Yet another nail in the rational State’s coffin – Issue 24 Volume 10

A government’s future is determined by the kind of people it partners with or employs. Despite all the sympathy one has for the Pakistan People’s Party (PPP), it is difficult to appreciate some of its decisions, including peculiar appointments to the Council of Islamic Ideology (CII). No wonder the organisation recently shocked the progressive lot in the country with the decision declaring DNA testing in rape cases as inadmissible as primary evidence.

The CII is a constitutional body imagined in and born out of the 1973 Constitution to advise governments regarding bringing laws in conformity with Sharia and Islamic principles. Its older version was created in the early 1960s to undertake a similar activity. In principle, its opinions are not binding on the government. However, the significance of these opinions and their impact on the common man’s mind is determined by the State’s changing nature. In an environment where religion has gained a lot of significance as part of the daily discourse and life of citizens, there are many who will take note of these opinions.

In the case of DNA testing, a citizen referred the matter to the CII via the Ministry of Religious Affairs. The decision, which relegates DNA testing to the status of secondary evidence, has irked a lot of people and was protested by the more progressive Human Rights Commission of Pakistan. The frustration is understandable since the CII undermined a scientific methodology on the basis that there could be errors in drawing samples or there could be mishandling of it. Instead, the CII decided to stick to the traditional method of four male witnesses. This is a method protested by many women’s and human rights organisations because it lays an unfair demand on a rape victim to prove that her physical security was violated.

There are three perspectives to look at this decision. First, the opinion echoes the heinous Hudood laws enacted under Gen Zia-ul-Haq’s rule in 1979, which created confusion between rape and adultery. I remember attending a seminar held in Karachi by War Against Rape, an NGO, many years ago. One of the speakers, a religious scholar, kept using the term ‘adultery’ for ‘rape’ as if there was no difference between the two. Thus, if a woman cannot produce four male witnesses to prove that she was raped, the case would automatically be considered as one of adultery, which is punishable by death by stoning. There were many tragic incidents during the 1980s, such as the famous case of Safiya Bibi, a blind girl who became pregnant after being raped. However, due to lack of four male witnesses, her case was considered as adultery and her rapist set free.

It is difficult to understand the provision of four witnesses until one looks at the more logical explanation in an opinion given by the CII in the early 1960s. It is argued that the condition was to protect a woman if she was accused of adultery. Reportedly, in case there are less than four witnesses, the case would not stand and the accuser would be punished. Historically, the condition was not naturally biased against a woman.

Second, the four-witness rule made sense at a time when there were no scientific methods available to prove such a case. What the CII members completely ignored was the fact that the insistence was to prove or disprove a case, which can be done using modern techniques that were not available 1,400 years ago.

This brings me to the more critical third point regarding the limited intellectual capacity of those currently sitting on the benches of the CII. A glance at some of the reports of the council from the 1960s is an eye-opener. Some of the opinions indicate the superior capacity of some religious scholars to rationally and scientifically interpret the religious text and all those sources considered for lawmaking in Islam.

For instance, a 1962-63 report of the CII considers a question regarding serving of alcohol in government functions and whether beer should be treated as sharab. The opinion given by Fazal-ur- Rehman, a renowned scholar, cited the four Quranic statements on alcohol starting with the first one which says, “…and (we have created) fruits of palm trees and vineyards from which you manufacture intoxicants and good food; verily, therein is a sign for a people to think”. The subsequent three statements discouraged the believers from consuming alcohol and excesses. However, as concluded in the earlier opinion, drinking alcohol in itself is not an act of disobedience of God or crime against society, hence, principally different from theft, which was also included as part of the Hudood laws. The report argued that the emphasis was against excesses, which may lead to an individual doing greater harm to him/herself and the society. It clearly submitted that there should be no prohibition on the manufacture or sale of alcohol to private persons, though it discouraged serving it in government functions. The report also considered beer as not falling in the category of sharab because the alcohol content is around 5 percent, which can be found in many drinks that get naturally fermented.

Another report from 1964 was equally logical in dealing with the issue of riba (interest), which is declared by many as forbidden in Islam. The argument being that the purpose of such an order was to help create an environment of socioeconomic justice. However, interest can be gradually eliminated with improvement in socioeconomic conditions. It also argued that an interest rate is not arbitrary but a price that is determined by supply and demand of money.

The fact that more rational and intelligent religious scholars have produced better opinions is visible from the CII’s annual reports. The current lot of about 20 members comprise rabid Wahabi and Deobandi ideologues, opportunist Barelvi pirs or intellectual nincompoops who have little capacity to engage with rationality. CII chairman Maulana Shirani is a diehard and uncompromising Deobandi with limited intellectual skills. He was made the chairman as part of a political bribe from the PPP to the Jamiat Ulema-e-Islam (Maulana Fazalur- Rehman faction), of which he is a member. Similarly, President Asif Ali Zardari appointed Tahir Ashrafi, another Deobandi mullah considered close to the Taliban but also known for excessive drinking. They are different from the intellectually capable scholars such as Javaid Ghamdi or Khalid Masud who were once part of the CII and under whom we saw better opinions.

Obviously, it would make better sense if the State does not engage with religion at that level and allow it to be a matter conducted by individual citizens. However, the evolution of the State has been a gradual, sometimes rapid, distancing from secularism. The 1949 Objective Resolution passed by the legislature, then under the guidance of the seemingly non-religious PM Liaquat Ali Khan, set the ideological tone by declaring God as sovereign who delegated his powers to the people. Later, the first Constitution of 1956 had the ‘Directive Principles of State Policy’, which underscored the need for taking steps so that people could live in accordance with Islam. The commission that prepared the second Constitution adopted this formula.

More importantly, after 1949, there was no turning back for any political leader who tried to prove more Islamic than his/her predecessors in an urge to muster support. This included leaders such as Zulfiqar Ali Bhutto, Benazir Bhutto, Sharif and Pervez Musharraf. However, one must give credit where it is due. While Musharraf brought changes in the Hudood ordinance, making the system of evidence collection favourable towards women, the PPP also tried its hand to bring about legislation such as the one on domestic violence against women. Nonetheless, it also continued to make compromises such as appointing people such as Shirani, Ashrafi, Pir Abdul Baqi and others to critical organisations such as the CII.

The fact remains that political expediency has made the State gradually lose its ability to disengage from religion. Now, the choice is between a dramatically hardcore Sunni State and its slightly less rabid version in the form of Sharif. However, it is also important to note that today all Left versus Right binaries have collapsed and the State has indeed taken a firm right-wing turn. Sadly, there is also no hope of turning back.

Note: This article originally published here.