In a curious piece on these pages (January 10) Feisal Naqvi, normally the most clear-eyed of commentators, has declared the Federal Shariat Court a mere talk shop and an act of appeasement that may well have averted a major Islamist upheaval in the country. On this premise he has invited gratitude for Zia. Consider.
The Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court, added by Zia to the constitution, are themselves curious institutions that represent an amalgam of judicial traditions brought together by Pakistan’s peculiar colonial history and continuing divergent pulls.
These courts exercise a power that fuses the prophetic mantle to declare and enforce Allah’s will with judicial review of legislation, a counter-majoritarian practice historically derived from the secular constitutionalism of the United States and the Anglo-Saxon principle of the binding effect of previous court judgements on later judges. A law declared to be repugnant to the injunctions of Islam by the Shariat courts ceases to remain effective from the date specified by court judgement.
Added to this mix is the ‘Western’ mantra of the independence of the judiciary, a virtue otherwise little known across the medieval or modern Islamic world. This in principle, and often in fact, makes pronouncements of Allah’s will by the two Shariat courts independent of government policies or exigencies.
While fundamental rights review of legislation seeks to bind national legal systems to international human rights norms, the Islamist seeks ruptures in governance (critique of democracy), the economic system (prohibition of riba) and social interaction (fight against obscenity) that underline the uniqueness of his faith-demarcated utopia.
Even though the mix of powers available to the two Shariat courts has had far-reaching consequences, it is hard to say that either side to the contest about the nature of the Pakistani state has been left satisfied.
The fact that the Federal Shariat Court and it’s appellate forum are barred by the constitution from examining the provisions of the constitution itself means that much in the governance of the state that appears to the theocratically inspired to offend against Islamic norms, said to have been prevalent in an Islamic golden age, remains immune from scrutiny. This includes democracy itself and the existence of political parties as well as the immunity available to the president from prosecution and the presidential power to pardon offenders whether or not the victims of offences or their heirs consent to such pardon.
It can be reported that legal structures that might be said to condone obscenity that the Islamist sees as rampant have so far not attracted the scrutiny of the Shariat courts. Not that the issue has not arisen elsewhere within the judicial system.
For the Islamist, who continues to demand by all available means the Islamisation of the state, the Federal Shariat Court is indeed largely Mr Naqvi’s talk shop. The Islamist is not appeased. Or not enough.
The democratic constitutionalist has her own reasons for continuing to lament the Ziaist intrusion into the constitution. Legislation struck down as being repugnant to Islam or caused to be enacted by the decisions of these courts includes the mandatory death penalty for blasphemy, recognition of rajm or stoning to death as the Islamic punishment for adultery, prohibition of all lotteries, annulment of existing land reforms and prohibition of future acquisitions for the purpose of social equity as well as the law that allows only existing nearby landowners the right to pre-empt sales of land and the not the tenant cultivators of the land being sold.
The Shariat courts’ valorisation of the landowner at the expense of the landless brought to an end decades of Left politics by judicialising the issue. This happened by curious coincidence through the 1980s as the shura in Iran next door repeatedly clashed with, and finally won the battle for land reforms against the upper house of the Negehban.
Laws struck down by the Federal Shariat Court but sustained for now by stay orders while appeals before the Shariat Appellate Bench await hearing include parts of the Muslim Family Laws Ordinance of 1960 that grants, contrary to the consensus of Sunni jurisprudence, grandchildren the right to inherit directly from their grandfather in the event of their parent having passed away prior to the grandfather’s death.
Nothing, however, compares in its import to the declaration by the Federal Shariat Court in 1991 and the Shariat Appellate Bench in 1999 that the core of the Pakistani economic system is based on interest prohibited as riba by Allah. A reconstruction of the economy, with whatever rupture with the world system that might entail, was ordered within three years.
In 2002 the matter was reconsidered in review and remanded back to the Federal Shariat Court where it was taken up for fresh hearing in 2015.
Between 1991 and 2002 a large proportion of international commercial contracts contained rescission clauses in the event of the interest prohibition being enforced. Today the reliance of the Pakistani public and private sectors on interest-based domestic as well as international debt, from eurobonds to the CPEC and power plant financing, is arguably greater than in 1991 or 2002. Hearings are proceeding before the Federal Shariat Court as the economic system stands by.
In his Reconstruction Lectures Iqbal had warned against the creation of a forum with the authority to take religious interpretation away from public debate. Such debate and decision-making by an elected parliament were taken by Iqbal to be the path to ijtihad. The constitution of 1973 had incorporated this advice in its basic structure, the Council of Islamic Ideology being an advisory body with no binding authority over parliament.
The creator of the Shariat courts had ideas fundamentally different from those of Iqbal. Islam had to be condensed into stern commands reflecting the common denominators amongst the various sects and schools, some schools being more equal than others. He had little time for organic growth or societal debate. Should we be grateful?
While appeasement is hard to calibrate, should Zia’s other Islamist swipes also be accepted in gratitude as having at least averted a bloody takeover? But what if the cataclysm happens without the upheaval? Minds congeal much like blood. How does one build from amongst the ruins? In gratitude?
The writer is an advocate of the Supreme Court of Pakistan.