How Islamic Is Pakistan’s Constitution?

On February 7, 2014, one day after the preliminary rounds of negotiations between the Pakistani government and representatives for the Pakistani Taliban, Maulana Abdul Aziz, the chief cleric at Islamabad’s Red Mosque and one of the Taliban’s negotiators, jeopardized the peace process by refusing the Pakistani government’s first condition: that all talks be held within the framework of the Pakistani constitution. "I won’t participate in talks until they include a clause about the imposition of Islamic law," he said, indicating that the Taliban would only agree to negotiations if the Quran, not the Pakistani constitution, remained the guiding force behind the talks.

But, are these norms — set forth in the Pakistani constitution and Shari’a — so mutually exclusive? Do Islamists really have to worry about Shari’a missing from Pakistan’s constitution?

A lot has happened since that first, subsequently failed, formal meeting between the government and the Taliban negotiation team in the "journey for peace" held over three months ago in Islamabad — but this seeming impasse between "Shari’a or constitution" remains. One major incident in March, for example, an attack on a courthouse in Islamabad that killed 12 people, was claimed by the Ahrar-ul Hind, a loosely-associated Taliban faction. "Our fight will continue," Asad Mansoor, a spokesman for the group, said in an interview: "We will carry on attacks on urban areas, police and markets until there is the complete imposition of Shari’a law."

In many ways, the courthouse attack and the recent spate of violence throughout the country underscores by deed that which Aziz originally demanded — that the group’s interpretation of Shari’a replace the Pakistani constitution in setting the terms for negotiation. That is, both the ongoing Taliban attacks and these consistent demands highlight a core obstacle in Pakistani stability efforts that stretch far beyond the factional nature of the Taliban: the manipulation of Shari’a in the use of political violence. Aziz’s point of contention is in line with the well-known mantra of the Taliban and other Islamist organizations, including al Qaeda members across Iraq, Syria, and elsewhere: impose Shari’a, by the sword, if necessary.

When the ceasefire that started on March 1 ended last month, the issue of the constitution again took center-stage in discussions about whether to continue negotiations. Sharif told BBC Urdu that progress was being made and that it was "the number one condition that has to be met." Meanwhile, some members of the Taliban’s negotiating team have said that the militant organization is ready to accept the constitution, in spite of the group’s past statements to the contrary.

Our own research on Muslim constitutions and modern conflict behavior by all Muslim-majority states (defined by their membership in the Organization of Islamic Cooperation, the largest intergovernmental organization behind the United Nations) suggests that Shari’a is not missing from Pakistan’s constitution. Indeed, our examination of Shari’a content in all modern Muslim state constitutions — what we call "sharia density" — including post-Arab Spring states’ new constitutions, indicates that Pakistan is, in fact, one of the most Shari’a-dense constitutions in the modern world. The amount of Shari’a content in Pakistan’s constitution — those articles that include Shari’a language, norms, principles, prohibitions, and guarantees — are surpassed only by the constitutions of Saudi Arabia (known as the basic law) and Iran.

An entire section of Pakistan’s constitution, for instance, is dedicated exclusively to Islamic provisions. Article 227 holds that all existing laws "shall be brought in conformity with the injunctions of Islam as laid down in the Holy Quran and Sunnah […] and no law shall be enacted which is repugnant to such injunctions." In addition to this well-known "repugnancy clause," that section further establishes the Islamic Council, comprised traditionally of Islamic clerics or scholars who carry enormous interpretive weight, to advise on such legal matters. Likewise, a dedicated Shari’a court is established under Article 203. Such constitutionally-enshrined Shari’a norms even frame Pakistan’s foreign policy, as provided by Article 40, which holds that Pakistan "shall endeavor to preserve and strengthen fraternal relations among Muslim countries based on Islamic unity."

Shari’a is also prevalent in Pakistan’s other legislative instruments as well: just look at the criminal code. This year, four people have been convicted of blasphemy and sentenced to death for insulting the Prophet Muhammad — up two convictions from 2013. According to the Wall Street Journal, more people have been convicted in the past seven years than the last two decades since the death penalty for blasphemy was enacted by Gen. Zia-ul-Haq in 1986. And on May 13, 68 lawyers in Punjab were charged with blasphemy after protesting against the local police, a case that highlights what human rights activists within the country say is becoming a political, not religious, issue. Pakistan is also an officially "dry" country for the majority of people living there, since the Prohibition (Enforcement of Hadd) Order of 1979 made it illegal for Muslims to consume alcohol, and the punishment is 80 lashes for Muslims who are caught with alcohol — though it’s rarely, if ever,
enforced.

So as the Pakistani government undertakes military campaigns against the Taliban, they might also use current and future peace dialogues as a key opportunity to undercut extremists’ proprietary claim to Shari’a — whether as a political wedge, bargaining chip, or weapon of war. The fact of the matter is that the Pakistani state has been a longstanding leader in promoting Islam and in legally institutionalizing Shari’a.

Pakistan’s first Constituent Assembly adopted the "Objectives Resolution" in 1949, which enabled Muslims to "order their lives…in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunna." It is worth remembering that this was years before the Saudi kings and mujtahids drafted their own Shari’a-dense constitutions. Under Haq’s leadership in the 1970s and 1980s, Pakistan embedded Islam in its largely secular educational, legal, and financial institutions. But despite these early, even ‘leading-edge’ efforts, militant Islamists have seized every opportunity to flout any deviation from that ‘Islamisation’ regime, particularly at politically-charged moments, such as the anti-Soviet jihad movement in the 1980s and the anti-U.S.-led ‘war on terror’ in the 2000s.

So far, the Pakistani public is divided — some say confused — about the purpose of government-initiated peace talks, but also the debate over Shari’a. Much of the public prefers that Shari’a frame their social lives and political institutions, but worry that the Taliban have both distorted the tradition and now gained a strategic edge far beyond the ungoverned tribal areas to seize the initiative in domestic politics. The new center-right government is trying hard to get a handle on the long-simmering insurgency that has, since 2007, placed all administrations on the defensive.

Institutionalized Shari’a is, thus, actually an asset to Sharif’s government in its strategic and legitimacy efforts. More to the point, if Pakistan can push for the nation’s Shari’a instead of the Taliban’s opportunistic interpretation, it can undercut extremists’ most compelling tool for political and strategic maneuver. This is not to say that Pakistan should adopt a stricter version of Shari’a in its institutions, but rather should emphasize the country’s own heritage, its own institutionalization of Shari’a as part and parcel of the law of the land. Whatever its complex history, the institutionalization of Shari’a can today provide a stabilizing normative source for Pakistan. Embracing the law — the constitution and Shari’a at once — would combat the Taliban’s political initiative, dispel corrosive doubts about the government’s true motives and affiliations, and give U.S. and NATO skeptics who see Pakistan playing a "double game" a better narrative to focus on.

Corri Zoli is an assistant research professor at the Institute for National Security and Counterterrorism, a joint graduate research center at Syracuse University’s Maxwell School of Citizenship and Public Affairs and College of Law.

Emily Schneider is a research associate with the New America Foundation’s International Security Program. Follow her on Twitter: @emilydsch.