THE basic criticism of the Pakistani Taliban militants is that the 1973 Constitution, with its laws and courts, is not an Islamic constitutional system. The response by the non-militant Islamist elite (ie JUI-S, Jamaat-i-Islami etc.), is a denial of this critique.
They point out that the Constitution and the legal system is Islamic because of the categorical commitment in Article 227 that all existing, and future, laws must be in conformity with the injunctions of Islam, that there is a functioning Council of Islamic Ideology (CCI), a Federal Shariat Court, a Shariat Appellate Bench of the Supreme Court and the enactment and implementation of numerous ordinary civil and criminal Islamic laws.
But what the Taliban and non-militant Islamist elite have in common is the concept of a theocratic constitutional structure. This would have a religiously dominated political, bureaucratic, military and judicial elite. Their interpretation of Islam would be the predominant source of law, superior to all constitutional provisions, and Shariat courts would have pre-eminence over all other courts.
The difference between the Taliban and non-militant Islamist elite is one of strategy. The non-militant Islamist elite believe and hope that such a constitutional structure is possible through incremental Islamisation using constitutional and legal means, combined with political mobilisation and pressure. Such a strategy, predominantly through peaceful means, of the non-militant Islamist elite, is based on the acceptance of their political weakness of not being capable of unilaterally imposing such a theocratic structure.
For the Taliban militants, such incremental Islamisation does not work and is a ‘constitutional trap’ set by the liberal ruling elite; they believe that only a militant strategy can create a theocratic state because it would require the removal of the present structure with its ruling political, military and judicial elite.
Is the Taliban theory of a ‘constitutional trap’ correct? Ran Hirscl, in his book Constitutional Theocracy, tends to agree with this theory by stating that “The ‘constitutional’ in a constitutional theocracy … brings theocratic governance under check, and assigns to constitutional law and courts the task of a bulwark against the threat of radical religion”.
Islamist parties have had some success in Islamising criminal laws, some critical successes in socio-economic legislation like striking down land reform laws but they failed to capture political and state power through Zia and his remnants. Nevertheless, in accordance with Hirscl’s thesis, the Constitution and courts have generally controlled the threat posed by a theocratic structure because of the following reasons.
First, Article 227 (all laws must be Islamic) does not apply to constitutional provisions, so it cannot even be examined as to whether any other provision of the Constitution can be labelled un-Islamic or not. In short, all constitutional provisions (including those relating to fundamental rights, judicial independence and democracy) are equally superior and Article 227 has neither pre-eminence nor predominance.
Second, any decision of the Shariat Court can be challenged before the Shariat Appellate Bench of the Supreme Court, which is composed of a minority of two ulema judges and a majority of three ‘non-ulema’ Muslim Supreme Court judges.
Third, the CII is a toothless body, whose appointments are controlled by the government. Fourth, the Islamised qualifications criteria for the political elites, enacted in Article 62 of the Constitution, are too vague for strict enforcement.
But the Ran Hirscl thesis has its problem: why can’t the Pakistani constitutionalist experiment, as enacted in the form of the 1973 Constitution, be seen as a genuine dialogue of trying to negotiate between constitutionalism and religion and why can’t such a dialogue be seen as a genuine reflection of the people of Pakistan, whose identities are multiple, contradictory and confused, and who are on a religious and constitutional journey, with no destination in sight nor any end pre-determined?
No wonder such a contradictory, confused nation does not vote into power either the Islamist or liberal parties with their definitive ideologies. This is because the real religious divide in Pakistan is not between the Islamist and liberals but between the conservatives and non-conservatives. The former are not Islamist but they do see a limited role of religion in state power as in criminal, cultural and personal matters, eg PML. The non-conservatives, meanwhile, are not secular liberals but those who see only a formal role of religion in state power, eg PPP.
Therefore, regardless of the desires of the Islamist and liberals for an outright victory of religion over constitutionalism or constitutionalism over religion, it appears that such a constitutional dialogue, or constitutional stalemate, is bound to continue.
by Faisal Siddiqi, dawn.com
The writer is a lawyer.