the same time, Islamic laws do not suffer from any sort of blindness. Despite their stern exterior, they carry a compassionate heart and force the extending arm of the executioner to retreat itself under a mitigating circumstance. For example, a thiefs hand cannot even be touched if it is proved that starvation forced him to steal. Short of such a circumstance a person cannot be allowed to indulge in highway robbery and theft; he has to be punished.

Islamization consequently is a program wedded to improving the human situation through education, reform, and penal system. It is not a matter of simply implementing public punishments and penalties.

We hope fresh empirical researches on legal reforms in other nations like the Sudan, Iran, Yemen and Malaysia will help further in developing a proper perspective of the Islamic Shari'ah. Each program for Islamization should be studied, however, in its own right and context. It is only after making a comparative study of the different models that we can formulate our views on the universals in the contemporary process of Islamization.

Dr Charles Kennedy, who represents a new generation of Western scholars, has pioneered an empirical study of the Islamization process in Pakistan. Such efforts should help clarify the myth built around the call for Islamization.

His work covers subjects like the implementation of the hudood law, economic, religious and land reforms. This includes discussion on economic implications of the prohibition of riba (interest/usury) and the status of non-Muslims, specifically the Ahmadiyya. A whole chapter is devoted to a crucial, constitutional issue: the supremacy of the Shari'ah.

Dr Kennedy’s in-depth analysis helps in dispelling several misconceptions about the application of the hudood laws, particularly the common view that it discriminates against women. Based on a careful study of 426 legal cases (during 1979-89), the author has looked into the implications of the Hudood Ordinances and their impact on the existing judicial system in Pakistan. He says:

“Several recent studies have argued that Zia’s Nizam-i-Mustafa and more specifically the Hudood Ordinances are discriminatory to women... our findings conclusively demonstrate...in regard to the more limited domain of the implementation of the Hudood Ordinances, that there has been in fact, if anything, modest gender discrimination against men. Eighty-four percent of those convicted in district and session courts under the Hudood are men and 90 percent of those who were convicted and upheld by the ESC are men.”13

While dealing with the issue of riba, Dr Kennedy has referred to its implications for international trade. Obviously, this aspect of international trade is vexatious and has raised some important questions for Pakistani intellectuals to answer. Since the appearance of Abul Ala Maududi’s profound work on riba, several academic works have discussed the issue. One may disagree with Dr Kennedy’s conclusions, but it is difficult to deny the seriousness of the problem.

Another major issue discussed in his research is the Shari'ah’s supremacy and the impact of the Shari'ah bill. His discussions summarize at a micro level the nationwide debate in Pakistan on the subject.

Dr Kennedy has looked into the Ahmadiyya issue from the perspective of the Munir Report, popular with the Western writers on Pakistan. Perhaps it is not known to them that the Munir Report was condemned by the ulema and the judicial community as a biased work, unworthy of the judiciary of any country. The Jamaat-i-lslami published a we 11-documented rejoinder to the Report.

Also, it may be mentioned that the Ahmadiyya represents a very special case, not representative of the overall position of minorities in Pakistan. Because of the religio-political challenge it poses to the community from which it has rebelled, the group hurts people’s sensibilities. In the historical perspective, this represents a situation similar to the advent of Christianity in the womb of Judaism, the rise of Protestantism from the base of Catholicism or even the rise of Mormons in the American con- text. I hope the Western scholars would try to reflect upon the Muslim position in the context of this historic perspective, and not merely as a case of one more minority. The rights and status enjoyed by religious minorities in general should not be confused by some special situations. The conflict between the Ahmadiyya and the Muslim community owes more to the latter’s perception of threats to its integrity rather than the Ahmadiyya’s belief. After all, deep historic links between the Ahmadiyya and the British colonial rule are known.

At a time, when some Pakistani elites and politicians are voicing their reservations on the Shari'ah by their bashing of the Hudood and other ordinances, this impressive scholarly work makes a significant contribution toward understanding the issue at the academic level.

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