In traditional Islamic jurisprudence, there is considerable debate on when an individual who has gone “missing” can be pronounced dead. The primary focus was when the wife can be declared a widow for the purposes of inheritance and remarriage, etc. The position in the Hanafi School varies from 90 to 120 years since the “missing” person’s date of birth, a fair bit of wait. It is always unnerving in Pakistan to talk about “missing” persons, waiting periods and closure. However, the intention today is to draw attention to something else. Imam Abu Hanifa believed that the maximum period a woman can remain pregnant (gestation period) with a child was two years; Imam Malik, Imam Shaafaee and Imam Ahmad ibn Hanbal believed it to be four. We now know that to be medically impossible. All the four great Imams were amongst the best jurists of all times, with unparalleled nuance and insight, yet they did not get some of these things completely right. Why? Simple, because they were not men of science, they laid no claim to be as such and the scientific facts we hold to be self-evident today were not completely established or, at least, known to them at the time.
The Council of Islamic Ideology (CII) has no great men of science and the position seems to be identical on the religious jurist front. The CII has recently said that DNA evidence should not be acceptable as primary evidence in rape cases. The declaration is an affront to religion, science and basic sensitivity towards rape victims. To get some perspective on rape, Alexander Pope’s, “Rape of the lock” was proposed to be taken out of the curriculum because it had the undesirable word “rape” in it, while we have no problems with actual rape and its perpetrators — some priorities, right?
The CII has said this despite a relatively recent Supreme Court judgment, where the Court upheld DNA evidence as admissible. The petitioner in that case was one of the finest lawyers in this country, Mr Salman Raja, himself. The CII further said that the blasphemy law needs no amendment and other assorted gems. In a country where the Constitution not only lays down state religion but also stipulates that no law can be made against injunctions of religion, has an Islamised criminal justice system, a Federal Shariat Court, one should pause and ask, are we not trying a bit too hard? A body comparable with the CII in principle is the Guardian Council in Iran, an incredibly regressive body of jurists who act as a supra-legislative chamber.
Parliament is already under a legal obligation to make laws in accordance or, at least, not in conflict with religious dictates. What justification then is there for the existence of a body like the CII? Perhaps, because nobody wants the heat; in any event, it has only advisory jurisdiction, etc. True as that may be, the CII and the likes define the discourse and the space available for rational dialogue. And precisely for that reason needs to be abolished.
The strength and depth of Islamic jurisprudence has been its vibrancy, with Ijtihad being the primary vehicle. A discussion on the closing of the “gates of Ijtihad” and difference between small and capital “I”, Ijtihad are probably not suited for an opinion piece and I am certainly not equipped to do it. Yet, a basic template was laid down by Allama Iqbal, where ijtihad is conducted by Parliament. The collective will of the people decides matters of statecraft and the application of religious principles (if absolutely necessary) to it. It will not always be perfect, sometimes will be outright horrendous (the 2nd amendment) yet all things being equal, is still the best bet; actually the only bet. Somewhat ironically, the sole ownership of Iqbal, like much else now rests with idiotic conspiracy theorists and hate-mongers.
The refusal to think or think less than rationally is not restricted to matters of spirituality. Mr Imran Khan implores the new federal government to start shooting down drones. This is Mr Khan employing the “water-kit” model of politics, if you will. Drones are illegal and need to stop and the job of cleaning out the terrorists has to ideally be done by the Pakistani state. Considering the most recent strike, this might not be the best time to oppose their effectiveness. Apart from illegality, the main objection to drone strikes should be that they also reduce intellectual space. It gives the terror apologists an excuse to get riled up, they are ready and willing to be riled up by very little, yet the illegality of drones gives them the additional push. The only really interesting thing about the serious national debate in Pakistan on drones, terrorism and sovereignty is that there is practically none.
With the abdication of this space for rational discourse, it is useful to remember that things do not remain the same. The most harrowing example remains when Salmaan Taseer was assassinated because disagreement on the current temporal blasphemy law provisions in the Penal Code was construed by some as blasphemy. A lot of space had to be ceded for something like that to happen, more was ceded in the aftermath, now there is not much space left to surrender. For the liberal, secular and democratic voices to retain the very little influence that they have right now, a fight has to be put up. That is true for the role of religion and the tenability of the federation. The demand for abolishing the CII and the Federal Shariat Court might seem unrealistic right now, yet it has to be made. In this instance, the case for abolishing the CII has to be made for the rape victims and for decency. Also to stop making the demand, to stop protesting means to surrender. And it never means status quo, it will get worse. To quote one of the most eloquent religious conservatives, GK Chesterton, “If you leave a thing alone, you leave it to a torrent of change. If you leave a white post alone, it will soon be a black post. If you particularly want it to be white, you must be always painting it again; that is, you must be always having a revolution. Briefly, if you want the old white post, you must have a new white post.”
Published in The Express Tribune, June 2nd, 2013.