Sharia, Actually

Blake Hounshell notes Maulana Fazlur Rehman’s belief in the healing power of Sharia:

Meanwhile courts throughout the Malakand division, of which Swat and Buner are a part, have closed in deference to the new agreement calling for the implementation Shari’a, law. “If the Taliban continue to move at this pace they will soon be knocking at the doors of Islamabad,” Maulana Fazlur Rehman, head of one of the country’s Islamic political parties, warned in Parliament Wednesday. Rehman said the Margalla Hills, a small mountain range north of the capital that separates it from Buner, appears to be “the only hurdle in their march toward the federal capital,” The only solution, he said, was for the entire nation to accept Shari’a law in order to deprive the Taliban of their principal cause.

Hrm. Perhaps Blake forgot that Pakistan is, technically speaking, already under Sharia? Article 22(7)1 of the Pakistani Constitution states:

All existing laws shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.

A further amendment clarifies that on matters of personal law, various Muslim sects may apply their own interpretations, and subsequent sections of Article 227 make clear that the personal law of non-Muslims need not conform to sharia. Pakistan’s constitution also establishes a Federal Shariat Court to handle matters of both personal and criminal law.

Of course, the real debate over “declaring Sharia” in Pakistan is about declaring a particular variant of Sharia, namely that endorsed by the Pakistani Taliban, and not Sharia per se. In a broad sense, it means the body of God’s laws that, if followed, are the path to salvation. The law is derived from the Quran, the actions and sayings of the Prophet, the consensus of Islamic scholars, and reasoning that makes use of analogies to apply precedents to new problems not explicitly covered in holy texts.

Now, considering the kaleidoscope of Islamic jurisprudence, declaring a country’s laws subservient to the Quran obviously includes a huge amount of interpretation. When it comes to Sharia, therefore, the devil (so to speak) is in the details. In areas newly under Taliban control, such as Buner, Swat, and Malakand, there are years-old plans for establishing official Qazi courts, or courts meant to rule according to Sharia instead of “secular” Pakistani law (even though Pakistani law is in theory grounded in and subservient to God’s law). Which, again, is why none of the events in the NWFP should be particularly surprising—we have seen this coming a long way out.

As an aside, it is worthwhile noting that, technically speaking (in the same manner as Pakistan), Afghanistan’s law is Sharia, at least in the sense that the government claims to make its own laws subservient to Islamic law. It reached this state of affairs during the bloody reign of Kind Abdur Rahman, who asserted a divine right to rule the country and nationalized all the local Sharia courts (see, for example, Amin Tarzi, “The judicial state: Evolution and centralization of the courts in Afghanistan, 1883-1896.” Ph.D dissertation, New York University, 2003, Chapter IV). Complicating the view of Afghanistan’s laws as Islamic laws is the tendency within elite Pashtun circles to view Pashtun moral and legal codes as equivalent to Islamic moral and legal codes (the two often have significant differences).

In short, Abdur Rahman subordinated Islam to the Afghan state, making the state the final arbiter on judicial questions while promising to enact no law contradictory to Islam. Successive Afghan rulers and governments more or less shared Abdur Rahman’s approach to law up until the Soviet invasion. Over time, the final authority on questions of the law formally became Afghanistan’s constitutions rather than the head of state (see, for example, Barnett Rubin, “Crafting a constitution for Afghanistan,” Journal of Democracy, vol. 15 no. 3, 2003). Successors also added a body of independent state legal codes and judicial institutions, and they required that qazis acquire state training and certification. These governments also asserted the priority of state law over Sharia if the two were found to conflict. However, each successive government pledged to act in harmony with Islam (see, for example, Thomas Barfield, “Afghan Customary Law and Its Relationship to Formal Judicial Institutions,” 26 June 2003).

Anyway, in Afghanistan, the legal environment is awash in ambiguity. The Bonn Agreement that gave authority to the transitional government recognized all existing laws and the 1964 constitution. Much of this body of law is contradictory, and the government has yet to clarify what is and is not still the law of the land. Assuming the march toward a more rigid and extreme version of Sharia continues in Pakistan, it is likely that the debate in Parliament won’t be over Sharia itself, but how it is implemented.

The quote above is illustrative: Maulana Fazlur Rehman heads up Jamaat-e Ulema-e Islami, a supposedly pro-Taliban front political party. Nick Schmidle disputed that assumption in a now-infamous essay in the New York Times Magazin that eventually resulted in his deportation from Pakistan. His piece contained a prescient section:

For now, it is Islamist violence that seems to have the political upper hand rather than the accommodation of Islamist currents within a democratic society. The mainstream parties have addressed Islamic militancy strictly as a security issue. Benazir Bhutto used particularly aggressive rhetoric against militants — her main rival, Nawaz Sharif, has a more religiously conservative base — but all of the main political figures outside the M.M.A. treated jihadi violence within a pro- or anti-Musharraf context, and as an effect of U.S. relations rather than as a problem integral to Pakistan’s political culture. “This election comes down to whether you are pro-Musharraf or anti-Musharraf,” a lawyer at a Pakistan Peoples Party rally told me a few weeks ago. In the North-West Frontier Province, the Awami National Party, a secular, nationalist Pashtun outfit, also stands to gain from the M.M.A.’s decline and will dilute the Islamists’ influence in the provincial assembly.

The focus on Musharraf’s policies, rather than on stemming a growing spectre of the Taliban, is what seems to be inspiring many puzzling moves by the Pakistani government. It is that attitude, perhaps expressed by openly advocating more extremist Sharia in the face of a rising tide of extremist Sharia, that could transform the Taliban from merely a black pox on the face of Pakistan into a truly existential threat to the country.