April issue 2014

The Council of Islamic Ideology (CII), in its recent meeting, declared Section 6 of the Family Laws Ordinance, binding a man to seek prior permission from his wife before remarrying, to be against Shariah and alongside, stated that it was completely acceptable by Islamic law to marry off a girl as soon as she entered puberty regardless of her age.

Taken as a direct assault on women, the recommendations have started a fierce debate about the extent to which women are treated with injustice and unfairness in a culture of religiously-sanctioned misogyny.

This has also raised the important question of whether the religious scholars are equipped to discuss and debate these issues in order to incorporate the demands of the modern age in un-codified injunctions, most of which deal with Fiqh, as opposed to Shariah.

The recommendations incited an uproar in the media and wider society, which has become a practice after almost every meeting of the Council. The CII has, over the years, been reduced to a vigilante body, always ready to assault whatever little freedom and relief women are sanctioned. This time the law under attack was Section 6 of the Muslim Family Laws Ordinance (MFLO) 1961, which was promulgated by the Ayub Khan government with the recommendations of a law commission, which consisted of experts as well as religious scholars belonging to various sects having predominant presence in Pakistan.

Another institution, the Federal Shariah Court (FSC), had declared in 2000 that Section 6 of the MFLO was in conformity with Shariah. The FSC, like the CII, is a constitutional body established in 1980 through a presidential order by former military dictator General Zia-ul-Haq. The irony was that a dictator, who suspended the Constitution, was giving constitutional backing to this institution. Even more ironical is the fact that the two constitutional bodies having overlapping jurisdiction, examined whether or not the law conformed to Islamic law, and came to different conclusions about the same law.

The CII has existed since 1962 as the Advisory Council of Islamic Ideology under the Constitution of Pakistan 1962 made and promulgated by the regime under military dictator Field Marshal Ayub Khan. It was later carried forward with expanded membership and functions by the 1973 Constitution of the Islamic Republic of Pakistan, which was drawn during Zulfikar Ali Bhutto’s reign.

Both, General Ayub Khan and Zulfikar Ali Bhutto have been accused of pandering to religious parties in their respective periods. Many political commentators still believe that it was possible for both to stand their ground while facing the religious right, but both capitulated and legitimised the religious parties through policies that amounted to appeasement.

Dr Farzana Bari, a leading women’s rights activist and leader of the Awami Workers Party, says that the Council had no business bringing these issues to debate and believes that the controversial recommendations have managed to become part of headline news, with clerics sitting in the Council taking over the political and social space. At a point when the religious right is already dominating the discourse over the issue of talks with the militants, the clergy needed little more to completely hijack the narrative.

As a result, the debate now is all about what religion sanctions in literal terms, rather than about how religion could be brought into conformity with the demands of modernity.

Dr Khalid Masood, a former Chair of the Council, described it as a continuing struggle between traditionalist religious thought and the reformists. The reformists, he says, were defeated a long time ago when politicians obliged the clergy by unnecessarily ceding them space in the political arena.

This was precisely the case when Ayub Khan agreed to establish the body in 1962 and later, when Bhutto succumbed to the same forces and continued it as part of the 1973 Constitution. A consequence of this wilful surrender was a steady and gradual increase in the dominance of the clergy and their capture of the state. The Council that draws its composition, functions and procedures in accordance with Articles 228 to 231 of the 1973 Constitution proudly claims the establishment of the FSC among its most significant victories.

As per the Constitution, the Council has to “advise” the parliament on whether a law is Islamic or not. In addition, the Council also has the authority to take suo moto decisions on certain questions of law and submit those to the parliament and legislative houses as its recommendations. The legislature has to consider the recommendations of the CII within six months. This has been a point of friction between the elected House and the un-elected, politically nominated Council. In a recent statement, the CII Chair Maulana Mohammad Khan Sherani complained that the CII’s recommendations were piling up in the Parliament which is least pushed to discuss them on the floor of the House.

Following the CII meeting and issuance of the controversial recommendations, Marvi Memon, a Member of the National Assembly from the ruling Pakistan Muslim League Nawaz (PML-N) submitted a bill calling for harsher punishments for violators of the restriction on child marriage. The move, which was taken as a direct attack on the CII recommendation, is being lauded by civil society and has received overwhelming support from women’s rights activists.

But, for obvious reasons, the move has not been received well by the Council whose Chair was quick to respond saying that the National Assembly should not have even discussed the issue given that the CII had already adjudged it to violate Islamic law.

This brings to the fore what Tahira Abdullah, a veteran women’s rights campaigner, calls the, “barbaric, cruel, misogynist and inhuman mindset” of the CII. Blasting the Council she said, “I reject his curiously-timed mischief-mongering.”

Irfan Mufti, another human-rights campaigner and peace activist, strongly called for the abolition of the CII for being an anti-women political body rather than a scholarly one. Dr Bari, Tahira Abdullah and scores of other activists have joined Mufti in this demand and are protesting in front of the CII secretariat and calling for its abolition.

Dr Fouzia Saeed, a women’s rights activist, scholar and author, is however of the opinion that the existing Council can be brought to its senses even if the government is not willing to abolish it. She believes that the Council should be forced to keep its scholarly credentials by bringing in academics, progressive scholars and jurisprudence experts who must have the capability to look at religion with a reformist’s eye rather than interpreting it literally.

Abdullah recalls that this is not the first time that the Council has come up with “ridiculous and offensive” recommendations. In the past, the CII has declared DNA testing for evidence in cases of rape as violations of Shariah.

Senator Farhatullah Babar also recalled another recommendation of the Council in 1978 to alter the national flag by incorporating the Kalima Tayyaba on it. Interestingly, that recommendation was later taken up by militants who chose to incorporate it into their flag.

In 2013, the CII suddenly picked up the Women’s Protection Act, which diluted some clauses of the controversial Hudood Ordinances, and declared it to be a violation of Shariah. It is important to note here that the Act came up after a detailed report by the Council in 2006, which called for changes in certain sections of the Hudood Ordinances to make them conform to the principles of justice and fairness enshrined in Islam.

The difference in the CII in 2013 compared to 2006 was the composition and selection of the Chair Dr Khalid Masood, the then Chair of CII is a respected Islamic scholar rather than an obscurantist political cleric like the current Chair. It is lamentable that political parties have not learnt from the past and still get bullied by religious political parties.

In 2009-10, the incumbent Pakistan People’s Party (PPP) appointed Sherani, a veteran of the Jamiat Ulema-e-Islam-Fazl  (JUI-F), as the CII Chair purely on political considerations. In 2013, the same was repeated by the ruling PML-N to woo the JUI-F, and Sherani was appointed for the second three-year term as the Chair.

It is pertinent to note that the mandatory position of a woman member has been vacant since the death of Fareeda Ahmad Siddiqi, who occupied the position in February 2013, although it’s questionable how much a solitary woman’s voice can influence the decisions of the Council that are largely viewed as being “misogynist.”

Under these circumstances, as Irfan Mufti puts it, the CII undermines the mandate of the elected parliament, and does not have a moral, ethical and legal justification for its existence. The government, as Tahira Abdullah says, must drop its cowardly stance, stand up against bigotry and abolish the CII

This article was originally published in Newsline’s April 2014 issue.