Monday June 27, 2022

The curious case of the Shariat Court

January 10, 2016

For most liberals, the Shariat Court is an abomination – a blot on the constitution, the poisonous legacy of an evil regime. But is it really such a bad thing? At least in my view, liberals should be grateful for the Shariat Court, not resentful.

Let me unpack my thesis first by explaining what I mean by the term ‘liberal’. In this specific case, I am referring to people who believe that religion should play a limited role in politics, preferably nil. Or what our friends across the border now call ‘sickulars’.

The Shariat Court, for all those who haven’t studied the Pakistani constitution, is a special court made up of up to eight Muslim judges appointed for one or more terms of three years by the president of Pakistan in the same manner as judges of the high court (which is to say that they are appointed on the recommendation of the Judicial Commission).

The Shariat Court deals with two types of cases. In the first instance, the Shariat Court has the exclusive jurisdiction to determine whether or not any law is repugnant to the injunctions of Islam. Secondly, the Shariat Court hears appeals related to criminal cases decided under the various Hudoood laws (ie, dealing with drugs, fornication, adultery and other deadly sins).

Liberals detest the Shariat Court because it is a lasting symbol of General Zia’s attempt to Islamise Pakistan. From the liberal perspective, the introduction of the Objectives Resolution was a betrayal of the promise by the Quaid-e-Azam in his famous speech on August 13, 1947 that non-Muslims were free to go their temples and that after the establishment of Pakistan, there would be no distinction in practice between Muslims and non-Muslims. The introduction of the Hudood Ordinances and the creation of the Shariat Court thus symbolise to the secular Pakistani everything that was wrong with the Zia years. More generally, liberals oppose the Shariat Court because they see it as a counter-majoritarian and anti-democratic institution, one that privileges a particular religion and, more specifically, gives preference to conservative and fundamentalist visions of Islam.

But, again, is this hatred for the Shariat Court really justified? I say this because, at least so far as I can see, the Shariat Court functions as a fire-break, a safety valve where Islamist ideas go to die. If the Shariat Court did not exist, the support that exists for Islamic law in Pakistan would probably have to be accommodated in far more extensive ways. And so I repeat, liberals should be grateful for the Shariat Court, not resentful of its existence.

Take, for example, the case of Mumtaz Qadri. In purely legal terms, there is nothing to discuss in the case. Mumtaz Qadri murdered Salmaan Taseer and proudly claimed responsibility for his actions. And yet, when Qadri was taken to court, he was showered with rose petals by hundreds of lawyers. Mosques have since been named after him and politicians, including some very highly placed individuals, are rumoured to spend hours singing hosannas of praise for Qadri. That is because while the case may have been legally simple, it was also political dynamite. Even our fearless anchors tiptoed gingerly around the merits of the Qadri case. And the Islamabad High Court convinced no one when it upheld the death sentence given to Qadri but struck down the applicability of the Anti-Terrorist Act.

The Supreme Court, on the other hand, simply cut through this Gordian knot of law and politics by declaring loudly that it had no jurisdiction to deal with issues of Islamic law. Take your religious concerns to the Shariat Court, was the response of Justice Khosa, this court will only deal with law. And then the Supreme Court proceeded to shred all the legal arguments presented to it by Qadri’s counsels.

What needs to be recognised now is that Zia’s attempts to Islamise the jurisprudence of Pakistan not only failed to remake the legal system as it then existed but that the system is now stronger than ever. In a way, the Zia years acted as an inoculation against further radicalism, the same way that a cowpox infection prevents smallpox.

Let’s take the major Zia interventions one by one.

First up is the introduction of Article 2A into the constitution. For those who don’t know, Article 2A states that the Objectives Resolution shall be made a “substantive part of the Constitution”. The reason it was made a ‘substantive part’ of the constitution is because an earlier attempt to give overriding effect to Islamic law had been rejected by the Supreme Court precisely on the basis that the Objectives Resolution was not a substantive part of the constitution.

But what came of Article 2A? Short answer: nothing.

In 1993, the Supreme Court looked at Article 2A in the Kaniz Fatima case and held that the Objectives Resolution could not be given substantive effect because that would rewrite the entire constitution and obviously that could not have been the intent of General Zia (who was now conveniently dead and no longer around to argue).

What about the Shariat Court? Well, I’ve been practising as a lawyer in Pakistan for twenty years now and I can’t think of any issue on which the Shariat Court has had a significant impact. You see, even if the Shariat Court does come up with some earth-shattering opinion, that judgement will most likely get suspended by the Shariat Appellate Bench (ie the Supreme Court wearing an Islamic hat). Danger only arises if both the Shariat Court and the Supreme Court go off the deep end.

The last time that confluence happened was in 1999 when the Shariat Appellate Bench gave a mega-judgement on why all forms of interest constituted riba. As it so happened, the relevant members of the bench were then PCOd by General Musharraf and a different bench of the Supreme Court then reversed course and remanded the matter back down to the Shariat Court (which of course has done nothing in the 14 years since).

But is pushing our tricky questions into constitutional dead ends such a good strategy? Would it not be better if lots of enlightened people got together and figured out how to make Islam work in the modern world?

My problem with this theory is precisely that it is long on theory and short on evidence. So far as I have been able to tell, there is a very small supply of enlightened Muslims and a very large supply of unenlightened Muslims. More importantly, the social credibility of the enlightened portion of the Ummah seems to run a very distant second to fire-breathing idiots who demand that we should stone sinners to death.

I understand that what I am supporting is essentially anti-democratic, that my argument can just as well be used to argue that the people of Pakistan are too dumb to be trusted with the vote and that we should immediately shift to some sort of enlightened dictatorship.

So be it. To begin with, the constitution does not provide for a pure democracy. Instead, the first substantive sentence of the constitution says in very blunt terms that “Pakistan shall be a Federal Republic.” And in a republic, power vests in the elected representatives of the people, not the people themselves.

I get the alternate argument that we need to trust the people of Pakistan to get it right, that in the long run they will sort out the charlatans from the genuine leaders. But to quote Keynes, “In the long run we are all dead.”

Long live the Republic.

The writer is an advocate of the Supreme Court of Pakistan.

Twitter: @laalshah