Draft Law and Religion In Pakistan - Review

This article serves the purpose of highlighting the impact of religious laws in Pakistan. This article diverts the reader’s attention towards the implementation and interpretation of these laws without going into the finer and complex nuances of either law or religion. The text of the article suggests that the promulgation of legislation enacted as Islamic in Pakistan has been used by the state to control and discipline the imagination of its citizens and to limit the political choice of populace.  Unfortunately the politics on the name of Islam is also a common practice to crush political opposition and gain legitimacy, especially for autocratic regimes. The alarming issue here is that these laws served nothing good but these laws affect ordinary citizens on daily basis. Social fabric and plurality of Pakistani society is badly ruptured. Contrary to the claims only negative changes are observed after the consecutive attempts to make Pakistan an Islamic state.

The article highlights the problem of identity crisis and the confusion and disillusionment regarding the legal and political doctrine in Pakistan. The confusion in the minds of masses on the ideology of Pakistan as an Islamic or secular state is still not solved. One of the main reasons of this confusion is also the politics through which a separate state Pakistan was achieved by Jinnah and Muslim League but before the boundary commission the politics of Jinnah revolved around Islam and his 11^th august speech which clearly states Pakistan as a secular state.

After creation of a new state in Muslims dominant western regions as Pakistan, Muslim league was not in position to dodge people on the question of religion. Islam was the driving force throughout the whole process of partition. The Lahore Resolution in 1940 and the elections of 1945-46 were the two prominent and notable incidents which depict the political situation at that time. These two events show a very good picture of how Islam was used to mobilize Muslims of Indian subcontinent for the cause of a separate state. This tactic for mobilization worked very effectively and Muslim league gathered a huge support of Muslims throughout India.

Soon after partition a demand for incorporation of Islamic laws in constitution and for bringing different sets of laws in conformity with Islam continued. The dominant feature in all the three constitutions of Pakistan was injunction of Islamic principles. It was assured in all these constitution that anything contrary to Islam’s basic principles would be invalid even though the state commitment in this regard varied greatly. The state used Islam as a special tool for political negotiations, legitimizing itself, and gaining political and moral support of masses for itself on various occasions.

The article informs its readers that the post-partition state of Pakistan inherited the colonial state structure as its very first constitution was ‘Government Act of India 1935’ with minute changes in it. To understand the Pakistani state structure the need is to analyze the colonial state structure as well. The colonial state structure was designed to exploit the resources and labor force of India for commercial and economic interests of the Empire. Legislation backed by force of implementing machinery was the device to control and to amend the behavior of the indigenous people in response to the colonial exploitation. The violence of state and severe penalties imposed by laws made sure that the native population never disturbs the interests of the colonial regime.

The article suggests that from jurisprudential perspective, there has been much confusion and a variety of postulations claiming the doctrine governing Pakistan’s legal structure. The most prominent is the basic structure argument, that pursuant to the events leading to creation of Pakistan, and subsequent State Acts such as the objectives’ resolution, the preamble of all constitution, the state has a certain minimal structure that may be termed its basic structure, comprising if such inherent principles as being Islamic, which cannot be changed. Another view that courts have explored is the hierarchy of applicable law, which differs under different regimes or political setups.

Under the military, the military law takes over any other, the Civil Code and Islamic taking turns in hierarchy. During the setup labeled as the civil rule, determination of norms is such a nature as may be observed same to one that is secular. The article points toward the fact that at numerous instances Islamic law is applied as a tool of interpretation of the Civil Code or the legislation and applicable law. Judges, in employing the law, have and have not used religious principles in their legal reasoning. Many a times these adjudicate political issues.

Finally, the author in his article highlights various legislations, legislative acts and amendments which are stained in the color of Islam under different constitutions and political and military regimes. The author in his article mentions objective resolution and argued that it has found expression in all three constitutions of Pakistan as a preamble. It was made as a substantive part of the current constitution under Article 2A through a presidential ordinance by General Zia in 1985. The current laws against Ahmadis were never seen before 73’s constitution. They were not even the part of original 73’s constitution. They were enacted via 2^nd amendment deeming them Non-Muslims by Zulfiqar Ali Bhutto in 1974.

After, Bhutto’s government was over thrown by General. Zia a new wave of Islamization was observed in the country. The most notable legislative acts through Presidential Ordinances under Islamization process are the Zina, Qazaf, Prohibition and Property Ordinances. In 1984, an ordinance under title of ‘Anti-Islamic Activities of Qadyani Group Ordinance’ was promulgated which added something very brutal and against the basic ‘Fundamental Rights’ which are granted by the constitution of Pakistan to its every citizen. New sections 298B and 298C were introduced in Pakistan Penal Code, refraining and penalizing Ahmadis in case of proffesing their religious obligations. Several institutions under Islamic titles which are still enjoying constitution protection, like Federal Shari’ at Court and Council of Islamic Ideology, were created.

Concluding and analyzing the current legal framework of Pakistan it is evident that Pakistan’s legal system is derived from English Common Law and is based on the much amended 1973’ Constitution and Islamic law. The rule of law in this country has suffered due to the reason of holding the political setup by military. Political process and democratic governance in this country is frequently disturbed by military take over. Tensions between the inherent common Law System and the Islamic law based on Quran are also there. An unexpected outcome of all this practice was that by relying on a policy grounded in Islam, the state fomented factionalism.