The minority protection bill is both Islamic and constitutional

Published: December 9, 2016
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It is clear to me that there is enough room in Islam to accommodate a piece of legislation that sets some ground rules for conversion including age. PHOTO: FILE.

The Sindh Criminal (Protect of Minorities) Bill 2016, passed by the Sindh Provincial Assembly seeks to outlaw forced conversions. This has led to a backlash from certain quarters, the self-styled thekaydars of Islam in particular, who say that the bill is unconstitutional and unIslamic. 

Unfortunately, these people who are agitating against the law have neither an understanding of the constitution nor that of Islam. But then very few people, including I am sad to say our black coat brethren, have any understanding of constitutional law.

“Holy Quran and Sunnah are supreme under the Pakistani constitution” they scream.

Their reference is to Article 227 of the Constitution which is the repugnancy clause – no law can be made which is in conflict with Quran and Sunnah. The makers of the Constitution intended for the superior judiciary to sit in judgment on this question. General Ziaul Haq however created a parallel court called the Federal Shariat Court. What is clear, however, under the Pakistani scheme of the Constitution is that it is the fundamental rights chapter that is supreme and cannot be abridged.

Here Article 20 may be considered.

“20. Freedom to profess religion and to manage religious institutions. — Subject to law, public order and morality —

(a) Every citizen shall have the right to profess, practise and propagate his religion; and

(b) Every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions”

The most important thing to note in this hallowed constitutional article is that it gives every citizen, without distinction of faith, the right to (i) profess (ii) practise and (iii) propagate his faith. This means that every citizen is not only free to practise his faith but is also free to propagate it – convert others to his faith. Again the Constitution makes no distinction as to this being only applicable to Islam. A Christian or a Hindu or an Ahmadi for that matter, at least to the extent of this Article of the Constitution, has the right to convert people of other faiths, including Muslims, to their his or her faith, whatever it may be. This is the legal position.

Obviously this right is subject to law, public order, and morality. The use of the word “law” in particular led to the incredibly facetious and terrible judgment in the case of Zaheeruddin v State 1993 SCMR 1718 which for all practical purposes negated this fundamental right but that is an issue for another time. The question that arises – especially in light of the present anti-conversion law – is that whether or not any government in the land curtail this right for those below the age of majority?

The classification of population, according to age, is standard practice all around the world. If the state can decide that individuals below the age of 18 cannot vote, cannot drive and cannot enter into a valid legal contract, the state can also decide that an individual – at least in the eyes of the law – cannot convert out of the faith of the family he or she was born in unless the person reaches the age of majority. Therefore, the decision to bar someone from conversion before he or she has turned 18 makes perfect sense and does not offend the spirit behind Article 20 of the Constitution any more than the idea that a person below the age of 18 cannot enter into a contract offends Article 18 of the Constitution which deals with trade and profession. So it is quite clear that in terms of freedom of religion, the law is quite sound and should be defensible.

The next question is whether the law is repugnant to Islamic injunctions or not, under Article 227 of the Constitution. Allama Iqbal in his famous lectures on the “Reconstruction of Religious Thought in Islam” argued that that Islamic law had suffered on account of immobility and that it was this immobility that needed to be rectified through the principle of eternal movement – Ijtehad. He argued therefore if a Muslim State outlaws polygamy, it would be perfectly Islamic. Similarly in his pamphlet “Islam and Ahmadism” which the right wing does not tire quoting for its arguments against the Ahmadi sect, Iqbal defends the reforms of Kemal Ataturk (such as the introduction of Swiss code, ban on polygamy etc) as being more or less in line with Islamic thought.

More specifically, on the question of non-Muslims converting to Islam, one needs not a better example than from Sulh-e-Hudaibiyah (Treaty of Hudaibiyah) from the life of the Holy Prophet (pbuh). Abu Jundal, the son of Suhayl bin Amr, converted to Islam in the immediate aftermath of this treaty and was persecuted by his father. One day not long after, breaking his chains, Abu Jundal escaped to join the Muslims. The Holy Prophet (pbuh) returned him to his father, saying that he is a true Muslim, God would ultimately deliver him. The same thing was repeated in the case of Abu Baseer who too had converted and sought refuge with the Holy Prophet (pbuh).  This was because the Holy Prophet (pbuh) had bound himself by treaty of Hudaibiyah which he had entered into with the Meccans. Such a compact or compromise therefore is very much possible in Islamic law. It is clear to me that there is enough room in Islam to accommodate a piece of legislation that sets some ground rules for conversion including age.

Islam does not force people into conversion. La Ikrah fid deen – there is no compulsion in religion – is the cardinal principle of Islam. In this day and age, the age of majority is considered important for consent in all sorts of matters including financial matters. Why then must age of majority not play a role in determining whether a person’s conversion is genuine or not.

It is for these reasons that I believe the law passed by the Sindh Provincial Assembly is both constitutional and Islamic.

Yasser Latif Hamdani

Yasser Latif Hamdani

The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He tweets as @theRealYLH (twitter.com/therealylh)

The views expressed by the writer and the reader comments do not necessarily reflect the views and policies of The Express Tribune.

  • http://www.biggtech.com Muzzammil

    Muslim State vs Current State of Pakistan. Interestingly no Islamic scholar was consulted by provisional assembly.

    I think the author’s argument regarding law being Islamic is erratic based on idea of State type :)Recommend

  • Eddied

    Bravo for this excellent analysis…Recommend

  • Critical

    I guess it should be renamed as “Critically Endangered Minority Protection Bill” because Minorities have reduced from 27% to 2% in the last 60 years….Recommend

  • Huzur

    Except for the Arabs who are the original muslims the rest are all coverts…at least that is what V.S.Naipaul says.Any questionsRecommend

  • Ahmar Khan

    “Unfortunately, these people who are agitating against the law have
    neither an understanding of the constitution nor that of Islam.”

    Yes and obviously you, being the Ummah appointed spokesperson for Islamic law, have perfect knowledge and understanding of Islam. No wonder we get gems such as…..

    “Allama Iqbal argued therefore if a Muslim State outlaws polygamy, it would be perfectly Islamic”

    Polygamy is allowed in the Quran. The prophet practiced polygamy. All the sahaba practiced it. It has been part of Islamic societies for a millennium. And then you come along banning something that the messenger of Allah himself practiced and is sanctioned in the last word of God (i.e Quran) and declare you are completely in line with the message of God? Only in the cuckooland that is your brain does this make perfect sense, sir.

    You defend a law that prohibits people from converting to another faith before the age of 18 and argue that it is perfectly in line with “freedom of religion”. A law that literally stops people from choosing their own religion IS hailed and defended in the name of freedom of religion. Orwellian DOUBLETHINK at its finest.

    Lastly, here is article 227: ALL EXISTING LAWS SHALL BE BROUGHT IN CONFORMITY with the Injunctions of Islam AS LAID DOWN IN THE HOLY QURAN and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such injunctions.

    Did you miss the first part where it says that existing laws shall be brought in conformity with injunctions of Islam? If article 20 is considered contrary to injunctions of Islam then it would make sense to change it to bring the constitution in line with Islam.

    I am not a lawyer and even I can read the article 227 (the whole goddamn clause) better than you. Which college did you get your degree from?Recommend

  • wb

    With the attitude of this writer, Pakistan is not going to progress in a million years. It will continue to boil. Look at the confusion and crisis of identity of Pakistanis!!!

    Why should anything be tested for being Islamic when you have a constitution?! The question shouldn’t even arise if any bill is Islamic or not. But it arises in Pakistan, why?

    Because, while your constitution says that no law should be unIslamic, your own constitution is not completely Islamic. So, forever, you’ll be confused whether to follow Islamic Sharia as told to you by CII and your neighborhood Mullah, Qazi, Mufti or to follow constitution of Pakistan.

    Because, there is clearly a clash between Islam and constitution. Unless you get rid of Islam from your constitution you’ll never ever progress. Mark my words and ask your great grand children to answer to my great grandchildren after a 100 years. You’ll have gone backwards and we would have leaped ahead with a huge gap that you can only wish to do away with.Recommend

  • Rohan

    It’s unfortunate that everything has to be Islamic to get approval in Pakistan , if you stop it then maybe Pakistan will be a better placeRecommend

  • NKAli

    Viva! Bravo Sindh government! All humans in the world and Pakistan have equal rights. Islam is for all humans. It’s how we interpret it for personal elevation that has brought misery to the country. No one is lesser or greater in the eyes of the law. The objectors and protesters have got it all wrong. SalamsRecommend

  • Rex Minor

    It is clear to me that there is enough room in Islam to accommodate a
    piece of legislation that sets some ground rules for conversion
    including age.

    Wrong thinking! Neither the provincial nor the National parliaments of the country have any right to decide over religion issues or to administer them. The use of force in itself is a criminal act and so should it be treated. The over enthuastic Sindh legislators should better refrain from issues that they do not follow. YLH quotes of the 7th century are equaly unnecessary.

    Rex MinorRecommend

  • Pure Ind

    As its famously said the moment religion becomes the driving factor in state politics, its the beginning of the end, when will Pakistan learn!!Recommend

  • Dalan

    You mean the same Naipaul who called India an “Area of darkness”?

    https://en.wikipedia.org/wiki/An_Area_of_DarknessRecommend

  • Rex Minor

    IYLH is using the same recipe that the countrys politicians and the military war lords have been using and is workable with illetrate masses, namely the proposed act is Islamic.

    Rex MinorRecommend

  • Rex Minor

    Polygamy is allowed in the Quran.

    If this is how you interpret Quraan, then you have a lot to learn about Islam, the first of Ibrahimic religions which prohibits polygamy.Recommend