Rearticulating law in Pakistan

Categorisation of Islamic religious law as part of the legal system seems to be an invention of the colonial courts.

In a letter of 1855, written to the last Mughal emperor, Bahadur Shah Zafar II, a leading scholar of India, Fazli Haqq Khayrabadi, states the following:

“This land’s people, be they Muslim or Hindu, are farmers, labourers, merchants, stipendiaries, scholars, and beggars … For as long as the government was under the control of kings and rajas, there was never any shortage of means of livelihood. But since the British have come to hold sway, the situation has become such that the populace is in dire shape. This is so because all but a few means of livelihood have been closed off by the new government. And even now, as the skeleton of governmental organisation is transforming, these means seem to be disappearing … The government has taken control of all commodities, such as cloth, wool, horses, etc. It brings these items from England and sells them in all the cities of India to make profit, leaving no possibility of profit for its own citizens. In addition, according to the laws of 1801 and 1803, the government had stipulated that no non-kharaj land will be confiscated, regardless of its status. Yet, now without any further inquiry, these lands have been confiscated in every district … Taxes have been increased on the poor farmers to the point that they have left their lands and have taken to begging. Despite all these troubles, we formerly received the command from Sir Charles Metcalfe (1846 CE) that the poor should perform the function of guards at neighbourhood checkpoints. This had never happened in the days of the sultans, but the command of the ruler is not to be disobeyed and so we complied. The government, despite its unwise and unjust objectives, is legitimate, because it is agreed to be so. As such, its particular commands and laws are also legitimate, though these do not correspond with the Sharia in a number of ways.”

The aforementioned excerpt from the letter suggests the deep despair that Khayrabadi felt for the economic situation of Indians under British rule. Following the litany, however, he did not promote an adverse reaction to the government; rather, he called its actions legitimate. This legitimacy of the government’s commands and laws seem entirely distinct from and independent of the religious law. In other words, it is not the imposition of the Sharia in any form that made the government or its laws legitimate; as a matter of fact, it seems that, for Khayrabadi, no particular legal system is legitimate as such. It is the very fact of being the recognised political power that makes the government and its laws legitimate.

A few months ago, the TTP Shura issued a 15-point summary of its demands to the government of Pakistan. Foundational to the items on the list is a conception of the Sharia as the only legitimising grounds of a state. That the legitimacy of a Muslim state is conditional upon any legal tradition is a modern inversion of the historical stance of Muslim scholars and scholarship on this issue. This conception is, in fact, paradoxically an entirely colonial exigency that has backfired in the context of the modern Muslim nation-state; it is a classic case of modernity undoing itself. The upshot of the details to follow is that if Pakistan wishes to survive its abysmal crisis, rather than arguing about which law must be implemented, it must reconsider the terms of the dialogue about the status of law in a Muslim-majority state.

It is interesting to note that for Khayrabadi, the Sharia is a particular system, distinct from the government and its laws, guaranteed by the legitimate government and its laws as a kind of negative freedom; it is not even subsumed within the body of laws of an existing government and it seems to have no statutory status.

Two years later, Khayrabadi issued a famous fatwa of jihad against the British that was the major catalyst for the famous First War of Independence. As far as we can tell from reports, the question of Sharia was never raised in the fatwa. In his The Indian Revolution, he states that the duty of any legitimate government is to deliver on the freedoms it and its laws guarantee to those living under them. In the case of the Muslims, the government and laws of the British had guaranteed religious freedom, here made explicit by Khayrabadi in terms of the freedom to propagate religious knowledge via special educational institutions such as madrassas, dress according to the guidelines of the religious law, perform circumcision and sustain and establish commercial relations according to customs. These promises were not kept. And it was this failure — not the failure to implement the Sharia, but to grant promised freedoms — that made the government illegitimate.

Here is an item from the mountain of historical evidence. In 1921, another fatwa of Jihad was issued by the Allamat al Hind Mawlana Muin al Din Ajmiri. At the end of the trial, the British magistrate had the following to say:-

“[You] have argued that the law guarantees freedom of religious exercise. [You] have further stated that the principle of non-interference in religious matters is mentioned in Queen Victoria’s announcement of 1857. Thus, when religion commands a person to perform an act and when such an act is against the law, the law cannot declare such an act to be criminal…

[Yet] if there is a principle in the legal history of England greater than all other principles, it is that the law itself is the final and inevitable guarantor of the will of the ruler. No announcement of any ruler can abrogate the law.

…There is a written constitution in America. There, the courts may refuse to implement a law posited by legal scholars, if this law contradicts the written constitution … There is no written constitution in England. Thus, there is no point of reference other than the national law that is accepted by the courts. .. so how can it be that the mere announcement of a ruler can lead to the abrogation of the law?...

…Similarly, the idea that when the law conflicts with religion one should not follow the law — this idea is nothing other than to provide a point of reference higher than the law … it is clear that since this court is based on the law, no proof can be put forth to make the law itself obsolete, so as to neutralise the very effectiveness of the law. No religion or ruler is a principle higher than the law, so as to make it obsolete….

…Then religious exercise, even as a most general type of freedom, still presents itself as something particular and is part of the set of specific legal activities under the law….”

Like Khayrabadi, Ajmiri seems to hold the formula that the legitimate ruler, Queen Victoria, has guaranteed certain basic freedoms and that the positive laws of England cannot override such a guarantee. In other words, the law is legitimate via the ruler, who is superior to it, not the other way round. The magistrate equates this way of legal conceptualisation to the American system, where the constitution (an analog of the ruler) is superior to the laws and is the foundation of the legal system. He then points out that the legal system of England, by contrast, does not recognise any principle superior to the body of the law itself. Indeed even the religious laws are part and parcel of the body of the law. As in the case of Khayrabadi, so here too the magistrate does not consider religious exercise either as a general negative freedom granted to the citizenry or as a principle higher than the law itself. Rather, religious acts are part of the set of legal acts that fall within the vast body of prosecutable actions judged in the court.

The legitimacy of the state was not contingent on the nature of the law and Muslim positive law, in the context of organised society was not statutory or codified. It had no power to grant legitimacy. Rather and conversely, it was itself guaranteed by a legitimate state.

The statutory nature of the Sharia begins to emerge, paradoxically, in the colonial British courts. It is this legacy that led to a reimagining of the role of Sharia and that now plagues the modern Muslim nation-state. The categorisation of Islamic religious law and practice as part of the legal system of the state or as something superior to the state seems to be an invention of the colonial courts (here one may recall the concerted efforts of the imperial administration to translate and codify Islamic law and to train British subjects as orientalist administrators — the magistrate is a prime example of such a functionary). Once this legal system was equated with the religious law itself and as this different mode of legal conceptualisation was widely embraced, the legitimacy of the state and political rule naturally became dependent on such a religious law.

The debate at this stage, therefore, should not be about which law — secular or religious — implemented in Pakistan. It is the framework of the debate itself that needs to be recast.

Published in The Express Tribune, July 22^nd, 2014.

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