MUSHARRAF REFORM AND AFTER

In the period immediately following his 1999 coup, Musharraf had vaguely outlined a programme of reforms similar to those of the mod­ernising secularist General Ataturk in Turkey.

Those alterations of policy that aligned with the US agenda in their initial articulation included the promotion of secular education and a modernising reform of Madressah curricula, which were nonetheless mediated in their delivery by political bartering and an incomplete commitment to financing such a transition. The fragmentary support that Musharraf had been able to build for the managed democracy he instituted in 2002 included the predominant religious parties in the country, including the Jamaat-e-Islami and the Jama Ulema-e-Islam. Many political commentators pointed to the continuation of the ‘mullah-military’ alliance in Pakistani politics. Although ideologically coherent and aligned under Zia, the alliance was provisional and shaky under Musharraf, ensuring that major trade-offs would be made for Musharraf’s reforms to be realised in any form.

In the 2002 elections an umbrella coalition of Islamist parties under the banner of Mutahida Majlis-e-Amal (MMA) won a convincing vic­tory in the strategically important North West Frontier Province and secured sufficient seats nationwide to become the official opposition in the National Assembly. For many in Pakistan this signaled a slide towards ‘talibanisation’, even though the MMA was steadfastly silent on army actions being undertaken by the military against militant out­fits within FATA and KP.

A reference was posed to the Supreme Court by the President to exercise its advisory jurisdiction in making a determination about the constitutionality of the Hisba Bill. The Court found that the Bill offended a range of fundamental rights and delegated too much penal and quasi-judicial power in a manner not foreseen by the Constitution.^[599] It also found repugnancy against the ‘injunctions of Quran and Sunnah’ on at least two counts. The first was tethered to Article 227 of the Constitution, which provides that laws brought into conformity with Quran and Sunnah must, where they pertain to personal law, be in accord with the interpretations of Muslim sects. The establishment of offences related to religious comportment and observance not respectful of differences between sects were thus ultra vires the Islamic provisions of the Constitution.^[600] The second manner of finding repugnancy was in noting that ‘there is no provi­sion of the Sharia, which mandates for the imposition of penalties for vague offences’.^[601] They go on to state that the Sharia itself has defined ‘offences’ and accompanying punishments.

After the Hisba reference was heard, and more than 20 years after their initial promulgation, General Musharraf took on board the goal of setting right some of the rights violative practices of the Hudood laws.

Broadly framed as a means of allowing Muslim nations such as Pakistan to catch up with the western world in terms of scientific edu­cation and a broadly-defined rationalism, the programme also affirmed salient differences between Islamic and non-Islamic societies. The reformism thus needed the sanction and consent of religious scholars, who could provide authoritative judgement about the need to change these laws. The Council of Islamic Ideology was enlisted towards such an end and a renowned Quranic scholar who had previously held many distinguished posts in western European universities, Dr Khalid Masud, was appointed the chairman of the Council in 2004. In 2006 the Coun­cil filed its report about the need for the thoroughgoing amendment of these laws. A private member’s bill called the Women’s Protection Bill was introduced in Parliament. The combined opposition of the MMA threatened resignation if the laws were passed. In an act of appease­ment, and against the advice of the CII, the government appointed an Ulema Council to be responsible for making recommended alterations to the Bill to Parliament. Eventually what was passed was a revised Bill which provided procedural safeguards to women complainants of Zina-bil-Jabr but which reincorporated the offence of ‘fornication’ into the existing penal code.

What was telling as the backdrop for such alterations is that there were an array of organised debates staged for the media between Islamic groups and amongst them and members of ‘civil society’ in the lead-up to the passage of this Bill, aimed clearly at ameliorating any public dissent at the alteration of ‘divine laws’. That people’s inti­macy with the sources of Islamic law and with various juristic schools of thought was, seemingly, taken for granted was perceptible through such an engagement, affirming the truth of scholarly insights into the nature of Muslim public spheres and the religious pedagogical role that has increasingly, in a transnational way, imparted the modes of reason­ing and criticism that were once monopolised by the Ulema alone, to a broader literate public.^[603]

However, along with the creation of a Muslim public sphere, what has also come into greater relief in these many years is that a history of pronouncing takfir or unbelief by the Ulema has also permeated the social sphere. In combination with the official support lent to mili­tant networks through the 1980s and 1990s, an escalation of violence against religious minorities has been unabated and continues through to the present. The spike in violence between Shia and Sunni in the 1990s was the backdrop for the promulgation of anti-terror laws dis­cussed elsewhere in this book. This sectarian violence has taken on a different caste after 2001 where existing militant formations entered into alliance with Al-Qaeda and Taliban affiliated groups so that the targeting of Shia, Ahmadi and Christian sites of worship and gathering have occurred with alarming regularity. Additionally, practitioners of syncretic and indigenous forms of Islam, predicated often on a venera­tion of Sufi saints, have also frequently been targeted by such violence.

After Musharraf, Islamist political parties have seized opportunities to bargain for appointments to the CII in exchange for support to inse­cure governing coalitions.

Although several governments have lent rhetorical support to altering these laws, the only concrete step taken was a Bill tabled by a leading member of the People’s Party government in 2009. In the following year, before the Bill was debated, the Governor of Punjab, Salman Taseer was gunned down for having publically critiqued these laws. The author of the Bill, Sherry Rehman, was charged but not con­victed of blasphemy for seeking these alterations. This set of events merely capped a succession of incidents in which lawyers defending blasphemy accused, teachers and university professors engaging their students in historical learning about Islam and others have fallen victim to this law and its invocation.

A line of immanent critique from within Islamic jurisprudential parameters has lately been deployed to counter the idea that the blas­phemy laws in their current form are true to the guidance of Islam. Cited are authoritative sources that counsel against charging non­Muslims for blasphemy, that allow for pardon on the basis of sincere apology and which question the compulsory award of death as punish­ment. However, the circulation of such critique has been limited and confined mostly to arenas in which such reformism is welcome. On the other hand, a range of Islamist leaders and spokespersons have repeatedly taken out public processions and exerted pressure upon the government to refrain from acting to change these laws. The current impossibility of altering the anti-Ahmadiyya laws is even more extreme.

In this context, one can only hope that a few recent judgments issu­ing from the Supreme Court indicate some possibilities of incremental alteration to the operation of these laws.

For instance, in 2014 Chief Justice Tassaduq Hussain Gillani took suo moto notice of extreme acts of violence being perpetrated against non-Muslim and Muslim minorities in the country. Citing instances of church bombings, forcible conversions of Hindu women and the targeted violence against members of the Shia community, Gillani elaborated the constitutional safeguards for minorities. Contrary to past precedent, Chief Justice Gillani suggested that Article 20 provides a comprehensive right to freedom of religious conscience upon which the more particular rights to ‘practice, profess and propagate’ religion are hinged. Furthermore, Article 20 is only subject to the general restrictions of law, public order and morality’ and that these cannot be ‘reducible to the Islamic meanings of these terms’.^[604]

In this case, Chief Justice Gillani accepted that a strict demotion of religion to the realm of private life cannot be accomplished and that even in the most secular-seeming states, this divide is not absolute. Citing the at times inequitable distribution of social goods flowing from the assignment of Islam a special place in the life of the nation, the Court still counselled for state action on the need to stem religious intolerance and for specific measures to safeguard the full panoply of rights stemming from freedom of conscience for all citizens, including the right to propagate religious views. In many ways, this case marks a turning in the Supreme Court’s jurisprudence on religious matters. It could potentially serve as a strong precedent from which to start dis­mantling restrictive laws such as those upheld in Zaheeruddin.

The recent conviction of Mumtaz Qadri, the guard who killed Governor Salman Taseer, was upheld on appeal at the Supreme Court.^[605] Rejecting the defence of ‘grave and sudden provocation’, the court also affirmed Qadri’s death sentence. More importantly, Justice Khosa countered the assertion that an act of criticising the blasphemy law is itself blasphemous. By detailing the historical origins of the laws, the judgment indicates that the fallibility of human reason may be potentially conveyed in the form that they have taken.