Just as the nation was getting ready to face the onslaught of religious parties and their jihadi adjuncts on the question of the blasphemy law, the Federal Shariat Court has ruled sections of the Women Protection Act (2006), among other legislations, to be violating the Constitution and given the government till June 2011 to remove the flaws in it. It has asserted its remit over the matter saying it is expressly permitted by the Constitution to review all legislation in the light of Quran and Sunnah.
It is sad that the Court has kept its eyes closed to the situation on the ground and obeyed the conservative tradition of following the letter of Islamic jurisprudential interpretation. Already, many Islamic laws in Pakistan are more honoured in their breach than their observance simply because their literalist application has neglected to take into account the social conditions in which the laws have to be prosecuted. Unfortunately, the utopian outlook seeks to coerce society into obedience with divine laws as handled by fallible human beings, rejecting the more realistic approach of moulding the law to the social conditions in which it has to be applied.
There are two ways laws can be made: by amending the Constitution; and by acts of parliament. In Pakistan there is a third way: a law may be promulgated by a military ruler which is later validated by a two-thirds majority in an elected parliament. In regard to Islamic law, a large section of the clerical community considers their interpretation of Islamic Law as being above any legislative process. Opposed to this view is the non-clerical opinion which believes in the sovereignty of the parliament, but this opinion is divided on liberal and conservative lines. This division tilts the debate in favour of the clerics who are empowered beyond normal levels to intimidate the executive, the media and the judiciary.
The latest verdict handed down by the Federal Shariat Court actually removes the legislative method of moderating the intensity of the application of Hudood Laws in today’s society. For instance, the clergy is divided over the question of rape. Again and again, ‘ulema’ have appeared on TV programmes to declare that a victim of rape should be partially considered culpable, insisting that she be subjected to the condition of producing four male eyewitnesses to prove that she has been forced to submit to sexual assault.
The law relating to zina — a part of the Hudood that the Federal Shariat Court seeks to protect as Islamic Law — had registered marked negative effects on society in Pakistan. Women daring to report rape were made to face charges of false accusation because they could not produce four eyewitnesses and were thereafter punished under the Qazaf law. The honourable Court has annulled that section of the Women’s Protection Act which sought to remove, through procedural changes, the abuse of the said law. Thousands of women who had rotted in jail simply because they protested rape have borne witness to the flaw in the literalist approach.
Will the bad days return for women? Already, the literalist approach has divided the judges at the high court level on the question of child marriage as raised in the Family Law Ordinance, leading to dubious implementation. The law of Diyat ordained by law has been subject to abuse by the powerful section of society which commits crimes of oppression against the weak sections. Procedural difficulties also haunt those who come under the effect of Diyat. In other extreme cases like cutting of hands, and stoning of people — mostly women whose witness is not accepted as full — Pakistan has saved its skin by somehow not enforcing the sentences. The same kind of thing has happened with the victims of the blasphemy law.
The unfolding of legal evolution in Pakistan tells us that conservative military rulers hand down literalist laws which then cannot be rolled back; and liberal military rulers hand down realistic laws which are then either removed by a conservative judiciary or by violence on the streets. General Ayub’s liberal Family Law Ordinance was never properly made a law as Pakistan evolved into a more ideologically strict society as time passed; the parliament under Musharraf accepted ‘modern’ provisions like joint electorates and women’s seats but could not amend the Constitution after three Women’s Rights Commissions steadily recommended the removal of the Hudood Laws, and had to be content with the Women’s Protection Act.
As judicial evolution has tended to favour strict ideology, extremism has gradually increased in Pakistani society. As an agent of negative change, the decision of the state to wage jihad through non-state actors has enriched and empowered a certain kind of clergy and their madrassas. Extremism is always tempered by law which is called ‘adl’ in Arabic which, in turn, means the ‘middle path’ and forms the word ‘etadaal’ meaning moderation. But in Pakistan, because of the street power of the clergy and the increasing recourse by the common man to the powerful jihadi organisations for problem-solving, extremism has been ‘enforced’ and has now become a part of our minds.
The government has already been intimidated into passivity on the question of Aasia Bibi. The judges have stayed the president from pardoning the Christian victim of the blasphemy law, and the clerics have threatened Islamabad with dire consequences if she is made to flee Pakistan. In the 1990s, when another pre-teen Christian victim Salamat Masih was sent into exile, the reaction was not so extreme; today in the case of Aasia Bibi, it is. In fact, the government risks a fall in the coming month when the clergy of Barelvi and Deobandi brands gets together with jihadi organisations, banned by the UN Security Council as terrorists, to prevent the government from tinkering with the procedures under the blasphemy law.
Women and non-Muslims in Pakistan bear the brunt of this extremism and lack of tolerance, mixed with xenophobia because the international community protests at what is happening in Pakistan. The Federal Shariat Court has indirectly expressed itself against procedural changes in the blasphemy law too and has once again ignored factors responsible for the malfunction of Islamic legal provisions.
Published in The Express Tribune, December 24th, 2010.