At the heart of the negotiations between the Taliban and the Government of Pakistan is the issue of the implementation of Sharia. The negotiators have presumed that the Pakistani legal system is un-Islamic and it needs to be replaced with the Islamic legal system. This is in sharp contrast to the views of secularists in Pakistan. They find the Pakistani legal system too Islamic and argue that Islamic laws should be repealed to ensure women’s rights and protection of minorities. Thus Pakistan is caught in a dilemma, which was faced by an Urdu poet who complained about being viewed as a kafir by the rigid clergy, while a kafir considered him to be a Muslim.
In this article, I want to engage with this dilemma of the Pakistani legal system. An impartial viewer would regard the Pakistani legal system as a hybrid of Islamic and English legal systems. Our family laws are based on uncodified Sharia (Fiqh) and they survived the Anglicisation of the Indian legal system during the British colonial rule. Various Pakistani constitutions provided that no law against the injunctions of Islam could be promulgated.
Right after gaining Independence, our courts embarked upon the process of judicial Islamisation of laws. This process was exacerbated in the late 1970s with the establishment of the Federal Shariat Court and Shariat Appellate Bench at the Supreme Court. Any citizen of Pakistan can challenge any Pakistani law as un-Islamic and many laws have been judicially Islamised under this process. Qisas and Diyat law is the prime example. Zia ul-Haq did not introduce this law despite promulgating various Hudood ordinances and taking other measures to Islamise the Pakistani legal system. It was after the end of Zia’s rule, that the Shariat Appellate Bench declared the provisions of Pakistan Penal Code, regarding murder and bodily harm, as un-Islamic. The government was forced to promulgate the current law, which is in accordance with the principles of Fiqh.
Certain parts of property law such as pre-emption, land reform laws and rent laws were also judicially Islamised in the 1990s. In its famous judgment in 2000, the Supreme Court also declared riba unlawful, though the government filed a review petition and this case has yet to be finally decided. Therefore, one of the fifteen points of Taliban demands the end of interest based banking system in Pakistan. If this demand is met, Pakistan would be the only Muslim country which will eliminate interest (as interest taking is permitted even in Saudi Arabia and Iran).
Despite the Islamic character of our legal system, that is enshrined in the Constitution, the overall perception is that the Pakistani legal system is un-Islamic because of its origins, structure and impact. The hierarchical judicial structure was introduced by the British, who also transplanted the representative form of government in colonial India. The utter failure of the political and legal system to deliver effective governance and ensure administration of justice has provided further impetus to the call for the implementation of Sharia as a panacea for wide scale injustice and inequality in our society. Hence the fourteenth point of the Taliban calls for the replacement of the democratic system of governance with Islamic system.
One of the criticisms of our judicial system is that it operates under the common law procedures, which involve delays and is also replete with corruption. Therefore, the simple and straightforward procedures of a Qadi court are offered as a remedy. This was also presented as one of the key achievements of the Taliban led Afghanistan, before they were toppled following 9/11. We find an echo of Taliban demands in other parts of the Muslim world. For instance, the slogan of Muslim Brotherhood in Egypt is al-Islam howa al-ḥall (Islam is the solution).
The ordinary citizen of Pakistan is facing a moral dilemma. The Taliban appeal to the principles of Islam and claim to be fighting in the way of Allah. They have chosen the path of armed resistance and suicide attacks. Such acts can hardly be justified as Islamic under Fiqh. However, the slogan of promulgating God’s law on God’s earth is used as a justification. One may ask that if Taliban are struggling to impose Sharia, then why don’t they first follow it themselves? There are clear rules on the conduct of war in Islam and these rules have been flagrantly violated by the Taliban.
One of the questions, which the Taliban fail to answer, is that how could religiously inspired Sharia be imposed through the institutional set up of the modern state? This question is closely connected with the concept of ‘law’ in Islam. Islam as a religion provides a code of conduct, based on ones conscience and a sense of responsibility before God. Therefore, imposing Sharia backed by the authority of the state does not fit into the principles of Islam.
This, however, does not mean that Sharia and modern state are incompatible with each other, as it is erroneously proposed by one of the leading Western scholars on Islamic law, Wael Hallaq in his recent book, The Impossible State. What it means is that Sharia is not a state law and the very term ‘Sharia Law’ is an oxymoron. In order to transform Sharia into law imposed by the state, further consultative procedures have to be followed.
Therefore, medieval Muslim jurists did not use the term ‘Sharia’ for the rules they drew from the Qur’ān and Sunnah. Rather, they used the term ‘Fiqh’ (literally understanding). This showed their humility since none of the jurists claimed to have discovered the actual will of God. Hence, when the Taliban claim to implement Sharia, it begs the question; what do they mean by Sharia? It is important to establish this because Fiqh texts are discursive in their content, containing multiple juristic views on a particular issue.
Historically, the pre-colonial legal systems of Muslim countries relied upon state law (qānūn/ā’yn) and custom (‘urf) in addition with Fiqh, in order to create legal certainty. Both state law and custom derived their validity under Fiqh doctrines of Siyāsa (governance), Istiṣḥāb (continuity) and Maṣlaḥa (public interest). However, the advent of the modern state disrupted the traditional arrangement, which was based on a balance of Fiqh, state law and custom. The formal state promulgated laws claimed supremacy, while Fiqh and custom were reduced to the status of informal laws.
The fact of the matter is that the Taliban are not offering any solution to this problem, which is posed by the advent of modernity in the form of modern impersonal state, to traditional exposition of Fiqh. Their demands appear as nothing but political slogans in order to win the sympathies of ordinary Pakistanis, who in their conscience feel duty bound to follow Sharia as a religious obligation.
Taking into account the legal system of other Muslim countries, it can well be argued that the current Pakistani legal system, despite its failings, offers the best accommodation to the principles of Sharia. Following the advice of Allama Muhammad Iqbal, our representative system embodies the Qur’ānic principle of Shūrā (consultation) and juristic principles of Ijtihād and Ijmā’. The Federal Shariat Court provides an institutional mechanism to incrementally Islamise the laws. The ‘ulamā’ judges are part and parcel of this process. It could be argued that this is not an ideal system. However, labelling the legal and judicial system of Pakistan as totally un-Islamic is not justified.
It is interesting to note that, although the Taliban are challenging the existing political and legal system of Pakistan, they do not offer a clear picture of the alternative. In fact, there is a contradiction between Taliban’s Demand No. 2, which requires the ‘introduction of Sharia in courts’ and Demand No. 15, which requires the replacement of ‘the democratic system of governance with Islamic system’.
Does this mean that Sharia will be implemented under the existing judicial system, while the overall political structure will be replaced with the Islamic system? It is yet to be known what exactly is the ‘Islamic system’ proposed by the Taliban and how it will ensure justice to the various members of our society. After all, even an un-Islamic system of governance based on the principle of justice is preferred in Islam over a so-called ‘Islamic system’, which perpetuates injustice and intolerance.