Add religion and stir

Some supporters of the (secular) rule of law in Pakistan objected to the reference to Article 62(f) in the short order on the NRO by the Supreme Court. This has led Moeen H Cheema and Barrister Shahzad Akbar to label such activists as 'liberal fundamentalists' (January 7). Their main argument for such an accusation relies on a division they make between universal and modernist values of rights, and a more egalitarian possibility, in theory at least, of the Islamic right to equality.

The writers defended the SC decision to strike down the NRO as violative of Article 62(f), which requires a member of parliament to be "sagacious, righteous and non-profligate and honest and ameen". By doing so, the writers compound the legal implications of the NRO for the president with the notion of broader moral rewards that can emerge from Islamic readings of all financial and political cases, especially for the 'poor and disenfranchised people of Pakistan'. This is a big leap of faith for Islamic revivalist scholars. The post-9/11 identity crisis for the Muslim youth has meant more hope, optimism and investment in a re-discovered Islam. Often, their alternative proposition is premised on a supposedly 'authentic' and uncontaminated divine legal discourse.

The writers admit that both the process of Islamisation of laws as well as judgements by the FSC have historically led to some miscarriages of justice and provided the opportunity for abuse of powers. They also point out the influence of misogyny and discriminatory attitudes seeping into appellate and trial courts. Further, they concede that the rights of women and minorities have been casualties of the Islamisation of laws. So really, their only support for an Islamic cover to rulings in political cases complements the moral struggle within a judiciary motivated by a 'distrust of the executive'. For the purpose of moral and financial cleansing of politicians, it seems that all the other losses accrued through Islamisation are momentarily acceptable or criticism can be suspended.

To highlight the progressive possibilities of Shariat courts, the article quotes a case whereby the SC disqualified a member of parliament for using his position to obtain a loan on favourable terms. The writers suggest that the ruling was inspired by Islamic law and in line with Article 2(A) of the constitution. However, if the constitution has a separate existing provision about the abuse of power and it is already in conformity with Islamic ethos, why is there a need to stamp every ruling with a moral seal? This then automatically renders the core constitution as an inadequate moral precept. The proposal seems to be: let's just 'add Islam and stir' for a recipe that will cure all ailments.

More importantly, if the judiciary is to be guided exclusively by the Islamic law and the said member of parliament was a non-Muslim, what would the ruling have implied then in terms of equality before the law? One doesn't even bother to wonder what the implications of the current NRO ruling would be if the president of the country was a non-Muslim. The broader question is: can infusing law with Islamic references really provide a neutral ground? Can individuals be judged for their actions, and not according to variables, such as one's pre-destined status, interpretations of shariah, or with reference to hierarchies and scheme of history? Also, it is a natural conclusion that if Islamic jurisprudence is more egalitarian than universal or modern laws, then it is not just the judiciary that needs to be purged of secular influences. Indeed, according to this logic, the executive has to legislate not by avoiding injunctions against Islam, but by actively and exclusively referring to, and remaining within the realm of, Islam.

Of course, by admitting to the inequality of rights of minorities and women in judicial history, the writers would be able to argue (outside of this article) for the reformist orientation of a judiciary and realignment of its current discriminatory attitude towards women and minorities. However, according to their thesis, this would only be possible once the judicial system rejects the standards set by universal secular laws and is completely framed and located within Islamist rights instead. Revivalist scholars consider the existing competing and conflicting forces of the 'western' universal laws as contradictory. They consider modern values as a hurdle towards an all-embracing, pure and, at least amongst Muslim men, equalising possibility of Islamic jurisprudence.

Apart from a concern about the influence of such rulings on lower courts is the anxiety over the mixing of religion within dispute-resolution mechanisms at the community levels. So far, the Anjuman-e-Muslehat and other such processes often include lay people. By definition, the immediate injustices and offences are dealt with in accordance with people's lay opinions and experiential, collective, commonsense of justice. If we begin to impose higher theological arguments and references into such systems, they may just rupture a precarious, yet effective, even egalitarian, process of justice delivery.

Any project that calls for a total alignment of legal processes with religion in Pakistan necessarily requires a cultural and social excavation. Thereby, all rights will be sought and debated and contested only within a religious framework. Clearly, no proponent of this project could possibly argue that there is any single and indisputable legal, social, political or personal view of Islam or its applied form. It is more complicated when we attempt to graft such projects onto the modern nation-state with all its attendant historical baggage. In any case, to dovetail the economy, all financial transactions, a governance system as well as ensuring equal spaces for an already oppressed sector of religious minorities and women in this Islamic state will be a serious challenge. There is also the thorny issue of Islamic punishments and the form of execution.

Revivalist scholars are usually diasporic and imagine such utopias while seated at academic ivory towers in the west and often in reaction to Islamophobia. Such projects, which entail a re-invention of history and are extremely political in nature, beg the question of ownership – who will guide this process? In a democratic system, it has to be parliament. Unless the attendant issues are addressed, it is an unhelpful exercise to construct the binaries that the writers have done by setting up western and Islamic justice as exclusionary or indeed competing categories.



The writer is an independent researcher based in Karachi. Email: afiyaszia@yahoo.com