Gratitude for bigotry?

Legal eye

The writer is a lawyer based in
Islamabad.

There has been a thoughtful and eloquent exchange between Feisal Naqvi, Salman Raja and Afiya Shehrbano over the last few weeks regarding the Federal Shariat Court’s utility from a ‘liberal’ perspective. Feisal has argued that the FSC serves as a “useful dead end for Islamic causes”. As it does nothing significant it doesn’t damage the liberal cause and hence liberals ought be grateful for it, since without it things could be a lot worse. Salman and Afiya disagree. In appeasing the Mullah, who remains unappeased nevertheless, we are becoming the Mullah.

Feisal’s counsel to liberals (leaving aside its validity or persuasiveness for a moment) to celebrate small mercies like the FSC not being as revolutionary or radical as it could have been is itself manifestation of the damage inflicted on the liberal cause by the Islamisation drive that produced contrivances such as the FSC. More than determining the utility or relevance of the FSC today, this conversation is illustrative of the divide even within our society’s liberal minority over what ought to be the relationship between state and religion.

Let’s start with the FSC. Feisal contradicts himself when he claims that it is true that the Islamist has not being appeased by the FSC, but that only proves his point that the FSC has been irrelevant. Irrespective of the intent behind the FSC’s creation, the claim that it functions as a pressure valve against coercive demands of Islamists to enforce Shariah and transform Pakistan into a caliphate can only be valid if the FSC exerts some influence over the radical Islamist, who is placated by the mere existence of an otherwise ‘irrelevant’ FSC.

The second misconceived argument Feisal makes is that the FSC is a handy ruse for progressive judges loath to further the Islamisation project to throw out cases seeking enforcement of religion. Judges have wide discretion and innumerable legal means to weed out undesirable petitions. A progressive judge doesn’t need to set the FSC up as a defence if disinclined to entertain a petition. The question is: does the FSC prevent judges, who believe in Islamising our jurisprudence further, from injecting personal morality and beliefs into their judicial work?

That it doesn’t. We have judgements replete with moral and religious sermonising rendered by our regular courts, despite the FSC. There are many judges whose moral and religious beliefs play a significant role in discharge of their judicial duties. Their judicial reasoning takes no account of the FSC’s exclusive mandate to take further the Islamisation project. Also, the pressure from the Mullah to coerce courts into subjugating rule of law to their subjective belief-based demands continues despite the FSC, as was most apparent in the Salmaan Taseer case.

There is no basis to argue that the SC bench headed by Justice Khosa would let Mumtaz Qadri go scot-free had there been no FSC. Or conversely that another bench comprising judges with different faith-based proclivities or lack of conviction to do the right thing in the face of grave threats would have rendered a similar decision. But to say that liberals should express gratitude because the FSC is largely irrelevant in shaping our overall jurisprudence is misguided. The FSC might comprise the most rational jurists, as it presently does, but it is still undesirable.

Javed Ahmed Ghamidi has convincingly argued that contemporary religious thought is the root cause of terror as the worldview that seminaries shape, rooted in four assertions, makes peaceful coexistence with the world impossible. These assertions are: (i) that polytheists and apostates anywhere in the world are liable to be killed by believers; (ii) non-Muslims have no right to rule and Muslims have a right to overthrow such rule; (iii) Muslims must all be governed by a single Caliphate; and (iv) individual nation-states, as presently exist, have no room in Islam.

The adherents of such belief system are driving the Islamisation project. Within it are transitionists (to use Ejaz Haider’s term), who believe in Islamising the state and its law and governance system to their liking and then using the state as a vehicle to promote pan-Islamism. The transformationists on the other hand wish to capture the state and enforce Shariah by force. The worldview of both is similar. The disagreement is over the preferred means to achieve their desired end. For the transformationist, the irrelevance of the FSC and CII is proof that his approach is better.

The transitionists have used the threat posed by transformationists to bargain with liberals and centrists to introduce measures such as the FSC and CII to ward off the radical Islamist. The centrists and some liberals bought the argument. How can artificial constructs such as states have a religion? But our constitution says ours does, so that Islamists are appeased. How can a liberal concede that the state can interfere with something as personal as one’s belief system? But we have even allowed the state to declare who is a Muslim and who isn’t.

How can a liberal concede that a handful of jurists ought to have the mandate to rule that a law created through democratic due process in a state comprising 96 percent Muslims is un-Islamic and consequently un-constitutional? The situation is particularly odious for liberals and centrists for they recognise the authority claimed by the constitution and vested by it in institutions such as the FSC. Islamists, both transitionists and transformationists, don’t yield to the legal or moral authority claimed by the FSC (or CII), unless the content of their rulings is to their liking.

When the FSC or CII say something sensible, the Islamist rejects it. But the centrists and liberals feel bound by whatever they say. A compromised liberal with a Machiavellian mindset could consider gratitude if FSC/CIIs milder approach controlled Islamist narrative. What we witness today are extremist Isis, TTPs, LeJs, JuDs controlling the narrative, the transitionists moving further right to not be rendered completely irrelevant, and centrists and compromised liberals moving along ceding further space to transitionists out of fear of radicals.

Those advising liberals to consider gratitude for individual cogs of the Islamisation project must understand that as it stands today this project is a one-way descent into intolerance and bigotry. You can create an FSC or a CII and even if all it does is bind the centrist and the liberal (and not the Islamist who thinks it is too little or the radical who wants to kill all schoolchildren who might grow up to be rational tolerant beings) you still cannot undo it. Debates over our misused blasphemy law, Hudood laws, and recently over the CII’s utility in the Senate are examples.

One has to admit that Pakistan, as it stands today, is an example of the complete failure of the liberal to shape the national narrative. The question is not whether liberals are right or wrong, but rather: what is the scorecard of those who do believe in the liberal cause? In the belief that the Islamist will become milder if appeased, the liberal has forsaken his own cause. While the Islamist has become radical, the liberal has become a hypocrite. And the hypocrisy is motivated by the mistaken belief that it will help pre-empt the Islamist’s demand for another pound of flesh.

In voting for prohibition, in declaring Ahmadis non-Muslim, in stamping the state with a belief and allowing it to become enforcer of religion as opposed to facilitator, and in opting for hypocrisy as a considered device to seem agreeable to the Islamist, the liberal has abandoned his cause. With the rise of this pragmatic liberal, the starting point for any negotiation with the Islamist is not a liberal but a centrist position and any settlement is by default in the zone between the centre and extreme right. Is the rightward drift of the polity surprising?

Email: sattar@post.harvard.edu