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By Munir D. Ahmed
1. Introduction
During the early crucial months after the establishment of Pakistan , when the government was facing the up-hill task of settling millions of refugees from India , some divines started a campaign for the conversion of Pakistaninto an Islamic state 1). Most of these religious leaders, though, had opposed the creation of Pakistan up to the very day of independence.
Within a short span of time Pakistan was engulfed in a controversy over this issue. The founder of the Jama'at-i- Islami, Abul A'la Maududi, was in the vanguard of this movement, which was soon joined by the Ulama’ of almost all the different schools of thought and denominations. A consensus about the nature of such a state and its salient features did not exist among the divines. Almost everybody had his own model of an Islamic state. Some articles had appeared in the newspapers, magazines and even some booklets on this subject had been published but reliable literature on this topic was not available at that time.
Muhammad Asad, a European Muslim convert, who had become a citizen of
Pakistan , was the first to bring out a full-fledged study on this subject.
His ideas in this regard stand in a marked contrast to the thinking of
Maududi, who was deeply involved in this subject and had been writing on
it in form of articles. Unfortunately, Asad's book (written in English
and published in the United States ) did not get the circulation
it deserved, whereas the Urdu writings of Maududi have been published
over and over again. I have chosen Asad and Maududi for presentation
in this paper. They have certain similarities, but basically they belong
to two opposing camps. A third writer, whose ideas deserve to be taken
notice of, due to the originality of his plan, is Kemal A. Faruki. His
plan of an Islamic polity is entirely different, but no less sophisticated.
All three of them published their works in the early days of Pakistan
. Although hundreds of articles and many books have since been published
on this subject, almost nothing new which goes beyond the writings of
Asad and Maududi has come to the lime1ight.
In order to show current trends of thinking in Pakistan on the
Islamic state, a brief note about the petition of the retired Justice B.Z.
Kaikaus before the Shari’at Bench 1) of the Lahore High Court has
been included. Reference is also made to some recent pronouncements on
the same topic by different personalities.
A topic-wise discussion of the ideas of the four above-mentioned theorists
of the Islamic state will follow a brief introduction of their respective
schemes or plans.
2. The outlines of the schemes
2.1. Muhammad Asad
Muhammad Asad, at the very outset of his thesis 2), points out the fallacy
of the view held by many Muslim scholars that apart from the form of government
manifested under the four Right-Guided caliphs, 3) no other Interpretation
of an Islamic state is admissible. As a matter of fact, neither a specific
form of state has been laid down by the Shari'a , nor does it elaborate
a constitutional theory in detail. Nevertheless, out-lines of a political
scheme have been adumbrated leaving its details open to the Ijtihad
4) of the time concerned. Therefore, the Islamic state has many forms and
it is up to the Muslims to find out the most suitable form for their time
and needs.
An Islamic state is not an end in itself or a goal, rather a means of
providing a political framework for Muslim unity and cooperation. Among
its guiding principles is the duty of the state to enforce the Shari'a.
Legislation in matters of public concern is admissible, as long as the
spirit of the Shari'a is not violated. Obedience to the government
is a basic obligation for every subject as long as the Shari'a is
observed by the government. In other words, it is the duty and the privilege
of the community to supervise the actions of the government. The 'popular
consent' implies that the leadership must be of an elective nature.
The will of God as manifested in the Shari'a is the source of all sovereignty. Being the vicegerent of God, the Muslim community holds power in trust from Him. The Islamic state which came into being by the will of the people and which is also subject to control by them, derives its sovereignty in the last instance from God.
The Shari’a which comprises both the Qur'an and the
Sunnah 5) of the Prophet Muhammad, is the sole source of the Islamic constitution.
Interpretations of the past centuries and the rulings of the fuqaha'
(jurisconsults) are not binding on us, as our own deductions and conclusions
would not be binding on future generations. In fact, Shari'a is the
name of only definite ordinances of the Qur'an and the Sunnah
(called nass) 6), for which, being self-contained and unambiguous,
no Interpretation is needed. The Law-Giver has either ordained certain
things as an obligation or declared others as unlawful, leaving a much
larger proportion unspecified. In this way, we have been given a free choice
to provide for the necessary additional legislation.
The office of the head of the state (Amir) is open to Muslims only.
The Amir must be mature, wise and superior in character. Neither
any particular mode of election, nor the extent of the electorate has been
laid down by the Shari'a. These as well as the tenure of office of
the amir may be decided upon according to the requirements of the
time. Asad would prefer direct election by the entire community.
A legislative body, Majlis-i-shura (to be referred to as
Shura here-after), would be entrusted with the task of enacting legislation
relating to the problems of administration left open by the Shari'a,
for which only general principles have been outlined but no detailed laws.
Membership would be through free and general elections, in which both men
and women would participate. Self-candidacy for all posts including that
of membership of the Shura would be prohibited. It is an essential
requirement that the members of the Shura be well-versed in the
Shari'a and are mature as well as educated. The decisions of the
Shura would be on a majority basis. A simple majority would be sufficient
for ordinary legislation, but a two-third majority would be required in
questions of exceptional importance, such as the deposition of government,
amendment of the constitution, declaration of war and so forth.
In Asad's view a radical Separation of the executive from the legislative
is not feasible in a state which is subject to the authority of a Divine
Law. Therefore, the Amir would preside over the legislative body.
In this way, all decisions of the legislature would be binding on the executive.
But at the same time, interference on the part of the legislative in the
day-to-day administration task of the executive would not be allowed.
Asad, in fact, proposed the setting up of special committees with restricted
membership from among the members of the legislature to be attached to
the minister (or secretary of state) as an advisory council. In this way,
the chosen representatives of the people would have a share in a consultative
manner in the work of the executive.
The presidential System of government is according to Asad more
in line with the pronouncements of the Prophet Muhammad regarding the Office
of Amir. The head of the executive ( Amir) would appoint his secretaries
or administrative assistants, who are to be responsible to him, whereas,
he himself is responsible to the legislative body and through it to the
people.
Asad foresees the existence of parties in the legislature, as a natural
outcome of the freedom of opinion and criticism. But he rejects the idea
that these parties get any direct hold over the executive body and its
policies by way of delegating their members to the ministerial posts.
In case of a difference of opinion between the legislature and the executive,
none of them can override the opinion of the other, according to the scheme
of Asad. Therefore, he proposes the establishment of a tribunal as a guardian
of the constitution. It would be its privilege and duty (i) to arbitrate
in all matters of disagreement between both sides, and (ii) to veto any
legislative act passed by the legislative or any administrative act on
the part of the Amir which, in the tribunal's considered opinion,
offends against a Nass ordinance of the Qur'an or the
Sunnah. The tribunal would decide on the basis of a majority vote.
The government would be entitled to impose additional taxes besides
Zakat 7). Restrictions on private ownership, means of production, or natural
resources are likewise admissible. The government would be entitled to
enforce compulsory military Service for the defence of the state.
2.2. Abul A'la Maududi
Abul A'la Maududi 8) regards the establishment of an Islamic state among
the foremost duties of the Umma. Islam is equally interested in the
spiritual as well as the temporal well-being of its adherents. Its aim
is the establishment of a balanced system, wherein social justice is practised
and not merely promised as in other political Systems and ideologies.
The four sources of Islamic constitution are as follows: (i) the
Qur'an which contains directives from God regarding practically all aspects
of individual conduct as well as basic principles regulating the socio-cultural
life of human beings. (ii) The Sunnah of the Prophet Muhammad which
is but the practical application of the directives and principles of the
Qur'an. (iii) The conventions of the Right-Guided Caliphs as an example
of the conduct of an Islamic state. All the sources combined with the consensus
of the companions of the Prophet Muhammad on matters of Interpretation
and/or political decisions relating to constitutional and judicial matters
by the Right-Guided Caliphs are binding on all and for all times.
(iv) The rulings and decisions of the great jurists of earlier times in
regard to numerous constitutional problems which provide clues for the
understanding of the spirit and principles of Islamic constitution.
The fundamental principle of the Islamic polity is that sovereignty
belongs to God alone. Therefore, the Islamic state is bound to the Divine
Law (Shari'a) which it can neither alter nor set aside. Only limited sovereignty
has been delegated to mankind with clear-cut directives. As such, an Islamic
state is not comparable with secular democracy and it is even less comparable
with theocracy. Islam has no class or caste of priests, an absolute necessity
for such a form of rule. In an Islamic state the members of the community
elect both the legislative as well as the executive retaining the right
of deposing them under certain circumstances. Both institutions are answerable
to the people and to God. Every Muslim citizen is entitled to participate
actively in the legislation work, provided he has the ability required
for Ijtihad. Thus the form of the Islamic state is democratic, but
the limitations imposed by God on legislation make it subservient to the
Divine Laws. Therefore, the apt title for an Islamic state could be Theo-democracy.
The aim of the Islamic state is the establishment of a system of government
capable of imparting social justice. The very basis of its ideology is
equality of mankind, as God has made them collectively His vicegerent on
earth. By electing a person to the Office of Amir, they delegate this vicegerency
to him. Thus he is answerable to them as well as to God.
In spite of the fact that the legislature cannot alter or amend explicit
directives of God and His Prophet, it has some important functions to fulfill.
(i) It can devise relevant definitions and details for the law concerned
and make rules and regulations for the purpose of enforcing them. (ii)
Where the directives are capable of more than one interpretation, the legislature
may accord preference to one or the other of the various interpretations
and enact the one preferred by it into law. (iii) Wherever there is no
explicit provision in the Qur'an or the Sunnah, the legislature may enact
laws keeping in view the general spirit of Islam, (iv) Wherever even basic
guidance is not available from the Qur'an or the Sunnah, or the conventions
of the Right-Guided caliphs, the legislature may devise its own laws.
The voting System en vogue at present may be adopted by the Islamic
state with suitable changes and by taking certain precautions with a view
to making this instrument less vulnerable to misuse. But Maududi would
not question the legality of some other system of choosing the Amir , caliph
or whatever he may be called, than through popular vote. The period of
the Amir's office may be limited. The Amir can also be deposed under certain
circumstances. Members of the Shura are also to be elected.
There are no clear-cut instructions about the relationship among different
organs of the state. The head of state is as such supreme head of the executive,
the legislature and the judiciary. But on a lower level all the three organs
of the state must function separately and independently of one another.
Although the Amir is the President of the legislature, he is not bound
by the decisions of this body. In fact, the Shura is merely a consultative
body. The Amir may or may not accept the counsel of the Shura.
2.3. Kemal A. Faruki
Kemal A. Faruki 10) also upholds the absolute sovereignty of God. People are His vicegerents, to whom ultimate sovereignty on earth has been delegated. God's foremost desire for His vicegerents is not to be hypocrites. Therefore the basic aim of an Islamic state for its Muslim and non-Muslim citizens alike must be to ensure that they do not become hypocrites and that the conditions existing in the state are such that no matter what an individual's belief may be, he is not forced, by personalization in any form, to become a hypocrite.
Faruki is silent on the question of the sources of an Islamic constitution.
He does not bother to justify his ideas regarding the set-up of an Islamic
state through quotations from the Qur'an or by citing relevant traditions
of the Prophet Muhammad or by giving examples of the historical institutions.
Nevertheless, every chapter of his book begins with verses from the
Qur'an which he thinks lay down basic rules for the Islamic polity.
The best (al-amin: the most incorruptible, the most trustworthy, the
most straightforward) in a community should rule. The citizens of the state
are called upon to choose the best among themselves, who are to act as
their agents. The criteria being the belief of the selected ones and their
deeds. Consequently, the legislative agents are to be elected for (i) the
House of Belief and (ii) the House of Function (together they are
called Legislative Agent or the Parliament).
The constituency for the Muslim representatives of the House of Belief
is the mosque in which they perform their Friday prayers. In analogy to
this the constituency for the representatives of the non-Muslims would
be their respective worship place. In the case of Communists, who do not
adhere to a religion, the local communist office will be the constituency.
The Nationalists and others would be asked to form such offices so that
they may be accorded the status of constituencies. Voting is to take place
in the presence of an election authority by open declaration and must be
repeated three times with intervals in between, for example, after Friday
prayers on three different occasions. The Representatives of Belief would
constitute an Electoral College of Belief in order to choose a
House of Belief with a membership of approximately 350. The tenure of Office
for the House of Belief would be five years.
The second Legislative Agent would be called the House of Function.
Its constituency being the occupational function in the sense of the source
of livelihood. Elections are to be held every five years on the basis of
one representative for every 100,000 voters. The numerical strength of
both Houses is to be kept at a par. Legislation may be introduced in either
House and would become law if passed in both Houses by a simple majority.
In case there is a difference of opinion between both Houses on a matter
of legislation, a joint meeting must be called. A simple majority of both
Houses would resolve the issue which, however, must include the majority
of the members of the House of Belief. The reason for this weightage of
vote is that Islam Stresses belief as more important than deeds. A two-third
majority (consensus majority), which must include the majority of the
House of Belief, would be supreme in its powers and capable of taking all
kinds of decisions, as well as revoking any decisions, including those
of the Executive Agent , the Judicial Agent and other bodies of the state.
Both Houses constitute jointly the Parliament and are as such supreme
in the state. Nevertheless, for reasons of effectivity, they are called
upon to delegate certain powers to different branches (also called Agents),
which in their turn would enjoy freedom of action to a certain degree.
For example, decisions of the parliament with simple majority cannot revoke
their acts.
The first act of the newly elected Legislative Agent (House of
Belief plus the House of Function) is to elect in a combined meeting of
both Houses an Agent-General by a simple majority vote, whose tenure
of office would be consequently five years like that of the parliament.
He can be removed from office by a consensus majority of the Legislative
Agent. The Agent-General appoints five Deputy-Agent-Generals. In
case of his removal from office, resignation or death, the Deputy-Agent-Generals
would choose one of them as his successor, who in turn would appoint a
Deputy-Agent-General to fill his own vacancy. A cabinet of approximately
ten ministers would be appointed by the Agent-General to head various departments
of administration. They would be taken from among the members of the House
of Function, whereas the Agent-General must and his deputies should preferably
belong to the House of Belief.
There would be three autonomous agents in form of commissions. (i) The
Judicial Commission would be appointed by the parliament to select judges
which in their turn are to be appointed by the Legislative Agent on a permanent
basis, removeable only by impeachment. JC would be a standing vigilance
commission to see that the intentions of parliament in framing a particular
law are given effect to. (ii) The Administrative Commission would select
government servants, who are to be employed on a permanent basis. (iii)
The Commission of State would keep the record of the subjects of the state
regarding births, marriages, deaths, membership in the mosque, church,
temple, national center as the case may be; membership according
to the function (occupation), adherence to the school of law, total assessable
wealth and other important data for the purpose of an elaborate census.
This Commission would also function as election Supervisor.
The preservation of the Islamic state (or vicegerency ) is the main
aim of the primary laws. They must enable the state to protect it-self
against internal and external dangers to its existence. These laws are
concerned, firstly, with the efficiency of the armed forces to ward off
external challenges, and secondly, with the limitation of individual rights
in order to safeguard such rights at large. The limitation aimed at is
essentially concerned with the translation of belief into action and not
the belief itself. To take an extreme case, a man may be allowed to openly
believe that murder is a good thing, but it will be the duty of the state
to frame laws to prevent such belief from being carried into practice,
essentially because acting upon this belief would to say the least involve
an infringement on the rights of others. The secondary laws would deal
with violations by individuals, when society as a whole is involved; or
when disputing parties hold allegiance to different beliefs or when a party
declines to accept the ruling of its respective belief. The tertiary laws
would be applicable to the adherents of a particular belief, if the disputing
parties mutually agree to their application.
2.4. Justice Badiuz ZamanKaikaus
Justice B.Z. Kaikaus 11) regards God to be the sole sovereign in an
Islamic polity. There is no question of delegating sovereignty either to
the Amir or to the people. The Amir runs the government as a representative
of God, whereby the government, the treasury and every-thing else belongs
to Him alone. In other words, it is the government of God, 12) and the
Amir is the executor of His will 13). The powers of the Amir as the Chief
Executive of the state are limited, so far as the commandments of God are
concerned. He can neither alter them, nor is he empowered to go beyond
the limits put by the Shari'a.
The Amir and the consultative body Shura are indispensable in an Islamic
state 14). The mode of election or selection, as the case may be, has been
left to the discretion of the Umma. As long as there exists a Shura, this
body functions as an electoral College to choose an Amir from
among its own members through a majority vote 15). In its absence, however,
the Amir can be appointed by the foremost opinion of only two persons 16).The
nomination of the Amir could be made by a select body of the
Salihin 17) and it was not necessary to ascertain the consent of the general
public in this respect. Therein the select body functions as the representative
of the people. In another statement, he had said that a referendum or any
other suitable mode can be adopted to ascertain the views of the masses
about the selection of the Amir by the Shura. He does not seem to
foresee a situation in which the selection could be rejected by the masses.
The Amir is accountable to the masses and if he is found deviating from
the path laid down by Islam, his actions can be challenged in the courts.
In this way, the existence of the courts was a safeguard against a ditatorial
rule. Muslims are anyway not bound to obey a tyrannical ruler.
There could not be a president as well as a prime minister simultaneously
in an Islamic state 21). Both functions are unified in the person of the
Amir and it is to him that unreserved allegiance belongs. Kaikaus
thinks that Bai'a (the formal act of expressing allegiance by the
people to the Amir and his pledge to follow the Shari'a
is an essential part of the Islamic polity 22).
The Amir is expected to establish a Shura as a consultative body.
Its membership is by nomination, advisably by the Chief Justices of the
superior courts. The members should be pious and competent persons. There
is no room for the current form of general elections in Islam 24).
The Shura is not comparable with the parliament in modern states The Shura
is only a consultative body as against the parliament which is regarded
as sovereign with controlling functions and full authority to legislate
25).
Islam does not adumbrate such sweeping powers for the Shura whose
scope of making and enforcing laws is restricted. The Qur'an is the
supreme law and no legislation is permissible which contravenes the Qur’anic
principles 26). As far as the controlling function of the parliament
is concerned, it is unthinkable in an Islamic state to have an Amir
and an Institution which limits his powers 27). As Kaikaus puts it: 'There
can be only one Amir and not two' 28). The Amir is generally
speaking not bound to the opinion of the Shura, except in wordly
and administrative matters. If there happened to be any dif-ference of
opinion among the members of the Shura on these affairs, the Amir has the
privilege to accept the opinion of the majority as well as of the minority
29).
Opposition, or for that purpose, the establishment of political parties
is against the spirit of Islam 30). Self-candidacy in any form and for
any position is strictly forbidden 31).
3. The comparison of the respective schemes
In order to point out similarities and differences in the plans of the
four above-mentioned theorists a topic-wise comparison will be made in
this part. Relevant references to other authors, particularly from recent
publications are intended to depict the current lines of thinking in Pakistan,
where this issue is being discussed to-day as enthusiastically as was the
case three decades ago.
3.1 Sovereignty
If there is one point, on which all four theorists, and besides them,
most of the Muslim conservative writers agree with one another, it is that
of the sovereignty of God. The difference is of emphasis and not of substance.
In Maududi's opinion, sovereignty belongs to God alone, who has delegated
a limited sovereignty to mankind. Therefore, the Islamic state is bound
to the Divine Law which it can neither alter nor set aside altogether.
Kaikaus, while sharing Maududi's notion of God's sovereignty, rejects
the idea of its delegation - be it in toto or in parts - to the Amir or
to the people.
Faruki , on the other hand, thinks that God, the absolute sovereign,
delegates ultimate sovereignty on earth to His vicegerents, the people.
According to Asad, the will of God as manifested in the Shari'a is
the source of all sovereignty. Being the vicegerent of God, the Muslim
community holds power in trust from Him. The Islamic state which comes
into being by the will of the people and is also subject to control by
them derives its sovereignty in the last instance from God. His views come
very close to that of Muhammad Zafrulla Khan, to whom sovereignty
under God rests with the people and it is for them to entrust various aspects
of political authority to persons who are considered as most capable of
carrying them into effect 32 ).
Fazlur Rahman, erstwhile Director of the Islamic Research Institute,
Islamabad, brushes aside the whole talk of sovereignty of God. His argument
which was supplemented recently by Qamruddin Khan is that to the sovereignty
rightfully belongs the power in a state to make ultimate decisions as well
as coercive force in order to obtain obedience to his will. God performs
neither of these functions in this world. The decisions are made by the
people and only their 'word is law' in the political ultimate sense. Therefore,
sovereignty belongs to them and not to God 34).
3.2 The form of government
Unanimity prevails also about the form of government. To Asad the presidential
System of government is more in line with the pronouncements of the Prophet
Muhammad regarding the office of Amir. Maududi is silent on this
topic, but in view of the strong position of the Amir, as it transpires
from his writings, there can be little doubt about his preference for the
presidential system. This can also be said about Faruki,whose Agent-General
is the supreme head of theAmir, as it transpires from his writings, there
can be little doubt about his preference for the presidential system.
Kaikaus expressly rejects the Office of the prime minister as the real
executive of state, along with the Office of the mere ceremonial president
35). He argues that the pledge of allegiance (bai'a ) can be taken only
with one person, in whose hands the power must be concentrated 36).
Maulana Shah Ahmad Noorani opines that both presidential as well a parliamentary
forms of government are in line with the democratic spirit of Islam 37).
3.3. Separation of power
Separation between the executive and the legislative is according to Asad not feasible in a state which is subject to the authority of the Divine Law. Therefore, the Amir would preside over the legislative body. In this way, all decisions of the legislative would be binding on the executive.
In Maududi's opinion there are no clear-cut instructions about the relationship among different organs of the state. The head of the state is as such the supreme head of the excutive, the legislature and the judiciary. But on a lower level, all three organs of the state must function separately and independently of one another.
Kaikaus is outrightly against any kind of restrictions on the powers and Privileges of the Amir. He, however envisions an independent judiciary. The actions of the Amir can be challenged under certain circumstances before the court.
3.4. Head of the state
The questions concerning the head of the state, his powers, privileges,
obligations and qualifications are perhaps the most controversial ones
in the constitutional discussion of the Islamic state. The only point in
this connection, on which a general agreement exists, is the question of
his religious adherence. Being the representative of the state par exaellence,
there is no denying that the religious beliefs of the head of the state
must be in line with the ideology of the state. This means that only a
Muslim is eligible for this post.
Furthermore, it is practically undisputed that he must be a male. Maududi's
pronouncement in this regard is clear to the point of being insolent. He
disqualifies women not only from this post, but also from the membership
of the Shura. A woman leading the Umma in any capacity is unthinkable to
him. Asad avoids this question altogether. Faruki is perhaps the only exception
to this rule, as he does not differentiate between males and females, neither
as voters, nor as members of the legislative agent. The possibility for
the women to be elected is anyhow rather remote in most Muslim societies,
at least presently. The mechanism of the segregation of sexes prevalent
at present in Pakistan for example, keeps women away from the mosques which
in the scheme of Faruki have been given a key role. It might not be out
of place to mention that according to the ideology of the Khwarij, a woman
is entitled to become head of the Muslim society 38).
There is no difference of opinion that the head of the state must be
an adult and a citizen of the Islamic state. He should be most trustworthy,
God-fearing, righteous, wise and superior in character. Faruki calls him
al-Amin and translates it as the best.
There is no consensus about the title of the incumbent. Fundamentalists
in Pakistan and elsewhere insist on calling the head of the state by the
traditional name of caliph. This title was for the first time given to
the immediate successor to the Prophet Muhammad. Later it was used by rulers
of different dynasties for centuries till 1924 when the Turkish National
Assembly finally abolished it. The sole argument Mirza Bashiruddin Mahmud
Ahmad, the late head of the Ahmadiyya community, put forward against Pakistan's
being converted into an Islamic State was that the head of the government
cannot be called caliph 39). An almost identical stand was taken by his
rivals from the Majlis Ahrar-i-Islam before the Court of Inquiry into the
Punjab disturbances of 1953 40).
Asad uses the title of Amir or Imam for the head of the Islamic state,
without, however, mentioning the title of caliph at all. Basically his
plan was drawn up for a national state, although he has conscientiously
refrained from mentioning the word 'nation' or 'national state' in his
book. Maududi does not insist on calling the head of the Islamic state
by the name of caliph. He personally seems to prefer the title of Amir
which is incidentally used by his Jama'at-i Islami for the head of the
Organisation. Abdul Sattar Khan Niyazi would not bother, whether he is
called president, prime minister or caliph 41).
The mode of appointment to the Office is likewise highly controversial.Asad
proposes a direct election by the subjects of the state. In Maududi's opinion,
this matter has been left for the Umma to decide. The only requirement
is that the wishes of the Umma are ascertained adequately. Kaikaus abhors
the idea of common folk making the choice of the Amir. Such an important
decision can only be made by Salih-people and these are arbab-i hall wa
naqd 43). In his opinion the Islamic state is bound to make a distinction
between common people and the people of opinion. Members of the Shura
belong to the second category and are as such definitely entitled to elect
the Amir from among themselves 44). The common people may be given a chance
by holding a referendum to express their consent for the nominee of the
Shura. In the scheme of Kemal A. Faruki, the Amir, whom he discribes as
the 'Agent General', is to be elected in a joint Session of the 'House
of Belief' and the 'House of Function' by simple majority. Muhammad Anwar
Quraishi holds only ahl al-ra'y 45) to be competent for the election of
the Amir. He proposes the establishment of a commission for the selection
of ahl al-ra'y consisting of the following: Chief Justice of the Supreme
Court, Chief Justices of the four High Courts, three Ulama' and Fuqaha',
three persons from educational and other institutions. This body would
select ahl al-ra'y, who shall in their turn chose the Amir 46).
Controversial is also the tenure of office for the head of the state.
Mirza Bashiruddin Mahmud Ahmad is of the extreme view that the incumbent
is elected for life. He is neither supposed to resign, nor can he be deposed
under any circumstances whatsoever. Asad and Quraishi are in
favour of a five years' term with the possibility of extension for another
term of the same period. Faruki thinks a seven years’ term without the
possibility of extension is most appropriate. Maududi also favours the
limitation of the term of office, but refrains from making proposals regarding
the period. Most writers agree that the incumbent can be deposed after
an impeachment.
Some writers hold the head of the state to be the sole authority and
the fountainhead of all power. Kaikaus puts him above Shari’a, a view also
held by Maududi, although both of them differ with one another about the
interpretation of ulu 'l-amr. According to Kaikaus, this term can
be applied only to the Amir, who i s not obliged to share power and
authority with anybody else. Maududi counts all kinds of officials
of state to the category of ulu 'l-amr, to whom the subjects of the state
owe obedience. It is only the Amir who Stands above all institutions.
Shura is a consultative body, whose advice may or may not be accepted by
the Amir. He is free to make his own choice whether to heed the opinion
of the majority or that of the minority. Niyazi opines that the power in
an Islamic state has been infested in the institution of Shura which elects
the Amir and also controls him. He is the head of the government, but duly
responsible to the Shura. Asad agrees with the view that the Amir must
have extraordinary powers like those of the President of the United
States of America , but thinks that adequate instruments of checks and
balance must also be devised, lest the Amir becomes a dictator. Faruki's
'Legislative Agent' is supreme in the state and can depose the 'Agent General'
by a consensus majority vote. Maududi envisages the institution of referendum
for the purpose of deciding a constitutional impasse between the Amir and
the Shura. Whosoever of both parties is defeated in such a referendum
should resign.
3.5.Elections
Asad contends that a representative character for the Shura can be achieved only through free and general elections ('widest possible suffrage, including both men and women'). He would also prefer the Amir to be elected in a direct election by the entire community. In his opinion, the extent of the suffrage and the qualifications to be demanded of the voters - like those of the candidates - have been left to the discretion of the community to decide in the light of the requirements of the time. Maududi is of the same opinion and would not object to the adoption of the voting system en vogue at present, if suitable changes were introduced and precautions taken with a view to making it less vulnerable to misuse.
Faruki stipulates periodic elections in his scheme, both for the 'Legislative
Agent' as well as for the Agent-General'. Non-Muslims and even those
who do not believe in any religion a priori, such as the Communists, have
equal voting rights along with their Muslim compatriots. Contrary to this,
Asad would probably, but Maududi would definitely, make a distinction
between a Muslim and a non-Muslim in this respect, albeit both of them
are silent on this issue.
Kaikaus rejects franchise almost completely ('There is no room for the
present System of general elections in Islam'). He even goes so far as
to claim that Islam neither gives voting rights to anybody, nor does
it accept majority decisions. His views were defended before the
Shariat Bench by Maulana Abu Talha, in whose opinion the System of adult
franchise was un-Islamic and faulty 49). Khurshid Ahmad, a disciple of
Maududi, differs with Kaikaus and holds the modern election procedure
to be in accordance with the democratic spirit of the Islamic polity
50). He avows that Islam by no means discards the majority opinion 5l).
Khalid Ishaq thinks that the existing election system could be reshaped
in accordance with Islam after removing its defects 52). Mufti
Mahmud equates bai'a with the casting of a vote under the present day System
53).
3.6. Legislation
Great differences exist in the question of whether or not legislation is permissible by the Islamic state. Kaikaus sees no room, besides the Laws of God, for any kind of legislation whatsoever, neither by the Shura nor by the Amir. Maududi thinks that God has put limitations in respect of legislation. The Shura cannot alter or amend explicit directions of God and those of His Prophet. The functions of the Shura are as follows: (i) It can devise relevant definitions and details for the law concerned and make rules and regulations for the purpose of enforcing them. (ii) Where the directives are capable of more than one Interpretation, the legislature may accord preference to one or the other of the various interpretations and enact the one preferred by it into law. (iii) Wherever there is no explicit provision in the Qur 'an or the Sunnah, the legislature may enact laws keeping in view the general spirit of Islam, (iv) Wherever even basic guidance is not available from the Qur 'an or the Sunnah or the conventions of the Right-Guided caliphs, the legislature may devise its own laws.
Maulana Abul Hasanat said in this connection: 'According to my belief
no question can arise the law relating to which cannot be discovered
from the Qur'an and the Hadith'. In this way, the legislature is, as Charles
Adams bas aptly put it, a law-finding oposed to a law-making, body 56).
In Asad's opinion, Shura would be entrusted with the task of enacting
legislation relating to the problem of administration left open by the
Shari'a, or for which only general principles have been outlined but no
detailed laws. Legislation in matters of public concern is admissible,
as long as the spirit of the Shari'a is not injured. Faruki
envisages the same kind of limitations, but otherwise holds legislation
to be permissible.
3.7. Shura vis-a-vis head of the state
Asad regards the principle of consultation to be the main foundation of the Islamic state. The Majlis-i Shura is a body of legislators whose decisions through a majority vote are binding on the Amir who is anyway involved in the deliberations of the Shura, being both member and President. In case of disagreement between the Shura and the executive, the matter may be referred to an impartial tribunal of arbitration, which is a kind of guardian of the constitution. It may veto any legislation or try to arbitrate between the executive and the Majlis. Asad proposes that jurists may be appointed to this tribunal on the basis of a life-long membership. Members of the Shura are to be elected by a popular vote. They must be educated and well-versed in Shari'a.
Maududi thinks that the Majlis-i Shura is merely a consultative body. The Amir is not bound legally to accept the recommendations of the Shura. In other words, he has the veto-power. Members of the Shura may be appointed by the Amir or elected by the people. Although in normal circumstances it is the will of the Amir which overrides the wishes of the legislative, Maududi foresees cases, when the matter has to be referred to the community in the form of a referendum. Whosoever is defeated, the Amir or the shura, must resign from office .
Kaikaus opines that the Amir is bound to accept the decision of the
Shura in matters pertaining to the wordly and administrative sphere. But
if there happens to be any difference of opinion among the members
of the Shura on these affairs, the Amir has the privilege to choose
between the opinion of the majority and that of the minority. Members of
the Shura are not to be elected by the common people, rather the
Chief justices of the Supreme and the High Courts can make the nominations
after careful scrutiny.
Maulana Abu Talha fully endorsed the ideas of Kaikaus in this re gard
and went even further, as he said that the Amir could also take decisions
independently without consulting the Shura 58).
Faruki's 'Legislative Agent', as he calls the parliament or the
Shura, is supreme in the state. The 'Agent-General' has to abide by the
decisions of the 'Legislative Agent'. On the other hand, the latter
can override all administrative and other acts of the 'Agent-General' with
a 'consensus majority'. Members of the 'Legislative Agent' are elected
and not nominated. It is in a joint Session of the 'House of Belief' and
the 'House of Function' that the 'Agent-General' is elected. He can
also be deposed by the same body with a 'consensus majority'.
3.8. Self-candidacy
A much disputed question in connection with the office of the head of
the state and for that reason any office at large is that of self-candidacy
and self-canvassing. Faruki is silent on this point, whereas the other
three regard it to be strictly forbidden in Islam, an opinion which is
also shared by Muhammad Zafrulla Khan.
Fazlur Rahman finds for this 'somewhat strange assertion' no support
in the Qur'an and the Sunnah 59). Khalid Ishaq contested this idea
before the Federal Shariat Court 60). The same opinion was expressed by
some other writers 61) by mentioning the example of the Prophet Yusuf
(the biblical Joseph) from the qur'an, who had offered his Services expressly
to the Pharao for a particular state office 62).
3.9. Political parties
Maududi is strictly against division in the Umma or for that purpose
in the Shura. Therefore, Opposition cannot be allowed to institutionalize
itself in the form of a political party. It is his firm resolve to ban
the forming of parties by inserting a clause to this effect in the constitution.
MaulanaShah Ahmad Noorani on the other hand is of the opinion that Opposition
parties are allowed in the Qur'an and the Sunnah and that such parties
did exist in the early Muslim society 63).
Khurshid Ahmad thinks that there is no prohibition of political parties
in Islam. The only limitation which could be placed on them is that they
are not allowed to work against Islamic values and principles 64).
Khalid Ishaq as well does not see any prohibition for political partiesin
the Qur'an and is of the view that parties and groups could be helpful
in solving the problems facing the community 65).
Asad is positively for political parties as a consequence of the freedom
of opinion and criticism recognized by the Islamic state. But he is against
any direct association of such parties with the government.
Faruki does not envisage political parties in his scheme.
Kaikaus is militantly against political parties in an Islamic state.
Here may be quoted a much publicised opinion in Pakistan, namely the view
of the Grand Imam and Rector of the al-Azhar, the famous theological university
of Cairo, Muhammad Abdel Rehman Bissar, that the concept of political parties
as such did not exist in Islam 66).
3.10. The position of women
Maududi speaks of equal rights and obligations for men and women in
the Islamic polity. Both of them have the right of vote, but women are
neither eligible for membership of the Shura, nor can they be entrusted
with the position of leadership at any level in society. He specifically
enumerates the post of the Amir, ministership and all kinds of executive
Services.
Asad is in favour of giving women the right of both active as well as
passive vote. He does not discuss whether or not a woman is eligible for
the key-posts, including that of the Amir.
Faruki does not mention women s voters, nor As candidates. But at the
same time he has nowhere excluded them expressly.
3.11. The position of non-Muslims
Maududi's Islamic state distinguishes between Muslim and non-Muslim
subjects. At the same time, the latter are given assurances of every kind
that discrimination against them is not intended. But they must understand
that an ideological state is bound to make some kind of distinction between
those, who believe in its ideology and those, who do not adher to
it. Therefore, non-Muslim can neither be entrusted with key-posts in the
state, nor can they become members of the Shura. However, they could
be allowed to form an assembly of their own. Non-Muslims are excluded from
military Service, but may be employed as non-combatants.
Asad also makes a distinction between both groups and also bars non-Muslims
from becoming Amir. He could imagine that non-Muslim subjects of a benevolent
Islamic state might be motivated by their respect and love for the System
to take up arms in its defence. He even proposes compulsory military Service
for non-Muslims along with their Muslim countrymen. The question about
the representation of non-Muslims in the Shura is left unanswered. But
the enumeration of the qualifications of a member of the Shura clearly
excludes the possibility of a non-Muslim's membership in it.
Faruki does not make any distinction between Muslim and non-Muslim subjects
whatsoever. Proportionately to their population they are given due representation
in the
'Legislative Agent' and all positions in the state are open to them.
He does not even exclude the position of the 'Agent General'.
Kaikaus strictly denies the possibility of non-Muslims becoming members
of the Shura, or their being appointed to key-posts.
Notes and references
1) As a first step towards Islamisation
of the Judiciary, Shariat Benches were established in 1980 at the courts
of the country in addition to the existing benches. The Shariat Benches
are authorised to judicate in accordance with the Shari’at (Muslim religious
Law).
2) Asad, Muhammad: The principles of state and government in Islam,
Berkeley and Los Angeles , 1961.
3) The right-guided caliphs (Arabic: khulafa' rashidun]
were the first four successors to the Prophet Muhammad.
4) Ijtihsd is independent judgment in a legal or theological question,
based on the interpretation and application of the four recognised
sources of the Islamic law.
5) The sayings and actions of the Prophet as transmitted generation
after generation of the Muslims, later established as legally binding
precedents in addition to the law established by the Qur’an.
6) Literal meaning: text, wording.
7) Zakat is alms tax which the Muslims are enjoined to pay yearly from
their savings. The rate is two and a half per cent of all wealth in possession
for an entire year.
8) Maududi, Abul A'la: Islami riyasat, falsafa, nizam-I
kar aur usul-i hukmarani (Islamic state, (its) philosophy, working and
the principles of rule). Edited by Khurshid Ahmad, Lahore, 1974; Ahmed,
Munir D.: Der islamische Staat nach Maududi. Paper read at the 21st
Congress of German Orientalists, 24-29 March 1980 in Berlin.
9) The community of the Prophet.
10) Faruki, Kemal A.: Islamic constitution, Karachi , 1952.
11) The retired judge of the Supreme Court of Pakistan, Justice
B(adiuz) Z(aman ) Kaikaus filed in summer 1979 a petition before the Shariat
Bench of the Lahore High Court challenging the parliamentary System of
government and the prevailing form of elections which he contended were
contrary to Islamic laws. He sought the Shariat Bench's verdict on
the point that different provisions of the 'Houses of Parliament
and Provincial Assemblies (Election) Order 1977', the 'Representation of
Peoples Act 1976' and the 'Political Parties Act' were repugnant to the
injunctions of the Holy Qur'an and the Sunnah and as such must
be struck down from the Statute book. Kaikaus contended in his petition
that in Islam there was no concept of forming political parties, nor was
there any idea of certain persons putting themselves up as candidates.
The election campaigning and canvassing was also against the spirit of
Islam (Dawn, Karachi, October 21, 1979).
The Hearing began in October 1979 and was far from being concluded in
May 1980, when the case had to be referred to the Federal Shariat
Court (FSC) after its formation little earlier according to the request
of the petitioner. The records of the proceedings before the Shariat Bench
were incorporated in the case and the FSC proceeded with the hearing on
27th September 1980 . The petition was finally dismissed on 13th December
1980 merely on technical grounds. In this way, the petitioner's plan to
get a court verdict was defeated.
Thereafter, Kaikaus filed two separate appeals before the Shariat Appelate
Bench of the Supreme Court of Pakistan against the judgment of the
FSC. The hearing commenced on 5th June 1982 .But on 13th June, all of a
sudden the appellant presented two separate applications on the subject
of the appeals. Herein, he submitted: (i) that the judges of the
Federal Shariat Court who rendered the judgment under appeal were not Muslims;
(ii) that on account of the said fact there was no judgment of the Federal
Shariat Court; (iii) that the decision being made by be the non-Muslim
judges was null and vaoid.
The appellant made the following points with regard to the Shariat Appellate
Bench of the Supreme Court of Pakistan and the appeal proceedings: (i)
that the court had no power or jurisdiction under any law including
the Constitution, to hear these appeals; (ii) that the proceedings and
hearings were null and void; (iii) that the appeals had to be heard by
Muslim judges, implying there-by that the judges of the Court were not
Muslims and can be con-sidered to be Muslims only if they declare to the
apellant's satisfaction that they were hearing the appeals as representatives
of Allah, uncontrolled by any law or constitution; (iv) that un-less such
a declaration was forthcoming from the judges of the Court, he would
not pursue the appeal. As this amounted to the abandonment of the appeals
and withdrawal thereof, the Court had to dismiss them as abandoned and
withdrawn (Dawn, June 15, 1982).
12) Nawa-I Waqt , Lahore , December 4, 1979 .
13) Ibid., November 15, 1979 .
14) Dawn, November 15, 1979
15) Ibid., October 9, 1979 .
16) Ibid., September 28, 1980 .
17) Literal meaning: virtuous, pious, devout, godly; generally used
in Muslim literature to outline men of outstanding piety and learning.
18) Dawn, November 15, 1979 .
19) Ibid., November 14, 1979 .
20) Ibid., October 29, 1979 .
21) Ibid.
22) Nawa-i Waqt , November 6, 1979 ; Ibid., November 14, 1979
.
23) Dawn, November 14, 1979 ; Nawa-I Waqt , November 28,
1979 .
24) Ibid., November 25, 1979 .
25) Ibid., November 15, 1979 .
26) Dawn, October 24, 1979 ; Nawa-i Wagt , October 22, 19/9; Ibid.,
October 28, 1979
27) Ibid., October 29, 1979 .
28) Ibid., November 15, 1979 .
29) Dawn, November 14, 1979 .
30) Ibid...
31) Nawa-i Waqt, November 5, 1979 .
32) Khan, Muhammad Zafrulla: Interpretation of religion and government
in Pakistan , in: Frye, Richard (ed.): Islam and the West. Proceedings
of the Harvard Summer School Conference on the Middle East ,
July 25-27, 1955 . 's-Gravenhage, 1957, p. 203;
cf. also idem: Der islamische Staat, in: Islam im Brennpunkt. Vier
Vorträge. Herausgegeben durch die Ahmadiyya-Bewegung des Islams
in der Schweiz und der Bundesrepublik Deutschland, Zürich, 1980, p.
7-25.
33) Fazlur Rahman : Implementation of the Islamic concept of state in
the Pakistani milieu, in: Islamic Studies, Rawalpindi , 6.1967.3,
pp. 205-223.
34) Khan, Qamruddin: Islam is a society, not a political system, in:
Dawn, August 13, 1980 .
35) Dawn, October 29, 1979 .
36) Nawa-i Waqt, December 4, 1979 .
37) Ibid., July 15, 1980 .
38) Khawarij is a name given to those partisans of the fourth
Caliph Ali, who defected from the battlefield after a theological
dispute with their erstwhile leader. In this way, they came to form
vir-tually the first religious sect within Islam.
39) Mirza Bashiruddin Mahmud Ahmad: Dustur-i islami ya islami a'in-i
asasi (Islamic constitution or the constitution based on Islam), in: Ta'rikh-i
Ahmadiyyat. Edited by Dust Muhammad Shahid, Rabwah, 11.1970,
pp. 425-437.
40) Report of the Court of Inquiry constituted under Punjab Act
II of 1954 to enquire into the Punjab Disturbances of 1953,
Lahore , 1954, pp. 203 f.
41) Nawa-i Waqt , December 16, 1979 .
42) Ibid., November 15, 1979 .
43) This term is used in Muslim political writinqs to describe persons
who are capable of solving intricate problems.
44) Nawa-i Waqt , November 5, 1979 .
45) Literal meaning: people of opinion.
46) Nawa-i Waqt , November 12, 1979 .
47) Ibid., December 16, 1979 .
48) Ibid., November 5, 1979 ; Ibid., November 25, 1979 .
49) Ibid., January 31, 1980 ; Dawn, February 3, 1980 .
50) Ibid., February 19, 1980 .
51) Nawa-i Waqt, January 13, 1980 .
52) Ibid., February 28, 1980 .
53) Ibid., June 25, 1980 .
54) Ibid., July 25, 1980 .
55) Report of the Court of Inquiry, op. cit., p. 211.
56) Adams, Charles J.: The ideology of Mawlana Maududi, in: South
Asian politics and religion.Edited by Donald Eugene Smith, Princeton
, N.J. , 1966, p. 391.
57) Dawn, November 14, 1979 .
58) Ibid., February 3, 1980 .
59) Fazlur Rahman : Implementation of the Islamic concept of state in
the Pakistani milieu, op. cit., p. 211.
60) Nawa-iWaqt , December 13, 1980 .
61) Ibid., December 6, 1979 ; ibid., December 13, 1979 .
62) Qur'an 12:55('He (i.e. Yusuf) said: 'Appoint me over the treasures
of the Land, for I am a good keeper, and possessed of knowledge ').
63) Nawa-i Waqt, June 15, 1980 .
64) Ibid., February 18, 1980 ; Dawn, February 19, 1980 .
65) Ibid., February 28, 1980 .
66) Ibid., April 27, 1980.