Chief Justice Qazi Faez Isa And Islam

Will the Chief Justice restore to Ahmadis their right to profess, practise and propagate their faith under Article 20 of the Constitution by overturning the historic injustice and error by the Supreme Court in 1993? 

Chief Justice Qazi Faez Isa And Islam

Justice Qazi Faez Isa’s tenure as the Chief Justice, while short, promises to herald new changes when it comes to fundamental rights of citizens especially the marginalized sections of society. Some of those positive changes are readily on display. 

Many courtrooms at the Supreme Court have female readers and court clerks, which is new even if there are two lady justices sitting on the bench today. Appointment of the first ever woman registrar by Justice Isa is yet another positive.  

Justice Isa had set the tone of gender inclusion from the get go by getting his wife to accompany him at the oath taking ceremony. 

Justice Isa is a sincerely religious man and that shows in his judicial pronouncements and obiter dicta, which are often peppered with religious wisdom. He is not a reactionary by any means. His is a progressive and modernist interpretation of the faith, which no doubt can be a legitimate basis for a just, egalitarian and inclusive society. 

Nevertheless for the more secular minded – self included- his frequent references to Islam and the scripture from the bench are jarring but not because one questions his intent or his interpretation of Islam but because religion has so often been subject to misinterpretation and misuse in our country. The road to hell as they say is paved with good intentions. 

The first Constituent Assembly, which passed the Objectives Resolution in 1949, did not intend for Pakistan to become a theocracy or for religion to be misused in Pakistan. 

Men like Liaquat Ali Khan and Zafrulla Khan sincerely and earnestly believed that the egalitarian spirit of Islam could provide answers to some of the most serious problems confronting Pakistan. They thought that a truly Islamic state could only be an inclusive and democratic state, which would promise equality to believers and non-believers alike.  

Liaquat Ali Khan even promised that a state formed under the Objectives Resolution could have a Non-Muslim even as the head of administration.

Justice A R Cornelius, Pakistan’s only Christian Chief Justice, agreed. Like Justice Isa, Cornelius too embraced the idea of lawyer and judge led Islamisation of the legal system in Pakistan in which liberal lawyers and even Catholic jurists like him could “establish themselves as legitimate interpreters of Islamic law, and in the process thereby establish fundamental rights principles as principles essential to Islamic law as well.” Cornelius had famously even described himself as a constitutional Muslim who was Christian by faith, something which sits uneasily with a state that actively decides who is a Muslim and who is not.  

Things have not panned out well for Cornelius’s community or any better than they have for Zafrulla Khan’s community, which was been forcibly excommunicated constitutionally.  

Blasphemy laws and other discriminatory legislation have all been brought about as a result of this constitutional and legal Islamisation and it has definitely not allowed liberal lawyers to become legitimate interpreters of Islamic law. History of Islam tells us that liberal and rationalist interpretations of the faith were always discarded in favour of the orthodoxy starting with the fall of Mutazilla very early on. 

Nonetheless if the honourable Chief Justice wants to double down on a progressive interpretation of Islam as the basis for an egalitarian society, there are a number of issues he can take up which need urgent attention.

The clearest litmus test is the woeful treatment of the Ahmadi community in Pakistan. Declared Non-Muslims in 1974, since 1984 the very fundamental right of religious freedom under Article 20 has been denied to them completely. They are not free to profess, practise or propagate their religion. Nor do they have the right to freely develop their culture under Article 2-A.

The Supreme Court of Pakistan in 1993 upheld a blatantly discriminatory and bigoted law against them as constitutional in what is by far the most damaging judgment to religious freedom in Pakistan i.e. Zaheeruddin v State 1993 SCMR 1718. As a consequence of the endorsement of religious bigotry by the apex court, today the Ahmadi community members are liable to be arrested for celebrating Eid, eating or storing meat or even saying Salam. This is despite the fact that the founder of this country Quaid e Azam Mahomed Ali Jinnah, who the CJP is beholden to, had promised Ahmadis the right to be treated at par with any Muslim sect.

This is despite the fact that the contributions of Zafrulla Khan, an Ahmadi and one of Jinnah’s closest associates, to Pakistan are second to none.

Today Ahmadi places of worship (which cannot be called mosques thanks to an ordinance promulgated by a brutal military dictator) are demolished and desecrated at will by the mob and Punjab police alike. These activities take place despite the judgment of the Honourable Supreme Court in the Tahir Naqqash case which refreshingly upholds Ahmadis’ right to worship freely at least on their own communal and private properties. It is simply ignored and set aside by Pakistan’s civilian administrators with impunity.  

So will the Chief Justice do right by the Ahmadis, now a constitutional minority, and restore their rights as citizens of this country, including their right to – at the very least- merely think of themselves as Muslims because surely the state cannot police thoughts and surely the progressive and egalitarian spirit of Islam does not mandate thought policing on part of the state.

Will the Chief Justice restore to Ahmadis their right to profess, practise and propagate their faith under Article 20 of the Constitution by overturning the historic injustice and error by the Supreme Court in 1993? 

The most significant statement by the Chief Justice during his comments from the bench in the Supreme Court practice and procedure case was his criticism of the Federal Shariat Court – imposed on the country by a brutal military dictator.  

The very existence of a Federal Shariat Court, a parallel judicial system for all practical purposes, has turned our Islamic Republic into a full-blown theocracy. Far from allowing our superior judiciary i.e. the High Courts and the Supreme Court, to become legitimate interpreters of Islamic jurisprudence and what is or is not repugnant to Islam, it has created a super priestly council. That is the definition of a theocracy.

All Pakistanis may not agree on the precise role of religion in their republic but there is a broad legislative consensus that Pakistan should not be a theocracy. The Federal Shariat Court struck down Pakistan’s most progressive law, the Transgender Persons Act 2018 that aimed to provide some measure of justice to Pakistan’s transgender community. That case is now before the Supreme Court.

Will the Chief Justice let the will of the people, as expressed by the parliament which passed this law, prevail over an unelected, theocratic super priestly council or not? 

The blasphemy laws that have become an article of faith for Pakistan’s unthinking Muslim majority are another area that require his Lordship’s urgent attention, especially after what we have seen happen to Christian community in Jaranwala and elsewhere. For one thing, putting aside one’s secular and human rights concerns about Section 295 B and C, the laws are not just unconstitutional but un-Islamic.

Classical Islamic tradition has never had any conception of blasphemy laws which are of a recent origin given our penchant to codify everything. If anything 295 C militates against Hanafi Islamic jurisprudence in so much as it prescribes death penalty for Non Muslims, a position that Imam Abu Hanifa trenchantly opposed. 

Finally there is the question of women in our society. The father of the nation said that no nation could rise to heights of glory unless the women were side by side the men. Yet the gender gap in Pakistan is amongst the worst in the world. Gender discrimination is enshrined in Pakistan’s laws. Pakistan’s law of evidence i.e. Qanun e Shahadat Order by General Zia ul Haq, makes women half witnesses.

In other words women in Pakistan can become Prime Ministers, Justices of the Supreme Court and fighter pilots but cannot witness a financial transaction as an equal of a man. Similarly the inheritance of a girl child under Pakistan’s Islamic family laws is half that of a male child. All of this justified in the name of Islam, when these were time specific provisions and which if put through vigours of Ijtehad and Ijmah can no longer be sustained on any Islamic ground. By addressing it the Chief Justice can show the world that Islam stands for complete gender equality. 

The Chief Justice has a canvass to show to the world that Islam ontologically emptied and shorn of sectarian pretensions can become a vehicle for progress and change for all people in Pakistan. In doing so he can set Pakistan on the course of an Islamic reformation and age of enlightenment of the kind that transformed Europe 400 years ago. If he does so, his legacy will ensure that Pakistan fulfills some of those aspirations that we set out with all those years ago. 

Yasser Latif Hamdani is a barrister at law and the author of the book Jinnah; A Life.