By Khaled Ahmed
March 14, 2015
The Supreme Court of Pakistan is currently busy trying to enforce piety in Pakistan in the light of Articles 62 and 63 of the constitution. It is certain that the judges will lean towards Islamic jurisprudence and stay away from the argument of work ethic as opposed to ritual worship. The government in Islamabad is about to set up a uniform system of Namaz. Piety wins, work ethic loses. Most terrorists achieve piety through beards, as they kill women and children in the country in the name of Allah.
Last month, retired chief justice of the Supreme Court, Nasim Hassan Shah, passed away at 86. He was on the bench that handed the death sentence to Zulfiqar Ali Bhutto. Bhutto was sentenced by the Lahore High Court and the apex court rejected his appeal against the decision. After his retirement, Shah declared that it was a wrong decision, “as it was a fit case for lesser punishment”. General Zia-ul-Haq got the judges, who had no love for Bhutto, to do it, because the latter was sending threatening messages to him from prison. Why did Shah confess to a wrong sentencing after he, as a member of the bench, had validated Zia’s martial law? Why was he named “Man of the Decade” for services to democracy and the rule of law by the American-Pakistan Alliance, Washington DC, on September 26, 1993?
He was short — only four feet eight inches tall — with a compensatory instinct for competition with “the normal guys”, had a sense of humour, and could give as good as he took in repartee. After a brilliant academic career, he was appointed as judge. He was named one of Pakistan’s nominees to the Permanent Court of Arbitration at The Hague in 1959 and served there till 1977. In the Supreme Court, he allowed a Sindhi prime minister, Benazir Bhutto, to be dismissed by the president, but saved a Punjabi, Nawaz Sharif, from being cashiered the same way.
A book by journalist Sohail Warraich, Adliya key Arooj-o-Zawal ki Kahani (Story of the rise and fall of the judiciary), has the following Q&A exchange: Q: “Do we have any other example in Pakistan of a person being hanged on the basis of advice?” A: “No never… During the case, there was a view that Bhutto was not directly involved in the murder but [that the] Federal Security Force did it on his advice… In my view, Bhutto’s punishment could have been reduced…” Anyway, he didn’t dissent on the bench.
In reply to another question — “Was there any pressure on the judges?” — he said, “Justice Haleem was under pressure. We had different kinds of pressures. His only son lived in Karachi. He said his life was in danger and he was very scared… basically, what could the poor judges do? There was one witness testimony after the other.” Q: “Couldn’t you have been kinder to Bhutto as he was ex-prime minister?” A: “The sentiments at that time were different and one has to do what one has to do.”
“During martial laws and under stress, he proved himself to be a pliable judge,” said a leader of the Bar in Lahore about Shah, “Otherwise he was a good judge and a fine human being.”
Like almost all judges in Pakistan, he was a conservative man. He upheld piety and had to be seen abhorring impiety. But piety doesn’t include ethic, which remains a profound contradiction within most piety-based religions. Ethic pertains to the observance of work-contract and is, at times, called “work ethic” to make it distinct from “morality”, which unfortunately applies exclusively to correct sexual behaviour in Pakistan. That’s the only way you can understand why Shah behaved the way he did.
He once got a plot of land allotted to himself in Karachi, saying he was not comfortable staying in the Supreme Court rest house when he heard cases at the Karachi bench. But instead of building a house on it, he allegedly sold it. He remained pious by Pakistani standards. In 2004, he regretted that the national language of Pakistan was not Arabic. He referred to the language riots of 1948 in East Pakistan and said that had Arabic been suggested to “our Bengali brothers”, they would have accepted it as their national language. Shah was clearly out of his depth. He was not given to reading books or he would have come across evidence to the contrary in Hassan Zaheer’s The Separation of East Pakistan (1994). The book, by a senior civil servant who served in East Pakistan, discusses the “the most grotesque suggestion” about enforcing Arabic in East Pakistan.
The idea was born in the mind of a non-Bengali education secretary of East Pakistan, F.A. Karim, who was able to convince the Bengali central education minister in Karachi, Fazlur Rehman, to adopt it. It also caught the imagination of the Punjabi governor of East Pakistan, Malik Feroz Khan Noon. Thus started the equally grotesque scheme of writing Bengali in the Arabic script and, in 1952, there were 21 centres doing this in East Pakistan with central education ministry funding. The East Pakistan chief minister didn’t even know that this was happening outside the primary school stream, which was a provincial subject. Writes Hassan Zaheer: “Such was the insensitivity of the ruling party to popular issues that the East Pakistan Muslim League Council also recommended Arabic as the state language. This was not acceptable even to the West Pakistan intelligentsia.”
What happened to the Muslim League in East Pakistan in the years that followed is history. But even in its heyday, the party was a fragmented entity, part of it striving to keep Bengal united, which was highlighted when Huseyn Suhrawardy became prime minister of undivided Bengal in 1946. Its demise happened when it tried to impose separate electorates on East Pakistan, another medieval attempt at separating the nation on the basis of religion with which Shah had probably agreed.
The modern state separated religious morality from ethic and legislated on the basis of the latter. What you do with the demands of piety is not the business of the state. Any humane penal code is the repository of ethic. Only a religious state will make its constitution demand piety, as Pakistan’s does with some articles. Protestantism in the 16th century broke from the Church of Rome because it saw religiosity overriding the socially more important requirement of work ethic. You could actually buy “spiritual exemption” from the Church of Rome. The ritual of Hajj does that job for us; even a Qawwali can do it to some extent. And a cricket team can win approval by praying in public and by doing prostrations on the pitch.
Khaled Ahmed is consulting editor, ‘Newsweek Pakistan’