Wednesday, February 10, 2016

Islamization of Pakistan's Legal System

First published in the Daily Times:

Justice A R Cornelius, being a liberal catholic Christian, is an unlikely champion of the Islamisation of the legal system in Pakistan. Yet facts show that it was he who first expounded the idea that in order for rule of law to take root in Pakistan, judges should freely deploy Islam to justify their legal decisions. Ironically, he did so speaking to officers at the General Headquarters (GHQ) on July 11, 1962 where he argued that the state could only find political legitimacy if it honoured the wishes of the people and unveiled a just Islamic order. To understand the context of Cornelius’ comments, I recommend that the readers refer to Clark Lombardi’s fascinating study ‘Can Islamising a legal system ever help promote liberal democracy? A view from Pakistan’, which is available online.

Of course, Cornelius envisaged Pakistani liberals as leaders of this Islamisation, which would be a sort of a renaissance of Islam and would unleash liberal rule of law in the country. Advising the military rulers of the country, Justice Cornelius said, “It is in this sense that the demand often heard in Pakistan for restoration of traditional Islamic institutions should be understood. It is the natural cry of a strong organism to be connected once again with its original and proper roots. The matter lies in the field of political therapeutics.” In doing so, Cornelius was overturning the axiomatic wisdom of Justice Munir and Justice Kayani, who had held that the question of an Islamic state would only lead to dissention given the variety of the often contradictory claims of various sects in Islam. With the Christian Chief Justice (CJ) of Pakistan now giving a nod to the Islamisation of the legal system, it was only a matter of time before a theory of Islamic review would take root in Pakistan. At least the military drew its own lessons from Cornelius’ exposition, especially in how it used that logic to the hilt under General Ziaul Haq. One wonders if General Zia himself was in attendance at Cornelius’ lecture.

Cornelius was speaking at a time when the world was yet to experience the spread of fundamentalism and revivalist thought in the Muslim world. I doubt he would hold the views he expressed at the GHQ in 1962 if he were alive today. For one thing, time has proved that liberals have failed to establish any kind of legitimacy vis-à-vis Islam. This was obviously natural given that the common man is not likely to reject the interpretations of established religious clergy in favour of modernist interpretations of Islam expounded by liberal Muslims or legal scholars attempting to reconcile Islam with modernity. The problem is that whenever the issue is going to come down to an interpretation of Islamic law, invariably liberal and progressive interpretations, no matter how persuasively argued, will lose out to traditionalist and orthodox views that are championed by a reactionary clergy. Priests with a divine mission, which Jinnah warned us against, will always trump any liberal attempts at reform. It is therefore a losing proposition for liberals to engage the clergy on that level, especially given that there are no liberal scholars of Islam grounded in Islamic history and jurisprudence, at least in Pakistan, who can challenge the established sectarian narratives of Barelvis and Deobandis. There are no Raza Aslans or Mustafa Akyols in Pakistan and even if there were, given the post-General Zia scenario, they would be driven out of the country. The treatment meted out to Fazlur Rahman Malik by Pakistan’s aggressive Islamists, at a time when Pakistan was a relatively liberal country, is a case in point. The more recent case of Javed Ahmad Ghamdi, by no means a liberal Islamic scholar but merely a reasonable one, is another.

A case in point is the Federal Shariat Court (FSC), which has recently been the subject of a lively debate between some of Pakistan’s brightest legal minds. The FSC was General Zia’s greatest trick. It was the foremost tool by which he intended to legitimise his illegitimate military dictatorship. The idea of a court of Islamic review empowered to give binding legal opinions on religious matters was itself a revolutionary one within Islam. Never in the 1,400 years of the history of Islam was there ever an institution that was vested with such jurisdiction. The closest the Muslim world ever came to this was under Caliph Mamun’s reign in the ninth century with his attempt to create a Church of Islam inspired by the rationalist doctrine of Mutazila. It ended in terrific failure. The very existence of the FSC therefore is a censure on the democratic will of the people of Pakistan, but it is said to be a popular censure. The people of Pakistan, we are told, want to have a shariat court. It is, to quote Cornelius, a matter of “political therapeutics”. These political therapeutics, in my opinion, have destroyed the dream that was Pakistan. Where do we draw the line?

Perhaps the first thing that liberals and reformists in Pakistan need to do is to stop trying to find a silver lining when talking of out of place institutions like the FSC. Instead, we need to dig out and revive those arguments that liberal judges had made prior to Cornelius’ ill-fated advice. Pakistan is home to many different kinds of Islamic sects, not to mention adherents of other religions. The different kind of Islamic sects cannot really agree on what it means to be a Muslim. Meanwhile, Pakistan is a modern state that has to exist in the modern world. When you talk of sharia, whose version are you going to implement? Will this argument not destroy the very fabric of the state? Has our experience over the last 40 years not shown us that this is an endless and fruitless debate that only weakens the state? As a Pakistani who wants this state to prosper and not just carry on in confusion, I reject the imposition of the FSC, designed to prop up General Zia’s military dictatorship, as having any legitimacy in deciding what is Islamic and what is not Islamic.

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