ISLAMABAD — Pakistan's religious hierarchy appears to be divided over the appointment of the country's first Hindu Chief Justice, who took the oath on Saturday, March 24, in the latest escalation of the crisis triggered by the ouster of the former chief justice.
"A non-Muslim cannot become the chief justice in any Islamic country from the Islamic and the Shari`ah point of view," Senator Maulana Samiul Haq, the head of the Senate Religious Affairs Committee, told IslamOnline.net.
"How come a non-believer administer the oath to the president and other government functionaries, who take oath in the name of Allah and Qur'an?" he wondered.
Justice Rana Bhagwan Das, a Hindu, took the oath Saturday as the new chief justice of Pakistan.
Maulana Samiul Haq insisted that it was "mandatory" for a Qazi (judge) to be a Muslim.
He said the situation could become even more critical because the Shari`ah Appellate Bench also worked under the Chief Justice and a final decision relating to Shari`ah was in the jurisdiction of the chief justice.
"The chief justice also acts as the head of Shari`ah bench. How can a non-Muslim head the Shari`ah court while he doesn't believe in Quran, and Sunnah?", he asked.
" Pakistan is an Islamic country, and it is clearly mentioned in the constitution that now law of the land shall be made or implemented in contravention of Quran and Sunnah. If this is the case, then how can a non-believer interpret Quran and Sunnah while declaring any judgment."
Rana Bhagwan Das is the second non-Muslim Chief Justice in the 60-year-old history of this South Asian country.
Justice A.R Cornelius, a Christian, had served as chief Justice in the 1960s.
After Christians, Hindus are the second biggest religious minority of Pakistan, contributing less than 2 percent to the total population of 160 million.
Criteria
Mufti Muhammad Naeem, head of International Binoria University, insists that under Qur'an and Sunnah there are conditions for any one to become a judge.
"A non-Muslim cannot be Qazi-ul-Qaza (chief justice) in a Muslim country," he told IOL.
"A Qazi must have the knowledge of Qur'an and Sunnah. And if he has no knowledge or understanding of Qur'an and Sunnah, he cannot be a judge," he contended.
"Even, any Muslim can not be a Qazi if he has no command of these subjects."
The religious scholar said that even mere understanding of Quran and Sunnah was not enough to be a judge in an Islamic country.
"The judge must fulfill some other necessary conditions, including good reputation, honesty and dignity.
"If a person has good grasp of these (Quran and Sunnah) subjects, but he doesn't have a good reputation, he cannot be a judge."
Mufti Naeem said that in line with Pakistan's constitution, a non-Muslim could be the chief justice, but as per Shari`ah, he could not.
"I don't consider our constitution in accordance with Shari`ah either. Therefore, the argument about acceptance of a non-Muslim chief justice is not correct."
Not Essential
Hafiz Hussein Ahmed, the deputy leader of the parliamentary bloc of the six-party religious Alliance, Muttehida Majlis-e-Amal (MMA), believes that the condition of a Muslim chief justice is for a pure Islamic state.
"Pakistan is a Muslim state, but it does not meet the criteria of an Islamic state, therefore the condition of a Muslim chief justice is not essential in this case," he told IOL.
"Those who are opposing the appointment of a non-Muslim chief justice in the name of Islam, they must tell first that how many other Islamic principles are not being followed in Pakistan," he noted.
"For instance, interest (Riba) is haram in Islam, but it is an essential part of Pakistan's banking industry, and even it has been provided shelter by the constitution," said the senior MP.
"Therefore, we should see the appointment of a non-Muslim chief justice in the framework of the constitution."
Former judges of the Supreme Court too believe that the Constitution does not bar anybody from presiding over the apex court on the basis of religion.
Saeed-uz-Zaman Siddiqui, a former chief justice, said there was no constitutional bar on a non-Muslim from becoming Pakistan's chief justice.
"Although the 1973 Constitution is different when compared with the 1962 Constitution and President Zia-ul-Haq had introduced a full chapter relating to the Federal Shari`ah Bench but subsequent amendments have not been made and hence a non-Muslim could become a Chief Justice," he told IOL.
The 1973 Constitution requires only the president and prime minister be Muslims, Hafiz Hussein said, adding that there is no restriction on a non-Muslim to become the country's chief justice.
Not First
Justice Siddiqui said the Shari`ah Appellant Bench comprised three most-senior judges of the apex court and two scholars but it was not necessary for the chief justice to preside over the bench.
"The most-senior judge after the Chief Justice could preside over the bench," he maintained.
Retired Justice Javed Iqbal, son of Pakistan's national poet Allama Muhammad Iqbal, agreed.
"The Chief Justice could depute a senior judge to head the Shari`ah Appellant Bench and it is not mandatory for him to personally head the Shari`ah bench," he told IOL.
The same suggestion was made by Dr Javed Ahmed Ghamdi, a renowned religious scholar.
"As far as the chairmanship of Shari`ah court, this is a legitimate objection, but I can be resolved if instead of Justice Rana Bhagwan Das, the most senior justice after him, leads the Shari`ah bench."
Pir Shaib Pagara, a renowned spiritual leader and a seasoned politician, believes that the appointment of a non-Muslim chief justice should not be made controversial as this is not a new phenomenon in Pakistan.
"Those who are opposing the appointment of a non-Muslim chief justice should not forget that a Christian had already served on this position," he noted.
"Justice Bhagwan Das possesses a masters degree in Islamic Studies, and he has a much better understanding of Islamic teachings and history," he maintained.
"Therefore, his appointment should not be challenged on a ground that he has no knowledge about Islam."