Religion as a Component of Legal Systems: a Comparative Study of Pakistan, Iran and Israel

Amna Khalid 16090047

Professor Dr. Zubair Abbasi

Islamic Jurisprudence

23 February 2014

Religion as a Component of Legal Systems: A Comparative Study of Pakistan, Iran and Israel

The debate surrounding whether religion should be incorporated into law is one that has existed for centuries. It can be said that the relationship that each bears with respect to the other is rather complex. Religious values are a reflection of societal values, rules conducting every-day transactions, institutions of society and other aspects of life. Because of the all-encompassing nature of religious law, it is useless to make broad generalizations. It is essential to keep in mind that religious rituals vary from place to place depending on culture even for people belonging to the same religion (Barzilai, 649-50).  Furthermore, the definition of religion also changes with time. For example, descendants of the followers of Ghenghis Khan’s Yasa switched to the Shari’a of Islam within three generations. In the past century or so, Jeremy Bentham’s philosophy of utilitarianism coupled with the arguments in favor of human rights have undermined the previously major role of religion in law. Despite that, there are jurisdictions that still give religion a significant place in their legal systems. Religion forms a significant part in the legal system of Iran and Pakistan, and although the view of Jewish authors suggests that religion plays a minimal role in Israeli law, this paper attempts to highlight the important role the Jewish tradition has played in the shaping of the Jewishness Israel as it stand today (Thompson, 1-2).

Pakistan is, in fact, a pluralistic society with a population that is diverse in terms of religious, sectarian, and ethno-linguistic characteristics. Although the country is 90% Muslim, it is home to many other minorities such as Buddhists, Bahais Hindus, Jains, Kalashi and Parsis. Pakistan came into existence as a result of a demand for a separate Muslim state that gained popularity in the 1930s and 40s. Initially an effort commenced by the Muslim elite of British India, the movement gained widespread popularity amongst the general Muslim population. However, the leaders of the movement including Mohammad Ali Jinnah hoped for a democratic country sensitive to its diverse inhabitants. This is evident in Mr. Jinnah’s speech to the Constituent Assembly on 11th August 1947. Sadly, the Pakistan today bears little resemblance to the Pakistan envisioned by its founding fathers.

Overtime, religion, namely Sunni Islam, came to incorporated into the legal system. In 1949, the Prime Minister of Pakistan, Liaquat Ali Khan added the Objectives Resolution to the Constitution. An attempt to woo clerics, the provision called for accordance with Islam. In the 1950s, hatred for Ahmadis, a religious minority in Pakistan, grew rapidly. Finally, in 1974, Zulfiqar Ali Bhutto declared Ahmadis as non-Muslims in order to appease religious parties such as the JI and JUI. He also banned alcohol and made its possession unlawful. Although most changes in the legal system with respect to religion are attributed to Zia Ul Haq, many believe that Zulfiqar Ali Bhutto had already set the stage for him. On July 4, 1977, Zia Ul Haq declared emergency and assumed the role of a dictator. A number of significant changes were made to the legal system following that in Zia’s attempt to legitimize his otherwise illegal rule. Article 2 of the constitution explicitly defined Pakistan as an Islamic State. Article 227 of the constitution stated that any law against the injunctions of Islam was void. Article 41 (2) of the Constitution made it mandatory for the head of state to be a Muslim. Article 91(3) made it mandatory for the Prime Minister to be a Muslim. A Council of Islamic Ideology was established in order to research and derive Islamic rules that must be used for guidance. Furthermore, he also established the Federal Shariat Court and the Shariat Appellate Bench for jurisdiction in matters that are governed by Sharia. The Qanoon-i-Shahdah, or the law of evidence, equated the witness testimony of two females to that of one male. Perhaps, the most significant changes were made to the blasphemy laws and laws pertaining to Ahmadis. The requirement of intent, which existed in the British version of the law, was removed from Zia’s version. The law has been extensively misused ever since. There were 201 cases of blasphemy between 15 June 1986 and March 11, 2001. It is unlawful for Ahmadis to display the kalima or refer to their call to prayer as azan. Changes in other areas were also made. The Presidential Order No.8 or 1984 called for separate electorates for minorities, further instigating segregation.