Today’s guest post is by Ali Eteraz. Eteraz was an Outstanding Scholar at the U.S. Department of Justice and later worked in corporate litigation in Manhattan. He is a contributor to Pakistan’s Daily Times and Dawn newspapers and the author of the forthcoming prose work, Children of Dust. This article was originally published in Dissent Magazine and posted here with the author’s permission.
A recent sharia-for-peace deal between militant groups and the civilian government in Pakistan’s quasi-autonomous Swat region has ignited interest in the status of Islamic law in Pakistan. The U.S. State Department, concerned about terrorist safe-havens, called the deal a “negative development.” Meanwhile, Fareed Zakaria of Newsweek, trying to look at the bright side of things, argued that the deal might drive a wedge between “violent” radicals and those that are “merely extreme.”
Both of these views, rooted in the “war on terror” frame of thinking, diagnose Pakistan’s relationship with Islam incorrectly. The real issue in Pakistan is not that from time to time a group of militants, while demanding the implementation of sharia, begins attacking civilians. This, while deplorable and painful, is a consequence of Pakistan’s constitution. The essential problem in Pakistan is its flawed constitutional framework, which forces every citizen to refer to their idiosyncratic and personal views on life through the lens of “Islam.” Such a state of affairs has the effect of concealing every political, material and economic demand behind theological verbiage, and that situation ultimately favors religious hard-liners and militants who are willing to use violence.
Pakistan will not be rid of such religion-based conflict until it addresses the problem of its 1973 Constitution. That document’s constitutional Islamization engenders a cultural competition over who controls Islam—a conflict which, thanks to the Soviet war in Afghanistan and then 9/11, has become politicized, militarized, and weaponized.
Most people in the world, including some Pakistanis, live under the illusion that the country is secular and just happens to have been overrun by extremists. This is false. Pakistan became an Islamic state in 1973 when the new constitution made Islam the state religion. Under the earlier 1956 constitution Islam had been merely the “official” religion. Nineteen-seventy-three, in other words, represents Pakistan’s “Iran moment“—when the government made itself beholden to religious law. Most western observers missed the radical change because the leader of Pakistan at the time was Zulfikar Ali Bhutto, a whiskey-drinking, pseudo-socialist from a Westernized family. Those that did notice the transformation ignored it because the country was reeling from a massive military defeat in 1971, which led to half the nation becoming Bangladesh.
Under a section entitled “Islamic provisions,” the ‘73 constitution proposed a Council of Islamic Ideology (CII), a board of anywhere from eight to twenty religious scholars, who were to represent a cross section of Islam. The Council’s role would be to advise legislative bodies as to whether the laws under consideration were in conformity with Islam. The CII, incidentally, had an anti-democratic history: it grew out of a 1962 organ called the Islamic Advisory Council which had been created by the military dictator Ayub Khan to pacify the religious parties.
Chapter 3A of the ‘73 constitution, inserted in 1980, also gave the government the authority to create a Federal Shariat Court, which was a parallel system that would adjudicate matters on the basis of Islamic Law and only permit Muslim judges. The FSC could—on its own motion or upon a petition of any citizen of Pakistan—“decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet.”
Under the constitution, the FSC’s rulings were binding on every court except the Supreme Court. At first blush this would suggest a neutral oversight mechanism, except that appeals from the FSC did not go to the full bench. Instead, there was to be a special appellate division within the Supreme Court, composed of two ulama, or religious scholars, and three judges, all of whom had to be Muslim.
The Islamization of the ‘73 constitution, in other words, had two parts: the CII existed at the front end of legislation while the FSC monitored.
Bhutto’s Islamization, however, was cynical rather than sincere. He cared not so much about empowering the Islamists as about appropriating their agenda—which allowed him to represent Pakistan favorably to the Arab monarchies from whom he wanted economic assistance. It was for this reason that he sent his minister, Ghulam Mustafa Khar, to bring Jamat-e-Islami’s Maulana Maudoodi on board in support of the constitution, and also why he went so far as to call his distributionist domestic platform by the name of “Islamic Socialism.” This term was significant not because of the policies it represented—centralization and government control of major industries—but because it signaled that in Pakistan all future political agendas would be coated in religious garb.
Even though Bhutto did not actually erect the institutions in the constitution, the open affirmation of a religious approach led Pakistan’s Islamists, primarily those of the Jamat-e-Islami party, to grow insistent. They immediately demanded that Bhutto officially declare the ahmadiyya sect to be non-Muslim. The prime minister had no choice but to follow his own matrix to its logical conclusion, and in 1974, he engaged in what became, in the nation-state era, the first act of collective excommunication in the Muslim world. No postcolonial Muslim state had previously thrown people that self-identified as Muslim officially out of the religion. Contrast this with India, where under a 1971 court case, the ahmadiyya were allowed to refer to themselves as Muslim, even as the vast majority of Muslims were not obligated to acknowledge them as such.
Almost as if to prove that the 1973 constitution encouraged a leader to flout the rule of law—and get away with it by calling it “Islam“—in 1977 a general by the name of Zia ul Haq engineered a coup and hanged Bhutto. To legitimize his rule, Zia affiliated his government with an old theological term known as “Nizam-e-Mustafa“—the “Way of Muhammad.”
The Islamists, ever principled, cheered Bhutto’s hanging and declared Zia their savior.
Pakistan’s Papal Dictator
Zia created the religious institutions for which Bhutto left the blueprints. Seventeen Islamic scholars were appointed to the Council of Islamic Ideology in 1977, commissioned with producing a report about Islamizing the country. The group represented a who’s who of traditional religious scholarship, but just to make sure that the Council didn’t come up with an interpretation of Islam that undermined Zia’s dictatorship, a consultant named Ma’ruf al-Dawalibi was brought in. He was the former prime minister of Syria and a wahhabi who was president of the World Muslim League and an advisor to the king of Saudi Arabia.
Not surprisingly, the report that the council released was all about the hudud punishments, which included flogging, whipping, amputations and stoning. Legislation based on the council’s report, called the Hudood Ordinances, was promulgated in early 1979 and introduced an era of legal miasma, especially in the arena of rape, adultery, and the crime of premarital sex. The punishment for a man who engaged in fornication was the same as that of an unmarried man who committed rape (100 lashes); meanwhile, a married woman who was victimized by rape could also be accused of adultery, which was a capital crime.
Though one notable scholar, Charles Kennedy, has argued that the ordinances, at least in the eighties, were never truly actualized, the existence of these rules on the books was sufficient to move the cultural barometer towards harsher readings of Islam. Many traditionally trained Islamic scholars complained that Zia’s reading of sharia was un-Islamic, but given that they were not in the executive branch, their concerns were overruled.
The ordinances expanded in the mid-eighties and included the fearsome blasphemy law, which was punishable by death and was used to target those that dissented against Zia ul Haq.
Along with imposing the Hudood Ordinance in 1979, Zia also formally established the Federal Shariat Court that he created in 1980. People began to bring all sorts of cases, asking the court about the Islamicity of laws: whether, for example, pictures on the national identity card were a form of idolatry and whether Islam allowed interpreting the amputation punishment mentioned in the Quran in a mercifully metaphorical manner (the court ruled no to both). If Zia ever disagreed with a ruling, such as when the court tried to limit the application of the stoning penalty in 1980, he simply strong-armed the judges into changing their views. Why not? Zia was more or less Pakistan’s pope.
Unlike a papacy, which has a mechanism for dealing with the loss of a pontiff, the sudden death of Zia ul Haq in 1988 meant that Islam in Pakistan became adrift. The ideal would have been for the newly elected Prime Minister Benazir Bhutto to repeal all of Zia’s religious legislation. But she abstained and the Hudood Ordinances, and the Shariat Court remained in place. Thus, despite his demise, Zia ul Haq’s religious understanding became normative in Pakistan’s legal system.
Secular Pakistanis complained, but they had become politically irrelevant. The battle in the country was no longer defined as one between secularists and Islamists but between reformist Muslims, conservative Muslims and ultra hard-line Muslims. In a sense, everyone had to couch their positions in religious terms. Obviously, such a state of affairs marginalized anyone who was not a Muslim or who, like the ahmadiyya, was not allowed to be.
Islam in Pakistan had become merely an extension of politics. In 1998, when then Prime Minister Nawaz Sharif became unpopular, he started drawing up legislation to have himself declared “Amir ul Momineen”—a historical title that was once applied to the Caliph.
The System Sinks In
Over the 1970s and 1980s, Pakistan’s marginalized people also learned how to put Islam to political use.
In 1994, the poor locals of the quasi-autonomous Swat region, languishing in a broken colonial-era legal scheme, agitated for a more efficient system called “Sharia Nizam e Adl.” This system, being local and cultural in origin and mostly the construction of a man named Sufi Mohammad, had very little in common with the sharia that exists in the classical books of Islamic Law. But the Swatis figured that appealing to Islam would work, because, after all, everyone else did the same when they wanted their material concerns addressed. They turned out to be right. Benazir Bhutto’s government quickly consented.
Around this time, the same thing happened with the poor Pashtun people in the Federally Administered Tribal Area. Long excluded from the political center, not allowed to organize into political parties, and never given developmental assistance, many of them linked up with a post Afghan-war group called the Taliban who, under the banner of “Islam” or sharia, were promising law and order and representation.
A more recent manifestation of an alienated group of Pakistanis invoking Islam in order to call attention to economic and social injustices occurred during the 2006 Red Mosque fiasco in Islamabad. A pair of former government ministers—representing a swath of exceedingly poor people who had no access to public schools and who were fed up with their relationship to the state—launched an anti-government revolt under a hard-line version of Islam. The Red Mosque incident clearly showed that the idea of referring to one’s grievances through the lens of “Islam” had thoroughly seeped into the very core of Pakistani society.
New Pope—New Rules
With General Musharraf’s coup in 1999 the state of Islam in Pakistan entered a new phase. Because he was a liberal, he appointed religious progressives to the CII and promoted reformers to the bench of the Federal Shariat Court. The changes were instantaneous.
In 2002, the Council released a report suggesting that it was turning against the Hudood Ordinances, at least in the area of sex crimes, and in 2005 declared them patently un-Islamic. The group also argued that there should be no distinction between male, female, or non-Muslim testimony and non-Muslim judges could adjudicate any type of case.
This reformist impulse also found its way to the Federal Shariat Court. In a recent decision, a full bench composed of Musharraf appointees held that a law which allowed a rapist to be exonerated if he could prove the victim was of “generally immoral character” was discriminatory on the basis of gender and against the constitution. The court even ordered Pakistan President Asif Ali Zardari to repeal the law and added that even if he failed to repeal, the law would expire in six months. In the written opinion, the court essentially accused the framers of the ordinance, the minions of Zia ul Haq, of gross stupidity, asking, “what tide of wisdom had prevailed upon the lawmakers” that approved the legislation. The same bench also handed down another egalitarian ruling, holding that it was not against Islam for foreign men to acquire Pakistani citizenship by marriage to Pakistani women.
Interestingly, many of the new rulings contain references to the Universal Declaration of Human Rights and the judges have justified consistency with international law by appealing to the Islamic principle of upholding treaties.
The rise of the reformists, however, is only an illusory victory because once all the Musharraf appointees retire it will be up to President Zardari to appoint new judges. One can only imagine the people he will promote, given that his cabinet contains one minister who is not opposed to honor killings against women and another who is against female education.
The Status Quo
What is happening with the widespread religious militancy in Pakistan today is that the political and feudal elite like Zulfiqar Ali Bhutto, who initially were beneficiaries of manipulating the Islamic character of Pakistan, have lost control of “Islam” to a much broader class of people. These out-of-power groups, after decades of alienation, want to have control in the political system and are attempting to acquire it by defining Islam, which is an amorphous idea, in a way they deem most suitable. Every day the abstract cry of sharia becomes a means of political agitation. Every day people organize into new movements around the declaration.
This is precisely what happened in Swat last month. A quasi-autonomous region with bankrupt judges and ineffectual police force found a way to address its needs by telling the government it wanted sharia.
Adding to the trouble today is the fact that Pakistan has attracted a cornocupia of international terrorists who cry havoc every time the government is put in a position of rejecting someone‘s—anyone’s—demand for Islamic Law. Many of these terrorists have infiltrated, if not completely, taken over the country’s social justice movements.
Zardari’s government is pursuing the only solution that it can think of: segregate and sever the various sharia invoking movements by playing one against the other. Under this approach, Pakistan strikes deals with various groups to limit them to certain regions in exchange for a cessation to violence—an approach that simply emboldens the militants.
Until Pakistan is recognized not as a secular state with an extremist problem but as an Islamic state overburdened with political ambitions couched in religious terms, change is not going to come. Pakistan’s 1973 constitution has to be criticized. It is not unreasonable for Islam to be the country’s official religion, but making it the state religion in a truly heterogeneous and heterodox religious milieu was a mistake.
The decision was made under duress by a Machiavellian politician who did not care very much for religion, which was why he was so happy to exploit it—not to mention that in the guise of Islam he smuggled in anti-democratic institutions from the dictatorship that preceded him. The subsequent empowerment of Islamist groups; the religious tyranny of Zia ul Haq; and the rise of Talibanization, legal balkanization, and militancy calling itself Islamic are all clear proof that 1973 led Pakistan down a dark and dangerous path.
The irony is that Pakistanis cannot simply ignore the ‘73 constitution and go to an earlier document, largely because one such instrument does not exist and also because, for all its flaws, that constitution has become central to the modern Pakistani state. For example, both dictators that followed Zulfiqar Ali Bhutto—Zia and Musharraf—felt they had to manipulate the ‘73 constitution rather than step outside of it. It is also not possible to delete the nearly four decades of Islamization.
For a long time I believed that rather than deletion the better option was that of dilution. Under this approach, one would add more liberal interpretations of Islamic law into the mix to soften the hard-line wahhabi version that has dominated since Zia ul Haq’s time. Such an approach would use “good” or humane Islam to defeat “bad” or inhumane Islam. The hope would be that over time these moderate views would become mainstream.
The dilution strategy was on display in 2006 when reformers from the CII successfully argued that various elements of Pakistan’s Islamic criminal law were simply “un-Islamic.” At the time I thought this was a great move. By purportedly using Islam to thwart the hard-liners, the reformers were able to pass legislation that undermined the Hudood Ordinances and benefited many women.
I no longer ascribe to the dilution strategy. Not because it does not sometimes work but because it does nothing to challenge the essential flaw in Pakistani society: the state currently empowers citizens on the basis of their relationship to Islam rather than upon their status as “people” of Pakistan—an entity that is national and political and should not be defined by religion. The paramount purpose of a state is to guarantee political equality between its citizens, whether they are devout Muslims, non-practicing Muslims, heretical Muslims, or non-Muslims. The dilution strategy is a pragmatic approach that is unfair to those who are non-believers; not to mention unjust to those conservatives who do not wish to practice Islam progressively. Pakistan needs a document that extends itself to all Pakistanis.
With Pakistan currently caught up with drone attacks and militant strikes there is little agitation for such a document. Yet, this is precisely the key to changing Pakistan’s conflict-laden domestic environment. It is here that Pakistani intellectuals would be well-advised to heed the Muslim political theorist Mohammad Fadel. In a series of essays over the past few years, he has been demonstrating that an “Islamic constitution…to the extent that its coherence requires a sectarian definition of the body politic, would appear to represent a dead end in the long run” (a dead end that Pakistan’s ‘73 constitution has clearly wrought).
Fadel believes that constitutional Islamization of the sort that Pakistan underwent is actually an intermediate phase in the longer project of democratizing Muslim majority societies. He believes that the next step is the erection of a “non-Islamic constitution that religiously committed orthodox Muslims could endorse in good faith.”
While Fadel has not made any explicit proposals with respect to Pakistan there is no shortage of men and women in the country who can take this important project further. The grand bargain that Pakistan needs today requires a neutral constitution that gives full political equality to all.