Islamization and Legal Reform in Pakistan, 1979-1989 Author(s): Charles H. Kennedy Reviewed work(s): Source: Pacific Affairs, Vol.

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Islamization and Legal Reform in Pakistan, 1979-1989

Charles H. Kennedy*
INTRODUCTION

promulgatedhis Islamic reforms (Nizam-i-Mustapha) in Pakistan. I contendthatthese reforms have had onlya minorimpactupon thepolitical,legal, social, and economic institutions the state.This observationdepartsfromconvenof tional interpretations.' Admittedly,the politicizationof the process of Islamizationhas played a verysignificant in thepoliticalenvironment role ofPakistanduringthe1980s. During Zia's regime,theIslamic reforms had a veryprominent publicprofile. Hardly a day passed in whichone or more oftheissuesoftheprogram werenotthefocusofpolitical debatein Pakistan. the Zia's government as portrayed reforms leadingPakistanin thedirection ofbecoming"trulyIslamic," and promisedrapidand thorough implementationofthereforms. also Opponentsofthereform arguedthatthereforms were being implementedrapidly although they deemed aspects of the reforms misguided,reactionary, as and/ordiscriminatoantidemocratic, naryto women. I contend, however,thatsuchrhetoric, despiteitsstrident littlein regardto impleture,was primarily "political noise," signifying to mentationor public policy. This paper attempts defendthishypothesis of in the by first tracing broad strokes cautiousimplementation Islamiclegal an reformin Pakistan during Zia's administration.Then, it will offer of of explanation thecontinued vitality theNizam-i-Mustapha,despitesuch the of institutional "non-implementation," exploring interests relevant by

T HASBEENA DECADE since thelate PresidentZia-ul-Haq

* Most of the material forthispaper was gathered under the auspices of the Fulbright-Hays Program (1984-85). Subsequent support was provided by the Archie Fund for Faculty Excellence of Wake Forest University, the Research Fund of the Graduate School of Wake Forest University, and the American Instituteof Pakistan Studies. Earlier versions of this paper were presented to the 40th Meeting of the Association of Asian Studies (San Francisco, March 1988), the 5th Meeting of the American Council forthe Study of Islamic Societies (Villanova University, May 1988), and the International Conference on Islamization in South Asia (Keble College, Oxford University, July 1989). l Exceptions to this view include two early observers of Islamic resurgence in Pakistan who argued in the late 1970s that Pakistan's Islamization program was, at least in part, motivated by domestic and/or international political considerations. See William L. Richter, "The Political vol. 19, no. 6 (June 1979), pp. 547-57; Dynamics of Islamic Resurgence in Pakistan," Asian Survey, vol. and Detlev V. Khalid, "The Phenomenon ofRe-Islamization," Aussenpolitik, 29, no. 4 (Winter 1978), pp. 433-53.

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Islamization and Legal Reform Pakistan,1979-1989 in actors.A finalsectionwillspeculateon thefuture Nizam-i-Mustapha in of the contextof Prime MinisterBenazir Bhutto's current administration.
ISSUES OF IMPLEMENTATION

On paper, Zia's Nizam-i-Mustapha contemplatedsignificant and ambitiousreforms Pakistan's institutions. in The programcontemplated of modifications Pakistan's economicsystem in the through establishment "Islamic banks," called fortheabolitionofbank interest (riba),introduced of themandatory collection zakat(social welfare tax) againstthebank holdingsofSunni Muslims,2establisheda profit-loss sharingschemein banks, introducedan Islamic land tax (ushr), and establishedvarious institutions to study Islamiceconomics.Nizam-i-Mustaphaalso mandatededucational reforms establishingnew institutions by (e.g. the InternationalIslamic University,Shariah Training Institute,and various ulema traininginstiof and by contutes),by enhancingtheimportance Arabic in thecurricula, of an the to templating wholesaleredrafting textbooks incorporate Islamic approach to pedagogy.3Social reforms were also introducedby Nizam-ithe of Mustapha through stressing sanctity Ramazan, theencouragement of of chadar (modest dress by Muslim women) and the enforcement preexistingbans on gamblingand prohibition. It is beyond the scope of thispaper to detail the consequences of such reforms. Sufficeit to observe at thispoint thatsuch reforms were either: and (a) a merereinforcement in some cases a tightening policiesor pracof tices already in place (e.g. cladar, gambling, prohibition);(b) cosmetic zakat changesin existing policiesorpractices (e.g. profit-loss sharing scheme, or collection);(c) wereleft unimplemented nonjusticiable(e.g. theban on reform); (d) ifimplemented, or constituted relatively minor riba,textbook changesin existing policiesor practices g. educationalreform, (e. introduction of Islamic banks). The focusofthispaper, rather, legal reforms. is There are severalreasons forthisapproach. First,thedemand forIslamic reassertion using is, a Pipe's terminology, demand for"legalism" and "autonomism.' 4 That is, theShariahis thesine non theestablishment an Islamic stateand qua for of

2 Zakat and Ushr Ordinance, 1980, PLD 1980 Central Statutes 97. In 1980, afterdemonstrations by Shias protestingthe mandatory collection of zakat, the government amended the law to apply only to Sunni Muslims. See Zakat and Ushr (Amendment) Ordinance, 1980, PLD 1981 Central Statutes 58. 1 See forinstance Mohammad Abdus Sami and Muslim Sajjad, PlanningCurricula the for Natural Sciences:TheIslamicPerspective (Islamabad: Instituteof Policy Science, 1983). For a criticaltreatment of such policies see Pervez Amirali Hoodbhoy and Abdul Hameed Nayyar, "Rewriting the History of Pakistan, " in The PakistanExperience: Stateand Religion,ed. Mohammad Asghar Khan (Lahore: Vanguard Press, 1984), pp. 164-785. 4 See Daniel Pipes, In the Path ofGod: Islam and PoliticalPower(New York: Basic Books, 1983), pp. 64-69.

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PacificAffairs one cannotenforce Shariah in a statethatis notIslamic. Second, ofall the in theIslamic reforms contemplated Pakistan,legal reforms have been the mostvisibleand themostextensively implemented. Finally,thereis ample data available and enough timehas passed sincetheirintroduction adeto quately studyand assess the implementation such reforms. of In turn,thepaper willfocuson threetypesoflegal reforms: structural reforms (reforms theexisting of legal institutions the state); procedural of reforms (reforms theprocedurespertaining evidence); and criminal of to law reform. Structural Reforms reforms Pakistan'slegal system bothcomplexand conin are Structural to fusing.In 1978, "Shariat Appellate Benches" were grafted Pakistan's fourHigh Courts.Theirjurisdiction includedhearing appeals againsthudood law convictions (see below) and theywere grantedoriginaljurisdictionto hear "Shariat petitions." In 1980, such benches were disbanded and the "Federal ShariatCourt" (FSC) was established. itsbirth occasioned But was labor. Between1980and 1985,provisions by a long,painful,and disjointed relatingto the operationof the FSC were modified28 times,throughthe mechanismof 12 separatepresidential ordinances,5 were incorporated and intotheconstitution 14 subsections in covering11pages oftext.6 When the dust settled,the FSC emergedas a body consisting no more than eight of judges, appointed by the president,and selectedforthe most part from judges of the high courts.The FSC 's jurisdictionincluded: or in conviction acquittal fromdistrict courts 1. appellate jurisdiction casesagainst inzinaand qazf cases; in conviction acquittal or from dis2. limited appellate jurisdiction casesagainst in courts property prohibition and trict cases; 3. limited motujurisdiction lawsandpractices un-Islamic hence and suo todeclare void; 4. original to jurisdiction hear"Shariatpetitions"; on in casesbearing thehudood decided laws 5. revisional jurisdiction criminal by itself. anycourt including to It is veryimportant note,however,thatarticle203B oftheconstituthe tionexcludesfrom FSC's jurisdiction "Constitution,Muslim perthe sonal law, any law relatingto the procedure of any court or tribunal,

I Presidential Ordinances no. 1, 1980; no. 4, 1980; no. 5, 1981; no. 7, 1981; no. 5, 1982; no. 12, 1982; no. 7, 1983; no. 9, 1983; no. 1, 1984; no. 2, 1984; no. 14, 1985; and no. 24, 1985. 6 See Government of Pakistan, Ministry ofJustice and Parliamentary Affairs,Constitution the of Islamic Republicof Pakistan (Islamabad: Printing Corporation of Pakistan Press, 1985), sections 203A-203J.

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in Islamization and Legal Reform Pakistan,1979-1989 or . .. any fiscallaw or any law relating thelevyand collectionoftaxes to and feesor banking or insurancepracticeand procedure."' The decisions of the FSC are subject to appeal beforethe "Shariat AppellateBench" ofthesupremecourt.The latterbench consistsofthree regularsupremecourt justices and twoad hoc judges drawneither from the FSC or fromamong ulema.8 For thepurposesofthispaperfour additional pointsconcerning criminal law procedurein Pakistan mustbe stressed.First,original jurisdictionfor mostmajorcrimesin Pakistanlieswiththedistrict courts.In particular, district courtspossess originaljurisdictionrelevantto theenforcement the of ordinances.District courtsalso have appellatejuriszina,qazf,and property dictionto hear appeals against the remaininghudood ordinance - prohibition. Second, district judges possess discretionary to authority tryindiunderShariahor civillaw. For example,ifa case oftheft vidual cases either comes beforea district judge he can eithertrythiscase under thetermsof theproperty section theCrimiof ordinance(Shariah) or undertherelevant nal ProcedureCode (civil). That is, district judges "wear twohats" (civil law and Shariah) and there are no separate Shariah Courts at the level of originaljurisdiction.Third, the decisions of the district judges can be appealed on the Shariah side to the FSC and on the civil side to the high courts.The FSC also has revisional to jurisdiction call forcases triedon the civil side fromboth the district courtsand the high courts. Fourth, the supremecourt is the finalcourtof appeal forall criminalcases. In practicethere considerable is variationin theenforcement interand pretationof the hudood laws between district judges. Such variation is a of of function the individual propensities jurists.9This variationis also a function regionalism,as thehudood of ordinanceshave been implemented in much moreenthusiastically thePunjab and urban NWFP thanin other regionsof Pakistan.10 Also important thefactthatthe overwhelming is majorityofsuperior court judges in Pakistanare attorneys, professionally trainedin theBritish civillaw tradition. are Indeed, legal credentials and/orexperience constitutionally mandated for selection to the Supreme Court and the High Courts,11 and the constitution specifiesthata majorityofthe FSC bench must be drawn fromthe ranks of those qualified to serve on the high

Ibid., section 203B. Ibid., section 203E(3). 9 An extreme case is provided by an NWFP sessions judge who advocated the eccentricjudicial doctrine that under Islamic law a defendant must prove his innocence, ratherthan the prosecution his guilt. Subsequently, dozens of the latterjurist's decisions were overturnedon appeal by the FSC on the grounds of misappreciation of evidence. 10See Charles H. Kennedy, "Islamization in Pakistan: Implementation of the Hudood Ordinances," Asian Survey, vol. 28, no. 3 (March 1988), pp. 307-16. 11Respectively, Constitution theIslamic RepublicofPakistan,sections 177 and 193. of
7

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PacificAffairs In court.12 fact,18 of the 23 (78 percent)individualswho have servedon the FSC since its establishment (1980-89) have been former high court judges, and 20 of 23 (87 percent) have possessed western-stylelaw degrees.13 Further,thiscadre of former high courtjudges, trainedin the British civillaw tradition, dominatedtheproceedingsoftheFSC. The has most activejuristswithinthe FSC and each of its chief justices (Salahuddin Ahmed,AftabHussain, and Gul Muhammad Khan) have been drawn from thiscadre. Also, theoverwhelming majority decisions(particularly of in fullbench cases) have been written suchjurists. by Althoughthereare exceptions,itis generally case thatthosejurists the trainedin, and long-term practitioners thecivillaw tradition of, tendto be " "Islamic moderates. Such individuals'professional training, cultural and ideological orientations, experience, and personalpredilections disposethem mostofthejuristsentrusted to thisend. Therefore, withinterpreting Islamic have notbeen zealous advocatesofsuchreforms. legal reforms Obviously, Zia thisfact controlled appointthe was notloston President who effectively mentofjudgesat alllevelsduring tenure. his That is, itwas thegovernment's Shariah-related with actual,ifnotofficial, policyto staff judicial institutions the individuals primarily conversant with,and oriented towards British civil law tradition.This factorhelps to explain the slow pace of Islamic legal in reform Pakistan. of Advocatesofa morerapid and thorough implementation theIslamic on have focusedtheirefforts extending jurisdictionofthe the legal reforms FSC. The 9thAmendmentBill introducedin 1986 calls forthedeletionof article203B of the constitution (quoted above).14 That is, it calls forthe Muslim personal, extensionofFSC jurisdictionto include constitutional, the laws. Similarly, so-called "shariah bills" call fortheShariah and fiscal to be made thesupremelaw oftheland and forthe FSC to be finalarbiter of of the interpretation the Shariah.'5 Perhaps as a responseto such views Zia dissolvedthenational assemblyheaded by Prime MinisterMuhammad KhanJunejo on 29 May 1988. of was the One ofthereasonsZia gave for dismissal thegovernment theslow or pace of Islamization, and the inability unwillingness ofJunejoto work

12

(M.A. Al-Azhar, Islamic studies); Syed Shujaat Ali (M.A. Karachi, Arabic): and Fida Muhammed (PhD. Sind, Islamic jurisprudence). 14 Ninth Amendment Bill, section 3 (1986). 15 Shariah Bill (Senate Version), sections 3-5 (1986); Shariah Bill (Select Committee Version), section 5 (1986).

1' The other three justices were selected from public service: Pir Muhammad Karam Shah

Ibid., section 203B(3a).

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Islamization and Legal Reform Pakistan,1979-1989 in forthe passage of any shariah bill.16 Indeed, two weeks later on 15 June Zia promulgated his own shariah bill - the Enforcementof Shariah Ordinance, 1988. But Zia's ordinance fellfarshortof the expectationsof advocatesfortherapidimplementation Islamization.Section4(3) ofthe of ordinanceamended section203B oftheconstitution assignedthejurisbut dictionto "examine and decide thequestionwhether not any law relator ing to Muslim personallaw, any fiscallaw, or any law relatingto thelevy oftaxesand feesor bankingor insurance or practice and procedure anyprovision of such law is repugnantto the Shariah" withthe High Courts!"7 From the perspectiveof those advocating rapid implementationof the Islamic programthiswas akin to placing a foxin charge of the chickens. Accordingly, Zia's ordinancewon fewconverts. was bitterly equally It and opposed by thosewho viewed thepassage ofany shariahbill as retrogresbill sive; and by thosewho viewed Zia's particular as aimed at stallingthe Islamization process. In any case, theordinanceneverbecame law. Pakistan's constitution mandates thata presidentialordinance stands repealed ifit is not passed Zia's by the national assemblywithinfourmonthsof itspromulgation.18 deathin Augusteffectively eliminated untimely any significant political support forthe bill, although PresidentGhulam Ishaq Khan promulgated a "revised" Enforcementof Shariah Ordinance (identical to Zia's) on 15 October.19 The latterordinancewas presented the newly-constituted to National Assemblyin December. The assemblyallowed theordinanceto expire with no legal effect. Therefore,Zia's Shariah Ordinance, like its predecessors,the so-called 9thAmendmentand thevarious shariahbills, remainsconfinedin a politico-legislative coma; the patientremainsalive but the prognosisis not good. Procedural Reforms: Qanoon-i-Shahadat The The most widelydiscussed and importantaspect of procedurallegal reforms concernsthelaw ofevidence. It has been long contendedby advocates ofIslamic reform Pakistanthatthe1872 Law ofEvidence, a legacy in of Britishraj, was un-Islamic. Indeed on 2 January 1981, PresidentZia

16 It seems likely that the slow pace of Islamization was not the sole reason forthe dismissal of theJunejo government. There is considerable speculation that the dismissal ofJunejo was linked to the imminent investigationof the Ojheri incident (a major accident in an army munitions dump near Rawalpindi) by the National Assembly, potentiallya very embarrassing development to both the Zia government and to the military. 17 Enforcement of Shariah Ordinance, 1988 (Ordinance I of 1988), June 15, 1988. PLD 1988 Central Statutes 29, Section 4(3). 18 Constitution theIslamic RepublicofPakistan,section 89(2). of 19 Enforcement of Shariah (Revised) Ordinance, 1988 (Ordinance XXI of 1988), October 15, 1988, PLD 1989 Central Statutes 18.

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PacificAffairs importanceis thattheLaw stated: "In myopinionwhatis offundamental of Evidence should be strictlyin accordance with the Quran and the and by Encouragedby theforegoing, directed thepresident, reconstituted Council ofIslamic Ideologytookon thetaskofexaminingthe1872 the of Law ofEvidence. In 1982,itsubmitted fruits thisexerciseto thepresiby dent.As drafted thecounciltheproposedlaw ofevidencemade verysignificant from 1872 act. Indeed, itmade so manydepartures the departures thatthechairmanofthecouncil,Tanzil-ur-Rehman,decided thatitwould to thanattempt amend theold be easier to writean entirely new law rather one.2" Among other things, the resultantdraftordinance contained a detailed chapteron Nisab-i-Shahadat (quantum of evidence) whichboth and ordinances,22 of requirements thehudood incorporated evidentiary the of established betweenthetestimony men and women. In most distinctions was equated to one-halfof a man's testiinstancesa woman's testimony departuresfromthe mony.23 The draftordinance also made significant for of conditions 1872 act in regardto provisions oaths,purgation witnesses, for of But of evidence,and punishments theretraction evidence.24 theprobetweenthevalue ofmen's and women's visionsdealing withdistinctions Indeed, theWomen's Action drewmostofthepublic's attention. testimony protested prothe Forum (WAF) and otherwomen's associationsbitterly well-attended muchpublicizeddemonand posed ordinanceby organizing in strations Lahore and Karachi.25 Zia's administration was caught in a dilemma. It was committedto Islamiclaw ofevidencewhichwould challengethe producinga distinctively vestigesof colonial rule. But at the same time a large, vocal, and wellorganized group was contendingthatthe proposed ordinancewas unjust and un-Islamic. The expedient adopted by the governmentwas both of Namely, thegoverningeniousand reminiscent mycentralhypothesis. mentadopted a new law ofevidencewhichwas almostidenticalto theold a it law ofevidencebut portrayed as constituting profoundbreak withthe
Sunnah.
''20

20 1982 (Islamabad: PrintIslamicLaw ofEvidence, Council of Islamic Ideology, DraftOrdinance, ing Corporation of Pakistan Press, 1984), p. vii. 21 Ibid., pp. viii-ix. 22 Ibid., chapter 3. The Pakistan Law Commission was opposed to the inclusion of the hudood evidentiary requirements in the Law of Evidence. See Pakistan Law Commission, NinthReportof Ordinance Aboutthe Proposed the on Receivedfrom FederalGovernment PakistanLaw Commission Reference the (Rawalpindi: unpublished, 1984). Relatingto Qunun-e-Shahadat 23 The evidence of a single female witness "shall be admissable in cases relating to birth, virginity,and such othermattersconcerningwomen as are not usually seen by men. " Council ofIslamic chapter 7. Ideology, DraftOrdinance, 24 Ibid., chapters 5, 6, 8, and 12. 25 For a detailed treatmentof the organization of the WAF and its opposition to the Draft Law of of Evidence and otherIslamic laws see Khawar Mumtaz and Farida Shaheed, ed., Women Pakistan: Two StepsForward. One StepBack? (London: Zed Books, 1987), pp. 123-42; 183-89.

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in Islamization and Legal Reform Pakistan,1979-1989 past. Accordingly, 28 Ocrober 1984, Zia announced thepassage ofthe on Qanoon-i-Shahadat (law of evidence) declaring it to have replaced an "un-Islamic law with an Islamic law. '26 But a close examination of the thatitdepartedfrom 1872 act in onlyone the Qanoon-i-Shahadat indicates substantivedetail. Section 17 of the new law providesthat: to or obligations, reduced writing, if 1. in matters pertaining financial future to so theinstrument be attested twomen,or onemanand twowomen, by shall if shallbe ledaccordand that mayremind other, necessary, evidence one the ingly; and the of 2. inall other or matters, Courtmayaccept, acton thetestimony oneman evidence thecircumstancesthecasewarrant. as of oronewoman suchother or This clause was substituted section134 ofthe1872 actwhichhad stated: for "No particular shallin any case be requiredforproof numberofwitnesses matterwas theQanoon-i-Shahadat of any fact." In no othersubstantive of 1984 different fromthe 1872 Law of Evidence.27 impact In practicesection17 of the 1984 act has not had a significant As on legal practiceor interpretation. ofDecember 1989, no case had been broughtto any superiorcourtin Pakistanwhichhingedon theinterpretaof tionofthesubstantive amended provision thisordinance.And, giventhe relevant financial to transactions Pakistannone are in natureofprocedures In financial transvirtually every likely emergein thenearfuture. practice, to of actionin Pakistanbycustomor rulerequiresthecountersignature several sanction the requirementof individuals. Indeed, bank rules specifically witnessedsignatures, transfers, and courtproceduresrelevantto property Therefore, much the make similar provisions. loans, contracts, so forth and heraldedand contested Islamic Qanoon-i-Shahadat is in substancemerely a reaffirmation the 1872 Law ofEvidence. Alternatively, 1872 Law the of of Evidence has been definedby Nizam-i-Mustapha to be Islamic.

The Qanoon-i-Shahadat Order, 1984 (October, 1984). Based on a clause-by-clause comparison of the two acts. For the most part, the Qanoon-iShahadat of 1984 is a verbatimcopy ofthe Evidence Act of 1872 (I of1872) in everyparticularincluding "illustrations" and "explanations." One exception is section 71 of the Qanoon-i-Shahadat which introduces the Islamic concept ofshahadaul al-shahada.This allows a potential witness to depute two substitutewitnesses to give oral testimonyin the former'sabsence fromcourt. This reformwas suggested by the Council of Islamic Ideology, DraftOrdinance, chapter 10. The Qanoon-i-Shahadat also incorporated the changes made by the Law of Evidence (Amendment) Act, 1981 (XXVI of 1981). The latteramendment updated the Evidence Act of 1872 by deletingreferences the Britishgovernto ments, acts of Parliament and so forth.Also, section 163 of the Qanoon-i-Shahadat, 1984 exempts the hudoodordinances from the procedures of the new law of evidence.
26 27

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PacificAffairs Criminal Law Reform Zia On 10 February1979,President promulgated fourordinances,collectivelyreferred as the "hudoodordinances."28 which called forrevito sions in Pakistan's criminallaw system.The Zina Ordinance established criminal penalties for sex-related crimes (adultery, rape, kidnapping, enticement, attempted rape, sodomy, prostitution, conspiracyto engage in prostitution, and deceitful marriage). The QazfOrdinance established criminalpenalties forthe wrongful imputationof zina. The Prohibition Ordinance establishedcriminalpenaltiesforthepossessionofalcohol and prohibiteddrugs. And the PropertyOrdinance establishedpenalties for theft. In keepingwiththeIslamic tenorofthe ordinances,distinctions were drawn between hadd(plural hudood crimes with expresslysanctioned and specified evidentiary requirements penalties) and tazir (discretionary and evidentiary requirements penalties) crimes.For instance, hadd the crime ofzina specifies thatfouradult,sane males, freefrom major sin,witness the actualact ofpenetration. The specified for penalty sucha crimeso witnessed is stoning death. Any othercrimethatfallsshort such standards evito of of undertazir withpenalties a dence is tried of including combination imprisonment, monetaryfines,and/orwhipping.29 As I have reportedin detail elsewhere,30 implementation the the of /udood ordinanceshas had onlya marginalimpacton Pakistan's criminal law system.No haddpenaltieshave been meted out in the state,and only two haddconvictionshave ever been upheld by the FSC. Both were later overturned the supremecourt.3" by of Further,it is importantto note that the introduction the hudood ordinances, withthe exceptionof the haddcrimesand penalties, did not create any new "crimes" thatwere not already on the books. The prethat PakistanPenal Code alreadyspecified each tazir existent crime,as specifiedin thehudood was unlawful. ordinances, Also, thetazir penaltiesspecified

28 The Offences Against Property (Enforcement of Hudood) Ordinance, 1979, PLD 1979 Central Statutes 44; The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 PLD 1979 Central Statutes 51; The Offence of Qazf (Enforcement of Hudood) Ordinance, 1979 PLD 1979 Central Statutes 56; The Prohibition (Enforcement of Hudood) Order 1979 PLD 1979 Central Statutes 33. 29 The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 PLD 1979 Central Statutes 51, sections 4-5. 30 See Kennedy, "Islamization." 31 The first involved the theft a clock froma mosque in Okara. See The State vs. Ghulam Ali of 153/I (1981); Ghulam Ali vs. The State PLD 1982 FSC 259; and Ghulam Ali vs. the State PLD 1986 of SC 741. The second involved the theft electronic equipment froma private residence in Lahore. See Zahid Iqbal vs. The State 163/I (1982). The Supreme Court reversedthe latterdecision in spring 1987, although the case had not been reported in relevant law journals at the time of this writing.

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and Legal Reform Pakistan,1979-1989 in Islamization in thehudood ordinancesare similar thepenaltiesspecified thePakistan to in Penal Code.32 for There has been considerablesentiment extending Islamic criminal to of penalties includecrimes bodilyhurt(murder, manslaughter, attempted and assault).But so far,despitea FSC decisionwhichdeclaredqisas murder, (punishmentby similarhurt)Islamic,33 and severalreportsby the CouncilofIslamicIdeologywhichproposeqisasand doyat for (compensation injury) legislation,34 such legislationhas become law. no In sum, therefore, Islamic legal reforms structural, procedural,and criminal- have had onlya minorimpacton thecorpusofPakistan's legal have been confined thecreation a new court, to of system. Structural reforms are theFSC. The latter institution's functions, ethos,and procedures in conProcedural have included sonancewithpre-existing reforms legal structures. theintroduction a new law ofevidence, theQanoon-i-Shahadat, but it of fromthe 1872 Law of Evidence in only one arguablyinsignificant differs detail. Finally,in respectto criminallaw, fournew ordinanceshave been crimifew introduced,but theyspecify changes in Pakistan's pre-existing nal law statutes. Their implementation also been cautious,and no hadd has penaltieshave been imposed. have had little So, one may wellask, iftheIslamic reforms impactupon Pakistan's institutions why were issues relevant to their promulgation of so much discussed in the politicalenvironment Pakistan duringZia's administration? addressthisquestionrequiresa consideration therole To of of Islamic reform thepolicy-making in process of the state.
NIZAM-I-MUSTAPHA AND RELEVANT ACTORS IN THE POLICY PROCESS

So farthe analysishas demonstrated thatZia moved slowlyto implementhisNizam-i-Mustapha(Islamic Reforms).However, such"caution" is belied by thevibrantlevel ofpoliticalrhetoric thatwas generatedby the programin Pakistan.This section attempts explainthisseeminganomaly to of actorsconcerned with bylookingat themotivesand interests therelevant of theimplementation nonimplementation Islamic reform Pakistan. or in Four groupsare singledout forconsideration.First,and mostobvious, is PresidentZia-ul-Haq and his politicaladvisors. Zia introducedNizam-iconsisMustapha, and his administration publicizedthepolicywithfairly tentvigorthroughout tenure.A second important his group is the senior

32 See Pakistan Penal Code, 1860 (XLV of 1860), sections 366, 366A, 372-373, 375-382, 493-498. 33 See Muhammad Riaz vs. Federal Government PLD 1980 FSC I and Gul Hasan Khan vs. Government of Pakistan PLD 1980 Pesh 1. $4 The most notable is Council of Islamic Ideology, DraftOrdinance Relating the to Law ofQisas and Diyat,June 1981 (Islamabad: Printing Corporation of Pakistan Press, 1981).

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PacificAffairs judicial and civiladministrative officials who wereinvolvedin theadministration theprogram.The contentand scope oftheNizam-i-Mustapha, of like any otherpolicy in Pakistan, has been shaped by the actions of the bureaucratsentrusted with its implementation. thirdimportantset of A actorswereZia's politicalopponents,thewould-be future decisionmakers ofPakistanand their ideologicalcohorts. Finally,I willexaminethemotives and interests a fourth of groupofactors, "Islam-pasand" (literally, the those who love Islam), the advocates for more extensive implementationof Nizam-i-Mustapha. Zia and His Administration It mustbe observedthatPresidentZia, likehis predecessors who have of governedPakistan,facedtheimperative whatcan be termed"Pakistan's Islamic mandate. "I' Pakistan came into existencedue to the demands of Muslim nationalists the creationof Islamic state; and the overwhelmfor of are ingmajority Pakistan'spopulation Muslims. Pakistan'sdecisionmakers differ to whatthismeans or should mean forpoliticsand policy,but as "Islamic policlearlyall mustheed theimportanceofIslam. By definition tics" are majority-based politics,and each of Pakistan's heads of governmenthas been cognizantofthisfact.For instance,PrimeMinisterZulfikar Ali Bhutto,arguablyPakistan'smost" secular-minded"leader,termed his economicreforms "Islamic socialism"and thecredoofthePakistanPeople's Partywas "Islam is our ideology,socialismour economy,and democracy " our politics. of Facing thereality theIslamic mandate, PresidentZia employedIslam as a methodto legitimizehis government, popular legitimacy being a problem which chronicallybedeviled Zia's administration.Zia came to power as theconsequence of a military coup whichdisplaced a self-styled populist. In this contextNizam-i-Mustapha can be viewed as a policy of for designedin partto providean Islamic justification thecontinuation a military-dominated regime. international Nizam-i-Mustapha also carriesimportant implications. fromitsconnectionwiththeoil-richGulf states, Pakistan benefits greatly particularlySaudi Arabia. The Gulf states employ around one million Pakistaniworkers,and the remittances theysend back home account for around 40 percentof all exportearningsin Pakistan.36 Also, under Zia's administrationPakistan became an importantmember of the Islamic and played a major role in the Organization ummah (Islamic community)

and 35 See Craig Baxter, Yogendra Malik, Charles Kennedy, and Robert Oberst, Government Politicsin SouthAsia (Boulder: Westview Press, 1987), p. 172. on PakistanisWorking Studying or 36 See Government of Pakistan, Manpower Division, A Report (Islamabad: Manpower Division, 1984). in Overseas Countries

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Islamization and Legal Reform Pakistan,1979-1989 in ofIslamic Conferences(OIC). And, largelyconditionedby the Nizam-iMustapha, Pakistan has emergedas one ofthemost important centersof intellectual activity pertainingto Islam in theworld. Also, one should not lose sightof the factthat President Zia was a consummate political strategist and consciouslyadopted policies which in moved cautiouslyin Islamic matters.This can be demonstrated several creation theFSC through of ways: thestep-by-step presidential ordinances; the his appointmentofmainstream juriststo staff court; and his cautious approach to legal reforms,for example, the Qanoon-i-Shahadat, the Enforcement ShariahOrdinance,and qisasand dcyat of legislation. Zia's conwereto maintain in cernsthroughout stability thestate,and to curbthemore In conduced zealous advocates ofIslamic reform. practice,Zia's interests to a cohesive strategy approach Nizam-i-Mustapha. He consistently to to stressedhis administration'scommitment the Nizam-i-Mustapha by engagingin calculatedpoliticalhyperbole concerning administration's his and initiatives.Simultaneouslyhe quietlyorchestrated accomplishments took and/ormanipulatedthepoliticalprocessto ensurethatIslamicreform manner. In sum, Zia's strategy place in an orderedand prudential paid lip his service theIslamicmandate,and helpedtolegitimize government to and it to cementtieswiththeIslamicworld.Further, did notchallenge vested the of elites. interests Pakistan's bureaucraticand military and Jurists Bureaucrats Of course,juristsand bureaucratswere centralto theimplementation ofNizam-i-Mustapha.For ourpurposes, three of characteristics suchgroups dovetailwithZia's policy approach. First,bothjuristsand civil administrators Pakistanare imbued witha strong in sense ofloyalty theregime. to and as Jurists bureaucrats neutral"servants perceivethemselves "politically ofthe state. This orientation, perhaps under challengesince theadministrative reformsof the early 1970s, neverthelessremains importantin Pakistan.37Second, jurists and bureaucrats are vitallyconcerned with and maintaining stability orderin thestate.Third,juristsand bureaucrats share common social characteristics. Both groupsperceivethemselvesas membersofa "service class," whichhas itsrootsin themiddle and upper socio-economic strata Pakistan.Bothgroupsare also highly of Westernized, educated in Englishand, in terms ideologicaldisposition of towardsIslam, overwhelmingly composed of "Islamic moderates." When combined,thesecharacteristics resultedin policiescongenialto those whichwere pursued by PresidentZia. Juristsand bureaucratsare predisposedto resist change. In particular, juristshave been loatheto write

37

See Charles H. Kennedy, Bureaucracy Pakistan(Karachi: Oxford University Press, 1987). in

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PacificAffairs decisionsin a way thatmightlead to what theywould refer as "judicial to chaos." Further,both groups take a jaundiced view of the importanceof Islamic reforms.One findslittleenthusiasticsupport for the Nizam-iMustapha among either juristsor civilbureaucrats. Finally,both groups remained politically loyal to PresidentZia, and were predisposedto follow his lead, particularly long as his approach to Nizam-i-Mustapha as remained cautious. Secular Political Opponents In the contextof Islamic policymaking,PresidentZia had two types ofpoliticalopponents- thosewho argued thatZia's Nizam-i-Mustapha wenttoo farand thosewho argued thatit did not go farenough. This secof tion looks at the interests the former;the next at thelatter. Secularopponents Nizam-i-Mustaphaand ofPresident of Zia, attacked thepolicyfromseveraldirections. themoreprominent Among arguments in were: (a) Thehuman The rights argument. punishments specified thehudood ordinances(stoningto death, amputation,whipping)constitute crueland unusual punishments, borderon barbarism.(b) Thereactionary and argument. as to Nizam-i-Mustaphais characterized an attempt setPakistanback fourteen hundred years to the time of the Rightly-GuidedCaliphs. (c) The undemocratic argument. Islamizationprogramwas designedto lend supZia's of portto an unpopularmilitary regime.His policieshad theeffect banning political parties and silencing political opposition. (d) The anti-minority The Nizam-i-Mustapha discriminatesagainst non-Muslims, argument. the Ahmadiyya,38 and Christians. A corollaryof this arguparticularly ment is thatNizam-i-Mustapha is dominated by the Sunni Hanafifiqh, that is, it is anti-Shia. (e) Themisogyny argument. Nizam-i-Mustapha discriminatesagainst the rightsof women. And (f) the anti-rational argument. and Westernization;and itis Nizam-i-Mustapha is opposed to modernity obscurantist. of In practice, secularopponents Nizam-i-Mustaphausuallycombined thesearguments.For instance,a typicalattackby Benazir Bhuttoagainst ordinanceswas reported theMuslimon 12 February1988. In thehudood by thethreeparagrapharticleshe chargedthatthehodood ordinancesare antidemocratic,reactionary, barbaric, anti-female,and prop up an "illegal regime."'9 There was a certainamount of intentional hyperbolein such attacksagainsttheNizam-i-Mustapha. For instance,in thispiece Benazir goes on to chargethat"the Zia-Junejo regimeis involvedin makingstoning to death and public hangingsa spectatorsport."
38 For details see Charles H. Kennedy, "Towards the Definition of a Muslim in an Islamic Minority PoliticsinSouth Asia, and Ethnic State: The Case of the Ahmadiyya in Pakistan, " in Religious ed. Dhirendra Vajpeyi and Yogendra Malik (Delhi: Manohar, 1989), pp. 71-108. 39 Abbas Nasir, "Benazir Demands End to Hudood Laws," Muslim (12 February 1988), p. 1.

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Islamization and Legal Reform Pakistan,1979-1989 in The natureofPakistan's newsmedia encouragessuch overstatements accuracyofreporting neverhavingbeen one ofthehallmarks thejourof nalisticprofession Pakistan. Compounding thisdifficulty, in many of the issues relevantto theimplementation Nizam-i-Mustapha are technical of to and difficult discuss adequately in the mass-based media. Also, the government not choose to contestoverstatements the news media. did in There was little,if any, prior censorshipof statements bearing on the Islamizationprogram,and moreremarkably veryfewrejoinders wereever issued by the government againstbiased or falsenews reporting. Perhaps thegovernment well perceiveditsinterests servedbya loud and aggressive, ifinaccurate,media. After such evidenceofdissent"proved" thatthe all, government enthusiastically was implementing Nizam-i-Mustapha. Pararefuted such chargesitwould leave itself doxically,ifthegovernment open its to countercharges thatit was not implementing professed policies. Not surprisingly, Westernpress,eager to see evidence ofreactionthe ary "fundamentalist Islam, " repeatedsuch inaccuracies. Numerous artithe and clesappearedin variousnewspapers including Guardian theNew York the Times whichstressed extreme natureofZia's reforms. Such distortions also foundtheirway into academic analyses of the Islamic reform.40
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TheIslam-pasand There was also considerable,ifless vocal, oppositionto Zia's Nizam-iMustapha on thegroundsthatitdid notgo farenough. Given theslowpace ofchange thathas been chronicled here,such sentiments seem warranted. However, thosegroupsthatwould have likedto see more thorough implewerecaughtin a dilemma.First, mentation constituted smallminority a they in theinstitutions whichadministered Nizam-i-Mustapha. The courts the and thebureaucracyare dominatedby Islamic moderates. Second, there was and remains widespread a belief PakistanthattheNizam-i-Mustapha in was being implemented the enthusiastically. Accordingly, Islam-pasand's views were oftendismissedas extremist. Third, the Islam-pasand constiof tutea verysmall minority Pakistan's overallpopulation. Finally,given theopposition theNizam-i-Mustaphavoicedby Zia's political to opponents, were givenlittlechoice but to tacitly the advocates of Islamic reform supportthe policies of the government. The views oftheIslam-pasand were well summarizedin an interview I had witha memberoftheCouncil ofIslamicIdeologyin 1987. The subject oftheinterview been instrumental formulating council'sdraft had in law the ofevidence.When I askedhimhisviewsregarding Qanoon-i-Shahadat the

40 E.g. Anita Weiss, "Implications of the Islamization Program forWomen, " in Islamic Reassertion Pakistan: TheApplication IslamicLaws in a ModernState,ed. Anita Weiss (Syracuse: Syrain of cuse University Press, 1986), pp. 97-113.

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PacificAffairs of 1984 he shruggedand said, "I willnot see the Shariah implementedin willnotsee theShariah implemented their mylifetime. children My in lifetimes. But my children'schildrenmightsee the Shariah implementedin theirlifetimes we [the Council] do the rightthingsnow. Our job is to if recommendwhat should be done not what will be done. '41
BENAZIR BHUTTO AND ISLAMIC REFORMS

Benazir Bhutto campaigned strenuously against Zia's Nizam-iMustapha bothbeforeand after Zia's death. Benazir particularly objected towhatsheperceived the"anti-female"bias in theIslamization as program, and this theme became a major issue of the PPP campaign in 1988. As indicated above, Zia's policieswerean easytarget. Benazirstressed reacthe tionary natureofZia's policiesand, whether or intentionally not,exaggeratedthespeedand scopeoftheir implementation. Zia's government little did to countersuchcharges.Zia was trappedin a dilemma ofhis own making. Ifhe arguedthatthepace ofreforms prudent, wouldleave hisadminwas he istrationopen to the counterchargefromthe opposition that Nizam-ia he Mustapha was merely sham. Accordingly, adopteda policyofrestraint, and instructed relevantinstitutions to enterintopublic debate withthe not to This gave Benazir oppositionon matters pertaining theIslamic reforms. and the PPP freerein and she exploitedher advantage with great skill. the Indeed, theissue ofIslamic reform and particularly issue ofthe status ofwomenin Islam became one ofthemostvisibleissuesofthe1988National Assemblycampaign; and her successful managementof the issue can be partly credited with providing her with the margin of victoryin the has Subsequent to the election,however,the issue of Islamic reform withmy central faded fromcenterstage. This developmentis consistent hypothesis. Namely, once Benazir came to power thefocusofher interest in shifted from the gainingpoliticaladvantagevis-a'-vis government regard the of to thereforms dealingwiththecomplexities implementing reforms to Benazir's government (i.e., from gainingto exercising power).Accordingly, has done little hindertheoperationoftheNizam-i-Mustapha as impleto the mentedby Zia. Her administration notdismantled Federal Shariat has Court nor theShariatAppellateBench oftheSupreme Court. Neitherhas of itrescinded hudood the ordinance,norchallengedtheimplementation the Ramazan Ordinance, nor curbed the activitiesof the Council of Islamic Ideology.
Personal interview, March 1987. The PPP derived its pluralityover the IJI throughelectoral success among women, the illiterate, and Sindhi voters. Each ofthese groups was highlycritical of Zia's Islamic reforms.See Gallup 1988 (Islamabad: Gallup Pakistan, Pakistan, Pakistan the at Polls: GallupPolitical Weather Report, November, 1988), pp. 21-34.
41
42

election.42

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in Islamization and Legal Reform Pakistan,1979-1989 I thatBenazir's administration conis One could rightly counter, think, Zia's Islamic reforms to itsnarrowelectorial due strained from dismantling procedurally the operationofthe by mandate.43 has also been thwarted It 8thAmendment theConstitution to whichmade Zia's actionsduringMarNotwithstanding theseobservations, tial Law (1977-85) nonjusticiable.44 since Islamic reform Benazir has consciously pulledherpunchesregarding acts was herassumption power. One ofherfirst as primeminister to perof formumrah, and upon her returnshe upheld the governmentalban on Salman Rushdie's Satanic publically condemning book following the Verses, the Islamabad disturbancesin January1989.45 Perhaps she has been well-advised to moderate her opposition to have of Zia's reforms Nizam-i-Mustaphafor thethesis thispaperis correct if legal, socialand economicinstitutions had onlya minorimpacton political, of the state. Moreover, directly challengingthe reform would entail conIt siderablepoliticalcoststo her administration. seems mostlikely,therethatBenazirwillnotdismantle Nizam-i-Mustapha in thenear future. fore, emasculate Rather, her administrationwill continue to incrementally the thatshe inherited through bureaucratic neglect alreadyanemicprogram fromher predecessor.

43 The PPP won only 39 percent of the popular vote in the 1988 National Assembly election. It formeda coalition governmentwith the MQM and independent MNAs. In the Provincial Assembly elections the PPP was able to win a majority only in the Sind. See Pakistanat the Polls, pp. 13-14. 44 A two-thirdsmajority of both houses is required to amend Pakistan's constitution. See Constitution theIslamic RepublicofPakistan,section 238. of 45 PakistanProfile (10 March 1989), p. 16.

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