Event Recap: Islamic Law, the Nation State, and the Case of Pakistan

Image: Umair/Flickr CC BY 2.0

In recent decades, ambivalence toward modernity, along with the promise of justice and morality, have led to efforts in some Muslim-majority countries to partially “Islamize” the state. Pakistan presents an important case study. Pakistan’s Islamization program in the 1970s and 1980s promised increased justice and other public goods by virtue of laws purportedly rooted in revelation. This program has resulted in some controversial outcomes, such as Pakistan’s blasphemy law. Some argue that laws such as Pakistan’s blasphemy statute have contributed to sectarian strife and helped undermine the rule of law.

Most Muslims today live in political systems that operate on a nation state model. By contrast, classical Islamic jurisprudence developed in the context of empire and a robust and relatively independent scholarly class. Is there something about the nation state that makes “Islamization” unworkable? In what contexts might "Islamization" be most successful? Is there a role for classical Islamic law in Pakistan, and, more generally, for Muslims living within the framework of modernity?

On October 26, 2018, the Asia and Middle East Program at the Wilson Center co-sponsored a panel with the Religious Freedom Institute (RFI) on the issue of Sharia and the nation state, especially pertaining to the case of Pakistan.

Michael Kugelman, Deputy Director of the Asia Program, gave his opening remarks where he emphasized the need to engage in these discussions. He further stated that “in Washington, when it comes to the question of Pakistan, there really are not that many deep dives on these issues, and how it all fits into the modern nation state.” Tracing the origins of the Islamization project in Pakistan, he explained that “when Zia-ul-Haq undertook the Islamization program, it had major implications for so much in Pakistan, including up to the present day.” However he lamented the fact that the discussion seldom goes beyond this, and stressed that there is a need to go deeper that.

The first speaker on the panel was Ismail Royer, a Research and Program Associate at the Religious Freedom Institute (RFI), began his remarks by focusing on the Blasphemy law in Pakistan section 295-C, and how it illustrates the problems and difficulties when trying to introduce Sharia into the nation state. He explained the colonial origins of the Pakistani Penal Code which was written for the purpose of replacing Islamic law in the subcontinent. The blasphemy law introduced by the British at that point in time was actually intended to promote tolerance amongst the diverse population, however, “it is ironic that a law that was intended to enforce toleration wound up eventually being a driver of intolerance and communal strife.”

Moving on to the Zia-ul-Haq era, he explained how amendments were made to the existing blasphemy laws as a result of which the only two possible punishments which a judge could handover, death penalty, or a life sentence. However, in 1990, a person by the name of Ismail Qureshi filed a petition with the Islamic Sharia Court, arguing that a life sentence was not permissible under Islamic law, and that the only acceptable punishment for insulting the Prophet is death as per the Sharia. The court sided with the petitioner and it cited different Islamic jurisprudence texts to validate its conclusion that death is the only permissible sentence in such a situation.

To date, 50% of those who have been charged under this law have been Christians, who make up only 4% of the population of Pakistan. Royer argued that this is one of the issues faced when bringing Sharia into modernity because law and its application actually contradicts the Sharia in many ways.

“In reality, the Hanafi school of thought, which Pakistan follows or purports to follow, actually does not mandate the death penalty for non-Muslims who insult the Prophet. But the fact that this law was introduced into parliament by a military leader, passed by parliament, upheld by this court, has obligated upon all future leaders of Pakistan to apply this law.” 

“There have been challenges to [Pakistan’s anti-blasphemy law] and challenges to its specific application. For example, most recently, in the case of Aasia Bibi, the Christian woman who was accused of insulting the Prophet, it seems very clear that those accusations are spurious.”

Next up, Sohaib Khan–a doctoral candidate in the department of Middle Eastern, South Asian, and African Studies (MESAAS) and the Institute of Comparative Literature and Society (ICLS)–explored the analytical and conceptual aspects of the issue. “Whenever you see an encounter of religion with the state, religion is not something which is discovered, but religion is something that is continuously reformulated through these state institutions”. Hence, he explained that religious freedom is not a universal value, instead that it is context bound and it unfolds through different socio-political contexts.

“The nation state as a legal body, it is premised on a completely different world view of politics of law, compared to the kind of world view in which the sharia functions.” He further explained that instead being a rigid and non-negotiable legal system which descends from heaven, the sharia is in fact an interpretive system.

With regards to the case of Pakistan, he referenced the work of Qasim Zaman, and explained that the religious establishment have an ambiguous relationship with the state. While they understand that it is important to implement the Sharia, now that they are living in the world of nation states, they are aware that this can only practically be done through institutions of the state. So while the necessity of implementing the Sharia exists, they recognize at the same time that this draconian body known as the nation state, could actually overtake the Sharia. Hence, this kind of ambivalent attitude exists between the Ulema and the state in Pakistan.

“Often times, we also tend to think that Sharia is this autonomous legal system which is different or in direct opposition with secular law, but the phenomena that we’ve observed historically in post-colonial, Muslim nation-states is that Sharia law and the law of the state are in dialogical interaction with each other." While the law of the state has higher authority and the relationship with sharia is an asymmetrical one, but they are both shaping each other.

The third speaker on the panel was Abdullah Hamid Ali–Faculty Member at Zaytuna College–who began by contextualizing the Islamic territories pre-modernity, in order to give a better understanding why particular laws for issues like blasphemy existed. He explained that, “State-ism is something that has definitely made it difficult for Muslims in the times [that] we live to really cope with the transition from pre-modern state-ism as opposed to modern or post-modern state-ism.”

He further stated that, when we look at the pre-modern state, anyone who has a detailed knowledge of Islamic law would observe that there is a celebration of a certain kind of pluralism. That is to say that, “Muslim jurists found it easy to accommodate other religious groups, especially groups like Christians and Jews.”  

With regards to Sharia law, he explained that there is an aspect of Sharia which can be translated as revealed law, as there are certain things about Islam which are not negotiable, while others are open to interpretation. Hence, “Sharia is both the revealed law, and the law resulting from interpretative preference.”

Moving on to the topic of jurists, he stated that “jurisprudence is from the realm of speculation.” Therefore, when a jurist offers an opinion or interpretation of a verse or Hadith, that person is merely saying what he/she thinks God would say in this particular case, and does not speak as a legislator. He explained that the main area of confusion is largely the interpretive part of Sharia which entails Ijtihad. Moreover, there is also confusion amongst Muslims with regards to what aspects of Sharia are negotiable, and which ones aren’t.

Finally, in the case of Pakistan, many of the Clerics are reluctant to modify certain laws over the suspicion that there is an attempt to control or reform Islam from without. He reasserted the fact that Islam has both static and dynamic elements to it. Coming back to the issue of the blasphemy law, he stated that he agreed with Ismail Royer’s stance that there are strong arguments against the punishment of death penalty for Muslims, and especially non-Muslims.

The final speaker on the panel was Shaykh Mohammed Amin Kholwadia, Founder of Darul Qasim Institute. Before delving into a discussion regarding Sharia, he emphasized the need to clarify the definition and language being employed. Resorting to a sports reference, he explained that “the idea that we want to explain Sharia to somebody who doesn’t know Sharia is like explaining cricket in terms of baseball and baseball in terms of cricket. I don’t think that’s possible.”

He further argued that the word Sharia is perceived differently by Muslims and non-Muslims. Sharia for Muslims includes religious law, along with social norms and practices. Hence, “the idea that people want to abolish Sharia means you are asking Muslims to give up their civilities, to give up their civilization’s values… That’s not going to happen.”

Regarding the role of Ulema and scholars in Pakistan, he claims that there are several issues. The first is that when it comes to dealing with politics and militants who are out there, they don’t respect the fatwas or verdicts that are given by their own people. An example of that would be the Taliban who belong to the Deobandi school of thought, quite often reject the verdicts of Deobandi scholars. Hence you can see that there is no authority there since a Fatwa is non-binding.

Another issue is that clerics belonging to different religious schools of thought adopt extremely derogatory attitudes towards each other. As a result, it is extremely difficult to bring these groups together for a discussion relating to issues that are plaguing Pakistan. He stressed that, “we need somebody or a group of people who can be a bridge between the [Islamic] scholars and the legal theorists of Pakistan and the judges – [so] that they can meet and discuss things from a very academic point of view."

You can watch a webcast of the full event and read further quotes from the speakers at the event webpage.

Top Image: Umair/Flickr CC BY 2.0

The views expressed are the author's alone, and do not represent the views of the U.S. Government or the Wilson Center. Copyright 2018, Asia Program. All rights reserved.