DAWN - Opinion; 29 August, 2004

Published August 29, 2004

Enforcing the Shariat

By Anwar Syed

In Muslim writings hasba (or hisba) refers to an inspectorate whose business it was to see that conduct in the public realm conformed to Islamic criteria. The MMA government in NWFP plans to establish such an inspectorate and, to this end, it intends to bring a bill to the provincial assembly. Mr Akram Khan Durrani, the chief minister, says that he and his associates were elected to Islamize governance and society. Furthermore, the Quranic injunction to enjoin right and forbid wrong ("amr bil maroof, wa nahi anil munkar") requires them to launch this project.

The text of the proposed bill has not been published, but its contents appear to have been leaked out to certain newspapers. It is said to authorize the chief minister to appoint an inspector, to be known as mohtasib, at the provincial level and one in each district. He will be an alim (learned in theology and law), with a diploma from a recognized seminary. He will be empowered to force persons to do what they are required to do, and desist from doing or saying that which, in his judgment, is unIslamic. He will have a body of policemen under his command to carry out his orders.

Beyond enforcing piety among the generality of Muslim citizens, the mohtasib will function as an overseer of probity and propriety in government. He may undertake investigations on his own initiative or on the basis of complaints filed with him. He may require persons to appear before him to testify or answer questions. Disregard of his summons or orders will be treated as contempt of his office, and punished, as contempt of the superior courts is.

The mohtasib may impose penalties (fine, flogging, imprisonment) on the sport, so to speak. Some reports have it that his findings and decrees will not be subject to judicial review. It is said also that the hasba law will override all other laws to the extent that they may conflict with it.

In addition to his general authority to spread virtue, the mohtasib will be asked to do the following: (1) discourage commercial activity or any kind of "fanfare" outside the places where Friday congregational prayers are held; (2) end negligence in performance of Friday prayers; (3) enforce respect for azan (call to prayers) and performance of obligatory prayers; (4) reform public servants and stop them from patronizing activities of which the Shariat does not approve (e.g., singing and dancing); (5) stop togetherness of unrelated men and women; (6) discourage ostentatious spending; (7) discipline those who disobey their parents; (8) require stores and other establishments to close at prayer times.

Organizations of lawyers are concerned that the project will create a parallel legal and judicial system. We already have three systems at work: statute law and a hierarchy of courts to enforce it; Shariat courts and benches; customary law and the "jirgas." One more system will, indeed, compound the existing confusion, but it is not anything catastrophic.

Other critics have cautioned that the mohtasibs and their enforcers will actually become "witch-hunting" vigilante. This is a distinct possibility. Still others believe that the MMA wants, mainly, to create lucrative jobs for preferred members of the Islamic establishment (ulema). There may be some troth in that. Let us move on to some of the more serious problems.

First, it should be noted that the injunction in the Quran (III, 110, 114) to enjoin right and forbid wrong is not addressed specifically, or exclusively, to governments; it is addressed equally to all believers. True, the Quran says also (III, 104) that the believers should let a "band of people" arise who will enjoin what is right and forbid what is wrong. Such a "band of people" we have indeed allowed to arise, and it is called the National Assembly. None of these verses can be invoked to justify a band of men who will go out and flog, fine, or imprison Muslims whom they, in their discretion, consider to be wrongdoers.

The office of the mohtasib is by no means an integral part of an Islamic administration. We encounter no such official in the Prophet's (pbuh) time or during the pious caliphate. He is at work in the earlier period of Abbasid rule, trying (in vain) to stop drinking and gambling, and monitoring the performance of Islamic duties such as fasting during Ramazan and joining the Friday prayers. But this role is gradually abandoned, and the mohtasib becomes primarily a "market supervisor" who monitors business transactions, weights and measures, and prices. He stops cruelty to animals that carry merchandise. He guards against cheating in the bazaar and fraudulent practices in the professions and crafts.

It should be understood that the shariat, as conceived by many of our professional theologians, is an unedited collection of laws, injunctions, recommendations, counsel, and expositions of values and principles. The binding authority of some of its provisions is eternal, while the relevance of others is situational, that is, addressed to a certain time and place. They derive from a variety of sources, namely: God, the Prophet (pbuh), jurists (fuqaha), consensus of the community (or the learned), and speculation. They cannot all be equally authoritative. They stand in need of reconciliation when they seem to point to different ways in regard to the same subject. Much of the Shariat is, thus, open to interpretation.

If the reports concerning the finality of the proposed mohtasib's decrees and actions are correct, he will be, at once, pope and Caesar; not the present pope but the one who for many centuries claimed supremacy and infallibility on issues of Christian doctrine, theology, and morality. Considering that Islam does not admit of an institutionalized church and, instead, contemplates something closer to a "priesthood of all believers," it would be preposterous for a mohtasib, or any alim, to arrogate to himself conclusive authority to interpret and enforce the Shariat.

We all know of the sectarian divide among Muslims. Let me mention just a couple of problems it poses. The Sunni pay Zakat to the government, the Shia don't. The latter combine the noon and mid-afternoon, and then again the evening and late evening prayers, but the Sunni don't. There may be people out on the street, or in places of work, at a prescribed prayer time. Will the mohtasib check and establish that each one of them is a Shia before shoving him into a mosque or a jail?

Islam concedes the individual a private domain that remains beyond the reach of public authorities. Private is that which the individual wants to keep hidden from others and, in addition, that which he alone has the right to decide or settle. His home is his private space and, at initial consideration, it may be said that whatever he does within its four walls, including neglect of divinely ordained duties, is his affair and none of anyone else's business. Any sin committed in private is between him and God; for him to repent and for God to forgive. This position is fortified by the injunction that one is not to probe into another person's private affairs and, further, that if one does come to know of his/her sins one is not to spread this information to others.

Even if we make the improbable assumption that the MMA's mohtasib will honour Islam's stipulations on behalf of the individual's right to privacy, it has to be noted that the domain of one's home is very small. It can be made even smaller if the mohtasib suspects that a crime, or something hurtful to the public interest, is being done there.

The private domain extends to public places with regard to matters which are within the individual's right to settle: for instance, his choice of a field of study, occupation, spouse and, to some degree, the clothes he will wear, the food he will eat (in a restaurant), the means by which he will travel. But even here the mohtasib may bring his interpretations of the public interest, morality, or modesty to interfere with the individual's right to choose.

The proposition that "Islam is a complete code of life," including the most private of relationships and interactions, should not be interpreted to mean that all of this "code" is left to the public authority to enforce. The great bulk of it is in the nature of advice and suggestion, not law, and it is for the individual to follow as best as he can. But unless matters subject to government regulation are specified and enumerated, the danger is clear and present that the mohtasib will regard all aspects of a person's life as being open to his inspection.

Values and principles, even more than law and injunctions, are open to interpretation. There is no reason to assume that the mohtasib's understanding of Islamic values (social justice, equality, accountability, moderation, brotherhood, neighbourliness, chastity, modesty, frugality and austerity among others) will be conclusive or any more reliable than that of many other Muslims. The way Mr Akram Khan Durrani envisages his mohtasib's role, this functionary may emerge as a vicious tyrant.

Mr Durrani says he wants to reform the society. Good idea, but he should first identify the specific wrongs that he wants to right. It would also be more effective to go one step at a time instead of adopting an open-ended agenda. We would recommend the eradication of bureaucratic and political corruption as the first object of his reforming zeal.

Want of precision and specificity can defeat the purposes of law and justice. Those who want to enforce the Shariat should select portions that are clearly meant to be enforced by governments and have them made into laws so that enforcers and judges have a settled text that enables them to exclude arbitrariness from its interpretation and application.

The writer is professor emeritus of political science at the University of Massachusetts at Amherst, USA.

E-mail: anwarsyed@cox.net

Priorities for new cabinet

By Kunwar Idris

Pakistan's new cabinet may not be able to change the state policy as its course is set by General Musharraf and the forces backing him, but it can give the country a better administration. In fact, it must do so for there can be no other justification for the out-of-the-way appointment of Mr Shaukat Aziz as prime minister.

Mr Aziz's advantage over his predecessors is that he is not involved in Pakistan's murky politics nor has he an ideology to defend or hangers-on to please. The common man, thus, can expect a fair deal from his government, providing it is able to keep its neutral and economic complexion. One thing is for sure - he cannot satisfy his detractors or win over dissenters, nor defeat the contenders for power by asserting the democratic or Islamic credentials of his government. It could be only by working harder and more honestly than the preceding governments.

Worryingly, initial signals coming from Mr Aziz suggest that it may not take him long to succumb to politics and the subterfuge that accompanies it. It all started with heavy polling in his Thar by-election going up to 95 per cent on the extreme fringes of this desert constituency. Considering that in the earlier by-elections under this government, polling was around 25 per cent, and before that, nationally, it had never exceeded 40 per cent, the bogus voting became obvious to all but to the election commission which promptly notified the result.

Mr Aziz has done well to have given up his Thar seat. Going a step further, he should have disowned his victory. Even now he should. A sweeping victory with bogus votes (perhaps he would have won even in a genuine ballot) does not augur well for him as Bhutto's uncontested victory way back in Larkana did not (he, too, would have won without rigging). The acolytes with an eye on their own reward tend to destroy the master they profess to serve.

Then, some ingenious clerics first cast doubts on Mr Aziz's religious beliefs and then announced their support for him. Maulana Samiul Haq has, perhaps, chosen to support him to spite the larger faction of his party led by Maulana Fazlur Rahman. The head of the orthodox Sunni Tehrik, Abbas Qadri, surprisingly, sees in him a redeemer of the poor and helpless. Mr Aziz seems to reciprocate their support by declaring his determination to serve not just Pakistan but Islam as well. That distracts attention from the numerous and serious problems that the people face.

More disturbing is his statement that he would decide all important matters in consultation with Chaudhry Shujaat. Mr Aziz is heading a coalition and not a Muslim League government. He will be thus required to consult the heads of the other parties as well. The first and constant victim of these consultations would be merit to which Mr Aziz has made a firm commitment. He may consult party heads in choosing his ministers (though even in that, merit should largely prevail and the corrupt certainly kept out) but all important decisions should be made in the cabinet on professional advice.

Another authority, and that too extra-constitutional imposed on the cabinet besides the president, would completely stifle its initiative in decision-making and impair its credibility with the opposition and the public alike. Under the current circumstances, the president has acquired a role in government beyond his constitutional powers. To question it would be hazardous. Swallowing that, the prime minister and the cabinet should be accountable only to the parliament and the people at large and not to politicians or clerics.

The improving macro-economic indicators and foreign currency reserves which have catapulted Mr Aziz into a position for which others have to struggle for a lifetime would no longer help him. The issues confronting him now will be larger, intricate and more troublesome. To deal with them, some essential changes must be made in the legal and administrative framework of the country. Foremost would be a bigger role for the provinces. At present, their governments simply beg from the centre and quarrel with the districts. Their administrative and technical expertise has fallen woefully low, and most of their revenues come from the centre.

The federation may finance the provincial governments but can do little to help them maintain law and order and provide the requisite physical and social infrastructure. This issue is complex and opinions differ widely. It can be resolved only in a constitutional forum, and not in a one-shot parliamentary committee as the outgoing prime minister proposed. The Constitution devotes three long articles (153-155) to a Council of Common Interests.

It is an irony that all the limelight is on the NSC but this mandatory CCI was never formed or, at least, has never functioned. It should now do so with an expanded membership and charter. At present, it comprises only the provincial chief ministers and an equal number of federal ministers with the prime minister as its chairman.

The first task entrusted to the CCI should be to determine the place of the provinces in the federation other than being just its geographical units. It would work more or less like a standing committee of the parliament but its recommendations will carry greater weight because of its constitutional status.

The burning issue of the moment, however, is the perennial disaffection in the smaller provinces once again bursting into rocketfire and sabotage. What to the federal government is the development and security of the backward areas, is viewed as usurpation of local and tribal rights by exponents of provincial autonomy, who now increasingly call themselves as nationalists.

Besides deliberations on autonomy, yet another step on which the CCI could agree is to amend the Constitution to provide for direct elections to the Senate, and to give it as much say in legislation and national affairs as the national assembly has. This measure would make the Senate more broadly representative of various interests in the country and also give a greater sense of participation to the smaller provinces.

The sardars of Balochistan, for instance, might come into the Senate through direct elections while they cannot through indirect elections by the provincial assemblies which proceed on party lines. The "nationalists" thus would get a stake in the federation, and not treat it as a usurper of their rights and properties.

The civil government should endeavour to make life safe and harmonious for all citizens within the physical frontiers of the country. The task of defending its ideological frontiers should be left to the clerics aided by the "agencies". Gaining from past experience, the new cabinet will be more credible and respected if it has fewer ministers, no advisers at all and if its spokesman for the world media is the secretary of the cabinet.

The hovering shadow of Kargil

By Anwar Kemal

In the light of public interest aroused by recent diametrically opposed statements of Mr Nawaz Sharif and Chaudhry Shujaat Hussain about Kargil, an analysis of the issue in necessary.

Around May 8, 1999, Indian army patrols detected paramilitary fighters of the Northern Light Infantry and mujahideen perched on ridges close to the strategic Srinagar-Leh highway, the Indian army's lifeline to Ladakh, Siachen and the Aksai Chin front. However limited the initial aims of the infiltration exercise may have been, the fighters reached Tololing, located above the strategic highway to Leh.

Former Prime Minister Benazir Bhutto has asserted that the army high command had shown her a plan to retake the heights, which she had vetoed.

The heights were originally on Pakistan's side of the 1949 UN ceasefire line; India had seized them twice: once in 1965 and a second time in 1971. After the 1965 war India handed back the heights as part of the Tashkent agreement, but not in 1971.

In view of this history, but particularly on account of India's occupation of the Siachen glacier in 1984, the Pakistan army was fully within its rights to formulate plans to retake the strategic heights. The commander of India's 121 Brigade at Kargil had asked the Grenadiers' commanding officer just to go up and bring the "8-10 infiltrators" on the heights "by (the scruff of) their necks".

Mr Nawaz Sharif has claimed that he was briefed only after Prime Minister Vajpayee telephoned him to complain about the incursion in May 1999. Recent caretaker prime minister Chaudhry Shujaat Hussain has flatly contradicted this. The precise nature and sequence of the pre-Kargil consultation process will remain a grey area until some of the key principals involved in it are able to record their recollections.

An unwritten assumption of the India-Pakistan equation is that any large-scale conflict in Kashmir could spill over anywhere along the India-Pakistan international boundary, especially if either side appeared likely to gain a significant strategic or territorial advantage. Unlike 1965, in the 1999 Kargil campaign India departed from this norm and restricted its military operations to the Kargil sector alone, believing that it could recapture the heights.

India's willingness to recapture other fronts and, in the process, sustain heavy casualties as the price for clearing the heights was a surprise. In the three weeks of battle for Tololing, it lost many hundreds of troops as the entrenched, albeit heavily outnumbered Pakistani fighters fired a devastating hail of bullets on them.

India countered Pakistan's mountain stronghold strategy through more effective deployment of its Air Force and the 155 mm Bofors guns. The IAF and the heavy artillery were able to obtain accurate bearings of the fighters on the peaks and some of their supply dumps. The positions were subjected to saturation bombing and shelling. Although the IAF lost a MIG-29 and a MIG-21 fairly early in the conflict, it carried out about 1,200 sorties, with over 500 by Mirage 2000 fighters, dropping tens of thousands of kilograms of bombs.

For its part, the PAF was effective enough in safeguarding Pakistan's air space. If the Pakistan Air Force had embarked, on missions south of the LOC, to provide air cover to the besieged fighters or to attack the Bofors guns, for example, it would have been a serious departure from the unwritten code governing military engagements in Jammu and Kashmir. It was not Pakistan's policy to embark on a war with India. The original intention was to counter India's earlier aggression by seizing local advantage to improve Pakistan's position along the LoC.

The United States and the European Union were blaming Pakistan. China could not help. U.S. Centcom Commander General Anthony Zinni urged withdrawal when Pakistan was ahead. France withheld Pakistan's Mirage fighter planes and a brand new Augusta submarine for which Pakistan had already paid an exorbitant price.

Once it became clear that Pakistan could not obtain concessions, the only other options were either to reinforce the fighters or to withdraw. President Bill Clinton agreed to receive Mr Nawaz Sharif in Washington and provide the diplomatic cover if Pakistan agreed to withdraw from Kargil unconditionally.

Politically, the Kargil crisis no doubt destroyed mutual confidence between former Prime Minister Nawaz Sharif and the COAS General Parvez Musharraf leading to a final rupture in October 1999. By establishing the National Security Council President Parvez Musharraf expects to strengthen the deliberative and decision-making process and to enhance coordination between the political and military arms of government at the highest level.

As a member of the NSC, the foreign minister, assisted by the foreign secretary, can contribute to the deliberations of the council. As foreign policy and diplomacy are rightly considered the first line of defence of Pakistan, officials of that ministry must invariably be consulted in their areas of expertise and encouraged to speak their minds freely.Fear of Islamic fundamentalism has moved to the forefront of western political ideology since the last decade of the 20th century.

The West is also wooing India in order to gain access to its vast market. Witness President Clinton's one-sided speech in Pakistan during his brief stopover after his fulsome five-day state visit to India. He lectured that it was unacceptable to attempt to change borders with blood, without saying a word about India's maintaining the LoC at the cost of Kashmiri blood. The US president's speech was misleading and factually incorrect because under international law the Line of Control is not a legitimate border.

The Pakistani fighters fought with exceptional gallantry during the Kargil conflict. The brunt of the fighting was reportedly borne by the Northern Light Infantrymen. Personnel of other units and mujahideen also acquitted themselves well. Armed with light weapons, and carrying limited ammunition and rations, these soldiers fought for several weeks while enduring massive artillery bombardments and aerial attacks, without air and artillery cover.

Pakistan failed to establish year-round posts overlooking the Siachen glacier owing to resource constraints and sad to say, sheer complacency. Such negligence is unpardonable, especially in the proximity of an expansionist neighbour. Geography favoured the country that struck first, but the folly of the Indian misadventure is evident from the fact that a single chapatti delivered to its soldiers in Siachen costs Rs 600.

The international community considers Siachen a no man's land, and the Kargil heights to be on the Indian side of the LoC. On balance, Kargil has far more strategic value than the remote Siachen glacier. Yet soldiers of the Pakistan army have proved steadfast for two decades and countless heroes have embraced shahadat in the "highest and coldest battleground in the world".

Kargil and the 2002 crisis showed that the nuclear capability that Pakistan possesses helped deter external aggression. The two related events also showed that neither India nor Pakistan could afford to use nuclear or conventional weapons to alter the status quo. Pakistan has moved on since Kargil to face new and graver perils such as the cataclysm of 9/11 and its terrible aftermath and in 2002 India mobilized its army, navy and air force against Pakistan in an eyeball-to-eyeball confrontation.

Condemnation for setbacks or even honest errors of judgment in pursuit of a worthy and difficult cause rarely serves the national interest.

Hopefully, the two neighbours have by now realized the futility of confrontation, and are determined to resolve their differences on Kashmir and other outstanding issues through dialogue. If good sense prevails, the 1999 Kargil conflict and India's massing of its troops along the international border in 2002 could be the very last chapters of hostility and conflict in India-Pakistan relations.

The writer is a former ambassador.

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