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Sharia on the Altar of the Federal Shariat Court (Part I)

Tanweer Akhtar Shahid

FEDERAL SHARIAT COURT

 

Thinking of the state of Sharia in the Islamic Republic of Pakistan reminds me of the famous line of the Ancient Mariner where he cries “Water, water, every where, nor any drop to drink”. 

One can hear deafening noise of enforcing Sharia in Pakistan by both the leftists and the rightists to secure their worldly interests. However, practically and in essence, the louder the noise became, the national character severed its relationship more intensely with the Sharia. Thus we find the Federal Shariat Court having no relationship with justice based on Sharia which is the primary function of the court, rather it is a perfect embodiment of judicial and moral bankruptcy and completely lacks human decency. The case of a group of Ahmadis, challenging the infamous Ordinance XX of 1984, brought to the Federal Shariat Court, proves the truth of this statement in letter and spirit. 

For the sake of understanding we have divided this into three parts. 

1. The Background 

2. The Discussions 

3. The Conclusion

The Background

Ahmadiyyat is nothing but the true Islam. Hazrat Mirza Ghulam Ahmad, peace be upon him, claimed on Divine authority to have been appointed as Al-Imam Al-Mahdi and as the Promised Messiah to revive Islam and to re-establish its past glory, fulfilling prophecies found in all major world religions. 

Since the inception of Ahmadiyyat in 1889 until 1974, all efforts by so-called religio-social alliances miserably failed to stop the progress of Ahmadiyyat. In 1974 a bigger religiopolitical alliance was created and the Second Amendment to the 1973 Constitution was passed. 

The false pretext of Ahmadis not believing in Hazrat Muhammad, peace and blessings of Allah be upon him, as the last of the prophets was used and Ahmadis were declared not Muslims “for the purposes of the Constitution or Law”. (www.pakistani.org/pakistan/constitution/amendments/2amendment.html) Consequently Ahmadis were left with no option but to sacrifice all their worldly rights, including, but not limited to, the right to vote, enrolling in educational institutions, seeking jobs etc. 

The amendment that was being celebrated as a grand victory against Ahmadiyyat, to the utter surprise of its enemies, proved to be counterproductive. As declared in the Holy Quran, “Allah is the Best of planners”, (Surah Aal-e-Imran: V.55) so He caused Ahmadiyyat to enter a new era of progress. The Khalifa of the time, following the model conduct of the Holy Prophetsa, admonished Ahmadis not to fret over the constitutional amendment as the Holy Prophetsa did not fret over when infidels called him “muzammam”, the condemned one, instead of his holy name “Muhammad”, the most praised. The practical response of Ahmadis to this amendment was, as Shakespeare very aptly put it, was:

“What is in a name? That which we call a rose;

By any other name would smell as sweet.” 

Ahmadi Muslims passed by it with full dignity, as expressed by an Arab poet:

ولقد أمرّ على اللئيم يسبّني

فمضيت ثمت قلت لا يعنيني

“I passed by a mean person who was swearing at me; I continued to proceed saying he does not mean me.” 

Following the advice of the Khalifa, Ahmadis remained contented that Allah had called them Muslims and continued to practice Islam in letter and spirit. Panicked and frustrated by this situation, using the amendment pretext, several civil suits were filed to take over Ahmadi mosques and to seek injunctions against Ahmadis. 

The plaintiffs alleged that although it was the exclusive right of Muslims but Ahmadi “place of worship is known as a mosque (Masjid) and they perform prayer in it which resembles the prayer in Shariat and includes Azan, Namaz, Qyam, Sajood, Ruku‘, reading of the Quran, saying Darood-o-Salam on the Holy Prophet and invoking benediction (dua).” (Abdur Rehman Mubashir v. Syed Amir Ali Shah, PLD 1978 Lahore 113; at 126)

As these suits reached the appeal stage, “Finally, in November 1977 the Lahore High Court passed a judgment dismissing orders of the subordinate courts granting injunctions against Ahmadis.” (https://appgfreedomofreligionorbelief.org/media/RESEARCH-DOCUMENT-1-dis…

Regarding the Sh‘aair (sanctified signs) the Court specifically held “They are as good Sh‘aair  for the Qadianis too since they consider them necessary as a matter of conscience to perform the duty of obedience to Allah.” (Abdur Rehman Mubashir v. Syed Amir Ali Shah, PLD 1978 Lahore 113; at 189-190).

 It was in line with a previous judgment holding “Except for some other minor differences the Qadianis do believe in the mission of Prophet Muhammadsa, and the Holy Quran and the Traditions…” (Agha Abdul Karim Shorish Kashmiri and others Vs Province of West Pakistan PLD 1969 Lahore)

The frustrated enemies sought help from Zia-ul-Haq, the military dictator, who at that point in time, desperately needed political legitimacy to prolong his dictatorial period. This was an unfortunate but happy marriage of a dictator and the clergy. The couple had no hope of any issue so they quickly adopted the bastard baby born to Mr Doultana and the Ahrars in 1953, who was “still alive and waiting for some-one to pick it up.” (Report of the Court of Inquiry Constituted Under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1953, p. 286) The baby was used as a simile for illegitimate Ahrari demands against Ahmadis. Zia accepted all these demands through the promulgation of infamous Ordinance XX of 1984. 

The Federal Shariat Court under article 203 D of the Constitution “could strike down any law as being repugnant to Quran and Sunnah”. (Error at the Apex, Mujeeb-ur-Rahman)

Therefore, a few Ahmadis, in their personal capacity, challenged the religious validity of the ordinance “on the ground that it violated Sharia.” (The Nation and Its Heretics: Courts, State Authority and Minority Rights in Pakistan, Sadia Saeed, Indiana University, Bloomington, p. 1)

The proceedings and the judgment both make an interesting but sad story of how “both juridical outcomes and legal reasoning about Ahmadis” were reversed. (ibid., p. 3) The Federal Shariat Court was a creation of an absolute dictator who employed it as a “strategic tool… to exert control over the judiciary”. (ibid., p. 38)

 

The Discussions

Mr Mujeeb-ur-Rahman, one of the petitioners who also argued the case before the Court, writes that in order to support the petition, more than one hundred and fifty references were attached. For every prohibition, specific references were given from the Holy Quran and the Sunnah, explaining through the commentaries from all phases of Islamic history to the present time. The debate continued for about fourteen days, discussing every point in its fullest details. (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, pp. 7-8)

One cannot help but to appreciate the intelligence of Mujeeb-ur-Rahman Sahib who declared his faith as Islam in the Court and started his opening speech by reciting the Shahada (“I believe that there is none worthy of worship except Allah and that Muhammad is His messenger”) and the Khutba Masnoona, the invocation used by the Prophetsa of Islam.

Mujeeb-ur-Rahman Sahib writes that he established three principal stands to argue the case. The first of them had been that as the Court had no power to strike down the Constitutional Amendment even if proved it had no justification, therefore, notwithstanding the Constitutional Amendment, the prohibitions in the Ordinance were to be considered on the anvil of Holy Quran and the Sunnah. 

 

Title of the infamous Ordinance XX

The second of them had been that as per the intent of Article 203 D of the Constitution, although other Islamic sources would be consulted for the sake of proper understanding of any injunction of the Holy Quran and the Sunnah, but in order to test the justification of the laws the only yardstick on which the decisions should be based should be the Holy Quran and the Sunnah, even excluding all shades of Islamic jurisprudence. 

The third and the last of them had been that as the decision should be based on the Holy Quran and the Sunnah, it should also be decided what principles be applied to understand the injunctions of the Holy Quran and the Sunnah. The following five principles for the interpretation of the Holy Quran, as agreed by classical and modern Muslim scholars, were presented before the Court by the petitioners: 

1. The Holy Quran 

2. The Holy Prophet’ssa sayings and established conduct 

3. Sayings of the Companionsra of the Holy Prophetsa  

4. The Arabic language

5. The contextual requirements of the statements. (ibid. pp. 15-17) 

Mujeeb-ur-Rahman Sahib writes that it was contended that: 

a. “The Ordinance violated the letter and spirit of Quranic injunctions about freedom of conscience and religious liberty.” 

b. “The Quran and Sunnah do not justify any compulsion in the matter of faith.” 

c. “What has been declared to be lawful by the Quran and the Sunnah cannot be declared unlawful by State authorities and that the acts declared laudable and commendable by Quran and Sunnah cannot be made criminal offences punishable under law.” 

d. “There is nothing in the Quran and Sunnah to stop a non-Muslim from believing in and declaring the unity of Allah or to acknowledge the Holy Prophetsa of Islam to be truthful in his claim or to adopt the teachings of Quran as a code of life or to act upon the injunctions of Islam if he voluntarily so chooses.” 

“There were lengthy arguments on both sides.” (Error at the Apex, Mujeeb-ur-Rahman, www.thepersecution.org/archive/erratapex/04.html) Under the special instructions of Hazrat Mirza Tahir Ahmad, Khalifatul Masih IVrh, the petitioners placed before the Court the following questions:  

1. “Does Islam entitle and allow a non-Muslim to declare the unity of Allah?”

2. “Does Islam entitle a non-Muslim to acknowledge the Holy Prophetsa as truthful in his claim?” 

3. “Does Islam entitle a non-Muslim to acknowledge the Quran as furnishing a good Nizam-e-Hayat i.e. way of life and to treat it as worthy of obedience?” 

4. “Is [it] permissible or not for a non-Muslim to act upon the Injunctions of the Holy Quran if he so likes?”

5. “If the answer be in the negative, where is the injunction in the Quran and the Sunnah in support of this negation?” 

6. “What course of action does the Quran propose or provide for a person who is not considered Muslim nor has any right to be so considered by believers, in the truthfulness of Quran, in the prophethood of Muhammad Rasulullahsa and the Oneness of Allah.” (PLD 1985 FSC, p. 89) 

 

Ordinance XX of 1984 Before the Federal Shariat Court (Urdu) | Mujeeb-ur-Rahman

The Court dealt with these questions saying:

“The first four questions posed by Mr Mujeeb-ur-Rahman have to be answered in the affirmative. There is no bar – Constitutional, legal or [Shar‘i] against the right of a non-Muslim to declare the unity of Allah, to acknowledge the Holy Prophet, peace and blessings of Allah be on him, as truthful in his claim, to acknowledge the Quran as furnishing a good way of life and to act upon its injunctions. The fifth question does not arise in view of the affirmative answer of the fourth question. A clear answer to the sixth question is that such a non-Muslim is to be dealt with like other minorities, subject to the conditions imposed by the Quran and the Sunnah which shall be considered at the appropriate place.” (PLD 1985 FSC, p. 93)

The court categorically stated:

“The Muslim Sharia affords full protection to the practice of religion by the non-Muslims as well as to its profession.” (ibid.)

The Court goes on to say that:

“Islam teaches absolute tolerance in matters of religion and leaves it to the conscience of a man to accept the religion of Islam. No compulsion in this respect is allowed in Islam.”

Mujeeb-ur-Rahman Sahib challenged the ban on Azan – Islamic call to prayer – by Ahmadis. He writes that he “mainly relied upon verses 5:2 and 41:33 of the Holy Quran. In the verse 5:2 ‘best of utterance’ refers to Azan, which cannot be made punishable. It was further argued that if a religious practice is common between Muslim and non-Muslim it cannot be denied to non-Muslim and that according to Quranic mandate Muslims are required to cooperate with non-Muslims in such matters. It was also argued on the authority of Quranic text that sacred rites are not to be desecrated or denied just because non-Muslims wish to carry them out. Azan was such a sacred rite. It was also argued, again on the authority of Quranic text, that Muslims should cooperate with non-Muslims on the basis of a common denominator.

“Confronted with the thrust of the argument based on the unimpeachable Quranic text, at one stage the Counsel for the Federation found no escape but to argue that the particular portion of the verse of the Quran stood repealed.” (Error at the Apex, Mujeeb-ur-Rahman)

To be continued

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