The FSC in our hybrid society

February 10,2016

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The writer has a doctorate in political science from
Columbia University. Her dissertation was on the conflict between Pakistani liberals and the ulema and Islamists.

There has recently been a lively debate between Feisal Naqvi, Salman Akram Raja, Afiya Shehrbano, and Babar Sattar on whether liberals should be grateful for the Federal Shariat Court. The last three columnists have argued against Naqvi’s point of view. I would like to support his position that the FSC is where Islamists go to die and that liberals should, therefore, be grateful for it. But I have different reasons for my opinion.

First, I believe that Islamists are appeased by the FSC and the Shariat Apellate Bench (SAB) although they may say that the state is not Islamised enough, just as liberals, at any given time, would say that it is not liberal enough.

Islamists come in many shades. The most significant groups are the political parties and associations of the Deobandi and Barelvi ulema as well as the Jamaat-e-Islami. In 1953, our first Constituent Assembly promised them that a Supreme Court bench would review legislation for compliance with Shariah. This would have been part of the draft passed in 1954 had Ghulam Muhammad not dissolved the assembly. General Zia merely resuscitated in 1978 what had been promised in 1953.

It is precisely because of Islamic judicial review that the ulema parties and Jamaat endorsed our constitution – which also guarantees democracy, individual rights, and gender non-discrimination – as Islamic. They did not relinquish their struggle to advance conservative values but they agreed to struggle within the rules of constitutional democracy.

For recent evidence of appeasement, recall when Maulana Abdul Aziz hit the airwaves, threatening us with a revolution to enforce Shariah. Both the JUI-F and the Jamaat said that his argument was rubbish because the constitution provided a mechanism for Shariah compliance and Shariah was, therefore, in no way incompatible with democracy. For liberals, Aziz and others like him – who reject democracy, political parties, and secular individual rights – are the problem, not the mainstream ulema parties or Jamaat, which accepted them.

Second, the FSC may have functioned as a ‘mere talk shop’, due to its marginal status within the judiciary, but we should not underestimate the importance of a talk shop. Talk is crucial for a democracy. Some political theorists would contend that the majority vote is merely a convenient decision-making mechanism and that the legitimacy of democracy rests on deliberation. In deeply divided societies, like our own, this means engaging in the act of ‘reciprocal reasoning’ when communicating with adherents of rival moral frameworks – ie giving people reasons that make sense to them, from the perspective of their moral traditions.

Since the late 19th century, Muslim scholars have been split between the madressah-educated and the tajaddud-pasand or modernists. The former continued to view Islam through a corpus of traditional texts – Quranic exegeses, Hadith criticism, and juristic commentaries – and believed that questions on which Muslim jurists had reached a consensus (or ijma), such as capital punishment for apostasy or stoning to death for adultery, were ‘settled’ and could not be overturned by scholars in later generations.

But modernists, among whom we can count Sir Syed and Iqbal, believed that contemporary Muslims were not bound by the authority of juristic consensus and could interpret the Quran according to the needs of modern society. Ghamidi belongs to the second group.

There is nothing wrong if liberals invoke Iqbal’s arguments in Reconstruction or Ghamidi’s views on apostasy if they are trying to build a social movement to advance these values. They have the right to support modernist scholars and to build a movement that democratises or modernises Islam, if they so wish. Pakistani liberals can also struggle for the right to opt into a secular civil code (as exists in India), for a modernist interpretation of Muslim personal law as applied to them, for compliance of public Islamic laws to the individual rights guaranteed in the constitution, and for public Islamic laws to be based on an interpretation of Islam that is demonstrated to include the consensus of different Muslim sects (a standard set by the SC in the 2005 Hasba Judgement).

But it is unethical for liberals to make an argument about Islam based on modernist reasons and to insist that the state impose it on ulema – Deobandi, Barelvi, Shia, and Ahl-e-Hadith – and Islamists. It is like using the state to force Protestantism on a Catholic religious establishment. There is no liberal principle that justifies this.

A liberal cannot persuade an alim using modernist reasons. Modernism has been popular with our state elites and western-educated class but has no foothold in grassroots Islamic institutions. The ulema and Islamists rejected the Muslim Family Laws Ordinance 1961 and the Protection of Women’s Rights Act 2006 because they were justified through modernist reasons.

In both cases, the FSC struck down sections that were deemed to violate the integrity of the juristic tradition (fiqh). Because of this, they trust the FSC as a neutral arbiter and don’t regard it as Zia’s hoax. A talk shop the FSC may be, but such talk is needed to hold our deeply divided society together.

Third, we are living through a serious crisis of authority in Sunni Islam, and the FSC, though weak, is an institution that can protect liberals. To understand the problem, we have to rewind to pre-colonial India. The Mughals, like other Muslim rulers before them, recognised the classical Islamic theory that a ruler had to enforce Shariah for his authority to be legitimate. However, in their legal system, Shariah co-existed with secular imperial law and with different laws for different communities, based on local customs and power structures, and the exigencies of empire-building compelled rulers to deviate from juristic ideals (eg Hindus were part of their nobility).

Muslim rulers could influence the ulema to get favorable opinions because they were part of the state bureaucracy and received grants for their scholarship. Part of the reason why Muslim rulers resisted introducing a printing press was that the dissemination of religious texts would lead to more people claiming to speak for Islam and more challenges to their authority.

This is what happened when the British introduced the lithographic printing press in India and secularised the state, breaking the link between the state and Islamic institutions. All kinds of religious entrepreneurs started making all kinds of arguments about Islam. Many of these entrepreneurs today – many of them armed – make bogus arguments about the juristic tradition, which are not accepted by the center of traditional Islamic institutions. Someone needs to correct them.

The FSC, though weak, is a movement in that direction. It can give judgements about the juristic tradition that are acceptable to Islamic institutions, and can use the centre of this tradition to rein in Islamists.

Fiqh is a well-established legal tradition that held sway over a vast territory for centuries. It does not justify the vigilantism of Taseer’s assassin, or the Zia-era laws that haphazardly mixed Islamic jurisprudence with secular colonial codes, or the expropriation of property by the state (sorry leftists, but as we all know, the law is often an instrument for elite domination – be it Anglo-Saxon or Islamic). The most recent legal scholarship on Islamic judicial review, by Martin Lau and Karen Yefet, suggests that Pakistani judges have used Islamic principles to expand civil liberties and women’s rights. The Islamist utopia is certainly to be feared but the FSC and the juristic tradition need not be.

Salman Akram Raja rightly notes that Islamic judicial review is a hybrid arrangement. But we, too, are a hybrid society, both of the West and Islam. Perhaps it is time we view our dual heritage as a gift rather than a curse.



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