M O R A L R E G U L AT I O N I N A

P O S T C O L O N I A L N AT I O N - S TAT E
Gender and the Politics of Islamization in Pakistan

Saadia Toor
College of Staten Island, City University of New York, USA
................
Islamization This paper looks at two instances of ‘moral panic’ in the recent history of
Pakistan. As women are the repositories of national culture, their moral and
modernity sexual regulation is arguably coextensive with state formation. However, in
countries like Pakistan, this process cannot be understood as based on some pre-
moral
given ‘Muslimness’; rather, Islamization itself is contested terrain and not the
regulation
only source of meaning, with local tribal traditions and complex class alignments
nation-state equally at play. This is demonstrated in the first case that I discuss: General Zia
ul-Haq’s military regime’s enactment of a series of laws in the1980s
the Zina
Pakistan Ordinance and the Laws of Evidence
aimed at controlling women’s sexual,
social and political status. A direct consequence of these policies and their
sexuality
implementation was the launch of a counter-attack against the regime by urban
middle-class women who formed an umbrella organization of feminist groups
and individuals, deploying innovative forms of cultural protest in a situation
where direct public action was severely restricted. The second example,
popularly known as the ‘Saima love-marriage case’, which occurred during the
democratic years of the 1990s, also reveals how contending social classes and
cultural forces mediated their struggles for hegemony through the bodies of
women (and men). At issue throughout the discussion is the need to reorient

......................................................................................
interventions Vol. 9(2) 255
275 (ISSN 1369-801X print/1469-929X online)
Copyright # 2007 Taylor & Francis DOI: 10.1080/13698010701409186
i n t e r v e n t i o n s
9: 2 256
.........................
common-sense approaches to the victim figure of Islamic fundamentalism,
especially at a time when Islam has globally become the sign of illiberalism and
the justification of new imperial agendas.
................

This paper makes a preliminary argument about the relationship between

women, Islam and the Pakistani nation-state by looking at two instances of
‘moral panic’. My analysis is embedded within a framework which under-
1 In their stands ‘moral regulation’ to be coextensive with state formation.1 I argue
path-breaking work that the process of ‘moral regulation’ is best managed in modern
on culture and state
formation, Philip
(postcolonial) nation-states through discourses of nationalism and cultural
Corrigan and Derek authenticity, and, since women are interpellated as repositories of culture,
Sayer define moral tradition and the honour of their family, community and/or nation, control
regulation as ‘a
over women’s sexuality (and in some cases men’s) becomes a constitutive
project of
normalizing, feature of the process of state formation.
rendering natural, Islam is usually a key ingredient in national identity and culture where
taken for granted, in Muslim states are concerned, and this is true of Pakistan. However, this
a word ‘‘obvious’’,
what are in fact relationship is not a simple one; how and to what degree Islam features
ontological and within nationalist ideologies in the Muslim world is not pre-given by the
epistemological ‘Muslimness’ of the nation-state under consideration. Moreover, Islam is not
premises of a
particular and
the only ingredient, and it is often in the articulation between the different
historical form of elements of national culture, in the interstices between Islam and local
social order. Moral (feudal or tribal) traditions and the contradictions generated by them, that
regulation is
the true story lies. I pose a problematic in which nationalism and Islam
coextensive with
state formation, and feature not as monolithic superstructural ‘ideologies’ instrumentally de-
state forms are ployed by power-holders, but as internally contested and contradictory
always animated and discourses which shape subjectivities, structure social relations and legit-
legitimated by a
particular moral imate forms of power (Corrigan and Sayer 1985; Foucault 1980; Gramsci
ethos’ (1985: 4). 1988).
What we need is historically grounded scholarship which can highlight the
fact that Islam itself has always been a contested terrain. I thus strongly
argue that while their specificities should not be ignored, states in the
Muslim world should be approached as examples of the more general case of
the postcolonial nation-state, which is, ultimately, a particular kind
of modern nation-state. There is a tendency, particularly in this post-9/11
era of sanctioned Islamophobia, to understand the increasing importance of
Islam in public life within Muslim societies (and among Muslims in the
West) as ‘atavistic’ and/or evidence of Islam’s ‘essential’ inability to deal with
‘modernity’ (identified with ‘the West’)
when in fact it is precisely a result
of the condition of modernity itself, complete with its contradictions and
discontents (see, for example, Asad 1993, 1999). We have only to look at the
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
257

USA today to be reminded that the resurgence of the religious right, the
creation of ‘moral panic’ and the resultant focus on women’s bodies and
regulation of ‘deviant’ sexualities are not the purview of ‘Third world’ or
Islamic societies alone (see Asad 1993), nor can they be explained by theories
of incomplete modernization.
Tentative attempts at a synthetic understanding of the relationship
between gender/sexuality, nationalism and the state have been initiated
within postcolonial feminist scholarship, and specifically within literature on
2 See Abu-Lughod Islam and gender.2 In her introduction to one of the pioneering texts within
(1993), Kandiyoti this field, Gender, Islam and the State , Deniz Kandiyoti proposes that ‘post-
(1991), Moghadam
(1994). On independence trajectories of modern states and variations in the deployment
nationalism and of Islam in relation to different nationalisms, state ideologies and opposi-
gender/sexuality, see tional social movements are of central importance to an understanding of the
Mosse (1985) and
Parker et al. (1992). condition of women’ (1991: 2). In fact, as I argue through this paper, the
On the link between reverse is equally true: the construction and regulation of norms of gender
gender and and sexuality are crucial to processes of state formation
understood as
nationalism within
the Indian
relations of ruling
and their legitimation (Smith 1990).
subcontinent, see ‘National culture’
and the processes which underlie its production,
Butalia (2000) and enforcement and contestation
thus provides the conceptual link between
Hussain et al.
(1997).
work on gender and nationalism, and gender/women and the state. In their
monumental work, Corrigan and Sayer argue that the

‘state’ is as much ‘the concentrated and organized force of society’ . . . in the

cultural sense as in the economic, concerning wider forms of regulation and modes
of social regulation through which capitalist relations of production and
patriarchal relations of reproduction are organized. (1985: 5)

If the ‘state’ as an ‘idea’ is deconstructed and understood primarily as a claim

to legitimacy then the construction, invocation and deployment of a
normative ‘national culture’ can be understood more clearly as a means to
secure that legitimacy (Abrams 1988). Since both ‘nationalism’ and ‘culture’
are deeply gendered discourses, the field of ‘national culture’ is a particularly
treacherous one for women. In fact, postcolonial feminist work has noted
how these gendered discourses have ‘precipitated . . . iconic forms of
womanhood, which, in metaphorizing women as symbolic bearers of
national identity, have rendered the materiality of women’s lives and bodies
all the more vulnerable to forms of violence and violent exclusion’ (Banerjee
et al. 2004: 126).
In this paper I focus on two instances of the state’s engagement in moral
regulation
in the first case, through a programme of ‘Islamization’, in
particular the passage of a set of laws designed to control women’s sexuality;
and in the second, through the case of a ‘runaway love marriage’. Legislation
sets limits for the social imagination through the construction/imposition of
i n t e r v e n t i o n s
9: 2 258
.........................
a normative ideal; further, and more subtly, legislation functions as a
powerful discourse of control which imposes rule by interpellating subjects.
Women’s bodies are central subjects of this legislation. For instance, the Zina
Ordinances passed by General Zia ul-Haq in the early 1980s, which I
address in detail below, had a direct impact on women, especially those of
the lower classes. But they also indirectly legitimized feudal/tribal gender
norms which had earlier existed in uneasy contradiction to secular
constitutional law and in some cases actually contravened Islamic law.
Legislation, and the juridico-legal process in general, is part of a larger
project of moral regulation embodied in the discourse of ‘national culture’,
which is itself a synthesis of various contradictory elements. In the case of
Pakistan, matters can be further complicated by the fact that there are at
least three different legal systems in effect at any given time: the Pakistan
Penal Code, the Shariat, as interpreted by the Federal Shariat Court, and
customary law applied by various feudal and tribal jirga s.
Let me now turn to my first case
that of the military regime of General
Zia ul-Haq who deposed the popularly elected Z. A. Bhutto in 1977 and
stayed in power until 1988. Overwhelmingly, military regimes in post-
colonial Muslim countries have tended to be agents of secularism and
modernization: the earlier regime of Ayub Khan in Pakistan, and those of
Gamal Abdul Nasser in Egypt and Kemal Ataturk in Turkey are some
illustrative examples. Relatively speaking, they have also had the most
3 Ironic, then, that progressive agenda vis-à-vis women.3 Yet, General Zia’s regime was
Pervez Musharraf is
characterized by an explicitly non -secular and violently gendered agenda.
invested in pitching
himself as a The Nizam-i-Mustafa (literally, ‘social order of the Prophet’) promised by
progressive through General Zia was to be ushered in through a programme of ‘Islamization’,
his pet project of which specifically targeted women’s already limited rights. Paradoxically,
‘enlightened
moderation’. arguably the most brutal and intolerant period of Pakistani history saw the
genesis of its most vibrant women’s movement. Perhaps this is not
surprising, since women were the group whose interests seemed most at
stake in the Islamization programme. In an atmosphere where dissent of any
sort was not only not tolerated but illegal , their public and vocal resistance is
remarkable. The cornerstone of the Islamization programme was returning
women to the domestic sphere, captured by the slogan chaadar aur
chardiwari (literally, ‘the veil and the four corners of the home’), yet women
poured into the public sphere like never before
in rallies, marches and
protests.
Zia ul-Haq’s regime was the most explicit and sustained effort in Pakistani
history to impose a hegemonic nationalist project using ‘Islam’ as the
articulating principle. Although earlier regimes had also made use of Islam,
Zia attempted to secure his power through the propagation of an explicitly
misogynist ideology and by proclaiming a mission to revitalize society by
correcting the immorality of women. In doing so he invoked a distorted
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
259

relationship between Islam and the origins of the Pakistani nation-state,

articulating a vision of a national culture based on a rigid and orthodox
interpretation of Islam. Women’s groups challenging the regime were
accused of having no roots in the culture of the nation
of being part of
a ‘Westernized’ elite alienated from Pakistani society. I have argued
elsewhere (Toor 1997) that this period in Pakistani history reflects the
growing hegemony of the urban petite bourgeoisie against what it saw as a
morally bankrupt national bourgeois class. It is no accident that the
movement against Bhutto (an alliance between this petit-bourgeois class
and the landed elite), which culminated in Zia’s coup, was couched in moral
terms.
The effectiveness of Zia’s discourse of Islamization is evident in its
circulation at the level of the everyday or of ‘common sense’ (Gramsci 1988).
The regime managed to change the terrain on which questions of cultural
and social life
especially with regard to women
could be debated. As the
more recent case of Saima Waheed will show, Zia’s legacy has cast a long
shadow on Pakistan.
As a nationalist ideology, the discourse of Islamization privileged the adult
Muslim male as the ideal citizen of the Pakistani nation-state while
disempowering women, limiting their public visibility and mobility as well
as their legal rights (Saigol 1995). Martial law regulations were passed which
banned all criticism of General Zia, his government and its policies, while
censorship laws ensured compliance (Niazi 1986,1994); women were
allowed to appear on the government-controlled media only when absolutely
necessary and then with their heads covered at all times. Through cultural
institutions, formal media policies and public statements by the general
himself, the regime sought to construct a new Islamic ‘national culture’, free
of obscenity and ‘Hindu’ and/or ‘Western’ elements, and of the decadence
which had characterized the previous government of Z. A. Bhutto. Any
alternative imaginings of nation, culture or subjecthood were thus made
crimes against Islam and, by implication, the state (Toor 1997).
The Islamization programme included a broad set of priorities and
policies, which did not comprise an internally coherent project. But it was
at its most consistent when it came to laws concerning women, which reveals
the importance of the articulation of cross-class patriarchal interests to the
regime’s ideological agenda. At its heart were a series of laws, such as the
4 For a detailed Zina Ordinance and the Laws of Evidence, which aimed to compromise
analysis of the
women’s social, political and legal status.4 The Zina Ordinance was a set of
Hudood Ordinances
and the Islamization ‘Islamic’ laws delineating the bounds of ‘legal’ sexual activity. Zina in
programme of Zia Arabic means ‘illegitimate sex’, and the ordinance covered adultery,
ul-Haq see Hussain fornication and rape, making each a crime against the state. There was no
et al. (1997) and
Jahangir and Jilani provision for rape within marriage, and the law required the testimony of
(1990). four adult Muslim male witnesses of ‘good moral character’ to support a
i n t e r v e n t i o n s
9: 2 260
.........................
5 My highlighting of charge of rape. In cases where a woman actually filed charges, the legal
WAF’s class basis proviso made it impossible for her to prove rape; at the same time, her
should not be taken
admission of illicit sexual intercourse left her open to prosecution by the
as a crude critique of
the movement such state under the Zina Ordinance. Cases of the abuse of this law began to
as those
typical of mount, with women from the lower-middle and lower classes proving most
critics on the right at risk. While the Zina Ordinance made women disproportionately vulner-
and left, in Pakistan
and elsewhere
able to reprisal by the state and
by creating a public atmosphere where
which serve to women did not feel safe
by men in general, the Laws of Evidence and
dismiss feminist Compensation reduced their legal status to half that of men. Incidents of the
struggles as the
preoccupations of
public harassment of working women and domestic violence escalated. Thus
‘Westernized’ and Islamization as a strategy of control worked both at the formal level and,
‘bourgeois liberal’ increasingly, at the level of signification.
women. But to
A group of upper-middle-class women initially in Lahore, Karachi and
present WAF as an
undifferentiated Islamabad came together to form the Women’s Action Forum or WAF
an
feminist/women’s umbrella organization for feminist groups and individuals which launched a
movement without concerted attack on the regime’s policies.5 Women’s groups took to the
mentioning the class
origins of its main streets to protest against the regime’s discriminatory laws; they were baton-
members would be charged and arrested. Their protest and activism against a regime bent on
politically restricting their access to the public sphere had a symbolic importance and
irresponsible and
theoretically
was an extremely effective counter-hegemonic move. They also resisted the
problematic. Among state’s attempts at interpellation through various forms of cultural produc-
other things, it would tion and performance.6 Poetry, in particular, came to constitute an
obscure any
meaningful
important site of women’s dissent and the contestation of the politics of
understanding of the Islamization. The state’s declaration of a monopoly on the definition of
movement’s politics, ‘Islam’ created severe problems for a politics of opposition. Poets such as
strategies and
Fehmida Riaz and Kishwar Naheed appropriated a long tradition of political
effectivity. A
comprehensive look poetry in South Asia to articulate a unique vision of self and society which
at the movement functioned as a sharp critique of the Pakistani state and its version of Islam.
becomes imperative Since the manner in which they did so is best explicated through their poetry
as WAF enters its
twenty-sixth year, itself, I will quote at length from Riaz’s hard-hitting ‘Chaadar aur
along with its Chardiwari’:
original nemesis, the
Hudood Ordinances.
Sire! What will I do with this black chaadar?
6 Dance, for Why do you bless me with it?
instance, became a I am neither in mourning that I should wear it
highly politicized

and dangerous
act. Declare my grief to the world
Nor am I a Disease, that I should drown, humiliated, in its darkness
Neither a sinner nor a criminal
that I should set its black seal
on my forehead no matter what
...
Sir, be kind enough
don’t give me this black chaadar
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
261

instead, cover with it the shroudless corpse in your chambers

...
Listen to her heartrending shrieks
which raise strange specters
that remain naked despite their chaadars
...
These are the concubines!
...
They are the handmaidens
...
These are the honourable wives
who wait, queue upon queue
to pay the dues of conjugal life
...
End this spectacle now
Cover it up
7 See Ahmad (1990) The black chaadar has become your necessity, not mine.7
for the Urdu original
of this poem. Please
note that the The importance of this poetry as a mode of protest is illustrated by the fact
translations from the that Naheed was charged with obscenity and suspended from her govern-
Urdu original are my ment job, while Riaz was forced into exile in order to escape arrest for
own.
sedition.
The same poem by Fehmida Riaz ends with the assertion of a new and
confident womanhood and rejection of her interpellation by obscurantists as
an always already sexed being:

8 Because women My existence on this earth is not a mere symbol of lust

are understood as the
My intelligence shines brightly on the highway of life
property of their
family or kin group The sweat that shines on the brow of the earth is but my hard work
within patriarchal The decaying corpse is welcome to this chaadar and these four walls
societies, a woman’s My ship will move full-sailed in the open wind
decision to choose
her own marriage I am the companion of the new Adam
partner may result in who has won my confident friendship.
retaliation against
both her and the man
in question. In fact,
While the narrator of Riaz’s poem takes for granted her new agency in
the ‘traditional’ code choosing a companion, my next case involves a woman who was prosecuted
of honour killing by her own family precisely for exercising her legal right to make this choice.
requires that both of
The ‘Saima love-marriage case’, as it came to be known, provides another
the accused
man
and woman
be lens through which to consider the struggle for hegemony between social
killed by the classes in Pakistan, mediated through the bodies of women (and men).8
woman’s male kin. In February 1996, almost ten years after the mysterious death of General
However, this does
not apply in Zia and Pakistan’s return to democracy, 22-year-old Saima Waheed married
‘modern’ variants. against the wishes of her parents, leading to a contentious legal battle which
i n t e r v e n t i o n s
9: 2 262
.........................
gripped the country and generated a ‘moral panic’ around the issue of
women’s status within ‘Islam’ and Pakistani society. In Neelam Hussain’s
words, ‘[w]hat were the reasons that transformed a young woman, who
merely exercised a legally sanctioned and fundamental right to make a
9 This part of my marriage of her own choice, into an icon of national anxiety’? (1997: 200).9
essay is After all, as was established without ambiguity in a precedent-setting case
immeasurably
indebted to Neelam
decided a few months before Saima’s, an adult Muslim woman in Pakistan
Hussain’s wonderful had the religious and legal sanction to contract marriage on her own behalf,
and complex analysis without the intercession of a wali , or legal guardian. And such ‘runaway
of the ‘Saima case’
marriages’ are hardly news in a society which is characterized by significant
(1997).
gender segregation and the institution of arranged marriage; they become, in
effect, a means for young men and women to assert some modicum of
control over their lives.
Saima was not a legal minor at the time of her marriage, neither was she a
stereotypical Muslim/Pakistani woman oppressed by and/or rebelling against
the weight of tradition. In fact, far from being a victim of chaadar aur
chardiwari , she was a graduate of one of the oldest educational institutions
in Lahore, the Lahore College for Women, where she had been a member of
the debating society. Although the Lahore College is a women’s college,
extra-curricular activities such as intercollegiate debating competitions are
not segregated events
and it was at one such event that she met her
husband, Arshad Ahmad. Ahmad had a master’s degree in English and
taught at a government college in a small provincial town, supplementing his
income of Rs 5,000 a month (less than US$100) by giving private lessons.
Saima’s pocket money alone
which she received as a director of her
father’s company
was double Arshad’s monthly income.
Despite the fact that this was not an arranged marriage, or perhaps
because of it, the couple adhered as closely as possible to prescribed
procedure; she informed her parents of her desire to marry Arshad, and his
parents formally proposed marriage to her family. However, when it became
clear that her family were not only rejecting the proposal but intended to
10 This process of
registering the marry her elsewhere, Saima took decisive action. She and Arshad married in
marriage with the the office of a friend of his
a lawyer
with all the required legal and
local Union Council, religious protocol, and had the marriage duly registered with the local Union
although legally
required under the
Council.10 Saima returned home immediately afterwards, probably to defuse
Muslim Family Law any allegations of premarital sex by her family or anyone else, and some days
Act, is rarely later broke the news to her family, expecting that they would capitulate in
followed in practice.
the face of a fait accompli and agree to a formal public ceremony. However,
The fact that Saima
and Arshad despite all the careful planning and execution, she had clearly under-
registered their estimated her family’s reaction; far from receiving any kind of sanction,
marriage shows that however grudging, for her marriage, she was beaten, drugged and deprived
they were taking no
chances of having it of food for several days. She finally managed to escape and elicit the services
declared unlawful. of Asma Jahangir, a prominent women’s and human rights lawyer and a
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
263

veteran of the Zia period. Jahangir, along with her sister and other feminist
lawyers, runs AGHS, a legal aid centre for women, and Saima was put up in
11 The name of Dastak, the women’s shelter administered by AGHS.11 Again, standard
Jahangir’s centre is
procedure was followed
her family were contacted and notified of their
formed from the
initials of the first daughter’s whereabouts, and lines of negotiation were opened. They
names of the four responded by subjecting Ahmad’s family to physical harassment and by
women lawyers that filing an FIR (First Information Report) with the police, challenging the
founded it.
legality of Saima’s marriage to Ahmad.
The subsequent legal and public debates that developed around the ‘Saima
case’ deployed predictable stereotypes of the ‘good’ (obedient) and ‘bad’
(agentic) woman. As Hussain succinctly puts it, ‘[t]he asexual, obedient
woman, viewed through the lens of ideologically classed and gendered
notions of appropriate behavior, was vociferously upheld as a central marker
of morality, decency, shame and national, specifically Muslim identity’
(1997: 202). Against this, Saima’s exercise of a right granted to her by both
secular and religious law was understood and projected as quintessentially
transgressive and hence shameful both at the familial and national level. This
act of moral depravity on her part was connected to the ‘loss of cultural
purity caused by the combined influences of neo-imperial designs and the
treachery of their local collaborators’, the latter, of course, being an open
reference to feminist activists in general and her lawyer, Asma Jahangir, in
particular (ibid.).
Asma Jahangir has, over the years, become the bête noire of conservative
forces in Pakistan due to her uncompromising dedication to human rights.
Not surprisingly, she is often accused of ‘destroying’ Pakistan’s reputation
12 The latest and abroad (as well as encouraging young Pakistani women to turn against their
most revealing familial duties and thus leading them to ruin). This, of course, is the flip side
example of this was,
of course, General of the construction of women as the repositories of tradition and culture
Pervez Musharraf’s within patriarchal systems: active and articulate (i.e., agentic) women cannot
remarks about but become liabilities for the patriarchal kin systems within which they are
Mukhtaran Mai,
possibly the best-
embedded
whether the kin system in question is the immediate family, the
known survivor of a tribe or the nation. Thus it is not surprising that such women in Pakistan

gang rape ordered by and there are many
are always interpellated within public discourse as
a village council. A
threats to ‘national reputation’ and ‘national honour’, and their transgres-
complete narrative of
her case is available sion in some way mapped onto the unwelcome and undue influence within
at Bhttp://en.wiki Pakistani society of the ‘upper-class woman’, understood as ‘Westernized’
pedia.org/wiki/ and therefore morally degenerate.12 The ‘moral panic’ generated by the
Mukhtaran_Bibi
‘Saima love-marriage case’ thus provides us with an interesting lens into the
anxieties of class and the contradictions of ‘emergent patriarchies’ in
13 In the sense in contemporary Pakistani society.13
which Raymond As I state above, when it came to the legality of the marriage, Saima’s case
Williams (1981)
talks of ‘emergent was fairly straightforward and easily resolved by recourse to legal
cultures’. precedence alone. And in fact, the Lahore High Court did validate her
i n t e r v e n t i o n s
9: 2 264
.........................
marriage on legal grounds, albeit through a split verdict. The most
interesting aspect of the case, however, lies in the actual judgments of the
three judges, which expose the complexities of patriarchy within Pakistani
society and the extent to which the law itself is a contested space. The case
was argued, and ultimately judged, not within the terms of existing Muslim
family laws in the Pakistan Penal Code or the Shariat
both of which are
unambiguous in their understanding of the rights of adult Muslim women
with regard to marriage
but on the undesirability of filial disobedience, to
the extent that the judgments of both Justice Chaudhry and Justice Ramday,
while diametrically opposed in the end, expressed the desirability of making
parental authority judicially enforceable. Although both judgments talk of
this obedience in general terms
the rights of parents with regard to their
children
it is clear, given the context of the case, that the anxiety they
express is not a generalized one but a very specific gendered anxiety over
female (sexual) agency. Given that the issue at stake was whether or not the
marriage of an adult Muslim woman required the consent of her wali , it was
intrinsically gendered in so far as it brought into question the limits of her sui
juris status.
A materialist feminist analysis of the case shows the development of a
specifically moral discourse which strategically deployed notions of the licit
and illicit as a means of establishing and perpetuating a masculinist
14 I say purportedly, (purportedly Muslim) social order.14 The discourse abounds in the familiar
of course, because in postcolonial binaries of East/West, tradition/modernity, public/private,
several key respects
the judgments and sacred/profane. These need to be understood, first, in the context of
public discourse ran Pakistan’s colonial history and its contemporary postcolonial condition
contrary to (that of a people struggling to forge an identity in a society undergoing rapid
established Shariah
law on the issue.
social and economic change); and second, vis-à-vis the power strategies of
the socially ascendant fundamentalist classes engaged in a Gramscian
struggle for hegemony within Pakistan, forging alliances with the older elite
15 All of this has, of while at the same time seeking to displace them.15 Class struggle is always
course, become even already a gendered process, both discursively and materially
a fact not
more complex in the
aftermath of the often noted in either Marxist or feminist writing. The attempt of one rising
September 2001 class or class faction to replace another is simultaneously about the clash
World Trade Center between different and competing patriarchies or patriarchal arrangements.
attack and the
Islamophobic ‘war
This class context also highlights the status of women within kin networks,
on terror’. As has where they function as commodities to be exchanged, and the role of
always been the case marriage in consolidating class power (see Rubin 1975). Hence the idea that
throughout Pakistani
marriage is too important to be left to the men and women concerned.
history, the
government’s official These, then, are the factors which turned an ordinary ‘rich girl, poor boy’
position as an ally of love story into a battleground for the consolidation of class and patriarchal
the USA runs power. This battle for hegemony was mediated through the interlocking and
contrary to the
feelings of ordinary mutually constitutive discourses of Islam and nationalism, which are
Pakistanis. themselves, first and foremost, projects of ‘moral regulation’ that strategi-
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
265

cally deploy normative ideas of gender and sexuality. Saima’s family were
part of the new moneyed elite which had risen to power under Zia ul-Haq in
16 The ‘Saima case’ the late 1970s.16 The Ropris were ‘an influential family with strong
also showed how
connections in the ‘‘right’’ places
the administration, judiciary, army
state apparatuses,
social institutions and the establishment’ (Beena Sarwar, cited in Hussain 1997: 216). They
and the community belonged to a highly conservative Sunni sect of which her father and uncle
colluded in
were prominent leaders. Thus the decision by a daughter of the house to
maintaining both
legal and social publicly violate the norms of this new, upwardly mobile orthodoxy was no
control over laughing matter. The fact that she elicited the support of Asma Jahangir and
women’s sexuality
chose to live in the women’s shelter run by her law firm was to add insult to
from the discursive
construction of her injury.17
legal and religious If her family’s reaction to her wedding had not forced Saima to engage
right as an legal council, and the council in question had been anyone but Asma
inexcusable
transgression on her
Jahangir, her case would probably not have entered the public sphere. She
part, to police would not have been turned into a symbol of courageous resistance for some,
harassment of and unforgivable treachery and a threat to social order for others. It is
Arshad’s family, to
significant that the actions of Saima’s family were not just aimed at what
their refusal to take
action against a they obviously saw as an ‘encroachment’ (on their property) by a member of
member of the Ropri a lower class; they were aimed at the immoral (because ‘Western’) feminist as
family found with a represented by Asma Jahangir. After all, it must be remembered that the case
Mauser inside the
courtroom, and so was one of alleged abduction brought by Saima’s father against Jahangir and
on. For details, see not, for example, Arshad or his family. This fear of emasculation by the
Hussain (1997). See ‘uppity’ and depraved woman is therefore also a class anxiety; in their
also the Human
Rights Watch World
struggle for hegemony, the upwardly mobile class represented by the Ropris
Report 1998 (section sees Jahangir as a representative of the ‘Westernized’ and ‘morally bankrupt’
on Pakistan): Bhttp: bourgeois class. The public discourse around the ‘Saima case’ illuminated
//www.hrw.org/
once again the ways in which gender and patriarchy complicate class
worldreport/Asia-
09.htm. analysis. Thus the lines that were drawn with respect to the case did not fit
the binary of ‘liberal’ versus ‘conservative’ (or even ‘fundamentalist’); even
socially progressive individuals who supported Saima’s actions on principle
17 Asma Jahangir
and her sister Hina
were heard expressing insecurity about the precedent it set for their own
Jilani have both been daughters. The case is thus a fascinating lens through which to view the field
the subject of death of struggle between different patriarchies, highlighting as it does the very
threats from various
Gramscian way in which these sometimes contradict and sometimes
reactionary quarters

representing reinforce one another. In fact, if anything, this case illustrates the premium
interests both placed on controlling female sexuality across class lines.
religious and feudal/ In its breach of the public
private divide, the ‘Saima case’ revealed how,
tribal. The depth and
intensity of their in fact, ‘the public’ and ‘the private’ are themselves discursive constructions
hatred of Asma in which enable and organize patriarchal ‘relations of ruling’. An adult
particular became (Muslim, Pakistani) woman’s legally and religiously sanctioned right to
explicit in the
aftermath of the
marry a man of her own choice turned from a ‘family’ affair (usually
murder of Samia consigned to the sphere of the private and held to be beyond public,
Sarwar, one of their specifically state , surveillance) into a contentious public issue. The extent to
i n t e r v e n t i o n s
9: 2 266
.........................
clients, by her family which the nation is ‘imagined’ and organized as a kin group (complete with
members in Hina’s
office at AGHS.
the state as paterfamilias ) became abundantly clear through the ways in
Samia’s parents and which the public debate over this case was constructed around Pakistani
uncle subsequently nationalism. An analysis of the public discourse around the case also reveals
absconded to
the ways in which specific signs and symbols organize people’s thinking and
Peshawar. Not only
were they not enable private interests to acquire a public significance. Marriage was
arrested or charged rearticulated as a social and not a civil contract, in contravention of Islamic
by the state, but they law. Conjugality and hence licit sex could only be that which was sanctioned
registered a counter-
FIR (First by paternal consent in the figure of the wali ; thus the act of marriage without
Information Report) and in contravention of this consent was configured as effectively (if not
against Asma and legally) illicit , even if sanctioned by Islamic law. The phrase ‘lover-husband’,
Hina, claiming that
they were responsible
coined by the media when referring to Arshad, neatly captures this paradox.
for their daughter’s Saima’s case also offers a fascinating glimpse into the habitus of her
murder by leading particular class and its relationship to an increasingly global capitalist
her astray (Samia
modernity. Saima’s father was not just aware of her presence at non-
had been in the
process of filing for a segregated intercollegiate events (despite the gender segregation that was the
divorce from her norm within the family); by all accounts he took intense pride in her
husband against her achievements. She owned a car and a mobile phone
both symbols of
family’s wishes).
Several members of mobility and autonomy, as well as wealth and social status. Daughters of the
the National Ropri family were not denied access to other accoutrements of wealth, such
Assembly as swimming and riding, both activities associated with the Westernized
condemned the two
sisters in explicitly
upper classes. Their dress code was also unconventional: they wore jeans and
misogynist and T-shirts at home and even when outside, under the hijab . Thus the
violent terms, while ‘fundamentalist’ (if there is such a monolithic figure) does not unequivocally
defending ‘honour
despise the West or ‘modernity’ in the form of commodities, cultural and
killings’ as an
important aspect of other.
Pakistani culture and But all these accoutrements were given to Saima to enhance her father’s
‘Islam’. See, for
social status, in particular by making her a more desirable commodity on the
example, ‘Honour
killings: human marriage market which her father could expect to deploy to his strategic
rights defenders face advantage, given that marriages in Pakistan (as elsewhere) are still very much
death threats while about cementing relations between men . The minute she challenged his
killers walk free’,
Bhttp://www.hri.ca/ authority, these markers of privilege were summarily taken away, as was her
tribune/view mobility. Saima, on the other hand, understood her education as a means of
Article.asp?ID asserting her independence. In an interview she said:
2455. See also
Hussain (2006).
I am not a goat or sheep to be sold off to the highest bidder, and if they didn’t
marry me to Arshad, I would marry him anyway . . . I had decided to leave home
long before I met Arshad, and just wanted to finish my education so that I could be
able to support myself. I didn’t like the way our women are treated and I didn’t
want to be like them. (cited in Hussain 1997: 221)

The fact that her father exposed his daughters to the accoutrements
associated with Westernized modernity and the ‘depraved’ upper classes as
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
267

a means to secure social status highlights the relationship between desire,

class and patriarchal interests, especially as mediated by the processes of
economic and cultural globalization. Saima’s own articulation of her
position can thus perhaps be seen as a neat if ironic illustration of the
notion of ‘unintended consequences’!
Let us now turn to the actual judgments of the three presiding judges. The
case was structured around the master binary of ‘the East’ (specifically
the Muslim social order) as a sanctum of family values, versus ‘the West’ as
the locus of immorality and the disintegration of the family, when in fact it
actually reflected a contradiction between legal Islamic provisions and
18 Justice Chaudhry mainstream cultural values which have little to do with Islam.18 The
in his judgment prosecuting council focused on the importance of protecting male parental
presented such cases
of ‘runaway rights and the sanctity of the family, while the defence council highlighted
marriages’ as the the rights of the individual and foregrounded the sanctioned masculinized
literal manifestation violence within the family. The anxiety over female sexuality is obvious

of the clash of
civilizations within both Justice Chaudhry and Justice Ramday referred to Islam as a ‘natural’
Muslim societies, religion and to the ‘nature’ of women which requires that their sexuality be
darkly hinting at the controlled.19 Even the shortest judgment
that of Justice Qayyum
which
dastardly role played
by ‘certain’ Muslims
declared that Saima’s marriage was legally valid, conceded its validity only
who represented after expressing a shared disapproval of such practices in principle. Thus he
‘vested interests from finds for the defendant despite ‘sharing the anxiety of my learned brother
the west’. See
that Islamic norms of our society and the sanity [sic ] which Islam attaches to
Hussain (1997: 226)
for a fuller analysis. a family must be protected and safeguarded’ and agreeing that it was ‘[t]rue
enough that runaway marriages are abhorrent and against the norms of our
society and must, therefore, be deplored’ (Pakistan Law Digest 1997 : 352).
19 On contradictory
ideas of female Justice Chaudhry opened his dissenting judgment by invoking institutional
sexuality in Islam, authority: ‘We are national judges and as such custodians of the morals of
see, among others, the citizens’ (ibid.: 341). Far from being an independent or balanced
Sabbah (1984).
narrative, his judgment rehearsed the sequence of events from the perspective
of the petitioner, Saima’s father. Thus, among other things, he stated that
Saima was ‘allegedly’ abducted by Asma Jahangir and detained at the
women’s shelter run by her law firm (ibid.: 313). The substitution of
‘abduction’ for a voluntary act deprives Saima of agency while simulta-
neously and paradoxically criminalizing her actions (despite the ambiguity
hinted at by the word ‘allegedly’) simply for being counter to her family’s
wishes. And let us not forget the irony of a petition of abduction brought
against the legal counsel she had engaged, namely Jahangir.
This was an obvious attempt at the discursive elision of the one
unambiguous fact in the case: technically Saima had been perfectly within
her rights under Islamic law and the Pakistan Penal Code. This fact was
expressed in Justice Qayyum’s judgment where, despite sharing his learned
colleague’s deep disapproval of ‘runaway marriages’, he finds that the ‘sole
question which arises for determination is as to whether a Muslim adult girl
i n t e r v e n t i o n s
9: 2 268
.........................
20 At the beginning can marry without consent of her Wali’ and that his ‘answer to the above
of his 39-page
dissenting judgment,
question has to be in the affirmative’ given that ‘I have despite my best
Justice Chaudhry efforts not been able to discover any principle on the basis of which it can be
actually repeats the held that Nikah of sui juris Muslim girl without consent of her Wali should
arguments of the
be invalid’ (ibid.: 352; emphasis added). The contradiction between clear
prosecuting counsels
in such an uncritical injunctions of the law which recognize the sui juris status of an adult Muslim
manner that it often woman, and the ‘moral imperatives’ which require that the agency granted
becomes impossible
by this status be undermined, leads these ‘national judges’ into treacherous
to distinguish these
from his own territory. Thus, Justice Chaudhry declared in his judgment that in Islam
opinion. marriage is a social and not a civil contract; the commonly held idea that it is
a civil contract was in fact a misapprehension which could be traced back to
the period of British colonialism. In fact, rehearsing the words of the counsel
for the prosecution, Justice Chaudhry declared that, far from being a civil
contract, marriage in Islam was in fact a form of ibadat (worship).20
Brushing aside the arguments of the defence, which pointed out the
contradiction inherent in considering women to be sui juris on attaining
the age of majority when it came to ownership and control of property but
not when it came to the question of marriage, Justice Chaudhry declared that

Islam is a natural religion and the unmarried girls are deemed to be under the
protection of Wali in the matters of Nikah for the reason that all possible
conceivable modes, which may result in Nikah by the female herself, are against
decency and against accepted norms of Islamic Society. (ibid.: 317).

Moreover,

[t]he runaway marriages offend all norms of Muslim society beginning to end. The
proposition would become clear from answer to the question how a girl would
arrange her own marriage? There cannot be any other mode but of freely mixing
with males and then selecting one of them as future husband. This . . . is not
permitted rather than even encouraged by any Fiqa or school of thought because it
is against basic teachings of Islam that the people from both sexes should not have
free access to each other [sic ]. In other words the beginning is not commendable.
(ibid.: 316)

Thus, regardless of what the law (and this is Muslim family law, by the way)
says about a woman’s sui juris status, the latter could not be conceded when
it came to marriage because this would imply that she had unmediated access
to Muslim men who were not related to her
a situation that was simply
unacceptable, not by law but by the ‘accepted norms of Islamic Society’. The
defence’s ‘justification . . . is too superficial, ignore [sic] norms of Muslim
Society and nature of women’ (ibid.: 317). Even where Islamic law is clear on
women’s rights, these can be undermined or rejected altogether when they
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
269

become inconvenient or make people uncomfortable, by citing ‘accepted

norms’ and the ‘nature of women’.
On marriage itself Chaudhry declared: ‘The universally accepted principle
is that it should be made known and announced . . . On the other hand,
runaway marriage is always kept secret (ibid.). As a social contract, the
judgment argued, a marriage is not valid in Islam unless it is publicly
announced, so a runaway marriage, by its very nature secret, is necessarily
invalid. The judgment concluded that, given the importance of the family in
society, parents have a judicially enforceable right to be obeyed. At the very
least, this judgment links private and public patriarchies by asserting the role
of the state in loco parentis , even when this means that the state is effectively
subverting rights which it has itself guaranteed.
Justice Chaudhry’s judgment began by addressing ‘the importance of the
family in human life’. Drawing variously on texts as disparate as a handbook
of sociology, Will Durant’s Age of Faith , an encyclopedia of religion and
ethics, and Reader’s Digest , he put forward the argument that the family was
the fundamental unit of society, and ‘Islam being religion of nature and
covering all human activity from cradle to grave, has taken special care of
the integrity, upkeep and preservation of the family’. Marriage, in turn, was
a crucial part of the family and was about not simply the union of two
individuals but that of two families (ibid.: 326). As such, then, decisions
about such an important aspect of social life could hardly be left to the two
individuals concerned, and certainly not to the woman:

The parents are responsible for marriage of the children generally and girls
particularly. The learned counsel for the petitioner correctly referred to Encyclo-
paedia of Religion and Ethics by James Hastings to argue that this is not only in
Islam but recognized by all religions. (ibid.)

In both Justice Chaudhry’s and Justice Ramday’s judgment, the West

features as a self-consolidating Other, its current moral bankruptcy making
its history the ultimate cautionary tale. For example, when questioned as to
how this moral decline had come about, Mr Khalid Ishaque, one of the
advocates for the respondents , stated (according to the text of Justice
Chaudhry’s judgment) that it was ‘on account of legislation against divine
law’ and that ‘if the marriage breaks the spouses shall share the assets
equally’. This had happened ‘of course . . . on the agitation of women ’ and
the result was that ‘now men and women are living without marriage bond
in order to save property’ (ibid.: 327; emphasis added). It is interesting to
note how important it is for Chaudhry to argue that the incorporation of
women’s rights actually led to the destruction of Western society. Of course,
this is not far removed from the arguments put forth by conservatives within
the US itself, a fact reflected in Justice Chaudhry’s reference to an article in a
i n t e r v e n t i o n s
9: 2 270
.........................
recent issue of Reader’s Digest , that platform of conservative family values
in a sea of immorality: ‘Doing drugs, abusing alcohol, stealing, getting a
young woman pregnant out of wedlock
today, none of these behaviours is
the deep embarrassment it should be’, the writer had predictably bemoaned.
‘Many of these children will grow up without the security and guidance of a
caring father and mother committed to each other. Once the social ties and
mutual obligation of the family disintegrate, communities fall apart’ (ibid.).
Even Hilary Clinton’s ‘it needs a village’ speech was approvingly quoted to
show that the immoral West itself realized the importance of the family and
the community:

According to Mr Muhammad Akram Sheikh, Advocate, who heard the speech

himself, the response of this touching speech was very positive and for one moment
it appeared that the ‘evil empire’ of United States of America is within reach of its
lost paradise. Although it has become [sic] sole power but is feeling hollow and
deficient because of [sic] collapse of family nucleus . (ibid.; emphasis added)

Moreover, the lesson to be learnt from the moral decline of the West was
that the fault lay in the very sort of social change (read: secularism) ‘which is
being thrusted [sic] upon Pakistan society in somewhat similar fashion,
which is seen to prefaces [sic ] the subsequent explosion of family unit in
other societies in west’ (ibid.).
Secularism, as embodied in laws passed in response to the demand of the
women’s movement, leads to agentic women, which leads to immorality
(specifically, fornication and illegitimacy), which destroys ‘the family unit’
and therefore, ultimately, the entire society. Justice Chaudhry was having
none of that. He unconditionally dismissed Dr Tanzil-ur-Rehman’s Code of
Islamic Law
an authoritative source of Muslim law written by a Muslim
modernist
which the defence had referred to in arguing for a Muslim
woman’s sui juris status:

Suffice it to record here that learned author debated the point without keeping in
mind startling results. It was lost sight of the fact that it would lead to a society free
from all social and moral values . . . The Muslims did not strive in the past, they are
making efforts today and they would never endeavour for such a society in future.
The views of the learned author also lost sight of the sufferings of west by following
the theory of equality and sui juris. (ibid.: 340)

The very idea of ‘equality and sui juris’ was thus the Trojan Horse which
brought down the West and against which Muslims must forever remain
vigilant.
Given the fundamental importance of the family for society as a whole,
and the dangers of letting men and women (but particularly women) make
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
271

independent decisions about something as crucial as their own marriage,

Justice Chaudhry felt it necessary to remind parents of their duty

to marry the children particularly girls at the earliest point of time. They should
not afford opportunity to outsiders in the house or outside to come across the
young girls may be visitors, servants, drivers of public conveyance. It is absolutely
essential to preserve the purity of the homes and this is why much emphasis has
been laid by the Islam that females should not mix up with males . (ibid.: 343;
emphasis added)

Chaudhry also declared filial disobedience ‘a major sin’, stating that

‘obedience should and can be enforced by courts’ (ibid.: 345
51). This
conclusion creates a theoretical situation in which individuals can never
attain majority
at least, not until the death of their parents! Justice
Chaudhry does not appear to limit the enforcement of filial obedience to any
particular kind of action, or to a specific gender, but it is difficult to imagine
a consensus around the idea that adult Muslim men must be beholden to
their parents’ wishes in all spheres of their lives. Given his ruminations on
the family and marriage, it is clear that in effect the idea is to prevent women
from exercising agency, particularly in matters relating to choice of marriage
partner.
The third and deciding judgment
that of Justice Ramday
was the most
interesting and also potentially the most dangerous in its implications for
women. Despite ultimately conceding the validity of Saima’s marriage to
Arshad, it placed such marriages on the margins of the licit. Through this
text, ‘all women became the ground on which notions of Muslim society,
masculinity and the family were argued, sexual difference essentialised and
new areas of female sexuality criminalised’ (Hussain 1997: 233). Much like
the second judgment (Justice Qayyum’s), it set up a moral discourse and,
instead of focusing on the details of the case at hand, universalized the issue
in a way that revealed the intense anxieties at work. Referring to judgments
in other cases presided on by Justices Chaudhry and Qayyum, Justice
Ramday notes that

in all those cases, each young, unmarried girl had managed to establish contact
with a man; this contact then developed into a secret liaison and this secret affair
then allegedly culminated into a secret marriage; each girl disappeared from her
parental home; apprehending worst of consequences, the family in each case
commenced a frantic search for their daughter/sister to ultimately find out, after
weeks in some cases and after months in others, that their dear-one has contracted
an alleged marriage. (Pakistan Law Digest 1997: 353; emphasis added)

The narrative technique at work here effectively builds up tension through a

story of intrigue and the ultimate betrayal of the patriarchal family by the
i n t e r v e n t i o n s
9: 2 272
.........................
transgressive, emasculating woman. The narrative is designed to generate
‘moral panic’ by interpellating all parents as the (potential or actual) victims
of their daughters’ (actual or potential) ‘dishonourable actions’.
Within the text of this judgment, Islam’s superiority in having recognized
women as independent legal entities long before the West is asserted at the
same time (and often within the same breath) as the condemnation of Saima
for having taken advantage of precisely this recognition:

the concept of a young girl or a boy for that matter, venturing out in search of a
spouse is alien to the teachings of ISLAM and even otherwise this scheme of
HUSBAND-SHOPPING which obviously involves testing and trial of the desired
material is fraught and pregnant with dangers and cannot be viewed with favour.
(ibid.: 381)

The phrase ‘husband-shopping’ alone reveals the anxiety generated by the

inversion of normative relations of power within the marriage market, such
that the men become the commodities that women ‘shop’ for. The desired
norm, as articulated by Justice Ramday’s judgment, is that family members,
‘males or females’
after being given the required specifications by the ‘boy’
or ‘girl’ in question
‘do the search and even research and then let whatever
is available be put before the boy or girl, as the case may be, who should then
have the final choice in the matter’ (ibid.).
The judgment recognizes a possible conflict between the desires of the
partners of the marriage contract and those of the parents where it states that
‘consent of man and woman is an indispensable condition and wali has no
right to grant such a consent on behalf of the woman without her approval’,
and also that ‘it is not possible for me to hold that the parents or the family
could have a right to force someone to marry a particular individual’. Yet,
since ‘ISLAM abhors establishment of liaison between men and women and
courtships, pre-marital relationships, secret friendships and secret marriages
are forbidden in ISLAM’, and ‘the parents and family have a definite
importance and place in the social set-up ordained by ALLAH’ and therefore
‘a right to be consulted and their wishes . . . entitled to respect’ (ibid.). The
judgment also proposed legislation which would make ‘courtships, secret
friendships and secret marriages . . . a penal offence’! Bear in mind that this
was a judgment that ultimately validated the marriage, albeit grudgingly.
Justice Ramday also devoted a large part of his judgment to a discussion of
the ‘DIVINE division of labor’ between the sexes which, far from consigning
women to a position of inferiority, actually ensured their equal participation
in society by taking into account their nature, and that of men. According to
this, it was perfectly natural for women to be enticed by the supposed
attraction of the outside world in contrast to their divinely ordained role:
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
273

Curiosity and rebellion is inherent in every human being which is exemplified by

the eating of the forbidden fruit. And it is also ingrained in the nature of the
mortals that to him or her, grass on the other side of the fence always looks
greener. Therefore I am not surprised to find females craving to be left outdoors to
become professionals and the men yearning for opportunities to be able to stay at
home. (ibid.: 363)

Leaving aside the issue of how many men can be found yearning to be
consigned to what is in effect the chaadar aur chardiwari , Justice Ramday
‘understood’ that women and men had these ‘urges’ but claimed that,
unfortunately for them, God knew his creatures better and had ordained that
they could not be fulfilled
mostly because He also understood that one of
the strongest of them was sex: ‘The Creator knew that if the human beings
were to be left unchecked and unguided in the manner of sex then the same
would lead to disasterous [sic ] results’ (ibid.). After all, everyone was aware
of ‘[t]he unfortunate and the unpleasant consequences faced today by the
more permissive societies’
‘those societies which could not maintain a
proper balance between the extent of the individual’s freedom and the limits
to which the individual’s rights extended’ (ibid.: 365, 370). The result was
‘legalisation of carnal intercourse against the order of nature; the so-called
marriages between brothers and sisters, unmarried ‘‘wives’’; unmarried
‘‘husbands’’; unwed mothers and parentless children’. Ramday goes on: ‘If
this is freedom then I am afraid that this is only a freedom from all civilised
norms of society and a freedom to take human beings back into the animal
world’ (ibid.). Note, again, the seamless connection between the acknowl-
edgment of individual (read: women’s) rights and complete descent into
moral and social decay.
Saima and Arshad’s decision to marry without the consent of Saima’s
parents
and Asma Jahangir’s defence of their action on the basis of Saima’s
sui juris status
is thus equated with blind worship of a morally bankrupt
West (itself regretting its loss of a moral compass) which could only lead to
the destruction of Pakistani society: ‘Does it behove a person when he is
grown-up’, says Ramday, ‘to say that since he or she had become SUI JURIS,
therefore she or he did not need to listen to his or her parents any more or
even to consult them in any matter concerning him, or her?’ (ibid.: 374).
Ramday ultimately ruled in favour of the marriage, not on the basis of the
principle that it was Saima’s inalienable right under Islam and the law but
because ‘invalidating a marriage entails rather serious and even penal
consequences’ (ibid.: 380). Yet Saima and Arshad were forced into hiding
out of fear of reprisal from her family as well as threats from religious groups
that disagreed with the decision.
The judgments in the ‘Saima love-marriage case’ highlight the level of
anxiety
to the point of national crisis
produced by female agency (which
i n t e r v e n t i o n s
9: 2 274
.........................
is understood as related to women’s increasing access to the public sphere
and ‘free’ movement beyond the sanctity of the home). In this context,
acknowledging women’s sui juris status becomes tantamount to granting
them complete sexual licence, a possibility which cannot be tolerated even at
the theoretical level due to its destructive effect on the social fabric of the
nation and of the larger Islamic umma . This threat must be controlled
through a collusion of public and private patriarchies
hence the argument
about the ‘DIVINE division of labour’ which required a return of women to
the protection of the chaadar aur chardiwari and the plea to make filial
obedience judicially enforceable. It is crucial to note the deep consensus that
underlies the very different judgments over the reprehensibility of ‘love
marriages’, and the striking similarities between the contradictory judgments
of Justice Chaudhry and Justice Ramday on the questions of women’s rights
and status, filial obedience, and the West. The obsessive (and almost
comical) references to the moral decline of the West and the reasons for it
show how important the West is to the project of moral regulation for the
Pakistani nation-state.
In a society defined by a history of disenfranchisement of the people by
dictatorial regimes (with the support of the US) and a democracy under siege
by the pressures of a corrupt ruling class, a heavy debt burden, and predatory
and conspicuous consumption/consumerism, cultural identity becomes a
contentious issue and (as is invariably the case regardless of the kind of state/
society under question) women’s bodies become sites for cultural politics and
the class struggles they embody. The regulation of women and their sexuality
becomes the key hegemonic move through which consent across social
classes can be secured.21 The openly Islamophobic nature of Bush regime’s
21 ‘Islamization’
and the attempt to ‘war on terror’ and Pakistan’s position as a frontline state in this war has
institute Islamic law made matters worse by, among other things, increasing the popularity of
included half-hearted religious parties. In fact, in the 2002 elections, a coalition of religious parties
efforts in other
spheres such as
was elected by popular vote
something which had never before happened
‘interest-free in Pakistani history. This has allowed for even more space for religious
banking’, but these groups to flex their muscles, and violence against women
particularly in
were never
institutionalized or
the form of ‘crimes of honour’
is on the rise. At the same time, pressure
implemented with from the international human rights community has resulted in a national
the same enthusiasm level debate over the Hudood Ordinances which is, not surprisingly, pitched
and consensus as the
in terms of the essential role of Islam within Pakistani culture.
laws pertaining to
women. In this essay I have deployed two interlocking interpretations of ‘culture’

as the broad ‘informing spirit’ of a people from a religious, national or ideal
perspective, and the ‘active cultivation of the mind’ that involves the arts and
expression of the intellect (Williams 1981). Both are part of what Gramsci
calls the ‘space of the complex superstructures’ where hegemony is
constructed and contested. Women’s poetry, Islamist discourse and feminist
activism (whether emanating from the state or civil society) can thus be
MORAL REGUL ATIO N IN A P OS TCO LONIAL NATION-STATE
Saadia Toor
........................
275

understood as constituent elements in the struggle for hegemony between a

petit-bourgeois fundamentalist orthodoxy and progressive-democratic forces
in Pakistan. The link to state formation is complete when we understand the
role played by the state in moral regulation, and the resistance to this
regulatory framework articulated by women through cultural production as
well as individual acts of agency, such as Saima’s.

R e f e ren c e s

Abrams, Philip (1988) [1977] ‘Notes on the
difficulty of studying the state’, Journal of
Historical Sociology 1(1) (March): 58
89.
Abu-Lughod, Lila (1993) ‘Finding a place for Islam:
Egyptian television and the national interest’,
Public Culture 5(3) (spring): 493
513.
Ahmad, Rukhsana (ed.) (1990) Beyond Belief, La-
hore: ASR Publications.
Asad, Talal (1993) Genealogies of Religion: Disci-
pline and Reasons of Power in Christianity and
Islam, Baltimore, MD: Johns Hopkins Press.
***** * (1999) ‘Religion, nation-state, secularism’,
in Peter van der Veer and Hartman Lehmann (eds)
Nation and Religion: Perspectives on Europe and
Asia, Princeton, NJ: Princeton University Press,
pp. 178
196.
Banerjee, Sukanya, et al. (2004) ‘Engendering
violence: boundaries, histories, and the everyday’,
Cultural Dynamics 16(2/3) (Special issue:
‘Gendered Violence in South Asia: Nation and
Community in the Postcolonial Present’, Angana
Chatterji and Lubna Nazir Chaudhry): 125
39.
Butalia, Urvashi (2000) The Other Side of Silence:
Voices from the Partition of India, Durham, NC:
Duke University Press.
Corrigan, Philip and Sayer, Derek (1985) The Great
Arch: English State Formation as Cultural
Revolution, New York: Blackwell.
Foucault, Michel (1980) The History of Sexuality,
London: Vintage.
Pakistan Law Digest (1997) Lahore: Government of
Pakistan.
Gramsci, Antonio (1988) An Antonio Gramsci
Reader, edited by David Forgacs, New York:
Schocken Books.
Hussain, Mazna (2006) ‘ ‘‘Take my riches, give me
justice’’: a contextual analysis of Pakistan’s honor
crimes legislation’, Harvard Journal of Law and
Gender 29: 223
46.
Hussain, Neelam (1997) ‘The narrative appropriation
of Saima: coercion and consent in Muslim
Pakistan’, in Neelam Hussain, Samiya Mumtaz
and Rubina Saigol (eds) Engendering the
Nation-State, Vol. I, Lahore: Simorgh Publica-
tions, pp. 199
242.
Jahangir, Asma and Jilani, Hina (1990) The Hudood
Ordinances: A Divine Sanction? Lahore: Rohtas
Books.
Kandiyoti, Deniz (1991) ‘Introduction’, in Women,
Islam and the State, Philadelphia: Temple
University Press, pp. 1
21.
Moghadam, Valentine (ed.) (1994) Gender and
National Identity: Women and Politics in Muslim
Societies, London: Zed Books.
Mosse, George L. (1985) Nationalism and Sexuality:
Respectability and Abnormal Sexuality in Modern
Europe, New York: Howard Fertig.
Niazi, Zamir (1986) The Press in Chains, Karachi:
Karachi Press Club.
***** * (1994) The Web of Censorship, Karachi:
Oxford Unversity Press.
Parker, Andrew, Russo, Mary, Sommer, Doris and
Yaeger, Patricia (eds) (1992) Nationalisms and
Sexualities, New York: Routledge.
Rubin, Gayle (1975) ‘The traffic in women: notes on
the ‘‘political economy’’ of sex’, in Rayna Reiter
Toward an Anthropology of Women, New York:
Monthly Review Press, pp. 157
210.
Sabbah, Fatna A. (1984) Woman in the Muslim
Unconscious, New York: Pergamon Press.
Saigol, Rubina (1995) Knowledge and Identity,
Lahore: ASR Publications.
Smith, Dorothy (1990) Texts, Facts, and Femininity:
Exploring the Relations of Ruling, London:
Routledge.
Toor, Saadia (1997) ‘The state, fundamentalism, and
civil society’, in Neelam Hussain, Samiya Mumtaz
and Rubina Saigol (eds) Engendering the Nation
State, Vol. I, Lahore: Simorgh Publications,
pp. 111
46.
Williams, Raymond (1981) Culture, London:
Fontana.