Islamic Laws in the Islamic Republic of Pakistan

Introduction

The teachings of Islam cover the private moral life of an individual as well as the collective lives of communities and societies. Islamic teachings give the collective considerable powers to regulate the personal lives of individuals whereas in the current Western thinking the personal freedom of an individual is held to be supreme and the imposition of collective demands upon the private lives of individuals is held to be a type of tyranny. Pakistan is a prominent Muslim majority country where there exists a great demand for the imposition of Islamic laws. This demand causes tensions raises tensions between the current west dominated international community and the government of Pakistan as well as between the Pakistani administration and the Muslim masses of Pakistan.

Religious Distribution of Pakistan

Pakistan is a multi-ethnic state where over 96 percent of the population is Muslim. Muslims, Hindus, Christians, Sikhs, and Bahais form most of the rest of the population (CIA). Of the Muslim population, approximately 95 percent is composed of Sunni Muslims (CIA). Various branches of Shi’ites form the rest of the Muslim population¹.

State of the Official Laws of Pakistan

The laws currently in place in Pakistan are mostly those inherited from the colonial British Empire. Throughout the years successive Pakistani governments have added various changes to these laws. Some of these changes include piecemeal additions of Islamic laws. Islam has also been given an important place in the constitution of the country. The constitution declares the country to be an Islamic Republic and declares all sovereignty lies with God. The constitution declares as null and void all laws that are contrary to Islam. However in practice the laws are much the same as they were during colonial times, with the basic legal structure of the country being formed upon British colonial laws upon which a patina of Islamic laws has been added (Habib).

Extent of the Reach of Pakistani Laws

Pakistani lands are constitutionally divided into two regions, the greater part of the country consists of what are termed the “Settled lands”. On the settled lands, the writ of the government of Pakistan applies. These are lands which were fully subdued by the British during their period of rule. A large section of lands in the Khyber Pakhtunkhwa and Baluchistan province consists of what are known as the Tribal Areas.

These are self governing areas consisting of many independent tribes which the British found impossible to subdue completely. The British method for dealing with these tribes was to impose collective punishments upon them in case one or more of their number raised arms against the British. These tribes are affiliated by treaty with the Pakistani government and the collective punishment system continues to this day (al-Bakri).

When we speak of the Pakistani laws, we are referring only to the laws in place in the settled areas of the country, as for the tribal areas, they are either ruled by informal codes of law or have their own codes of law separate from Pakistani laws (al-Bakri).

Folk Justice in Pakistan as Distinct from the Shari’ah

In many rural areas of Pakistan, the presence or influence of the government is negligible and nor do religious clerics have much political or social standing². In such areas disputes are usually settled by councils of community elders, landowners and tribal chieftains. These areas exist both in the tribal and the settled lands of the country. Depending on the region, each of these informal courts for dispensing folk justice is referred to as a Panchayat or a Jirga. The jirga and its rulings are respected by the village on account of the fact that the jirga is composed of the most respected individuals of the village. As a result, the villagers tend to see the jirga’s rulings as those that qualify religious and political criteria. The jirga is responsible for dispensing what can best be referred to as folk justice (Abdurrahman).

Every time a problem comes forth, the jirga takes control by serving as a judge and jury. The jirga listens to the query at hand and then takes time to discuss the matter if necessary. A verdict given by the jirga has to be followed at all costs. The jirga’s rulings tend to hold unwavering significance in the eyes of the village people and no villager has the right to oppose the jirga’s rulings (Abdurrahman).

However, it is imperative to note that the jirga does not function in accordance with any standardized guidelines. This brand of folk justice prevails because of a number of reasons; however, one of the most important of these is that there is no government presence in that region. The complete absence of government intervention provides the jirga the unmonitored environment it needs to develop its strength over time. In essence, as time passes by, each generation in the village tends to give increasing reverence to the jirga (Abdurrahman).

There are considerable differences between justice as conceived by the clerics and religious fundamentalists and the ideas of folk justice. In contrast to the Shari’ah where ascertaining the guilty individuals in any conflict and establishing the proof of their guilt is of paramount importance, folk or tribal justice views conflicts in collective terms, thus if a member of one tribe kills a member of another tribe, according to folk justice, the tribe to which the aggressor belonged “owe a life” to the tribe of the victim and they would be justified in killing one member of the aggressor’s tribe regardless of whether that individual was the murderer or not (Abdurrahman).

These ideas of collective responsibility are collective reciprocity have in some cases been extended to crimes such as rape of females, one recent case of this was the famous Mukhtaran Mai case where a village council sentenced a woman to be raped, in punishment for the alleged harassment of girls from another tribe committed by one of her brothers. Mukhtaran Mai’s cause was first taken up by the local clergyman (Abdurrahman).

Another aspect of folk justice which conflicts with the demands of the Shari’ah concerns the use of marriages to settle tribal disputes. The tribe or family judged to be the guilty party in a tribal council may be sentenced to give their unwed daughters in marriage to the men of the party judged to be the victims. This custom, commonly referred to as ‘Wani’ has also been condemned by religious clerics as being un-Islamic (Abdurrahman).

Federal Shariat Courts

In order to satisfy the demand for the imposition of Shari’ah laws in the country a parallel system of legal administration called the Federal Shariat courts exist in the country. The Federal Shariat Courts are limited in their jurisdiction and the laws on which they operate are frequently challenged by the religious classes as not being sufficiently Islamic or being based on a deliberate misinterpretation of Islamic laws (Yunus).

Popularity of the Demand for Islamic Law

According to a 2008 survey conducted on behalf of the non-partisan American think tank Terror Free Tomorrow, 36.8 percent of the Pakistani population thought that it was very important goal for the Pakistani government to impose strict Shari’ah law throughout Pakistan, while 37.9 percent thought that it was a somewhat important goal. In contrast 11.8 percent considered it to be somewhat unimportant while 7.2 considered it to be not important at all. From the survey it is obvious that having their government impose the Shari’ah in Pakistan is a vision shared by nearly 75% of the population of the country (Terror Free Tomorrow).

Opposition Movements often take on an Islamic Character

One aspect of the deeply religious Pakistani society is that dissatisfaction with the government often takes on an Islamic character. In 1953, merely six years after the creation of Pakistan riots broke out against the influence of the cult-like Ahmediyya sect (which was widely anathematized by religious clerics of most other Islamic schools of thought). It is thought by some commentators that such expressions of anger against minority sects are a result of the failure of the Pakistani estate to establish it’s ‘Islamic’ legitimacy in the eyes of the Muslim public (Daechsel).

Another major opposition movement was the ‘Nizam-e-Mustafa’ movement launched against the Zulfiqar Ali Bhutto government. The goals of the movement were to establish an Islamic civil order and financial system and reflected mass dissatisfaction with the economic policies of the Bhutto administration (Khariq).

Secular Parties Invoke Islam and Islamic Symbolism

In Pakistani politics the invocation of Islamic symbols, concepts and beliefs for political purposes is not limited to the expressly religious political parties; rather it is something indulged in by both religious and non-religious parties. The extent to which the people of Pakistan are a religious people can be gauged from the fact there exist no popular political parties in Pakistan which advocate secularism or the idea of separation between religion and state. It is common for supposedly left-wing and progressive political parties to use religious imagery and affirm the Islamic nature of the country in their political messages (Malik).

An example of this can be seen in the public behavior of the former Prime Minister Benazir Bhutto, despite belonging to a thoroughly Westernized family and being a graduate of the Cambridge university, Bhutto found it necessary to don the Islamic head covering when she entered politics(Ahmed).

A further example of this may be seen in the attempt, by Bhutto’s political party, to use Bhutto’s assassination and the killings of various other members of their party as rhetorical tool in establishing the ‘Islamic’ credentials of the party. Thus the assassinated Benazir Bhutto and her father Zulfiqar Ali Bhutto are both referred to as “Shaheed” i.e. martyrs in the Islamic cause(PPP.org.pk). A breakaway faction of the party, maintains a whole list of ‘Islamic Martyrs’ on its website, headed by the slogan “Martyrs never die”, a probable reference to the Quran (3:169)³(PPPSB.net).

The use of Islamic symbols by all popular parties, even ones which are not expressly religious, shows how deeply entrenched religious thinking is in the Pakistani public and casts into doubt the idea that the Pakistani public must be in favor of secularism since the expressly religious parties have not had much success in elections, except as part of broad ranging coalitions.

Democratic and Popular Governments offer more Concessions to Religious Groups than Military Dictatorships

A common misconception regarding Islamic laws in Pakistan is that these laws have mostly been promulgated by unpopular military regimes. In reality Pakistan has had four military dictators and of these four, only one namely Zia ul Haq has been sympathetic to the enforcement of Islamic laws and to the religious classes, the other three military regimes mostly had an adversarial relationship with the religious classes. The Islamic aspects of the Pakistani government have mostly been promulgated by populist and democratic governments rather than military dictatorships, for example the democratically elected Zulfiqar Ali Bhutto government passed the Islamic constitution of 1973, the ban on alcoholic drinks and the official declaration of the heterodox Ahmadiyya⁴ sect as a non-Muslim group (Askari).

On the other hand the first military dictatorship that of Ayyub Khan was responsible for promulgating the Muslim Family Ordinance, which was widely condemned by the religious classes as a set of un-Islamic laws based on western thought (Askari).

Reasons why Islamic Laws are not Implemented in Pakistan

The socio-political situation of Pakistan is such that despite the promulgation of the country as an Islamic Republic and the popular demand for the imposition of the Islamic system of governance, the governance of the country continues to be based on the pre-Independence colonial laws. There are several reasons for this state of affairs. Here we shall endeavor to expand upon some of the most reasons for this state of affairs.

Distaste of Westernized Elite for Religious Classes and Religion in General

All India Muslim League, the party that was responsible for the division of the British India into the nations of India and Pakistan consisted of people who could be considered to be imperial collaborators. The party was headed by ‘Sirs’, ‘Nawabs’⁵, ‘Chaudharies⁶’ and the like whose fortunes were built upon their cooperation with their British colonial administration. These people usually received a Western education were much more likely than the rest of the country to be in ideological harmony with the British elite.

After partition this class successfully retained their privilege in contrast to India where an anti-imperialist government carried out extensive redistributive programs which reduced the economic and political power of the ideologically compromised class. This meant that the Indian government was more ideologically free to chart an independent domestic and foreign policy as compared to Pakistan where the ruling class has always sought to gain favor with Western powers (Stern).

Pakistani Governments are Perpetually Dependant Foreign Aid

Another important reason why the Pakistani ruling class abstains from acting upon the popular demands of their constituents is because they are perpetually seeking increasing amounts of foreign aid from Western powers and wish to minimize any action which would result in a drop in the flow of aid. Since the promulgation of Islamic laws, many of which are considered politically incorrect in the Western cultural milieu, because of the explicit privileging of Islam over other religions, regulation of sexuality and prohibition of homosexuality etc. that is found in Islamic law would result in the raising of enormous amounts of hue and cry among the donor nations, Pakistani rulers may feel that it is safer to ignore the demand of their people than to risk a suspension of foreign aid (Habib).

Pakistan is a Signatory to Various International Treaties that deal with Human Rights

Another reason why the Pakistani ruling class fails to implement the demands of the Pakistani public is because throughout the years they have, without fail continued to join various international treaties which oblige constituent nations to act in accordance to principles that are based upon Western/Secularist thinking rather than Islamic Laws (Habib).

Some Aspects of the Shari’ah

The Difference between Islamic and Secular Law

Secular law is perceived to come from the people, whether it is the elected representative of the people or the constitutional monarch or a military dictator. The main difference between Islamic law and secular law is the source of law. According to Muslim beliefs Islamic law stems from divine authority as revealed to the Prophet Muhammad. Muslim Jurists have developed Islamic laws covering all matters of life, primarily from the words of the Quran and the sayings of the Prophet (Askari).

Another aspect of difference between Islamic and Secular law is that secular law is quite distinct from such things as a personal code of conduct or moral standpoint regarding issues. Islamic laws on the other hand are not clearly distinct from all the other rulings and teachings of Islam. Just as the Islamic faith requires people to pray five times, give alms and abstain from certain types of food and drink, in the same way, the Muslim governments are required to enforce certain laws, impose certain punishments on those that break these laws and use certain means of investigating criminals and judging the crime or guilt of individuals (Askari).

The Sanctity of Private Homes

Muslim tradition views the home as a sanctified and sacrosanct space. The Arabic words for ‘house’ are also used in a symbolic sense for Mosques and the Holy Mosque in Mecca (Marcus). The house’s position as a sacrosanct place demands that it should be free from the prying eyes of unwanted people (Celik).

In al-Bukhari’s Adab al-Mufrad there are several narrations where the believers have been enjoined to refrain from casting glances and peeking through the open doors and windows of other people’s houses. Some of these narrations declare that there is no sin upon a person that if the person being spied upon, throws something at the one who is spying and it hits an eye of that person, blinding them (Azami).

The Islamic prohibitions against invading the sanctity of private homes extend to law enforcement officials as much as it does to private citizens. Islamic law prohibits government officials from violating the sanctity of private homes unless they believe that the rights of a third party are being violated for example it would be alright to invade a home if there was a strong suspicion that someone was being held captive there (al-Hasani).

The Prohibition against Eavesdropping on the Private Conversations of People

Islamic laws forbid a Muslim from trying to hear the private conversation of two people. According to Islamic belief, a person who tries to listen in on other people’s conversation which they do not wish to share with them, shall be punished in the afterlife with having molten lead poured in his ears (al-‘Alwani and DeLorenzo).

The right to privacy extends to written communications as well. Islamic rules forbid people from reading the letters of others. The act of one who takes a peek inside the personal letter of his fellow Muslim is likened to taking a peek into hellfire (Fatehpuri).

Again this injunction of Islam is not limited to private citizens, but extends to law enforcement officials as well; however law enforcement officials are allowed to engage in limited eavesdropping in exceptional circumstances. Muslim jurists disagree on the status of evidence obtained through eavesdropping, a section of Muslim jurists holds the view that evidence obtained through spying and eavesdropping is inadmissible as evidence to prove the guilt of someone in court, this is because spying and eavesdropping themselves are forbidden acts, which law enforcement officials are only allowed to engage in, in exceptional circumstances (al-Hasani).

Innocent Until Proven Guilty

In the Quran it is said:

ye who believe! Shun much suspicion; for lo! some suspicion is a crime. And spy not, neither backbite one another. Would one of you love to eat the flesh of his dead brother ? Ye abhor that (so abhor the other)! And keep your duty (to Allah). Lo! Allah is Relenting, Merciful.. (The Quran 49:12)

This Quranic verse enjoins believers to assume innocence and good faith in other people and to avoid suspecting them of evil intention and wrongdoing. Abu Bakr al-Jassas said in his exegesis that this verse forbids the Muslims from being suspicious about a person’s hidden sins if they do no public acts of wrongdoing and enjoins them to hide the sins of people who are not obvious and insistent upon their sins (Karim).

Sources of the Shari’ah Law

The laws of the Shari’ah have been derived by Islamic jurists from a several different sources. The Muslim holy book, the Quran is the first and the most important source of the laws of Shari’ah. A second source of the Shari’ah is the practices and narrated sayings of the Prophet Muhammad, known as the Sunnah. A third element of the Islamic Shari’ah is the consensus of the religious scholars of the Muslim community.

According to Muslim belief, consensus forms a strong basis for the Shari’ah law because the Muslim community, on the whole cannot be united on error, therefore the absence of a dissenting view on an issue means that the position of Muslim scholars on the issue is correct in the eyes of God. A fourth source of Islamic law is Qiyas or analogical reasoning. Qiyas involves the derivation of broad principles from the established matters of Muslim jurisprudence and the use of such principles to solve the outstanding legal disputes. Qiyas is a much more controversial principle of Islamic jurisprudence; however it has widely resorted to by the Hanafi School of jurisprudence which is the dominant school of Sunni jurisprudence in the Indian subcontinent⁷ (Askari).

Purposes of an Islamic Government According to Islamic Thought

According to Muslim philosophers there is a lot of benefit to be drawn from an Islamic government. The Islamic government has been charged with protecting the faith, the honor, the life and the property of Muslim people (Askari).

Protection of life

One of the major duties of the Islamic government is to protect the lives of its citizens. According to Islamic law the citizen of the Islamic state include the Muslims residing there as well as the non-Muslim residents who have a treaty with the Islamic government giving them guaranteed (Dhimmi) status in the Islamic country. It is the duty of the Muslim government to protect the lives of both these groups of citizens. Some of the ways in which an Islamic government is supposed to protect the lives of its citizens includes the suppression of bandits and rebels and the enforcement of penalties for the crime of murder (Rashidi).

Protection of Honor

In Islamic thought personal honor and respect of an individual valued more than their life. Islamic governments are supposed to protect the honor of citizens by protecting them from false rumors and libel. Rumor mongering and speculation about a person’s bad deeds without proof is considered to be a major sin. Books of Islamic law declare that the act of preserving a Muslim’s honor by keeping unseemly facts about them a secret is a great virtue. According to a Hadith narration the one who keeps the private sins of another Muslims a secret, God will keep his failings a secret in this world and after-world (Azami). Another narration declared that the heavenly reward for keeping the sins of a Muslim secret is equal to the reward of one who saves the life of an infant girl child buried at birth⁸ (Azami).

Muslim governments too, are forbidden from snooping in the private matters of people without reason and to prevent libel and rumor mongering against them. One of the most severe criminal acts in Islamic law is the imputation of illegal sexual intercourse upon a pious Muslim woman (Rashidi).

Protection of Inheritance

In Islamic thought, the protection of each individual’s worldly inheritance is considered to be one of the main tasks of the government. There are two aspects to this; the first aspect relates to the government’s responsibility to prevent illegal sexual intercourse so that all biological offspring of an individual are properly attributed to them and all offspring attributed to a person are really their biological descendants.

The other aspect of this responsibility relates to giving each of a deceased person’s relatives their due share in the wealth that they leave behind. The Shari’ah contains detailed instructions about how the estate of a deceased individual is to be divided, with a certain fixed share for each of their wives, sons, daughters, parents and siblings. The bequeathment of more than one third of a deceased person’s estate is forbidden in the Shariah; at least two-thirds of the estate has to be disposed off according to the prescribed formulae (Zabihullah).

Protection of Intellect

One of major responsibilities of the Islamic government, according to Islamic philosophy, is that the government is the protector of Muslim public’s intellect. The government is required to ban the sale or consumption of substances which result in the temporary or permanent loss of intellect. The prohibition against the sale or consumption of alcohol and other intoxicating substances is included within this responsibility of the governments. According to some interpretations of the Shari’ah, it is also the government’s duty to destroy musical instruments which contribute to the creation of an ecstatic state of mind in their listeners (Rashidi).

Protection of Property

Protection of people’s personal property is one of the major responsibilities of the Islamic governments. The actions of the government which contribute to the protection of personal property include the elimination of bandits and highwaymen, punishing thieves and pickpockets, frauds, quacks and people who adulterate in food stuffs etc. (Rashidi).

Protection of Faith

The primary task of the Muslim government, according to Islamic thought, is the safeguarding of the faith of the Muslim public. The government is to perform this task by preventing the preaching of non-Islamic religions to the Muslim population, suppressing religious heresies and heterodox opinions among Muslim preachers and instituting means for dispensing knowledge of Islam among the Muslim masses including the formation of schools, the construction of Mosques and financial support of religious teachers and clergymen (Rashidi).

Activities recommended for a Muslim government in pursuant of the protection of the Islamic faith include the prosecution of soothsayers, fortune tellers, astrologists, palmists, magicians and witch doctors etc. who are considered to be threats to the pure Islamic faith who reduce the commoners belief in God alone as the disposer of affairs and are the source of superstitious beliefs and practices (Rashidi).

The prosecution of apostates from Islam is another means of protection of the faith, punishment of apostates, heretics and the advocates of non-Islamic religions or heretic sects encourage greater social cohesion through uniformity of belief, it also discourages those who would spread divisive beliefs and practices and those who might otherwise consider adopting these beliefs or practices (Rashidi).

Laws of Trade and Finance

The Islamic Shari’ah contains extensive laws regulating the buying and selling of goods. The Shari’ah prohibits the use of deceptive and unfair practices in trade and business. Islamic laws governing financial transactions include laws banning the sale of uncertain quantities (Bayy al-Gharar) and unnecessary risk-taking. Islamic laws prohibit the sale of substances whose consumption is forbidden to Muslims, however there exists difference of opinion among jurists as to whether alcohol and other intoxicants etc. may be sold to non-Muslims residing in non-Muslim lands (Qamar).

Another section of financial laws govern items taken on rent and kept as collateral the responsibility of damages etc. and growth in case the items are livestock etc. Islamic laws also ban transactions that include the giving of usurious interest. In Islamic law usury (Riba) is defined as the exchange of one item for a greater or smaller quantity of the same item (Qamar).

Laws Concerning Marriage and Divorce

In Sunni Islamic law, marriage of a man or a woman needs to occur in front of at least two witnesses to be considered acceptable. An adult man or woman may not be married off without against their will while the guardians of a child have the authority to marry them off without taking into account their opinion. The marriage of the prepubescent child may be annulled if it becomes clear that the guardians did not act in their best interests (al-Hasani).

Islamic law expressly allows polygamy, the Muslim men are allowed to marry up to four wives. Islamic law limits marriage between Muslims and non-Muslims. Non-Muslim men are not permitted to marry Muslim women, however Muslim men are allowed to take wives among the Christians and the Jews, however the Quran recommends that Muslim men only marry Muslim women (al-Hasani).

By default, in Islamic law the right of divorce lies with the husband. The husband may pronounce the divorce verbally or in writing. The woman may seek an annulment (Khula) by offering the husband the return of part or all of the wealth that he gave to his wife as dower. Demand of any more wealth than that which was given as dower is considered reprehensible on the part of the husband (al-Hasani). Islamic marriage contracts may be written to allow the wife to have the right of divorce as well, in case a woman has such a right, she may annul her marriage verbally or in writing (al-Hasani).

Reciprocity in Injury or Damages

According to the rules of the Shari’ah, if someone deliberately injures another, is the right of the victim that an equivalent retribution be visited upon the aggressor. Islamic law allows, the taking of an “eye for an eye” however, according to the Quran it is recommended to abstain from retribution and it is expressly forbidden to take retribution which is in excess of the initial injury or loss (Steele).

Hudood

The word Hudood refers to religious censure and prohibitions against major crimes. In the technical language of Islamic law Hudood refers to the institutional punishments enforced in six broad areas of crime; theft, banditry or armed robbery, illicit sexual intercourse, false accusation of illicit sexual intercourse, drunkenness and apostasy. Under Islamic law, the theft of something of value equal to or greater than the price of a shield from a protected space is punishable by amputation of a hand. Banditry or armed robbery is punishable by death, crucifixion, the amputation of an arm and a leg from opposite sides or expulsion from the land.

Illicit sexual intercourse is a hundred stripes for unmarried people who engage in it and stoning to death for the married people, falsely accusing someone of illegal sexual intercourse is punishable by eighty stripes with a whip and drunkenness is punishable by forty stripes. Apostasy refers to the act of a Muslim leaving Islam for another religion or adopting a belief that is considered to invalidate the Islamic belief. In classical Islamic law such a person is given three days in which to repent, if they do not revert to Islamic belief by the third day, they are to be killed (Askari).

Hudud laws can only be implemented if four pious Muslim males give evidence that they witnessed the accused committing the act. Islamic legal theory discourages the imposition of Hudud laws. In case the strict evidence requirements of the laws aren’t met but the judge believes that the accused probably did commit the act, they can award a lesser punishment to the accused which is known as a Ta’zir. The extent of the Ta’zir punishments is left to the discretion of the judges (Coulson).

Dhimma Laws

The Shari’ah expressly discriminates between the Muslim and non-Muslim citizens of an Islamic country. Depending upon the initial conditions upon which a non-Muslim community accepted Islamic rule over themselves their individuals may be required to pay a special tax called the ‘Jizya’ or tribute from which Muslims are exempt, be forbidden from keeping or displaying weapons and be forbidden from adopting manners of dress particular to Muslims such as the veil for Muslim women. Non-Muslim communities may also be forbidden from building new places of worship or building places of worship which are taller than nearby Mosques (Nasir).

According to the Shari’ah, non-Muslim citizens of Islamic state are exempt from military service, in case of Jews and Christians their personal laws are handled by their own religious courts, however if a Jew or Christian seeks the intervention of Muslim authorities, they have the power to annul the rulings of the non-Muslim court (Siddiqui).

Objectives resolution

The ‘Objectives Resolution’ a basic preamble to the constitution of Pakistan was passed by the constituent assembly in 1949. The resolution states that sovereignty belongs to God alone, the government of Pakistan has been delegated the power to rule the country by God, through the agency of the people and the government is to consider this power as a sacred trust from God. The resolution declares that the principles of democracy, freedom, equality, tolerance and social justice shall be observed in Pakistan, according to the teachings of Islam. The resolution declared that Pakistan shall enable Muslims to order their individual and collective lives in accordance with the Quran and the Sunnah (Khariq).

The Muslim Family Laws Ordinance of 1961

The Muslim family laws ordinance of 1961, passed by the military dictator Ayyub Khan sought to bring in modernist reformations to Islamic jurisprudence. The ordinance placed further restrictions on Islamic polygamy, declaring that a man who wished to marry a second wife would have to obtain the permission of his first wife (Quraishi).

The ordinance also declared that divorce would not come into effect by the pronouncement of the verbal declaration of divorce; rather the certificate of divorce could only be obtained after attempts at reconciliation by an arbitration committee (Quraishi).

The ordinance was widely rejected by the religious classes as an un-Islamic, both positions are not supported by any Islamic texts or pronouncements of classical Islamic jurists (Yunus).

Financial Laws of the Shari’ah

A section of Islamic laws to which the government of Pakistan has shown the most resistance is the laws dealing with regulation of financial matters. The modern system of finance and banking is heavily based upon the use of usurious interest. In the initial draft for the imposition of the Shari’ah in Pakistan, the government was given a period of two years to replace the current financial system with an Islamic banking system.

However the government decided to unilaterally increase this period from two years to ten years. The expiry of the ten year period occurred during the military rule of General Pervez Musharraf. In December 1999, the Supreme Court of Pakistan ruled that interest on bank loans was usurious and prohibited by Islam. After a series of appeals the banks had up to 2003 to replace their existing structures with Islamic banking systems, however since the Musharraf regime was uninterested in carrying this out the matter was shelved and is yet unresolved (Qamar).

Enforcement of Dhimma Laws in Pakistan

The enforcement of discriminative sumptuary laws against non-Muslim subjects has not been a common practice among Muslim rulers in the Indian subcontinent. In Pakistan too such laws are non-existent. However placing special taxation on non-Muslim minorities and enforcing sumptuary laws targeting them is part of the agenda of some religious groups in Pakistan (Nasir).

Islamic Provisions of the 1973 Constitution

The constitution of Pakistan passed in 1973, contains several Islamic provisions. In contrast to earlier proclamations, the constitution explicitly proclaims the Islamic nature of the country and confirms that the government and legislation of Pakistan should be made in accordance with the laws of Islam as laid out in the Quran and the Sunnah. The constitution also declares the heterodox Ahmadiyya sect to be non-Muslims in accordance with the beliefs of the orthodox Sunni scholars. The constitution defines a Muslim to be one who believes in the oneness of God and believes that the Prophet Muhammad is the final prophet sent by God. The constitution also declares that it is the duty of the state to eradicate social evils like prostitution, gambling drinking, the use of narcotics and the publication and display of pornography (Khariq).

Blasphemy Laws

According to the blasphemy provisions of Pakistani law deliberately wounding the religious feelings of any citizen (Muslim or non-Muslim) is punishable by fine, one year’s imprisonment or both. Blaspheming the prophet of Islam or committing sacrilege against the Quran is punishable by death (Askari).

The Hudood Ordinance and Its Revisions

The Hudood laws were first promulgated by the Zia ul Haq military regime. The government was not interested in actually implementing any of the laws and the passage of the ordinance was part of the effort to appease Islamists (Askari).

The Hudood ordinance was amended by the military regime of Pervez Musharraf with the passage of the ‘Women’s Protection Ordinance’. It was alleged that the government and the media engaged in a massive campaign of misinformation regarding the Hudood laws with the intent of bringing about legislation which is intended to appease western concerns about human rights in Pakistan (Askari).

Religious elements in Pakistan frequently blame the law enforcement and judicial system as the reason for the problems arising in the enforcement of the Hudood Laws. In the words of a prominent cleric:

“The reality is that even when we have good laws, the police due to its wrong procedures, corruption and laziness destroy their benefit, as a result of this sometimes the victim is punished instead of the aggressor. So it’s possible that some incidents of this type happened in the beginning due to the wrong actions of the police. You see nowadays, if you go to the police station and report that your house has been burgled, it is you who will be caught; the police will not catch the thief, rather you will be obliged to present yourself to the police station repeatedly, in the same manner if someone witnesses a burglary and comes forward with a truthful testimony, they will have to attend sessions after session before the magistrates and the courts. So these things happen because of the wrong system prevalent in the courts, this is because the outdated laws and procedures of the British are still in place” (Usmani).

The Women’s Protection Bill has created a distinction between the Hudood punishment given to the rapist and the one given to those who have committed illegal sexual intercourse willingly. Under the new laws, rapists could be given a death sentence or from ten to fifty years in jail. This has been criticized by religious elements who say that the rapists should be awarded the same punishment as those who commit illegal sexual intercourse willingly, i.e. be stoned to death in case they are married and punished with a hundred lashings if they are unmarried, in addition damages are awarded to the rapist’s victim (Askari).

The present law has also been criticized for declaring a female less than sixteen years old to be incapable of stating her consent i.e. all illegal sexual intercourse with a girl less than sixteen years old is considered to be rape. This is considered to be wrong in religious circles because according to Islamic tradition a girl is usually considered to be an adult at menarche (Askari).

Inheritance

Pakistani legal code lacks elaboration of the Islamic rights of shares of inheritance, however in practice when a case of property distribution is brought before a court, the court usually decides upon division of property according to Islamic laws in the absence of wills. In some cases the provisions of the wills left by the deceased have been successfully challenged by the inheritors in court for being contrary to the provisions of the Shari’ah. In other cases judges have upheld the contents of the will despite the fact that over one-third of the wealth of the deceased has been bequeathed in the will (Zabihullah).

Conclusion

The problems faced by Pakistan in the imposition of the Shari’ah arise from the attempts by Pakistani elite to satisfy many different and fundamentally opposed ideological demands at the same time. The attempt to create a hybrid system of Islamic and Western laws results in a legal system which contains none of the protections provided by Islamic law nor does it provide the Muslim masses with protection against the depredations of capitalism. The laws fail to establish the Islamic credentials of the Pakistani government in the eyes of the people, while at the same time being inacceptable to the West for being insufficiently secular.

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Footnotes

1. The Shi’ite population of Pakistan consists of mainstream Twelver Shi’ites in most of the settled urban and rural areas of the country while a concentration of Aga Khani, Ismaili Shi’ites exists in the Northern Areas of the country especially in the Gilgit and Baltistan regions.
2. In one such region a researcher noted that the locals laughed when it was suggested to them that they might consult the local cleric to decide their disputes (Kurin).
3. Do not think that those who are killed in the cause of God are dead; they are alive at their Lord, enjoying His provisions. (The Quran, 3:169).
4. The Ahmadiyya sect is a late 19^th century religious movement founded by one Mirza Ghulam Ahmad of Qadiyan who claimed to be a divine reformer sent to cleanse Islam from innovations, a prophet and messenger of God and the rebirth of Jesus Christ. The movement is also commonly referred to as the Qadiyani or the Mirzai movement.
5. A ‘Nawab’ is a member of the traditional Muslim nobility in the Indian subcontinent
6. A ‘Chaudhary’ is what a prominent land owner in the Punjab province is called, also a family name.
7. Sunni scholars of Islamic jurisprudence usually belong to one of four schools of thought. The most popular of these is the Hanafi school, which is the dominant school of thought in the Indian Sub-continent, Afghanistan, Central Asia and Turkey. The other three major schools of Sunni jurisprudence are the Maliki, Shafi’i and Hanbali schools.
8. A common form of infanticide in pre-Islamic Middle-East that is severely condemned in Islamic scriptures.