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Shariat bill.

Shariat Bill

Apparently, PPP government has been caught unaware and it is said that the Bill is a constitutional device to topple the PPP majority through a joint session of the parliament. The Bill now stands transmitted to the National Assembly. The Assembly may pass the Bill without amendment, in which case it shall be presented to the President for assent.

The Shariat Bill is likely to come for discussion at the next session of the National Assembly expected to begin on August 8. It may be recalled that the Senate on May 13, unanimously adopted the Enforcement of Shariah Act 1990 called as Shariat Bill. The Tehrik-i-Nifaz-i-Jafaria (TNFJ) has rejected the Shariat Bill in its present form and it was alleged that it would reduce the Shias to second class citizen. TNFJ President Allama Sajid Ali Naqvi said that Shias could never accept a Bill which was man-made having nothing to do with Quranic injunction. He said the movers of the controversial Bill had a prejudiced outlook and in case the Bill was passed, everybody in the opposition camp would be declared an heretic or an apostate. This would bring society to a standstill.

Federal Interior Minister Mr. Aitezaz Ahsan said that after the passage of the Shariat Bill the parliament should pack up and go home. The bill will delegate all legislative authority to the judiciary and it is its primary function. Mr. Ahsan pointed out that "I in the first instance oppose the Shariat Bill on the ground that its application by parliament on legislative authority violates and militates against the Constitution itself". Mr. Ahsan opposed the Bill because it did not have the support of all religious parties. It manifests and represents the views of one very small group in the religious canvas of Pakistan.

Apparently, PPP government has been caught unaware and it is said that the Bill is a constitutional device to topple the PPP majority through a joint session of the parliament. The Bill now stands transmitted to the National Assembly. The Assembly may pass the Bill without amendment, in which case it shall be presented to the President for assent. However, if the Bill is rejected or is passed with amendment or is not passed within 90 days of its receipt, it shall be considered in a joint sitting of Parliament. If the Bill is passed in a joint sitting, with or without amendment, by the votes of majority of the total membership of the two houses, it shall be presented to the President for assent.

Surprisingly President of Pakistan has evidently given his consent to the Bill by saying that this will bring countless blessings to the people of Pakistan. The congratulatory messages and triumphal greetings were perhaps due to the fact that in conjunction with the 8th Amendment the Bill has the potential of making the President even a more powerful figure than he is today.

A kind of Pandora's Box has now been opened. Junejo Muslim League is opposed to the Bill and it is at loggerheads with Jamaat on this point. Mr. Wali Khan and Syeda Abida Hussain has already expressed their dissent on the Bill. The very Senate which has passed the Bill was opposed to it during Junejo's time. The Chairman of the Senate Mr. Wasim Sajjad who was Law Minister at that time also opposed the Bill in Junejo's time. The present Bill was strongly opposed by the Lahore High Court Bar Association. A joint meeting of the four committees constituted by the Federal Government for women's affairs adopted a resolution criticising the Shariah Bill which it said would create divisiveness and negate democracy.

As the Federal Law Minister Mr. Aitezaz Ahsan in a press interview explained "What the Bill purports to do is to invest the judiciary with the right to determine what laws are against Islam which on the dates determined by the judiciary would be repealed. This is a legislative function.

It also invests the judiciary with the right to determine the substitute law and determine the principal. These are the points on which the law ought to be framed, where the judiciary has to do all that then what is the point in keeping a parliament. If parliament is to itself abdicate from its primary function then it should go home. Parliament must not divest itself of its right and in accordance with the spirit of the objective resolution, legislation and Islamisation should be through the chosen representatives and parliament is the embodiment of the chosen representatives.

A controversy has been raised over Prime Minister Benazir Bhutto's remark that her government did not want to make amputations the foundation of an Islamic system of government. She said she wanted the true Islam based on the consensus of the people and the parliament, as the elected representative of the masses, was its true manifestation. From the very beginning PPP is opposed to the proposed Shariat laws. It also rejected the 8th Amendment which contained the Hudood that award amputations.

Two clerical leaders in Lahore have decided to file a case of blasphemy and violation of the constitution against the Prime Minister. Their stand was that amputation had been ordained by the Quran and by the example of the Holy Prophet (Peace be upon him) and it is also a part of the constitution of the country by reason of its inclusion in the 8th Amendment: therefore Prime Minister's assertion that her government didn't like to cut limbs can be brought before the court of law. The Attorney-General of Pakistan while defending the Prime Minister referred to the decisions of the Federal Shariat Court and then Supreme Court's Appellate Shariat Bench declaring provisions of Pakistan Penal Code relating to offences to human body as un-Islamic and void because they did not provide for Deiat and Qisas for compounding the offence and giving right to the aggrieved party to pardon to the offender or to demand compensation or for right of "retaliation tooth for tooth and eye for eye". The Bill as it stands does not define Shariah. It simply says those laws which have been ascertained by the Holy Quran and Sunnah. "It further adds the interpretation of the laws will be according to four agreed principles" i.e. the Quran, Sunnah, Qiyas and Ijma. Apart from the natural question "Agreed by whom", the list makes the medieval principles of a particular fiqh binding on those who do not subscribe to it.

The Senate has non-representative character because of its indirect election and nomination. How can such a body impose a legislation which is controversial in nature. The great surprise is that the Senate which vehemently opposed the Shariat Bill and which is on record having done so, has now, without giving any reason for such a drastic change in the thinking voted for the passage of the Bill. Is it not intriguing why such a basic change has occurred. Members of the Senate are silent on this point. One would conclude that it is merely an attempt to subvert the democratic process in the country. The special parliamentary committee appointed to examine the Bill during Junejos' period found it unacceptable. It was then passed to the Upper House, under what section of the Constitution is unclear, which again consigned it to a Committee. A subcommittee was formed to contact and invite theologians of some reputation to lend their names to its deliberations but hardly anybody of importance seems to have obliged, leaving ample scope for handpicked people to fill in. From the dates on which the Committee met from March to July 1989 (13 times which only once under the original Chairman who dissented on the very rationale of the Bill with the found unnecessary, overlapping or contradictory to the Constitution). The Committee did not agree with him and replaced him by a co-author of the Bill.

The Bill as passed by the Senate is similar to the Shariat Ordinance promulgated by Zia in June, 1988, except that this Bill goes much further in eroding the basic structure of the political institutions in the country. What the Senate is proposing is the enactment of a law which would change the basic nature of the State, and would make the Constitution of Pakistan redundant. The provisions of this Bill undermine the sovereignty of the people of Pakistan as enshrined in the Constitution and transfers that sovereignty to a group of clergies acting through a judicial system not envisaged by the Constitution nor based on any national consensus.

The Preamble to the Shariat Bill shows the misconception under which its proposers and the Senate as a whole are labouring. The objective of the Bill as stated in the preamble is to "carry out the purposes of the Objective Resolution by ensuring the enforcement of Shariah". An earlier part of the Preamble also claims that the Objective Resolution confers "supremacy of Shariah" in Pakistan. A reading of the Objective Resoultion, which has now become a substantive part of the Constitution by virtue of the Restoration of the Constitution Order (Presidential Order 14 of 1985), reveals no such intentions by those who tabled and passed this Resolution in the Constituent Assembly in 1949.

The Resolution affirms that "sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust". The Resolution further lays down that the "State shall exercise its power and authority through the chosen representatives of the people." The Resolution neither proclaims the supremacy of Shariah, nor does it promise the enforcement of a system whereby the Constitution of the sovereign independent State of Pakistan would be rendered redundant by the proclamation that "Shariah shall be the supreme law of Pakistan and shall have effect notwithstanding anything contained in any other law, custom or usage (Article 3 of the Shariat Bill)."
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Title Annotation:Pakistan
Author:Haidari, Iqbal
Publication:Economic Review
Date:Jul 1, 1990
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