Islamization and Legal Reform in Pakistan, 1979-1989

Islamization and Legal Reform in Pakistan, 1979-1989Author(s): Charles H. KennedyReviewed work(s):Source: Pacific Affairs, Vol. 63, No. 1 (Spring, 1990), pp. 62-77Published by: Pacific Affairs, University of British ColumbiaStable URL: http://www.jstor.org/stable/2759814 .Accessed: 13/10/2012 03:23

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Islamization and Legal Reform in Pakistan, 1979-1989

Charles H. Kennedy*

INTRODUCTION

T HAS BEEN A DECADE since the late President Zia-ul-Haq promulgated his Islamic reforms (Nizam-i-Mustapha) in Pakistan. I contend that these

reforms have had only a minor impact upon the political, legal, social, and economic institutions of the state. This observation departs from conven- tional interpretations.' Admittedly, the politicization of the process of Islamization has played a very significant role in the political environment of Pakistan during the 1980s. During Zia's regime, the Islamic reforms had a very prominent public profile. Hardly a day passed in which one or more of the issues of the program were not the focus of political debate in Pakistan. Zia's government portrayed the reforms as leading Pakistan in the direction of becoming "truly Islamic, " and promised rapid and thorough implemen- tation of the reforms. Opponents of the reform also argued that the reforms were being implemented rapidly although they deemed aspects of the reforms as misguided, reactionary, antidemocratic, and/or discriminato- ry to women. I contend, however, that such rhetoric, despite its strident na- ture, was primarily "political noise," signifying little in regard to imple- mentation or public policy. This paper attempts to defend this hypothesis by first tracing in broad strokes the cautious implementation of Islamic legal reform in Pakistan during Zia's administration. Then, it will offer an explanation of the continued vitality of the Nizam-i-Mustapha, despite such "non-implementation," by exploring the interests of relevant institutional

* Most of the material for this paper was gathered under the auspices of the Fulbright-Hays Pro- gram (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 Institute of 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 for the 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 Dynamics of Islamic Resurgence in Pakistan," Asian Survey, vol. 19, no. 6 (June 1979), pp. 547-57; and Detlev V. Khalid, "The Phenomenon of Re-Islamization," Aussenpolitik, vol. 29, no. 4 (Winter 1978), pp. 433-53.

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actors. A final section will speculate on the future of Nizam-i-Mustapha in the context of Prime Minister Benazir Bhutto's current administration.

ISSUES OF IMPLEMENTATION

On paper, Zia's Nizam-i-Mustapha contemplated significant and ambitious reforms in Pakistan's institutions. The program contemplated modifications in Pakistan's economic system through the establishment of "Islamic banks," called for the abolition of bank interest (riba), introduced the mandatory collection of zakat (social welfare tax) against the bank hold- ings of Sunni Muslims,2 established a profit-loss sharing scheme in banks, introduced an Islamic land tax (ushr), and established various institutions to study Islamic economics. Nizam-i-Mustapha also mandated educational reforms by establishing new institutions (e.g. the International Islamic University, Shariah Training Institute, and various ulema training insti- tutes), by enhancing the importance of Arabic in the curricula, and by con- templating the wholesale redrafting of textbooks to incorporate an Islamic approach to pedagogy.3 Social reforms were also introduced by Nizam-i- Mustapha through stressing the sanctity of Ramazan, the encouragement of chadar (modest dress by Muslim women) and the enforcement of pre- existing bans on gambling and prohibition.

It is beyond the scope of this paper to detail the consequences of such reforms. Suffice it to observe at this point that such reforms were either: (a) a mere reinforcement and in some cases a tightening of policies or prac- tices already in place (e.g. cladar, gambling, prohibition); (b) cosmetic changes in existing policies or practices (e.g. profit-loss sharing scheme, zakat collection); (c) were left unimplemented or nonjusticiable (e.g. the ban on riba, textbook reform); or (d) if implemented, constituted relatively minor changes in existing policies or practices (e. g. educational reform, introduc- tion of Islamic banks).

The focus of this paper, rather, is legal reforms. There are several rea- sons for this approach. First, the demand for Islamic reassertion is, using Pipe's terminology, a demand for "legalism" and "autonomism. ' 4 That is, the Shariah is the sine qua non for the establishment of an Islamic state and

2 Zakat and Ushr Ordinance, 1980, PLD 1980 Central Statutes 97. In 1980, after demonstra- tions by Shias protesting the mandatory collection of zakat, the government amended the law to apply only to Sunni Muslims. See Zakat and Ushr (Amendment) Ordinance, 1980, PLD 1981 Cen- tral Statutes 58.

1 See for instance Mohammad Abdus Sami and Muslim Sajjad, Planning Curricula for the Natural Sciences: The Islamic Perspective (Islamabad: Institute of Policy Science, 1983). For a critical treatment of such policies see Pervez Amirali Hoodbhoy and Abdul Hameed Nayyar, "Rewriting the History of Pakistan, " in The Pakistan Experience: State and Religion, ed. Mohammad Asghar Khan (Lahore: Vanguard Press, 1984), pp. 164-785.

4 See Daniel Pipes, In the Path of God: Islam and Political Power (New York: Basic Books, 1983), pp. 64-69.

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one cannot enforce the Shariah in a state that is not Islamic. Second, of all the Islamic reforms contemplated in Pakistan, legal reforms have been the most visible and the most extensively implemented. Finally, there is ample data available and enough time has passed since their introduction to ade- quately study and assess the implementation of such reforms.

In turn, the paper will focus on three types of legal reforms: structural reforms (reforms of the existing legal institutions of the state); procedural reforms (reforms of the procedures pertaining to evidence); and criminal law reform.

Structural Reforms

Structural reforms in Pakistan's legal system are both complex and con- fusing. In 1978, "Shariat Appellate Benches" were grafted to Pakistan's four High Courts. Their jurisdiction included hearing appeals against hudood law convictions (see below) and they were granted original jurisdiction to hear "Shariat petitions." In 1980, such benches were disbanded and the "Federal Shariat Court" (FSC) was established. But its birth was occasioned by a long, painful, and disjointed labor. Between 1980 and 1985, provisions relating to the operation of the FSC were modified 28 times, through the mechanism of 12 separate presidential ordinances,5 and were incorporated into the constitution in 14 subsections covering 11 pages of text.6 When the dust settled, the FSC emerged as a body consisting of no more than eight judges, appointed by the president, and selected for the most part from judges of the high courts. The FSC 's jurisdiction included:

1. appellate jurisdiction in cases against conviction or acquittal fromdistrict courts in zina and qazf cases;

2. limited appellate jurisdiction in cases against conviction or acquittal from dis- trict courts in property and prohibition cases;

3. limited suo motujurisdiction to declare laws and practices un-Islamic and hence void;

4. original jurisdiction to hear "Shariat petitions"; 5. revisional jurisdiction in criminal cases bearing on the hudood laws decided by

any court including itself.

It is very important to note, however, that article 203B of the constitu- tion excludes from the FSC's jurisdiction the "Constitution, Muslim per- sonal law, any law relating to 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 of Justice and Parliamentary Affairs, Constitution of the Islamic Republic of Pakistan (Islamabad: Printing Corporation of Pakistan Press, 1985), sections 203A-203J.

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or . .. any fiscal law or any law relating to the levy and collection of taxes and fees or banking or insurance practice and procedure. "'

The decisions of the FSC are subject to appeal before the "Shariat Appellate Bench" of the supreme court. The latter bench consists of three regular supreme court justices and two ad hoc judges drawn either from the FSC or from among ulema.8

For the purposes of this paper four additional points concerning criminal law procedure in Pakistan must be stressed. First, original jurisdiction for most major crimes in Pakistan lies with the district courts. In particular, dis- trict courts possess original jurisdiction relevant to the enforcement of the zina, qazf, and property ordinances. District courts also have appellate juris- diction to hear appeals against the remaining hudood ordinance - prohi- bition. Second, district judges possess discretionary authority to try indi- vidual cases either under Shariah or civil law. For example, if a case of theft comes before a district judge he can either try this case under the terms of the property ordinance (Shariah) or under the relevant section of the Crimi- nal Procedure Code (civil). That is, district judges "wear two hats" (civil law and Shariah) and there are no separate Shariah Courts at the level of original jurisdiction. 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 jurisdiction to call for cases tried on the civil side from both the district courts and the high courts. Fourth, the supreme court is the final court of appeal for all criminal cases.

In practice there is considerable variation in the enforcement and inter- pretation of the hudood laws between district judges. Such variation is a function of the individual propensities of jurists.9 This variation is also a function of regionalism, as the hudood ordinances have been implemented much more enthusiastically in the Punjab and urban NWFP than in other regions of Pakistan. 10

Also important is the fact that the overwhelming majority of superior court judges in Pakistan are attorneys, professionally trained in the British civil law tradition. Indeed, legal credentials and/or experience are constitu- tionally mandated for selection to the Supreme Court and the High Courts,11 and the constitution specifies that a majority of the FSC bench must be drawn from the ranks of those qualified to serve on the high

7 Ibid., section 203B. 8 Ibid., section 203E(3). 9 An extreme case is provided by an NWFP sessions judge who advocated the eccentric judi-

cial doctrine that under Islamic law a defendant must prove his innocence, rather than the prosecu- tion his guilt. Subsequently, dozens of the latterjurist's decisions were overturned on appeal by the FSC on the grounds of misappreciation of evidence.

10 See Charles H. Kennedy, "Islamization in Pakistan: Implementation of the Hudood Ordinances," Asian Survey, vol. 28, no. 3 (March 1988), pp. 307-16.

11 Respectively, Constitution of the Islamic Republic of Pakistan, sections 177 and 193.

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court.12 In fact, 18 of the 23 (78 percent) individuals who have served on the FSC since its establishment (1980-89) have been former high court judges, and 20 of 23 (87 percent) have possessed western-style law degrees.13 Further, this cadre of former high court judges, trained in the British civil law tradition, has dominated the proceedings of the FSC. The most active jurists within the FSC and each of its chief justices (Salahud- din Ahmed, Aftab Hussain, and Gul Muhammad Khan) have been drawn from this cadre. Also, the overwhelming majority of decisions (particularly in full bench cases) have been written by such jurists.

Although there are exceptions, it is generally the case that those jurists trained in, and long-term practitioners of, the civil law tradition tend to be "Islamic moderates. " Such individuals' professional training, cultural and ideological orientations, experience, and personal predilections dispose them to this end. Therefore, most of the jurists entrusted with interpreting Islamic legal reforms have not been zealous advocates of such reforms. Obviously, this fact was not lost on President Zia who effectively controlled the appoint- ment ofjudges at all levels during his tenure. That is, it was the government's actual, if not official, policy to staff Shariah-related judicial institutions with individuals primarily conversant with, and oriented towards the British civil law tradition. This factor helps to explain the slow pace of Islamic legal reform in Pakistan.

Advocates of a more rapid and thorough implementation of the Islamic legal reforms have focused their efforts on extending the jurisdiction of the FSC. The 9th Amendment Bill introduced in 1986 calls for the deletion of article 203B of the constitution (quoted above).14 That is, it calls for the extension of FSC jurisdiction to include constitutional, Muslim personal, and fiscal laws. Similarly, the so-called "shariah bills" call for the Shariah to be made the supreme law of the land and for the FSC to be final arbiter of the interpretation of the Shariah.'5

Perhaps as a response to such views Zia dissolved the national assem- bly headed by Prime Minister Muhammad KhanJunejo on 29 May 1988. One of the reasons Zia gave for the dismissal of the government was the slow pace of Islamization, and the inability or unwillingness ofJunejo to work

12 Ibid., section 203B(3a). 1' The other three justices were selected from public service: Pir Muhammad Karam Shah

(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).

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for the passage of any shariah bill.16 Indeed, two weeks later on 15 June Zia promulgated his own shariah bill - the Enforcement of Shariah Ordinance, 1988. But Zia's ordinance fell far short of the expectations of advocates for the rapid implementation of Islamization. Section 4(3) of the ordinance amended section 203B of the constitution but assigned the juris- diction to "examine and decide the question whether or not any law relat- ing to Muslim personal law, any fiscal law, or any law relating to the levy of taxes and fees or banking or insurance practice and procedure or any pro- vision of such law is repugnant to the Shariah" with the High Courts!"7 From the perspective of those advocating rapid implementation of the Islamic program this was akin to placing a fox in charge of the chickens. Accordingly, Zia's ordinance won few converts. It was bitterly and equally opposed by those who viewed the passage of any shariah bill as retrogres- sive; and by those who viewed Zia's particular bill as aimed at stalling the Islamization process.

In any case, the ordinance never became law. Pakistan's constitution mandates that a presidential ordinance stands repealed if it is not passed by the national assembly within four months of its promulgation.18 Zia's untimely death in August effectively eliminated any significant political sup- port for the bill, although President Ghulam Ishaq Khan promulgated a "revised" Enforcement of Shariah Ordinance (identical to Zia's) on 15 October.19 The latter ordinance was presented to the newly-constituted National Assembly in December. The assembly allowed the ordinance to expire with no legal effect. Therefore, Zia's Shariah Ordinance, like its predecessors, the so-called 9th Amendment and the various shariah bills, remains confined in a politico-legislative coma; the patient remains alive but the prognosis is not good.

Procedural Reforms: The Qanoon-i-Shahadat

The most widely discussed and important aspect of procedural legal reforms concerns the law of evidence. It has been long contended by advo- cates of Islamic reform in Pakistan that the 1872 Law of Evidence, a legacy of British raj, was un-Islamic. Indeed on 2 January 1981, President Zia

16 It seems likely that the slow pace of Islamization was not the sole reason for the dismissal of the Junejo government. There is considerable speculation that the dismissal of Junejo was linked to the imminent investigation of the Ojheri incident (a major accident in an army munitions dump near Rawalpindi) by the National Assembly, potentially a 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 of the Islamic Republic of Pakistan, section 89(2). 19 Enforcement of Shariah (Revised) Ordinance, 1988 (Ordinance XXI of 1988), October 15,

1988, PLD 1989 Central Statutes 18.

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stated: "In my opinion what is of fundamental importance is that the Law of Evidence should be strictly in accordance with the Quran and Sunnah. ''20

Encouraged by the foregoing, and directed by the president, the recon- stituted Council of Islamic Ideology took on the task of examining the 1872 Law of Evidence. In 1982, it submitted the fruits of this exercise to the presi- dent. As drafted by the council the proposed law of evidence made very sig- nificant departures from the 1872 act. Indeed, it made so many departures that the chairman of the council, Tanzil-ur-Rehman, decided that it would be easier to write an entirely new law rather than attempt to amend the old one.2" Among other things, the resultant draft ordinance contained a detailed chapter on Nisab-i-Shahadat (quantum of evidence) which both incorporated the evidentiary requirements of the hudood ordinances,22 and established distinctions between the testimony of men and women. In most instances a woman's testimony was equated to one-half of a man's testi- mony.23 The draft ordinance also made significant departures from the 1872 act in regard to provisions for oaths, purgation of witnesses, conditions of evidence, and punishments for the retraction of evidence.24 But the pro- visions dealing with distinctions between the value of men's and women's testimony drew most of the public's attention. Indeed, the Women's Action Forum (WAF) and other women's associations bitterly protested the pro- posed ordinance by organizing well-attended and much publicized demon- strations in Lahore and Karachi.25

Zia's administration was caught in a dilemma. It was committed to producing a distinctively Islamic law of evidence which would challenge the vestiges of colonial rule. But at the same time a large, vocal, and well- organized group was contending that the proposed ordinance was unjust and un-Islamic. The expedient adopted by the government was both ingenious and reminiscent of my central hypothesis. Namely, the govern- ment adopted a new law of evidence which was almost identical to the old law of evidence but portrayed it as constituting a profound break with the

20 Council of Islamic Ideology, Draft Ordinance, Islamic Law of Evidence, 1982 (Islamabad: Print- 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, Ninth Report of the Pakistan Law Commission on Reference Receivedfrom the Federal Government About the Proposed Ordinance Relating to Qunun-e-Shahadat (Rawalpindi: unpublished, 1984).

23 The evidence of a single female witness "shall be admissable in cases relating to birth, vir- ginity, and such other matters concerning women as are not usually seen by men. " Council of Islamic Ideology, Draft Ordinance, chapter 7.

24 Ibid., chapters 5, 6, 8, and 12. 25 For a detailed treatment of the organization of the WAF and its opposition to the Draft Law

of Evidence and other Islamic laws see Khawar Mumtaz and Farida Shaheed, ed., Women of Pakistan: Two Steps Forward. One Step Back? (London: Zed Books, 1987), pp. 123-42; 183-89.

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past. Accordingly, on 28 Ocrober 1984, Zia announced the passage of the 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 Qanoon-i-Shahadat indicates that it departed from the 1872 act in only one substantive detail. Section 17 of the new law provides that:

1. in matters pertaining to financial or future obligations, if reduced to writing, the instrument shall be attested by two men, or one man and two women, so that one may remind the other, if necessary, and evidence shall be led accord- ingly; and

2. in all other matters, the Court may accept, or act on the testimony of one man or one woman or such other evidence as the circumstances of the case warrant.

This clause was substituted for section 134 of the 1872 act which had stated: "No particular number of witnesses shall in any case be required for proof of any fact. " In no other substantive matter was the Qanoon-i-Shahadat of 1984 different from the 1872 Law of Evidence.27

In practice section 17 of the 1984 act has not had a significant impact on legal practice or interpretation. As of December 1989, no case had been brought to any superior court in Pakistan which hinged on the interpreta- tion of the substantive amended provision of this ordinance. And, given the nature of procedures relevant to financial transactions in Pakistan none are likely to emerge in the near future. In practice, virtually every financial trans- action in Pakistan by custom or rule requires the countersignature of several individuals. Indeed, bank rules specifically sanction the requirement of witnessed signatures, and court procedures relevant to property transfers, loans, contracts, and so forth make similar provisions. Therefore, the much heralded and contested Islamic Qanoon-i-Shahadat is in substance merely a reaffirmation of the 1872 Law of Evidence. Alternatively, the 1872 Law of Evidence has been defined by Nizam-i-Mustapha to be Islamic.

26 The Qanoon-i-Shahadat Order, 1984 (October, 1984). 27 Based on a clause-by-clause comparison of the two acts. For the most part, the Qanoon-i-

Shahadat of 1984 is a verbatim copy of the Evidence Act of 1872 (I of 1872) in every particular including "illustrations" and "explanations." One exception is section 71 of the Qanoon-i-Shahadat which introduces the Islamic concept of shahada ul al-shahada. This allows a potential witness to depute two substitute witnesses to give oral testimony in the former's absence from court. This reform was sug- gested by the Council of Islamic Ideology, Draft Ordinance, chapter 10. The Qanoon-i-Shahadat also incorporated the changes made by the Law of Evidence (Amendment) Act, 1981 (XXVI of 1981). The latter amendment updated the Evidence Act of 1872 by deleting references to the British govern- ments, acts of Parliament and so forth. Also, section 163 of the Qanoon-i-Shahadat, 1984 exempts the hudood ordinances from the procedures of the new law of evidence.

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Criminal Law Reform

On 10 February 1979, President Zia promulgated four ordinances, col- lectively referred to as the "hudood ordinances. "28 which called for revi- sions in Pakistan's criminal law system. The Zina Ordinance established criminal penalties for sex-related crimes (adultery, rape, kidnapping, enticement, attempted rape, sodomy, prostitution, conspiracy to engage in prostitution, and deceitful marriage). The Qazf Ordinance established criminal penalties for the wrongful imputation of zina. The Prohibition Ordinance established criminal penalties for the possession of alcohol and prohibited drugs. And the Property Ordinance established penalties for theft.

In keeping with the Islamic tenor of the ordinances, distinctions were drawn between hadd (plural hudood - crimes with expressly sanctioned evidentiary requirements and specified penalties) and tazir (discretionary evidentiary requirements and penalties) crimes. For instance, the hadd crime of zina specifies that four adult, sane males, free from major sin, witness the actual act of penetration. The specified penalty for such a crime so witnessed is stoning to death. Any other crime that falls short of such standards of evi- dence is tried under tazir with penalties including a combination of imprison- ment, monetary fines, and/or whipping.29

As I have reported in detail elsewhere,30 the implementation of the /udood ordinances has had only a marginal impact on Pakistan's criminal law system. No hadd penalties have been meted out in the state, and only two hadd convictions have ever been upheld by the FSC. Both were later overturned by the supreme court.3"

Further, it is important to note that the introduction of the hudood ordinances, with the exception of the hadd crimes and penalties, did not create any new "crimes" that were not already on the books. The pre- existent Pakistan Penal Code already specified that each tazir crime, as speci- fied in the hudood ordinances, was unlawful. Also, the tazir penalties specified

28 The Offences Against Property (Enforcement of Hudood) Ordinance, 1979, PLD 1979 Cen- tral Statutes 44; The Offence of Zina (Enforcement of Hudood) Ordinance, 1979 PLD 1979 Cen- tral 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 of a clock from a mosque in Okara. See The State vs. Ghulam Ali

153/I (1981); Ghulam Ali vs. The State PLD 1982 FSC 259; and Ghulam Ali vs. the State PLD 1986 SC 741. The second involved the theft of electronic equipment from a private residence in Lahore. See Zahid Iqbal vs. The State 163/I (1982). The Supreme Court reversed the latter decision in spring 1987, although the case had not been reported in relevant law journals at the time of this writing.

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in the hudood ordinances are similar to the penalties specified in the Pakistan Penal Code.32

There has been considerable sentiment for extending Islamic criminal penalties to include crimes of bodily hurt (murder, manslaughter, attempted murder, and assault). But so far, despite a FSC decision which declared qisas (punishment by similar hurt) Islamic,33 and several reports by the Coun- cil of Islamic Ideology which propose qisas and doyat (compensation for injury) legislation,34 no such legislation has become law.

In sum, therefore, Islamic legal reforms - structural, procedural, and criminal - have had only a minor impact on the corpus of Pakistan's legal system. Structural reforms have been confined to the creation of a new court, the FSC. The latter institution's functions, ethos, and procedures are in con- sonance with pre-existing legal structures. Procedural reforms have included the introduction of a new law of evidence, the Qanoon-i-Shahadat, but it differs from the 1872 Law of Evidence in only one arguably insignificant detail. Finally, in respect to criminal law, four new ordinances have been introduced, but they specify few changes in Pakistan's pre-existing crimi- nal law statutes. Their implementation has also been cautious, and no hadd penalties have been imposed.

So, one may well ask, if the Islamic reforms have had little impact upon Pakistan's institutions why were issues relevant to their promulgation so much discussed in the political environment of Pakistan during Zia's administration? To address this question requires a consideration of the role of Islamic reform in the policy-making process of the state.

NIZAM-I-MUSTAPHA AND RELEVANT ACTORS IN THE POLICY PROCESS

So far the analysis has demonstrated that Zia moved slowly to imple- ment his Nizam-i-Mustapha (Islamic Reforms). However, such "caution" is belied by the vibrant level of political rhetoric that was generated by the program in Pakistan. This section attempts to explain this seeming anomaly by looking at the motives and interests of the relevant actors concerned with the implementation or nonimplementation of Islamic reform in Pakistan. Four groups are singled out for consideration. First, and most obvious, is President Zia-ul-Haq and his political advisors. Zia introduced Nizam-i- Mustapha, and his administration publicized the policy with fairly consis- tent vigor throughout his tenure. A second important 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, Draft Ordinance Relating to the Law of Qisas and Diyat, June 1981 (Islamabad: Printing Corporation of Pakistan Press, 1981).

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judicial and civil administrative officials who were involved in the adminis- tration of the program. The content and scope of the Nizam-i-Mustapha, like any other policy in Pakistan, has been shaped by the actions of the bureaucrats entrusted with its implementation. A third important set of actors were Zia's political opponents, the would-be future decision makers of Pakistan and their ideological cohorts. Finally, I will examine the motives and interests of a fourth group of actors, the "Islam-pasand" (literally, those who love Islam), the advocates for more extensive implementation of Nizam-i-Mustapha.

Zia and His Administration

It must be observed that President Zia, like his predecessors who have governed Pakistan, faced the imperative of what can be termed "Pakistan's Islamic mandate. "I' Pakistan came into existence due to the demands of Muslim nationalists for the creation of Islamic state; and the overwhelm- ing majority of Pakistan's population are Muslims. Pakistan's decision mak- ers differ as to what this means or should mean for politics and policy, but clearly all must heed the importance of Islam. By definition "Islamic poli- tics" are majority-based politics, and each of Pakistan's heads of govern- ment has been cognizant of this fact. For instance, Prime Minister Zulfikar Ali Bhutto, arguably Pakistan's most" secular-minded" leader, termed his economic reforms "Islamic socialism" and the credo of the Pakistan People's Party was "Islam is our ideology, socialism our economy, and democracy our politics. "

Facing the reality of the Islamic mandate, President Zia employed Is- lam as a method to legitimize his government, popular legitimacy being a problem which chronically bedeviled Zia's administration. Zia came to power as the consequence of a military coup which displaced a self-styled populist. In this context Nizam-i-Mustapha can be viewed as a policy designed in part to provide an Islamic justification for the continuation of a military-dominated regime.

Nizam-i-Mustapha also carries important international implications. Pakistan benefits greatly from its connection with the oil-rich Gulf states, particularly Saudi Arabia. The Gulf states employ around one million Pakistani workers, and the remittances they send back home account for around 40 percent of all export earnings in Pakistan.36 Also, under Zia's administration Pakistan became an important member of the Islamic ummah (Islamic community) and played a major role in the Organization

35 See Craig Baxter, Yogendra Malik, Charles Kennedy, and Robert Oberst, Government and Po- litics in South Asia (Boulder: Westview Press, 1987), p. 172.

36 See Government of Pakistan, Manpower Division, A Report on Pakistanis Working or Studying in Overseas Countries (Islamabad: Manpower Division, 1984).

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of Islamic Conferences (OIC). And, largely conditioned by the Nizam-i- Mustapha, Pakistan has emerged as one of the most important centers of intellectual activity pertaining to Islam in the world.

Also, one should not lose sight of the fact that President Zia was a consummate political strategist and consciously adopted policies which moved cautiously in Islamic matters. This can be demonstrated in several ways: the step-by-step creation of the FSC through presidential ordinances; his appointment of mainstream jurists to staff the court; and his cautious approach to legal reforms, for example, the Qanoon-i-Shahadat, the Enforcement of Shariah Ordinance, and qisas and dcyat legislation. Zia's con- cerns throughout were to maintain stability in the state, and to curb the more zealous advocates of Islamic reform. In practice, Zia's interests conduced to a cohesive strategy to approach Nizam-i-Mustapha. He consistently stressed his administration's commitment to the Nizam-i-Mustapha by engaging in calculated political hyperbole concerning his administration's accomplishments and initiatives. Simultaneously he quietly orchestrated and/or manipulated the political process to ensure that Islamic reform took place in an ordered and prudential manner. In sum, Zia's strategy paid lip service to the Islamic mandate, and helped to legitimize his government and to cement ties with the Islamic world. Further, it did not challenge the vested interests of Pakistan's bureaucratic and military elites.

Jurists and Bureaucrats

Of course, jurists and bureaucrats were central to the implementation of Nizam-i-Mustapha. For our purposes, three characteristics of such groups dovetail with Zia's policy approach. First, both jurists and civil adminis- trators in Pakistan are imbued with a strong sense of loyalty to the regime. Jurists and bureaucrats perceive themselves as "politically neutral" servants of the state. This orientation, perhaps under challenge since the adminis- trative reforms of the early 1970s, nevertheless remains important in Pakistan.37 Second, jurists and bureaucrats are vitally concerned with maintaining stability and order in the state. Third, jurists and bureaucrats share common social characteristics. Both groups perceive themselves as members of a "service class," which has its roots in the middle and upper socio-economic strata of Pakistan. Both groups are also highly Westernized, educated in English and, in terms of ideological disposition towards Islam, overwhelmingly composed of "Islamic moderates. "

When combined, these characteristics resulted in policies congenial to those which were pursued by President Zia. Jurists and bureaucrats are predisposed to resist change. In particular, jurists have been loathe to write

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

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decisions in a way that might lead to what they would refer to as "judicial chaos." Further, both groups take a jaundiced view of the importance of Islamic reforms. One finds little enthusiastic support for the Nizam-i- Mustapha among either jurists or civil bureaucrats. Finally, both groups remained politically loyal to President Zia, and were predisposed to fol- low his lead, particularly as long as his approach to Nizam-i-Mustapha remained cautious.

Secular Political Opponents

In the context of Islamic policy making, President Zia had two types of political opponents - those who argued that Zia's Nizam-i-Mustapha went too far and those who argued that it did not go far enough. This sec- tion looks at the interests of the former; the next at the latter.

Secular opponents of Nizam-i-Mustapha and of President Zia, attacked the policy from several directions. Among the more prominent arguments were: (a) The human rights argument. The punishments specified in the hudood ordinances (stoning to death, amputation, whipping) constitute cruel and unusual punishments, and border on barbarism. (b) The reactionary argument. Nizam-i-Mustapha is characterized as an attempt to set Pakistan back four- teen hundred years to the time of the Rightly-Guided Caliphs. (c) The undemocratic argument. Zia's Islamization program was designed to lend sup- port to an unpopular military regime. His policies had the effect of banning political parties and silencing political opposition. (d) The anti-minority argument. The Nizam-i-Mustapha discriminates against non-Muslims, particularly the Ahmadiyya,38 and Christians. A corollary of this argu- ment is that Nizam-i-Mustapha is dominated by the Sunni Hanafifiqh, that is, it is anti-Shia. (e) The misogyny argument. Nizam-i-Mustapha dis- criminates against the rights of women. And (f) the anti-rational argument. Nizam-i-Mustapha is opposed to modernity and Westernization; and it is obscurantist.

In practice, secular opponents of Nizam-i-Mustapha usually combined these arguments. For instance, a typical attack by Benazir Bhutto against the hudood ordinances was reported by the Muslim on 12 February 1988. In the three paragraph article she charged that the hodood ordinances are anti- democratic, reactionary, barbaric, anti-female, and prop up an "illegal regime."' 9 There was a certain amount of intentional hyperbole in such attacks against the Nizam-i-Mustapha. For instance, in this piece Benazir goes on to charge that "the Zia-Junejo regime is involved in making ston- ing to death and public hangings a spectator sport. "

38 For details see Charles H. Kennedy, "Towards the Definition of a Muslim in an Islamic State: The Case of the Ahmadiyya in Pakistan, " in Religious and Ethnic Minority Politics in South Asia, 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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The nature of Pakistan's news media encourages such overstatements - accuracy of reporting never having been one of the hallmarks of the jour- nalistic profession in Pakistan. Compounding this difficulty, many of the issues relevant to the implementation of Nizam-i-Mustapha are technical and difficult to discuss adequately in the mass-based media. Also, the government did not choose to contest overstatements in the news media. There was little, if any, prior censorship of statements bearing on the Islamization program, and more remarkably very few rejoinders were ever issued by the government against biased or false news reporting. Perhaps the government perceived its interests well served by a loud and aggressive, if inaccurate, media. After all, such evidence of dissent "proved" that the government was enthusiastically implementing Nizam-i-Mustapha. Para- doxically, if the government refuted such charges it would leave itself open to countercharges that it was not implementing its professed policies.

Not surprisingly, the Western press, eager to see evidence of reaction- ary "fundamentalist Islam, " repeated such inaccuracies. Numerous arti- cles appeared in various newspapers including the Guardian and the New York Times which stressed the extreme nature of Zia's reforms. Such distortions also found their way into academic analyses of the Islamic reform.40

The Islam -pasand

There was also considerable, if less vocal, opposition to Zia's Nizam-i- Mustapha on the grounds that it did not go far enough. Given the slow pace of change that has been chronicled here, such sentiments seem warranted. However, those groups that would have liked to see more thorough imple- mentation were caught in a dilemma. First, they constituted a small minority in the institutions which administered the Nizam-i-Mustapha. The courts and the bureaucracy are dominated by Islamic moderates. Second, there was and remains a widespread belief in Pakistan that the Nizam-i-Mustapha was being implemented enthusiastically. Accordingly, the Islam-pasand's views were often dismissed as extremist. Third, the Islam-pasand consti- tute a very small minority of Pakistan's overall population. Finally, given the opposition to the Nizam-i-Mustapha voiced by Zia's political opponents, the advocates of Islamic reform were given little choice but to tacitly sup- port the policies of the government.

The views of the Islam-pasand were well summarized in an interview I had with a member of the Council of Islamic Ideology in 1987. The subject of the interview had been instrumental in formulating the council's draft law of evidence. When I asked him his views regarding the Qanoon-i-Shahadat

40 E.g. Anita Weiss, "Implications of the Islamization Program for Women, " in Islamic Reas- sertion in Pakistan: The Application of Islamic Laws in a Modern State, ed. Anita Weiss (Syracuse: Syra- cuse University Press, 1986), pp. 97-113.

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of 1984 he shrugged and said, "I will not see the Shariah implemented in my lifetime. My children will not see the Shariah implemented in their life- times. But my children's children might see the Shariah implemented in their lifetimes if we [the Council] do the right things now. Our job is to recommend what should be done not what will be done. '41

BENAZIR BHUTTO AND ISLAMIC REFORMS

Benazir Bhutto campaigned strenuously against Zia's Nizam-i- Mustapha both before and after Zia's death. Benazir particularly objected to what she perceived as the "anti-female" bias in the Islamization program, and this theme became a major issue of the PPP campaign in 1988. As indicated above, Zia's policies were an easy target. Benazir stressed the reac- tionary nature of Zia's policies and, whether intentionally or not, exagger- ated the speed and scope of their implementation. Zia's government did little to counter such charges. Zia was trapped in a dilemma of his own making. If he argued that the pace of reforms was prudent, he would leave his admin- istration open to the countercharge from the opposition that Nizam-i- Mustapha was merely a sham. Accordingly, he adopted a policy of restraint, and instructed relevant institutions not to enter into public debate with the opposition on matters pertaining to the Islamic reforms. This gave Benazir and the PPP free rein and she exploited her advantage with great skill. Indeed, the issue of Islamic reform and particularly the issue of the status of women in Islam became one of the most visible issues of the 1988 National Assembly campaign; and her successful management of the issue can be partly credited with providing her with the margin of victory in the election.42

Subsequent to the election, however, the issue of Islamic reform has faded from center stage. This development is consistent with my central hypothesis. Namely, once Benazir came to power the focus of her interest shifted from gaining political advantage vis-a'-vis the government in regard to the reforms to dealing with the complexities of implementing the reforms (i.e., from gaining to exercising power). Accordingly, Benazir's government has done little to hinder the operation of the Nizam-i-Mustapha as imple- mented by Zia. Her administration has not dismantled the Federal Shariat Court nor the Shariat Appellate Bench of the Supreme Court. Neither has it rescinded the hudood ordinance, nor challenged the implementation of the Ramazan Ordinance, nor curbed the activities of the Council of Islamic Ideology.

41 Personal interview, March 1987. 42 The PPP derived its plurality over the IJI through electoral success among women, the illiter-

ate, and Sindhi voters. Each of these groups was highly critical of Zia's Islamic reforms. See Gallup Pakistan, Pakistan at the Polls: Gallup Political Weather Report, November, 1988 (Islamabad: Gallup Pakistan, 1988), pp. 21-34.

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One could rightly counter, I think, that Benazir's administration is con- strained from dismantling Zia's Islamic reforms due to its narrow electorial mandate.43 It has also been thwarted procedurally by the operation of the 8th Amendment to the Constitution which made Zia's actions during Mar- tial Law (1977-85) nonjusticiable.44 Notwithstanding these observations, Benazir has consciously pulled her punches regarding Islamic reform since her assumption of power. One of her first acts as prime minister was to per- form umrah, and upon her return she upheld the governmental ban on Salman Rushdie's Satanic Verses, publically condemning the book following the Islamabad disturbances in January 1989.45

Perhaps she has been well-advised to moderate her opposition to Nizam-i-Mustapha for if the thesis of this paper is correct Zia's reforms have had only a minor impact on political, legal, social and economic institutions of the state. Moreover, directly challenging the reform would entail con- siderable political costs to her administration. It seems most likely, there- fore, that Benazir will not dismantle Nizam-i-Mustapha in the near future. Rather, her administration will continue to incrementally emasculate through bureaucratic neglect the already anemic program that she inherited from her predecessor.

43 The PPP won only 39 percent of the popular vote in the 1988 National Assembly election. It formed a coalition government with the MQM and independent MNAs. In the Provincial Assem- bly elections the PPP was able to win a majority only in the Sind. See Pakistan at the Polls, pp. 13-14.

44 A two-thirds majority of both houses is required to amend Pakistan's constitution. See Con- stitution of the Islamic Republic of Pakistan, section 238.

45 Pakistan Profile (10 March 1989), p. 16.

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