Can a non-Muslim head apex court in Pakistan?

ISLAMABAD: The government's decision to resolve the judiciary crisis by making Rana Bhagwan Das, the only Hindu judge in the Supreme Court, the acting Chief Justice, has sparked a heated debate on whether a non-Muslim can head the apex court in Pakistan.

As moderates and hardliners debated whether he could be made ACJ, Justice Das, the second seniormost judge after suspended Chief Justice Iftikhar Chaudhry, on Wednesday returned to his hometown Karachi from a pilgrimage in India.

He went for a long walk amid tight security soon after he arrived from New Delhi.

Meanwhile, leader of his own faction of the Jamaat Uleman Islami-S group Maulana Sami-ul-Haq and Jamaat-ud-Dawa, a new outfit floated by Hafeez Saeed, the founder leader of the banned Lashkar-e-Toyaba, criticised the government's decision to make Justice Das the acting Chief Justice.

A non-Muslim cannot head the Supreme Court in an Islamic country as a non-Muslim cannot head the government, Haq said.

In a statement here, senior leader of JuD, Hafiz Abd-ur-Rahman Makki said, "It is against the Shariah (Islamic Law) to appoint Justice Rana Bhagwan Das as ACJ."

While he held Justice Das in the "highest esteem", Makki said he cannot be made the ACJ as "Pakistan is a state based on an Islamic ideological foundation and a non-Muslim person cannot head the judiciary of the country, nor can he head any one of the other basic pillars of the state such as the Executive or the Legislature".

"How a non-Muslim person can take the oath of upholding Pakistan's Constitution, when the Constitution is expressly bound to espouse the Qur'an and the Sunnah," he said.

However, noted moderate Islamic scholar Javed Ahmad Ghamdi contradicted both Haq and Makki saying there were no restrictions or impediments in Islam to make a non-Muslim the head of the Supreme Court.

Ghamidi said in early times in Islamic countries the need for Islamic judges was felt because there was no constitution.

Now there was a constitution and Parliament and a government therefore whosoever has been selected in accordance with the constitution can head the apex court.

There was nothing in Islamic tenets that barred a non-Muslim from becoming Chief Justice, he told the Geo TV.

Veteran lawyer S M Zafar also supported Ghamidi's stand saying there was no bar in the Constitution on a non-Muslim becoming a Chief Justice and sited the example of Justice Cornelius, a Christian judge holding the position of ACJ in the past.

While Pakistan constitution has not explicitly barred any non-Muslim from holding the post of the Chief Justice, some argue that the Chief Justice also becomes the head of the Shariat Court. Justice Das was the only judge among Pakistan's Supreme Court judges who has a masters degree in Islamic law.

Justice Das had earlier held the post of ACJ whenever Justice Chaudhry went abroad but this would the first time he would take over ACJ after the Chief Justice was suspended.

By virtue of being ACJ he would head the five-judge Supreme Judicial Council (SJC) which is currently hearing charges against Chaudhry.

He could take over as Chief Justice if Chaudhry was not restored to his previous post. Government announced its decision to make Das ACJ after Chaudhry questioned the appointment of Justice Javed Iqbal to the post.

Iqbal said he would step down as soon as Justice Das arrived from his pilgrimage in India.