Development of Islamic Law and its Role in Contemporary Pakistan - Research Paper Example

? The Development of Islamic Law and its Role in Contemporary Pakistan Michael Cox Culture and Society of South Asia Word Count:2,521 Outline Introduction 3 The Development of Islamic Pakistan 3 Pakistan’s Turbulent Leadership 5 Realigning Pakistani Law 7 Conclusion 10 Bibliography 10 Introduction Contemporary Pakistan has been a state of much international interest, close to both Russia and China, despite the fact that it has a small area, roughly twice that of California (Talbot, 1998, p. 21). The country is strongly Islamic, and Islamic viewpoints have a significant influence not only in day-to-day life, but in the politics and laws of the country (Haqqani, 2004). Because of this, understanding Islamic law becomes crucial to the perception of modern Pakistan. Despite a long Islamic history, the role that Islamic law plays in the country is still being determined. This can be seen in the way that the Islamic Pakistan has formed and matured, the turbulent leadership that the country has experienced and the attempt to realign Pakistani values and law with Islamic. Thus, Pakistan is not an area of unshakeable values and truths, but of ever-changing and developing ideals and laws. The Development of Islamic Pakistan To understand the role that Islamic law plays in contemporary Pakistan, the first aspect is to consider the way in which Pakistan has developed, and what has influenced Pakistani laws. Pakistan is a rapidly growing country that once was predominately agricultural, however, now other aspects of industry are beginning to take precedence. In particular, exports are predominately textile, clothing and agricultural in nature. Pakistan is considered to be a middle-income country, but despite its considerable economic growth social progress has been much slower (Talbot, 1998, p. 23). The most well-known example of this is the rights of women, who are treated as second-class citizens in Pakistan and have restricted rights. Other indications of the slow progress that the country has been making include the life expectancy, which is currently 66.35 years and the fact that less than three percent of the country’s gross domestic product is spent on healthcare (Central Intelligence Agency, 2012). It is thought that part of the driving force behind this slow civil growth is the strong focus on religion and tendency to get involved in religious politics. This can be seen by a strong focus on spending in defense, despite the clear inadequacies in health and education spending (Talbot, 1998, p. 23). Pakistan achieved independence from Britain in the early years after the Second World War. From this point onwards, the nation called itself The Islamic Republic of Pakistan (Korson, 1974, p. 1). Pakistan presents an interesting case in the eastern world, as the nation was initially developed in the name of religion, despite the concept that such nationalism was un-Islamic and represented a betrayal to the ideas and ideas of Islam (Talbot, 1998, p. 12). Thus, Islamic religion has always played an important role in the development of the country, although the exact role has varied as different governments have come into power. In fact, the development of Islam as the ideology for the state was not initially undertaken because of a desire to follow Islamic teaching. Instead, Pakistan’s leaders used this as a method of developing and growing the identity of the country following its independence (Haqqani, 2004). Because of this, Islam was not a strong focus of the laws of the country in its early development. Nevertheless, Islamic perceptions have become strongly embedded in the history of Pakistan and in its current identity, particularly in recent times. The values of Pakistan, which have influenced the development of the country as a whole as well as its laws, are strongly based in the Islamic religion (Talbot, 1998, p. 24). Islam is more than a religion that the country abides by, its language and rhetoric has been strongly incorporated into the law. This incorporation has been so strong that there are no alternative viewpoints available under the law (Metclaf, 1987, p. 132). Pakistan can be considered as an Islamic ideological state, and this has remained prevalent throughout Pakistan’s history, despite changing ways of how Islamic viewpoints have been incorporated into law and politics (Haqqani, 2004). Although Pakistan was founded as the Muslim homeland, the governmental system was more strongly linked to Western ideas and principles than it was to Islamic ones (Metclaf, 1987, p. 132). The political interpretation of Islam and the role of Islamic perspectives in law has not always been static. Indeed, the concept that Islamic perspectives are the only relevant arguments is a relatively new one, and is not prominent in Pakistan’s history. Pakistan’s Turbulent Leadership Leadership of Pakistan is far from static. The country is prone to experiencing frequent shifts in power, which has significant implications for the development and maintenance of laws. In fact, Pakistan’s government and law is not as stable as most other modern countries. This occurs because Pakistan is subject to a substantial amount of both internal and external complications, which make the country difficult to govern. Furthermore, there is a constant struggle between military and civilian leadership. On multiple occasions, the military has directly intervened into Islamic politics and overthrown the civilian leader. Thus, there has been no development of correct or established methods of political conduct. This system makes it very difficult for a civilian to democratically establish leadership, because if they do not follow what the military perceives as being right for Pakistan, then they risk being forcibly removed from their position (Haqqani, 2004). This means that the laws of Pakistan are strongly in the hands of the military, even at times where civilian leadership is present. The Islamic focus in Pakistani law has had strong implications for the country’s leadership, not only influencing what laws are developed but also influencing when and why the power in the country changes from one government to the next. Multiple governments have raised the concept of Islamic socialism, which was designed to bring about a more even distribution of resources and lower impact of vested interests of specific parties. However, this concept was ultimately ignored. As a consequence, Islamic law and leadership in Pakistan strongly focuses on the domination of the elites, people with significant power or money, particularly in areas of land, business, commercial and military (Metclaf, 1987, p. 134). Thus, despite the promotion of socialism, Pakistan has remained a strongly capitalistic country (Korson, 1974, pp. 1-4), where there is a significant gap in wealth and power between different members of society. The perception of how Islamic believes should affect national practice has been a matter of considerable debate within Pakistan. Religious parties have grown to be a significant force within Pakistan and to wield considerable power over government (Haqqani, 2004). As such, Islamic law is only partially related to the teachings of Islam and is strongly influenced by the desires of government and of powerful groups. A particularly powerful example of this is civil rights, especially of women. Under Islamic perception, women have very few rights. This is partly due to the strong patriarchal structure of the society and its laws. Islam perceives men as the protectors of women, and that women should be respectful and obedient to their fathers and husbands. In general, Islamic law treats women as second-class citizens in terms of civil rights, restricting their ability to work and focusing on gender segregation. An example of the way that women are treated under Islamic law is the Muslim Family Laws Ordinance that was developed at the beginning of the 1960s. Although practice of the law appears to have been limited, it is designed to afford women with minimal rights during a divorce, rights of inheritance and rights of maintenance. The rights under this law are much lower than are observed in Western countries, yet even the presence of this law has being contested (Metclaf, 1987, pp. 137-139). It is important to consider the difference in perception between Islamic radicals and the traditional Pakistani culture. Not all aspects of Islamic belief and practices have a place in contemporary Pakistani national life. The viewpoint of radical Islamics is the most significant example of this, and they are often considered to be incompatible with Pakistan as a modern country. As Pakistan seeks to become more involved in the international environment, its Islamic viewpoints are increasingly becoming a burden. This can already be seen through Islamic idealists who have been responsible for violent acts of vigilantism against those perceived to be the enemies of Islam. These acts occur outside of the law, and can significantly disrupt foreign policy and relations that Pakistan has with the rest of the world (Haqqani, 2004). Nevertheless, it is evident that Pakistan still shares many of the viewpoints of the radical Islamics, through the governments support of some militant activity (Haqqani, 2004). The role of Islamic perceptions and law in Pakistan is becoming increasingly important, as governments attempt to begin the Islamic perspective more into focus, particularly through changes in law. Realigning Pakistani Law Islamic law is not the only form of law that is present within Pakistan. Many of the statues and acts are secular and may have slightly different viewpoints than Islam would suggest, or in some cases directly contradict Islamic perspectives (Lau, 2006, p. 91). It is likely that this occurred because during the early independence of the country, the religious groups and those that had power in government, or influence over it, were distinct from one another (Metclaf, 1987, p. 134). There has been an increasing focus in realigning the laws of Pakistan to the perspectives that are prevalent in the Islamic religion. This perspective has been enforced and developed by governments even at the expense of consensus from the public (Weiss, 1986, p. 37). This means that minority groups, particularly those who are of different religions, are likely not to be represented in the changes, and they may result in further civil inequalities. One of the strongest influences of Islamic law is not in the law per se. Rather, judges have the ability to reexamine and redefine laws based on their interpretation in relation to Islamic morality. Historically, there have been many examples where judges have denied women their right to constitutional freedom based on this perception of morality. Furthermore, such moves have been achieved openly in court, with full support of the Pakistani legal system. An example of this is the situation of an illegal detention versus a valid marriage. In this situation, a woman claims to be illegally detained because she was forcibly married, however, she did not want to be married and has no desire to live with her ‘husband’. Where there is not enough evidence to prove that either situation exists, the law dictates that the woman should be free to choose where she goes. However, under Islamic sensibilities, the woman should be living either with her father or with her husband. Because freeing the woman would result in neither of these options, judges tend to rule that the woman should return to her husband. Clearly, the woman’s rights in this situation are being blatantly ignored, yet there are many cases in Pakistan’s courts and Supreme Court where this decision has been made (Lau, 2006, pp. 35-38). The case of the Muslim Family Laws Ordinance is another interesting example of this. The law was initially developed during a period of martial law and the law was protected from judicial review under the 1973 Pakistani Constitution. As discusses previously, this Ordinance provides women with some rights in the case of divorce. Muslims argued that this Ordinance was a direct violation of Islamic law (Lau, 2006, pp. 50-65). In both of these examples, the decision varied depending on the individual judge that was involved, with some finding that the law was valid and others ruling in favor of Islamic law. Nevertheless, in this and other cases, the overall trend has been towards Islamic law and away from any decisions or rulings that may contradict this. Another strong step in this direction occurred in 1991, when the government introduced an act known as the Enforcement of Shari’ah Act. Although the act did not create any specific legal measures that could enforce the law of Islam, its purpose focus the interpretation of law on the principles of Islam law (Lau, 2006, p. 91). Although, as the above examples show, this approach was already being widely used throughout the court system, this act served to provide a strong legal backing for this perception. An interesting perspective on this shift to a more Islamic form of law and government is that it goes against one of the underlying principles of Islam. Specifically, some of the most powerful supporters of the shift towards Islamic perspective argue that this cannot be done as part of a democratic process. If a democratic approach was attempted, then there would be no guarantee that the voters would be Muslim or that they would fully understand the ‘true’ perception of Islam. Thus, a non-democratic implementation has been the driving force behind the incorporation of Islamic ideals into law. The problem with this is that the consensus of the community is considered to be one of the most important tenets of Islam (Weiss, 1986, p. 37). The shift to a more Islam-focused government and law has resulted in significant effects to different parts of Pakistani society, but one of the most strongest effected has been women. Under Islam, women do not have the same status of men, and the movement to stronger Islam beliefs has resulted in many of the privileges and status changes of women being removed (Weiss, 1986, p. 45). Another implication of this shift is that it may result in stronger support for radical Islamists. The closer the perceptions and the beliefs of the governing body of Pakistan is to the beliefs of radical parties, the more likely that the two will share common goals and methods. There is potential for the Pakistani government to make use of radical factions to forward political or religious agendas that they do not want to associate with the government itself. Thus, there is the potential for significant and long term effects of this shift towards Islam-based law and government. Conclusion As a country, Pakistan is continuing to develop its government and laws. The history of Pakistan’s government shows that how much attention is paid to Islamic perceptions varies over time, and as such it is likely that none of the current changes will remain present in the country forever. The turbulent nature of Pakistan’s government means that these changes will continue to occur in an unpredictable manner. At present, the focus appears to be on refining and reevaluating laws to make them more Islamic, which has significant implications for the population and in fact for the relations that Pakistan has with the entire world. It is likely that an increase in focus on Islamic perceptions may result in more interest concerning the beliefs of the radical faction. Future research needs to consider whether these patterns of changes differ from earlier patterns within Pakistan’s history. This would allow an examination of whether Pakistan is likely to move down the path of becoming increasingly radical, or whether a shift in power is likely to change the focus of the country. Whatever the outcome is, it is important to consider Pakistan as developing and unpredictable. Bibliography Central Intelligence Agency. (2012, May 9). South Asia: Pakistan. Retrieved June 5, 2012, from The World Factbook: https://www.cia.gov/library/publications/the-world-factbook/geos/pk.html Haqqani, H. (2004). The role of Islam in Pakistan's future. The Washington Quarterly, 28(1), 85-96. Korson, J. (1974). Contemporary problems of Pakistan. The Netherlands: Brill, E.J. Lau, M. (2006). The role of Islam in the legal system of Pakistan. The Netherlands: Brill Academic Publishers. Metclaf, B. (1987). Islamic arguments in contemporary Pakistan. In W. Roff, Islam and the Political Economcy of Meaning (pp. 132-159). Berkeley: University of California Press. Talbot, I. (1998). Pakistan: A modern history. New York, NY: St. Martin's Press. Weiss, A. (1986). Islamic reassertion in Pakistan: The application of Islamic laws in a modern state (First ed.). Syracuse: Syracuse University Press. Read More