The following is a guest post by Tariq Ahmad, a foreign law specialist in the Global Legal Research Directorate of the Law Library of Congress. Tariq presented a webinar on the subject matter of this post on May 21, 2020. He has previously contributed posts on Islamic Law in Pakistan – Global Legal Collection Highlights, the Law Library’s 2013 Panel Discussion on Islamic Law, Sedition Law in India, and FALQ posts on Proposals to Reform Pakistan’s Blasphemy Laws and Article 370 and the Removal of Jammu and Kashmir’s Special Status. This blog post is part of our Frequently Asked Legal Questions series.
This post provides an overview of Pakistan’s governmental responses to COVID-19 involving religious activity, religious gatherings, and processions, particularly leading up to and during the holy month of Ramadan, and the level of cooperation and conflict among religious scholars and Islamic institutions. It focuses on the federal government’s response and the response of the government of the Sindh province.
1. What is the constitutional and legal framework for the management of epidemics and health emergencies in Pakistan?
Pakistan is a federation comprised of four provinces, two autonomous territories, and one federal territory. The constitutional division of legislative responsibilities between the federal government and the provinces is enumerated by legislative subject lists in the Fourth Schedule of Pakistan’s constitution. Public health and health emergencies appear to come under the constitutional domain of provincial governments as residual subject matters that were devolved to the provincial governments under the 18th amendment to the constitution. However, under Part 1 of the Fourth Schedule, the federal government does have exclusive jurisdiction over port quarantine and hospitals connected to port quarantine.
Like India, Pakistan inherited the Epidemic Diseases Act 1897, a British colonial-era law, which gave both the federal and provincial governments powers to regulate epidemic diseases. This law was replaced by the Epidemic Diseases Act, 1958, and after the 18th Amendment, this law was adopted as provincial-level legislation. Section 2 of the Act grants the relevant provincial government the “power to take special measures and prescribe regulations as to dangerous epidemic disease.” In the province of Sindh, this Act was replaced with the Sindh Epidemic Diseases Act, 2014, which aimed to consolidate the law for the “prevention of the spread of dangerous epidemic disease in the Province of Sindh” but more or less retains the limited provisions from the 1897 Act. More recently, in late March 2020, the province of Punjab promulgated the Punjab Infectious Diseases (Prevention and Control) Ordinance, 2020, in response to the COVID-19 epidemic, providing more extensive and detailed powers to deal with the prevention and control of epidemic diseases.
2. What are some of the relevant constitutional and legal frameworks for Islamic law, Islamic institutions, and mosques in Pakistan?
The current 1973 constitution declares that the official name of the country is “the Islamic Republic of Pakistan” and that Islam is the state religion. The Objectives Resolution, Pakistan’s foundational constitutional document that set out the objectives on which the future constitution of the country would be based, was adopted by the Constitutional Assembly of Pakistan on March 12, 1948, and was later incorporated as a substantive part of the current constitution through article 2-A. The resolution stipulates that “sovereignty over the entire universe belongs to God Almighty alone and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust” and “that Muslims were to be enabled to order their lives in the individual and collective spheres in accord with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah.” Article 31 makes the “Islamic way of life” a principle of policy and calls on the state to endeavor to secure the proper organization of such things as auqaf (plural of waqf, a form of charitable endowment under Islamic law “whose revenue is dedicated to a specific purpose in perpetuity”) and mosques.
The Ministry of Religious Affairs is the main federal government agency responsible for religious matters, but its work is largely limited to functions such as research, training of ulema (religious scholars), and overseeing pilgrimages outside Pakistan, particularly to India and Saudi Arabia for Umrah and Hajj. Provincial governments also have religious affairs or awqaf departments that maintain and regulate historic and prominent religious shrines, mosques, and other waqf properties.
The Council of Islamic Ideology (CII) is a federal constitutional body that provides advice on Islamic law issues but has no law-making authority. Its functions include advising the president, Parliament and provincial assemblies whether a proposed law is or is not repugnant to the Injunctions of Islam and to make recommendations as to the measures for bringing “existing laws into conformity with the Injunctions of Islam.”
3. What initial measures have the federal and provincial governments taken to deal with religious congregation in Pakistan?
Religious gatherings have been identified as a significant means of local transmission of COVID-19 in Pakistan and other countries. For example, in early March 2020, the Tablighi Jamaat, an offshoot Deobandi revivalist group known for its missionary work, held a conference outside the city of Lahore that was subsequently reported as accounting for 27% of cases in the country by late April. On March 17, the Pakistan Ulema Council (PUC), a nongovernmental organization of Islamic clerics and legal scholars from different schools of thought, issued a decree telling people to postpone all political/religious gatherings, follow issued government measures/guidelines, and postpone convocations and examinations. However, there were no recommendations to close mosques or limit the number of congregants during prayers. Instead, the PUC called for the implementation of certain safety measures in mosques, such as distancing between rows of worshipers and advising elderly and sick to pray at home.
The minister of religious affairs and the president of Pakistan are heavily involved in discussions with religious scholars on government measures impacting mosques. In March 2020, the National Security Committee also tasked the CII with consulting the ulema “regarding the holding of religious congregations especially the Friday prayers.” The CII also forwarded a set of recommendations to the federal cabinet and religious scholars, which included postponing religious gatherings. The CII called on “clerics and the public to cooperate with government measures” and to keep the Friday prayers short and urged the “elderly and children not to visit mosques.” On April 2, 2020, the CII provided more detailed points of guidance in a press release to the public and government, including that it
- supported the decision to limit congregational prayers (saying that there should not be a perception that mosques are being locked down)
- urged people to stay at home to practice social distancing and called upon them to follow safety precautions
- wanted the government to cooperate with imams and not link the virus to a particular religious group or sect
In Pakistan, various lockdowns were implemented in March in response to the COVID-19 pandemic. These were largely imposed by provincial governments and decisions to extend or ease the measures were being taken in coordination with the federal government through a National Coordination Committee. The federal government has also issued various guidelines and standard operating procedures (SOPs), including on social distancing, home quarantine, and prayer congregations during Ramadan.
Prior to Ramadan, the federal government did not close mosques but attempted to limit congregants at prayers. On March 26, 2020, the President of Pakistan, during a video conference with governors and religious scholars from various schools of thought, “urged Ulema to advise and educate the people to stay indoors and offer their prayers in their homes to help contain spread of covid-19.” On the same day, the federal minister of religious affairs is reported to have said that “mosques would remain open and congregational prayers would be offered in ‘limited numbers’,” and the next day he announced gatherings would be limited to a maximum of five people during congregational prayer.
The Sindh provincial government was the first province to attempt to impose a stringent lockdown strategy. On March 22, 2020, it issued an order pursuant to section 3(1) of the Sindh Epidemic Diseases Act, 2014, which included a ban on religious gatherings and congregations with the exception of “unavoidable religious rites” like funeral prayers and burial rites. In response to the above federal decision, the Sindh government stated that citizens will not be allowed to offer congregational prayers/Friday prayers in mosques, with only mosque administrators (three to five people) able to offer congregational prayers. However, attempts at the federal and provincial level appeared to have been unsuccessful as, although attendance at prayers was reported to have dropped significantly across Pakistan, it was “not close to the government’s limit,” and enforcement efforts also appeared to be ineffective.
4. What were subsequent issues and measures that arose in anticipation of and during the month of Ramadan?
In the days leading up to the start of Ramadan (April 23, 2020), the federal government was under pressure from religious scholars and religious political parties to ease the measures against congregational prayers. On April 14, a joint statement was issued by clerics and leaders of religious parties calling for the lifting of congregational prayer limits as long as certain safety measures were taken. The main rationale was that, like other essential things that were open, “prayers are essential for Muslims.” One high-profile Deobandi scholar, Muhammad Taqi Usmani, felt that the “restriction of three or five people at mosques is not proving practical.” Prime Minister Imran Khan was reported to have assured the clergy that he would meet with religious scholars to discuss the restrictions.
On April 18, after a consultative meeting with religious scholars chaired by the president of Pakistan, the federal government and clergy reached a 20-point agreement on a Standard Operating Procedure (SOP)/Guidelines to allow prayer congregations and tarawih prayers during the holy month of Ramadan. Tarawih are the optional congregational prayers performed by Muslims at night after the mandatory night prayer during Ramadan. Some of the points of the agreement (for a more complete list see here) included that there would be no carpets in the mosques; floors would be cleaned thoroughly with chlorine; there should be six-foot distance between people offering prayers; mosque courtyards would preferably be used instead of halls; and ablutions should be done at home with hands being washed with soap for 20 seconds. Congregants should observe social distancing and refrain from any gathering after prayers. Mosques should be avoided by children, those aged 50 and above, and those suffering from any disease, including flu, fever, and cough. Committees should be established to ensure implementation of the guidelines.
The agreement concludes that the government can review the agreement during Ramadan if precautionary measures were not being adhered to or the number of coronavirus infections rises sharply. The prime minister’s stated position on the agreement was that it is a “middle ground” as people would have insisted on congregating during Ramadan anyway, and that Pakistan is an “independent society” and the government cannot force people not go to mosques.
The Sindh provincial government, however, in reaction to a surge of COVID-19 cases in the province, decided to limit tarawih prayers to only the staff of mosques, with a restriction of “around four to five people.” On April 23, an order was issued by the Sindh government that stated tarawih prayers are not farz (mandatory) prayer and should be offered at home “as per sunnah.” In late April, Dawn news reported that “more than 80pc of mosques in Punjab and the federal capital did not implement the agreement reached between the government and Ulema regarding the first Taraweeh congregations.”
On May 8, 2020, religious scholars and groups of the Shi’i sect expressed to the government their resolve to carry out processions to commemorate Yaum-e-Ali (commemorating the martyrdom of Imam Ali (the first Shi’i Imam and fourth Sunni Caliph). On May 11, the federal government issued a notification that the 20-point SOP will remain applicable during the last ten days of Ramadan and during Eid prayers and that no procession of any kind during the last ten days of Ramadan will be allowed. All major provinces also barred religious processions, with the Sindh government amending the above order twice on April 27 and May 11 to ban religious gatherings, processions, and rallies during the holy month, including the Yaum-e-Ali processions.
On May 18, as the government began easing the lockdown in phases, prominent clerics and scholars, including Muhammad Taqi Usmani, issued an announcement for the “resumption of five-time congregational prayers at mosques across the country” and “appealed for a formal announcement by the government to lift the ban on congregational prayers and Taraveeh as it would give people some confidence and help remove fear from society.”
5. What are some of the religious, political, and financial factors that make cooperation between the religious groups and the government more challenging?
Although Islam has always played a significant role in Pakistan’s state and society, it was during the 1970s and 1980s that the most significant expansion of the political role of Islamic clergy and religious political parties occurred. There was a vast expansion of madrassas (religious schools) through state zakat taxation, and foreign funding was provided by Saudi Arabia to help recruit militants during the Soviet-Afghan war. Moreover, the dictator Zia ul Haque’s Islamilization process – as Professor Arsalan Khan observes – “expanded the scope of Islamic law in Pakistan, establishing the Federal Shariat Courts to ensure that laws are in keeping with Islam, passed a range of anti-women (Hudood Ordinances) and anti-minority (Ordinance XX against Ahmadis) legislation, mandated the teaching of Islam in schools, and generally promoted Islamic institutions.”
Although religious parties do not currently tend to win majorities or pluralities in general elections, more mainstream parties often court their support during elections and have at times been coalition partners at the federal and provincial level, giving them significant political influence. Also, the state is hyper-cautious on sensitive religious wedge issues, such as Pakistan’s blasphemy law, fearing political agitation and street protests, so often lack the political will to confront clerics and religious groups.
Furthermore, although Islam is central to the state’s identity, Islamic clerical authority in Pakistan is not fully molded with the state apparatus, unlike countries like Iran. This makes it much more challenging to align Islamic jurisprudential reasoning and discourse with state policy. At an administrative level, although many historic mosques and shrines are considered waqf properties and are under the control and operation of provincial awqaf and religious affairs departments, most mosques in Pakistan appear to be subject to either minimal or no regulation – with governments having little control over their day-to-day operations. Therefore, it is difficult for the state to impose and enforce rules related to COVID-19.
Some academic scholars think the clerical perception of the closure of mosques and restrictions on congregational prayer is not just a matter of this being a threat to Islamic authority. Some observers note there is history in the Islamic legal tradition of adjusting jurisprudential (fiqh) positions in response to emerging situations (many scholars rely on Islamic doctrines such as maslaha (public interest) to do so “in cases not regulated by the Quran, Sunnah, or qiyas (analogy)”), but it usually takes some time for this to happen. One professor of South Asian Islamic studies, Ali Altaf Mian, observes that religious schools of thought in South Asia, such as the Deobandi school, “prefer to ground their fatwās in legal precedents and longstanding modes of legal reasoning intrinsic to their School instead of integrating modern knowledge or appealing to maṣlaḥah.” He notes that “emergent material realities ultimately change fiqhi perceptions, and it is only a matter of time before traditionalists’ perceptions change for the better. [T]hen, they often come around to mainstream perceptions of emergent realities.” However, he considers the problem is that, with a virulently spreading epidemic where every day and week counts, “we can’t wait for perceptions to be transformed by emergent material conditions.”
The difficulty of evolving jurisprudence is not the only factor underlying the stance of religious parties and scholars in Pakistan. Political and religious competition between various Islamic sects and movements (Deobandi, Barelvi, Ahl-Hadith, etc.) has also lead to more hard-line stances over certain religious issues. Professor Arsalan Khan notes that
[t]he politics around Islamic authority in Pakistan is an immensely competitive space, and this competition shapes the refusal of the ulema to implement the closing of mosques despite the dire threat of Covid-19.
Nobody wants to be seen as backing down from the commitment to a foundational religious practice like congregational prayer. In the competition for being the authentic and true representatives of Islam, admitting the need to close mosques is to cede the symbolic value of Islamic faith to others.
One news report indicates that this pressure on religious leaders also stems from a fear of lower rungs of the organizations that could replace them. Moreover, there is also a major financial incentive for imams and mosque administrators not to close mosques. All mosques, whether administered by the state or not, rely heavily on public donations – particularly during the month of Ramadan. As reported by the New York Times, “money can make or break an imam and the followings they try to build, often to parlay into political power to challenge the government.”