BACKROUND PAPER FOR THE DCI

• Document Type: CREST
• Collection: General CIA Records
• Document Number (FOIA) /ESDN (CREST): CIA-RDP90G01353R001200190005-8
• Release Decision: RIPPUB
• Original Classification: S
• Document Page Count: 13
• Document Creation Date: December 23, 2016
• Document Release Date: September 6, 2012
• Sequence Number: 5
• Publication Date: July 19, 1988
• Content Type: MEMO

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THE FOLLOWING DOCUMENTS
ARE ATTACHED:
(Please do not remove)
EZ aStpa
SUBJECT:
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19 July 1988
NOTE TO: EA/DCI
FROM: EA/DDI
SUBJECT: Background Paper on Legal Impact of Islamic
Reforms in Pakistan
The attached paper from the office of Near Eastern and
South Asian Analysis (NESA) responds to the DCI's request
for further information on the effect that President Zia's
imposition of shariah will have on Pakistan's legal system.
As NESA's paper indicates, most of the specific impact of
Zia's action has yet to be determined. There are several
schools of Islamic jurisprudence and thus several directions
that the Islamization program could take.
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Background Paper for the DCI
19 July 1988
President Zia's recent Islamization ordinance is designed to replace
Pakistan's western based legal system with an Islamic system based on
Shariah law. Pakistani law presently is an uneasy mix of western law to
which Islamic reforms, mainly of criminal law, have been grafted. Zia has
asserted that his reforms are intended to purge Pakistan of "the dross of
non-Islamic values." In essence, Pakistan's western judicial code and
constitution is a mix of rights and obligations. Classic Islamic law is a
facet of Islam which lays down rules of behavior for believers. Therefore,
it is centered an's obligations and duties rather than
his rights.
The dimensions of Zia's reforms are unclear and have created great
uncertainty within Pakistan.
--There are five recognized schools of Islamic jurisprudence; four are
Sunni and one is Shia. The Figh Hanifa is the Sunni school that is
probably closest to Zia's beliefs. The Fiqh Jafria is the school
followed by Shias who make up about 20 percent-of Pakistan's
population. It is unclear which of the five schools would be
adopted or if the judges would be free to choose a school or pick
and choose among them.
--The schools hold contradictory views on many potentially important
issues. For example, Sunni jurisprudence requires mandatory
charitable contributions, called Zakat. Shia jurisprudence makes
Zakat voluntary. Intense Shia opposition to Zia's 1980 Zakat
Ordinance that adopted the Sunni view of mandatory contributions
forced the President to recognize the position of both schools on
this Issue.
--In general, the Shia Fiqh Jafria permits a judge more latitude in
creating and modifying legal precedents. The four Sunni schools
traditionally hold that the concept of Ijtihad (creation of new
legal precedents based on the Koran and Sunnah--the latter are legal
rulings by the Prophet Mohamed and those of his immediate
successors) was replaced during the 10th century AD by Taglid
(adherence to recognized precedents).
--The Chief Justice of Pakistan's Federal Shariat Court has asserted
that the Court is merely guided by the interpretations of the five
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Islamic schools. The Chief Justice declared in 1986 that classic
Islamic precedents could be rejected by the Court if the departure
does not contravene the clear command of'the Koran or Sunnah.
Impact of the 1979 Reforms
Zia's 1988 Shariah Ordinance is only his latest attempt to reform
Pakistan's law along Islamic lines. In addition to the 1980 Zakat
Ordinance, Zia in 1979 proclaimed the Hudood Ordinances. These ordinances
replaced Pakistan's western law in four broad areas: sex crimes, narcotics
abuse (both of alcohol and drugs), crimes against property (i.e. theft) and
false witness (i.e. the commission of perjury in filing a Shariat charge).
Trials under the Hudood Ordinances are conducted by District judges who are
not required to be trained in Islamic law. There is no provision for trial
by jury. At the same time Zia decreed Hudood crimes, he created the
Federal Shariat Court as an appellate court for Hudood cases. Zia also
added a Shariat Bench to Pakistan's Supreme Court and made the latter the
final court of appeal. The Shariat Bench consists of three Supreme Court
justices and two Islamic legal experts.
The Ordinances recognize a distinction between "Hadd" crimes which are
expressly defined in the Quran and Sunnah (ex. adultery, theft) and "Tazir"
crimes. The latter are less severe crimes under the same general category
or Hadd offenses in which the evidentiary requirements to sustain a Hadd
sentence can not be satisfied. Hadd crimes are subject to more severe
punishments than are Tazir crimes. Thus, adultery requires four pious
adult male witnesses to the act and the confession of the accused which may
be recanted at any time. Theft requires two adult male witnesses to a
theft of property worth more than 4.457 grams of gold. If these
evidentiary requirements are satisfied, the penalty for adultery is death
by stoning. For theft it is amputation of the right hand. (Sunni schools
generally recognize amputation to the wrist, Shia Fiqh Jafria the fingers
or a portion of them). If the Hadd evidentiary requirements can not be
met, the judge tries the case under Tazir. He can not award the Hadd
penalties for a Tazir offense but may set lesser penalties, including
imprisonment, fines, and/or flogging.
Some Pakistani trial courts have convicted defendants under Hadd
sanctions but the Federal Shariat Court has never upheld a Hadd sentence.
The Justices have always found the trial judge in error for failing to
adhere to the evidentiary requirements and have remanded the cases for
retrial under Tazir. The Federal Shariat Court has sustained Tazir
sentences but, according to one academic, has usually reduced the sentence
imposed.
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The Hudood Ordinances have effectively created three categories of
Pakistani citizens, male Muslims, female Muslims, and non-Muslims in
descending order of legal importance. They are binding on all Pakistani
citizens regardless of religion, but the Federal Shariat Court has ruled
that only Muslims may argue cases and only Muslims may serve as Shariat
judges. Women's testimony is either excluded, as in theft cases, or
downgraded, usually with the testimony of two women being equal to that of
one man. We believe that taken to its logical conclusion, full
implementation of Shariah law in Pakistan will exclude women and religious
minorities from the legal profession and the judiciary.
Impact of the 1988 Ordinance
The 1988 Ordinance does not abolish Pakistan's pre-existing western
judicial system. Rather, "Muftis" trained in Islamic jurisprudence are to
be appointed to assist the appellate courts in interpreting the law to
bring it into conformity with Islamic precepts. Muftis can also be
appointed as trial judges but only the appellate courts will have the
authority to strike down a law as un-Islamic. We believe that Zia
envisions the gradual replacement of Pakistan's western law with Shariah
law. He probably hopes to eventually abolish the western judicial system.
The impact of Zia's 1988 Shariah Ordinance on women is unclear. At the
least, it provides a legal basis for challenging the validity of the 1961
Family Laws Ordinance. Arguably, the 1961 Ordinance's restrictions on
divorce and polygamy, and its provisions for adoption and inheritance are
un-Islamic. Traditional interpretations of Islamic law:
--permit a man to divorce his wife by repeating "I divorce you" three
times,
--permit a man to have four wives without the consent of his wife or
wives,
--do not recognize the concept of adoption,
Some Pakistani women activists assert that passages can be found in the
Koran and Sunnah that would justify barring women from holding political
office--an interpretation that would effectively bar Zia's main political
opponent Benazir Bhutto from political life.
Also unclear is the impact of the 1988 Ordinance on banking and
financial laws. The Ordinance mandates a committee of economists, jurists,
and Islamic scholars to recommend reforms by July 1989. It probably
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empowers the western appellate courts rather than the Federal Shariat Court
to determine if Pakistan fiscal, taxation, and banking laws are Islamic.
The Ordinance also requires existing financial contracts and obligations
made by the government to be honored. however,
that the business community is concerned that Islamic law could be applied
to disadvantage creditors. Bankers have told US diplomats that Abu Dhabi
has used Islamic prohibitions azainst interest to protect defaulting
debtors from paying penalties.
Outlook
The impact of Zia's latest Islamic reforms is likely to be gradual and
uncertain. Zia did not abolish the pre-existing judiciary. He left it to
determine what laws are un-Islamic and made the role of the Mufti advisory.
We speculate that a judiciary trained in western law and, US diplomats
report, basically uncomfortable with Shariah law is likely to resist
radical change. Modifications are likely to be made on a case by case
basis. Like the Chief Justice of the Federal Shariat Court, the secular
judges will probably assert they have the power to construe the
requirements of the Koran and Sunnah rather than being bound by the
precedents of the five main schools of jurisprudence. Except where the
Koran or Sunnah clearly limits their flexibility, they will probably look
for Islamic analogies to existing western legal concepts in Pakistan's
laws.
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I I
SUBJB?: Background Paper for the DCI
Pakistan: Legal Impact of Shariah Reforms
6 - DCI
1 - DDCI
2 - DCI/DDCI Executive Staff (1 - EA/DCI, 1 - EA/DDCI)
1 - DDI
1 - ADDI
1 - D/NESA
1 - DD/NESA
1 - C/NESA/S0
1 - C/NESA/SO/P
1 - SO/P
DDI/NESA/S0I I(19 July 1988)
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23 June 1988
FROM: EA/DDI
SUBJECT: Implications of Zia's Islamization Program
The Office of Near Eastern and South Asian Analysis has
prepared the attached material on the implications of
President Zia's recent mandating of Islamic reform of
Pakistan's legal system. The material responds to the DCI's
request for an analysis of the subject, which was raised at
last week's meeting at State. The DDCI may also wish to use
the material for his next regular meeting at State.`
111 JUL 1988
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--Differing interpretations and a dearth of Islamically trained judges
could lead to additional delays in an already inefficient judicial
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--The Shia community--roughly 20 percent of Pakistan's population--
views Zia's ordinance as an attempt by the Sunni majority to enforce
Sunni doctrine.
--Arif al-Hussaini, President of the radical Shia Tehrik e Nifaz
Jaferia party, has denounced the ordinance, claiming that Zia has no
right to impose his views arbitrarily and that any binding Islamic
. legislation should first be passed by parliament.
Mainstream politicians and groups view the ordinance as a step backward
for Pakistan.
--The Punjab wing of the Pakistan People's Party--the largest
opposition party in Pakistan--has demanded that Zia suspend the
ordinance.
--The General Secretary of the Jamaat Islami Party--a religious party
closely associated with Zia--has said that Zia's Islamization is
purely cosmetic and that his party will resist any efforts by the
President to "work against democracy in the name of Islam."
--Women's rights advocates are concerned that Islamization will permit
fundamentalists to overturn laws protecting women in`divorce and
inheritance actions.
--The Director General of Military Intelligence at Pakistani Army
General Headquarters says that Islamization is becoming an
increasingly divisive issue and could cause problems within the
Army
It is unlikely that any of the political parties opposed to Zia will
win enough seats in the National Assembly to thwart his Islamization
ordinance. Moreover, any parliamentarian opposing the ordinance would be
open to charges that he is anti-Islamic.
--By dismissing the Junejo government and dissolving the National
Assembly, Zia has demonstrated that he still wields the political
power in Pakistan.
--We believe that few politicians--acutely aware of the example of
Junejo--will risk retribution by challenging Zia on Islamization.
The implementation and interpretation of the presidential ordinance
will likely bog down Pakistan's already cumbersome legal system. There are
several schools of Islamic jurisprudence, and there is no judicial
consensus over which one should be the wellspring of court rulings.
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Zia's Islamization Program
On 15 June President Zia promulgated a presidential ordinance that
mandates Islamic reforms for Pakistan's Western-based legal system,
including making Shariah law the supreme law of the land, and appointing
religious scholars (Ulema) as advisers to all levels of the judiciary.
--Under Pakistan's Constitution, the ordinance carries the full force
of law for only four months. Nothing in the Constitution, however,
precludes Zia from reissuing the ordinance as long as either the
National Assembly or the Senate is not in session.
--A presidential ordinance must be approved by both houses of
parliament to be permanently ratified into law. The Senate, which
was not dissolved by Zia, is scheduled to consider the ordinance in
early July, according to press reports. The National Assembly--once
it is convened--has no constitutional time limit in which it must
consider the ordinance.
--Similar legislation had been stalled in the National Assembly for
more than two years because legislators believed that the Federal
Shariat Court could use its expanded powers to exert control over
parliament.
--The ordinance makes all laws--including once-exempted family and
inheritance laws--subject to Islamic tenets. Senior appellate
courts, not just the Federal Shariat Court, are now tasked with
interpreting and enforcing Sharia law.
countries or international organizations.
already settled investment matters or dealings with foreign
A commission is now being established to provide recommendations to the
government to help in molding the economy along Islamic lines. Another
commission is also being. set up to transform Pakistan's education system
into one based upon Islamic teachings.
--The reforms mandated by the ordinance, however, will not affect
Resistance to Islamization
The Islamization ordinance is a potentially explosive measure because
there is no national consensus on which interpretation of Islam to follow--
Shia or Sunni.
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MEMORANDUM FOR: DDI
FROM: Director of Central Intelligence
SUBJECT: Pakistan
1. With Zia's current commitment to establishment
of Islamic Law in Pakistan, my attention is again directed
to what changes in the legal structure this implies. Can
you give me a note on this?
Orig - DDI
1 - ER
1 - DCI
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