Since the nation’s inception many have viewed Pakistan’s constitution as the vanguard of the nation. The constitution sprinkled with Islamic articles and phrases is seen as the answer to the creation of an Islamic state.
But confusion remains, as in practice many struggle to reconcile what they see of policies in the country, with the notion of Islamic rule.
With election season upon us, this would be a good time to revisit this debate and assess Pakistan’s Constitution.
What is a Constitution?
The most apparent and visible representation of the system of rule is the constitution of a state. It is the constitution that lays down the basic laws for every government, defines the relationships between the ruler and the ruled and assigns their respective rights and duties. Muslim countries are no strangers to this idea. Each one of them is proud to put forward its ‘Islamic’ constitution. Various clauses relating to the sovereignty of Allah (swt) and the Sunnah of Muhammad (ﷺ) are inserted in order to establish the Islamic nature of their state. Despite these assertions, however, the apparent implementation of Islam has not led to a positive change in the situation of this Ummah. In fact, many of these states proclaiming Islamic constitutions readily implement man-made laws and follow their precedents.
In order to highlight the innate contradictions present within the constitutions of the Muslim countries and display how the present circumstances of these states are a reflection of their constitutions, Pakistan is a good case study in point. An analysis of Pakistan’s constitution highlights the fact that despite the initial Islamic clauses, the main body of the Pakistani constitution contradicts its Islamic basis and serves to directly undermine the pillars upon which the Islamic ruling system, the Khilafah, was built.
Development of the Pakistani Constitution
The political movement initiating the establishment of Pakistan did not have a constitution. Surprisingly, for a state claiming an ideological foundation, after the establishment of Pakistan, it was the Government of India Act of 1935 that declared Pakistan’s constitutional basis. Upon this basis, amendments would be made to the original act in order to meet demands and requirements. This was regarded as an interim measure until a constitution could be adopted.
It was in March 1949 that the legislative assembly began its construction of the Pakistani constitution. Various formulas and reports were put forward for discussion, but all failed.
This continued throughout the early 50’s until 23rd March 1956, when a constitution was finally passed and the Islamic Republic was declared. That is, nine years after it had originally been established.
However, this state of affairs did not last long, with General Muhammad Ayub Khan declaring Martial Law on 27th October 1958. His period of power continued until June 1962, when General Yahya Khan took over. It was after the tragedy of the 1971 division of Pakistan that a revised constitution was once again formally adopted on 14th August 1973. Since then, numerous amendments and changes have been made in order to accommodate various dictators, both military and democratically elected, and to appease public opinion. All in all, it is a developmental history that can be characterised by uncertainty, instability and East-West rivalry. With this in mind, the final outcome is not entirely unexpected.
Casting the Dye for Contradiction
The constitutional authors performed a great feat in writing a document so Islamic in appearance, yet so deceptive in its aims. If one were to examine its Islamic credentials, they would be impressive indeed. Taking ‘The Objectives Resolution’ as an example, it states:
“…belongs to Allah Almighty alone and the authority which he has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust.”
In the Preamble to the constitution it states:
“Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.”
These are noble words indeed. They convey the desires and wishes of the millions who sacrificed all for the establishment of such a state. It was a state that was intended to be the shining light of Islam and the vanguard of the deen. But in one of the most astounding contradictions, possibly little bettered in legal history, this huge edifice is wiped away in a single stroke. Under the Enforcement of Shariah Act, 1991: Article 3, Supremacy of Shariah states:
“The Shariah that is to say the Injunctions of Islam as laid in the Holy Quran and Sunnah, shall be the supreme law of Pakistan. Notwithstanding anything contained in this Act, the judgement of any Court or any other law for the time being in force, the present political system, including the Majlis ash-Shura (Parliament) and Provincial Assemblies and the existing system of Government, shall not be challenged in any Court, including Supreme Court, the Federal Shariat Court or any authority or tribunal.”
So despite the Islamic system of rule, law and sovereignty being held as being the highest, in actual fact, the political system was to remain the same. The system of government was to be left unchanged, and the democratic parliamentary structure could not be challenged in any court, even the Shariat Court. This is the foundation of the derailment of the ‘Islamic’ State of Pakistan. It provided the public with a façade of legitimacy; yet, at the same time, it denied its own applicability. From here on, the precedent had been set, the dye had been cast, and the entire approach to undermining the rule of Allah (swt) began.
In order to examine the details the below four areas will be assessed. But it should be kept in mind that this is a reflection of the constitution as a whole, and the undermining of the Shariah is in:
· The Ruling System
· Islamisation of Laws
· Economy and Taxation
The Ruling System: Defining ‘La ilaaha illalah’
Article 1 of the constitution discusses the republic and its territories by stating that,
“Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, hereinafter referred to as Pakistan.”
So the state is defined as being a Federal Republic. That is, a state where the supreme power is held by the public or their representatives. In other words, it is a democratic state. It is a state in which there is decentralisation of rule, with the provinces having a degree of autonomy. Thus, what is actually being stated is that the constitutional authors wholeheartedly took the Western non-Islamic system of rule. It is a system that upholds the people’s responsibility to make, change and remove laws and where central unity was diluted. They then implemented this as a ruling system over those who sacrificed all for the rule of ‘La ilaaha illalah.’
In order to properly discuss the issue, we must seek the meaning of what the rule of ‘La ilaaha illalah’ really is. This is easily clarified within the Islamic texts.
Prophet Muhammad (ﷺ) said in a hadith narrated in Sahih al-Bukhari, on the authority of Abu Huraira:
“There will be no Prophet after me, but there will be Khulafah, and they will be many.’ The Sahaba asked: ‘What do you order us about them?’ He (ﷺ) said: ‘Fulfil allegiance (baya’ah) to them one after one…’”
The ruling system in Islam is the Khilafah. It is the system mentioned in the ayat of the Quran, numerous hadith of the Messenger (ﷺ) and the example of the noble Companions (ra). It is a system where the laws are derived from the texts of the Quran and Sunnah, rather than the wishes of a majority. The system has a unitary nature rather than being a federation. All mandatory ruling powers are vested in the Khalifah, who has a contract with the Ummah to rule according to the Quran and Sunnah. The Khalifah has an unlimited period of rule as long as he fulfils his contract; he cannot be removed from office otherwise. His authority engulfs the whole of the state, no matter its size. He is responsible for appointing the walis, army commanders, officials and judges. The Khilafah ruling system is, in fact, a unique system.
Establishment of the Khilafah to the Sahaba (ra) was a matter of priority. This was over the obligation of accounting the negators of zakat, over dealing with the followers of the false prophet Musaylima the Liar, over sending the army of Jihad and over the burial of Rasoolallah (ﷺ) himself. Its priority was of the utmost importance. It was as critical an issue then, as it is today.
Islamisation of Laws – the Tragic Alternative
The process of implementing the complete body of Islamic laws did not start from day one in Pakistan. The fact that a British legislated act was used as its basis for government is a testament to this. Rather, what occurred was a process of Islamisation of laws. Its folly can be understood by realising that what was supposed to be implemented by default was Islamic law. However, the individuals assigned the task were the Members of the National Assembly (the equivalent of MPs). These individuals did not have a background in Islamic Jurisprudence, let alone expertise on the principles in usul, hadith or tafseer. It was those very members, who were unqualified to extract Islamic law, who were given the responsibility of devising the law.
Subsequently, the laws would then be checked for their ‘Islamicness’. This was indeed a very curious arrangement. In some instances, it led to the passing of laws that were completely against Islam. But, of course, this was the actual intention of the constitution. The Religious Affairs Minister of Pakistan, Mahmood Ghazi, explained, “The government is actively considering to review more than 5,500 existing laws to make these in consonance with Islamic traditions and values.”
In fact, today, no legal body as such as this exists at all to undertake such a task independently. Rather, the initiation of the evaluation is left to the individual. The constitution states:
“Under Federal Shariat Court: Powers, Jurisdiction and Function. The Court may, on the petition of a citizen of Pakistan or the Federation or a Provincial Government, examine and decide whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet.”
This effectively leaves the involvement of the Shariah to the domain of public opinion and not a responsibility on the shoulders of the Members of the National Assembly.
The only exception to this rule is the Council of Islamic Ideology. However, this institution is only an advisory body with little practical power. The council has the duty of examining laws and their conformance to Islam. The most they can do, however, is make recommendations. The legislative assembly then decides upon these recommendations. The intention of the government to actually correct the law can also be realised by examining the following clause related to the Islamisation process.
According to Islamic Provisions, Article 23, the functions of the Islamic Council are such that:
“The Islamic Council shall submit its final report within seven years of its appointment, and shall submit an annual interim report. The report, whether interim or final, shall be laid for discussion before both Houses and each Provincial Assembly within six months of its receipt and Majlis ash-shura (Parliament) and the Assembly, after considering the report, shall enact laws in respect thereof within a period of two years of the final report.”
The body responsible for checking the suitability of laws was awarded a period of seven years to complete its task. Six months were set aside to debate the decision by individuals unqualified to do so, and then a further two years to enact the final decision. The total period allotted was nine and a half years! The reality, in fact, was far worse than this. Instead of over nine years, decades have passed. The only result was that something as clearly forbidden as riba (interest) is still permitted, and indeed the law of Allah (swt) is being compromised.
According to their implementation of the Pakistani constitution, the Shariat Court is not the most powerful court in the land, and the law of Allah (swt) is not the highest. The Amendment of Constitution: Article 239 – Constitution Amendment Bill, makes it clear to whom the authority is given:
“For the removal of doubt, it is hereby declared that there is no limitation whatever on the power of the Majlis ash-Shura (Parliament) to amend any of the provisions of the Constitution.”
What Islamisation of laws actually means is the acceptance of non-Islamic laws alongside Islamic laws. This is clearly forbidden in Islam. The glorious Quran explains:
“Rule between them by that which Allah (swt) has revealed to you, and follow not their vain desires, and beware that they may turn you away from a part of what Allah (swt) revealed to you” [TMQ Al-Maida : 49].
The consequences of rebelling against this commandment are dire indeed. The Quran states:
“Then do you believe in part of the book and reject the rest? Then what is the reward of those who do so among you, except disgrace in the life of this world, and on the Day of Judgement they shall be consigned to the most grievous torment” [TMQ Al-Baqarah : 85].
The Ummah cannot accept disgrace in this life and pray to be protected from the grievous torments of the afterlife.
Legalising Corruption & Attempting Accountability
The issue of accountability has occupied the minds of Pakistani political commentators like no other. This slogan is constantly being slung from one party to another. But despite the repeated attempts at trying to root out corruption and actually bring the corrupt to account, it has failed.
From being a convenient weapon in the hands of the current ruling party, its death knell has happened so many times when convicted Prime Ministers have been allowed to go free despite courts having found him/her guilty and having passed sentence. However, when the issue is examined further and linked to the laws of the state as embodied in the constitution, this behaviour of the individual and the subsequent action of the Chief Executive is entirely understandable. As their constitution states under the General Provisions Article 248 – Protection to President, Governor, Minister etc.:
“The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions (and) no criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any court during his term in office.”
So the system is responsible for absolving the responsible from their responsibility. It categorically forbids the undertaking of any kind of proceeding, let alone accountability. With this understanding in mind, should we be surprised at the mindset of the rulers who feel themselves to be above the law? For in actuality, they really are above the law. Corruption is indeed justified in the constitution by its provision of giving the rulers immunity from prosecution; effectively making them what would be termed in Islam: masoom (infallible). The President, in fact, occupies just such a position. Under the Eighth Amendment and President’s Powers:
“The President may grant pardon, reprieve or suspend the sentence awarded by any court of law.”
The Khalifah, however, possesses no such right of exemption. The institution in Islam designed for deciding the grievances and issues arising between the people and the Khalifah are known as the Court of Madhalim. The Judge of the court would hear any complaints brought against the Khalifah and would issue his verdict regarding whether the Khalifah was innocent of the charges or whether he must be removed, thereby allowing the Ummah to elect another Khalifah.
The present pressure group based political system, which legitimises favours and donations from large businesses to legislating politicians to ensure government benefits, would cease. Its replacement by an aware Ummah exercising her right to account through the Court of Madhalim, would be the means to remove this entrenched feature of democracy.
Economics & Taxation
This subject represents one of the pillars of any state. Revenues and expenditure are of critical importance in managing the affairs of people. One would imagine that the constitution would contain the sound economic principles from Islam. One would think that the laws of al-Raziq would be valued as the ideal and perfect policies. Once again, the constitution disappoints us. In a series of articles, it is demonstrated that the entire body of economic thought of its authors has been taken from Western capitalist thought. Kharaaj, ‘Ushr and Jizya: these ideas are absent.
Under the Pakistani Constitution:
“It shall be the duty of the National Finance Commission to make recommendations to the President on the following matters:
(i) the distribution between the Federation and the Provinces of the net proceeds of taxes, such as taxes on income, corporation tax, sales tax, export duties on cotton and other export duties, excise duty, and any other taxes as may be specified by the President.”
The above article is a reflection of the capitalist economic policy. Taxations on income and capitalist based corporations and sales tax (another phrase for VAT) are borrowed directly from the West. They have no place in Islamic economic thought. Its results are seen in Pakistan where the cycling of wealth in an economy is limited. The lower the income, the more burdened with the bulk of taxation, and investment is stifled.
Islam puts down the collection of Zakah from the people and its subsequent distribution amongst the eight categories defined. This ensures the continued cycling of wealth within the economy and encourages the investment and utilisation of unused capital. One of the biggest potential sources of income in Pakistan – Kharaaj, has remained untapped. Kharaaj would be one of the main income generators for the Islamic State. Pakistan is blessed with an abundance of water and vast tracts of fertile land. This would be utilised for agricultural production. Kharaaj would provide vast funds for the state.
Implementing Islam was always a problem for the rulers of Pakistan. The issue of riba (interest) is a prime example. Despite the categorical prohibition from Allah (swt), they decided the following under the Enforcement of Shariah Act, 1991:8.
“The Commission (i.e. Commission to Islamise economy) shall oversee the process of the elimination of Riba from every sphere of economic activity in the shortest possible time and also recommend such measures to the Government as would ensure the total elimination of Riba from the economy.”
The overseeing of the process of elimination of riba has been going on not only since the adoption 1991 article, but long before. Countless reports have been written and recommendations made. This process continues to this very day, and has resulted in a compromise. The Pakistani Government has announced on numerous occasions that riba based transactions will be declared forbidden domestically but permitted externally. There should be no doubt that riba will never be removed from Pakistan in its current form. There is neither the will nor desire among the legislators to do so. In fact, they made their intention clear within the same Shari’ah Bill under the Enforcement of Shariah Act, 1991:18 on International Financial Obligations:
“Notwithstanding anything contained in this Act or any decision of any Court, till an alternative economic system is introduced, financial obligations incurred and contracts made between a National Institution and a Foreign Agency shall continue to remain, and be valid, binding and operative.”
Explanation – ‘Foreign Agency’ shall include a foreign government, a foreign financial institution, foreign capital markets, including a bank and any foreign lending agency, including an individual and a supplier of goods, and services.
Under the present system, Pakistan will remain bound by shackles of debts to the IMF, World Bank, the Paris Club and the rest of the riba-loving world. This bondage shall remain and continue to be strengthened by none other than the Pakistani constitution.
The Khilafah would cease to pay any loan based on riba and the current debt-servicing programme would be eliminated. This would free fifty percent of Pakistan’s income. This fifty percent of the annual internal wealth could be utilised for the development of infrastructure, investment in health and education and the establishment of a heavy industry. Rather than being a disability, adoption of the hukm of Allah (swt) would lead to an economic renaissance.
From just these four areas, it should now be clear that the nature of the Pakistani constitution is quite a deviation from the public’s perception of it. But even more shocking than this realisation is the clause that allows the effective occupation of Muslim land. It permits the President to go to the extent of lifting the application of the constitution of Pakistan from its own sovereign territory. Under the General Provisions Article 252, ‘Special Provisions in relation to major ports and aerodromes’, it states:
“Notwithstanding anything contained in the Constitution or in any law, the President may, by public notification, direct that, for a period not exceeding three months from a specified date, a specified law, whether Federal law or provincial law, shall not apply to a specified major port or major aerodrome, or shall apply to a specified major port or major aerodrome subject to specified exceptions or modifications.”
Unfinished Business – Putting the ‘Islamic’ into the ‘State’
It should now be clear that far from being an ‘Islamic’ constitution, the constitution of Pakistan contradicts the principles and policies of the Shari’ah. Though its cover may display Islam, we should know better than to judge a book by its cover.