The debate inside Pakistan regarding the role of religion in the constitutional and legal framework of the state has been based, for the most part, on a broadly shared acceptance that Islam has made definite prescriptions about the conduct of the affairs of the state. While interventions in this debate from a secular standpoint have been vocal, and at times significant in terms of impact¹, the secular-intellectual discourse has flown at a tangent to the mainstream. The argument within the framework of 'acceptable controversy'² has been between Islamists with a conservative or orthodox hue and those who claim³, in the name of ijtehad, that implementation of Islamic law must be based on modern re-interpretation of the traditional sources..⁴

The Islamist standpoint, in common with most modernists, is based on the thesis that Islam as a religion requires of its adherents the implementation of Islamic law or the shariah through the authority of the state. Within this broad school are those who find in the Quran a direction to the believers to strive for the attainment of political authority as a matter of religious compulsion so as to able to enforce the shariah. The clearest articulation of this interpretation was made by Maulana Abul Ala Maudoodi in the 1930s.⁵ Since then, this view has gained widespread acceptance within the Pakistani religio-political discourse and has been espoused by modernists such as Fazlur Rehman⁶, Dr. Javed Iqbal⁷ and Ghulam Ahmed Parvez⁸, the last-named otherwise seen as the arch-nemesis to Maudoodi's rigid support for the classical forms of punishments in Islamic law, putting women in purdah, limited political participation for the religious minorities and his opposition to acquisition by the state of land for the purposes of redistribution.

It is perhaps not surprising that the vision of Islam as a movement in constant struggle for political actualisation of the ideal shariah has come to occupy a prestigious place in the set of ideas sponsored by the state, largely since the Zia years (1977-88) as the Ideology of Pakistan.⁹ In the reading of history made by text books prescribed by the various government textbook boards, the creation of the state of Pakistan is seen as the realisation by the Muslims of India of the divine command to attain political authority.¹⁰ Providence itself is seen to have aided in this realisation. The writings of those such as Waheed-ud-Din Khan, originally a leader of Maudoodi's Jamaat-e-Islami who stayed back in India after partition and later challenged the view that Islam imposes on the believers an obligation to struggle for political authority in the form of an Islamic state as part of the universal khilafah, have remained suppressed in the Pakistani political discourse of the last fifty six years.

In publicly disagreeing with Maudoodi, Waheed-ud-Din Khan reiterated the classical understanding of Islam's primary objective as a religion: Moral reform of the individual in accordance with divine guidance.¹¹ This understanding was consistent with the established Muslim tradition of treating political authority as a historical contingency rather than a religious goal. It must, however, be appreciated that even though Waheed-ud-Din Khan and others, before as well as after him,¹² have rejected the thesis that Islam craves the assumption of political authority, even this group of thinkers maintains that in the event of a Muslim population finding itself in political authority over a defined territory, such assumption of authority being a purely temporal occurrence, the imposition of the shariah becomes obligatory. While this group denies that Muslim separatism in India was as a matter of religious obligation, the view that the legal framework of the Muslim majority state created in 1947 has to be based on the shariah is accepted.

The consequence of the absence of support for the secular standpoint within the various shades of opinion that make up the Islamic discourse is that secular political ideals have to be based on a synthesis of modern human rights norms, cultural motifs of universal love and disgust with the parochial biases of the mullah and the pundit found in sufi poetry along with the now iconic speech made by the Quaid-e-Azam Mohammad Ali Jinnah on 11 August, 1947 to the first Constituent Assembly of the soon-to-be-born state of Pakistan. Mr. Jinnah had said:

‘You are free; free to go to your temples, you are free to go to your mosques or to any other places of worship in this state of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the state. … We are starting in the days when there is no discrimination, no distinction between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one state. …. Now I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State.”

Subjected to official plunder and distortion ¹³ this speech, handed down in officially approved texts, such as Hector Bolitho's biography of the Quaid, came to read:

'You are free; free to go to your temples, you are free to go to your mosques or to any other places of worship in this state of Pakistan. You may belong to any religion or caste or creed--that has nothing to do with the fundamental principle that we are all citizens and equal citizens of one state. Now I think we should keep that in front of us as our ideal …'

The question of distortion, of text as well as meaning and intent, remains a recurrent theme in the Islamisation debate among the Pakistani intellectual, religious and political elites.¹⁴

Family Laws
Doctrines that claim origin in the vast body of texts¹⁵said to contain the injunctions of Islam can be identified at several levels in the present constitutional and legal framework of Pakistan. At one level is legislation that regulates specific areas of activity, mostly criminal offences and questions of personal status including inheritance. Such legislation can be traced back to the tradition of pre-independence laws such as the Musalman Wakf Validation Act, 1913, the Shariat Application Act, 1937 and the Dissolution of Muslim Marriages Act, 1939. Post-Independence legislation claiming basis in Islam occurred in two waves of legislative activity.

The first wave resulted in the Muslim Family Laws Ordinance, 1961, promulgated in liberal times, albeit by a military dictator. The Ordinance of 1961 attempted to reform significant areas of traditional Islamic fiqh ¹⁶ on questions of marriage, divorce and inheritance. The reform was undertaken through avowed reliance on available interpretations of the traditional texts that offered outcomes more in line with the constitutional principles against gender discrimination and that appeared to address issues of contemporary concern. In a departure from orthodox Islamic law, a second or subsequent marriage was made subject to the existing wife's consent. Divorce was subjected to a process that entailed the involvement of an arbitration committee prior to the issuance of a divorce certificate. This replaced the traditional irrevocable and immediate divorce effected through a triple pronouncement of talaq (divorce).
The object was to provide the parties with a cooling off period and to allow greater deliberation and dignity to attend the termination of a marriage. Children of a pre-deceased son or daughter were allowed an inheritance right in the estate of the grandparents. Traditional Islamic law, of all schools,¹⁷ recognises only the children alive at the time of a person's death as heirs while excluding the grandchildren from a pre-deceased child. The subject matter of the Ordinance of 1961, along with its reformist intent, allow this legislation to be seen in the tradition of the pre-independence Anglo-Mohammedan law that had confined laws grounded in religious precepts to the regulation of aspects of private life. Such grounding had accompanied attempted reform of classical Islamic law.

The Shariat Application Act of 1937 had sought to replace customary practices that were frequently inimical to the interests of women by the formal rules of classical Islamic law as recognised in India. This was an advance in that it meant that the courts could override customary denial of women's inheritance rights by relying on the definite recognition in all schools of classical Islamic law of women's right to inherit from their parents as well as the husband. In the same spirit, the Dissolution of Muslim Marriages Act of 1939 had provided statutory cover to a woman's right, disputed by some interpretations of the Hanafi school of classical Islamic law, to seek dissolution of marriage in specified circumstances including cruelty of conduct (not necessarily restricted to physical ill-treatment) as well as a general reference to any ground for dissolution recognised by Islamic law. While the Act of 1937 had overridden custom by elevating classical Islamic law, the Act of 1939 had, in turn, subjected classical Islamic law to statutory reform.

Gen. Zia's Islamisation
The second wave of Islamic legislation, initiated in the late 1970s and the 1980s, sponsored by General Zia-ul-Haq was altogether different in its intent and scope. The intent this time around was to incorporate provisions of traditional Islamic fiqh, human juristic effort presented as the divinely ordained shariah, into the body of the law beyond the traditional confines of family law and inheritance. The scope of this legislation ranged from an 'Islamic' overhaul of the Evidence Act, 1872 through the Qanun-e-Shahadat Order, 1984, to the full inclusion of traditional hudood¹⁸ laws. These hudood laws not only replaced the existing penal provisions with respect to muder, theft, adultery and rape, turning large areas of offences against the state into privately compoundable wrongs, but also added entirely new categories of offences such as Qazf (false accusation of sexual impropriety), fornication between consenting adults and blasphemy.

Perhaps no aspect of the Islamisation of laws has had a larger impact on the lives of ordinary people, women in particular, as the Offence of Zina Ordinance of 1979-one of the five hudood laws promulgated in that year.¹⁹ While sex outside marriage, or even the allegation of such contact, has traditionally been, and still is, a grave religious and cultural offence in all parts of Pakistan. The Zina Ordinance declares consensual sex outside marriage a distinct crime punishable by law. It also provides punishment for zina-bil-jabr (rape). The Zina Ordinance provides two different punishments for the same offence depending on the nature of the evidence against the accused. For the hadd punishment of rajm (stoning to death), the offensive act should have been witnessed by four male, Muslim witnesses of good repute. If, however, the offence is proved by any other form of evidence, the Court can award punishment that may include a prison sentence as well as whipping. The latter category of sentences is subsumed under the heading of tazir, the technical term in Islamic Law for punishments that fall in the discretion of the state. The popular perception of the Zina Ordinance, largely based on the image carried in the press, is that a raped woman must produce four male witnesses against the accused for a conviction. The legal position that a conviction leading to a tazir punishment can be maintained on the basis of other evidence, including that of the woman herself, is generally absent in the popular understanding of the Zina Ordinance.

This has led to further presumption that a woman who has accused and failed to produce the four male witnesses required by the law must face the charge of slander in terms of the Qazf Ordinance, 1979. Several judgments in the last two decades have served to support this impression of the Zina and Qazf Ordinances. In Safia Bibi's case,²⁰ a blind girl, raped by her employers, was convicted by a lower court for the offence of zina on account of her pregnancy even though the accused were acquitted for lack of evidence. Even though Safia Bibi's conviction was later set aside in appeal by the Federal Shariat Court the psychological impact of the earlier conviction has subsisted. More recently, in 2002, the case of Zafran Bibi made international headlines. In Zafran Bibi's case, the complainant, an illiterate woman who had accused her husband's brother of having assaulted her, was convicted by a lower court, once again on account of having conceived during a period when her husband was serving a prison sentence. No evidence was found against the accused brother-in-law who was, therefore, acquitted. In appeal the Federal Shariat Court set aside Zafran Bibi's conviction and held:²¹

'Mere pregnancy by itself when there is no other evidence at all, of a married lady, having no access to her husband or even of an unmarried girl is no ground for imposition of hadd punishment, if she come out with the defence that (the pregnancy) was the result of commission of rape with her.'

The statement of law by the Federal Shariat Court notwithstanding, it is clear that Zafran Bibi was not the last woman to be abused by the judicial process in the name of the Zina Ordinance. In a patriarchal society, a woman abused is a woman condemned. The colonial legislators were well aware of this fact. The 1997 Report of the Commission of Inquiry for Women²² set up by the government noted:

‘That under the Penal Code of 1860 a woman could not be tried for zina. Zina then was only a crime in the form of adultery … Complaints of adultery could only be made by the husband of the adulteress. But females could not be punished under the law. The authors of the Penal Code had argued that within the prevalent feudal and patriarchal social structures women were rarely in total control of their lives and actions. Making them liable to willing adultery in such unequal circumstances, when even a false hint of it would spell doom for the women for life, would frequently amount to injustice. Besides the very criminal liability of a woman would have the effect of enlarging the chances of her victimisation since she would then be open to blackmail, to threat of her implication in willing acts of zina.

Finally, it was thought that such a provision would lead to the traditional rules and norms being made even more inhibiting for women and raise the level of their social oppression and of familial control over their lives. Thus the writers of Penal Code concluded that they would not throw into a scale already loaded against women the additional weight of penal law. Their apprehensions proved only too true after the Ordinance came in. In the pre-Zina Ordinance period, there were only a handful of reported cases of adultery. As soon as the law was changed to include women within the scope of its punishment, allegations of zina started to run into thousands. This clearly indicates that as long as it was only the male who could be punished for adultery, there was a reluctance to prosecute. The Ordinance became a tool in hands of those who wished to exploit women.’²³

The view expressed by the 1997 Report has been expressed by greater vehemence by the Report of the National Commission on the Status Women, 2003. Declaring the Hudood Ordinances, the Zina Ordinance in particular, to be manifestly unjust, irrational and contrary to the injunctions of Islam, the Commission has called for the immediate repeal of the Ordinances.²⁴

Sword of Amputation
The Offences against Property (Enforcement of Hudood) Ordinance, 1979, stipulates the hadd punishment for theft of property placed in enclosed premises or in a container or in the custody of a person. Instances of criminal misappropriation or criminal breach of trust not entailing the physical removal of any property have been left out of the scope of the Ordinance. The shariah punishment stipulated by the Ordinance includes amputation of the right hand for first time offenders and amputation of the left foot for persons committing the offence for a second time.

The imposition of the hadd punishment requires the testimony of two Muslim, adult, male witnesses of good character. The testimony of a non-Muslim may be considered for the purposes of the hadd only if the accused is a non-Muslim. In the event of evidence, as prescribed by the Ordinance of 1979, not being available, the court may award as tazir the same punishment as under the Penal Code of 1860. Though trial courts have, at time, imposed the hadd punishment of amputation such imposition has never been sustained at the appellate stage. However, the fact that the threat of amputation, along with that of stoning in terms of the Zina Ordinance, remains on the statute book, is not without import. Asma Jehangir and Hina Jilani have commented:²⁵

'Nevertheless one cannot ignore its psychological effect. Taking the law as a moral sanction a crowd of people in the Frontier Province took the law into their own hands and literally stoned a man to death.'

Woman as half-witness
The Evidence Act of 1872 was repealed and replaced by the Qanun-e-Shahadat Order, 1984 with the avowed intention to Islamise the law. The discrimination contained in the Hudood Ordinances between the evidence of men and women for the purposes of impositions of the hadd punishment was expanded by Article 17 (2)(a) as regards matters pertaining to financial or future obligations:

Article 17(2)(a): In matters pertaining to financial and future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one woman may remind the other, if necessary, and evidence shall be read accordingly.

Article 17(2)(a) as eventually promulgated, though still discriminatory, reflects the impact of the heroic struggle waged by the then nascent women's rights movements in Pakistan. The original version of the law had equalled the testimony of two women, regardless of intellect and education, to the testimony of a single male witness for all purposes. It was only after country-wide protests by human rights and women activists with the resultant attraction of international attention that the proposed law was watered down to financial and future transactions.

Blasphemy law
The offences of the defiling of the Holy Quran and use of derogatory remarks in respect of the Holy Prophet (pbuh) were added to the Pakistan Penal Code in the form of Sections 295-B and 295-C, respectively, through Ordinance 1 of 1982 and Criminal Law (Amendment) Act (III of 1986). Together, the two provisions have served to constitute blasphemy a frequently exploited instrument of oppression against the religious minorities, political opponents as well as rival claimants to property. A mere accusation of blasphemy is enough to trigger the oppressive force of the police machinery against the accused. The accused is, as a rule, promptly arrested and made to suffer a trial in highly enraged circumstances before a judge who must fear for his own security in the event of an acquittal verdict being passed in favour of the accused. Such fear is by no means exaggerated. The judge of the Lahore High Court, who authored the acquittal order in the case of Salamat Masih and Rehmat Masih²⁶, two Christians accused of blasphemy in 1995, was assassinated not long after the verdict.

It is, therefore, no surprise that blasphemy trials invariably result in convictions and where the charge framed is of blasphemy in respect of the Holy Prophet (pbuh) the death sentence is the only sentence that may be granted. Section 295-C, as originally promulgated, had allowed the judge discretion to grant the sentence of life imprisonment instead of the capital punishment. However, in 1991 the Federal Shariat Court declared, in Muhammad Ismail Qureshi vs. Pakistan,²⁷that the law as drafted was repugnant to the injunctions of Islam in so far as it allowed the grant of any punishment other than death to a person convicted of blasphemy in respect of the Holy Prophet (pbuh).

Segregating Qadianis
Attempts by the Musharraf government to enhance its liberal credentials by amending Section 295-B and 295-C so as to provide for inquiry by a senior officer prior to the registration of a case of blasphemy were scuttled in the face of stern threats by the religious parties during the course of the year 2000.²⁸

Of all the religious minorities the Qadianis* have been the most affected by legislation purportedly in the cause of Islam. Sections 298-B & 298-C were added to the Pakistan Penal Code by Ordinance XX of 1984 with express intent to 'control' Qadiani activities. Section 298-B prohibits members of the Qadiani community from using words or representations similar to those used by Muslims as regards persons held in respect as founders of the Qadiani creed. Section 298-C bars members of the Qadiani community from referring to their faith as Islam or posing as Muslims or from preaching or propagating their faith. Both sections provide a punishment of up to three years along with fine. These provisions were relied upon by the provincial government to ban the centenary celebrations of the group in 1984. The constitutional challenge to these provisions on the basis of Article 20 of the Constitution that guarantees the fundamental right of all citizens to profess, practice and propagate their religion was turned down by the Supreme Court of Pakistan in Zaheer-ud-din vs. The State.²⁹

Murder and Blood-money
Amendments made to the Penal Code by the Criminal Laws (Second Amendment) Ordinance of 1990 and re-enacted by the Criminal Laws (Qisas and Diyat) Act 1997 introduced the possibility of the heirs of the deceased victim entering into a compromise with the convicted murder who could then be acquitted by the court. Under Section 302(a) death sentence can be awarded to a person convicted of qatl-i-amd (deliberate murder) by way of qisas. Qisas is the right to punishment made available to the heirs by God rather than by the state. Under Section 302(b) death sentence or a prison sentence can be awarded by way of tazir to a person convicted of intentional murder. Tazir sentences are not divinely specified and are to be awarded where the quality of evidence required for a qisas punishment is not available or where the victim or the victim's heirs and the offender are related in a specified manner. As regards the qisas punishment of death awarded under Section 302(a), any adult sane heir³⁰ of the victim may waive his right of qisas in terms of section 309 of the Penal Code. In the event of some of the heirs of the victim not agreeing to waive the right of qisas they are to be paid their share of diyat (blood money). The quantum of diyat is to be fixed by the government from time to time.

Where even one of the heirs has waived qisas the death sentence against the convicted murderer is to be substituted with imprisonment that may extend up to 25 years by way of tazir in terms of Section 311 of the Pakistan Penal Code. Even where all the heirs of the victim waive the right of qisas the court may still sentence the offender to imprisonment of either description for a term that may extend to 14 years. Such sentence may be imposed as tazir keeping in view the principle of fasad-fil-arz (serious disruption in society) in terms of Section 311 of the Pakistan Penal Code. For the purpose of the principle of fasad-fil-arz the court may take into account the past conduct of the offender, including any previous convictions, as well as whether the manner in which the offence was committed was outrageous to the public conscience and whether the offender is a potential danger to the community. While Section 309 deals with waiver of qisas section 310 deals with the compounding of qisas. Under Section 310 an heir may compound his right of qisas by accepting money instead. The principles of section 311 as regards the jail sentence that a court may nevertheless impose also apply in the event of a compounding of qisas under Section 310. The general rule, in practice, is that once the heirs have waived or compounded the offence the courts refrain from punishing the offender who then walks free.

Where the death sentence has been awarded not as qisas but as tazir under section 302(b) sections 309, 310 and 311 of the PPC are not applicable. A tazir punishment may only be compounded in terms of Section 345(2) of the Criminal Procedure Code. The offence of qatal-e-amd liable to tazir may be compounded only with the permission of the court and with the consent of all of the heirs of the victim. Once such composition of the offence has occurred the court must acquit the offender in terms of Section 345(6). In the event of any one of the heirs of the victim refusing to compound, no composition of the offence may occur and the sentence granted under Section 302(b) will remain enforceable.³¹

Apart from the radical change in the nature of the offence of murder the so-called Islamisation of the law has introduced a scheme that has served to make the murder of women a lower category of offence, in terms of likelihood of punishments. The enhanced vulnerability of women is a natural consequence of sections 306 and 307 of the PPC. Under Section 306(b) qatl-i-amd shall not be liable to qisas where an offender has caused the death of his child or grand-child, how-low-so-ever. Section 306(c) states that qisas is again inapplicable where any heir (wali) of the victim is a direct decedent, how-low-so-ever, of the offender. Under Section 307 qisas will not be enforced where any wali voluntarily waives the right of qisas under section 307(b) or compounds under section 310. Under Section 307(c) qisas will also not be imposed where the right of qisas devolves on the offender as a result of the death of the wali of the victim or on a person who has no right of qisas against the offender on account of being a direct descendent of such offender.

One or more of the instances quoted in the law regarding the non-applicability of qisas apply to the great majority of murders where the victim is a daughter, sister or wife of the offender. Even where a sentence has been awarded by way of tazir for murders inside the immediate family the offender's chances of walking away free are very high. For instance, in a case where a daughter has been killed by a father (a particularly unfortunate feature of most so-called honour killings), the heirs of the victim are likely to be the offender's own wife and other children. The likelihood of these heirs forgiving the offending father is high, who would then have to be acquitted by the court. Reporting the results of research carried out on the impact of the qisas and diyat law, the 2002 report of the Human Rights Commission of Pakistan states: 'after the adoption of qisas law the incidence of murder in Pakistan had gone up while the rate of conviction had gone down. This is because the courts were approving compromises without ascertaining whether an offence was compoundable under the law.'³² Research on the gender and class skewed-ness of compromises is yet to be carried out.

Islam and the Constitution
Apart from legislation with respect to specific offences, marriage, divorce and inheritance, the Constitution has also been Islamised over time. While the bulk of this Islamisation occurred during the Zia era, the Constitution of 1973 had, at its inception, declared Islam to be the state religion.³³ Article 227 of the Constitution had declared that parliament would bring all existing laws into conformity with the injunctions of Islam and enact no law repugnant to the Holy Quran and Sunnah. Articles 228 to 230 had set up the Council of Islamic Ideology for the purpose of advising the federal parliament as well as the provincial assemblies as regards the injunctions of Islam on any issue referred to it or even on other matters considered important by the Council for the purpose of enabling the Muslims of Pakistan to order their lives individually and collectively 'in accordance with the principles and concepts of Islam as enunciated in the Holy Quran and Sunnah.'³⁴ The advice of the Council was, however, not made binding. Similarly, as regards Article 227, the superior courts have consistently held that it was not meant to provide any ground for judicial review of legislation: the direction contained in Article 227 is addressed to parliament and it is for parliament itself to determine whether the injunctions of Islam are violated by any particular legislation.³⁵

The first 'Islamic' addition to the original constitutional text was made in 1974 through the Constitution (Second Amendment) Act sponsored by Mr. Zulfikar Ali Bhutto's government. The effect of this amendment, whereby the definition of 'non-Muslim in Article 260(3) stood altered, was to declare the Qadiani community non-Muslim. Islamisation of the Constitution during the Zia years resulted in three significant additions to the constitutional structure:
The Federal Shariat Court and the Shariat Appellate Bench of the Supreme were created through addition of Chapter 3A to the Constitution in 1979³⁶ which was then amended in 1980.³⁷
Article 2A, making the Objectives Resolution of 1949 a substantive part of the Constitution, was added in 1985.comparison_asean.htm
Article 51(4A) of the Constitution was amended in 1985 so as to bar non-Muslims from voting in elections to the general seats of the National Assembly. After the amendment, non-Muslims could only vote for non-Muslim candidates contesting on reserved seats for the religious minorities.³⁹

Shariat Courts
In 1979, a month before deposed Prime Minister Zulfikar Ali Bhutto's execution, General Zia set up shariat benches in each of the High Courts of the country and a Shariat Appellate Bench in the Supreme Court of Pakistan. These benches were vested with specific authority to carry out judicial review of all laws, not including the Constitution itself, on the touchstone of repugnance to the injunctions of Islam. Excluded from the jurisdiction of the shariat benches were Muslim personal law and, for a period of three years, fiscal, banking and insurance laws. These benches were also vested with appellate jurisdiction with respect to cases prosecuted under the then newly enacted Hudood Laws. In 1980, the provincial shariat benches were made replaced, through Presidential Order No. 1 of 1980, with the Federal Shariat Court.⁴⁰ The judgments of the Federal Shariat Court were made binding on all other courts including the High Courts.

The centralisation of the authority to enforce the shariah reflected early nervousness on the part of General Zia, given that Islamic texts could be made to support diametrically opposed positions on issues ranging from the authority of the usurper of political authority, punishments such as stoning and the power of the state to effect land reforms. The fact that the Federal Shariat Court was expected by General Zia to act as his hand-maiden was made clear to all, most of all to the judges of the Shariat Court, in 1983 when the incumbents were peremptorily removed and the court reconstituted in order to review the judgment in Hazoor Buksh's case.⁴¹ In 1981 the Shariat Court, headed by a modernist chief justice,⁴² declared that the punishment of rajm (stoning to death) for the offence of adultery