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Saturday January 22, 2022

Counsel for ideologies

July 18, 2021

The Council of Islamic Ideology is rarely in the news for reasons it is likely to appreciate. That may just be in the architecture of its DNA. Those who think religion is a private matter think it’s a step too far. The other side thinks it’s a step too short. And yet, both sides face the same problem when it comes to any kind of change – the constitution.

The Council is commonly thought of as a kind of Islamic ‘regulator’. This isn’t so. For one, it’s only an advisory body (though this doesn’t mean its opinion is inconsequential). But, also, it wasn’t created by an ordinary law like the rest. The CII was created by the constitution itself. This makes tinkering with it much more difficult for either side. In fact, it makes it at least one-sixth harder: while ordinary laws can be amended through a simple majority in Parliament, a constitutional amendment requires the support of at least two-thirds of both houses.

Of course, it’s more complicated than that. The Council is seen as one of a few bulwarks against the nefarious forces that want to drain Islam from the Isamic Republic. Cutting it down to size probably isn’t high on anyone’s political agenda.

But all of this convergence on the constitution places us in a rather unique situation. Usually, liberals centre the debate on the law of man, while Islamists position it around the law of God (to use both terms loosely). In this case, both camps cite a document that takes root not in Islam, but in Islamabad.

When one side says that Pakistan is an ‘Islamic’ Republic, it is basically citing Article 1 of the constitution. When they say that this Islamic Republic must create the circumstances that allow Muslims to live by the Holy Book, they’re basically citing the Objectives Resolution, read with Article 2A. And when they say that all of this means no anti-Islamic laws can be passed in the Islamic Republic, they’re citing the ‘repugnancy provision’ – Article 227.

The other side responds with Article 230(4), which provides that the Council’s ‘final report’ shall be submitted within seven years of its appointment. Rather than being a final date for the submission of a particular kind of report, this is interpreted as a ‘sunset clause’ or expiry date for the institution as a whole. That may make sense if you’re interpreting the text in light of what you believe to be its purpose, but it’s a pretty hard sell. It’s a lot more likely that this was just an expiry date on one particular function – such as determining whether existing laws needed to be made more Islamic.

Now, the reason you’re reading a column about all this is, of course, the domestic violence bill that was recently doing rounds in parliament. The law didn’t sit well with the prime minister’s advisor on parliamentary affairs, who wrote an angry letter to the speaker of the National Assembly saying it contravened the injunctions of Islam. In his letter, Babar Awan requested the speaker to forward the proposed law to the Council of Islamic Ideology for review. Significantly, he, too, cited the constitution.

Naturally, there was some discomfort at the prospect of a dozen bearded men discussing a law that was primarily meant to aid women. (If beards seem a reductionist placeholder, I’ll get to that soon.) The Council’s track record doesn’t help, either. This is a body with range – from legitimising Zia’s party-less elections (because political parties are supposedly un-Islamic) to resisting laws against child marriages.

As it turns out, twelve bearded men is exactly what the council currently is.

Now, to reiterate, if you have an issue with any of this, you’re unlikely to have much success arguing that the Council shouldn’t exist to begin with. This leaves you with two options. You can disengage and allow the CII to occupy ceded space. Or you can attempt to rearrange the space it operates in, altogether. The latter takes two forms: carving out more space within and shifting boundaries from the outside. Both are aided by the fact that our common language is the constitution.

To illustrate, let’s return to our twelve bearded men. There are at least three important things that can be altered in this image.

First, the obvious: that all twelve are men. While describing the intended composition of the Council, Article 228 says the president “shall ensure” that “at least one member” is a woman. And yet, while the Council has been functioning since April, there isn’t a woman in sight. A petition is currently pending before the Islamabad High Court on this point. As one of the counsels, I’ll refrain from further detail on this.

Of course, it’s hardly like the appointment of a single woman will change much – or anything at all, past symbolic value. This is simply a starting point.

Next, the beards. While they happen to be a fact, they also represent an idea: that all members on the Council must have a particular kind of religious credentials. Again, the constitution does not say this. In fact, the requirement for people linked to ‘Islamic research or instruction’ is only one-third. As to the rest of the spots, candidates can either have “knowledge of the principles and philosophy of Islam” – “or” – “understanding of the economic, political, legal or administrative problems of Pakistan.” This is a significant departure from the constitution of 1962 which used the word ‘and’ between both requirements.

So, in theory, you could have a Council where there are seven religious scholars and thirteen people from the social sciences. And they could all be women. This is hardly realistic, but the Council isn’t exactly about to be disbanded tomorrow, either. This is just to say that “join ‘em” doesn’t have to mean accepting the council as it is.

But now, on to altering space from the outside. There’s no need to beg or lobby here: it’s all in the same constitution that ensures the Council exists at all. The third thing that can be changed about the image is the part where they’re passing ‘recommendations’ on a bill that’s been placed before parliament based on one man’s letter.

We have a running joke at the office that there are certain legal ‘commandments’ that we reproduce so often, they don’t even require citations, anymore. One is that while private persons can do everything except that which the law forbids them from doing, public authorities can only do that which the law authorizes them to do.

Article 230 lists the functions of the Islamic Council. Three can be initiated by the Council itself. It can make general recommendations to the legislature create a more Islamic environment; it can suggest passing certain laws to give effect to the “injunctions of Islam”; and it can recommend how to make existing laws more Islamic.

But there’s one function that the Council can only perform when asked: reviewing laws that haven’t been passed yet. The Council can only do this when asked by the president, a governor, or two-fifths of the legislature.

Now consider the present case: an advisor to the PM sends a letter to the speaker, saying that he would like the speaker to send the law to the CII. Nowhere in Article 229 are the speaker or the prime minister mentioned. Whichever side of the debate you’re on, it’s clear that this can’t happen unless two-fifths of parliament sends it to the CII. And yet, news later surfaced that the CII had already “expressed reservations” on the law.

Or, consider another one of the Council’s greatest hits: that men should be allowed to ‘lightly’ beat their wives for refusing intercourse. Or for not bathing. There, the CII prepared a draft law ‘in reaction’ to the Protection of Women Against Violence bill before the Punjab Assembly – elected members who are already supposed to be ‘sadiq’ and ‘ameen’.

Again, the substance of such recommendations aside, if we pay attention to the process, they shouldn’t exist to begin with. Similarly, if the argument is that the seven-year deadline only applied to report writing, then why has the Council continued to produce annual reports well past the constitutional deadline?

There are no normative judgments in any of this. These are all clear consequences of the same document that both sides rely on. The truth is that as long as it’s in the constitution, the CII probably isn’t going anywhere.

The cement isn’t wet anymore, and hasn’t been so for half a century now. But while the structure may be a pillar for some to lean on, if you come a little closer, you'll see the cracks that the bodies hide.

The writer is a lawyer.

Email: salaar.khan@columbia.edu

Twitter: @brainmasalaar

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