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Is Article 227 really necessary?

If Taliban were to take over power in Pakistan (which is what their struggle is all about), what would they do to the constitution of Pakistan? A short answer to this unfortunate scenario is that they will retain Article 227 and discard the rest of the constitution. This single article of the constitution would be sufficient for them to run the country. Their interpretation of this Article would be, “All laws to be brought in conformity with the injunctions of Islam – as perceived by the Taliban”. They could thus use this Article to make laws to kill a barber if he indulges in a haircut, bomb a school if attended by a female, gouging of eyes for those who watch television, lashes for wearing shorts, cutting of hands for theft and slaughtering those who differ with their brand of religion – all in the name of Islam. Thanks to the ‘omnipotent’ Article 227, all this would be well within the ambit of law and constitution. Taliban could not have conceived a better, simpler and more accurate one-liner constitution.

From type of governance to the nature of personal laws, nations, groups and individuals differ widely on what they consider to be in conformity with the injunctions of Islam. The constitution of Saudi Arabia, (for some a role model Islamic state) calls for a monarchy based system of government. It further requires that the monarchy be passed on to the sons of the founding King, Abd al-Aziz Bin Abd al-Rahman al-Faysal Al Sa’ud, and to their children’s children. Many scholars do not consider this to be a recommended Islamic practice. Yet others will not agree with the constitution of Iran, another great Islamic country that declares (in Article 12) Islam and the Twelver Ja’fari school to be the official religion, and this principle to remain eternally immutable. Muslim Bangladesh on becoming an independent country in 1971 initially chose a secular constitution, and more recently has banned all religion-based parties from politicking on religious grounds.

Instead of providing any benefits, Pakistan’s experience of Article 227 has only added to the strife and polarisation of its citizens and society. It has been used as a carrot by both civil and military rulers to gain appeasement of religious groups to maintain their hold over power. In a fit of religious fervour, ours became the only Parliament in the world to acquire the divine right to declare citizens as Muslims or otherwise. We must now constantly look up to our Parliament (often a gathering of people renowned for their questionable integrity) to decide which one of us is next to be removed from the ‘pail’ of Islam.

General Zia’s Zakat Ordinance deserves a special mention as it is a classic example of how not to indulge in religious law making. The 1980 Zakat Ordinance was strongly resented by members of Fiqh-e-Jafria, who felt it was not in accordance with their beliefs. Forced to concede, but also not wishing to loose its face in public, the government responded in a grossly unethical manner. On one hand the 1980 Zakat ordinance was amended to include a provision that enabled all recognised Fiqhs to seek exemption from compulsory deduction of Zakat. On the other hand confidential administrative instructions were issued and it was so manoeuvred surreptitiously that the declarations filed by Shia Muslims were accepted, while similar declarations filed by Hanafi Muslims were rejected. (Para 11 of PLD 1991 Karachi 335, Sindh High Court ). There was hardly an individual who did not wish to seek exemption from compulsory Zakat deduction. Between 1980 and 1999 (when the Supreme Court upheld the Sindh High Court decision), millions of Muslims kept on providing fake affidavits of belonging to Fiqh-e-Jafria or simply withdrawing their money a day before the deduction date.

Unfortunately the cumbersome bureaucratic practices of the Zakat ordinance continue to hassle and inconvenience ordinary citizens who must fill CZ50 Zakat affidavit and have it signed by a notary public and two witnesses. No one ever questions the science by which a witness verifies the Fiqh of a person. Today, one must prove one’s faith by real or fake affidavits, in order to prevent the government from making financial deductions in the name of religion. Zakat, like prayers, is a personal obligation. Turning it into a public law makes it come in direct conflict with Article 20 of the constitution that provides every citizen the right to practice his religion. It also violates Article 8 of the constitution that declares any law to be void if its is inconsistent with fundamental rights.

Why did Pakistan need to include Article 227 in its constitution? Have the actions taken under the umbrella of Article 227 made Pakistan a better or a worse society? How well have we performed on matters of human rights, equality of citizens, security of individuals, violence against women or dignity of people? Are all these guarantees not already provided for by the existing Articles 8 to 28 of the constitution. How come scores of nations with no 227 like articles in their constitutions, done far better than Pakistan on all counts of human rights, equality and justice. Pakistan on the other hand has fallen prey to deep societal divisions and become vulnerable to the forces of extremism. In its effort to compete on the market share of ideology, Pakistan has to constantly (and unnecessarily) keep pace with the unmatchable standards of the clerics of “Lal Masjid”, the Fazlullahs of Imam Dehri and the Baitullas of Waziristan. Is it not time for the state to formally and firmly give up provisions that empower it to legislate (almost always wrongly and discriminatingly) matters that are exclusive between an individual and the Lord. The ordinary people of Pakistan will continue to be just as good Muslims as they have always been. Do they really need to be further divided or exploited by invoking Article 227 ?

Naeem Sadiq

The News on Jan 2010