The writer is an advocate of the Supreme Court of Pakistan.
Enactment and enforcement of legislation against child marriage has repeatedly run into resistance that claims religious authority. Overcoming this resistance will require a wider intellectual engagement with the foundations and structure of religious thought. Consider.
The latest report on Pakistan, based on figures contained in the Unicef database 2016, issued by the Center for Reproductive Rights makes for grim reading: “Child marriage in Pakistan constitutes an ongoing human rights violation on a large scale. Pakistan ranks sixth in the world in terms of the highest absolute numbers of child marriage. Twenty-one percent of girls in Pakistan are married by the age of 18. While child marriage affects both boys and girls in Pakistan, girls are disproportionately affected.”
For Hindu, Sikh and Christian communities, the impending threat of one of their girl-children disappearing and then turning up married and converted to the majority faith constitutes an additional existential crisis and personal tragedy for the families involved.
The legislative and judicial response to child marriage remains stymied and eventually ineffectual. Statis in religious thought, articulated both by convention and from the constitutional pulpit occupied by the Council of Islamic Ideology, continues to oppose the enforcement of a minimum age for marriage through legislative prescription. This congealed statis insists that the physical fact of puberty alone is determinative of the capacity to engage in marriage. For the girl-child, the onset of the menstrual cycle is enough to determine her destiny.
Conventional religious thought has determined that this can happen at age nine and, therefore, any law that requires girls to be older than nine years for the marriage to be lawful is against the Shariah. This was the view that M A Jinnah, soon to become Quaid-e-Azam, confronted in 1929 when he rose on the floor of the legislature to support the Child Marriage Restraint Act. Rejecting the religious objections, the Quaid stated: “I cannot believe that there can be a divine sanction to such evil practices as are prevailing, and that we should, for a single minute, give our sanction to the continuance of these evil practices any longer.”
By the year 2012 the Quaid’s views were no longer acceptable to the Council of Islamic Ideology set up in the state he had founded. In its report for the year 2012-13, the Council of Islamic Ideology unambiguously declared that marriage of a child can be contracted at any age and for the girl-bride rukhsati can take place at age nine for consummation, provided she has attained puberty. The operative provisions of the Child Marriage Restraint Act 1929, that prescribe a minimum age of sixteen for girls and eighteen for boys, were declared contrary to the injunctions of the Shariah. The views of the Council of Islamic Ideology are advisory and do not result in the demise of an existing law.
However, in the face of the purported Shariah position that exalts puberty above all other physical, psychological and cognitive attributes neither the Act of 1929 nor the Sindh Child Marriage Restraint Act of 2014 has served to act as an effective safeguard against child marriage. The courts routinely cause invasive determinations of puberty of the girl child in order to determine the validity of a marriage.
The increasingly muted contest over child marriage is clearly a part of a wider closing down of religious discourse in Pakistan. The possibility of creative engagement with tradition that seemed imminent when Prof Fazal ur Rehman was heading the Council of Islamic Ideology in the 1960s is now a faded memory. The Muslim Family Laws Ordinance of 1961 that imposed restrictions on polygamy and allowed a share in inheritance to orphaned grandchildren was the result of vigorous engagement with the sources of the Shariah, and the articulation of a reform vision that claimed legitimacy on account of fealty to the letter as well as the spirit of the Islamic tradition. The reformers of the 1960s claimed inspiration from the vision of revival and reconstruction of religious thought provided by Allama Iqbal.
When Iqbal published his maturest philosophic reflections in the form of a book in 1932, ‘The Reconstruction of Religious Thought in Islam’, and called for ijtihad through elected assemblies consisting of lay individuals, he was in no doubt about the enormity of the challenge that he had launched. He was to remark that had his work been published during the reign of the Caliph Mamoon ur Rashid (813-833), when Mutazalite ideas about the primacy of reason in jurisprudence were still the avowed creed of the caliphal court, the subsequent course of Muslim religious thought might have been radically different from what it in fact turned out to be.
The year 1983 can be marked down as the year in which convention and statis silenced the challenge that Iqbal’s vision of a reconstruction of religious thought had inspired within the judicial and legislative structures of the state. In a remarkable judgment in the case of Hazoor Bakhsh vs Federation of Pakistan, delivered by the Federal Shariat Court in 1981, the punishment of rajam (stoning to death) for the offence of adultery was declared to be contrary to the punishment for such offence envisaged by the Quran and the Sunnah. In arriving at this conclusion, the Federal Shariat Court examined the structure of what had come to be described as the Shariah. The relationship between the Quran and the Hadith, the theories of abrogation and ijma as well as the contextuality of events in the life of the Holy Prophet (peace be upon him) were examined with courage and incision. Not every event was taken to be a source of binding legal precedent. The result was a shock not only to the designs of General Ziaul Haq but also to the edifice of conventional religious thought.
Zia acted swiftly. The Shariat Court was effectively disbanded and then reconstituted with five new members. A Review Petition against the original judgment of 1981 was taken up in 1983 and accepted. Tradition and convention were emphatically reasserted in declaring rajam to be the Shariah punishment for adultery.
After ‘Hazoor Bakhsh’ the Shariat Court and the Shariat Appellate Bench of the Supreme Court were to consistently affirm a socio-political vision embedded in the fiqh (jurisprudence) adopted during the centuries that Iqbal had described as a period of ‘intellectual stupor’ in the world of Islam. Rights of landowners were consistently given precedence, in preemption and land reform, over the state’s concern for the landless. The orphaned grandchild’s right to inherit, allowed by the reform of 1961, was also struck down.
What is the way-out of the statis in religious, juristic and political thought that seems intent on resisting all attempts at a creative engagement with, and reconstruction of, tradition? No legal system and its accompanying jurisprudence, whether avowedly secular or consciously based on religious precepts, can retain the legitimacy necessary for its sustenance unless it has foundations in the norms and beliefs prevalent in the community.
In viewing the “intellectual stupor” into which the world of Islam had fallen and in looking for pathways towards a reconstructed framework of thought and action Iqbal wrote: “During the last five hundred years religious thought in Islam has been practically stationary. There was a time when European thought received inspiration from the world of Islam. The most remarkable phenomenon of modern history, however, is the enormous rapidity with which the world of Islam is spiritually moving towards the West. (Iqbal 1932:7)”
For Iqbal, the spiritual move towards the West did not constitute an abandonment. He wrote: “There is nothing wrong in this movement, for European culture, on its intellectual side, is only a further development of some of the most important phases of the culture of Islam” (Iqbal: 1932:7)
For Iqbal, the democratic spirit and the concern for the fulfilment of the creative possibilities of the individual are features of modern Western thought that may be assimilated into the reconstruction that he proposed. However, he cautions that “the dazzling exterior of European culture may arrest our movement and we may fail to reach the true inwardness of that culture”.