The art of the possible

Two weeks ago, I presented an argument that the liberals of Pakistan should be grateful for the Shariat Court. My argument rested on the following two points: (a) the FSC hasn’t actually done anything significant; and (b) the FSC serves as a useful dead end for Islamic causes.

My column produced an eloquent response titled ‘An act of appeasement?’ from fellow lawyer Salman Akram Raja. He conceded that “For the Islamist … the Federal Shariat Court is indeed largely Mr Naqvi’s talk shop.” However, he argued further that “the Islamist is not appeased”. Finally, he argued that given the fundamentally different ideas of the creator of the Shariat courts, liberals had no cause to be grateful for the FSC.

Salman’s article in turn spawned an outbreak of loathing for the FSC on Twitter. Another learned friend went further and accused me of praising Zia’s legacy and of mocking democracy.

With great respect, Salman’s primary criticism is misguided: I never argued that the FSC was “intended” to function as an act of appeasement. Instead, I clearly indicated that the FSC was intended by General Zia to Islamise the legal system in an anti-democratic manner. Furthermore, my primary point was that, notwithstanding its ‘intended use’, the FSC has – in practice – not done a whole lot worth complaining about. The contention that the Islamist has not been appeased by the FSC only buttresses my contention that the FSC has been largely irrelevant.

Let me add further that those learned friends who accuse me of praising General Zia need to distinguish between praise of what General Zia intended to accomplish (the wholesale Islamisation of the constitution) and an appreciation of how the FSC has actually functioned (ie, as a convenient dead end in which inconvenient Islamic issues can be left to moulder).

Several commentators, Salman included, have referred to the Qizilbash Waqf case (in which land reform was declared unIslamic) as an example of the malign influence of the FSC. However, I read that case not as an Islamist intervention in Pakistan’s legal discourse so much as an elitist response to land reform conveniently packaged in Islamic garb to negate popular discontent. In any event, it may also be recalled that some of us are not leftists and do not mourn the death of land reform in Pakistan.

The real issue, so far as I can see, is the validity of my counterfactual – ie, that things would have been worse without the Shariat Court. As my friend and colleague Nasar Ahmed put it, where’s the evidence?

Let me first concede that my evidence is mostly speculative. Indeed, given that I am comparing today’s reality with an alternative that never happened, it can hardly be otherwise. Having said that, let me present my case in more detail.

First, it needs to be recalled that the Shariat Court was preceded by an attempt by various judges, particularly Justice Afzal Zullah, to replace common law principles of equity with Islamic principles of equity. Subsequently, Justice Zullah was elevated to the Supreme Court where he eventually became the chief justice and made multiple attempts to integrate his earlier judgements into the jurisprudence of the apex court. In some judgements, he actually succeeded. For example, the Supreme Court held in CIT v Siemens, PLD 1991 SC 368 that till such time that existing statutes were not brought into conformity with the injunctions of Islam, their interpretation, application and enforcement would be as per Islamic philosophy, its common law and jurisprudence.

In my view, the strict segregation between the Shariat Court and the regular judiciary helped the more liberal members of the judiciary keep the Zullah approach in check. For example, the Supreme Court specifically noted in the Kaneez Fatima judgement that bringing existing laws into conformity with Islam was to be accomplished via the Shariat Court, not the ordinary courts. I have not conducted a detailed study but my impression remains that a similar argument was then consistently used by the superior courts. In any event, basic common sense suggests it is easier for judges to deflect awkward petitions towards an alternate forum than to take the responsibility of explaining to a passionate advocate why his grand plans for Islamising Pakistan may not accord with the Constitution.

Even in the abstract, dividing the power of judicial review from the power to declare a law unIslamic makes sense from a basic separation of powers perspective. In other words, declaring a law unIslamic currently requires the concurrence of both the Shariat Court and the Supreme Court. By comparison, any single judge of the high court can declare any law to be unconstitutional. As a legal conservative, I would rather that the power to declare laws unIslamic did not exist. But if it is to exist, I would rather it was as hedged as possible.

Second, I remain extremely sceptical about the ability of our judiciary to withstand illiberal pressure when expressed in religious terms. To give one specific example, I assisted the attorney general for Pakistan in both the Hisba cases. For those who don’t remember, the Hisba bill was the brainchild of the MMA government in the (then) NWFP and sought to introduce a system of moral policing to be enforced by government-employed mullahs.

The first attempt to introduce such a law in 2005 was challenged by the federal government in the Supreme Court which struck down the bill on the grounds that it violated fundamental rights. The Frontier Assembly was not easily deterred though and passed another bill after making a few cosmetic changes. Once again, the federal government went to the Supreme Court. This time, however, there was a new member of the bench and he not only saw nothing wrong about the coercive implementation of Islamic virtues but loudly announced this fact. None of the other judges dared to confront him. In fact, but for Justice Sardar Raza (currently the chief election commissioner), the revised bill would have been upheld in its entirety. Had it not been for the fact that the MMA government became distracted by internal divides, Khyber Pakhtunkhwa would have been stuck with the consequences even today.

Third, those who celebrate the ability of our Supreme Court to confront dangerous issues like the conviction of Mumtaz Qadri need to also remember that the roots of constitutionalism in Pakistan are shallow. When Salmaan Taseer was murdered, government-affiliated clerics refused to lead the prayers for his prayers. When Sherry Rehman proposed amendments to the blasphemy laws, she had to flee the country. And the law advisor to the PPP government then had to prove his populist credentials by proclaiming that he was personally willing to kill blasphemers.

I understand that in an ideal world, the superior judiciary would deal with all arguments, both Islamic and secular. I understand that in an ideal world, judges would write sensitive judgements fusing progressive ideals with an enlightened understanding of Islamic history and jurisprudence. But we don’t live in an ideal world. If the regular judiciary was entitled to rewrite our legal structure on the basis of Islamic law, we could wind up with a much better legal universe. But we could also wind up with one which is a lot worse. Forgive me if I don’t want to take that chance.

There is another old saying that politics is the art of the possible. Pakistan is a country of almost 200 million people, very few of whom are ‘roshan khayal’. In the ideal world of the Pakistani liberal, General Zia would never have happened, Islamisation would never have happened and land reform would never have been struck down. Unfortunately, we don’t live in an ideal world. General Zia did happen and we are stuck with his legacies. To the extent that any of those legacies have proven useful, the liberals of Pakistan need to get over their scruples and learn not to look a gift horse in the mouth.

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

Twitter: @laalshah