main sharaab peeta hoon; kissi ka khoon nahin peeta

I had an interesting conversation yesterday in which I was trying to convice Person A why PPP’s national election wins should be seen as the Pakistani public’s rejection of Jamaat-e-Islami style Islamism. Person A is not Pakistani but is somewhat acquainted with the PPP’s history and given the nature of the 1973 constitution, the 2nd Amendment and various evidence of Bhutto’s Islamization of the 70s, it’s understandable why he was somewhat skeptical about my claim.

I don’t know if I convinced him. In fact I might have ended up convincing myself against what I was trying to argue. PPP’s record in resisting Islamization, especially in the 70s, is, after all, terrible. The point I was trying to make is that Bhutto’s Islamization was a tactic to pre-emptively diffuse any tensions that could potentially destabilize his regime. For example, the declaration of Ahmadis as non-muslim – a betrayal to his Ahmadi voters – was a move taken keeping in mind the dismissal of Khwaja Nazimuddin’s governement as a result of the anti-Ahmadi agitations in Lahore in 1953. In the 1970 general elections, both Bhutto and Mujib responded to attacks by the religious parties with several arguments: 1) That there was no need for a government comprised of religious parties since Pakistan was already a Muslim country 2) that it would cause a fratricidal war for religious parties to come into power who believed that muslims of other sects were kafirs and worthy of being killed. 3) That religious parties with their rallying cry of “Islam in danger” were merely posturing and that Islam could not be in danger in Pakistan. Bhutto also focused on the religious parties’ initial opposition of Jinnah in order to discredit them.

Anyway in the course of the discussion I realized that both Bhutto and Mujib’s arguments against the religious parties were really pathetic as far as arguments go and not only that but in Bhutto’s case his adoption of increasingly Islamist rhetoric during the election was directly responsible for the concessions that he ended up making to the ulema during his rule. I realized that unless one observes Pakistani politics from day to day and observes the hostility to PPP from the religious establishment, one can’t get a very good idea of how PPP is an anti-religious force because on paper, its rhetoric is practically indistinguishable from the right-wing parties.

But the strange thing is that it’s pretty obvious that there is a conflict between the two sides and it’s very easy to define the exact objectives of the right wing – independence in foreign policy, Islamization of laws, etc. What isn’t easy is to define PPP’s objectives or where it stands, exactly, in the debate. A few months ago, Muhammad Waseem had a really great article in Dawn in which he described the conflict as one between an ideological middle class and what he called the political class:

Instead of mosque and madressah, the political class adheres to pir and shrine. The vast rural hinterland of Pakistan is studded with a number of devotional sites belonging to Sufi orders. The political class reflects the social structure based on caste and tribe. Partisanship rather than consensus is the hallmark of its political imagination. Ultimately, it depends on the civil bureaucracy for the articulation of its interest.
The political class considers nationalism as the outermost expression of collective life, not as a mission-mantled agenda. It adheres to various sub-national identities based on ethno-linguistic ties, and seeks to build alliances across communities and regions. If ideology is at the heart of the middle class ethos, identity is the rallying point of the political class in pursuit of electoral victory or a popular movement.

I guess that’s the best definition of the PPP, right there. Because it’s not ideological, it’s difficult to define it in ideological terms. I guess one could call it a traditional resistance to an encroaching ideological class. It remains the only major party whose leader could say this and be met with cheers and laughter from her party workers:

mazhab k jo byopari hain,
wo sab se bari bemari hain,
wo jin k siwa sab kafir hain,
jo deen ka harf-e-akhir hain,
in jhute aur makkaron se
mazhab k thekedaron se
main baghi hoon main baghi hoon

But the same people who clapped and cheered at the sentiment expressed in the poem would never be able to go on a talk show and give an even half-convincing argument against the Islamization of Pakistan’s laws whereas even the most mentally deficient right-wing news anchor would be able to present a clearly articulate argument for the complete Islamization of Pakistan in accordance with the Objectives Resolution. It never ceases to amaze me how inarticulate and all over the place PPP’s message is and how badly it has failed the voters who voted for it and demonstrated their opposition to the Pakistan that Jamaat-e-Islami would like it to be. Is this because of a failing of PPP itself? Or is it a more general problem in Pakistani society and all Muslim societies? I recently read a really interesting quote by Olivier Roy: “‘a defacto separation between political power’ of Sultans and Emirs and religious power of the Caliph was ‘created and institutionalized … as early as the end of the first century of the hegira,’ and that what has been lacking in the Muslim world is ‘political thought regarding the autonomy of this space.‘”

In other words there is no clearly articulated counter-argument to the very clear vision of the right-wing parties.

Justice Cornelius on Islam and the laws of Pakistan

In an address delivered at the Pakistan Academy for Rural Development in Peshawar in 1977, former Chief Justice of the Supreme Court A.R Cornelius made several criticisms of the secular conception of human rights as defined in the UN Universal Declaration of Human Rights of 1948. According to him, the Declaration did not give adequate importance to the national interest of a country and by elevating rights such as the freedom of thought conscience and religion, elevated the individual above the community. He contrasted this with the Islamic way of thinking which emphasizes the importance of the community. In this way of thinking individual rights are secondary to the maintenance of the progress of the community and thus the “individualist color” of human rights as defined in the UN Declaration is not present.

Justice Cornelius went even further and argued that the encouragement of individualist tendancies in Westernized liberal states presupposes that faith in the vitality of essentiality of existing communities has been lost.

In March 1965, in an address at the Sindh Muslim Law College Justice Cornelius made several arguments in favour of the Objectives Resolution and said that:

I look foward to the day when a lawyer having stated the facts of the case and having read out before the Court the essence of the Fundamental Right which is applicable, will next turn to the relevant pronouncements in the Scriptures and place before the Court his reading of the sense in which that Fundamental Right should be understood and applied

He applauded Pakistan as the only country where religious conscience is introduced in the secular affairs according to the requirements of the Constitution. Therefore, unlike other countries, the concept of “moral responsibility” has a place in the secular affairs of Pakistan though it has been denied in many parts of of the world for many centuries

These views held by Justice Cornelius may sound surprising since he was a Roman Catholic. But the interesting thing about him is that he identified as a neo-Thomist and believed that religion was the source of objective morality that should inform the laws of the land. So it’s really interesting to see that in his writings he views the Islamic nature of Pakistan’s Constitution as an experiment for what he, himself, as a believer in Fundamental Rights derived from religion, believed in.

Maybe Justice Cornelius’ views about the role of Islam in the state was related to his circumstances as a non-Muslim judge in an Islamic country. After all he said that:

a point which in importance overrides all the rest is that, the political society of Pakistan is “theocentric” – a term which should be distinguished from the epithet “theocratic” which certain persons who ought to have known better have chosen to apply in a politically derogatory sense to our country. When the Constitution in its preamble accepts the sovereignty vests “in Almighty Allah alone” and that the authority of the people is a sacred trust from the Almighty, when it declares that Pakistan is to be “a democratic state based on Islamic principles of social justice” and that “the principles of democracy, freedom, equality, tolerance, and social justice, as enunciated by Islam” are to prevail, it speaks with a clarity which should have stilled any such doubts. The agencies of operative to make the citizens of Pakistan, irrespective of our personal religoin, followers of Islam in the sphere of political obligation.

So maybe his opinions on religion in the laws of Pakistan were based on his position as a non-Muslim in a theocentric Islamic country. But I doubt that Justice Cornelius who clearly believed in objective system of ethics would simply adjust his thinking to his situation since that seems a very relativistic thing to do. Instead, he actually seems to have supported the idea of the Constitution of Pakistan as the way it was as a unique experiment in the kind of law-making he believed in.

within the rational order of humanity, where it deals with the concrete aspects of human affairs and sets them in the direction of the public good, there is introduced a restraint against evil and excess which is found in no other Constitution. It is the restraint of religious conscience in the field of ethical behaviour, on the secular side.

I find it interesting how closely the Pakistani state mirrored Justice Cornelius’ own way of thinking. Imagine if a jurist like him was born in, and worked in a country like the US in which the founders had as different a view of religion in state affairs as is imaginable from Pakistan’s. I guess in many ways Pakistan is the perfect canvas for jurists who believe in a system of laws in which the source of all morality is religious. The entire state is set up to facilitate this way of thinking.

Equality before the law in the NRO detailed verdict

The NRO detailed verdict should convince you, as a god-fearing Muslim, to think twice about defending the NRO or criticizing the manner of its overturning. On page 181, the argument is made that the principle of equality before the law, as defined in article 25(1) of the Constitution of Pakistan (“All citizens are equal before law and are entitled to equal protection of law.”) has its origins in Islamic teachings. The excerpt quoted from the book _ Muhammad (PBUH) Encyclopedia of Seerah_ goes on to argue that but any sort of discrimination made between citizens (like the distinctions made by the NRO) goes against the basic doctrine of Tawhid. So anyone who denies the equal rights to all citizens guaranteed by article 25 is not only violating the constitution but, even worse:

Denial of any of these rights to any member would, in fact, be a denial of the Doctrine of Tawhid.

The excerpt goes on to expand the definition of equality before the law as logically being extended to equality of opportunity, the right to a livelihood, a guaranteed decent living, and a decent wage from the state and ultimately ends with a call for a equal redistribution of wealth. Presumably denying any of these principles is equivalent to denial of the Doctrine of Tawhid.

Justice Ijaz Ahmed, in his supporting note to the verdict adds a section entitled “History of concept of equality before law” in which he expands on the Islamic concept of equality before the law. He quotes an excerpt from the verdict in the Pakistan Petroleum Worker’s Union case of 1991 according to whose author the concept was introduced by Islam and predates the Magna Carta, the 14th Amendment to the US constitution or the 1950 declaration of human rights. Instead, it dates back to the farewell sermon of the Holy Prophet which he quotes from at great length.

It must be mentioned that Justice Ijaz Ahmed’s note is particularly unprofessional and alarming. How do ramblings about the glory of the Mughal empire, speculations on the moral greatness of China due to their selection of “Ameen” leadership, and random quotations of Urdu and Persian poetry have any place in a Supreme Court verdict? Justice Ijaz Ahmed’s note is just another depressing reminder of how the future of Pakistan is once again in the hands of unelected officials with Islamist fantasies of glory and greatness for which the people of Pakistan have always had to pay the price.

Additionally, what really stands out about Justice Ijaz Ahmed’s note is his discussion of the “constitution as an organic whole” on page 269 and his explicit defense of the Objectives Resolution, inserted as preamble of the constitution by Zia-ul Haq in 1985:

The preamble of the Constitution has its own significance which shows the will of the people to frame the constitution and passed their lives within the four corners and that is why it is settled principle of law that preamble is the key to understand the constitution.

and

it is very important that while framing the law or taking the action every organ/authority must keep in its mind the preamble of the constitution which is the command of the forefathers and the nation emerged from the document of Objectives Resolution passed by the Constituent Assembly in 1949.

It’s interesting that the main criticism of the short order by IA Rehman and Asma Jahangir was the expansion of the scope of the Islamic article 227(1) beyond the limits defined in Section IX of the constitution as well as the use of the Ziaist article 62(f). In response many critics of Asma Jahangir’s argument argued that the mention of these Islamic clauses was made “in passing” and that Asma Jahangir and even Ali Ahmad Kurd were using these clauses mentioned only in passing in the short order as a pretext to hide their true motivations for criticizing the Supreme Court’s decision which were based on political expediency and an interest in the stability of the PPP government. Now we have this NRO detailed verdict which not only discusses the Islamic provisions but additionally spends many pages discussions article 25, which is not overtly Islamic, in heavily Islamic terms. This detailed verdict not only confirms the fears of IA Rehman and Asma Jahangir but with its overtly Islamic tone, creates far more urgent fears of Islamization of the Supreme Court and judiciary. I won’t be holding my breath for anyone who criticized Asma Jahangir as a PPP sellout to retract their criticism and to admit that her fears were correct.

I’ve said it before, I think it’s really unfortunate that public opinion on the NRO verdict has become a popular referendum on the future of this particular PPP government. The contents of this detailed verdict are far more important and harmful to the future of Pakistan than whether or not Zardari is allowed to complete his term as a president. I salute people like IA Rehman, Asma Jahangir and Ali Ahmed Kurd who are the lone voices of alarm over the Zia-isation of Pakistan that this verdict represents.

Local government, MQM and PML-N

An interesting interview of Farooq Sattar in which he mentions that his party and PML-N should have a natural alliance when it comes to supporting elected local government since they are of the industralized, urbanized class.

The interesting thing is that in this article in the Daily Times, it seems that many PML-N leaders have problems with the proposed Punjab Local Government ordinance 2010 currently being pushed by Shahbaz Sharif because it relies too heavily on unelected bureaucrats. In the words of Ayaz Amir:

He [Amir] said that it was ironic that though Gen Musharraf had raised the slogan of “power at the grassroots”, the PML-N government was going to become the one who did away with it.

It looks like in Punjab there is an internal struggle going on within the PML-N between the provincial government’s natural mistrust of local representation and Shahbaz Sharif’s own autocratic tendancies as opposed to the growing realization within the party that elected representation at the grassroots level is a basic necessity in an urbanized society. It will be interesting to see which tendency wins out.

"Jamaat-e-Islami ka account bhi nahin hai"

via Omar at Let us build Pakistan, Kamran Shahid of Express News asks Professor Ghafoor Ahmed some really uncomfortable questions:

Also an interesting interview by the same anchor of Munawwar Hasan.

I have to say it’s highly entertaining to watch Kamran Shahid grilling these JI stalwarts.

The Ummah effect

Turkish president Abdullah Gul has said today that he has convinced Nawaz Sharif to run for by-elections for NA-123. This comes amidst rumours that one of the reasons Nawaz Sharif is holding back from announcing his candidacy is because of a deal with the Saudi government that he would not run for office until October 2010.

The amazing thing about these two news items is that Nawaz Sharif is so open about the interference of various foreign powers in decisions as basic as whether or not he can or should run for office. Imagine the public reaction if these countries were not Muslim countries.

Compromise does not mean that everyone should submit to your point of view

Just take a look at these two headlines:
1. Gillani stresses need to bridge trust deficit with US
2. Indo-Pak peace to have lasting impact on people: Ulema.

Reading these headlines you could be forgiven for thinking that Pakistan was the most diplomatic, cooperative country in the world and that Pakistani Ulema were some kind of hippy peaceniks. But then when you actually read the stories you find out that:
1. Gillani denies the presence of any Afghan Taliban leadership in Balochistan or North Waziristan and calls it all a misperception after which Senator Carl Levin praises Pakistan’s role as a frontline state in the war on terror and shuts up.
2. The collective Ulema of Jehlum link Indo-Pak peace with Indian action on Kashmir saying that “India is Pakistan’s enemy… It (India) has not recognized Pakistan to this day”

So in reality, the articles should actually probably have been called:
1. Gillani tells Senator Carl Levin to F#$# off.
2. Pakistani Ulema tell India that lasting Indo-Pak peace on terms they are willing to accept is impossible in any of our lifetimes.

At Five Rupees, Ahsan has a good post about how an extremely inflexible position always moves any debate to the side that it represents so that even the “moderate” position becomes moderate only in relation to the extremist position it is moderate in contrast to. Looking at the content of these two headlines, one can see the damage that 62 years of inflexibly right-wing nationalism has done to the political debate in Pakistan when such “moderate” headlines as the ones above are used to describe what, in any other country, would be considered extreme right-wing rhetoric.

I suppose in contrast to Jamaat-e-Islami’s “Go America Go!” campaign, PM Gillani’s “don’t know, won’t tell, and I don’t want to help.” position on the Afghan Taliban is moderate. I mean, when the extreme right wing responds to every situation by arguing that Pakistan should a) cut off all ties with the US b) actively support elements waging a proxy war against US forces in Afghanistan then almost anything short of declaring war on the US and launching a nuclear strike on Israel is “moderate” by default.

But then you have the problem that Nawaz Sharif encountered after the Lahore Declaration when his compromises to India were considered “too liberal” to be acceptable by either the Jamaat-e-Islami or his commando COAS. What that made me realize was that a state in which Nawaz Sharif is “too liberal” on India to be acceptable is a state which will never accept any degree of compromise with India unless it is on the military’s own terms. It’s a state that is ideologically paralyzed to carry out any sort of compromise except at the military’s own pleasure.

So then it should be quite clear why you can have the ridiculous statement made by a floundering president last week regarding the “thousand year war for Kashmir”. Zardari is someone who, shortly before Mumbai, made some of the most progressive and conciliatory statements regarding India-Pakistan peace that any leader in Pakistani history has ever made. But Zardari, like all other Pakistani politicians, is weighed down by the terrible weight of the uncompromising right-wing positions adopted by groups such as the Jamaat-e-Islami who can’t win any elections but have successfully cornered something much more important – the ability to dictate the parameters of political discourse in Pakistan.

Article 227(2)

Here is article 227 of the Pakistani constitution:

227. Provisions relating to the Holy Qur’an and Sunnah.
(1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.

[242] [Explanation:- In the application of this clause to the personal law of any Muslim sect, the expression “Quran and Sunnah” shall mean the Quran and Sunnah as interpreted by that sect.]

(2) Effect shall be given to the provisions of clause (1) only in the manner provided in this Part.

(3) Nothing in this Part shall affect the personal laws of non- Muslim citizens or their status as citizens.

The “Part” referred to in Article 227(2) is Part IX of the constitution . Part IX describes the procedure for the Council of Islamic Ideology to decide whether or not a proposed law is repugnant to the injunctions of Islam. Part IX does not describe the manner in which any other institution could go about deciding a law is repugnant to the injunctions of Islam via article 227(1). So what article 227(2) does is limit the scope of article 227(1) to the Council of Islamic Ideology.

In the NRO verdict short order, article 227 is mentioned as follows:

(i) that the NRO is declared to be an instrument void ab initio being ultra vires and violative of various constitutional provisions including Article Nos. 4, 8, 25, 62(f), 63(i)(p), 89, 175 and 227 of the Constitution;

Since the Supreme Court bench is not the Council of Islamic Ideology, this is going against article 227(2).

As pointed out by Monsoon Frog:

However, the same article also provides that clause (1) of Article 227 shall only be given effect through referral of a matter to the Council of Islamic Ideology, which in turn is only empowered to give an advisory opinion.

So to my non-lawyerly mind it seems rather clear that the short order has essentially widened the scope of Article 227(1) beyond its constitutional limits as described in Article 227(2).

According to IA Rehman:

The position as far as a lay writer can understand is this: the power to strike down a law for being repugnant to Islamic injunctions lies with the Federal Shariat Court and no other court. Article 227 only allows the Council of Islamic Ideology to recommend changes in laws on the ground of repugnancy to Islam. The article does not empower any forum to strike down any law. When 17 judges of the highest court invest Article 227 with the power to nullify a law it could amount to constitution-making.

I am grateful to the two writers above for clarifying this aspect of the short order. As far as I can tell they appear to be the only two legal experts who have described this contradiction and its troubling implications. Babar Sattar, in his column, while discussing the mention of article 227 in the short order, omits any mention of article 227(2).

It’s interesting and sad that an aspect of the short order with such potentially far-reaching consequences regarding the future use of the Islamic provisions of the constitution by our courts has gone relatively undiscussed in both the Pakistani and the foreign press.