Thursday, 23 July 2015

The Role of the Council of Islamic Ideology in the Islamization of Laws in Pakistan by Dr Khalid Masud

Paper presented at Pakistan Summit Conference organized by International Centre for Muslim and Non-Muslim Understanding, University of South Australia, Adelaide, 6 July 2015

Honorable Prime Minister Bob Hawke,
Professor Riaz Hassan,
Mr. Shahid Javed Burki,
Professor Subrata Mitra,
Dr. Iftikhar Chaudhri.
Respected Asia Scholars, Students, Ladies and Gentlemen
Al-salamu Alaikim,  a very Good morning to you all.
Let me begin by thanking Professor Riaz Hassan and organizers of this summit for this opportunity to share my thought on the Islamization of laws in Pakistan. The increasing number of books that have been recently published on Islamic law, Shari’a and Islamization suggest a growing interest in the subject. 
This is my first visit to Australia and I am continuously overwhelmed by this wonderful experience. I am indeed overwhelmed this morning by the impressive presentations by Mr Burki and Mr Chaudhari, the two giants in the field. Lest I am completely overtaken also by the restraint of time, let me state my conclusions first. 
Whenever we talk about Pakistan, the conversation begins and end with the statement that it is a country that came into existence in the name of Islam. We should not forget that Pakistan was movement for the protection of the rights of minorities in India. We should not forget that this movement was led by modernists. They were inspired by reformist leaders like Sir Syed Ahmad Khan and Muhammad Iqbal. The movement and its leaders were denounced by majority of the Ulama in India. Either the Ulama did not believe that Pakistan was not really for Islam, or they believed that it was impossible to have an Islamic state or that it was not possible for a modern state to enforce Sharia or Islamic law. It is a fact that majority of the Ulama supported Indian National Congress against Muslim League. It is after the independence, that they raised the slogan that Pakistan was established for Islam. It is these religious groups who have been calling for Islamic state, enforcement of Shari’a. Iqbal and Sir Syed did not call for the restoration of  caliphate; they pleaded for reconstruction of Islamic religious thought; Sir Syed invited to a reconstruction of Islamic theology (‘ilm al-kalam jadid) and Iqbal invited to a reconstruction of Islamic law. Both stressed on the need for Ijtihad.  
My presentation this morning will focus on Council of Islamic Ideology established as a constitutional body fist of August in 1962 to advise legislative assemblies and parliament on Islamization of laws in Pakistan. I have chaired the council for six years from 2004 to 2010.  Sharing my experience during this period I will present my views about the Islamization of laws in Pakistan. During the first part of this presentation I will arise and answer some important questions about the role of the Council of Islamic Ideology. In the second part, I will speak about how the politics of Islamic law and Islamic state in Pakistan and elsewhere has affected the role of the Council.

Article 227 of the 1973 Constitution defines the objectives of the Council of Islamic Ideology in the following words: 
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. 

The Article clarified that nothing shall affect the personal laws of non-Muslims and their status as citizens. 
The Council began reviewing the laws existing since 1726. It completed its review and submitted its Final report in 1996.  It has forwarded so far more than 90 annual reports. 

According to the Article 230 (4) these reports should have been laid for discussion before both Houses and each Provincial Assembly within six months of the receipt, and after considering them Parliament and the Assembly should have enacted laws within a period of two years of the final report. Sadly, however, neither of the reports of the Council has ever been placed before the House. The Council of Islamic Ideology has been submitting its annual reports since 1977. Having examined several thousands of laws, the Council found less than five percent of them repugnant to Islam and has recommended relevant amendments. Had the parliament deliberated the contents and approved these reports the main objection that most laws in Pakistan are un-Islamic would have been removed. 

During my tenure as Chairman of the Council from 2004 to 2010, only two recommendations reached the Parliament while the third was blocked by the government.  First recommendation related to a Hasba Bill that the alliance of six religious political parties (MMA) proposed in 2005 to ensure the implementation of Sharia in the North West Frontier Province, now KPK. The Governor of the province referred the Bill to the Council for its advice. The Council observed that the Bill proposed a huge organization employing hundreds of religious scholars for most of the matters for which laws and authorities already existed. Furthermore, the institutions of Ombudsmen were functioning with lesser budgets in other provinces. More significantly, some provisions of the Bill were contrary to the fundamental rights guaranteed in the Constitution. Eventually, the Bill was referred to the Supreme Court that declared it unconstitutional.[1]

The second recommendation was about the Hudood Ordinance 1979. Hudud is an Islamic legal term referring to crimes for which fixed penalties have been prescribed in the Qur’an and Sunna. Islamic law distinguishes Hudud from Tazir penalties which are not fixed and left to the discretion of the judges and law makers.  Hudood Ordinances pertained to four offences, namely Zina (extramarital sex), qazf (false accusation of zina), theft, and consumption of alcohol. Several Court judgments, analytical reviews, reports by commissions appointed by the Government of Pakistan had pointed out flaws in this Ordinance. The most controversial was the law about rape. It was distinguished from Adultery but still considered fornication. No legal distinction was provided in the criminal procedure. Consequently, a victim of rape was treated as accuser and she had to produce four bona fide witnesses to prove her case. She usually ended up as an offender of Zina because her complaint turned into a confession. 

Continuing its review of existing laws, the Council began examining Hudood Ordinances 1979 in 2005 and found most of its provisions repugnant to the teachings of the Qur’an and Sunna.[2] The Council proposed a thorough review. This proposal was vigorously opposed by religious groups in media debates and street demonstrations. A number of groups who condemned Hudood Ordinance as unjust law supported the Council. While discussing the Council’s recommendations, some members of the Cabinet proposed a Committee of the Ulama to examine Council’s recommendations. The Council clarified that it was the only constitutional body to advise the government and declared that all of its members would resign if its recommendations were placed before the Ulama Committee instead of the parliament. Government of Pakistan finally proposed Women Protection bill that was passed by the Parliament in 2006. The Women Protection Act moved all the offences of Tazir category in the Hudood Ordinances to Penal Code so that regular criminal procedure could be applied.  Rape was also moved to the Penal Code shifting the burden of proof from the victim to the state and allowing evidence other than four witnesses as required by the Hudud laws.[3]

The third recommendation pertained to wife’s right of divorce. The Council recommended that a wife should be allowed the right of divorce equal to that of a husband. Divorce initiated by the wife should come into effect after three months unless there are other disputes between husband and wife. Recommendation generated a heated debate in public and media. The conservative religious argument was that Sharia gave only the husband the right to divorce; women had no such rights. She could ask for Khul’ divorce but only on payment of compensation and provided the husband consented to it. She could go to the court for judicial divorce on the grounds specified in Dissolution of Muslim Marriages Act 1939. No such restrictions applied to the husband. The Government blocked Council’s recommendations and promised the religious groups to change the composition of the Council.[4]
It is significant to understand the issues behind this debate. Apart from the politics of Islamic law on which I shall comment later, difference of opinion arose from at least three perspectives. First, from the perspective of validity: who has the authority to make laws? The state or the Ulama? Second, from the perspective of change and reform: is Sharia as divine law mutable or immutable?  Third was the difference in the method of interpretation: from the perspective of authenticity should the interpretation of scriptures be literal or contextual?  

To answer these questions briefly, I would like to suggest that theoretically Muslim jurists have never allowed the ruler or state to make Sharia laws since the early Abbasid caliphate who tried to introduce their own theology through their courts. It was mainly in case of controversy among the jurists that the ruler or state had the right to choose one of the opinions. Historically, however, Islamic penalties were rarely enforced in south Asia. Since Mughal emperor Akbar’s failed attempt to claim the right of legislation or interpretation, the Ulama had been opposed to state interference in Sharia. It was under colonial rule that state began legislating in Sharia matters, personal and criminal laws. The Ulama accepted it as an exception under non-Muslim ruler. But it was not possible after independence. There was, however, one big difference. The Ulama recognized the role of state in enforcing Sharia.   

Regarding the perspective of immutability of Islamic law, emphasis on continuity and perception of change as imperfection has stressed on Islamic law being perfect, complete and comprehensive. It denies any change in this law. The modern concept of tradition also reinforces this perception. However, the fact that the jurists have always differed with each other, the fact that there have been and are several schools of law, and the fact that the doctrine of Taqlid adherence to one of these schools protects the right to differ demonstrates change, diversity and plurality in Islamic legal thought.

As to the method of contextual interpretation, the Hanafi and Maliki schools are good examples as they recognize role of social practices and local customs in Mecca, Medina, Kufa and Yemen in the formative period of Islamic law. They also recognize the rule that laws based on custom change when the customs change. The question has arisen more pointedly in the periods of sea change. It in this situation that a trend called Islamic modernism has been suggesting historicizing Islamic law. They argue that slavery, patriarchy, polygamy, legal sexism were not introduced by Islam. The jurists treated them as natural principles of social organization and cohesion. It is only in modern times that weakness, discrimination and injustice inherent in these principles have come to be recognized. The jurists insisted on these principles to protect social order.

Digging deeper into the historical contexts of pre-Islamic Arab society we learn more about the formative period and origins of Islamic law. One finds reference to such social practices in the Qur’an. We can appreciate this information only if we take the Qur’an as discourse on reform, not if we take it as a code of law. For instance, the Qur’an mentions that an adulterous male can marry only an adulterous female (24:3). Quite obviously, it cannot be a law because the Qur’an would not promote extra-marital sexual relations. Reading along with other verses and the information found in the Hadith and tafsir literature, we find that sexual relations that the Qur’an proscribed as Zina not only existed in Mecca, Medina and elsewhere but were also recognized as valid forms of social organization.[5] There were several forms of these relations including the houses that hoisted flags. It created disputes about children born out of these relations. One solution was the profession of qiyafa (physiognomy) experts who decided to who the child belonged. The other method was to allow marriages among such children. Some families were known for offering their slave girls for such relations and earned money.[6] There were disputes about such practices as well. Sometimes slave girls complained and the Qur’an admonished the families (24: 23) sometimes families accused them for such relations because of the status of child bearing slave girl. 

The Qur’an introduced reforms by providing clear rules about marriage and divorce. Zina was considered immoral in pre-Islamic Arab society; but only for women, not for men. The Qur’an required four witnesses to prove the accusation of Zina against women, especially those who refused to commit this immorality (24: 23). This rule was more to protect the institution of marriage because if a married woman was accused, the accuser had to provide four witnesses. Muslim jurists took it as a general rule and required it in case of rape as well. The Qur’an also required Muslim women to cover themselves so as to be distinguished from those who were engaged in such practices. The Qur’an called it the tabarruj (immoral exposure) and meant to attract people for such relations. The Qur’an prescribed covering the body so that Muslim women are identified differently and not harmed (33:33).

The Qur’an also explained in length the procedure of divorce introducing reforms in the existing practices. It was in principle a process of mutual decision that defined marriage as “holding on equitable terms” and divorce as “separation with kindness” (2: 229). Muslim jurists understood and interpreted these verses in the existing social context. The Islamic legal construction of women’s right of divorce is a good example. The Qur’an prescribed that when a husband and wife feared that they could not fulfil the obligations of marriage they can separate with kindness. Husband must not force her to stay and should not demand compensation. How can husband do that after such intimate relations? The Qur’an does not mention the term Khul’ but since there was a pre-Islamic form of divorce called Khul’ in which husband divorced the wife on her demand but demanded return of gifts and property, the jurists interpreted the verse in that meaning and adopted the pre-Islamic terms and conditions; even though the Qur’an clearly discouraged husband to take any part of property back (2: 229, 4:21).  In modern debates, Khul’ is usually regarded as a form of divorce allowed to a Muslim woman to initiate divorce. 

I dwelt longer on this point to explain the issues in debate between the Council and the religious groups and also to illustrate the social construction of Islamic. What I am suggesting is that we need to historicize Islamic law in order to reconstruct it for the present needs. 

To my knowledge, except for a few of such recommendations that I had mentioned no report of the Council has been ever officially placed before the Parliament. It is sad but no explanation for this remiss exists. In view of my experience I can suggest three reasons why the Council’s reports were not discussed in the Parliament. First relates to the composition of the Council that has increasingly shifted its image from a law reform institution to a body of religious clerics. Second pertains to the method of Islamization of laws and the Council’s role in it. The third reason relates to the global debate over Sharia and Islamic State.  

Regarding the first reason about the composition of the Council, members in the beginning mostly belonged to judiciary and legal professions. Since 1970s, however, members have been selected largely from religious groups. Recent constitutional amendments have reduced the number of members from judiciary, stressed on sectarian representation and raised the number of religious scholars. The impact of such changes has introduced a dominant religious stance in its composition and function. The present image of the Council is largely that of Ulama Council. It illustrates how the various governments found reform of laws politically risky and have therefore avoided this agenda. 

The second reason has to do with the growth of religious opposition to reforms in traditional Islamic laws. It has also brought a paradigm shift in the method of Islamization of laws. Let me explain this point.

Opinions about the method of Islamization of laws in Pakistan have remained divided. The apparent intent of the framers of the Constitution has been to count a law as Islamic if it is not contradictory to Islamic teachings. Clause (2) and (3) of the Article 230 that require the Council “to advise whether a proposed law is repugnant to the Injunctions of Islam”, and “To recommend measures for bringing existing laws into conformity with the Injunctions of Islam” are understood to mean that an existing law is Islamic if it is not repugnant to Islam. It also confines the scope of injunction of Islam to the Qur’an and Sunnah. It is popularly known as repugnancy clause. The religious groups, on the other hand disagree with this method. They define Islamization as conformity with the opinion of the jurists or Fiqh of the sects. They took this position against the Muslim Family Laws Ordinance in 1961 that departed from Fiqh on several points.

It was All Pakistan Women Association’s campaign against polygamy that successfully produced Muslim Family Laws Ordinance 1961. Pakistani society has remained divided since the promulgation of this legislation. While the reformist groups supported these reforms the religious groups opposed them. Reformists were known as Islamic modernists who distinguished between Fiqh and Sharia. To them Sharia means the Qur’an and Sunna and Fiqh refers to the jurists opinions. Islamic modernism goes back to Sayyid Ahmad Khan in the nineteenth and Muhammad Iqbal in the twentieth century. They called respectively for new Muslim theology and new Islamic Jurisprudence. Sayyid and Iqbal denied contradiction between reason and revelation, between science and religion, and between modernity and Islam. Iqbal stressed on need for collective Ijtihad and recommended parliament as a modern institution Ijtihad and Ijma’ are combined. He also recommended Abu Ishaq al-Shatibi’s Maqasid al-Sharia as an inductive method of legal reasoning that invoked higher objectives of Islamic law. Reforms in Islamic law in Pakistan, particularly Muslim Family Law 1961 employed the methodology of Islamic modernism. In reinterpreting the Qur’an and Sunna they recommended registration of marriages, restrictions on polygamy, child marriage and triple divorce and so on.   

The traditional and conservative groups opposed these reforms as un-Islamic because it was deviation from the views of the religious schools. These groups insisted on the implementation of Fiqh or traditional views as the true enforcement of Sharia. This method of Islamization of laws in Pakistan triumphed in 1979. It introduced state collection of Zakat, reform of banking laws, and introduction of Hudood criminal laws. These legislations were mainly based on this method of implementation of Fiqh. The Council had a pivotal role in this process, especially in drafting most of the laws. 

In order to accommodate these laws into the existing legal and judicial system, amendments were made in the Constitution, new judicial institutions like Federal Shariat Court and Shariat Appellate Benche were constituted and new judicial procedures like Qanun-e Shahadat Order1984 were introduced. This complicated the matter further and controversy over these issues gave religious groups an opportunity to declare existing laws and institutions un-Islamic and to call for full the enforcement of Sharia.

The third reason pertains to the global trend known presently as the new paradigm of law and Empire that stands for absolutely powerful state with restricted rule of law. It coincided with the political Islam theory of Islamic State. The period since 1979 has seen Islamization acquiring several new meanings. Important events in 1979 like Iranian revolution and Islamization of laws in Pakistan, Sudan, Nigeria and elsewhere raised high expectations among Muslims, whereas siege of Mecca, and Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) brought anxieties. Establishment of Islamic Universities in 1980 in Pakistan and other countries in Asia and Africa initiated by the movement for Islamization of knowledge stressed upon differences between Muslims and others but also clash of values. Unipolar global politics defined Islamization of laws also in terms of political Islam. 

Traditional religious groups emerged as powerful political parties joined hands with movements for Islamic state based on the concepts of sovereignty of God and supremacy of Sharia.

In Pakistan, Sufi Muhammad’s movement for the enforcement of Sharia arose in 1992 and turned into an armed struggle in 1994. It confronted Pakistan Army closing roads for three days. The movement was suppressed with much difficulty by conceding to Sufi’s demands and signing an agreement introducing Qadi system in specific areas. In the meanwhile in 1995, Taliban had established an Emirate or Islamic state under the leadership of Mulla Umar in Afghanistan.  Sufi Muhammad supported this state and sent thousands of volunteers across borders to join Mulla Umar. Mulla Umar declined them and these volunteers were stranded on the borders of Pakistan and Afghanistan. Sufi Muhammad was jailed in 2001. During Sufi’s imprisonment his nephew Mulla Fazlullah assumed leadership of the movement. Sufi Muhammad’s organization was banned in 2001 as a terrorist outfit. Fazlullah is the present Amir of Taliban in Pakistan. Sufi Muhammad was eventually released in 2008 when he renounced violence. The Provincial government in the Northern areas of Pakistan resumed dialogue with the Taliban in 2009 and agreed to revise existing Nizam Adl regulations. Negotiations with Sufi Muhammad, however, failed. In one of the Press interviews Sufi Muhammad condemned Democracy, Constitution, and Parliament as un-Islamic and infidel. 

Earlier in 2012, Ayman al-Zawahiri of al-Qaeda had denounced the Constitution of Pakistan in his book al-Subh wa’l Qindil[7], as un-Islamic and justified this violence: 
Pakistan is an un-Islamic country whose Constitution is also un-Islamic and has some fundamental and dangerous conflicts with Islamic Shariah. It has revealed upon me that Pakistan’s Constitution is a product of the same Western mindset that believes in people’s right to rule and make laws and no doubt this ideology is clearly conflicting with the faith ordained by Islam.
Addressing the Ulama in Pakistan, Al-Zawahiri urges them to refute the ‘Islamic illusion of Pakistan’:
 I am astonished at how Pakistan’s leading and learned Islamic scholars became victim of this deception and supported and commended this Constitution that led to its approval. … But I am extremely amazed by the behavior of our learned friends who have not been able so far to come out of ‘Islamic illusion’ of Pakistan’s Constitution and continue to harp on the same string of possibility of enforcement of Shariah based on false constitutional and political promises.
Refuting al-Zawahiri, Mawlana Ammar Nasir argues that the book was written to assure the rebels fighting against the government of Pakistan that they were on the right path:
Zawahiri’s objective in writing it [this book] is not to present an alternative strategy to enforce Shariah or to convince the Pakistani people to adopt options other than democracy; he has simply tried to gather public support for the tribal militants fighting against the state.[8]
While Sufi Muhammad and Mulla Umar renewed their condemnation of violence, terrorism and militancy in Pakistan in 2014, they continue to call for the enforcement of Sharia. A recent letter written in April 2014 to Mawlana Sirajul Haq, the newly elected Amir of Jama’at Islami, the Taliban leader Umar Khalid Khurasani justifies this violent path, “Shariat could not be enforced in the past 66 years in Pakistan by means of constitutional struggle. Now, there is no other way than armed struggle to achieve this this objective.”  

Consequently, opinions continue to be divided about how to deal with the Taliban who challenged the writ of the state by continuous acts of terrorism, suicide bombing, destruction of schools, mosques, temples, churches and graveyards. Some religious groups and political parties still insisted on dialogue with the Taliban. The Government of Pakistan constituted a Committee to start these dialogues with the Taliban. These dialogues failed. Conflicting statements have been made explaining deadlock and failure of talks between the Taliban and the Government.  In his recent book published in 2015, Samiul Haq, who claims to be the father of the Taliban and who was a member of the Dialogue Committee along with members of Jama’at Islami and Red Mosque group, links the failure of this dialogue to the end of Islamic State in Afghanistan as a War of Ideology between the US and Afghanistan. Samiul Haq describes Islamic State as a struggle for peace against hegemonic Western Ideology. 

According to him, “The Islamic government in Afghanistan [in 1995] was a manifestation of the creator of the world and it offered the world an alternative better than the concepts of Western capitalism and democracy. There was no other option available to the US, but to work for the destruction of Afghanistan.”[9]
Samiul Haq dismisses the notion of the need for reform in Islamic law. He believes that Muslim women enjoy more rights than others. The problem arises from the non-implementation of Sharia.

To restate today’s presentation I would underscore the complexity of debates over Islamic laws. It began attracting academic attention in the early twentieth century. Orientalist approach treated Islamic law as rare species surviving in the era of nation states and international law. However, failure of its predictions about disappearance or marginalization of Sharia made scholars like Emile Tyan[10] and Joseph Schacht[11] look deeper into the nature, history and structure of this legal system. Although major theses of these scholars about the origin, history and nature of Islamic law have been questioned by the later generation of scholars like Wael Hallaq and Sherman Jackson, debates about whether Islamic state is a viable or an impossible system continue.  

In his latest work, The Impossible State (2014), Wael Hallaq argues that the "Islamic state," judged by any standard definition of what the modern state represents, is both impossible and inherently self-contradictory. Comparing the legal, political, moral, and constitutional histories of pre-modern Islam and Euro America, he finds the adoption and practice of the modern state to be highly problematic for modern Muslims.[12] Hallaq builds his argument on an academic yet essentialist understanding of inherent contradiction between ‘pre-modern’ (“paradigmatic”) Islamic law and the “modern state”. 

Like Samiul Haq, Hallaq argues that Islamic law and modern state are in an inevitable conflict with each other. Hallaq and Samiul Haq both overlook the change and continuity in the theories and practice of Islamic law and pragmatic Muslim approaches in political and legal theories. They also tend to ignore the overall recognition of the role of modern state in Muslim legal thought. They fail to notice compatibility of Islamic law with changing times and see it merely floating in a timeless space. 

Hallaq’s pessimism pertains more to modern state than to “paradigmatic Islamic governance” because he finds self-contradictions “primarily grounded in modernity’s moral predicament”.  He describes his book as an essay in moral thought even more so than it is a commentary on politics or law. Accordingly, he finds modern Muslim state reflecting the crisis of modern Islam but also implicating the moral dimensions of modern project. He finds the form-perceptions of “sovereignty” and “rule of law” in Islamic governance different from the modern state and hence concludes that “Islamic governance is unsustainable, given the conditions prevailing in the modern world”.

To conclude, Islamization of laws in Pakistan has been severally explained as revival of Islam, as implementation of the vision of Pakistan formulated as Objective Resolution in 1949 passed by the Constituent Assembly soon after its independence in1949. It is justified as requirement of Sovereignty of God and Supremacy of Sharia as principles of Islamic State laid down by the groups of religious scholars in 1952. It is described as Policy of the state in 1973 Constitution. Continuing controversy on all these points has problematized Islamization of laws in several different ways. On the one side, it is viewed as an issue of reformation in the religious history of Islam, an expression of Muslim nationalism, and a characteristic of Islamic State. On the other hand, it is considered a cause of the rise of fundamentalism and extremism, violation of the principles of democracy and secularism, and lately as Law and Empire project.  

Problematization of Islamic law in these terms does not take into account the legal, political and social dynamism in the Muslim societies. Essentialized definitions of modernity, state and law are greater hindrance to our understanding of the continuous unfolding of the legal and political phenomena. Islamic modernist approach toward historicizing Islamic laws helped understanding modern dynamism. However, continued fascination of modern man with Empire paradigm of law and state is compelling Western political thought to ideas of State Exception. 

Muslim political thought has also returned to the idea of global caliphate with nostalgic vigor.  Advancement in political science, anthropology, social theories, social history, social psychology and other disciplines provide deeper understanding of law, state and society. Benefiting from these tools we can undertake some archeological research in the origins of legal theories and reconstruct laws that respond to present day needs.

[1] Makhdoom Ali Khan,  “Legality of a Hisba Bill to introduce an Islamic Ombudsman in the North-West-frontier Province”, Yearbook of Islamic and Middle Eastern Law, Volume 11 (2004-2005).

[2] Council of Islamic Ideology, Hudood Ordinance 1979an Interim Report, Islamabad, 2006.

[3] Martin Lau, "Twenty-Five Years of Hudood Ordinances- A Review". Washington and Lee Law Review 64 (4): 1 September 2007, 1292.

[4] See for details, see Muhammad Khalid Masud, “Interpreting Divorce laws in Pakistan: Debates on Shari’a and Gender Equality in 2008”, in Rubya Mehdi, Werner Menski and Jørgen S. Nielsen, Interpreting Divorce laws in Islam (Copenhagen: DJØF publishing, 2012), 43-61.

[5] See for detail, Jawad Ali, al-Mufassal fi tarikh al’Arab qabl al-Islam (Beirut: Dar al-Saqi, 2001), 9: 133-40, 10: 224, 226, 240.

[6] Ibid. 9:133.

[7] Maulana Abd al Salad, trans., Sapeeda e Sehar aur Timtimata Charagh (Urdu translation of Sheikh Ayman Al-Zawahiri’s Arabic-language book Al-Subh wa’ Al-Qindil), (Idara e Hitteen, 2009), 16-17, net/shared/1llz6ogyap (accessed October 4, 2012).

[8] Maulana Muhammad Ammar Khan Nasir, “Is Pakistan’s Constitution Based on Disbelief? A Critical Review of Ayman Al-Zawahiri’s Book Al-Subh wa’ Al-Qindil”, in Safdar Sial (Ed.), Critical Ideologies: A Debate on Takfeer & Khurooj (Lahore: Narratives, 2012), 169-78.

[9] Samiul Haq, Afghan Taliban War of Ideology, Struggle for Peace (Islamabad: Emil, 2015), xv

[10] Emile Tyan, Histoire de l'organisation judiciaire en pays d'Islam (Paris: éd. Sirey,  1938).

[11] Joseph Schacht, An Introduction to Islamic Law (Oxford: Clarendon, 1964).

[12] Wael B. Hallaq, The Impossible State: Islam, Politics, and Modernity's Moral Predicament (New York: Columbia University Press, 2014), back cover.

Saturday, 30 May 2015


This study begins with a brief look at the evolution of consumer protection as a law in modern legal systems, particularly English and Islamic laws. The entire debate is based on the presumption that the protection of consumers has become significant due to the advancement of science and technology. The study focuses on the product liability that deals with the issues of damages and harms caused by a defective product in a sense that in contemporary times many products are production mysteries and that they have caused accidents. The thesis presents a discourse of various product liability regimes in the United Kingdom such as contract and tort with analysis in the light of Islamic Shari’ah. The study explores the theoretical foundation of consumer protection in general and product liability in particular in both English and Islamic laws. In this regard, the European Union Directive on product liability (1985) is widely referred which became part of the English law through enactment of the Consumer Protection Act, 1987. It is appreciated that today the English law to a large extent is capable of solving the disputes of product liability and a valuable amount of case law has been developed in this regard. The regime, however, has various deficiencies, which have been pointed out in this thesis.

Similarly, the thesis explores the protection of consumers in the context of product liability from the perspective of Islamic law. It also explores the juridical basis for the adequate protection of consumers in general and product liability in particular. The classical Islamic law has been evaluated to analyze the concept of consumer protection from an Islamic perspective. The thesis also analyzes the reasons of Muslim community for lagging behind in scientific and technological advancement and that it could not enact laws to cope with modern legal challenges. It stresses on the dire need to reconsider the Islamic law on product liability in the context of modern scientific and technological developments. It urges the Muslim jurists to learn from the experiences of modern product liability regimes in order to make the Islamic law on the subject up-to-date, adequate and effective. Similarly, the thesis recommends the English legal fraternity to learn from the Islamic law for removing gaps and deficiencies in their legal system. The research is a comparative analysis of the subject of consumer protection in the context of product liability in a sense that the key notions of modern product liability have been thoroughly examined in both English law and Islamic Shari’ah. 

This thesis concludes by making recommendations for drafting a comprehensive set of rules based on the divine principles of Islamic law in the hope that such a code will effectively contribute in the development and preservation of consumer rights against defective and dangerous products in Muslim countries in contemporary age of advanced technology.

This is the abstract of PhD thesis submitted by the author to the Faculty of Shari’ah & Law, International Islamic University, Islamabad in 2015. The author is also lecturer in law, IIUI and can be reached at: 

Sunday, 24 May 2015

Islamic Law and the Modern State

The Middle East is in political turmoil yet again. The rise of ISIS has reignited the debate about the relationship between Sharia and the State. Does Sharia require the establishment of a state, which is based on coercion? Or the notion of coercion-based State is antithetical to faith-based Sharia? These questions could be answered in two ways. First, by using the terminologies and theoretical frameworks developed by Western scholars. A majority of them describe Sharia/Fiqh as ‘jurists law’ because these are Muslim jurists who elaborate the rules of law by using the methodology of usul al-fiqh. In this way, Sharia/Fiqh is the only legitimate ‘Islamic law’ and all other mechanisms of governance, whether formal or informal, are illegitimate or at best extra-Sharia. This is the dominant narrative of Islamic law and legal history amongst the Western scholars.  

There is another way of looking into these questions. This is the internal view of Sharia/Fiqh about the State. It is distinguishable from the Western view in the sense that it tackles this issue in the terminologies and theoretical frameworks of Muslim jurists. Similar to the Western view, it portrays Sharia/Fiqh as the legitimate form of law, however, it also recognizes the other forms of regulations, which are equally legitimate. In fact, these other forms draw their authority from within Sharia/Fiqh. In this way, although these so-called ‘extra-Sharia’ regulations do not have the normative authority of rules laid down by the jurists, they are nevertheless not illegitimate. Rather, they are complementary to Sharia/Fiqh. This narrative is justified under two broader theories of maslaha and siyasa. As a broader concept, maslaha encompasses istishab, urf, istislah and darura while Siyasa justifies the diverse institutional framework of ruler’s mazalim courts, market regulations under hisba and crime control through police (shurta).

Note that the question about the compatibility between Sharia and the Modern State is not merely an academic question for the Islamic Republic of Pakistan. Rather, it poses existentialist threat to the security and integrity of the state. Despite being a product of geopolitics in the region, the Taliban movement relies upon the rhetoric of the implementation of Sharia in Pakistan by replacing the ‘infidel system’. The failure of the formal system in providing free and fair dispensation of justice provides further impetus to the demand of the Taliban.

In this context, Pakistani jurists have to provide answers to such questions as: what is the nature of Sharia/Fiqh as a system of governance? What type of political system is envisaged under Sharia/Fiqh? What is the role of coercion/violence under such system? Are Muslims duty bound to establish an Islamic State? What are the key features of an Islamic State? Can there be multiple Islamic States? How should such states coordinate with each other?

These questions need to be answered from within the framework of Sharia to satisfy the conscience of ordinary Muslims.  

Friday, 20 February 2015

Restitution of Conjugal Rights by Maha Ali

Marriage confers important rights and entails corresponding obligations both on the husband and the wife. Some of these rights are capable of being altered by the agreement freely entered into by the parties. But mainly, the obligations arising out of marriage are laid down by the law. An important obligation is consortium which not only means living together, but also implies a ‘union of fortunes’. A fundamental principle of matrimonial law is that one spouse is entitled to the society and comfort of the other. Thus, where wife without lawful cause, refuses to live with her husband, the husband is entitled to sue for the restitution of conjugal rights and similarly, the wife has the right to demand the fulfillment by the husband of his marital duties. The restitution of conjugal rights is often regarded as a matrimonial remedy, but at the same time, it has faced a lot of criticisms. In majority of the cases in the sub-continent, the question which arises is regarding its origin, its roots in religion and the it constitutionality.
When either the husband or the wife has, without reasonable excuse, withdrawn from the society of the other, the aggrieved party may apply, by petition to the district court, for restitution of conjugal rights and the court, on being satisfied of the truth of the statements made in such petition and that there is no legal ground why the application should not be granted, may decree restitution of conjugal rights accordingly. Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.
Marriage is considered more of a religious, than a social or legal contract, in most communities. For example, DF Mulla in his ‘Mohammedan Law’ explains that the object of marriage is procreation and legalization of children. Similarly, it is considered a ‘samskar’ or sacrament instead of a social-legal contract in the Hindu society. It was established in Gurdev Kaur v. Swaran Singh[1], that the action for restitution was borrowed from old Ecclesiastical courts in England, and was, in fact, originally not Hindu.[2] The concept of restitution of conjugal rights was transferred from the ecclesiastical courts to the Divorce Court by the Divorce Act of 1857. If one spouse left home, the other could ask the court for a writ for the restitution of conjugal rights. In a case where no excuse for their absence was presented, the court would order the spouse to return home. The penalty for non-compliance would be “attachment”, which meant that the guilty party would be imprisoned until they agreed to obey the court order.  Christian marriages treated the woman as part of the man. Canon law considered a man and his wife as one person, which meant that the case could only be dealt with by Ecclesiastical courts and not by civil courts. However, no such principle exists in Islamic or Hindu laws.[3] Under the ancient Hindu law, the most important duty of the wife was to honor and serve the husband, and it was the duty of the husband to provide residence and maintenance for his wife. The remedy of restitution was not mentioned in the Shastric texts. However, if one of them failed to perform their marital duties, the other spouse was entitled to enforce his or her rights in a court of law.[4] The English Ecclesiastical law of the restitution of conjugal rights was grafted into the existing Indian Penal Code in the nineteenth century with little modification, it subsequently became completely controlled and shaped by Indian interpretations of marital rights and obligations.[5]
The significant feature of the restitution of conjugal rights is that it is a remedy aimed at preserving the marriage and not dissolving it. However, as observed in R. v. Jackson[6], a woman named Mrs. Jackson was confined by her husband, and hence the award was impotent and not a useful one. Lord Herchell described it in his judgment as ‘barbarous’.[7] Earlier marriages were formed on the fundamental principle that the wife was considered a property of her husband, which is why she was required to live with him willingly or unwillingly, in the home provided by her husband. In the case that the woman refused to comply or left her husband, she could be compelled to live with him. M. A. Qureshi in his book, 'Marriage and Matrimonial Remedies' explains this phenomenon by comparing the women in those marriages with cattle which could be brought back to their masters in the case that they ran away.
With the Hindu Marriage Act of 1955, this idea of the wife being unconditionally tied to the husband was completely altered.  According to Section 9 of the Act, both parties can avail restitution of conjugal rights. In Baburao v. Sushila[8], the Madhya Pradesh High Court stated that only when the petitioner deserves it should the restitution be allowed. However, it cannot be granted if there is no hope for the parties to cohabit happily. It further states that, “in marital matters it is the attitude of the mind and the feelings that count, and no decree of the court can force the parties to live together.” [9]
Despite the fact that all of the religions in India made references to marital duties and cohabitation, lawyers and judges continually pointed out during this period that importing the concept of restitution of conjugal rights was entirely inappropriate as it did not formally constitute part of any of the major religions in India. The most common practice, in cases of severe disagreements between couples, was that the wife would flee to her natal family. [10] In the mid-nineteenth century, the Restitution of Conjugal Rights (Act XV of 1877, Schedule 11, Article 34) was available to the husband claiming the society of his wife. Formerly, women could seek help of the extended family in cases of violence against them by the husbands, but Section 259 of the Civil Procedure Code (1882) stated that the extended family could not interfere, particularly if the person ‘harboring’ her was a distant relative- such as an uncle instead of a parent. [11]
Arguments were presented for and against the doctrine of the restitution of conjugal rights during the legislative debates on the Special Marriage Act, 1954 and the Hindu Marriage Act, 1955. In Shakila Banu v. Gulam Mustafa[12], the High Court observed:
 “The concept of restitution of conjugal rights is a relic of ancient times when slavery or quasi-slavery was regarded as natural. This is particularly so after the Constitution of India came into force, which guarantees personal liberties and equality of status and opportunity to men and women alike and further confers powers on the State to make special provisions for their protection and safeguard.”  
 Later, in T.Sareetha v. T. Venkata Subbaiah[13] , the Andhra Pradesh High Court held the section 9 of the Hindu Marriage Act to be violative of the Constitution. The court indicated that ''the consequences of such a decree are firstly to transfer the choice to have marital intercourse to the state from the concerned individual and secondly to surrender the choice of the individual to allow or not to allow one's body to be used as "a vehicle for another human being's". Court also stated that the section assailed on the touchstone of “minimum rationality... it promotes no legitimate public purpose based on any conception of the general good and hence, is arbitrary and void.”
In Islamic law, according to A.A.A. Fyzee in ‘Outlines of Muslim Law’[14], the Holy Qur'an gives the husbands the right to retain their wives with kindness or part with them with an equal consideration. However, if the husband has not paid the dower money, he cannot ask for the restitution of conjugal rights under Islamic law. It is further discussed in the Hedaya[15] that until the wife receives her dower from the husband, she may refuse her husband to a carnal connection. Ameer Ali in the 'Mohammedan Law' has referred to the Hedaya again, which provides that the husband has no power to stop his wife from traveling or leaving his house to visit her friends until he has paid the whole amount of dower, because he does not have the right to “secure fulfillment before rendering fulfillment himself.” This rule was used in Eidan v. Mazhar Hossain [16] where the Allahabad High Court stated that the wife could refuse to cohabit with her husband until he had paid the dower, in a suit by the husband to enforce his conjugal rights. Other such reasons due to which the court can refuse to grant order of the restitution of conjugal rights may be cruelty of husband or in-laws towards the wife, failure of husband to perform marital obligations, and second marriage of the husband. The Qur'an commands the husbands to keep their wives with kindness, or to part with them with an equal consideration.[17] The husband can divorce a wife who is unwilling to live with him, or marry another woman, leaving his first wife in peace.[18]
Owing to the Muslim husband being dominant in matrimonial matters, the Court leans in favour of the wife generally, and requires strict proof of all allegations necessary for matrimonial relief. The obligation of the wife to live with her husband is not absolute. The law recognizes circumstances which justify her refusal to live with him. For instance, if he has deserted her for a long time, or if he has directed her to leave his house, he cannot ask the assistance of the Court to compel her to live with him.[19] Irregularity of marriage is also a valid defense to a suit for the restitution of conjugal rights, as it is necessary for a marriage to be valid according to Muslim law before the Courts can grant a decree of restitution of conjugal rights. [20] In another judgment, it was discussed that Islam does not force the spouses a life devoid of harmony and happiness and the parties cannot live together as they should, it permits a separation.[21]
As understood, the restitution of conjugal rights is a part of the personal laws of the individual, thus they are guided by ideals such as religion, tradition and custom. A very important feature of restitution of conjugal rights to be emphasized is that it is a remedy aimed at preserving the marriage, and not at disrupting it, as in the case of divorce or judicial separation. So the restitution of conjugal rights remedy tries in promoting reconciliation between the parties and maintenance of matrimonial. It tries to protect the society from denigrating. But the final decision is that of the parties whether to obey the decree of restitution of conjugal rights and to continue with the matrimony or not.

[1] Gurdev Kaur v. Swaran Singh, A.I.R. 1959, Punj. 164.
[2] M.A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 80
[3] M.L. Shanley, Feminism, Marriage and the Law in Victorian England, p. 177
[4] .A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 82
[5] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 289
[6] R. v. Jackson (1891) 1 Q. B. 671.
[7] A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 79
[8] Baburao v. Sushila A.I.R. 1960, M.P., 73
[9] As cited in A. Qureshi, Marriage and Matrimonial Remedies: A uniform civil code for India, p. 84
[10] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 287
[11] S. Sarkar & T. Sarkar, Women and Social Reform in Modern India, p. 288
[12] AIR 1971 Bom. 166, ILR 1971 Bom. 714
[13] AIR 1983 AP 356
[14] Pg. 116
[15] C. Hamilton, The Hedaya or Guide, pg. 54
[16] Eidan v. Mazhar Hossain 1877 I.L.L. All., 483
[17] Surah 65, verse 3
[18] (1934) 59 Bom. 426
[19] Ameer Ali, Mohammedan Law. 6th Ed. Pg. 383
[20] PLD 1959 Lah. 1014
[21] PLD 1959 Lah. 566