Maulana Abdul Aziz — of the burka fame — has been given disproportionately large air time by our anchors and he seems to relish the camera, despite having once been opposed to the television cameras. His overriding demand is that sharia be imposed and every other law be removed from Pakistan’s statute books. He essentially wants the abolition of our legal system altogether and have his version of sharia imposed. Basically, he wants to replace the judges and lawyers in our Supreme Court (SC) and high courts to be replaced with men like him and his madrassa (seminary) students.
I personally have always favoured a secular state for this very reason — the alternative i.e. Mullah (cleric) Raj promises nothing but continuous strife and gun violence in the name of God. The mullahs, especially the antecedents of Maulana Abdul Aziz and Allama Tahir Ashrafi, such as Ataullah Shah Bokhari and Mufti Mahmood, had opposed the creation of Pakistan precisely because they felt that the Pakistan Movement was dominated by western educated professionals and lawyers. The clash had always been between the orthodoxy and Muslim modernists and reformers. It started when Sir Syed Ahmad Khan first founded the western oriented Aligarh Muslim University, which was later described as the arsenal of Muslim India in the Pakistan Movement. The rejectionist Darul Uloom Deoband believed, on the other hand, that the English language and its laws were the work of the devil. The mullahs had calculated through empirical evidence in history that there is no way for the religious clergy to overthrow the secular Muslim rulers in a Muslim majority society; the main reason being that Islam just does not have a church like Christianity does and, therefore, the question of the clergy presiding over ecclesiastical laws does not apply. Muslim rulers through the 14 centuries have kept a tight control over the clergy, ceding them some space here and there but in the main disallowing them from imposing their will on the people.
A classic example of this was the Ottoman Empire. Uneducated and poorly informed as Maulana Abdul Aziz is, he referred to the Ottoman Empire as an example of when Islamic sharia was implemented last. Perhaps the good maulana should read a bit of history. The Ottoman system i.e. the millet system and the constitutional reforms i.e. tanzimat were extraordinary in their attempt to inculcate constitutional liberalism in Ottoman society. The tanzimat established religious freedom, abolished slavery, limited the application of Islamic law and modernised all aspects of Ottoman society. This happened long before Kemal Ataturk came on the scene; Ataturk’s modernism was the consequence of a process that had begun 100 years before him. Today, Turkey is the only Muslim majority country that has reached a significant level of development. Hence, Maulana Abdul Aziz’s claim is patently ridiculous and nothing more than hogwash.
Pakistan follows, as the structure of its law, the common law tradition. The common law tradition takes into account various factors and is not black or white. Pakistan’s legal system envisages the blending in of Islamic provisions into the common law. Pakistan’s constitution, despite its many flaws and shortcomings, is mindful of the fact that it seeks to rule a diverse populace divided along religious, cultural, ethnic and sectarian lines. It lays down a general rule that no law shall be made against the dictates of the Quran and sunnah and that the Quran and sunnah would be interpreted according to each school of thought. It guarantees — at least on paper — equality and religious freedom for all including non-Muslims. Here, it must be stated that this fundamental right has been consistently denied to non-Muslims in Pakistan, especially those who have been forced to be identified as non-Muslims, despite the high-brow claims of the constitution.
General Zia sought to introduce legislation through the ordinance, which has introduced the Islamic punishments Maulana Abdul Aziz so craves. The punishment, for example, in the offence of adultery under the Hudood Ordinance, 1979 is for the witnesses who have testified against a convict to begin stoning and, while the stoning continues, one of the witnesses is supposed to shoot the convict in the head. Needless to say, there are many Muslims who may not agree that this is what the sharia wants. Furthermore, given the high standard of evidence required under Islamic law, such punishment is unlikely to be enforced.
Still, since the question is of sharia, the question is: what are true ends that sharia seeks to achieve? First and foremost, we must distinguish between sharia i.e. the way of God and fiqh, which is the understanding of various Islamic jurists of the way of God. It must be stated repeatedly and clearly that even in Islamic jurisprudence, fiqh does not have the same status as sharia.
Imam Ghazali, Ibn-e-Taimmiya (the favourite religious scholar of the Taliban and other jihadists) and Abu Ishaq al Shatibi gave the idea of maqasid-us-sharia or the foundational principles of sharia. They agreed that the overriding purpose of sharia is the preservation of religion, life, lineage, property and intellect. In other words, where Muslims are allowed to practice their religion freely, where the life of a state’s citizens is protected, where their property and lineage are safeguarded and where their intellect is allowed to flourish, is compliant with sharia. Pakistan’s constitution seeks to do that — at least in so far as Muslims are concerned. Therefore, the whole issue of violent warfare to establish sharia does not arise, and, therefore, what Maulana Abdul Aziz wishes is not so much the application of sharia but the imposition of his religious views on all Pakistanis, to confine women to their houses and to burn down religious places of worship of minorities. All these militate against the very principle on which this country was founded and we shall not allow it under any circumstances.
The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address [email protected]