Daily Times

One of the most revolutionary undertakings by Mustafa Kemal Ataturk was the adoption of a slightly modified version of the Swiss Civil Code in Turkey, which banned polygamy and instituted equality of sexes in the Republic of Turkey. This was and continues to be an unprecedented step in Muslim history. Ataturk managed to pull it off because of his unchallenged position as the supreme leader in Turkey. This move sharply divided Muslims around the world, including in British India, where Allama Iqbal came out squarely in favour of the idea arguing essentially that Islamic personal law, and indeed all Islamic canonical laws, could be amended and modernised by a Muslim majority parliament, which Turkey’s Grand National Assembly, was.

In Pakistan, then the premier Muslim state in the world, an attempt was made by General Ayub Khan’s government to modernise Islamic law of inheritance through Muslim Family Law Ordinance 1961, but it did not go far enough. The law in Pakistan is silent over alimony to divorcees. Courts in the west, and especially in the US, have on occasion refused to consider comity for Pakistani divorce law on this ground i.e. Pakistani divorce law offends the sensibilities of any modern legal system.

The situation in a purely legal plane is even worse in secular India, where in 1980s the Indian parliament actually overturned the progressive judgment of the Indian Supreme Court awarding alimony in the Shah Bano case, effectively sealing the fate of Indian Muslim women. For its part though India had enacted the Special Marriages Act 1954, which gives an alternative way of protracting a marriage. The searing irony is that this law had been debated in Indian legislative bodies since 1912 by none other than Pakistan’s founder Mohammad Ali Jinnah, who had asked for right to inter-communal marriage for people of different faiths. The tragedy is that Pakistan today does not have a corresponding law allowing people to enter into civil contracts of marriage.

The point that needs to be made is that the state can and should be able to amend laws in light of public policy, and that the consideration of public policy should be based on actual problems faced by the people instead of doctrinal disputes between various sectarian interpretations of religion. Why must female children inherit only half that of male children? Islam had given women the right to inheritance at a time when this was unheard of. Nothing in Islam prohibits the state from giving a better share to women than what was envisaged by the fiqh (the theory of Islamic law, based on the teachings of the Quran and the traditions of the Prophet) compiled in the 9th century. The basic problem is this confusion of fiqh with Sharia under Islamic law. Sharia is the body of immutable principles of justice and fair play envisaged by Islam. Fiqh is only an understanding of those immutable principles. Why must Muslims remain captive to 9th century understanding of well-meaning but dated jurists? None of the Imams of any of the established schools of jurisprudence ever claimed to be recipients of divine wisdom. They did their job admirably as expounders of Islamic law for their time. They never claimed their works to be the final word. If that were the case, there would be only one single fiqh but that is not the case. If, as we believe, Islam is not time bound, it should not be hidebound either.

Iqbal’s greatest contribution to Muslim thought came through his invocation of the doctrine of ijtihad (independent reasoning) and especially the idea that this ijtihad could only be done through a national parliament. This parliament of his dreams would not be a dud parliament acting on the dictates of the religious clergy. Instead it would be the voice of the nation acting on the people’s general will. A Muslim state of his reckoning would be able to modernise and liberalise the religious doctrine to make it useful, dynamic and effective for the modern age. Such a Muslim state would be able to restrict polygamy if it so desired and would be able to grant equality to genders in matters of succession. Here again, it is a tragedy that Pakistan’s parliament often finds itself paralysed by reactionary and bigoted opinions of the Council of Islamic Ideology (CII), the body that sees itself as first and foremost a guardian of orthodox opinion. This is despite the fact that CII constitutionally has only an advisory role. Over and above the CII stands the Federal Shariat Court that can review any legislation on the touchstone of Sharia. The promise of an ijtihadi parliament was stifled in infancy in Pakistan.

Ultimately, however as part of an increasingly globalised world, Pakistan and the rest of the Muslim world must come to terms with the idea of individual rights and liberties, which includes the right not to follow an organised religion. It therefore follows that sooner or later, Pakistan’s parliament would have to make laws that a large and vocal section of the clergy will deem as un-Islamic. Ultimately, it would have to take the position that Iqbal had taken so many years ago, and which is that a state, especially a Muslim majority state, can overrule the opinion of religious clergy on what is Islamic and what is not, in the interest of public policy.

The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address yasser.hamdani@gmail.com