Pakistan_ A Hard Country - Anatol Lieven [70]
Formally speaking, the introduction of Shariah law in Pakistan is quite unnecessary, because a series of laws beginning with Zulfikar Ali Bhutto in the 1970s have declared that all Pakistani laws must be in conformity with the Shariah. In practice, however, this is irrelevant. Legally, it has only added to the confusion and contradiction that marks Pakistan’s legal scene. Much more importantly, however, it misses the point that the campaign for the Shariah is not so much about the content of the law as about popular access to the law, the speed of the law, and who gets to enforce the law.
In trying to make the Shariah the system of justice throughout Pakistan, and to make local mullahs the judges, the Taleban are going far beyond anything that existed before. Before the British came, the Shariah was of course the official code of Muslim states in South Asia, but in practice its implementation was restricted to the cities and seats of government. Beyond, everything was governed by local customary law, albeit formally in the name of Islam.
But then again, it is not really the Shariah that the Pakistani Taleban and their allies are trying to implement in the areas they control, but a mixture of the Shariah and the pashtunwali – and this also marks a change between the old Taleban in Afghanistan before 9/11 and the ‘Neo-Taleban’ that has emerged in response to the Western presence. Between this mixture of the pashtunwali and the extremely harsh Wahabi version of the Shariah favoured by the Taleban, more progressive aspects of the Shariah are absent from the Taleban programme. In the Shariah itself, however, they remain marked when compared to the tribal codes of Pakistan. The Shariah was in consequence admired and even promoted by British officials. As the British gazetteer for Balochistan in 1906 has it:
The position of widows has been further strengthened by the following important decision given by Sir Hugh Barnes, agent to the Governor General, in November 1892 in the case of Lukman Kakar versus the Crown:
As regards a widow’s power of choosing a husband, Muhammadan law must not be over-ridden by local inhuman and ignorant custom and, in all disputes regarding widow remarriage brought before the courts in British Balochistan or the Agency territories, the Courts of law should follow the provisions of Muhammadan law, in so far as that law gives to widows full liberty and discretion to marry whom they please; and no case of this kind should be submitted to a jirga for settlement without a clear direction that on this point of a widow’s freedom of choice, no curtailment whatsoever will be permitted of the liberty and discretion which Muhammadan law allows her.17
Under the British, the Muslim Shariah Act of 1937 abrogated (officially, that is) customary laws with reference to Muslims and applied to all Muslims instead the provisions of the Shariah as regards all issues of personal law, marriage and inheritance. In justifying this, the British government of India cited the formality and certainty of the Shariah compared to the informality and endless variations of customary codes. However, according to M. P. Jain:
A much more sound reason to abrogate custom was that under it the position of women in matters of inheritance was inferior to that under Muslim law ... The abrogation of customary law was a result of the agitation carried on by such bodies as the Jamiat-ul-Ulema-i-Hind [a forerunner of the contemporary JUI], an organization of Muslim religious men. Support was lent by many Muslim women’s organizations which condemned the customary law as adversely affecting their rights.18
Educated women in the Pathan areas of Pakistan are still well aware of this difference. Thus in May 2007 I provoked a fascinating discussion among students of Peshawar University concerning the Taleban’s promotion of a strict version of the Shariah,