By Babar Ayaz
Disregarding the people’s plight and rising terrorism in Pakistan the judicature of and parliament and executive are immersed in the destablising power struggle in the country. Every morning all wary-eyes are set on the majestic building of the Supreme Court of Pakistan, every evening wearier-eyes and ears are turned to its neighbour President House on the Constitution Avenue.
Both want more constitutional space on the politics of Pakistan. In a well-entrenched democratic dispensation, this struggle for power is the normal part of the evolutionary democratic process. In Pakistan where internal insurgency, external pressures, economic sluggishness have already bruised the people badly, this squabbling for power between institutions is the last thing people want. There are many who feel the ouster of a prime minister established that no one is above the law. The gullible may believe it but the people are more concerned about real issues like political stability and economic development than the legal intricacies and complicated interpretation of laws.
This week will also be consumed by the “Kiyunki Sas bhi Kabhi Bahu thi” soap. For assigning the roles let your imagination free. Will the courts show restrain this time and not chuck out the new sacrificial lamb – Raja Pervez Ashraf – is the matter where bookies have opened rates. The wiser ones who go by logic of the dialectics find it hard to bet on Raja. But one thing is clear that on a most crucial case which is regarding the number of petitions filed to challenge the recent contempt law passed hurriedly by the government, there are no takers of straight bets, as the speculated decision is conclusive. Why, is the most important question? It is openly a case limiting the powers of the judiciary. And history is witness that the number of cases where an institution is given an opportunity to make or interpret laws regarding its power domain, it has expanded the expanse of its power not reduced it.
It is not only the issue of jurisprudence in such cases. Interpretations have been subjective whether the issue is legal or attached to the religious interpretation of the Holy Qur’an or the tradition. Just to refresh your memory take a snapshot of the Islamic jurisprudence evolution. We have five major ‘Fiqahs’ that rule the Islamic jurisprudence and are accepted by the Muslims of the world. One Quran and a number of traditions (Shari’a) and Hadiths, have been interpreted by Imam Abu Hanifah (80-150 AH), Imam Mali bin Aas (94-179 AH), Imam Ash Shafi (150-204 AH), Imam Ahmad ibn Hanbal (164-204 AH) and Imam Jafaru ‘s Sadiq (80-148 AH). Although some of them had teacher pupil relations they disagreed with each other. (The schism created by these different interpretations has divided the Muslims into a number of sects, who at time settle their ideological scores violently. But to be fair with Islam this is what happened to all regions and even scientific social and political ideologies with the passage of time). The rulers took full advantage of this disagreement. For instance in the case of the firebrand Sufi Mansur al-Hallaj “[t]he twojudges called upon to consider the case had both found the opinion itself to be heretical, but had disagreed over the legal consequences that flowed from Al-Hallaj’s ownership of the document. One of them, a Hanafite, had ruled that the mystic could escape punishment by disowning any belief in the heresy. But the second, a Malikite had found him to be incapable of sincere repentance (a la’ Rushdie apology) and liable to execution.” The Caliph al-Muqtadir’s Wazir used the Malikite interpretation thus the man who became the symbol of speaking truth in our religious folk lore was done with.
Similar problem exists with our constitution which gives too much space to the interpreters of this written document which is almost 40 years old. But in the case of religious tradition the first interpretation came almost 100 years after the oral scriptural and traditional history. This is the time when the constitution exists as a fresh and dynamic document as it would be seen when amendments of fundamental natures were made. And yet even the most clearly written clauses are being called to interpretation by the courts, but so far the cunning and clever government has not fallen in that trap.
In modern times we have seen how clergy out-witted all sections of the society which took part in the revolution of democratic Iran in 1979. The Iranian Constitution provides for an institution of the “Religious Guardianship (Velayat Faqiye).” This “Guardianship of the Just Man of Religious Law (Fiqiyeh-e-Adl) is on “the basis of the continuous Guardianship and leadership (Imamate) …under all conditions…” According to my limited knowledge there is no precedent of such an institution in the Muslim states’ history. ‘Religious Guardian’ and his council have a right to disqualify many potential candidates from contesting the election of Iranian parliament as they do not consider them pious and religious enough to be elected by the people. Thus decision is not left to the people but is made by a small coterie of clergy.
What reminds me of this institution is the recent decision on NRO. It has referred to some clauses of the constitution which has raised alarm-bells. General Zia ul Haq, who considered himself a kind of religious guardian of the country, added some disputable clauses to Article 62 & 63 of the 1973 constitution of Pakistan. These clauses of article 62 say that “A person shall not be qualified to be elected or chosen as a member of Majlis-e-Shoora (Parliament) unless:
62 (d) “he is of good character and is not commonly known as one who violates Islamic injunctions;
62 (e) “he has adequate knowledge of Islamic teachings and practices obligatory duties prescribed by Islam as well as abstains from major sins;
62 (f) “he is sagacious, righteous and non-profligate and honest and ameen; (Italics is mine)
Article 63(g) which many PPP say was used for the ‘judicial coup’ against an elected prime minister.
Until the judgement of the Honourable Supreme Court these clauses of the constitution had remained as dormant. Nobody has sought disqualification of any member of the parliament, the president and the prime minister by invoking these clauses. Now when these clauses are being invoked will the superior judiciary acquire the role of “religious guardian” a la Iran? Who else would make a decision on such subjective issues whether a member of parliament (or for that matter the President who is the bull’s eye here) “does not violate Islamic injunctions, has adequate knowledge of Islamic teachings, abstains from major sins and is honest and ameen.”
One view is that the superior judiciary should not be blamed for referring to what is in the constitution. I had asked a member of the Raza Rabbani Constitution Amendment Committee when the 18th Amendment was being knocked-together whether deletion of these clauses is on the agenda? He said we have bigger issues to discuss and nobody is interested in including these clauses. The point is that the court has heavily relied on Islamic clauses and the leading parties are in no mood to reform the constitution. While the PML (N) is right-of-the-center, the PPP has always tried to appease the Mullah unsuccessfully. Only ANP and MQM, who are in the parliament, are clear on the issue of separating religion from politics.
The whole issue is ultimately attached to taking out the objective resolution and other religious clauses out of the constitution. Leading Advocate of Supreme Court Abrar Hasan has warned in his paper on The Supreme Court, The basic Structure Doctrine and the Objective Resolution that “if the Quran and Sunnah are assumed to be the instruments of delegation through which the Almighty has delegated His sovereignty to the Assemblies elected by the people, as provided in the constitution, no law can be framed against Quran and Sunnah, how then one adjust for that fact that laws always face the challenge of social changes which require them to be adaptable… These important questions have always been subject to much thinking and re-thinking for our judges. ..Objective Resolution was made a substantive part of the constitution…and was inserted into the constitution as Article 2A…This led to the judicial anarchy because every judge had his own perception of Islam.”
Many analysts and rightist politicians scoff at the idea of a secular state. They have failed to understand that mixing of religion with politics has brought us today to the most violent juncture of history. It gives enough space to the fundamentalists to operate with impunity in the country. Because we mix religion with politics we have not even deliberated seriously on the dangerous implications of this approach on our national security policy, on our relations with our neighbours, on our education system and on countering the ideology of pro-jihad forces. (email@example.com)
 Heaven on Earth – A Journey Through Shari’a Law by Sadakat Kadri (P-218)
2 Law in the World of Change – selected Essays in the Memory of Justice Sabihuddin Ahmed published by Pakistan Law House (P-223)