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Religious biases and the Law

Published Jul 05, 2012 05:34pm


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Last Thursday, in a repeat of events that have become all too familiar in the Land of the Pure, 11 Shia Muslims (and 2 policemen) were killed by proponents of sectarian and religious violence on the outskirts of Quetta.  The attack, for which the banned Lashkar-e-Jhangvi claimed responsibility, targeted Shia Pilgrims returning from Iran, most of who belonged to the Hazara community.  This comes on the heels of the massacre of 30 Shia Muslims in the month of March. In September, the same outlawed group (who has declared the Shia community “wajib-ul-qatl” according to a news item in this paper) stopped a similar bus, identified Hazara Shia men, and executed them half a mile from a security check-post. These, and other such atrocious events, take up a few columns in newspapers every so often, but no longer have a heart-wrenching impact on our national conscience. Those among us who have the ability to voice bereavement against such events (what to say of doing anything to fix the rot!) are either too immune, or too afraid, to heed the voices within.

It needs to be asked how we, as a society, have deprecated to the point where such occurrences no longer burn our collective moral fiber? Is it simply that our religious sentiments have become so ionised that we see such events as the natural outbursts of religious fervor? Or is it that our national conscience has become so galvanised with scenes of horror that violence no longer penetrates through it? And why is our system of justice (law-enforcement, as well as the judiciary) impotent against such atrocities?  Have we, perhaps, institutionalised religion in our constitutional framework to the extent that difference of religious interpretations can now warrant one side spilling the blood of another? Each of these issues requires a deeper analysis.

The first set of questions can probably be answered in one word: Yes. We, as a society, have grown increasingly intolerant of religious differences and theological biases. And as a result, a fraction among us (albeit on the fringes of the spectrum of beliefs) has resorted to violence against anyone who disagrees with their particular brand of religious interpretation. And here we are not talking about one religion against another (like the Crusades), but rather an intra-religious Crusade, where within the same religion, one school of thought is killing the other. And there can also be no doubt as to our increased tolerance to such events – each of them making one or two day news-story at most, only to be distracted some hours later by issues of ‘national importance’ such as the Dr. Arsalan saga and writing of the ‘Swiss letter’ (thank God we have our preferences straight).

This intolerance of religious differences, and imperviousness to religious killings, belongs in the sociological sphere of our society’s analysis. And I, for one, am not an expert in deciphering the causes behind it.

What I would like to bring forth though is how our Constitutional paradigm is structured to institutionalise one brand of religion over all others. This is different from giving preference to Islam over other religions; instead our Constitution is drafted in a manner that gives preference to a particular interpretation of Islam over other competing ones – in essence creating a de facto minorities out of certain factions of Muslims (making them an easy target for persecution and violence).

To begin with, the Preamble (text of which has been made a substantive part of the Constitution through Article 2-A) declares the supremacy of Quran and Sunnah over all other things. This actually works well in a country where over 95 per cent of the people claim to be Muslims, and where Article 2 of the Constitution clearly declares, “Islam shall be the State religion of Pakistan”.  Furthermore, Article 19 of the Constitution, which guarantees freedom of speech and press, limits these freedoms short of hurting the glory of Islam (as subjectively interpreted by any individual).

But the real influence of subjective interpretation of religion comes into play in Article 203-A through 203-J (which establishes the Federal Shariat Court, and gives it the power to declare any law “repugnant to the Injunctions of Islam.”), and in Part IX of the Constitution (Islamic Provisions) which endeavors to bring all laws “in conformity with the Injunctions of Islam”.  For this purpose, Article 228 establishes a Council of Islamic Ideology, with up to 20 members.  Benevolently, Article 228(3) of the Constitution stipulates that “so far as practicable various schools of thought [shall be] represented in the Council”, and that “at least one member [shall be] a woman”.  The interpretation given by this Council, along with the Federal Shariat Court, for all Constitutional purposes, is the declarative interpretation of the injunctions of Islam in our country.

The problem with this structure, to begin with, is that for large periods of our history (including present day), no woman has served on this Council. For a country with a 52 percent women population, and aspirations of becoming a progressive nation in world, this fact is extremely discouraging and increasingly leads to (binding) interpretations of Islamic law that are biased against the female gender. Additionally, a cursory look at the members of this Council would reveal that just a minimal number of schools of Islamic thought have been represented on this Council, making their interpretation of the injunctions of Islam bend in favor of certain sects of Islam and against others. Now, while it is perfectly acceptable for an individual to pick one interpretation of the religion over the other, it hardly seems reasonable that the State should deem one interpretation of Islam preferable to the other.

This systematic bias in our constitutional structure, when read together with the provisions of law that make injunctions of Islam (as subjectively interpreted) superior to all other laws, opens the door in our society to (legally) prefer certain Muslims (and their approach to Islam) over others. When this argument is carried to an extreme, the law in effect sanctifies certain schools of Islamic thought, while ostracising others. In such a case, can we really blame certain extremist elements in our society, if their brand of Islam (or some diluted version of it) gains legal legitimacy and Constitutional cover? Should the State be in the business of telling an individual that he or she is less Muslim than the other? Can Shias, or followers of Ahmed bin Hanbal, Muhammad Idrees Shafi or Malik bin Anas feel as protected in their religious beliefs and practices if the Constitution does not prescribe to their interpretation of the religion?

This is not to say that equal representation in the Islamic Ideology Council or the Federal Shariat Court would suddenly rid our country of the extremism problem. The extremist elements would have to be fought, on their turf, through the intellectual, ideological and physical ammunition in our arsenal. However, in the meantime, what we must not do is to enable a Constitutional mechanism that prefers one school of Islamic thought over the others… making certain (legitimately held) religious views and practices to be unconstitutional.

A rethinking of religion in our Constitutional framework is required. And the debate must start now.

The writer is a lawyer based in Lahore, with a keen interest in fundamental and constitutional rights. Previously, he was Vice President in the Global Markets & Investment Banking Group of Merrill Lynch, New York.  He has a Masters in Constitutional Law from Harvard Law School. He can be reached at:

The views expressed by this blogger and in the following reader comments do not necessarily reflect the views and policies of the Dawn Media Group.


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The views expressed by this writer and commenters below do not necessarily reflect the views and policies of the Dawn Media Group.

Comments (42) Closed

M. Azam Ali Jul 05, 2012 11:10pm
Thanks for sharing your views on this important subject Saad. As someone who recently returned to the country to teach law at a university in Pakistan, I'm glad to see an attempt to connect some of the problems facing the country with the legal architecture. I hope that in future articles you can shed more light on whichever school of thought you feel is being imposed on the country through constitutional bodies like the ones you mentioned. It would also be good to see a more substantial analysis of how and why specific religious ideas were introduced into Pakistan's constitution. As you should be aware, this has been well documented by a number of writers.
Kadlekai Jul 06, 2012 08:32pm
Hear! Hear! Until Pakistan stops being an "Islamic Republic" there will be no hope for positive change. People need to be educated, cultured, compassionate, peaceful and accepting of the rights of others to believe as they wish. It is through demonstration of these qualities of Muslims that Islam can gain respect. Islam does not need state sanction. It can stand on its own through the way Muslims conduct themselves. If not, Pakistan will only have mayhem.
Asad Malik Jul 05, 2012 11:02am
To have a tolerant society, we need to be intolerant to all radical and extreme ideas. Throw all these ignorant hate mongers in the ocean and start from there.
Indian Jul 05, 2012 11:12am
I just wish people such as the writer return home to pakistan and put things in their right perspective before it is too late for the subcontinent.
ssm Jul 06, 2012 06:41pm
Exact words...anyone has things to say...
Gerry D'Cunha Jul 05, 2012 12:02pm
Christianity faced the same problems decades ago as Islam is facing today. Eliminate the 'Molvies' from interfering in the States affairs and you will find peace and harmony in the muslim world.
Charminar Jul 05, 2012 10:45am
Tolerance is first step, in a long walk, towards peace. If you can face the criticism either written, verbal, action or by cartoons without reacting violently in your mind then you are in right direction..
Dixit Jul 05, 2012 12:10pm
I have recently come across a news from Pakistan about a person being killed by mob inside police station on the charge of insulting quran. If the police is not able to protect someone what else can be said.
muhammad mushtaq Jul 05, 2012 11:33am
What to say except that a very serious debate has to be started as pakistan is already on the verge of disintigrations due to internal religious conflicts
Agha Ata Jul 05, 2012 12:01pm
The only wajib-ul-qatal person should be who declares an individual or a group wajib-ul-qatal. But his death sentence, too, should be ordered by the court of law not by a self- rightous personn or a group!
Cynical Jul 05, 2012 11:35am
If the history of last 1400 years is any thing to go by, I don't see it is going to end in the next 1400 years. We have to live with it for a long long time.
Devendra Jul 05, 2012 03:20pm
It is simple. "No religion in,for or by the Government." Religion is a personal faith and can not, must not be enforced. If it is, then be sure what is happening in Pakistan now will only get worse (if that is at all possible...I can't imagine any worse. can you?)
Kadlekai Jul 05, 2012 08:44pm
Whatever Mr. Jinnah may have imagined one cannot simply gloss over the fact that he justified the creation of Pakistan as a "land for Muslims". The seeds of religious intolerance were in the very concept of Pakistan since that genie has a life of its own. Now it is going to be impossible to put it back in the bottle. The intolerance was first targeted toward non-Muslims, but then sooner or later they are exhausted. The it turns inward and begins to define the 'others' within. This horrible situation was totally missed by the founder who was himself not a particularly observant Muslim, certainly would not pass muster with the present day orthodoxy in Pakistan.
Janice Khan Jul 06, 2012 11:18am
"Treating all citizens equal...Freedom of religion is an individual right of all citizens..The state gives no preference based on your creed.." You have paraphrased passages from the Qur'an. Perhaps without knowing it you are advocating the message of tolerance in Islam. And governance under Shariah Law.
Syed Jul 05, 2012 09:02pm
Well said Agha sb. but the dilemma is that it's the constitution that has given these groups a free hand to kill at will and then think they have earned Jannah, but if you think deep, they are earning hell for murdering a person, it's a murder, unless you have had a talk with a person, unless you heard what he believes in, unless he insults the prophets, you may not take any action, it has to be proved in court of law, there is no way anyone has the right to kill someone in the name of religion, reminds me of that song "aalo anday", and it's true that people like Qadri and Kasaab are deemed heroes, no they are not, look thru the unbiased window and they are no more than murderers, and we all know what a murderers earns.
Tolerant Jul 05, 2012 07:15pm
If Pakistan wants to be progressive and tolerant society.....Treating all citizens equal in law..then amend the constitution and segregate religion from state interference...Freedom of religion is an individual right of all citizens..The state gives no preference based on your creed..nether promotes any dogma...
Naeem Jul 05, 2012 06:25pm
I totally agree with you Devndra. My religous beleives are a personal choice. It is between me and my creator. It is no bodys elses business!!!!!
doraha Jul 05, 2012 06:23pm
The nation has to revisit the constitution, Pakistan should never be a theocratic state. It should Democratic Republic of Pakistan. All religious (so called) within their holes; Media should not invite them on every issue. Media can definitely the public mindset if begin bringing those who really can show the real face of Islam. Well written article and propose this debate should continue till we find applicable solutions.
Naeem Jul 05, 2012 06:23pm
I totally agree with you Peter. The State should have no business in the affairs of the religion. should not interfere in the private believes of individuals. Nor should it ever prevent a follower of any faith in participating for the elections of any position including that of the President of the country. All Mullahs should be reigned in and should not be allowed to brainwash people. THE CJ must make it a law to have such people punished .
Gerry D'Cunha Jul 05, 2012 10:41am
How many more decade will it take for Muslims to be a good human being (with the exception of few) to stop these killings of innocent people to meet their own motives in the name of religion.
Irfan baloch Jul 05, 2012 10:04am
we talk a lot about the evils of American aid has done to our country but we are very selective. Another country that has been "aiding" us for the decades is Saudi Arabia . this aid has been in terms of money and the Islamic interpretation of their official school of thought. which radicalized the Sunni Muslims of Pakistan so in our case Shias have become the first target of this religious intolerance
dhiraj garg Jul 05, 2012 10:04am
a good article with sound fundamentals and clear purpose. thanks !!
Naseema Perveen Jul 06, 2012 10:00am
all the problems would have been eliminated if and only if, irrespective of the sect to which they belong, people believe in one slogan that is "Islam is the religion of Peace and brotherhood"
Aalia Jul 06, 2012 11:33am
Qur'an can not be insulted. Only people with fragile egos are insulted. Mob control is problematic anywhere. Even more so in small towns with limited Police personnel. Mob action is ingrained in human nature. Easly triggered but difficult to control or subdue. The Qur'an discourages rabid behaviour. Anything done in a hurry or anger is prohibited in Islam. The Quran categorically says so. I can reference.
Lubna Jul 06, 2012 12:28pm
@Peter: You have made a comprehension error and a logic error in comprehending the professionally accomplished author Attorney Saad Rasool's very well articulated and referenced article. The author has clearly differentiated between inter and intra religion conflict. Perhaps the meaning of the words 'inter' and 'intra' have you confused. Your quote: "...the state to deem one religion preferable to others..." is a comprehension error. Mr. Saad did not say or imply that at all. In fact in your own selected quote from his article "pick one interpretation of the religion over the other" proves his thesis and diferentation, not your 'logic and comprehension error' objection. Please appreciate that the author is discussing one religion--Islam--and its differing misintepretations. NOT of one religion over other. Please re-read again and clarify for youself.
Naseema Perveen Jul 06, 2012 10:02am
truly appreciable
Concerned Netizen Jul 05, 2012 05:13pm
But the sad part is that the moderate people in Pakistan are increasingly shrinking due to people moving away or getting murdered. As much as it is important for these people to return to Pakistan, it is more important for these people to stay alive and safe. Such a smart young man should not risk his life in Pakistan and should search for greener pastures. Sad but true!
Peter Jul 05, 2012 02:07pm
You write "while it is perfectly acceptable for an individual to pick one interpretation of the religion over the other, it hardly seems reasonable that the State should deem one interpretation of Islam preferable to the other" Then how is it reasonable for the state to deem one religion preferable to others by granting it the status of "state religion" ?
Syed Qaseem Ali Jul 05, 2012 08:14am
Watch your back my friend.. for you have dared to speak against religious beliefs. Very objective otherwise. I agree that we should start thinking towards this at the least.
Eddied Jul 05, 2012 04:50pm
Peter is correct...over 200 years ago the founders of America realized that their should be a strong separation between religion and state because favoring any religion would lead to unending conflict...Pakistan did not learn this lesson and have institutionalized this problem into their country and just as predicted it has lead to unending conflict...and no one is allowed to criticize this decision without being accused of being unislamic...the outside world would,say that your problem is obviously caused by this error...
Rehan Jul 05, 2012 08:58am
So....what would this "rethinking of religion" involve ... anyone care to enlighten me about that ?
Hasan Jul 05, 2012 09:25am
A very well written article, which raises many questions about the root cause of growing religious intolerance in our society. The Government should not only try to fight this menace with force but also critically resolve to amend the clauses of Constitution promoting it.
maryam Jul 06, 2012 03:00pm
Not only did Mr. Jinnah convert to Shia Islam ( He was an Ismaili Shia ) and his wife Ruttie Jinnah is buried in a shia cemetery in Mumbai. Well know facts, besides prior to conversion at the time of marriage she was a Parsi and Sir Dinshaw`s daughter. A man so secular in nature could not have ever dreamt of how wrong things could go with fanaticism like a cancer spreading through this country. As a minority growing up in Pakistan cannot be very pleasant- it wasn`t as a shia muslim, your faith or your practices are always being questioned. It is not about the state- what gives any of us a right to question or judge another person? Why are we so righteous? If we cannot grant life then why do we deem it fit to take it? because we can contort in our minds to our satisfaction what the religious laws say or rather what they should be saying as our mind perceives it? Poverty & Illiteracy doesn`t help widen the mind. Its a horse with blinders approach. It was never a religiously tolerant society but its gotten worse with every decade. Zia took us to the middle ages, shia-sunni sectarian violence was rife in Karachi- it used to burn & for the most part it would go ignored. We didn`y just get there in a second. Be it the Hudood Ordinance or the Blasphemy laws or these Neanderthal state governed outlooks on religion....its all messed up. But religious intolerance doesn`t gain mass hysteria; it grows over time. It starts in households, like yours and mine and it spreads if unchecked. The Hazaras faced a massacre under the Taliban in Afghanistan, now they can`t even escape it here. Parachinar is another genocide. While the affluent shia or minorities have fled or are fleeing or gain asylum abroad, the poor must suffer and bleed. The gov doesn`t help, the army doesn`t help, and for the most part most of the Pakistani society is ignorant because it doesn`t affect them. Its a state of virtual apathy.
Ahmad Bukhsh Jul 05, 2012 04:44pm
Nice article, but can you provide some specific examples of how one interpretation of Islam has been given constitutional cover over the others? Examples would make your argument stronger and easier to understand. Thanks.
ahmad butt Jul 06, 2012 07:06am
Well written and yes the last words of your article should be the plan of action. Religion, politics and the governance of a country are not a perfect mix and never will be. This is what all the nations that have progressed have segregated the three entities. In Pakistan, the ruling class never interferes with how the religious activities spur violence, as then they will be in direct clash with an entity preaching religion than can affect their power. The uneducated people in this country which are in majority are too per-occupied to comprehend the injustices being done.
Aslam Jul 06, 2012 07:13am
Though it is a great article that asks some serious questions about State sanctioned one sect's school of thought but (sorry to say) it is already much too late. It originally started in Pakistan in 1974 when Z.A. Bhutto (then Prime Minister) for personal political gains declared Ahmadi's as non-Muslims in an effort to please the mullah's.
gary Jul 06, 2012 07:57am
Aamaal Jul 06, 2012 11:50am
The CJ does NOT make laws, only interprets their application in judgment. Only the legislature is empowered to makes laws.
ahmad Jul 06, 2012 08:25am
It is the duty of govt to stop crime by imparting punishment to criminals. crime must be punished by state and there is no shia sunni strife. It is govt who cannot arrest criminals and then judiciary lets criminals go. Mukhtaran mai case is clear on that. Nobody knows who is killing people. Issue is very simple state must do its job forcefully. Entire problem and its solution lies under the state responsibility.
Jabbar Jul 07, 2012 07:34am
Sweeping away fourteen hundred yeas of Muslim glory and contribution to World Civilization with past thirty years of Pakistani system failure is more than 'cynical'. It suggests ignorance of history and refusal to acknowledge verifiable evidence it presents.
Aasya Ismail Jul 08, 2012 12:22pm
The writer made a good effort by addressing law and religious points in an article. Like other institutions I have little complained to media in our country. It got freedom but failed to focus sufficiently on the improvement of the professionalism and the quality of the journalism in context of nationalism. Overwhelming media culture perhaps by any means could harmful for next generation. Law should be changed here carefully. While the public are still positive and hoping for the better our ‘Constitutional framework’.
Iftikhar Husain Aug 15, 2012 12:03pm
I agree with the blogger but what can we do about it just to go on educating the masses as soon as possible.