107

“Sigh of the Oppressed”? “Islamisation” of Laws in under Muttahida Majlis-e-Amal: The Case of the North West Frontier Province Shaheen Sardar Ali*

1 INTRODUCTION

This article seeks to analyse legislative moves1 towards “Islamising” laws in the North West Frontier Province (NWFP) of Pakistan by a government of the six party religious alliance known as Muttahida Majlis-e-Amal (MMA)2 elected in October 2002. The “Islamising” project purports to seek inspiration from the Qur’anic injunction of “Amr bil marouf wa nahi anil munkar”,3 translated as “promotion of virtue and prevention of vice”. Thus far, the NWFP Provincial Assembly has adopted the NWFP Shariah Act 20034 with at least three further draft statutes in the pipeline including the NWFP Hisba Bill 2003, the NWFP

* Professor of Law, University of Warwick, UK and Professor II, Dept. of Public Law, University of Oslo, Norway. Formerly Professor of Law, University of , Pakistan. 1 Tearing down billboards with female figures and neon signs on shops by activists of the MMA, prohibition on music in public transport, set the tone for “Islamising” society soon after formation of the MMA government in the NWFP. Government circulars, outlining timings for prayer breaks were issued and government functionaries now have as part of their official duties, responsibility to supervise and monitor persons under their charge, ensuring that they offer prayers during these breaks. Discussion in the present article, however, is confined to legislative initiatives of the MMA in “Islamisation” of laws. 2 The MMA consists of six religious political parties, mainly the Jamaat-i-Islami (JI), Jamiat-i- Ulema-i-Pakistan , Fazl-ur-Rehman Group (JUI-F), Jamiat-i-Ulema-i-Pakistan , Sami-ul-Haq Group (JUI-S), Jamiat-i-Ulema-i-Pakistan (JUP), Tehreek-i-Islami (TI), Jamiat-e-Ahl-i-Hadith. 3 A number of Qur’anic verses enjoin this obligation. Verse 3:104 of the Qur’an states thus: Let there be among you a community who enjoin good and forbid evil; it is they that shall be successful; verse 3:110 provides: You are the best community that has ever been brought forth for mankind: you enjoin good and forbid evil, and you believe in God; Verse 9:112 says: Those who repent, those who worship, those who praise, those who persevere, those who bow down, those who prostrate, and those who enjoin good and forbid evil. 4 NWFP Act II of 2003. No. PA/NWFP/Legis-I/2003/17225. Adopted by the NWFP provincial Assembly on 2 June 2003 and received the assent of the Governor NWFP on 12 June 2003. Published in the Gazette of the NWFP, Extraordinary, Part III, 19 June 2003. 108 Articles

Prohibition of Talaq-e-Mughaliza Bill 2003 and the NWFP Protection of Women’s Property Ownership Bill 2003. The MMA agenda also includes setting up an all-women University,5 and an all women Medical College,6 for which the legal requirements are in place and a start has been made in temporary premises. In light of these developments, the central question that this article seeks to address is the following: Is the current drive towards “Islamisation” of laws in the NWFP simply a repeat strategy of what successive governments in Pakistan have employed when confronted with “difficult” political situations and to seek credibility? Or, is it indicative of a serious change in ethos and mode of governance in that province and eventually in the country? At a theoretical level, the article attempts to assess the legal framework in Pakistan, raising the question whether this framework is (to use Santos’ terminology), one of duality of power bases and conflicting universes where various sets of norms acknowledge each other, taking account of one another but on their own terms and in their own ideological ethos? In the intensive and extensive interface of religion and politics, do both appear “systemically closed but cognitively open”7 in evolving the contours of an explicitly “Islamic” state and “Muslim” Pakistanis?8 In other words, how do these dual power bases impact on and influence the Pakistani state structure and is there any scope for reconstructive measures that government may develop to address this duality?

5 The Women University is located on the premises of the Government Frontier College for Women, Peshawar. 6 An existing government building in a suburb of Peshawar (Hayatabad) was declared the Women Campus of the , Peshawar and classes have commenced from 11 April 2005. It is interesting to note that only three female students of the Khyber Medical College opted to transfer to the all-women medical college and 37 female students from , Abbottabad, , Swat, , Dera Ismail Khan and Fatima Jinnah Medical College, Lahore. 7 K Balz, “Sharia” and Qanun in Egyptian Law: A Systems Theory Approach to Legal Pluralism”, (1995) 2 Yearbook of Islamic and Middle Eastern Law 37. 8 These moves stand in stark contrast to countries like France where a secular state is aspiring to cut away any public semblance of religion by banning religious symbols including headscarf, crucifix, Jewish skull cap and the Sikh turban. 9 A considerable body of literature has emerged on the partition of the Indian subcontinent over the decades. Some of these include: A. Jalal, The Sole Spokesman: Jinnah, The Muslim League and the Demand for Pakistan (1992) Lahore: Sang-e-Meel Publishers; K. Ali, A New History of India and Pakistan (1992) Karachi: Pakistan Book Centre; K. Aziz, The Making of Pakistan: A Study in Nationalism (1989) Lahore: Islamic Book Service; K B Sayeed, Pakistan: The Formative Phase (1960) Karachi: Pakistan Publishing House; S. S. Ali & J Rehman, Indigenous Peoples and Ethnic Minorities of Pakistan. Constitutional and Legal Perspectives (2001) Richmond: Curzon Press.