By Saad Rasool
9 Jun 2013
The dominant force of the past century has been a sweep of science and technology, driven by a desire to seek certainty and answers to some of our most primordial questions. In this pursuit, over the past half century, humankind has split the atom and spliced the gene to look inside the very fabric of our creation. We are no longer anchored to the force of gravity, have propelled towards the skies, explored other celestial bodies and roamed Tranquility Base on the moon. We have reached for the stars and never have we been closer to having them in our grasp. New science, new technology is making the difference between life and death. It is bridging the gap between dreams and reality. The effect of modern science is spilling over the bounds of laboratories and into the heart of the social, economic and political lives of our species. And thus, at this critical juncture in human history, even the moral theorems of social science and the law turn towards science for direction and evidentiary guidance.
However, someone forgot to tell all this to the Council of Islamic Ideology.
Recently, the Council for Islamic Ideology – the highest constitutional body on the issue of what is, or is not, in conformity with the ‘injunctions of Islam’ – has declared that DNA test is not admissible evidence in establishing the crime of rape. And with it, we have, at least in terms of rape cases, regressed to a model of evidence that is befitting a pre-Crusade time period, when the time of day could only be told by looking at the sun in the sky, and day of the month could only be told by looking at the size of the crescent.
In order to grasp the far-reaching effect of this ‘declaration’ of the Council of Islamic Ideology, it is important to understand what the Council is, and how it affects our legal and judicial paradigm.
The Council of Islamic Ideology is a group of Ulema (at least individuals are, in theory, Ulema) charged with providing the declarative direction to Islamic provisions, under the law, which are then to be interpreted by the Federal Shariat Court accordingly.
To understand this interplay, it is perhaps pertinent to start with noting how profuse the Constitution of Pakistan is with Islamic references and provisions. To begin with, the Preamble (text of which has been made a substantive part of the Constitution through Article 2-A) declares the supremacy of Quran and Sunnah over all other things. This combination of ‘Church-and-State’ works well in a country where over 95 percent of the people claim to be Muslims, and where Article 2 of the Constitution clearly declares, “Islam shall be the State religion of Pakistan”.
In light of these constitutional provisions, Articles 203-A through 203-J established the Federal Shariat Court, and give it the power to declare any law “repugnant to the Injunctions of Islam”. Furthermore, Part IX of the Constitution (Islamic Provisions) endeavours to bring all laws of our nation “in conformity with the Injunctions of Islam”, and for this purpose, Article 228 establishes a Council of Islamic Ideology, with up to twenty members. Benevolently, Article 228(3) of the Constitution stipulates that “so far as practicable various schools of thought [shall be] represented in the Council”, and that “at least one member [shall be] a woman”. And the interpretation given by this Council, along with the Federal Shariat Court, for all intents and purposes, is the declarative interpretation of the injunctions of Islam in our country.
There are countless problems with the manner in which the Council has been structured. Perhaps one of the main reasons why decisions such as the one about sanctity of DNA testing keep emerging from the Council is that, for large periods of our history (including present day), no woman has served on this Council. For a country with 50 percent women population, and aspirations of becoming a progressive nation in world, this fact is extremely discouraging and increasingly leads to (binding) interpretations of Islamic law that are biased against the female gender. Additionally, a cursory look at the members of this Council reveals that just a minimal number of schools of Islamic thought have been represented on this Council, making their interpretation of the injunctions of Islam bend in favour of certain sects of Islam and against others. Now, while it is perfectly acceptable for any individual to pick one interpretation of the religion over the other, in regards to his or her personal life and practice, it hardly seems reasonable that the State should deem one interpretation of Islam preferable to the other.
This Council, over the years, has resisted all moves of reforming the Blasphemy Law, not shied away from calling certain sects to be non-Muslims, and never taken an aggressive stand against the militancy being spread in the name of Islam.
In fact, it was in line with the recommendations of this Council that the honourable Lahore High Court, in the case of Muhammad Azhar v The State (PLD 2005 LHR 589), declared that evidentiary value of the DNA test was not acceptable in cases falling under the penal provisions of Zina, punishable under Hudood Laws having its own standard of proof.
While the honourable Supreme Court, in recent years, has made a push towards progress regarding accepting of DNA tests as sufficient evidence (specifically, suggesting that a mandatory DNA test be done in all rape cases, in the judgment of Salman Akram Raja v Government of Punjab (2013 SCMR 203), still we are far away from accepting the advances of science and technology into the fold of Islam and Hudood Laws.
When will we stop resisting the voice of reason? When will our journey to progressive modernism start?
Saad Rasool is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.