‘Marriage is a contract according to Mohammedan law’ — Mohammad Ali Jinnah

THE call for the disbandment of the Council of Islamic Ideology (CII) merits a serious and unbiased discussion. The demand has been made in response to some of the more outrageous flings of the Islamic Council, to use the CII’s constitutional title. For a change, the council has invited favourable comments too for making some welcome noise. These latter recommendations may be examined before we take up the controversial findings.

The council’s call for a ban on hate speech has elicited commendation, but one should like to examine the context and see how far Maulana Sheerani can go with rational elements.

The council spoke on the eve of Muharram and that is the context. Every sane Pakistani will wish that the traditional sectarian tension around Muharram events should not be aggravated by hate speech from any platform. The Shia-Sunni exchange of venom is, however, not the only form that hate speech takes in this country.

What are the categories of objectionable addresses that the council would like to see suppressed? Will it extend the bar to all inter-sect squabbles? Will it take exception to the hateful references to non-Muslims in books for children, especially those presented as histories? A litmus test of the council’s sincerity in rejecting hate speech will be its denunciation of attacks on non-Muslim Pakistanis, especially members of the Ahmadi community. Till that happens, it would be better to keep the congratulatory messages to the council on hold.

The main focus of the council is marriage and its wish to reduce the space for women.

The other council gesture that has been welcomed is its decision to provisionally label the Protection of Pakistan Act (PPA) and the National Security Policy un-Islamic. Again, the council’s hands do not appear clean. It is yet to examine the grounds for coming to any conclusion on the impugned law and policy.

The haste in rushing at a provisional ruling will arouse suspicion. It is impossible to dismiss the possibility that unlike other critics of the measures under debate, who base their strictures on the rights of all people, the council head might have been influenced by his sympathy for religious militants who are supposed to be one of the targets of both the measures.

The main preoccupation of the council as usual is marriage, especially its desire to reduce the space for women’s and girls’ freedoms.

The council chief has again defended child marriage as a religious obligation and done wrong to both his religion and children, especially girls. The statement that little girls can be married off by fathers and grandfathers but rukhsati will be allowed only when they reveal signs of puberty or reach the legal age for marriage offers little protection to victims.

The council is not adding anything to the old Muslim rule, whereby a girl (and a boy as well) who was married at a small age had the option to disown the conjugal bond before the marriage was consummated. The bridegrooms could get away by claiming pre-puberty consummation of marriage and were not even prosecuted for the rape that they confessed to.

The council persistently avoids looking into the essence of the Muslim concept of marriage. All that is required is a declaration by each partner of his or her decision to accept the other as the legally adopted spouse and some witnesses to vouch for the event. That the parties to this contract should be mature enough to decide about their lives is a principle embedded in the concept. The question of anyone giving away anyone in marriage is at best of tertiary relevance.

The second atrocity committed by the council relates to depriving a woman to deny her husband permission to take more wives or to seek divorce if he is unreasonable. Since marriage is a contract between two adults it is subject to the terms they agree to at the time of marriage. Much can be said by way of rebuttal to the council’s labours to beef up the vestiges of the patriarchal system. But we are at the moment concerned with what appears to be an abuse of the council’s mandate.

The council has three tasks i) to recommend ways to enable Pakistani Muslims to live according to their faith; ii) to review existing laws for repugnancy to Islam; and iii) to scrutinise new legislative proposals at the request of the president/governor. The first two tasks were completed years ago. Why is the council now looking again at a 1939 act? Does this mean that each new council head can reopen cases already decided and closed? The idea is simply preposterous.

The phrase ‘existing laws’ refers to enactments put on the statute book before the 1973 Constitution was adopted. Current legislation does not fall in this category. For ongoing legislation, and that includes the PPA, the council may be consulted if the president/governor has any doubts.

Since 1973, parliament itself is responsible for ensuring that no law repugnant to Islam is enacted. The parliament derives this authority from its competence to ascertain ijma in the age of representative rule. Those who insist on retaining the council may read Allama Iqbal’s categorical rejection of any such body. If the ulema had any qualms about his position, Iqbal said, they should try to get elected to the legislature.

Clause 41 of Article 230 of the Constitution makes it mandatory for the council to submit its “final report within seven years of its appointment”. Hasn’t the council outlived its mandate by many, many years?

Tailpiece: The CII is not the only source of aberration in the realm of laws. What should one say about a government that yields to spymasters and appeals against a good Sharia court ruling in favour of women who marry foreign nationals?

Published in Dawn, October 30th, 2014