In his original article on these pages (‘The curious case of the Shariat Court’, January 10), Feisal Naqvi invited us to consider the benefits of the Federal Shariat Court operating as a silo for deflected legal arguments on the Islamic nature of laws.
The spirit of Naqvi’s proposal was one of pragmatic relief and realistic defeatism. His justification was based largely on the speculative worth of the FSC rather than on specific cases. In his opinion, we must embrace –-not oppose nor attempt to correct – the historical legacy of the FSC as a receptor, where residual cases that may be potentially in violation of Islam are deflected.
The idea that the compatibility of democratic legislation with Islam requires a supra-regulatory institution such as the FSC is a given for Naqvi only because Gen Zia said so. What Naqvi did not offer is advice on how we can surgically remove and preserve an institution as part of a legacy without necessarily accepting the military, political and social engineering that provided the context, birth and sustainability of such institutions under the Zia era. Instead, Naqvi invites us to celebrate the gift without looking at the preconditions or the proverbial horse in the mouth.
Salman Akram Raja responded incisively to this article which he considered to be ‘an act of appeasement’. Raja pointed out the political and social effectiveness of what Naqvi oddly defines as an “irrelevant FSC” and cited key and specific cases on which the FSC has weighed in. Apart from legal implications, these deliberations and judgements impact and define the moral purview and purpose of law and its relationship with the Islamic subject-citizen.
Some key rulings or deliberations of the FSC have included those to do with the Objectives Resolution, refutation of land reforms, the death penalty for blasphemy, riba and the challenge to the reformed Zina laws. Deflection does not make an issue irrelevant – it simply allows us to play ostrich.
Prompted by a sharp challenge, Naqvi keenly defended his proposal the following week. In the ‘The art of the possible’ (January 24), Naqvi confirmed his defence of the FSC and raised his bets by proposing that liberals should be gratuitous for such of Zia’s gift(s). The good news for Naqvi is that the liberals he is advising – the kind who, like him, do not support land reforms and other radical idealistic impracticalities – are probably already wildly appreciative of the FSC judgement on this matter.
Naqvi’s advice bodes well for those who believe in strategic, opportunistic manoeuvring of the law rather than fighting for the principle of secular rights. His arguments would appeal to the community of liberals who instead of resisting and challenging, career through and by the principle of accommodation and negotiation with the institutions and policies that emerged from Ziaul Haq’s Islamisation of the state.
Most of all, this is befitting advice for those whose historical reach cannot recall a country before Ziaul Haq and therefore, rather than correcting historical violations of constitution, law and rights before, during and after Zia, would prefer to accommodate and allow his legacy to continue. These lifestyle liberals may be a numerical minority but they are certainly not of the religious minorities or landless and, therefore, they have far less to lose by accepting theocratic parallel legal systems. Naqvi offers them a guilt-free pass for their accommodating nature – more, he invites them to lay a wreath of gratitude at Zia’s resting place near the Faisal Mosque.
This is the slippery slope of the kind of advice that proposes that ‘we should live with it’ – abusive marriages, discriminatory policies, divine laws, customs and traditions. Naqvi knows full well that he is asking that concessions have to be made but instead, he pretends there is no fall-out from his call for embracing this form of theocratisation of the state. Once dispensed, such proposals have to defend the utility of such compromise and spin the argument under the guise of pragmatism. Hence, the call to become ingratiates of Zia.
If we are guided by Naqvi’s tutelage to accept the FSC for offering a segregated religious discourse, the continuity of the Council of Islamic Ideology too, may now be defended. Let’s put aside the constitutional timeframe or principled arguments made by some brave voices, including Senator Farhatullah Babar, or indeed the sociological protest over how the CII spreads disinformation and pressurises law-makers and citizens for the reversal of basic rights in particular, for women and minorities.
By Naqvi’s logic, the CII can too, play an effective “alternative forum” since its advice is technically non-binding. So, even if the CII keeps haranguing parliament and the media on the need to legalise child-marriage and refute conditions for polygamy, this is a Trojan gift that we must appreciate. Never mind the short-sightedness over the fact that by deferring to the FSC or CII, the Islamic credentials of the judiciary or parliament are automatically undermined and secular or rational thinking is dismissible as ‘unIslamic’.
For no credible reason, these alternative institutions now are empowered as icons of Islamic reasoning and judgement. Naqvi’s suggestion to grant them even more exclusive recourse on theocratic legal narrative cedes them even the interpretive value and engagement of Islamic thought, ideas, law – regardless of the legal limbo or outcome of any particular case or recommendation.
Parallel justice systems are not separate – they are analogous. They do not exist in absentia and in fact, they are endorsed precisely because the state turns a blind eye and they are allowed to function co-dependently. This exonerates the state from its role of ensuring basic rights because it has franchised or leased these out to these parallel systems.
Jirgas, as Imran Khan has historically reminded us, are in fact very pragmatic and effective justice systems. This is precisely because they pander to the patriarchal and class based communal codes that support the hierarchical powers and maintain the status quo. They are convenient, residual but no way are they irrelevant and their influence steers what is called the broader discourse. The nexus of legal judgements and social norms/behaviour cannot be wished away by Naqvi, regardless of which federal building issues the verdict.
Why just the FSC? Why not embrace the entire gift package of Zia’s Islamised laws, policies and institutions as a legacy through which we can weave and negotiate our secular rights? There may be many silver linings and some worth in all anti-secular policies/institutions. If they are ‘gifts’ for the liberals then what are they for the illiberals?
Certainly, the conservatives and Islamists have not abandoned the regular courts or bar associations. Nor have they segregated or pegged their entire cause to the FSC or a secluded Islamic club. Their intention is to seep into all institutions and develop alternatives along the way. The FSC is also not moved by Islamists exclusively – it’s an equal opportunity bypass for all those who wish to contest equal and inalienable rights as guaranteed by the constitution.
If heeded, Naqvi’s advice for concessions would allow alternative theocratic institutions to develop and gain credibility precisely because they will remain unchallenged. This is one gift that liberals may just like to return to the sender through his legal counsel.
The writer is a sociologist based in Karachi. Email: afiyaziayahoo.com