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Religious biases and the Law

Published Jul 05, 2012 05:34pm

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: saad@post.harvard.edu


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.