ZIA AND ISLAMISATION

A confluence of factors sped up the pace of Islamisation undertaken by Zia-ul-Haq after his assumption of power in 1977. Integral to these efforts was Pakistan's opportune location as a bulwark against further Communist expansion following the Soviet invasion of Afghanistan.

Prior to an accounting of the specific mechanics of Islamisation under Zia, it is important to understand that in the merger of state and Islam a chief obstacle is encountered in naming or designating a body capable of articulating Islamic Law or Shariat. The accepted primary and central sources of Islamic law are the Quran and Sunnah. Amongst these two the Quran is the supreme authority but, as has often been noted, the divine book is not a legal manual as such. Rather, the exten­sion of sources to Sunnah incorporates the ‘normative example of the Prophet', his words and deeds in compilations of Hadith undertaken by the Prophet's contemporaries or near-contemporaries. Shariat, or Islamic Law is thus the product of the exertions of many generations of scholars and jurists working within the Islamic tradition to derive law from these sources. Historically, such exegetical exercises have led to the development of a plurality of legal schools of thought across the Muslim world.^[549] In the subcontinent, Hanafi jurisprudence was given official recognition from the time that codification became an established practice under the Mughal ruler Aurangzeb.

As Martin Lau notes, two types of Islamisation might be entailed when altering a legal system or structure: ‘One is full and systemic, so that a complete replacement of an existing apparatus is undertaken’.^[550] For that no examples can be cited. In the case of Pakistan, policies to Islamise a legal system are based on the introduction of ‘institutional and legal mechanisms which allow for a gradual and controlled intro­duction of Islamic law.’^[551] [552] The mechanisms that Zia chose were the creation of a parallel judicial structure, the incorporation of the Objec­tives Resolution as a substantive part of the constitutional structure in 1985 and a range of Islamic laws beginning in 1978. These were in addition to the ways in which an Islamic political sphere was sought to be created through mechanics detailed earlier.¹¹

A. Shariat Courts

The Shariat Court and the Shariat Appellate Bench of the Supreme Court were amongst the innovations introduced by Zia as part of the Nizam E Mustapha [Movement for the establishment of Mustafa’s (Muhammad) law], oriented to the creation of what he termed a ‘truly Islamic’ society in Pakistan. This parallel judicial structure was amended several times. In fact, although the Federal Shariat Court (FSC) was introduced by insertion of Article 203B, it took 12 different presiden­tial orders to finally settle issues of jurisdiction and composition. It is important to note that the Islamic court system was established in tandem with the promulgation of the Hudood Ordinances, and they were the court of appeal from district courts in cases involving the offences that they created.

In 1978 Zia directed that Shariat benches be established at all the High Courts of the provinces to ‘hear Shariat petititons' and appeals on newly introduced Islamic penal provisions. These were then replaced by the single Federal Shariat Court in 1980. Although subject to some alteration, the general ambit of the FSC's functioning comprised the following: original jurisdiction ‘to examine and decide the question, whether or not any law is repugnant to the injunctions of Islam';^[553] revi- sional jurisdiction ‘to call for and examine the powers of any criminal courts that are related to the enforcement of Hudood punishments'.^[554] Finally, it has revisional jurisdiction to revise its own findings on the issue of repugnancy. For those who accepted some incorporation of Islamic laws into the corpus of Pakistani laws, the court's composition struck an acceptable compromise: it was to be composed of three members of the Ulema and five members of the superior judiciary. Appeals from the FSC would be heard at the Shariat Appeals Bench of the Supreme Court where again, judges and members of the Ulema would be appointed for each case. In addition, Article 203C particularly indemnified ‘the Constitution' as well as other subject areas from the Court's jurisdiction. In spite of such immunisations, for those fearful of whole scale Islamisation, the nature of the Shariat court's powers of judicial review was so significant that it was thought to have ‘no parallel in judicial history'.^[555]

The conduct of Zia's Islamisation programme entailed that fidelity to the practices of Islamic deliberation and a thorough perusal of sources gave way to the promotion of determinate ends as necessarily comporting with Islamic truth. Issues of derivation and lineage, how­ever, were central to the Federal Shariat Court itself in the first case it adjudicated. In Ha^oor Baksh, the court undertook a particularly rigor­ous examination, through a close reading of Islamic sources, of the prescribed punishment of stoning to death for adultery contained in the Hudood Ordinances.

This verdict caused extreme furor amongst Islamists and embar­rassment for General Zia, who disbanded this FSC. A reconstituted bench upheld the legitimacy of Rajm (stoning to death) and against the methodological propositions advanced in the earlier case, countered that Hadith and Sunnah can be held to be of equal guidance in the promulgation and enforcement of laws.^[557] The FSC has been steadfast in demanding death as the only punishment for other offences, includ­ing of blasphemy, described further below.

The further record of the FSC can be measured in the alterations wrought throughout the judicial system. One chronicler of this history measures the increasing incorporation of Islamic sources even within the jurisprudence that is generated in the secular court system. Much of this follows upon an activist FSC’s attempt to garner more and more legitimacy for itself as it competitively expanded its powers of review progressively over the decades following its formation.^[558] What aided this in part was the incorporation of the Objectives Resolution as Article 2A of the Constitution. As part of the Revival of the Constitu­tion of 1973 Order of 1985 (RCO), it was lifted from being merely a preambular statement to becoming a justiciable part of the constitu­tional text.

B. Objectives Resolution

In the field of constitutional interpretation the status of the Objec­tives Resolution had been deliberated well before 1985.

In Jilani a substantive content was imparted to the Grundnorm by identification of the Objectives Resolution as the highest norm in the land. Pure positivism was determined to be unsuitable for a state founded in the name of religion. It was further implied that members of this state and its society would enjoin themselves into the state only on the basis of positive adherence to the content of ‘living a life in accordance with the Quran and Sunnah’.

Bolstered by the Asma Jilani case, courts sought jurisdiction in domains where they may otherwise have exercised caution. In judging certain legal enactments of the Yahya regime, the Lahore High Court in the Zia-ur-Rehman case went so far as to describe the Objectives Resolution as a supra-constitutional instrument. Justice Zullah made the observation that not only ‘our founding fathers but also the people at different times of our short history have assented’ to it.^[562] He seemed to be unaware of, or ready to efface, the actual wrangle of its initial pas­sage in the first Constituent Assembly in which all East Pakistanis and minority members of the Assembly had voted against it. At appeal in the Supreme Court, Justice Hamoodur Rehman narrowed the possible uses of the Objectives Resolution: ‘even though it is a document which has been generally accepted and has never been repealed or renounced, [it] will not have the same status of authority as the Constitution itself until it is incorporated within it or made part of it’.^[563]

When, through the RCO of 1985, Article 2A was added to the constitutional text, it was not unexpected for petitioners to push for a revision of laws, and in some cases of constitutional provi­sions, on the basis of what was being propounded as being a para­mountcy clause.

Importantly, the Sindh High Court made the determination in the Bank of Oman case^[566] that the incorporation of Article 2A was of far reaching impact and that ‘Any provision of the Constitution or law, found repugnant to them, may be declared by superior Court, as void’. It found the only limitation on the court’s review powers was respect for the ‘special and separate jurisdiction of the Federal Shariat Court’. In a slightly later case, again from the Sindh High Court, the Objectives Resolution in its incorporated form was held, by virtue of being a later amendment, to have paramountcy against the rest of the Constitution, so that articles that predate it must be ‘harmonised’ with it. Thus, Article 8(3), which accorded special status to a range of laws by indemnifying them against judicial review on the grounds of fundamental rights, was read down to enable such a harmonisation of the MFLO, one of the laws offered protection by its inclusion in the First Schedule to the Constitution. Impliedly the court held that all laws were subject to review on the grounds of their conformity to ‘the injunctions of Islam’.

In 1992, the Supreme Court addressed the invocations of the Objec­tives Resolution as Grundnorm and higher law as an ‘old controversy’ that has been revived by its incorporation in a ‘much more pointed and vigorous form’ into the main text of the Constitution.^[567] Addressing judgments from the High Courts in which the Resolution had been vested with ‘control of the Constitution’, it resolutely held that this was an erroneous interpretation. Recounting a much more accurate and fractious view of the Resolution’s initial passage, the Resolution was presented as having been at the outset no more than a mere declara­tion of intent by the framers of the Constitution about the nature of the Constitution to come. Referring to the language of the Resolution as ‘vague, subtle and flexible’, such as in proscribing the making of laws that transgress ‘the limits set by Allah’, Justice Nasim Hasan Shah, as author of the majority decision, declared that it is for the people’s ‘chosen representatives’ to frame laws that are in consonance with such principles. Thus, in strict legal terms, this case marked a drawing of bounds against the expansion of judicial review powers on the basis of seeking repugnancy of existing laws against the ‘Quran and Sunnah’ in the regular courts. Courts were thereafter not to seek to review consti­tutional provisions nor ordinary laws to accord with the principles of the Objectives Resolution.

This was not an injunction that carried weight with the FSC. The record of the FSC’s invalidation of statutes has grown to be quite high: 55 federal and 212 provincial laws have been invalidated by the FSC over a period of 30 years.^[568] In some important areas, such as in defin­ing the qisas and diyatprovisions of the criminal law, these invalidations have led to legislative action. In other cases, such as in the invalidation of land reform statutes passed by the legislative Assembly during the Bhutto years, the impact has been indirect. Unable to undo the redistri­butions undertaken on the basis of these legislative acts, the principle of inviolable protection for private property rights in Islam, as outlined in the Qayalbash Waqf^[569] case, has nonetheless marked a clear red line for policy makers. Another notable feature of this case was a narrow­ing of the conditions in which a public good argument can trump

Islamically-sanctioned rights, such as the property rights elaborated by the Shariat Bench of the Supreme Court in Qazalbash Waqf.

C. Islamic Laws

The range of Islamic laws brought into being by Zia included the creation of new criminal laws as well as alterations to procedural laws. Two areas of law that have had disproportionate impact on women and minorities in the state are the Hudood Ordinances and an array of amendments to the Pakistan Penal Code (PPC) under the heading of Offences Related to Religion. The content of these laws has been sub­ject to contestation not only on the grounds of societal impact but also in terms of the correctness of their derivation. Whether the Islamic credentials of these laws are of direct derivation or of broad inspira­tion, Ulema and Islamist political parties have rallied to keep these laws unaltered and on the books.

i. Hudood Laws and Women

The Hudood Ordinances introduced Islamic criminal provisions and punishments for sexual offenses, theft, highway robbery, and consump­tion of alcohol in 1979.^[570] Such laws were meant to reflect an ostensible consensus that there are some negative prohibitions which are accom­panied by Quranically-sanctioned punishments. These punishments include stoning to death, amputation of limbs and public flogging.

Of the four Hudood Ordinances, those dealing with Zina, illicit sexual relations, have been the most controversial. Punishment is prescribed for both consensual and non-consensual sexual relations between men and women outside of marriage and can include flogging or stoning to death dependent upon the marital status of the accused. Zina-bil-jabr (zina with force) replaced the existing penal code offence of rape. The act of having sex ‘against the will of the victim’ or with fraudulently elicited consent is punishable with death. In both cases, the maximum punishment can only be awarded if the eye-witness testi­mony of four adult male witnesses of upstanding character is available or if a confession is made by the accused.

Where lesser evidence than is Quranically prescribed is available, a realm of discretion opens up for lawmakers. This realm of discretion enables the construction of lesser offences and punishments, collec­tively referred to as tazir. In this discretionary sphere, lawmakers are to be guided by the Hadith and the compendium of Islamic legal scholar­ship for defining offences, punishment and standards of evidence.

In terms of actually prosecuted cases the overwhelming majority of Zina and zina-bil-jabr cases have been tried on the basis of testimony, forensic and circumstantial evidence. In other words, the absence of four male witnesses has not implied that cases of zina or zina-bil-jabr cannot be prosecuted. However, if that addresses one popular mis­conception about the law concerning sexual offences in Pakistan, the reasons for its notoriety are far greater and are reflected in a history of grave injustice being perpetrated against the women of Pakistan on the basis of the Zina Ordinance’s specific workings.

Women’s organisations were established soon after the passage of the Hudood laws, including the Women’s Action Forum in 1982, to counter what was felt to be an assault upon the rights of all Pakistani women in the name of Islam. A year later a major protest rally follow­ing upon the adoption of the Qanoon E Shahadat (Law of Evidence) was met by a heavy-handed police response. Zia and his cronies chose to characterise the women who opposed these measures as enemies of Islam rather than simply as proponents of a brand of secularism that established a line between religion and state.

Right from the moment of implementation, anxieties about the Zina Ordinance proved to be well founded. Most tragically, it lent itself to the criminalisation of women complainants of zina-bil-jabr by enabling the conversion of a rape complaint into the criminal charge of such a victim for the act of zina³ The prerogative of defining the criminal provision that would be attached to the offence was exercised by the police officer handling the complaint. What often happened was that the police would charge the women with zina even as the male accused was being charged with zina-bil-jabr. A vast number of women were

³⁰ ibid. thus taken into custody stemming from their complaints of rape to await trial for this non-bailable offence.^[571] [572]

The second stage at which women could be criminalised following a complaint of rape was within the courtroom. In addition to specify­ing that the value of a woman’s testimony in property matters would be counted as half of a man’s, the 1984 Qanoon-E-Shahadat also had an impact on the conduct of criminal trials. Article 17 provided that women’s testimony in reference to Hudood or special law cases was to be determined ‘according to law’ and this provided an opening for courts to negate the value of women’s testimony altogether given that the stipulated standard of evidence for hadd punishments was the testi­mony of male witnesses. In other words, the distinction between hadd and tazir was effaced in reference to the evidentiary standard. In addi­tion, the Qanoon-E-Shahadat provided under Article 151(4) ‘when a man is prosecuted for rape or an attempt to ravish, it may be shown that the prosecutrix was of generally immoral character’. The possibility of impeaching women’s character on the grounds of immorality was both a deterrent to the filing of rape complaints as well as a means by which courts could more readily convert rape allegations into zina charges.

Two most notorious cases reflecting the extreme vulnerability of women under the law were tried in the first five years after the Zina Ordinance became law. Both these cases involved young women who had been impregnated by their alleged assailants. In Jehan Mina, a young woman charged that her uncle and cousin had raped her but neither was convicted of the crime. On the other hand, her ‘unexplained pregnancy’ was held to be sufficient proof that she, an unwed woman, had engaged in an act of Zina?"² The second case involved an 18-year- old near-blind woman who, for failure to identify her assailants given her ocular infirmity, was convicted of zjna owing to her pregnancy at the trial court level. Her punishment was to be corporal punishment, 30 lashes and a fine. This case garnered great public protest and the Federal Shariat Court took suo moto notice and reversed the conviction.

In Safia Bibi, the FSC was able to narrow the openings by which women had been convicted of zfna?³’ Although the court did not indict the actual mechanics of converting an allegation of rape into a charge of zina, they did establish that the burden of proving consent lay squarely on the shoulders of the prosecution whenever a woman was charged with zfna. An inability to prove rape did not automati­cally imply satisfaction of the burden to prove commission of zfna?^ They provided an elaboration of Islamic jurisprudence to illustrate that circumstantial evidence, including ‘unexplained pregnancy’, was not itself sufficient to uphold any inference of consent on the part of a woman. When, in 2006 the Women’s Protection Act sought to reform the Hudood laws, the conversion of a rape allegation into a charge of zfna was fully closed off.

It is important to understand that the charge of zfna was and con­tinues to be framed against women in a range of additional circum­stances. Often women’s exercise of free choice in decisions pertaining to marriage is the ‘provocation’ for the filing of such charges. The consequence of cohabitation without the sanctification of marriage is, of course, the possible application of the charge of zfna upon such an accused. In such circumstances, the courts were enjoined repeatedly in the 1990s in the enterprise of defining valid marriage.

The outstanding question of whether or not a Muslim woman is entitled to contract a marriage without the consent of her wali (guard­ian), even past the age of majority, was fully settled through the Saima Waheed case³ The Lahore High Court, whilst sounding a note of cau­tion about women flouting social mores, did nonetheless find positive precedent for declaring that there is no Islamic injunction to necessitate the consent of the woman’s wali at the time of marriage.

Subsequently, courts invoked Article 9 of the Constitution, which guarantees life and liberty in accordance with law, alongside Article 35, a Principle of Policy for the ‘protection of family’, to enable women to freely enter and exit the contract of marriage. Following Shehla Zia, in which the right to life was read as incorporative of capacities beyond ‘mere vegetative life’, the right was rendered more capacious for being ^{[573] [574] [575] in protection of a ‘validly married couple’s’ freedom from official and familial harassment.[576]}

Another parallel set of cases involved courts looking into the extent to which state involvement is mandated in the enquiry into the valid­ity of the marriage or its dissolution. Rendered often in response to Article 199 petitions seeking to quash criminal proceedings stem­ming from biased policing, some of these landmark cases have made recourse to the language of international human rights instruments. Pakistan’s status as a signatory to the Convention on the Elimination of all Forms of Discrimination against Women was used to counter the assertion that Islamic social order or personal laws run contrary to ‘universal mores’. Thus, vestiges of feudal relations or cultural predis­positions are indicted for running contrary to what Islam and human rights can conjointly deliver to Pakistan’s women.^[577]

However, in spite of these cases, which restore women’s capacity to make marital decisions, the overlapping regimes of Islamic and other laws provide significant openings for violence to be doled out, particu­larly to female transgressors of what is, in geographic pockets at least, a prevailing social order. The much-publicised occurrence of honour killings arises often in cases such as have been described above with the family, ex-husband or some other party seeking to mete out vigilante justice to a female transgressor by putting her to death.^[578] This is often accompanied by some customary legitimation of this punishment and a prior hearing in a forum such as a jirga or panchayat, which have no status in the Pakistani legal system per se.

If these cases make it to court, there is ample opportunity for judges to exercise leniency in the conviction and punishment of offenders. The existence of Qisas and Diyat laws, as well as the mitigation of offences on the basis of a grave and sudden provocation defence both provide legal grounds for offenders to escape maximal punishment for the murder of women, and less often men, in crimes of honour.

The Qisas and Diyat laws prescribe ‘an eye for an eye’ type punish­ments or enable the exchange of ‘blood money’ for the voiding of pun­ishment in offences of murder and bodily hurt. These laws emerged as consequence of a highly-charged FSC directing the government to correct inherited penal provisions to bring them in line with Islamic injunctions. In Federation of Pakistan v Gul Hassan Khan 1989, existing provisions of the Pakistan Penal Code and the Code of Criminal Procedure Act were found ‘repugnant to Islam’. The consequence was an alteration of the criminal law to create categories of murder and bodily harm in reference to degrees of intention and culpability that accorded with principles of Islamic law. Additionally, these offences were mostly considered compoundable, so that the heirs of a victim exercised the right to demand retributive death (Qisas) or could choose to waive the crime in favour of monetary compensation (Diyat).

This constellation of laws has lent itself to being used in perpetuat­ing honour crimes without penal consequence to the perpetrators. A typical scenario is that it is a member of the woman’s family who has perpetrated the crime, usually with the collusion of other members of the family. Amongst these family members are the ‘heirs’ of the deceased and they can secure the perpetrator’s release from the punish­ment that accord with a conviction, without the state even intervening to ensure that compensation is paid. Although courts retain the discre­tion in some of these murder offences to sentence the perpetrator in spite of the heir’s pardon, it has only rarely been the case that the state exercises this right.^[579] This absence of oversight by the courts is even more surprising given that the 2004 Criminal Law Amendment Act altered the relevant law to state that in cases where an act is ‘committed in the name or on the pretext of honour’ imprisonment for not less than ten years shall be mandatory.^[580]

Important for understanding the conduct of cases arising in refer­ence to Islamic provisions of law is that judicial determinations flow from a merger of common law and Islamic legal reasoning. The common law defence of grave and sudden provocation has been and continues to be available for the accused, particularly in cases where a female kin has upset the sensibilities of her male relations. Judicial acquiescence in its use suggests that the protection that is accorded to women in choice of marriage may more accurately be characterised as protection for the institution of marriage rather than of women’s choice. When the liberty or life of a male accused is at stake, ample instances can be cited where the apprehension of a woman’s infidelity or a family’s loss of certainty about the chastity of female relations is given weight as a precipitating factor for the taking of life.^[581]

What is interesting about the Hudood Ordinances or other Islamic laws is that there is no specific immunity accorded to them against review on the basis of fundamental rights. In other words, there is a positive possibility of voidability granted by Article 8 of the Constitu­tion, which reads ‘any law, any custom or usage having the force of law, insofar as it is inconsistent with the rights conferred by this chapter, shall to the extent of such inconsistency, be void’. These laws are not formally exempted from rights review.^[582] Given that such openings were available, why then were the Hudood laws maintained on the books in spite of their being explicitly and thus egregiously in violation of cer­tain rights, such as freedom of religion and against gender and other forms of discrimination?

One can only surmise at an answer. One such necessarily partial answer has to acknowledge the divided jurisdiction that the parallel judicial system established. The FSC system ensured that ‘questions of law’ pertaining to the application of Hudood laws would travel upwards to this court and from it to the Shariat Appellate Bench of the Supreme Court. While the intention at the outset was met for some time, and the secular court system exercised little oversight over the administration of an Islamic law regime, the secular court system itself wrested back some of its powers of review through a variety of mechanisms. Writs were entertained where they challenged the ‘Hudood laws on procedural grounds’, such as the improper refusal of bail or alleged that ‘a police investigation had been conducted inadequately’. However, this claim over jurisdiction enjoined the courts to temper their findings through invocations themselves of Islamic law and principle.

As the hardship of women under the Hudood laws came to be more closely documented, even quasi-governmental organisations such as the National Commission on the Status of Women made recommenda­tions for their repeal. Also, the challenge of speaking in the language of Islamic law and jurisprudence was also taken up by women’s rights organisations, so that alternate interpretations of the verses from which the Hudood laws were derived were offered as counter to the interpre­tation that informed the form of these laws. For instance, it was argued that the evidentiary standard for proving zina was established so as to safeguard women’s reputations and had nothing at all to do with the offence of rape; rape itself was thereby reclassified as amongst the crimes that cause social disorder and are liable to be punished more harshly in accord with such a classification.

ii. Islamic Law and Minorities

While much of the non-Muslim population left immediately in the months around Partition, a continued trickle thereafter would reduce this population to less than 5 per cent of the overall population before a decade had elapsed from Pakistan’s founding. The figure is currently estimated to be a mere 3 per cent. These non-Muslim minorities include Christians, Hindus, Parsis, Ahmadis and others. Adherents of the main sects of Islam, Shia and Sunni, are estimated to constitute 25 per cent and 75 per cent respectively.^[583]

Although the minimalist incorporation of Islam into the constitu­tional structure prior to Zia has been recounted in the early chapters of this book, it is important to note that the Ulema had remained engaged in issues of public importance throughout the years after Partition. With Zia’s drive to Islamicise, the Ulema were offered the possibility of increasing their relevance where previously they had been excluded from the corridors of power. Zia’s reign also marked a turning for Islamist parties such as the Jamaat; whereas previously Maudoodi had steadfastly opposed military rule, he was successfully enticed into pro­viding support for Zia.

Additionally and importantly, the movement, Tahafaz-e-Khatam-e- Nabuwat [Protection of the Finality of the Prophet] had episodically brought members of the Sunni Ulema into organisational coherence; under Zia its prominent members were directly patronised by the state. For the Khatam-E-Nabuwwat, the reinforcement of the Prophet’s status as God’s final dispenser of religious truth established a central pillar of Muslim faith. The Ahmadi community has been its most consistent target for demonstrating unbelief. Additionally though, the theological exertions it has undertaken have defined the conditions of apostasy, a charge historically made against the Shia by a line of Sunni theolo­gians. Members of the movement have been central to expanding the laws of blasphemy in the country, and in propagating the view that death is the only allowable punishment for the crimes of blasphemy and apostasy.

Alterations to the law of blasphemy to protect the Prophet’s com­panions from defamation were at least partially framed with the inten­tion of prosecuting Shia clerics accused of vilifying these personages. A primary theological schism between Sunni and Shia turns on the relative value each assigns to the place of the Prophet’s son-in-law, Ali Ibn Talib. For Sunnis he is one of the four rightly-guided Caliphs who ruled early Islamic society after the Prophet’s death. The Shia believe him to be the divinely-ordained successor to the Prophet, who was denied a timely succession. The reverential status they accord him is contrary to Sunni orthodoxy. In the hearings around the Ahmadi ques­tion in 1974 a prominent Shia cleric explained the status accorded to Ali as one of Wallaiyat [Guardianship of the Faith] and thereby provided categorical denial of any equivalence of status between Ali and the Prophet.^[584] Nonetheless, for those members of the Ulema who have sought to accuse the Shia of non-belief and apostasy, this certainly did not settle the matter.

For many Shia, Zia’s Islamisation was from the start an attempt at Sunnification of the state and polity. The project of containing the Iranian revolution and its ideological enterprise was one that drew Pakistan closer to traditional Sunni powers, including Saudi Arabia. The Saudis pumped money directly into the country to support Sunni seminaries and madressahs. Nonetheless, the Iranian revolution had bolstered the resources of the Shia community to the extent that a much more militant posture was undertaken to ensure their exemption from the application of certain Islamisation laws such as through the Zakat and Ushr Ordinance of 1980.^[585] Against Zia’s initial insistence that the Sunni Hanafi Fiqh would guide all official policy, the Shiite com­munity displayed its capacities for resistance and the regime relented in allowing them to be guided by their own Fiqh (jurisprudential school) in these matters.^[586]

Jamal Malick^[587] points out the particular contradiction of the Zia era whereby, in attempting to marginalise secularist voices within the Council of Islamic Ideology, he appointed a larger number of Ulema from amongst the diverse schools of fiqh as well as representing some broader cleavages within the major Sunni schools. A period of inter­nal fracturing and a spate of public resignations in reaction to the preponderant orientation in policy initiatives towards a Wahabi Sunni ideology ensued. Zia, whose impatience for legal reform waited for neither nuanced reasoning nor consensus-based deliberation, managed the Council with increasing condescension. It is extensively reported that a Wahabi cleric from Saudi Arabia unofficially headed the CII in the days that it was preparing a draft Hudood Bill. An advocate who heads up the Khatam-e-Nabuwat wing in organised Bar politics was both instrumental to pushing through the anti-Ahmadi laws and in drafting the blasphemy laws.

iii. Ahmadis and the Law

Following upon the Second Amendment to the Constitution in 1974 the same parties that had agitated for a declaration of Ahmadis as non-Muslims sought further legal aid in curtailing the activities that Ahmadis could engage in. To this end, they sought and were granted judicial injunctions against Ahmadis who referred to their places of worship as Masjids and their call to prayer as Azaan. Such intervention was sought on the basis that Ahmadis, as infidels, had no legitimate claim on these sacred rites and symbols of Islam. In 1978 the matter was adjudicated upon at the Lahore High Court against the guarantee of fundamental rights.^[588] Article 20, which provides ‘every citizen shall have the right to profess, practice and propagate his religion’ and also that religious communities have the right ‘to establish maintain and man­age its religious institutions’ is the constitutional guarantee of freedom of religion.

In Abdur Rehman Mubashir,^[589] the lower court’s grant of injunction is firstly decried for offering a civil remedy that accords only with the protection of property rights. Further, Justice A Hussain found no reason to label these acts by Ahmadis as constitutive of a public nuisance even if ‘Muslims may not like the Ahmadis to call their place of worship by the name which Muslims’ places of worship’ are called or ‘feel flurried by seeing them offering their prayers in imitation of the Muslims’. Lastly, even in a perusal of what could be established as Muslim common law, there was no principle that the two-member bench in this case could find as ‘proof of the proposition’ that non­Muslims cannot construct their places of worship ‘in any manner resembling mosque or call it by the name of Masjid or say Azan in it or perform his prayer in it in the same manner as is ordained for the Muslims’. Accepting, however, that the Article 20 right could be reduced by laws aimed at the maintenance of public order and morality, the judges cited the absence of any such law under which they could offer the remedies being sought.

It was precisely such a law that was subsequently passed by Zia-ul-Haq and the Majlis-e-shoora. The Anti-Islamic Activities of Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, XX of 1984 created two wholly new offences within the PPC. These provided that Ahmadis could not misuse the epithets, descriptions and titles, etc, reserved for certain holy person­ages nor misrepresent themselves as Muslims or propagate their reli­gion. The first, section 298B, was directed at the kinds of acts that were sought to be controlled in Mubashir. the calling of places of worship as Masjids and the call to prayer Azaan. Section 298C further barred any Ahmadi from posing as a Muslim, calling their faith Islam or propagat­ing their faith. This prohibition is complete and includes words’ ‘either spoken or written’ and visual representations. Additionally, any act that ‘in any manner whatsoever outrages the religious feelings of Muslims’ shall be punished. Both provisions provide for imprisonment for up to three years and a fine.

Such criminal prohibitions empowered district administration in the management and policing of the Ahmadi community throughout the country. The most aggressive forms of such policing tended to be in Punjab. When the Ahmadiyya community sought to celebrate its cen­tenary of founding in the city of Rabwah in the district of Jhang in 1989, the local district administrator placed a ban on such celebrations. The Lahore High Court deemed itself unable, even on the basis of extraordinary constitutional jurisdiction, to interfere with the law and order concerns of the district administration.^[590] The planned public celebration, which included banners proclaiming ‘100 years of truth’ indicated to the court that this was not an event oriented to professing and practicing the religion but was rather oriented to ‘propagation of the religion’ and would thereby outrage the feelings of Muslims.

The severance of propagation from the trio of rights that Article 20(1) guarantees was seemingly justified by the prohibition in section 298B of the PPC. A discussion of the allowable limitations on rights was deferred to the Supreme Court, where the case that would result in the Zaheerudin judgment was pending at the time. In Zaheeruddin v The State,^[591] in addition to a challenge posed to another prohibitive order on centenary celebrations, the conviction of an Ahmadi person wearing a badge printed with the Kalima Tayyaba [purity] had also risen to appeal.

As discussed in Chapter 7, the limitation clauses attached to fun­damental rights provisions in the 1973 Constitution have generated significant principles for courts to engage with when undertaking rights review. Justice Shafiur Rehman, as the lone dissenting voice, relied upon the limited meaning attached to the expression ‘subject to law’ from previous precedent to deem that several of the particular prohi­bitions in section 298C were contrary to the protections of Article 20 and thereby unconstitutional. Additionally, the vagueness of the term ‘posing as a Muslim’ rendered it meaningless and for this reason the wearing of a badge emblazoned with the Kalima did not constitute such a crime. The majority opinion, in contrast, omitted a discussion of domestic precedent and reconciled the vast restrictions imposed on the Ahmadiyya community with principles from other jurisdictions enabling restrictions on religious expression. Perhaps the most perplex­ing exercise undertaken by Qadeer Chaudhry et al is to analogise the symbols and epithets of Muslim practice with intellectual property. It is an interpretation that strains credulity insofar as the Muslim Ummah is neither a corporate entity nor one that has traditionally spoken in a uni­tary voice. Nonetheless, exclusive use is assigned to it and any attempt to use these terms presumed to injure the feelings of community mem­bers. The court perused the whole history of the Ahmadia movement, characterising its origins in the period of colonial rule as a ‘serious and organized attack on its [Islam’s] ideological frontiers’.

Another stark difference between the dissent and majority judgment turned on the expanse of revisional powers thought to be unleashed by Article 2A. Shafiur Rehman followed Hakim Khan and determined that the Objectives Resolution does not provide a means of whittling down rights. The majority elided any discussion of precedent to find that Article 2A and thereby Islamic law and principles can provide the requisite measure of ‘positive law’ by which fundamental rights may be limited. Tellingly though, no particular Islamic or Shariat principles were elaborated as illustration.

This case established a solid precedent that the restrictions on Ahmadi practice were reasonable.^[592] As with other minorities in Pakistan, it is not only through the formal system of justice that they have been subjected to situations of peril and precarity. Following the passage of Ordinance XX in 1982, the fourth Caliph or successor of Mirza Ghulam Ahmad moved to London and with him the adminis­trative and spiritual base of the community was refounded there; the community in Pakistan has become a regular target of hate crimes and speech.

III.