MINORITIES: CONSTITUTIONALISING SECTARIANISM IN PAKISTAN
This blog post originally appeared in The Law and Policy Research Network (LPRN), on November 12, 2015.
The Minorities Blog features writings on the status and rights of minorities, including religious and ethno-linguistic minorities.
The rights struggle of intra-Muslim minority groups in various Muslim majority states reveals the huge diversity of thought, worldview and ethics within Islam itself. Even more importantly, it reveals that, oftentimes, intra-Muslim conflict is characterized by a dominant extremist minority that enjoys a near-monopoly over the use of violence in its encounter with a much larger non-violent, and at times, silent, threatened or persecuted, majority. The progression and intensification of sectarian violence in Pakistan – a country which is both at the center of globalized conflict and home to the second largest Muslim population in the world – is a stark illustration of this kind of intra-Muslim imbalance of power and status in Muslim majority countries. The following discussion on intra-Muslim conflict provides a historical overview of the growing “constitutionalization” of sectarianism in Pakistan since the 1970s – or the process of constitutionally articulating sectarian divisions and excluding various sects from equal rights and citizenship – as well as the politics behind it.
Pakistan’s “Islamic” Constitution
Pakistan’s first democratic constitution – Constitution of the Islamic Republic of Pakistan (1973 Constitution) – was promulgated more than a quarter century after its independence. From the time of Pakistan’s creation, the constitution-making process was deeply conflicted between Islam-neutral and Islamic visions of state formation. Earlier constitutional frameworks oscillated from an “Islamic Republic” (1956) to simply a “Republic” (1962), before swinging back to an “Islamic Republic” in 1973. The essence of the “Islamic Provisions” in the 1973 Constitution was to ensure that all existing and future laws would be “in conformity with the injunctions of Islam” as laid down in the two main sources of Islamic law, the Quran and Sunnah (or the sayings and practices of Prophet Muhammad). At the same time, the new Constitution sought to protect religious freedom. The constitutionally enforceable bill of rights, known as “Fundamental Rights,” included the right of every citizen to “profess, practice and propagate his religion” and of “every religious denomination and every sect” to “establish, maintain and manage its religious institutions.” They also included safeguards against religious taxation and compulsory religious instruction in educational institutions for a religion other than one’s own. Over time, the contradictions and ambiguities between the imposition of an overarching Islamic legality and the provision of religious rights led to constitutional-political sectarian battles.
Whose Islam, and Who is a Muslim?
Though arguably the “Islamic” vision of the state won out in the 1973 Constitution, it did nothing to settle the question of whose Islam was to be the defining ideology of the nation-state. Pakistan was overwhelmingly Muslim then as it is now (95 to 98% of the total population), but with a great deal of intra-Muslim diversity based on historical, political and ideological distinctions.
Historically, the two main sects are the majority Sunnis (75 to 80% of Muslims) and minority Shi’as (reportedly 10 to 20% of Muslims). The Sunni-Shi’a schism is an ancient one, rooted in political differences over succession after Prophet Muhammad’s demise in the seventh century. Both sects have further sub-groupings, as well as variations within and overlaps between sub-groups. The prominent Sunni sub-groups include:
Sufi – a largely non-political, mystical and ritualistic tradition organized around fraternal orders of saints that developed in the Indian Sub-Continent centuries ago;
Deobandi – a revivalist and anti-imperialist but socially conservative movement that emerged in mid-19th century colonial India to “purify” Islam of ideological innovations and accretions;
Barelvi – another movement in colonial India that was influenced by and arose in defense of Sufism in reaction to the strictures of Deobandi ideology;
Salafi-Wahabi – orthodox reformist movement that originated in 18th century Saudi Arabia and found a jihadist foothold in Pakistan during the Afghan war.
Within Shi’a Islam, the main groups include the Ithna Ashariyah and the minority Ismailis, whose split is defined by a combination of political and doctrinal differences.
There is a third sect known as the Ahmadiyya group that originated as a reformist movement in late 19th century colonial India. The Ahmadis constitute a small minority (roughly 2% of Muslims) and distinguish themselves from both Sunnis and Shi’as primarily on account of their heterodox belief in successor prophets to Prophet Muhammad.
One of the early sectarian contests to result from this internal diversity was the political settlement between the democratically elected, left-leaning government of Zulfikar Ali Bhutto and Deobandi Islamist groups – particularly Jamaat-i-Islami and Majlis-e-Ahrar – who spearheaded a movement against the Ahmadis. There had been much animosity between the Deobandis and Ahmadis since the religious disturbances of the 1950s. But in 1974, the conflict was taken to parliament for resolution. The objective of this exercise was to declare the Ahmadiyya sect un-Islamic. The resulting Second Amendment to the 1973 Constitution concretized a parochial and exclusive identity of a “Muslim” by casting out all those who “recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad…”
The Second Amendment marked the early phase of the constitutionalization of sectarianism. This legal exclusion meant that Ahmadis could no longer aspire to high political offices of the country – like the President and the Prime Minister – for which being a “Muslim” was a constitutional requirement. But the contestation over an authentic Muslim identity became a much graver and pervasive issue with the installation of a military government and Pakistan’s involvement in the Afghan war.
Militarization, Islamization and Sectarian Polarization
In 1977, General Zia-ul-Haq, the notorious military leader, maneuvered a coup against the civilian government and suspended the 1973 Constitution. Incidentally, the militarization of the state was followed soon after by the start of the Afghan war in 1979. As billions of dollars worth of military aid poured into Pakistan from the United States and Saudi Arabia to resist the Soviet invasion in Afghanistan, Zia set the country on a path of a “jihadist” political economy. This included the mainstreaming of madrassahs (or religious seminaries) for training, recruiting and mobilizing the “mujahideen” (or Islamic fighters), enabling a drugs and arms trade across the Afghan-Pakistan border, and silencing political opposition through despotic laws. A major consequence of these policies was the proliferation and radicalization of state-sponsored madrassahs, particularly the more puritanical Deobandi and Salafi madrassahs, which provided the bulk of the mujahideen army.
In addition to cultivating militancy within madrassahs, Zia “Islamized” various laws to build political legitimacy for his authoritarian rule. The Islamization reforms entrenched within the 1973 Constitution an extreme variant of the Deobandi interpretive tradition, inspired by and almost merging seamlessly with Salafi-Wahabi ideology. This was an unprecedented move as it meant that all non Deobandi-fundamentalist Muslims, including a majority of Sunnis, were constitutionally reduced to a minority status. The only exception were “personal laws” concerning private matters like inheritance, marriage and divorce, maintenance, and child custody, in relation to which all Islamic sects and non-Muslim minorities were at liberty to apply their own theological jurisprudence.
Examples of the Deobandi ideological influence on the Islamization program include the “Hudood” laws that criminalized and harshly punished private immorality like drinking and illicit sexual relations; constitutional amendments that introduced parallel “Shariat Courts” to police compliance of laws with the “Injunctions of Islam”; and amendments to the country’s secular criminal laws that, among other things, introduced the concept of “blood money” for murder, corporal punishments, and draconian Islam-centric blasphemy laws. The peculiar thing about the latter was that, unlike the pre-Islamization blasphemy laws that could be characterized as religion-neutral hate speech laws, the new laws were intended to protect the religious sentiments exclusively of Muslims. The blasphemy law that specifically related to the sacrilege of Prophet Muhammad was punishable by death. Because of the deepening of sectarianism in later years, a majority of those formally accused of blasphemy have been Muslims belonging to different sects.
Zia also directly targeted the Ahmadis by criminalizing their religious practices under the blasphemy laws. Ahmadis were now restrained on a larger societal level from “preaching or propagating” their faith, or even “posing” as Muslims and referring to their faith as Islam.
The Courts have been willful partners in the constitutionalization of sectarianism. In the early 1990s, during a period of democratic transition, the Supreme Court had a significant opportunity to redefine the constitutional and public discourse on minority rights that was fast converging on a highly exclusionary, puritanical and punitive view of Islam. Instead, in a damaging judgment in 1993, the Court provided constitutional cover for General Zia’s Islamization program. It held that the criminalization of the Ahmadiyya sect did not violate the sect’s freedom of religion on the ground, amongst others, that the Ahmadis’ beliefs were an assault on the religious sentiment and freedom of the majority Muslim population.
Rise of a Dominant Extremist Minority
The decade of the 1990s was a period marked by a steady incline in sectarian violence. The Pakistani military and intelligence agencies continued to confer patronage on Afghan war veterans and other radical elements for suppressing internal insurgencies, resisting Iranian influence, and fighting regional turf wars like the Kashmir conflict between Pakistan and India. These forces coalesced into extremist and militant Islamic organizations. Post 9/11, they have not only grown in influence and pervaded different parts of the country, but have also formed labyrinthine connections and alliances with each other as well as state institutions and political parties for patronage, protection and funding leverage for their terrorist activities. New militant groups like the Tehreek-e-Taliban Pakistan have also sprung up as off-shoots of the insurgency movement in Afghanistan. These terrorists mostly represent minority-extremist Sunni groups – referred to variously as Deobandi-fundamentalist, Salafi-Wahabi, Takfiri and Pakistani Taliban – many of which are now banned terrorist organizations. Apart from various anti-state activities, these groups are at the forefront of politically and ideologically motivated sectarian violence, particularly anti-Shi’a violence. Thousands of Shi’as have succumbed to sectarian and target killings in the last decade, leading to claims about a “Shi’a genocide.” The Ahmadis, a dwindling and vulnerable minority, also continue to be brutalized.
But the Sunni militants also target fellow Sunnis. The recent attacks on Sufi shrines and the deadly Peshawar school massacre in 2014 that left more than 130 school children dead are examples of Muslim extremists terrorizing defenceless Muslim populations in retaliation for state action and public opposition against the Taliban in general, and military offensives and drone attacks in Pakistan’s tribal areas in particular. These incidents are stark reminders of the fact that “Muslim terrorists” are a dominant minority in respect of their capacity to use violence on a largely non-violent citizenry that has been virtually abandoned by a dysfunctional state.
Judicial Failure & the Political Consensus for Military Courts
While sectarianism is deeply embedded within Pakistan’s Constitution, the constitutional framework on its own does not fully reflect the extent of intra-Muslim conflict and social exclusion. One aspect of this is terrorist violence which is an evident reality. But there is another concealed picture of sectarianism which becomes apparent only when one closely studies formal institutional responses to violence. One example is the Supreme Court’s complete silence over and de-prioritization of religion-based rights and persecution of religious, including Muslim, minorities. The chart below shows the number of reported Fundamental Rights cases litigated – according to different categories – in the Supreme Court’s “public interest litigation” jurisdiction over a twenty-five year period. Only 2% cases (4 out of a total of 208) dealt with “religion-based rights,” of which 3 were dismissed, and the one case that was upheld related to an insignificant logistical issue of election rescheduling on account of a clash with a religious festival. The Court has also evaded framing the issue of sectarian violence as a matter of “life and liberty” or “right to dignity.”
This shows not only that the Supreme Court has generally abdicated its authority to deal with religion-based rights, but also that persecuted religious groups do not look upon the judiciary as a legitimate state institution for the protection of their rights. At the same time, the Court has directly contributed to sectarian violence by acquitting hundreds of alleged terrorists for lack of evidence, many of whom are reported to be involved in anti-state activities post-acquittal. Because of the institutional failure and myopia of both the government and judicial system to deliver justice, a recent political consensus has empowered military courts to undertake the investigations and trials for those accused of terrorist offences, and has lifted a six-year moratorium on the death penalty for sentencing those convicted of the latter. Current opinion on the military courts as a speedy and efficacious mechanism for dealing with terrorist-sectarian violence is divided. Critics point out the irony of expecting a fair, neutral and transparent process of justice from a state institution that has historically and systematically sponsored terrorists, and warn of a deteriorating civilian-military imbalance in the country. Almost a year after the transfer of judicial authority to the military courts, many terrorist ringleaders remain at large, with little indication of the government, military and intelligence making any more than farcical progress on curtailing religion-based violence.