Naeem Shakir is a Human Rights activist and an attorney at Lahore High Court, Pakistan.

What havoc has been and is being wrought by forces of retrogression, vested interest, fundamentalists, obscurants and religious extremists in the name of Islam in the recent past has perhaps not been much known to those who are not victim of such oppression. The much-trumpeted ‘war on terror’ in the western world media is politically designed because at one hand they are the ones who promoted and funded this religious lobby to launch jihad and fight against Soviet Union and on the other they have hegemonic designs in the name of globalization. The forces one time used as agent provocateurs and for proxy war have now over grown and developed vested interest to sustain themselves.

Post cold war era has so far proved more treacherous for the civil society of the regions that have been used as garrisons by the bulwarks of capitalism. Because the religious extremists in order to impose their writ of authority even resort to use of lethal force at the places of worship of ‘others.’ They are reckless and cruel. These forces have even embarrassed the majority of their Muslim brethren especially who are engaged in the revivalist movement for not only a progressive, humane, tolerant and peace loving Islam but are trying to redefine the role of the Muslim world in the comity of nations.

There is no denying the fact that whenever and wherever religion was used for purposes opposed to its inherent spirit of peace, brotherhood, and justice, it not only lost its relevance in the process of social development but its image was also tarnished in the minds and hearts of those who were subjected to it. History is replete with events in which the name of religion was used to glorify the deeds and persons of the tyrant rulers. There was a time when State decrees were accompanied by religious decrees (fatwa) to silence the subjects and justify obedience.

The Holy Quran

It would not be fair to comment on Islamic Shariah without mentioning the two main current schools of thought in the Muslim world and highlighting the Quranic message in its historical perspective. Islam addresses the people of the world through the revealed Book Quran. (Sura Naas 114 /1to 6). Quran says that the God of Islam is the God of the Universe and not God of Muslims only. (Rub-ul-al’meen) Muhammad the Prophet of Islam is the Blessing for the Universe. (Rehmatul’almin) It forbids compulsion in religion. (Chapter2 / 256) It lays stress on personal accountability as it says no one will be burden on other. (Chapter 2 / 139) It extends invitation to non-Muslims for a dialogue. (Chapter 3 / 64) It says that if God wanted that there be all ‘Momins’ (Muslims) He could do so. (Chapter 10 / 99) Therefore the concept of diversity is found in the teachings of Quran.

It further says, “ Your Deen (faith) is for you and my Deen (faith) is for me.” (Chapter 109 / 6) It says, “ Do not abuse the idols of the idolaters.” (Chapter 6 / 109) Muhammad the Prophet is the Messenger to convey the message and is not appointed as the Keeper over others and certainly not an arbiter. (Chapter 6 / 108) The Book says that after conveying message, “ leave them alone and turn away from them. (Chapter 32 / 30) The Quran instructs protection of all places of worship. (Chapter 22 / 40)

Therefore, the movement of revivalism amongst Muslims that has been gaining ground in the past has developed two distinct factions having two different approaches and interpretation of Islam. One stands for medieval and fixated position on issues of fiqh or Islamic jurisprudence whereas the faction representing progressive Islam say that the medieval approach is tantamount to robbing Islam of its eternal spirit and of its continual relevance for all times.

Syed Afzal Haider, a jurist and Islamic scholar of Pakistan and who is also senior member of the Council of Islamic Ideology, in his book Islamic Revolution writes, “ Quran has laid sufficient stress on the need to organize human society on a balanced pattern for the betterment of human race. The desire to lead the people to the path of salvation, freedom from fear, sublimation, economic and political independence, human dignity, international peace, exemption from exploitation of every type and above all tolerance and equal opportunities to develop the latent potential of each individual and a people collectively, is destined to get Divine Approval.”

Another known Islamic scholar from India, Dr Asghar Ali Engineer, writes, “The most stressed values of Quran are (‘adl) justice, (ihsan) benevolence, (rahmah) compassion, (hikmah) wisdom and human dignity. These values cannot be compromised in any law and if any law violates these values that would be unacceptable in Islam.” He further writes, ‘What is to be borne in mind that though the Quranic principles and values are universal, but their application is situation specific. Therefore we have to apply them according to our own situation which calls upon change in interpretation in changed socio-economic conditions.’

Sources of Islamic Law

The two basic sources of Islamic Law are the divine revelation of the Quran, and the Sunnah which relate to what the Prophet said and did or did not express disapproval of things done in his presence during his lifetime that is technically called Sunnah. Sunnah is generally expressed through ahadith i.e., traditions. The Islamic jurisprudence is based on the Quran, Sunnah, Ijma, (consensus amongst Ulama) Qiyas, (analogy- analogical reasoning based on Quran and Sunnah) Ijtihad, (consensus amongst Muslim Umma) Customs and Conventions. The Shariah has two major legal traditions, Sunni and Shi’a. Whereas the Sunni legal tradition has different schools of thought like, Hanafi, Shafai, Malaki and Hanbali. There are now two broad distinctions in Islam the Sunni Muslims and the Shia Muslims. The major difference the two Schools have is in the political interpretation of the text of Quran.

Iranian Revolution of 1979

The process of Islamisation at state level started in 1979 when Immam Khameni took over in Iran and enforced the Shi’ite version of Islam. This revolution had a monumental effect on the Muslim world. The mass killings of the opponents without proper trial however, created a fear syndrome amongst Sunnis and other minorities. The Bahais’ were expelled as community. The exodus of Bahais from Iran has woeful tales.

The revolution led by Immam Ayatollah Ruhollah Khomeni had an anti-American and anti-imperialist stance due to which the American administration took keen interest in neighboring Afghanistan and initiated its plans to checkmate the influence of the revolution in the region. The post Khomeni revolution period is the one in which neighboring Sunni States felt threatened by the emerging Shi’ite religio-political force in the region. A sectarian strife supported by many interested parties emerged amongst different schools of thought.

The Shia revolution provided space to the militant forces of Sunni’s spearheaded by Deoband and Wahabi sects to demand out of reaction that Pakistan be declared a Sunni State. The countries in which Shari’ah was imposed in that period were Pakistan, Nigeria, Sudan, Indonesia, and to some extent Malaysia, where minorities suffered discrimination, harassment and inhuman treatment.

Islamic Shari’ah – A Pakistan Perspective

While examining the effects of Shari’ah on minorities one presupposes that one is considering such religious minorities who are citizens or are residing in a State that is predominantly Muslim and has enforced Islamic Shariah. A nation state such as Pakistan, born out of partition of India when the British withdrew from the colonial rule in the Indian sub-continent in 1947 will be a novel study in this regard.

Pakistan was conceived by its leader Muhammad Ali Jinnah, the Father of Nation and titled as Qaide Azam (The Great Leader) as an enlightened Muslim State and not as a theocratic State. But the orthodox and fundamentalist forces from day one in connivance with the establishment tried to promote agenda of obscurantism for their vested interest. This agenda was materialized through administrative and legislative measures at state level. The passing of Objectives Resolution in 1949 (which provided religious base to the State) is the first example in this regard.

The second major event took place when by launching a street agitation the Parliament was forced to declare Ahamedies as non-Muslims. No parliament has ever sat in judgment on matters of faith but the establishment made it happen in Pakistan.

According to Article 2 of its Constitution that was promulgated in 1973, “Islam shall be the State religion of Pakistan.” And Article 227 declares, “All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, and no law shall be enacted which is repugnant to such Injunctions of Islam.” The Supreme Court of Pakistan is constituted under Article 175 of the Constitution. But a parallel judicial system has been created under Article 203C “which shall consist of not more than eight Muslim Judges”. Under Article 203D, the Federal Shariat Court has been empowered as under:

--- either on its own motion or on the petition of a citizen or the Federal Government or a Provincial Government, to examine and decide the question whether or not any law or provision of law is repugnant to the injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.

Shari’ah Supreme Law

Apart from these constitutional provisions there is a statute that was promulgated as Enforcement of Shariah Act 1991. This law in a way reiterated the supremacy of Shariah law declaring in its Section 3, ‘The Shari’ah that is to say the Injunctions of Islam as laid down in the Holy Quran and Sunnah, shall be the supreme law of Pakistan.” Under this Act education, economy, mass media and judicial system shall be Islamised as provided in Sections 7, 8, 9 and 14 respectively.

But Section 4 of this Act overrides other laws as it says, “While interpreting the statute-law, if more than one interpretation is possible, the one consistent with the Islamic principles and jurisprudence shall be adopted by the Court.” This provision of law has caused serious effects, which will be stated later.

Three fourth of the national life of Pakistan nation had been under military rule. And due to lack of undemocratic institutions the socio-political situation has been very chaotic. The religious lobby has always politically blackmailed the political governments and has been working hand in gloves with the military rulers. The military ruler Gen. Zia ul Haq, who took upon himself to Islamize the society, effected most of these constitutional amendments and brought changes in the statute law. The Objectives Resolution which had served as a Preamble to Constitutions of 1956, 1962 and 1973 was made substantive part of the Constitution by incorporation of Article 2-A and was placed as an Annex to the said Article.

While serving as a preamble, the sixth paragraph of the Objectives Resolution read as under:

"An adequate provision shall be made for the minorities freely to profess and practice their religion and develop their culture."

Whereas the word ‘freely’ stands deleted from the text when it was placed as an annexure to Article 2-A. It was deliberate and a malafide act on the part of the military ruler to delete this important word ‘freely’ which later had serious repercussions in the socio-political setup. It introduced an element of religious extremism and the sectarian legislation made thereafter promoted religious discrimination against the minorities. In order to gain religious sanctions for his government, Gen. Zia collaborated with the religious fundamentalists. Those who were never voted for the Assemblies were brought into the corridors of power through administrative measures.

Religious Fundamentalism

The military government encouraged the religious parties like Jamait-e-Islami operating in the field of politics. They kept embarrassing each government and political forces by taking mileage on religious card. Whereas religiously extremist organizations like Sipahe Sahaba, and Jaishe Muhammad sharpened the sectarian divide. Those groups introduced violence by killing members of other groups in the name of religion. Its members openly marched in public displaying lethal weapons and over awed their opponents in particular and public in general. There was implied patronage of the government for the armed militancy of these religious extremists.

It was during this time that armed militant groups like Daawat ul Irshad, Lashkr-e-Jhangvi, Harkatul Ansar and Lashker-e-Taiyyaba etc, etc, emerged to carry out ‘jihad’ in Afghanistan and later in Kashmir. Religious groups of like nature sprung up like mushrooms that spread culture of violence and hate. What to talk of religious minorities, the Muslims even felt scared and insecure at the hands of these zealots masquerading in the name of religion and jihad.

Islamic Criminal Law

In the process of Islamisation that Gen. Zia initiated, the following sectarian legislation was promulgated. The Hudood Laws were promulgated by Gen. Zia-ul-Haq to introduce punishments of Hadd in criminal law of the country in order to bring it in conformity with the Injunctions of Islam as set out in the Holy Quran and Sunnah. These laws included,

i. The Offence of Zina (Enforcement of Hudood) Ordinance 1979.

ii. The Offences against Property (Enforcement of Hudood) Ordinance 1979.

iii. Prohibition Enforcement of Hadd Order IV 1979.

iv. The Offence of Qazf (Enforcement of Hudood) Ordinance 1979.

iV.The Execution of the Punishment of Whipping Ordinance 1979.

A few provisions of these Ordinances are reproduced for study.

The punishment of Hadd in these Hadood Ordinances has been defined as punishment ordained by the Quran or Sunnah. The Offences Against Property (Enforcement of Hudood) Ordinance, 1979 relates to theft, robbery and cases of dacoity. The kind of proof required for the offence has been provided in Section 7 of the Ordinance, as under:

“The proof of theft liable to hadd shall be in one of the following forms, namely:

(a) the accused pleaded guilty of the commission of theft liable to hadd; and

(b) at least two Muslim adult male witnesses, other than the victim of the theft, about whom the court is satisfied , having regard to the requirements of tazkia al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the occurrence :

Provided that, if the accused is a non-Muslim, the eye-witnesses may be non-Muslims:

Provided further that the statement of the victim of the theft or the person authorized by him shall be recorded before the statement of the eyewitnesses are recorded.

Explanation — In this section, tazkia al shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness.”

Whereas the punishment of theft liable to hadd is provided in Section 9 which is given as under:

1) Whoever commits theft liable to hadd for the first time shall be punished with amputation of his right hand from the joint of the wrist.

(2) Whoever commits theft liable to hadd for the second time shall be punished with amputation of his left foot up to ankle.

(3) Whoever commits theft liable to hadd for the third time or any subsequent thereto, shall be punished with imprisonment of life.

Whereas, Section 25 of this Ordinance, provides;

“The Presiding Officer of the Court by which a case is tried, or an appeal is heard, under this Ordinance shall be a Muslim: provided that, if the accused is a non-Muslim, the Presiding Officer may be a non-Muslim.

The second Ordinance was called the Offence of Zina (Enforcement of Hudood) Ordinance of 1979. The Ordinance in its Section 4 defines Zina:

“a man and a woman are said to commit Zina if they willfully have sexual intercourse without being validly married to each other.”

Whereas, Zina liable to hadd under Section 5 is provided as under;

(1) Zina is liable to hadd if;

(a)it is committed by a man who is an adult and is not insane with a woman to whom he is not, and does not suspect himself to be married; or

(b)it is committed by a woman who is an adult and is not insane with a man to whom she is not, and does not suspect herself to be married.

(2) Whoever is guilty of zina liable to hadd shall, subject to the provisions of the

Ordinance;

(a)if he or she is a muhsan, be stoned to death at a place; or

(b)if he or she is not a muhsan, be punished, at a public place, with whipping numbering one hundred stripes.

Explanation: Muhsan mean an adult Muslim man or a woman.

And Section 8 of the Ordinance provides the required standard of evidence as under;

Proof of Zina (adultery) or zina-bil-jabr (rape), liable to hadd shall be in one of the following forms, namely:

(a)the accused makes before a Court of competent jurisdiction a confession of the commission of the offence; or

(b)at least four Muslim adult male witnesses, about whom the Court is satisfied, having regard to the requirements of tazkiah al-shuhood, that they are truthful persons and abstain from major sins (kabair), give evidence as eye-witnesses of the act of penetration necessary to the offence:

(c)Provided that, if the accused is a non-Muslim, the eyewitnesses may be non-Muslims.

Explanation: Tazkiah al-shuhood means the mode of inquiry adopted by a Court to satisfy itself as to the credibility of a witness.

The Presiding Officer under Section 21 of the Ordinance shall be a Muslim but if the accused is a non-Muslim the Presiding Officer may be a non-Muslim.

The next law is Prohibition (Enforcement of hadd) Order 1979. It prohibited the use of liquor. Non-Muslims may use liquor for religious ceremonies on liquor permits issued by the Government. The punishment for offences for use, manufacture, bottling, possession and transportation for liquor under this law includes life imprisonment or not less than two years imprisonment along with whipping not exceeding thirty stripes and shall also be liable to fine.

The evidence required for an offence liable to hadd under Section 9 of the Ordinance provides that “at least two Muslim adult male witnesses” about whom the Court is satisfied that they lead life according to the Injunctions of Islam. who lead life according to injunctions of Islam. The Offence of Qazf (Enforcement of hadd) Ordinance of 1979 defines and provides punishment for an offence of Qazf that is false imputation of zina (adultery) about any person knowing that that imputation would harm and injure that person.

Such person will be subjected to whipping numbering eighty stripes as a punishment for the commission of such an offence. And such conviction shall require evidence of ‘at least two Muslim adult male witnesses. The Presiding Officer of the Court by which a case is tried, or an appeal is heard under this Ordinance shall be a Muslim.

Testimony of Non-Muslims

The testimony of non-Muslim citizen has been rendered secondary to that of a Muslim as it is adjudged and measured in terms of the principles as laid down in Quran and Sunnah, under the new Evidence Act with an Islamic name - Qanoon -e- Shahadat of 1984.

The application of Islamic Shariah on non-Muslim citizens is most unjust. The act of imposing a particular Shariah to which he/she does not belong tantamount to flagrant violation of human rights as laid down in the international treaties. The argument advanced in favor of the application of Islamic laws to non-Muslim citizens of Pakistan is that public law is applicable to all citizens across the world. The argument is fallacious and not tenable as the declared base and foundation of this law is religiously sectarian. And the application of Hudood Laws over non-Muslims of the country reflects a theocratic mind.

Personal Law of Minorities

There has been a serious invasion against the Personal Laws of the religious minorities. The concept of marriage and divorce of the citizens of other religions is not similar to Islam. Polygamy is allowed in Islam whereas Christianity, Judaism, Hinduism and Paris’s strictly forbid having more that one wife. Some of the provisions of Divorce Act applicable to minorities are in conflict with the Ordinance.

It may be stated that Pakistan is predominantly an agrarian society and feudal values dominate the socio-cultural life of its people. Abduction and violence against women is a common feature. And women of the marginalized sections of the society are common victims. According to the report of the Human Rights Commission of Pakistan for the year 2002, ‘one woman is being raped in every two hours and one woman is gang raped in every eight hours in Pakistan’. And most of the cases go unreported because of social taboos and the stigma that wretched act carries against a woman. This is an appalling situation and calls for some immediate remedial steps to better the situation.

The Muslim landlords without much uproar abduct married Christian/Hindu women. And in order to avoid the rigors of penal law, converts the abductee to Islam and undergoes the procedure of Islamic marriage with her. The whole exercise is undertaken in such a mechanical manner that the law is made a sheer mockery. Since the Shari’ah has become the Supreme Law, and the statute law has to be interpreted according to the Injunctions of Islam, her earlier marriage under the Christian Marriage Act or under Hindu Marriage Law practically stands dissolved ipso facto. Why because she has supposedly embraced Islam and she being a Muslim is prohibited to marry a non-Muslim. As Islamic Shariah has to prevail, the institution of Christian marriage is rendered as a fragile thing and the personal law of non-Muslim citizens becomes meaningless.

Dhimmies

The religious parties which were not only against the founder of the nation Qaid-e-Azam Muhammad Ali Jinnah but were also against the formation of the state of Pakistan gradually reconciled and launched campaign to turn it into a theocratic state. The religious lobby of the Islamists was not prepared to accord equal status to non-Muslim citizens in this newly founded state. They term non-Muslims as dhimmis which is a derogatory word to lower down the social status. Dhimmis are charged with a jazia (tax) for giving protection to life and property to non-Muslims in an Islamic State.

Non-Muslims were not treated as part of one Pakistan nation as according to Islamists there were two nations in the country, one Muslim nation and the other non-Muslim nation. The Jamiat-e- Islami wrote a lot of literature about the status of a non-Muslim in an Islamic State. This generated the baneful sentiment of religious prejudice, which slowly marginalised the non-Muslim citizens in the socio-political life. Maulana Abu ala Maudoodi well-known Islamic scholar in his book slami Riasat (Islamic State) said,

"the non-Muslims shall not have a right of vote and right of representation in the legislature of an Islamic."