Ehtram-E-Ramazan Ordinance Is Unconstitutional And Un-Islamic. Here’s Why
Yasser Latif Hamdani in this article argues that Ehtram-e-Ramazan (Amendment) Bill 2017 is an un-Islamic law since the Holy Qur’an and Sunnah did not bar those not fasting from eating during the month of Ramzan. Yasser compares the law with the US’ “Blue Law” which was repealed by most states for being ultra-vires to the US constitution.
The Constitution of the Islamic Republic of Pakistan is not a perfect document. Yet it is the only Constitution we have and some parts of it one can truly appreciate. In particular we have Article 20 of the Constitution, which gives every citizen the right to profess, practice and propagate his or her religion. Tragically though the framers of the constitution clipped the wings of this article by making this right subject to law, public order and morality.
Enter Zaheeruddin v. the State 1993 SCMR 1718 and we find that this right is further circumscribed by the notion that Muslims are easily outraged by others and the right can only be exercised to the extent that it does not outrage the feelings of Muslims. The problem is that Muslims are outraged by so many things that in essence Article 20 becomes meaningless for the most part.
So for example the sight of an emaciated hardworking labourer in 41 degree Celsius heat drinking water during Ramzan has all the elements of “outraging” the feelings of good and pious Muslims of Pakistan. Therefore this fundamental right of religious freedom is really meaningless in light of the judgments of the honourable Supreme Court of Pakistan. There is no religious freedom in Pakistan, except for pious Sunni Muslims.
Yet I propose that the Ehtram-e-Ramazan Ordinance, which makes eating, drinking (water or any beverage) and smoking a criminal offence, is unconstitutional but for wholly different reasons. Article 227 of the Constitution contains the repugnancy clause. It states: “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.”
The question really then may be asked if Ehtram-e-Ramqzan Ordinance is in accordance with injunctions of the Holy Quran and Sunnah. Quran and Sunnah prescribe no punishment for not fasting during Ramzan. Fasting is like prayers – a religious obligation, failing which it becomes a matter between man and god. This is keeping with the Quranic injunction which many Muslims do not tire quoting, which Surah Al Baqarah verse 256: “There is no compulsion in religion. Verily, the right path has become distinct from the wrong path.”
The Ehtram-e-Ramazan Ordinance therefore stands in contravention to a clear and binding injunction of the Holy Quran – that you will not compel people to pray, fast or perform any other religious act. It is not just non-Muslims whose religious freedom is in question. Islam itself forbids fasting for categories of people: women during their menstrual cycle, sick people and those who are not sui juris.
Furthermore there are relaxations for those who are traveling and performing other hard tasks. Fasting is farz on only the able bodied adult Muslims and even if some of them choose not to fast, there is no worldly penalty or punishment. How then can the blanket ban on eateries of the kind imposed by Ehtram-e-Ramazan Ordinance be considered Islamic?
The Ordinance seems to acknowledge this. However, the application of this law has more often than not targeted non-Muslims because, in practical terms, it is impossible to tell whether a person is ‘under obligation’ to ‘fast’ just by looking at the person. The second exception is for those people under obligation to not eat, drink or smoke in public. So, in other words, it is okay for a person under obligation to eat, drink and smoke so long as he or she does it privately.
Now the logical extension of this would be that a person not under obligation can eat, drink or smoke as he or she pleases. It goes without saying that this legal freedom is not honoured by the police who target the poorest of the poor in enforcing this law. It is quite a sight watching labourers being hauled into jail for a merely drinking water during these extremely hot months.
God chose not to give this power to earthly authority. Furthermore, God explicitly asked the believers to be mindful of the fact that there could never be any compulsion in religion. No Muslim state of yesteryear imposed such a ban. There is no record of such a law or prohibition during the Holy Prophet’s (PBUH) time, nor did the rightly guided Caliphs ever implement it. Neither Ottoman Empire nor the Mughal Empire had any such law in force, even under the rule of a religious puritan like Aurangzeb Alamgir. Does the Islamic Republic of Pakistan imagine itself a more pious state than these noble examples from Islamic History?
Really, the inspiration for such laws comes not from Islamic history but rather blue laws that were sometimes implemented in certain states in the US. The United States of America had till a few decades ago a curious legal creature called the “Sunday Closing Law” also known as the “Blue law” on statute books of many of its constituent states.
On Sunday, that day being the “Christian Sabbath”, it was forbidden to carry out any business or for grocers to sell anything except necessities. The law applied across the board and was thus an instance of a religious law. Ultimately most states were forced to repeal this law for being ultra-vires to the US constitution which promises freedom of religion and freedom of conscience.
Enshrined in the US constitution is the first amendment which forbids the state to either establish religion or forbid the practice of it. Thus freedom of religion was a fundamental constitutional right and the basis of the repealing of the Blue Law in most states.
Pakistani Constitution does not have the first amendment but it does have the repugnancy clause and therefore the Surah-Al-Baqarah verse 256 is part of Pakistani Constitution. Hence one can argue that the Ehtram-e-Ramazan Ordinance is ultra vires to the Constitution of Pakistan for being repugnant to a clear Quranic injunction.
The writer is a lawyer and commentator. He is also the author of the book ‘Jinnah: Myth and Reality’.