The NRO judgment has struck down the law also for being violative of Article 62(f), which requires a member of parliament to be, ‘Sagacious, righteous and non-profligate and honest and ameen’. Hence, the bench will now judge the moral standing of parliamentarians on these stringent standards set by the notorious Zia regime. This article of the constitution has always been considered undemocratic and a tool to keep members of parliament insecure.

If parliamentarians, who also go through the rigorous test of contesting elections in the public domain, are to be subjected to such exacting moral standards then the scrutiny of judges should be higher still. After all, judges are selected purely on the value of their integrity and skills. Judges who erred in the past seek understanding on the plea that they subsequently suffered and have made amends. Should others also not be given the same opportunity to turn over a new leaf? How will sagacity and non-profligate behaviour be judged? Another aspect of the judgment By Asma Jahangir Saturday, 19 Dec, 2009 http://www.dawn.com/wps/wcm/connect/dawn-content-library/dawn/the-newspaper/editorial/another-aspect-of-the-judgment-929

عدلیہ دائرہ کار سے تجاوز کر گئی ہے‘
علی سلمان

بی بی سی اردو ڈاٹ کام، لاہور

http://www.bbc.co.uk/urdu/pakistan/2009/12/091219_hrcp_asma_as.shtml
آخری وقت اشاعت: ہفتہ, 19 دسمبر, 2009,
05:25 GMT 10:25 PST

عدلیہ کا کام ارکانِ پارلیمان کی اخلاقیات کی جانچ پڑتال نہیں
پاکستان انسانی حقوق کمشن کی چیئرپرسن عاصمہ جہانگیر نے این آر او کے بارے میں سپریم کورٹ کے فیصلے پر تبصرہ کرتے ہوئے کہا ہے ’عدلیہ اپنے دائرہ کار سے تجاوز کرگئی ہے اوریہ بہت ہی خطرناک بات ہوگی کہ سپریم کورٹ اراکین پارلیمان کی اخلاقیات پر فیصلے دے۔‘

As per Islamic Law “Growing Beard” is compulsory and SEVERAL MEMBERS OF THAT NRO BENCH and other Islamic Type of CIVIL SOCIETY MEMBERS are clean shave rather they have Moustaches and that too of a kind which is Unlawful in Islam [I mean moustaches beyond your upper lips]. Moral Brigade should define the “Absence of Beard” in the light of Quran and Sunnah from the faces of the Members of Judiciary in view of their own set standards in the decision against NRO.

“quote”

Second, the short order found the NRO to be against Quran and Sunnah as it held the ordinance violative of Article 227, which says that all existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah and no law shall be enacted which is repugnant to such injunctions. Dubious MPs to face the axe Thursday, December 17, 2009 http://www.thenews.com.pk/print3.asp?id=26131

“unquote”

What would be criteria of Piety, Morality and Character if it is defined by Judiciary? For Example, growing Beard is part of Sunnah and most of the MNA/SENATORS/JUDGES dont have beard so who will decide about the Criteria of Piety since Quran and Sunnah is exploited by the Judiciary to condemn NRO. Moral Brigade in Judiciary should start following this in the light of Sunnah which they have exploited to condemn the NRO.

As per Islamic Law “Growing Beard” is compulsory and Justice Javed Iqbal or even CJ and other Islamic Type of Judges are clean shave rather they have Moustaches and that too of a kind which is Unlawful in Islam [I mean moustaches beyond your upper lips].

Shaving the beard is haraam because of the saheeh ahaadeeth that clearly state this, and because of the general application of texts that forbid resembling the kuffaar. One of these reports is the hadeeth of Ibn ‘Umar who said that the Messenger of Allaah (peace and blessings of Allaah be upon him) said: “Be different from the mushrikeen: let yourbeards grow and trim your moustaches.” According to another report: “Trim your moustaches and let your beards grow.” There are other hadeeth which convey the same meaning, which is to leave the beard as it is and let it grow long, without shaving, plucking or cutting any part of it. Ibn Hazm reported that there was scholarly consensus that it is an obligation (fard) to trim the moustache and let the beard grow. He quoted a number of ahaadeeth as evidence, including the hadeeth of Ibn ‘Umar (may Allaah be pleased with him) quoted above, and the hadeeth of Zayd ibn Arqam in which the Prophet (peace and blessings of Allaah be upon him) said: “Whoever does not remove any of his moustache is not one of us.” (Classed as saheeh by al-Tirmidhi). Ibn Hazm said in al-Furoo’: “This is the way of our colleagues [i.e., the Hanbalis].”

Is it haraam (to shave it)? Shaykh al-Islam Ibn Taymiyah (may Allaah have mercy on him) said: “The Qur’aan, Sunnah and ijmaa’ (scholarly consensus) all indicate that we must differ from the kuffaar in all aspects and not imitate them, because imitating them on the outside will make us imitate them in their bad deeds and habits, and even in beliefs, which will result in befriending them in our hearts, just as loving them in our hearts will lead to imitating them on the outside.Al-Tirmidhi reported that the Messenger of Allaah (peace and blessings of Allaah be upon him) said, “He is not one of us who imitates people other than us. Do not imitate the Jews and Christians.” According to another version: “Whoever imitates a people is one of them.” (Reported by Imaam Ahmad) ‘Umar ibn al-Khattaab rejected the testimony of the person who plucked his beard. Imaam Ibn ‘Abd al-Barr said in al-Tamheed: “It is forbidden to shave the beard, and no one does this except men who are effeminate” i.e., those who imitate women. The Prophet (peace and blessings of Allaah be upon him) had a thick beard (reported by Muslim from Jaabir). It is not permitted to remove any part of the beard because of the general meaning of the texts which forbid doing so.

Since Judiciary has quoted the reference of Quran and Sunnah against NRO therefore their logic is to be challenged through Quran and Sunnah. They have started this Piety business but could they even justify Tomb/Shrine of Jinnah and others in the light of Quran and Hadith.
Makkah to Data Darbar Lahore [Sufi Shrine in Pakistan]
http://chagataikhan.blogspot.com/2008/10/makkah-to-data-darbar-lahore-sufi.html

[Courtesy: Islamisation of Laws in Pakistan by Salman Akram Raja]

The second wave of Islamic legislation, initiated in the late 1970s and the 1980s, sponsored by General Zia-ul-Haq was altogether different in its intent and scope. The intent this time around was to incorporate provisions of traditional Islamic fiqh, human juristic effort presented as the divinely ordained shariah, into the body of the law beyond the traditional confines of family law and inheritance. The scope of this legislation ranged from an ‘Islamic’ overhaul of the Evidence Act, 1872 through the Qanun-e-Shahadat Order, 1984, to the full inclusion of traditional hudood18 laws. These hudood laws not only replaced the existing penal provisions with respect to muder, theft, adultery and rape, turning large areas of offences against the state into privately compoundable wrongs, but also added entirely new categories of offences such as Qazf (false accusation of sexual impropriety) , fornication between consenting adults and blasphemy.

Perhaps no aspect of the Islamisation of laws has had a larger impact on the lives of ordinary people, women in particular, as the Offence of Zina Ordinance of 1979-one of the five hudood laws promulgated in that year.19 While sex outside marriage, or even the allegation of such contact, has traditionally been, and still is, a grave religious and cultural offence in all parts of Pakistan. The Zina Ordinance declares consensual sex outside marriage a distinct crime punishable by law. It also provides punishment for zina-bil-jabr (rape). The Zina Ordinance provides two different punishments for the same offence depending on the nature of the evidence against the accused. For the hadd punishment of rajm (stoning to death), the offensive act should have been witnessed by four male, Muslim witnesses of good repute. If, however, the offence is proved by any other form of evidence, the Court can award punishment that may include a prison sentence as well as whipping. The latter category of sentences is subsumed under the heading of tazir, the technical term in Islamic Law for punishments that fall in the discretion of the state. The popular perception of the Zina Ordinance, largely based on the image carried in the press, is that a raped woman must produce four male witnesses against the accused for a conviction. The legal position that a conviction leading to a tazir punishment can be maintained on the basis of other evidence, including that of the woman herself, is generally absent in the popular understanding of the Zina Ordinance.

This has led to further presumption that a woman who has accused and failed to produce the four male witnesses required by the law must face the charge of slander in terms of the Qazf Ordinance, 1979. Several judgments in the last two decades have served to support this impression of the Zina and Qazf Ordinances. In Safia Bibi’s case,20 a blind girl, raped by her employers, was convicted by a lower court for the offence of zina on account of her pregnancy even though the accused were acquitted for lack of evidence. Even though Safia Bibi’s conviction was later set aside in appeal by the Federal Shariat Court the psychological impact of the earlier conviction has subsisted. More recently, in 2002, the case of Zafran Bibi made international headlines. In Zafran Bibi’s case, the complainant, an illiterate woman who had accused her husband’s brother of having assaulted her, was convicted by a lower court, once again on account
of having conceived during a period when her husband was serving a prison sentence. No evidence was found against the accused brother-in-law who was, therefore, acquitted. In appeal the Federal Shariat Court set aside Zafran Bibi’s conviction and held:21

‘Mere pregnancy by itself when there is no other evidence at all, of a married lady, having no access to her husband or even of an unmarried girl is no ground for imposition of hadd punishment, if she come out with the defence that (the pregnancy) was the result of commission of rape with her.’

The statement of law by the Federal Shariat Court notwithstanding, it is clear that Zafran Bibi was not the last woman to be abused by the judicial process in the name of the Zina Ordinance. In a patriarchal society, a woman abused is a woman condemned. The colonial legislators were well aware of this fact. The 1997 Report of the Commission of Inquiry for Women22 set up by the government noted:

‘That under the Penal Code of 1860 a woman could not be tried for zina. Zina then was only a crime in the form of adultery … Complaints of adultery could only be made by the husband of the adulteress. But females could not be punished under the law. The authors of the Penal Code had argued that within the prevalent feudal and patriarchal social structures women were rarely in total control of their lives and actions. Making them liable to willing adultery in such unequal circumstances, when even a false hint of it would spell doom for the women for life, would frequently amount to injustice. Besides the very criminal liability of a woman would have the effect of enlarging the chances of her victimisation since she would then be open to blackmail, to threat of her implication in willing acts of zina.

Finally, it was thought that such a provision would lead to the traditional rules and norms being made even more inhibiting for women and raise the level of their social oppression and of familial control over their lives. Thus the writers of Penal Code concluded that they would not throw into a scale already loaded against women the additional weight of penal law. Their apprehensions proved only too true after the Ordinance came in. In the pre-Zina Ordinance period, there were only a handful of reported cases of adultery. As soon as the law was changed to include women within the scope of its punishment, allegations of zina started to run into thousands. This clearly indicates that as long as it was only the male who could be punished for adultery, there was a reluctance to prosecute. The Ordinance became a tool in hands of those who wished to exploit women.’23

The view expressed by the 1997 Report has been expressed by greater vehemence by the Report of the National Commission on the Status Women, 2003. Declaring the Hudood Ordinances, the Zina Ordinance in particular, to be manifestly unjust, irrational and contrary to the injunctions of Islam, the Commission has called for the immediate repeal of the
Ordinances.24

Sword of Amputation

The Offences against Property (Enforcement of Hudood) Ordinance, 1979, stipulates the hadd punishment for theft of property placed in enclosed premises or in a container or in the custody of a person. Instances of criminal misappropriation or criminal breach of trust not entailing the physical removal of any property have been left out of the scope of the Ordinance. The shariah punishment stipulated by the Ordinance includes amputation of the right hand for first time offenders and amputation of the left foot for persons committing the offence for a second time.

The imposition of the hadd punishment requires the testimony of two Muslim, adult, male witnesses of good character. The testimony of a non-Muslim may be considered for the purposes of the hadd only if the accused is a non-Muslim. In the event of evidence, as prescribed by the Ordinance of 1979, not being available, the court may award as tazir the same punishment as under the Penal Code of 1860. Though trial courts have, at time, imposed the hadd punishment of amputation such imposition has never been sustained at the appellate stage. However, the fact that the threat of amputation, along with that of stoning in terms of the Zina Ordinance, remains on the statute book, is not without import. Asma Jehangir and Hina Jilani have commented:25

‘Nevertheless one cannot ignore its psychological effect. Taking the law as a moral sanction a crowd of people in the Frontier Province took the law into their own hands and literally stoned a man to death.’

Woman as half-witness

The Evidence Act of 1872 was repealed and replaced by the Qanun-e-Shahadat Order, 1984 with the avowed intention to Islamise the law. The discrimination contained in the Hudood Ordinances between the evidence of men and women for the purposes of impositions of the hadd punishment was expanded by Article 17 (2)(a) as regards matters pertaining to financial or future obligations:

Article 17(2)(a): In matters pertaining to financial and future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one woman may remind the other, if necessary, and evidence shall be read accordingly.

Article 17(2)(a) as eventually promulgated, though still discriminatory, reflects the impact of the heroic struggle waged by the then nascent women’s rights movements in Pakistan. The original version of the law had equalled the testimony of two women, regardless of intellect and education, to the testimony of a single male witness for all purposes. It was only after country-wide protests by human rights and women activists with the resultant attraction of international attention that the proposed law was watered down to financial and future transactions.

Blasphemy law

The offences of the defiling of the Holy Quran and use of derogatory remarks in respect of the Holy Prophet (pbuh) were added to the Pakistan Penal Code in the form of Sections 295-B and 295-C, respectively, through Ordinance 1 of 1982 and Criminal Law (Amendment) Act (III of 1986). Together, the two provisions have served to constitute blasphemy a frequently exploited instrument of oppression against the religious minorities, political opponents as well as rival claimants to property. A mere accusation of blasphemy is enough to trigger the oppressive force of the police machinery against the accused. The accused is, as a rule, promptly arrested and made to suffer a trial in highly enraged circumstances before a judge who must fear for his own security in the event of an acquittal verdict being passed in favour of the accused. Such fear is by no means exaggerated. The judge of the Lahore High Court, who authored the acquittal order in the case of Salamat Masih and Rehmat Masih26, two Christians accused of blasphemy in 1995, was assassinated not long after the verdict.

It is, therefore, no surprise that blasphemy trials invariably result in convictions and where the charge framed is of blasphemy in respect of the Holy Prophet (pbuh) the death sentence is the only sentence that may be granted. Section 295-C, as originally promulgated, had allowed the judge discretion to grant the sentence of life imprisonment instead of the capital punishment. However, in 1991 the Federal Shariat Court declared, in Muhammad Ismail Qureshi vs. Pakistan,27that the law as drafted was repugnant to the injunctions of Islam in so far as it allowed the grant of any punishment other than death to a person convicted of blasphemy in respect of the Holy Prophet (pbuh).

Segregating Qadianis

Attempts by the Musharraf government to enhance its liberal credentials by amending Section 295-B and 295-C so as to provide for inquiry by a senior officer prior to the registration of a case of blasphemy were scuttled in the face of stern threats by the religious parties during the course of the year 2000.28

Of all the religious minorities the Qadianis* have been the most affected by legislation purportedly in the cause of Islam. Sections 298-B & 298-C were added to the Pakistan Penal Code by Ordinance XX of 1984 with express intent to ‘control’ Qadiani activities. Section 298-B prohibits members of the Qadiani community from using words or representations similar to those used by Muslims as regards persons held in respect as founders of the Qadiani creed. Section 298-C bars members of the Qadiani community from referring to their faith as Islam or posing as Muslims or from preaching or propagating their faith. Both sections provide a punishment of up to three years along with fine. These provisions were relied upon by the provincial government to ban the centenary celebrations of the group in 1984. The constitutional challenge to these provisions on the basis of Article 20 of the Constitution that guarantees the fundamental right of all citizens to profess, practice and propagate their religion was turned down by the Supreme Court of Pakistan in Zaheer-ud-din vs. The State.29

Murder and Blood-money

Amendments made to the Penal Code by the Criminal Laws (Second Amendment) Ordinance of 1990 and re-enacted by the Criminal Laws (Qisas and Diyat) Act 1997 introduced the possibility of the heirs of the deceased victim entering into a compromise with the convicted murder who could then be acquitted by the court. Under Section 302(a) death sentence can be awarded to a person convicted of qatl-i-amd (deliberate murder) by way of qisas. Qisas is the right to punishment made available to the heirs by God rather than by the state. Under Section 302(b) death sentence or a prison sentence can be awarded by way of tazir to a person convicted of intentional murder. Tazir sentences are not divinely specified and are to be awarded where the quality of evidence required for a qisas punishment is not available or where the victim or the victim’s heirs and the offender are related in a specified manner. As regards the qisas punishment of death awarded under Section 302(a), any adult sane heir30 of the victim may waive his right of qisas in terms of section 309 of the Penal Code. In the event of some of the heirs of the victim not agreeing to waive the right of qisas they are to be paid their share of diyat (blood money). The quantum of diyat is to be fixed by the government f rom time to time.

Where even one of the heirs has waived qisas the death sentence against the convicted murderer is to be substituted with imprisonment that may extend up to 25 years by way of tazir in terms of Section 311 of the Pakistan Penal Code. Even where all the heirs of the victim waive the right of qisas the court may still sentence the offender to imprisonment of either description for a term that may extend to 14 years. Such sentence may be imposed as tazir keeping in view the principle of fasad-fil-arz (serious disruption in society) in terms of Section 311 of the Pakistan Penal Code. For the purpose of the principle of fasad-fil-arz the court may take into account the past conduct of the offender, including any previous convictions, as well as whether the manner in which the offence was committed was outrageous to the public conscience and whether the offender is a potential danger to the community. While Section 309 deals with waiver of qisas section 310 deals with the compounding of qisas. Under Section 310 an heir may compound his right of qisas by accepting money instead. The principles of section 311 as regards the jail sentence that a court may nevertheless impose also apply in the event of a compounding of qisas under Section 310. The general rule, in practice, is that once the heirs have waived or compounded the offence the courts refrain from punishing the offender who then walks free.

Where the death sentence has been awarded not as qisas but as tazir under section 302(b) sections 309, 310 and 311 of the PPC are not applicable. A tazir punishment may only be compounded in terms of Section 345(2) of the Criminal Procedure Code. The offence of qatal-e-amd liable to tazir may be compounded only with the permission of the court and with the consent of all of the heirs of the victim. Once such composition of the offence has occurred the court must acquit the offender in terms of Section 345(6). In the event of any one of the heirs of the victim refusing to compound, no composition of the offence may occur and the sentence granted under Section 302(b) will remain enforceable. 31

Apart from the radical change in the nature of the offence of murder the so-called Islamisation of the law has introduced a scheme that has served to make the murder of women a lower category of offence, in terms of likelihood of punishments. The enhanced vulnerability of women is a natural consequence of sections 306 and 307 of the PPC. Under Section 306(b) qatl-i-amd shall not be liable to qisas where an offender has caused the death of his child or grand-child, how-low-so-ever. Section 306(c) states that qisas is again inapplicable where any heir (wali) of the victim is a direct decedent, how-low-so-ever, of the offender. Under Section 307 qisas will not be enforced where any wali voluntarily waives the right of qisas under section 307(b) or compounds under section 310. Under Section 307(c) qisas will also not be imposed where the right of qisas devolves on the offender as a result of the death of the wali of the victim or on a person who has no right of qisas against the offender on account of being a direct descendent of such offender.

One or more of the instances quoted in the law regarding the non-applicability of qisas apply to the great majority of murders where the victim is a daughter, sister or wife of the offender. Even where a sentence has been awarded by way of tazir for murders inside the immediate family the offender’s chances of walking away free are very high. For instance, in a case where a daughter has been killed by a father (a particularly unfortunate feature of most so-called honour killings), the heirs of the victim are likely to be the offender’s own wife and other children. The likelihood of these heirs forgiving the offending father is high, who would then have to be acquitted by the court. Reporting the results of research carried out on the impact of the qisas and diyat law, the 2002 report of the Human Rights Commission of Pakistan states: ‘after the adoption of qisas law the incidence of murder in Pakistan had gone up while the rate of conviction had gone down. This is because the courts were approving compromises without ascertaining whether an offence was compoundable under the law.’32 Research on the gender and class skewed-ness of compromises is yet to be carried out.

Islam and the Constitution

Apart from legislation with respect to specific offences, marriage, divorce and inheritance, the Constitution has also been Islamised over time. While the bulk of this Islamisation occurred during the Zia era, the Constitution of 1973 had, at its inception, declared Islam to be the state religion.33 Article 227 of the Constitution had declared that parliament would bring all existing laws into conformity with the injunctions of Islam and enact no law repugnant to the Holy Quran and Sunnah. Articles 228 to 230 had set up the Council of Islamic Ideology for the purpose of advising the federal parliament as well as the provincial assemblies as regards the injunctions of Islam on any issue referred to it or even on other matters considered important by the Council for the purpose of enabling the Muslims of Pakistan to order their lives individually and collectively ‘in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah.’34 The advice of the Council was, however, not made binding. Similarly, as regards Article 227, the superior courts have consistently held that it was not meant to provide any ground for judicial review of legislation: the direction contained in Article 227 is addressed to parliament and it is for parliament itself to determine whether the injunc tions of Islam are violated by any particular legislation. 35

The first ‘Islamic’ addition to the original constitutional text was made in 1974 through the Constitution (Second Amendment) Act sponsored by Mr. Zulfikar Ali Bhutto’s government. The effect of this amendment, whereby the definition of ‘non-Muslim in Article 260(3) stood altered, was to declare the Qadiani community non-Muslim.

Islamisation of the Constitution during the Zia years resulted in three significant additions to the constitutional structure: The Federal Shariat Court and the Shariat Appellate Bench of the Supreme were created through addition of Chapter 3A to the Constitution in 197936 which was then amended in 1980.37 Article 2A, making the Objectives Resolution of 1949 a substantive part of the Constitution, was added in 1985.comparison_ asean.htm Article 51(4A) of the Constitution was amended in 1985 so as to bar non-Muslims from voting in elections to the general seats of the National Assembly. After the amendment, non-Muslims could only vote for non-Muslim candidates contesting on reserved seats for the religious minorities.39

Shariat Courts

In 1979, a month before deposed Prime Minister Zulfikar Ali Bhutto’s execution, General Zia set up shariat benches in each of the High Courts of the country and a Shariat Appellate Bench in the Supreme Court of Pakistan. These benches were vested with specific authority to carry out judicial review of all laws, not including the Constitution itself, on the touchstone of repugnance to the injunctions of Islam. Excluded from the jurisdiction of the shariat benches were Muslim personal law and, for a period of three years, fiscal, banking and insurance laws. These benches were also vested with appellate jurisdiction with respect to cases prosecuted under the then newly enacted Hudood Laws. In 1980, the provincial shariat benches were made replaced, through Presidential Order No. 1 of 1980, with the Federal Shariat Court.40 The judgments of the Federal Shariat Court were made binding on all other courts including the High Courts.

The centralisation of the authority to enforce the shariah reflected early nervousness on the part of General Zia, given that Islamic texts could be made to support diametrically opposed positions on issues ranging from the authority of the usurper of political authority, punishments such as stoning and the power of the state to effect land reforms. The fact that the Federal Shariat Court was expected by General Zia to act as his hand-maiden was made clear to all, most of all to the judges of the Shariat Court, in 1983 when the incumbents were peremptorily removed and the court reconstituted in order to review the judgment in Hazoor Buksh’s case.41 In 1981 the Shariat Court, headed by a modernist chief justice,42 declared that the punishment of rajm (stoning to death) for the offence of adultery was not a punishment stipulated by the shariah. This declaration by the Shariat Court was at variance with the views of the vast majority of the
traditional ulema.43The possibility of the Shariat Court mounting a liberal challenge to the orthodoxy came as a shock to General Zia and his religious constituency.

While General Zia, might have held personal empathy for the orthodox view of the shariah, by 1981 the Afghan jihad was already underway and the military could no longer ignore the mullah. A reconstituted Shariat Court was promptly directed to reconsider the original decision on rajm in Hazoor Buksh’s case. The review order passed in 1983 set aside the original judgment and asserted the orthodox view on the obligatory nature of rajm with obvious official approval.44The reversal in Hazoor Buksh’s case set a tone that has continued to mark decision-making by the Shariat Court. With its brief encounter with modernist interpretations of Islam snuffed out, the Shariat Court spent the rest of the Zia years following a conservative line. The Shariat Court defined its jurisdiction narrowly and for the most part found little in existing legislation requiring review on the grounds of repugnance to the injunctions of Islam.

A betting Feudalism

The two most prominent declarations of repugnance to the injunctions of Islam made during this period were comfortably consistent with the Ziaist opposition to the socialistic overtures of the Bhutto years. In 1981 in the case of M. Ameen vs. Pakistan,45 the Federal Shariat Court held that Islam disallowed the forcible acquisition by the state of any property, including land for the purpose of redistribution. As a result the provisions of the Land Reforms Regulation of 1972 empowering the state to acquire land were held to be repugnant to the injunctions of Islam. In appeal the decision was upheld by the Shariat Appellate Bench of the Supreme Court of Pakistan in Qazalbash Waqf vs. Chief Land Commissioner. 46 With the declaration that land reforms were prohibited by Islam the Shariat Court had, in effect, declared the heart of the political agenda of the left in Pakistan to be un-Islamic.

In 1986 the Shariat Appellate bench of the Supreme Court held, in Said Kamal’s case,47 that the provisions of MLR 115 of 1972 granting tenants of agricultural land the first right of refusal in the event of sale by the landlord were also repugnant to the injunctions of Islam. The land reform and the tenants’ pre-emption right cases presented the shariah as an ideological abettor of the status quo. Having denied a large number of existing pre-emption claims as ‘un-islamic’ , the Shariat Apellate Bench reflected:

‘According to learned counsel, thousands of innocent parties, who have invested all their life savings in prosecuting their suits for pre-emption, which were instituted on the strength of statutory provisions validly in force for decades, will be ruined and their lifelong efforts reduced to nought for no fault of theirs. Believing as I do that law is for the citizen and not the citizen for the law and being a protagonist of the principle that the ‘law may be blind but the Judge is not’, I have personally been deeply moved by this submission.

But I also cannot overlook the glorious struggle waged by millions of Muslims to establish this Islamic State of Pakistan and the heart rending sacrifices made by them for bringing into being this great polity wherein they could fulfil their cherished wish to conduct their affairs in accordance with the ‘Injunctions of Islam’, as enshrined in the Holy Quran and the Sunnah. The price they are now called upon to pay on account of the overthrow of the un-Islamic provisions of the Punjab Pre-emption Act, 1913 to pave the way for the Islamic Law of pre-emption is, I believe, one further sacrifice that they must make in the cause of establishing this Islamic polity and for ensuring that the generations to follow will be governed by the laws of Islam and Islam alone.’48

Prohibiting Interest

It was only in the post-Zia years that the Shariat Court started to assume positions that could be seen as causing discomfiture to the government of the day. Part of the reason for the enhanced profile of the Federal Shariat Court was also the expiry in 1990 of the ten year restriction on the Shariat Court’s jurisdiction with respect to fiscal and financial laws. The greater self-confidence felt by the Shariat Court manifested itself in Allah Rakha’s case.49 In 1981 the Shariat Appellate Bench of the Supreme Court had held, in Pakistan vs. Farishta,50that the Muslim Family Law Ordinance of 1961 could not be considered to be part of Muslim personal law and hence was not excluded from review by the Federal Shariat Court.

However, it was not until the year 1999 that the Shariat Court took up, in Allah Rakha’s case, examination of the Ordinance of 1961. Based on this examination, the court held that the inheritance right in the estate of a grandparent made available by the Ordinance of 1961 to orphaned grandchildren was contrary to the dictates of the sharia. The Shariat Court, however, itself moved to ameliorate the harsh consequences of denying an orphaned grandchild a share in the grandparents’ estate by declaring that in all circumstances the grandparents be deemed to have made a will in favour of the otherwise disinherited grandchild. The judgment in Allah Rakha’s case revealed the Shariat Court intellectually torn between allegiance to traditional conceptions of the shariah and the needs of contemporary social reality.

While the judgment in Allah Rakha was able to achieve a casuistic balance between traditional form and social need, the Shariat Court felt unable to maintain such balance in Dr. Mahmood-ur-Rehman Faisal vs. The Government 51in which bank interest in all forms or loans and deposits was declared to be prohibited by the injunctions of Islam as falling within the prohibited category of ‘riba’. The judgment in Dr. Mahmood-ur-Rehman’ s case was appealed against by the government and a status quo order obtained.

However, the existence of the judgment continued to place all bank related financing in Pakistan under serious threat. For ten years, after the initial hearing, the Shariat Appellate Bench of the Supreme Court felt unable to take up the appeal. During this period all financing arrangements in the country contained force majeure clauses containing reference to the possibility of the riba judgment being finally upheld. In 1999 the Shariat Appellate Bench finally took up the appeal and affirmed that the modern bank interest was covered by the Islamic prohibition against riba.52 A time-table was laid down for the complete overhaul of the financial system, not later than 30 June 2002. While the Government set up several committees and task forces for reinventing the economy prior to the deadline, it was clear that the impossible would not be achieved. In early 2002 the Government urged a reconstituted Shariat Appellate Bench of the Supreme Court to review its earlier judgment. It is significant that prior to the review petition being taken up Maulana Taqi Usmani, an alim member of the bench since 1980 was removed by the President. In June 2002 the Shariat Appellate Bench set aside its own earlier judgment and referred the matter back to the Federal Shariat Court.53 While a reprieve had been achieved by the government, the fundamental fault at the heart of the system remains. The status quo cannot continue indefinitely.

Objectives Resolution

The Objectives Resolution passed by the first Constituent Assembly in 1949 has long been described in superior court judgments as the grundnorm of Pakistani constitutionalism. That Resolution passed, in lieu of a Constitution, had declared:

‘Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a scared trust’

In the years since 1949 the tussle over the authority to speak in Allah’s name has threatened the stability of the constitutional framework time and again. Standing apart from the ‘grundnormists’ at the other end of the ideological rhetoric are those who see in the Resolution of 1949 a negation of the Quaid-e-Azam’ s vision expressed in his speech of 11 August 1947 to the Constituency Assembly. That the Objectives Resolution was at all passed is frequently attributed to the political rootless-ness of the cohort of politicians seeking legitimacy through recourse to religious grand-standing.

This, of course, is a charge made with greater vehemence with respect to General Zia’s Islamisation. It was General Zia who, through an amendment to the Constitution in 1985, lifted the Objectives Resolution from its status of a pre-constitutional document with a long shadow but little juridical impact and made it a substantive part of the Constitution. In The State v. Zia-ur-Rehman 55the Supreme Court of Pakistan had held in 1973 that the Objectives Resolution was not a substantive part of the Constitution and, therefore, could not be relied upon by any court for the purpose of judicial review of legislation. The inclusion of the Objectives Resolution as a substantive part of the Constitution was clearly a response to the judgment in Zia-ur-Rehman’ s case. General Zia’s emphasis on the Objectives Resolution was, however, not without distortion. One of the paragraphs of the original Resolution reads:

Wherein adequate provision shall be made for the minorities to freely profess and practise their religions and develop their cultures.’ In the 1985 incorporation of the Resolution the word ‘freely’ was left out.

As expected, the addition of the Objectives Resolution to the Constitution opened the floodgates to challenge existing legislation as well as the provisions of the Constitution itself. For several years the entire constitutional framework of the country appeared to be vulnerable to dismantling by a small number of religiously inspired members of the superior judiciary. In Qamar Raza vs. Tahira Begum,56 parts of the Muslim Family Laws Ordinance of 1961 were declared to be of no effect being in violation of the shariah. Matters came to a head when in Sakina Bibi vs. The Government,57 a full-bench of the Lahore High Court struck down Article 45 of the Constitution as being repugnant to the injunctions of Islam. It was the Supreme Court of Pakistan itself, rather than parliament, that acted in 1992 to cut down the impact of the Objectives Resolution.

In the case of Hakim Khan vs. The State,58 the Supreme Court held that despite the adoption of the Objectives Resolution as a substantive part of the Constitution no part of the Constitution could be subjected to judicial review on the basis of repugnance or inconsistency with the injunctions of Islam. The following year, in 1993, the Supreme Court further held in the case of Kaneez Fatima vs. Wali Mohammed,59 that the Objectives Resolution could not be employed even for the purpose of striking down ordinary legislation. The combined effect of the judgments in
Hakim Khan and Kaneez Fatima is that Article 2A and the Objectives Resolution cannot be relied upon by the courts to provide tests of validity either for the Constitution or for ordinary legislation. The courts may, however, rely on the Objectives Resolution and the injunctions of Islam in order to examine the validity of executive action. Further, the courts can import the principles of Islam to cater for situations left untended by express legislation. This amounts to a role for the injunctions of Islam that had been recognised by the courts even prior to the incorporation of the Objectives Resolution into the Constitution. 60

The fact that despite the abridgement of the potentially open-ended impact of the Objectives Resolution, the role left for the injunctions of Islam in the interstitial spaces of the legislative framework, can have far-reaching consequences was underscored by the challenge that mounted in Abdul Waheed v. Asma Jahangir61 to the capacity of a woman, of any age and ability, to enter into marriage without the consent of a male guardian. It was argued on behalf of a father whose adult, educated daughter had married against his wishes that the provisions of the Muslim Family Laws Ordinance of 1961 pertaining to the formalities of marriage did not exclude the requirements of the shariah. It was claimed that in fact there was a gap in the Ordinance of 1961 which required recourse to the rules of valid marriage recognised by traditional Islamic law. It was also argued that the view taken by the Maliki and Shafii schools of Islamic law as regards the limited capacity of a woman to enter into marriage was preferable to the view of the Hanafi school that has traditionally recognised complete capacity in women.

While the Lahore High Court ultimately decided, by a two-one majority, in favour of a woman’s complete capacity the matter was argued over a year and a half and kept the entire country riveted. Many women woke up, for the first time, to the obscurity and the distressing relevance of traditional thought. In the end the ultimate result of the case reflected the impact of the struggle launched by the women’s rights organisations across the country with a high degree of visibility in the national and international press. While the appeal against the judgment of the Lahore High Court remains pending before the Supreme Court, marriages similar to the one that was in issue in Abdul Waheed vs. Asma Jahangir are being dealt with in routine by the High Courts in favour of women’s capacity to order their personal lives.62This is an important example of secular rights activism having forced a liberal judicial advance.

References

1. See the discussion infra on the impact on the law of evidence and on the issue of a woman’s capacity to enter into marriage without the intervention of a male guardian.

2. See the distinction made by H.L.A Hart, The Concept of Law, (Clarendon, 1994), between the internal and external points of view. The insiders’ discourse is based on common presumptions as regards the normativity of norms that are accepted as valid. The attitude of the insiders’ towards these norms is that of critical reflexivity: the norms are taken as guides to behaviour and basis for criticism of others actions. The outsiders simply observe the practices surrounding the norms, and the consequence of these practices, without attempting to step into the insiders’ discourse. ‘Acceptable controversy’ can be taken to be controversy within the insiders’ discourse.

3. For the different shades of opinion on the role of Islam in the state see Ishtiaq Ahmed, The Concept of an Islamic State, (Frances Pinter, London, 1987).

4. See Allama Muhammad Iqbal, The Reconstruction of Religious Thought in Islam, (Institute of Islamic Culture, Lahore, 1989)

5. See Maudoodi, Islamic Law and Constitution, (Islamic Publications, Lahore, 1980).

6. See Fazlur Rehman, Islam, (Chicago, 1979) pg 1: ‘What constitutes the Community is the conscious acceptance of its status as the primary bearer of the Will of God, the ‘Command of God for man’ _ the Sharia; this trust being sought to be implemented through its governmental and collective institutions. The Sharia is the constitution of the Muslim Community.’

7. See Dr. Javid Iqbal, Islam and Pakistan’s Identity , (Vanguard Books, 2003) pg 13: ‘Since the Muslims are expected to be governed under the Shariah in all spiritual and temporal matters, and can only render obedience to the rulers from those among them, they must aspire to establish a state of their own, wherever it is possible to create a viable state.’

8. See Ghulam Ahmed Parvez, Islam: A Challenge to Religion, (Tulu-e-Islam, Lahore, 1996).

9. See Sharif ul Mujahid, Ideology of Pakistan, (Islamic Research Institute Press, Islamabad, 2001).

10. On the teaching of history in Pakistan see K.K. Aziz, The Murder of History, (Vanguard, 1993).

11. See Wahid-ud-din Khan, Taabeer ki Ghalti, (Dar-ut-Tazkeer, Lahore, 2002).

12. See Javed A. Ghamidi, Al-Meezan, (Dar-ul-Ishraq, Lahore, 2002).

13. See ‘In the name of religion?’ by Ardeshir Cowasjee in the daily Dawn, October 5, 2003.

14. See infra on the distortion of the Objectives Resolution of 1949.

15. While the basic sources are the Quran and the collections of ahadith, reports regarding the Prophet’s conduct and speech, the large body of juristic works, fiqh, are taken to contain the elucidation of Islamic law based on the two primary sources.

16. Fiqh can be loosely translated as juristic thinking. The terms fiqh and shariah are often used interchangeably, reflecting a collapse between the contingent nature of fiqh and the transcendental quality of the ideal shariah. Also note Shariat is the Urdu version of the Arabic Shariah

17. The main classical schools of Islamic law are the Hanafi, Maliki, Shafii and Hanbali among the sunnis and Jafaria among the shias. Most sunni Muslims in the sub-continent have traditionally subscribed to the Hanafi school.

18. Hudood literally means ‘limits’ but is used to refer to punishments held to be Divine prescription for certain offences.

19. The four other hudood laws are Offences Against Property (Enforcement of Hudood) Ordinance, Offence of Qazf (Enforcement of Hadd) Ordinance, Prohibition (Enforcement of Hadd) Ordinance and Execution of the Punishment of Whipping Ordinance, all of 1979.

20. PLD 1985 Federal Shariat Court 120.

21. PLD 2002 Federal Shariat Court 1

22. See page 66 of the Report.

23. Ibid page 67.

24. The Report of the Commission was not available at the time of going to press. The Chair of the Commission Justice (r) Majida Rizvi has, however, addressed several seminars, including one at the offices of the Human Rights Commission of Pakistan on 5 October, 2003.

25. Asma Jahangir and Hina Jilani, The Hudood Ordinances: A Divine Sanction? (Sang-e-Meel, Lahore, 2003).

26. 1995 PCrLJ 811

27. PLD 1991 FSC 10.

28. Hina Jillani, ‘A Craven Retreat’, Newsline, (May 2000). * The Qadianis emerged in North India as a religious group within Islam during the last two decades of the 19th century. Orthodox Islamic sects consider Qadiani beliefs contrary to the fundamentals of the Islamic faith.

29. 1993 SCMR 1718.

30. Heirs for the purposes of qisas are the same as the heirs in the estate of the deceased.

31. Muhammad Aslam vs. Shaukat Ali, 1997 SCMR 1307.

32. State of Human Rights in 2002, Human Rights Commission of Pakistan, Lahore.

33. Article 2.

34. Article 230.

35. Hakim Khan vs. The State, PLD 1992 SC 595.

36. Presidential Order No. 3 of 1979 had created shariat benches in the four provincial High Courts rather than a centralised court.

37. Presidential Order No. 1 of 1980 substituted the present Chapter 3A whereby the Federal Shariat Court was created.

38. Presidential Order No. 14 of 1985.

39. Presidential Order No. 14 of 1985. The exclusion of the religious minorities from mainstream political process came to an end with the repeal of Article 51(4A) by Chief Executive Order No. 24 of 2002. While this was a fulfillment of a demand that most minority leaders had maintained since 1985 the circumstances of the repeal are highly controversial. Along with the repeal of Article 51(4A) General Musharraf introduced a large number of other constitutional amendments unacceptable to the entire opposition in the National Assembly, the bar councils and large segments of the intelligentsia. General Musharraf has refused to submit these amendments before Parliament. The courts have started treating these amendments as fiat accompli.

40. The exclusion of jurisdiction as regards fiscal and financial laws was extended to five years and then, through P.O 14 of 1985, to ten years.

41. Hazoor Baksh vs. The State, PLD 1981 FSC 145.

42. Justice Aftab Husain.

43. The significant exception among the ulema was Maulana Amin Ahsan Islahi. See his Tadabur-e-Quran, (Faran Foundation, Lahore, 2000).

44. The State vs. Hazoor Baksh, PLD 1983 FSC 255.

45. PLD 1981 FSC 23.

46. PLD 1990 SC 99.

47. PLD 1986 SC 360.

48. Aziz Begum vs. Federation of Pakistan, PLD 1990 SC 899.

49. Allah Rakha vs. The Federation of Pakistan, PLD 2000 Federal Shariat Court 1.

50. PLD 1981 SC 120.

51. PLD 1992 FSC 1.

52. M. Aslam Khaki vs. Syed Mohammad Hashim, PLD 2000 SC 225.

53. United Bank Limited vs. Farooq Brothers and Others, PLD 2002 SC 800.

54. Presidential Order 14 of 1985.

55. PLD 1973 SC 49.

56. PLD 1988 Karachi 169.

57. PLD 1992 Lahore 99.

58. PLD 1992 SC 595.

59. PLD 1993 SC 901.

60. See Nizam Khan v. Additional District Judge, Lyallpur, PLD 1976 Lahore 930. Also M. Bashir v. The State, PLD 1982 SC 139.

Jinnah’s Pakistan died with him.

In the last fifty-three years this country has changed its name and status three times. It started life as a Dominion, which it remained until 1956, when under the constitution promulgated that year, it became the Islamic Republic of Pakistan. In 1962, Field Marshal Ayub Khan, who had abrogated the 1956 constitution when he took over the country in 1958, promulgated his constitution and declared it to be simply the Republic of Pakistan. Then he became a politician, expediency came to the fore and by his First Constitutional Amendment Order of 1963 we again became the Islamic Republic of Pakistan.

In the preamble to the Constitution of 1973, now suspended by General Pervez Musharraf, certain paragraphs of the Objectives Resolution of 1949 are reproduced and one sentence reads: “Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures;”

Under Article 2-A of the 1973 Constitution the Objectives Resolution has been made a substantive part of the Constitution and reproduced in the Annex. In this reproduction the sentence quoted above reads : “Wherein adequate provision shall be made for the minorities to profess and practise their religions and develop their cultures;” The word ‘freely’ has been deliberately omitted. Mischief?

Now to a press conference held by Mohammad Ali Jinnah on July 14, 1947, in New Delhi. The text of this conference is to be found in the book recently published by Oxford University Press “Jinnah – Speeches and Statements 1947-1949” (ISBN 0 19 579021 9) and from it I quote relevant portions :

Q. Could you as governor-general make a brief statement on the minorities problem?

A. At present I am only governor-general designate. We will assume for a moment that on August 15 I shall be really the governor-general of Pakistan. On that assumption, let me tell you that I shall not depart from what I said repeatedly with regard to the minorities. Every time I spoke about the minorities I meant what I said and what I said I meant. Minorities to whichever community they may belong will be safeguarded. Their religion or faith or belief will be secure. There will be no interference of any kind with their freedom of worship. They will have their protection with regard to their religion, faith, their life, their culture. They will be, in all respects, the citizens of Pakistan without any distinction of caste or creed. The will have their rights and privileges and no doubt along with this goes the obligations of citizenship. Therefore, the minorities have their responsibilities also, and they will play their part in the affairs of this
state. As long as the minorities are loyal to the state and owe true allegiance, and as long as I have any power, they need have no apprehension of any kind.

Q. Would your interest in the Muslims of Hindustan continue as it is today?

A. My interest will continue in Hindustan in every citizen and particularly the Muslims.

Q. As president of the All India Muslim League what measures do you propose to adopt to assure the safety of Muslims in Hindu provinces?

A. All that I hope for is that the Muslims in the Hindustan states will be treated as justly as I have indicated we propose to treat non-Muslim minorities. I have stated the broad principles of policy, but the actual question of safeguards and protection for minorities in the respective states can only be dealt with by the Constituent Assembly.

Q. What are your comments on recent statements and speeches of certain Congress leaders to the effect that if Hindus in Pakistan are treated badly they will treat Muslims in Hindustan worse?

A. I hope they will get over this madness and follow the line I am suggesting. It is no use picking up the statements of this man here or that man there. You must remember that in every country there are crooks, cranks, and what I call mad people.

Q. Would you like minorities to stay in Pakistan or would you like an exchange of population?

A. As far as I can speak for Pakistan, I say that there is no reason for any apprehension on the part of the minorities in Pakistan. It is for them to decide what they should do. All I can say is that there is no reason for any apprehension so far as I can speak about Pakistan. It is for them to decide. I cannot order them.

Q. Will Pakistan be a secular or theocratic state?A. You are asking me a question that is absurd. I do not know what a theocratic state means.

A correspondent suggested that a theocratic state meant a state where only people of a particular religion, for example Muslims, could be full citizens and non-Muslims would not be full citizens.

A. Then it seems to me that what I have already said is like throwing water on a ducks’s back. When you talk of democracy I am afraid you have not studied Islam. We learned democracy thirteen centuries ago.

Just under one month later, on August 11, Jinnah addressed his Constituent Assembly at Karachi. He told the future legislators :

“. . . . . . . you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense because that is the personal faith of each individual, but in the political sense as citizens of the state.

All the peoples who like these pakistan fuedals party.Please just let me know which was the f**king bas**rd who started the First NFC award on the bases of population to let peoples of Sind Suffer most?

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WARNING TO KAMRAN BY THE ADMIN OF LUBP:
You have been previously warned to refrain from abusive comments on this site. We welcome difference of opinion but not abusive comments.

Dear Mr. Kamran,

Do you remember a very shameful term called “Parity” which the West Pakistan Imposed to turn Bengali Majority into Minority and snatch their Genuine Rights in the name of National Unity [Read Establishment] which was imposed under the cover of One Unit.

Religion is the last resort of all scoundrels!