Maulana Maududi: The Islamic Law & Constitution || Australian Islamic Library || www.australianislamiclibrary.org

The

Islamic Law

and

Constitution

By

SAYYIO ABUL A'LA MAUDUDl

Translated and Edited by
KHURSHID AHMAD

Islamic Publications (Pvt.) Ltd.

13-C. Shah Atam Market, LAHORE {Pakistan)

■

■

In the name of Allah, the Benefiunt, the Merciful

■

AUTHOR'S PREFACE

THE first edition of this book was compiled while I was in
prison. As such, neither could I add anything to the book
nor could my suggestion* be sought in its compilation. Now
the second edition has been prepared in full consultation with
me and contains almost all of my speeches and articles relating
to the subjects of Islamic Law and Constitution. Mr. Khurahid
Ahmad deserves my heart-felt thanks for the skill and ability
with which he has translated and edited the book.

A book like the present one, which has not been written in
the common textbook style, may not cater to all the academic
needs of a student of Islamic Law and Constitution, who wants
to study the subject in all its multifarious details, but. I do
hope, it will prove of immense help to all thoso persons who
want to study the nature of the Islamic State, its theory, form'
and underlying principles, and who wish to understand how the
islamic Law can be implemented in a modern state. Today there
are many countries whose Muslim population is, after attaining
independence, naturally eager to base its polity on those princi-
ples and traditions of Islam which aro a demand of its faith and
conscience. The people want that the Islamic Law should bo
introduced in their respective countries s* that they may follow
a law to which they owe their honest and sincere allegiance. But,
tmfortunatoly, in almost all such countries the reins of power
have been in the hands of those persons who not only did no*

»i The Islamic Law and Constitution

have even an elementary understanding of Islamic Law and Con*
stitution, but had all their education and training for the run-
ning of Godlesi secular states. Therefore everywhere they are in
a bad predicament because they are incapable of thinking except
in terms of the nature and pattern of a state of the Western
secular type. They are not in a position to wriggle themselves
out of the Western modes of thinking and practice. The position
qf the Muslim masses is not very dissimilar in certain respects.
No doubt they are extremely oagor to re-establish the Islamic
way of life and this urge of theirs is very real and sincere. But
they too aro not clear about the nature and form of tho state

whose establishmet they so sincerely urge. They also do not
know as to what should they do to establish tho state of their
dreams. Furthermore, Western thinkers and policy-makers
whose opinions have begun to command immense importance in
our times, who are influencing most the destinies of the Muslim
countries, and to whose opinions we too give due weight, har-
bour many a prejudice and suspicion about the nature and
prospects of the Islamic State. I think that most of their sus-
picions and apprehensions are due to a lack of information and

understanding and not becauso of any malice, and as such they
are removable. In .the articles presented in this book I have
made an humble attempt to serve all these sections. I wish that
whatever opinion is formed about the Islamic State, should be
formed after one b*s properly and thoroughly acquainted him-
eolf with its nature and content, and not otherwise. The present
book will, I hope, help a great deal in understanding the
various aspects of an Islamic State.

I am thankful to all those persons who offered their com-
ments on the first edition of the book in Pakistani and foreign
newspapers and journals. I have tried to benefit from their
comments as much as possible. I do not propose to give, in this
preface, any rejoinder to the objections particularly raised by
ti?e Western reviewers and critics. But I would submit that-

In the name of AllSk the Beneficent, the Merciful vii

there should be a limit to one's dosiro to see everything in
accord with one's own- wishes. There, can bo a people who mny
have very basic differences with the West in respect of human
values, ideals, culture and oivilization and thoy havo as much a
right to fashion their collective life in accordance with thoir
own values and ideals as tho West has to do according to its
own. l?or a happy co-existenco, tho thru.-itiug. of one's hoiiofa
and doctrines on tho other is as detrimental and injurious as is
an hohest endeavour to understand one another's ideology in its
true lights necessary and helpful.

ABUL A' LA UAUDUD1
Lahore : 15th Oclnhe.r. IQP.O.

f

CONTENTS

Page
vii

1

PREFACE

INTRODUCTION

— Why Muslims Want an Islamic State ? ... 2

—Historical Background of Pakistan f „ n

— The Ideological Problem <-f j$

—The Movement for Islamic Constitution ... 26

—About this Book m 33

PART I

ASPECTS OF ISLAMIC LAW*

Chapter 1.— The Islamic Law _ 39

2. — Legislation and Jjtihad in Islam ... 71

3. — How to Introduce Islamic Law in

Pakistan 1 wnt

PART II

POLITICAL AND CONSTITUTIONAL

yamfflffTOP islam

Chapter 4— Political Theory of I s ] am _ 123

5.— Political Concepts of the Qur'an „ m 153

0. First Principles of the Islamfc State ... 201

7. — Fundamentals of Islaaic-Coiwtitution ... 253

8. -~Rights of Non-Muslims in tannic Sfcato ... 273

9. — The Problem of Electorate • 301
10.— Somo Constitutional Proposals ... 313

H ' ■ •' The itlanit Iav *** Co*rf»«fte* '

APPENDICES

Appendix I.— B*»io Prineiplee of Mamio State :

by the 'Ufama of Pakistan

II. — 'Uhimi'i Amendment* to the B.P.C.

Report

III. -Commenta on the Draft Constitution

(1956)

IV. — Comment* on 1956 Conetitution
|| V.— White Paper on the Problem of

Electorates
VI.— Abnl A«Ia Maudodi : A Biographical
Sketch— by tht Editor

INDEX

I

INTRODUCTION

TSLAM today is passing through one of its most crucial
periods. In tiio first half of tho twentieth century, a wide-
spread rovival of Islam has occurred. The chains of political
servitude have boon brokon at many a pltfoe and nearly eighteen
Muslim countries have attained independence during the last
two docados. Intellectual aud cultural movements aiming at
Islamic renaissance have emerged throughout the length and
breadth of the Muslim world and are gradually gaining strength.
Although thoro have been ups and downs because of political
exigencies, the ovorall movement for Islamic rovival has been
slowly moving in tho upward crescendo. The entire world of
Islam is humming with a new ambition to rehabilitate Islam and
revive its pristine glory. Everywhere Muslims are on the march.

Muslims are oo the march everywhere

But the new challenge to Islam also emerges from this very
onward march of the Muslims. The course of events has put
them on trial. It is to bo seen hew they acquit themselves of it.

Tho basic problem before the world of Islam is how to re-
establish the Islamic ideology in the world of the mid-twentieth
century. This problem poses a great ohallenge, because Islam
is not a mere collection of dogmas and rituals. It is a complete
Way of life It is tlio embodiment of Divino Guidance lor all
fields of human life, may they bo private or public, political or
economic, social or cultural, moral or legal and judicial. Islam
if *n all-embracing ideology and the problem that besots the
Muslim world, which has only recently emerged from political
slavery, is of translating this ideology into practice aed of
reconstructing its socio-political life in accordance with it.

The movement for the introduction of the Islamic law and
the establishment of the Islamic State is a part and parcel of
this ovt*r&ll movement tor the rerivat and tho rehabilitation of

2 The Mamie Law and Constitution

Mam. The movement is not afoot in more or less every Muslim
country, particularly in those countries which have recently
attained independence. Everywhere people are pressing for the
framing of an Islamic Constitution and for the introduction of
the Islamic law. Sudan, Indonesia, Pakistan, Malaya, Somalia,
etc. all are witnessing the same movement. The question
arises why has one and the same trend appeared in so many and
so far off places S And why is the problem of Islamic State
becoming important with the spread of political freedom ?

Western observers and those totally educated in the
Western tradition often fail to understand the phenomenon, it
seems, therefore, advisable to oast a cursory glance over the
case of Muslims for the establishment of Islamic State.

II

WHY MUSLIMS WANT AN ISLAMIC STATE?

The question why Muslims want an Islamic State is a
strange question. For Muslims should not and, as a matter of
fact, could not as Muslims but want an Islamic State, This is
the only natural course for theio. If they wanted anything else,
then an explanation would perhaps be 'called for ; and not
in the case when they want it. But because of a host of
reasons on explanation to this effect has become necessary.

Firstly, the intellectual and religious background of the
world of Islam is very different from Chut of the West and as
such it becomes difficult for tho Western and tho West-orionted
observors to grasp and appreciate ttie situation. It is, therefore,
necessary that the Islamic concept of religion and the Muslim
outlook on politics should bo clcary understood at tho very out-
set. Then alone can a better understanding of tho contempor-
ary 'Muslim political thought be developed.

Secondly, the educated younger generations of the Muslin*
world too have been estranged from their own cultural and in-
tellectual tradition. Under the influence of Western education
they hare imbibed the Western pohtrcal concepts and are think-

Introduction 3

iog of introducing them in the Muslim world without any regard
for the Muslim tradition as such. And as, through a cruel con-
spiracy of circumstances, the reins of power in many a country
has passed from the hands of the erstwhile Imperialist powers
to this very class of West-oriented Muslims the need for a
precise presentation of the Islamic case has increased manifold.

Islam holds that Allah has creatod the Universe and con-
trols and governs it. He created man and provided him with
all that lie needs for the progress and growth of life. To fulfil
his material needs Ho has endowed the world with all kinds of
materials and substances which man can harness to his use.
To cater to his spiritual, cultural and social requirements, he
needs His revealed Guidance through His Prophets, It is the
Guidance which constitutes the religion of Islam.

Life is a unity. It cannot be divided into water-tight com-
partments. The function of religion is to direct the aifairs of
life. Therefore its domain is life in its entirety, and not any
specific aspect of it. That is why it not only gives an outlook
on life and reality but also lays down the basic principles on
which man's relationships to his own self, to other men and
society, and Allah the Creator are to be reared. It looks upon
life 19, its totality and provides guidance for every field of
aotivity. The mission of a prophet, according to lalam, is not
merely to cater to spiritual elevation. His miasion is to purify
the^ beliefs and ideas of man about Reality, to purge his soul of
all impurities, to awaken his moral consciousness and to use this
moral force for the reconstruction of the society and the
remoulding of the flux of history.

This has been tho mission of all the prophets of God and
Prophet Muhammad (peace be upon him) was the last of the
prophets to whom God's Guidance was revealed in its complete-
ness and who established an ideal social order-a complete
cjviH Z ation~iu accordance with this Guidance. It is this
Guidance which is enshrined in the Qur'an and eunnak. the
word of God and the example of tho Holy Prophet, and consti-
tutes the religion of Islam.

4

Tte Islamic Lata and GonstiUdion

Tho Qnr'aa explicitly asks man to submit to God with a
complete submission and to accept His Guidance in every field
of activity. The call of the Qur'an is ;

"O ye who believe ! enter into Islam wholly and follow
not tho footsteps of the Satan, verily ho is unto you an
enemy manifest". (2 : 208)

The mission of the prophets, according to the Qur'an is the
establishment of virtue and justice in accordance with the
revealed guidance.

"We verily sent Our messengers uith clear proofs, and
revealed wiih them the Scripture and the Balance, (i.o., the
authority to establish Justice), that mankind may observe
tho right measure ; and He revealed iron (i.e., coercive
powor) wherein is mighty power and (many) uses for man-
kind and that Allah may know who hclpeth Him and His
messengers, though unseen". (57 : 25)

"He it is Who hath sent His messenger with the Guid-
ance and religion of Truth, that He may make it supreme
over all othor ways, however much idolaters may be averse".

Thus Islam wants to fashion one's entire life according to
the principles of individual and social behaviour revealed by
God and does not confine itself to the precincts of tho private
life of the individual alone. Politics, on the othor hand, studies
the relationship of man with the state and of man with man. In
Jslam this too is the. domain of wiigiou, which comprehends all
aspects of life. Islam does not admit of any separation between
religion and politics; it wants to conduct politics also in accord*
ance with the guidance provided by religion and Jo use the
state as the servant of the Lord, The Qur'an lays down that
Allah is the Sovereign and tho Law-giver and His revealed law
must be adopted as the law of the J and. According to tho Qur'an :

"The command is for none but God ; He hath com-
manded that ye obey none but Him: that is the right "path".
(12:40)

Introduction

S

"Verity, Hip is the Creation end His is the Law".

(7:54)

" If any do fail to establish and decide by what Cod hath

revealed, the-j are the unbelievers the unjust the

evil-doers". (5 : 44, 45, 47)

Tslam uses political power for the reform of the society and
does not leave it to degenerate into 'the last resort of %
scoundrel'. It rather makes the Prophet pray that the rulers be
converted to the creed and become its support.

"Say : 0 my Lord ! Let my entry he by the Gate of

Truth and Honour and likewise my exit by the Gate of

Truth and Honour ; And grant mo from Thy presence a,

rwlinrr authority to aid mo". (17 : 80)

Maulana Maududi, in his Tafsir, explains the above verse
as follows :

"That is either grant me power on earth or make any
ruling authority, any state, my supporter so that I may.
with the force of the coercive powers of the state, establish
virtue, eradicate evil, put an end to the surging tide of cor-
ruption, vulgarity and sin, set at right the disruption which
has engulfed life and administer justice according to Your
revealed law".

This is the real meaning of the verse and this is the inter-
pretation given by Hasan Basri, Qatada, Ibn Jarir and Ibfl
Kathir. This view is further supported by the hadifh :

"Allah through state power puts an end to that what
1 He does not eradicate through the Qur'an".

This shows that reforms which Islam wants to bring abont
cannot be carried out by sermons alono. Political power is also
essential to achieve thorn. 1 *

This is the approach of Islam. And the logical consequence
of this approach is that the state must be moulded on Ishunic
pattern*. This ia a dictate of the Islamic faith and cannot be
disregarded. The Western concept of the separation of religion

L Abiil AKu MbuUviU. Tajhhuul Qvr % un t Vol. II, Lahore 1U54, p. CIS.

Q The Islamic Law and Constitution

from politics of secularism-is foreiga to Jalam ^ ^

of it would be the very negation of the Islamic concept of polity.

This problem has become very serious with the spread
of political freedom. In the past. Muslims were not free to
fashion their political life according to their own likes and dis-
hkes. They were under the. yoke of Wesiern imperialism and
had no freedom to order their affairs accordine to the Islamic
principles. But after the attainment of independence, they are
free to adopt whatever way of life they like. If, even after the
attainment of this freedom, they do not adopt the Islamic way
and instead of enforcing Islamic law, choose to run their state
on some other lines, this avoidance of Islam on their part would
amount to no Jess than a form of national apostasy-something
of which Muslims cannot conceive.

This concept of Islam, further supported by the practice of
the Holy Prophet (peace bo upon him), of the Khihfnt.i.Uashi^a
and of the multitude of Muslim reformers, impels Muslims to
strive for the establishment of Islamic State.i Thi, is why this
move is spreading throughout the world of Islam and has become
one of the most important topics of our age.

A perusal of Islamic history reveals that throughout the
long range of thirteen centuries, no ideal other than Islam has
ever spurred Muslims to any groat action. Islam is the vcrv
breath of their life : it alone has moved them to accomplish
great feats of glory. Any contrary ideal has never caught their
imagination, has never moved them to berime their entire,
ex.stence, has never von any popuJar support amongst them.
Professor Wilfred Smith, while surveyinp the problems of
nationalism in the Muslim world, admits this unique pheno-
menon of Islamic history. He observes :

■

ot«u ■ a Mush, n W „„«] tt „ .Is| aillk , Stu.e\ A -Muslin, S.a.c is any
•ft., winch 1S ruled by _V„,,i nis . Islamic S, 0 ,e. on U,c other tan*. i' S

Z<^Z „rf? t0 co 'r" ,f " ils affnirA in acror< in,we »* ™«*>«i

gUKtanw orrsln,,, and accepts Ihe sovereignly of AI!„h «>„1 <i ie sum,-
maey of His Law, aild wllich devolos its resollW;CS (o nchjov£> ^

Introduction

7

"No Muslim people has evolved a national feeling that

has meant a loyalty to or even concern for a community
tianscending the bounds of Islam". 1

Also that :

In the past, only Islam has provided for these people
this typo of discipline, inspiration and energy". 2

This is a unique feature of Islamic history and the move of
the Muslim people towards the Islamic State is the natural func-
tion of their history. Any other move simply cannot succeed.

Moreover, the experiment of the Western countries with
secularism are in no way -encouraging. Separation of politics from
morality and religion has created more problems than it has
solved. The result is that there is scepticism in thought, con-
fusion in values, expediency in standards, vulgarity in behaviour
end opportunism in diplomacy. Politics has become out.and-out
machiavellian and this state of affaire has greatly impairedgtho
poise and tranquillity of life. That is why, in the words of a
philosopher, although the modern man has "learned to fly in the
skies like the birds and to swim in the oceans like the fishes, but
has failed to learn to live on earth like human beings". That is
why the renowned historian, Arnold Toynbee is even doubting
the raluo of secularism as an ideal. He says :

"Perhaps it is impossible to attain secular happiness
for the individual by pursuing this secular happiness as an
ultimate end in itself ; but it is conceiveblo that secular
happiness for the individual may bo produced as an inci-
dental by-product if the individual is aiming at something
else that is spiritually above it and beyond it. Secular

happiness may be a by-product of trying to carry out tho
spiritual aims that are common to all the higher religions ;
the effort to take sides with what is good against what is eyil>
and the effort (o attain harmony with Absolute Reality or

1 - Wilfred C. Smith, Islam in Modern HUttfry, Princeton, 1957. p. 77.
- Ibid,

8 Tkt Islamic Law and Conetituiio*

Iqbal has also very forcefully pointed out the real malaise
of the Western culture. He says :

"Both nationalism and atheistic socialism, at least in
the present state of human adjustments, must draw upon
the psychological forces of hate, suspicion and resentment
which tend to impoverish the soul of man and close up his
hidden sources of spiritual energy. Neither the teqhnique
of medieval mysticism nor nationalism nor atheistic social-
ism can cure tho ills of a despairing humanity. Surely
the present moment is one of great crisis in the history of
modern culture. The modern world stands in need of
biological renewal. And religions, which in their higher
manifestations ore neither dogma nor ritual, can alone
ethically prepare tho modern man for the burden of the
great responsibility which the advancement of modern
science necessarily involves, and restore to him that
attitude of faith which makes him capable of winning a
personality here and retaining it hereafter. It is only by
rising to a fresh vision of his origin and future, his whence
and whither, that ' man will eventually triumph over a
society motivated by an inhuman competition, and a civili*
zation which has lost its spiritual unity because of its inner
conflict of religious and political Tilses". 2

In this context Iqbal's eall was as under :

"Humanity needs three things today- — a spiritual in-

1. Arnold Toynbee, Christianity among the Religion* of the World, Oxford
University PreHs, London, 105$, p. 562 (Emphasis ours) Speaking nt
tho Jamsbed Memorial Hull, Karachi, Prof. Toynheo snid :
"Religion was indispensable for human boings, And without it, tho
existence of ni^n was not rjo&siblo. Religion *was essential for solving
the most complicated problems of the individual and tho Socio! v. In
modern. scientific advancement, religion has still to pl«y a bettor and

■ important role for tho preservation of the personality of tnrr,"
Quoted in The Islamic Review, London, January 1900. p. 30.

2. Muhammad Iqbal, Reconstruction of Religious Thought in /«&<*»,
La'ioro, 1054, pp. 183-189 {Emphasis ours).

Introduction t

torpretation of the Univerae, spiritual emancipation of the
individual, and basic principle* of a universal import direct-
ing the evolution of human sooiety on a spiritual basis...
Believe me, Europe today is the greatest hindrance in the
way of man's ethical advancement. The 'Muslim , on the
other hand, is in possession of these ultimate ideas on the
basis of a revelation... Let the Muslim of today appreciate
his, position, reconstruct his social life in the light of ulti-
mate principles, and evolve. .that spiritual democracy which
is the ultimate aim of Islam" 1 .

With this belief and this realisation, Muslims are trying to
carve out their own path and to set, by establishing a political
order on the moral principles of Islam r an example before a
world torn by Seoularisxn, Nationalism and Communism.

Lastly, they are faced with the problem of Communism.
Communism has shaken the Western world and the spectre is
now haunting the Muslim East. Communism is a social philo-
sophy, but in the last analysis, it is an ideology which is a pro-
duct of secularism and atheism and wjiich .emerged to fill the
vacuum created by the disintegration of religion in the West,
Poverty and social disordor there always have been. Commun-
ism appeared on the scene only when religion, the hope of the
people, was destroyed. It is a product not mainly of poverty
but essentially of materialism, and religion alone can meet its
challenge. R, N. Crew-Hunt rightly says that :

"It is, in the last analysis, a body of ideas which has
filled the vacuum created by the breakdown of organised
religion as a rosult of the increasing secularisation of
thought during the last three centuries, and it can be com-
bated only by opposing to it a conception of life based upon
wholly different principles"^

I. Muhammad Iqbol, Reconstruction of Religious Thought in I*! an*.
Lahore. 1954, pp. .183-180 {Emphasis ours)

2- K.^N. Crow-Hunt, The Thrcory and Practice of Communism. London,
1951, p. 6.

10 The Islamic Law and Constitution

Douglas Hyde, a former editor of the Daily Worker,
London, endorses the same analysis. He writes :

"Communism is not, first and foremost, a social or

political problem. It is a spiritual problem and only if we
;. understand this, shall we see why it has spread in this

particular age and no other. Its rapid growth would not

hare been possible in the age with a faith. Only in a pagan,

faithless age was it possible for such a philosophy and way

of life to spread to millions of men...". 1

"Communism uses the very poor in times of crisis or

when a revolutionary situation develops. . This is its main

interest in 'them. Social justice is the thing upon which it
feeds. It is not the originator of Communism" .2 "The

. spread of Communism and Communist influences has been
made possible by the spread of wrong Ideas, wrong values,
wrong standards. Still more, it has been made possible by
the existence qf large numbers of people with no standards,
no values, often all— but no ideas at all." 3

''Communism is the expression of a deep Spiritual ill.
The spread of Communist influence can, in the long run,
only be countered by the spread of the Faith."*
Muslims believe that the gfestest bulwark against Commun-
ism is Islam. Islam is the faith and religion of over five hund-
red million human beings. 8 It is the force which has / moved
them in the past and which is the sheet-anchor of their present
existence. It is an ideal which inspires them and can move
them to action, effort and sacrifice. It is a social philosophy
whish stands for justice and well-being and has a just and
moral, political and economic ideology of its own « Islam not

1. Douglas Hyde, TAa -4n*w«r to Communism, London, 1051, p. 46.
J. Ibid., p. 47, (EmphasiM M).

3. 76td.t p; 49 [Emphasis ours), 4. Ibid., p. 50 (Emphasis our*),

o. See Abdullah Al-Ma&dusi, Muzahib-e-Alam, Karachi, 1958, p. 130
d. Prof. Wilfred C. Smith, himself a former Socialist, admits in his
recent book, Islam in Modern Bittory : *

"Surely Islamic enterprise has been the most serious and sustained
endeavour -ever put forward to implement justice among men and
until the rise of Marxism was also the largest and most ambitious. 11
. Islam in Monism History, op t oft., p. 24. .

Introduction i\

Only gives them an ideal to lire and die for, it also establishes
social order in which equity, justice and fair play reign. Such an
ideology alone can check the onward march of Communism.
The negative ideology of secularism cannot cross the way of Mm
positive movement of Communism. Muslims see in the Islamic
State the surest answer to Communism. The establishment of
the Islamic State would not only check the onward march of
Communism but would be a positive challenge to it. And that
id how Communism can be met on its own grounds.

This is, in brief, the Muslims' case for an Islamic State and
herein lies its importance for the Muslims in particular and for
the world at large in general.

in

HISTORICAL BAGKGROUND OF PAKISTAN

The Pakistan movement was an expression of Muslim
India's firm desire to establish an Islamic State. The movement
was inspired by the ideology of Islam and the country was car.
ved into existence solely to demonstrate the efficacy of the
Islamic way of life.

Islam came to India through Muslim traders, travellers and
sufis. With the spread of Islam, the desire to establish an
Islamic polity in the sub-continent gained strength. Muslim
rulers, in response to the aspirations of the Muslim masses,
introduced Islamic Law and established the SKa'air^Mam
(Islamic Institutions). Although there was monarchy and des-
potism, institutions alien to the letter and spirit of Islam, but
the Shari'ak \did constitute the law of the land and thero was
no mass-deviation from Islam. This was not a very welcome
situation, for Islam was not being enforced in its entirety. But
there was also no movement agiinsj Islam and it was expected
that through sustained effort, things would be corrected in the
cou r8e of events. It was during the reign of Ahbar that a
calculated endeavour was nj a de to purge Islam from the socio,
political life and to evolve a new religion-a hotch-potch of

12

The Itlamic Law and Con$Utation

Hinduism, Buddhism, Paganism and Islam— under the patron-
age of the State. This produced a strong reaction among the
people who revolted against this idea and tho movement for the
establishment of tho Shari'ah omorged in full force. It was
pioneered by Shaikh Ahmad of Sarhind, popularly known aa
Mvjnddid Alf-i-Thani who propagated tho teachings of Islam in
a systematic way, proclaimed the truth undeterred by threats,
created public opinion for social and political reforms, fought for
Islam undaunted by the tempests of adversity and even suffered
imprisonment in the historic Gwalio* Fort. It was as a result
of this movement that the anti-Mam policy of Albar fiziledout
almost immediately after his death and gradually even the
Mughal emperors became Islam-oriented, so much so that
history witness Aurangztb who was an ardent soldier of Islam
and in whose reign codiaoat ion and introduction of Islamic law
was accomplished.

The torch which Mujaddid Alf-i-Thani lit was kept burning
by the later generations and the movement progressed under the
guidance of different leaders of thought and action. Shah Walt-
ullah of Delhi reconstructed the Islamic thought and laid the
foundations of Islamic renaissance in the country. All the re-
formers of the nineteenth and twentieth centuries drew their
inspiration from this beacon of learning. \

Shah Ismail Shahid and Sayyid Ahmad Shahid waged amove-
ment for the establishment of the Islamic State, T*ey fonght
the Sikhs and the British imperialists and their ultimate objective
was to establish KUUfat ala minhaj't-Rhilafat-e-Rashidah
(Islamic State on the pattern of the State established by the
Rightly-Guided Caliphs). In the words of Sayyid Ahmad Shahid ;

"The only desire that spurs me is that the law revealed
by the Almighty, which we call the Shari'ah may be enforc-
ed in all the linda and on all the peoples and there should k
remain no conflict or tussle in this respect. My objective is

to accomplish this task this may be achieved through

my hands or through anybody else's. What I want is that

Introduction

13

this must be done. And I resort to all those means and
devices which seorcs to help in the achievement of this end. 1
Although Sayyid Ahmad and his armies could not succeed,
they ignited a fire in the hearts and souls of the people and the
Movement continued even after their martyrdom. This move-
ment left such indelible impressions upon the minds of the
. Indian Muslims that no amount of British repression could efface
them. The bloodstains at Balakote continued to inspire the
people and indeed the movement has survived in all its pristine
force op to the present day.

Sir Sayyid Ahmad Khan tried to strike a compromise with
Western thought but despite his sincerity, modernism could not
gain ground. Shibli Nu'tnani, Ahul RaXam, Maulana Muhammad
Ali, Iqbal and Maududi all represent the original renaissance

movement and each ono of them gave a new impetus to this
movement. Shibli tried to inspire confidence in Muslim culture
and brought to light the historical role of Islam and of the
Prophet of Islam. Abu! Kalatn shook Muslim India from its
stupor and called it back to the original message of Islam.
Muhammad Ali revived the Muslim interest in Indian politics,
strengthened the pan-Islamic feelings and championed the
Khilafat Movement which constitutes the turning point in the
modern political history of Muslim India. Iqbal, through his
poetry and prose, moved the soul of the younger generations and
inspired tbem to re-achieve the glory that is Islam. Maududi
gave the revivalist trends its new intellectual formulation and
organised the' e forces into an all embracing movement.

This is the intellectual background in which the demand for
Pakistan arose. The Pakistan movement was not the making
of any one individual. It was the natural orescendo of history
and it goes to the credit of Iqbal and Muhammad Ali Jinnah
that they grasped the slow whisper of history and piloted the
movement on such lines that within a decade Pakistan became
areality.. - *

h Uakaiteb Shah Iamaii, p. quOteJ by Utljlaia Rioai U»hi» , Sayytd
Ahmad Shahid, Vol. II, Lahore, p. 2tS.

14

The Islamic Law and Constitution

The idea of Pakistan owes ita origin to the belief that
Muslims are a nation,* an ideological community, and it is a
dictate of their faith to establish a state, a society and a culture
in the light of the principles given by the Qur'an and the Sunnah.

Iqbal, while suggesting the idoa of Pakistan in his Presi-
dential Address to the Annual Session of All-India Muslim
League in 1930, said that:

"The life of Islam as a cultural force in this country
very largely depends on its centralisation in a specified
territory. This centralisation of the more living portion of
the Muslims of India. ..will eventually solve the problem
of India as well as of Asia."*

This was essential so that Indian Muslim may become
"entitled to full and free development on the lines of his own
culture and tradition". 8

1. To have an idea of how old this concept it let us givo a few reference*

(1) ALBeruni who visited Indo-PakUtan eub -continent in the ninth

century writes : ■
-The Hindus entirely differ from as (i.e. the MueLims), in «very

respect." Kitab at -Hind. Tr. by 8. Sachau p. 17.

"One might think that they had intentionally changed them (i.e.
their customs and ways of living) into the opposite, for our customs do
not resemble theirs, but are the very reverse ; and if ever a custom of
theirs resembles one of ours, it has certainly juet the oposite mean-
ing." {Ibid., p. 197).

(2) Sir Syed Ahmad said in 1862 :

"Ib it possible that under these circumstances two nations^ the
^lohammadans-and Hindus— conld sit on the same throne and remain
equal in power ? Most certainly not. It is necessary that one of them
should conquer the other and thrust it down. To hope that both could
remain equal is to desire the impossible and the inconceivable. ^(Quoted
by Richard Symond, The Making of Pakistan. London* 1951, p. 31).

(3) Sir William Hunter, in his book The Indian Mutaalmani, speaks of

.Muslim* a& a community, a race exhibiting "their old intense
'* fooling of nationality." (W. W. Hunter, Th* Indian MuMtalmane

Calcutta 1945 ed., pp. U3-IM). .

2. Muhammad Iqbal, Spuches and Statements o] Iqbal, compiled by
"Shaculoo," I**l*re, 1948, p. 13. .

3. M, p. U.

. Introduction

Quaid^Azam based his plea on the same grounds. During
the Jinnah-Gaud hi talks he said :

"We claim the right of self-determination as a nation
and cot as a territorial unit". 1

In March 1944, while elaborating the concept of Pakistan
he said ; ;

"Our bed-rook and sheet-anchor is Islam. We are one
and we must more as one nation and then alone we shall he
able to retain Pakistan" 2

In June 1945, he said :

"There is only one course open to us ; to organise our
nation. And it is by our own dint of arduous and sustained
efforts that we can create Btrength and support our people
not only to achieve our freedom and independence but to be
able to maintain it and lire according to Islamic ideals and
principles.

"Pakistan not only means freedom and independence
btit the Muslim Ideology which has to be pre«erved, which
has come to us as a precious gift and treasure and which we
hope others will share with us" .»
In November, 1945, he said : ■

"The Muslims demand Pakistan, where they could rule
acoordidg to their own code of life and according to their

own cultural growth, traditions and Islamio laws Our

religion, our culture and our Islamic ideals are our driving
force to achieve our independence".*

i

Mr. Liaquat AH Khan affirmed the same concept of Pakistan
when, while moving the Objectives Resolution, he said :

"Pakistan was founded because the Muslims of this
subcontinent wanted to build up their lives in accordance

Muhammad AH Jinnah, JinnaK-Qandhi Talk\, Delhi, 1944, p. 20
2- MuWmad AH Jinuah, Some Recent Speech** and Writing* of Mr.

Jtnnah, Lahore, p. ~
»♦ Ibid., pp. 386-67.
4. Ibid.

16 Th4 Islamic Law and OonstUuion

with the teachings sod traditions of Islam, because they
warned to demonstrate to the world that Islam provides
a panacea to the many diseases which have crept into the
life of humanity today".*
Tnis was the real concept of Pakistan.
The above discussion clearly shows that :
(a) The movement for the establishment of Islamic State
has a glorious background and the Muslims' demand
and support for Pakistan was a part of that very
movement.

(6) The idea behind Pakistan has beon the establishment
of a country where Islamic State and Islamic society
oould be established.
■ (e) The leaders of the movement made this very promise
with the people whose support: and unbounded
enthusiasm for the demand was motivated by this very
Islamic nature of the enterprise.*

IV

THE IDEOLOGICAL PROBLEM

i

The real objective behind tbe creation of Pakistan, aa we
have discussed earlier, was the establishment of a country
wherein the Islamic ideology oould be implemented in its

I • |

1. Constituent Assembly of Pakistan, DebaU*, Vol. V. p. 3, March 7, 1040

2. Mora wo may also quote Prof. Smith who in his book Pahltian as on

Islamie SiaU k buy* s

"In tho cue of Pakistan tho whole raittan oVeirs of the elate is
Islam : it is islam ulouo which holds it togothor." WiJl'rod C. Smith,
Pakistan at an Islamic Stats, Lahore, 1054, p, 20.
In his recent hook Islam in Modern Hi* lory, he says ;
"It is this Islamic nature of the State (quit** independent of its form)
that explains the joyous and devoted loyalty that it initially aroused.
The establishment of Pakistan was groetod by its Muslim citizenry
With a resonant enthusiasm, doapito the catastrophic terror and ohaos
— of its early mouths. Indeed, without tho stamina and morale gono-
rated by religious fervour* the now duminiou would hardly iiave
survived tho devastations of its iirst disorders.** Wilfred 0. Smith,
Xstem in Modsrn tfwtory, &p> «ff. a p. M2. ~

entirety. The support end the Morifioet of the people were
meant for this objective aad for nothing else. The natural
demend of this satiation was that effective steps should here
been taken at the very outset to implement this ideology. The
support and cooperation of those people who could really
guide the Government in thia project should hare been enlisted.
Education, law, administration, commerce and all other fields
of national life should have been overhauled in the light of
Islamic principles and to make a beginning in this direction,
constitution-making should have been expedited and earnestly
carried on Islamic lines. But. unfortunately, none of these
steps was taken. The leadership failed to come to grips with
the ideologioal problem. It could not give a lead to the nation
in this direotion. It had fed the people on slogans, but when
the hour for the implementation came, it oould not deliver the
goods. It was from this situation that the ideological conflict
arose.

People waited for some time. But gradually they began
to become restless. Protests and demands began to pour in:
Dissatisfaction and eveo frustration began to mount. This was
the position of the people, but the rulers on the other hand,
instead of responding to their call, started dilly-dallying taotics.
And as the leadership failed to solve even the non-ideological
problems, the confidence of the people was shaken to its roots.
Their missionary seal began to evaporate-and the low of this
spirit has been the greatest loss which the nation has suffered
since independence.

■

* *

Superficially, the oonfliot iu of a political nature. Bat
when one peep* beneath the surface one find* that it m
oasentieUy an ideologioal and a cultural oonfliot and can be
understood only in a wider per a pec ti ve.

Although the contact of islam and the Western CiriUaatiou
began, in the sereotejoth, century, it entered a crucial stage
only in the nineteenth and twentieth centuries. In these later
periods the political aupremaoy of the Muslims was on the
•We, 'Tne Huslim world was lucoumbinz »t a tatHA »-.«. L>

18 The Islamic Law and Constitution

the encroachments of Western imperialism. Under the
sheltering care of imperialism, Wostorn education and Western
technology were oreeping into the world of Islam. New ideas
began to fill the air ; new techniques began to hold sway. These
things shook the old order to its roots. The Muslim world was
thrown into convulsion.

Two diametrically opposed reactions emerged in this age of
crisis. One was that of undiluted conservatism and the other
of unbridled modernism. The conservatives sought refuge in
the asylum of old tradition. They became rigid in their
outlook and approach. Every change, they thought, would be a
change for the worse. So, ia their view, the only way to save
the Islamic law and culture, in that hour of chaos and confusion,
was to stick to the past stubbornly and guard the old order
jealously.

The modernists, ou the other hand, were swept away with
the current of the time. They thought that the royal road to
glory lay ia the imitation of the Wost. The Muslim revival, in
their view, could bo achieved only through adopting Western
technique, Western law, Weatern education, Western culture,
and Western modes of thought and behaviour. They saw no
contradiction between Islam and the modern West and pleaded
for the adoption of Western civilization so that Muslims could
also emerge as a progressive nation.

A third trend— that of the Renaissant Islam— had also
emerged and was gradually gaining strength. Its political and
emotional manifestations were becoming more and more
pronounced but lacked a proper intellectual formation which to
intents and all purposes was given by Iqbaland Maududi.

After independence, all these three trends beoafeae more
clear and pronounced aud the ideological conflict was the
product of the basic attitudes formed by these different
approaches to the problem. The modernists inherited the reins
x£ power from the erstwhile British rulers but these people
totally failed to understand the language of the people. This
gave birth to an ideological Bohism, the role of Maududi, in

the constitutional and political history of Pakistan, tic* in
bridging the gulf between the two extremes and in giving
classical Islamic thought a new formulation to suit the needs
of the modern society.

Careful reflection reveals that neither conservatism nor
modernism can deliver the goods.

The conservatist approach, represented by the orthodox
ulama, is unrealistic. It fails to take note of the fact that life
is over-changing. History is moving ahead and the society is
being moulded into newer shapes. New situations are arising,
new relationships are being formed 'and new problems are
emerging* It is imperative to take note of this change and see
how the tenets of Islam can be applied to these new conditions.
It would be futile to try to put a brake upon change. It would
be still ' more futile to ignore the change altogether and do
nothing to meet its demands. The approach whioh fails to
grapple with the problems of the day is bound to fail. It
cannot but drive religion out of the flux of life and confine it
to the sphere of private life. And when an estrangement is
effected between religion and life, then even the private life
cannot remain religion's preserve.

Furthermore the conservative elements had not the full
understanding of the constitutional, political, economic and
cultural problems of the day. The result was .that they could
not talk the language of today and failed to impress the
intelligentsia and the masies alike. They were unable to give
a lead in the new ideological situation. * <

But in alt fairness it must be said that the conservative
elements did realise their weaknesses and tried to adopt
themselves to the movement of the Renaissant Islam. A new
awakening had been among them and some sections from among
thorn had begun to gravitate to the middle course. They had
their limitations, but they did try to adjust to the new
situation.

The modernist approach, on the other hand, has been still
y more Shallow, unrealistic and unsuited to our conditions.

I;

*0 TU Islamic Law <*nj Constitution

This approach of the so-called liberals is, in fact, not a
reform movement, bat a oloaked departure from 111 am. They
lack ail understanding of Islam and try to import all their ideas
and concepts from the West. But as they are not bold enough
to speak their mind openly and frankly, they try to maintain
the Islamic terminology and twist its meaning to suit their
ideas. Even a leading Western cri tic of Islam, Professor Joseph
Schacht had to admit that what these 'progressives' are driving
at is not Islam, bat the very antithesis of it. He writes ion
reoent essay :— '

"The method used by the modernist legislators savours
of unrestrained eclecticism ; the 'Independent reasoning*
that they claim goes far beyond and that was practised in

1 the formative period of Muhammaden law ; any opinion
held at some time in the past is likely to be taken oat of
its context and used as an argument. On the one hand the
modernist, legislators are inclined to deny the religious
character of the eentral chapters of the sacred law ; on the
other, they are apt to use arbitrary and foroed interpretations
of the Koran and traditions whenever it suits their purpose.
Materially, they are bold innovators who want to be

* modern at all ooats ; formally they try to avoid the

semblanoe of interfering with the essential contents or the

saeredlaw. Their ideals and their arguments eome from

the West, but they do not wish to reject the sacred law
openly as Turkey has done".*

r

We do not say that all modernists lacked sincerity. The
sincere among them have been many. But they have failed to
r<*]ise that the Islamic ideology is basically different from
Western secularism. Both have arisen out of different situations.'
The approach, the thought-pattern and the institutions of the
two are different. An imitation of the West, without realising
its implications in the Muslim East is bound to breed chaos and

1. Joseph Sohseht, Tk* Law, Unity and VarUty 1m Mmtim OiviUtaHon,
£<L, O. E, Von Groftobeam, Unireniity of Chicago Press, IMS. p. 85.

J?

oonfiurion. ft is the fade of realisation of the t>a*k feet which
made the creed of the modernists very much akin to Western
secularism and the results that their ideas failed to make any
deep inroad into the thought and life of the people. 1

Secoadly, they do not realise that the co&ditioni in the
Muslim: world today are essentially different from those that

S retailed in Europe during the periods of Renaissance and
leformation. The history, the traditions, the politioo-sooial

institutions and the cultural , background of Islam and the

modern West are totally different. In suoh a situation, how

can the secular Western institutions work in this part of the
world?

Thirdly, people here have no heart for the imitation of the
West. They want to hare Islam and not Westernism. Their
experience of the West has been bitter. The West has
humiliated them, rode rough shod over them, subjugated thorn
and trampled their culture underfoot * They have seen
Western imperialism and Western despotism in their stark
nakedness and do not want anything more from the West in
the realm of values, creed and culture. The modernists have
failed to evaluate this situation and are following a course that

1, ' One major difficulty for the politician is that his Western education
has set a barrier between him and the common man.' And nowhere id
this barrier stronger than in the field of mutual understanding of the
significance of the religion... Pakistan is offered Wo widely different
interpretation of Islam, each claimed to be proper ideological basis
of the state. At one extreme the Islam of the politicians .and ad minis-

trators comes very close to Western secularism: " Prof. Keith

Cellar*, Pakistan t A Political Study, London 1*67, p. 280.

2, "In the encounter between the world a ijd Xh* West that has been going

"n^jy now for four or five hundred years, the world, not the W«t» is

party that, up to now, has had the significant experience. It has not

been the West that has been hit by the world; it is the world that has

been hit-and hit hard by tho West .^he West (the world will say)

has been the aroh-aggreesor of the modern times. And certainly the

world's judgement on the West docs seem to be justified over s>

period of about four and a half centuries ending i'n IWri."

Arnold J, Toynbee, The World and (As Wist (Reith Lectures)
• • fcoaaon. 1&53, pp. M,- s

The Mamie Laie ani Constitution

one i» foredoomed to failure. Not only that midh a poller i*
bound to fail bat it will also injure the society in many respects.
For instance : .

(a) Such a policy is incompatible with democracy, for the

people do not consent to it. And if it is to be carried

out, it must be accompanied by despotism and high-
handedness,!

(fc) Even if it it imposed from above, it will engender a
social schism in the society. The resources of the
nation will be wasted in mutual conflict between the
rulers and the ruled and nothing great can be achieved
by a people divided against themselves.

(c) It will lead to the disintegration of the community
and will throw the society in moral confusion and
cultural convulsion. Islam is the moral basis of our
society and culture and if it is weakened, the moral
basis of the society will automatically disintegrate.

The modernists have no realisation of all these grave
problems.

Fourthly, the modernists are utterly confused and their
perspective is totally blurred. There is no agreement among
them as to what they want and how they want to achieve that.
Everybody has his own interpretations and the differences
amongst them are so acute that no one agreed ideology can be
formulated from their viewpoints. Their mutual disagreements
have weakened their position beyond repair.

Laatly, they have not proved good administrators and
politicians either. The administration of the country has
become more and more lax. Corruption has mounted high.
The economy has been thrown into one crisis after the other.
Political insta bility has inoreased. Even respect for law and

I. "I believe this i 3 one of the reasons why such law (i.e Secular Law)
usually has to be put in first by a dictator. .It cannot come in as a
mass movement because the mama ara in the old tradition"

p.j ^ mer 8 : °- Northro P- on Ulamio CuUW,

Prinoeton University Press, 1959, p. 10».

IntnStuH— »

the oonatitotion of the country hat dwindled to tbe lowest ebb.
AH these things and the way that they have again and again
thrown to the winds the most sacred constitutional conventions
and modes of doing things and tried to impose by force what
their people were not willing to accept through democratic
means, have further lowered the prestige of the ideology they
want so much to impose. During the last few years all types
and brands of the modernists and all possible combinations of
them hare come to the helm of the country's affairs and
proved an otter failure. Their pronouncements might be of
some value to a section of foreign observers, but they have
utterly failed to impress their people and sweep them to their
side. Modernism haa lost its shine and flavour. It is on the
decline here, there and everywhere and is bound to decline
further. 1 As a matter of fact, it is no answer to the ideological
challenge of our country. ■

The creative response to the new challenge came from
Islamic revivalist forces, the mainspring of whose guidance has
been Abul A' la Maududi.

The chief characteristics of this Renaisaant approach are as
follows :

(o) The renaissance movement of Islam has as its objective
the establishment of the Islamic way of life in its

entirety (Iq&maUe-din).
{b) It has a comprehensive scheme of reform and

reconstruction before it and has been influencing life

in every department. It is trying to reconstruct the

Muslim thought in the light of the Qur'an and Sunnah
and to meet the intellectual challenge of the West,

—i^—^— ^^^^^^^^^^^^

w

1. , *Th* Westernising middle elans of Pakistan nas failed to evolve a
Successful ideology. It has not succeeded in putting forward in this
realm anything winsome and feasible, eliciting the intellectual assent,
moral commitment, and constructive energy of its o*vn mombere.
It has not persuaded the nana*** that the programme o» which it has
embarked is significantly related to their own convictions, aspiration*,
is calculated to fulfil their hopes". Prof. Wilfred C. Smith, I*hm in
ttoaer* ffwfory, op. cii. t p. 2S3.

It is trying to ttplift the individual tod inspire Iq kirn
the origin*! Islamic spirit. It is trying to reform the
society and rebuild it on the Islamic pattern. It if
trying to reconstruct the politioal life in accordance
with the principles given by God end His Prophet.
In short, it has been trying to mould the ideas of the
people and the thought-pattern of the country, to
educate the masses in the Islamic way of life, to
mobilise their powers for social and political reforms,
and to create general consciousness to bring up a
leadership that can carry on the task of Islamic
transformation in the country,
(c) It has avoided the extremes of conservatism and
modernism. It neither suffers from narrow-mindedness
nor from the inferiority-complex which engenders
servile imitation. The renaissance movement has been
moving ahead with self-control and self-confidence.
It has a clear vision of its objective. It does not
w*nt to break away from glorious Islamio traditions.
It wants to re-establish real Islam in the world of the
twentieth century. It presents the unadulterated
teachings of Islam in the language of to-day. It is
trying to apply the principles of Islam to the problems
of our age and claims that rslam is capable of meeting
the challenge of every age and epoch.
{d) It has been a non-sectarian movement and instead of
looking upon the problems from the angle of this sector
or that one, it has looked upon them from a broader
■ angle of vision and has avoided all sectarian prejudices.
Instead of involving itself in petty trivials, it has been
\ devoted to the basic and fundamental problems and
that is why the leaders of the various schools of v
thought have lent their support to it. This movement
has been national in the real sense of the word.
■ ( . (s) It has adopted democratic and constitutional means to *
organise the public opinion and bring about necessary

Introduction

prewar* upon the ruler* to concedo to the peopled
demand. Public education and not violent agitation,
free discussion and not civil disobedience, ballot and
not ballet have been its means of work

if) There has been a uniformity of approach and unity of
thought among the loaders of this movement and on
every occasion they presented an agroed ideology. In
the Parliament! and onteide itf they presented the
same viewpoint. They responded to tho challenge of
the rulers that the ttlama cannot give an agreed
concept^of Islamic State. In 1951 the leaders of all
the schools of Muslim thought unanimously formulated
the Basic Principles of an Islamic State,* In January
1953 again they almost unanimously presented their
comments on tbe Nazimudtlm Report.* And in May,
I960 they unanimously formulated their answera to
the Questionnaire of tho Constitution Commission.*
This shows tho unity of thought and uniformity of
approach of all tho revivalist groups.

(9) The platform of the renaissance movement has becomo
the meeting ground or more or less all the sincere and
enlightened sections of the country. Tho conservatives
have slowly but gradually moved toward* it, and the
sincere from amongst the modernists also are coming
closer to it. It is becoming tho natural rendezvous for
the extreme groups. The conservatives are becoming
less conservatives, and some of the modernists are
becoming less modernist. A medium course is being
chalked out hy the renaissance foroea of Islam.

Reference is to Montana Shabbir Ahmad Umoni, M.P.

i.e. the public movement of Mav fona Moududi And MouUina Athtr Alt

See Appendix I.

See Appendix II.

See Answers to the Questionnaire of the ^Constitution Commission
by WUtama of Pakistan, Lahore May, I960,

TU Ulamic La* **i Q*%*it%tio*

The above analysis ehowi that as far m tha ideological
problem is concerned, none but the Renaissan t Islam cm deliver
the goods. Now let as see how the greatest popular movement
of the last twelve years— the movement for Islamic Constitqtion
—grew and developed and what' leadership the renaissance
forces provided in this reepect.

V

MOVEMENT FOR ISLAMIC CONSTITUTION

As we have shown earlier, the present demand for the
establishment of the Islamic way of life has its roots very deep
in the history of Muslim India from the early day* of
seventeenth century down to this day. The establishment of
Pakistan has only added a new fervour and given a practical
orientation to it. That explains why the Muslims sacrificed
their hearths and homes and eten their lives for the sake of
this homeland in the shape of Pakistan and regarded the dawn

of freedom as t ho dawn of a new Islamic er*. Consequently,
as soon as the dust of oivil disturbances had tattled down and

the atom of refuged problem had subsided a bit, the question
of constitution-making oame to the forefront. With the

presentation of this problem the demand for Islamic
Constitution came up instantly. Maulana Shabbir Ahmad
Usmani raised tM iwrae in the Parliament. Maulana Abul A*la
Maududi approached the people, channelised the nation's
feelings and aspirations a* regards the objectives of the state
s>nd formulated the public demand in the form of a fourpoint
formula. In February, 1948, he delivered an address at Law
College, Lahore and presented this demand which was later on

moulded in the form of a resolution which was passed by the
people and sent to the Governor-General, the Prime Minister
and the President of ths C mstitaent Assembly. The resolution

was as follows : ^

•*Whereaa the overwhelming majority of the citizens
of Pakistan firmly believe* in the principle* of Islam ; and

IntroHc&m

whereas the entire struggle and all the sacrifices ft* the
freedom movement for Pakistan were for the sole purpose

■

of establishing these very Islamic principles in all fields of
oar life :

Therefore now, after the establishment of Pakistan, we
the Muslims of Pakistan demand that the Constituent
Assembly should unequivocally declare :

(1) That the sovereignty of the State of Pakistan vests
in God Almighty and that the Government of Pakis-
tan shall be only an agent tn execute the Sovereign's
Will :

(2) That the Islamic Skari'ah shall form the inviolable
basic code for all legislation in Pakistan ;

(9) That all existing or future legialation which may
contravene, whether in letter or in spirit the Islamic
Shari K ak shall be null and void and be considered
ultra virts of the Constitution ; and
(4) That the powers of the Government of Pakistan shall
be derived from, circumscribed by and exercised
within the limits of Islamic Shari'ah alone,*
As this demand reflected the deepest aspiration of the
people and represented their general will, there were echoes

soon from all corners of the country and the demand for the
acceptance of the Four Points spread like a wild fire. But the

power-drunk Westernised group at tho helm of affairs refused
to respond to the call of the nation. In spite of all their demo-
cratic pretensions, they did not care a jot for the voice of the
people and cherished the illusion that by resort to methods of
suppression and imprisonment, they would cool down the popu- -
lar enthusiasm. Maududi and some of his colleagues were put
into jail. The Safety Act was moved against the newspapers
and journals which were very vocal in this campaign. But their
hopes proved deceptive, and within n year of the initiation of
this demand the Constituent Assembly had to pass the Object-

■

1. Abul A-la Maududi, Mutalba Niiam-*I*tami, p. S,

» Th$ litamic Law tod Constitution

tives Resolution which embodied all the point* for whUb the
pcopje of Pakistan, with Mavdudi at their helm, had been pros-

sing— a "orime" for which Maududi had to rot for twenty
months in jail under the Punjab Public Safety Act— a law where '
the imprisonment of a person is ordered by the Provincial
Executive without even letting him to know the charge against
him.

With tlie passing of the Objectives Resolution, the purpose
of the Stat© of Pakistan was clearly defined and thus the first
round of the fight between the people and their rulers was won
by the people. After that, everybody hoped quite naturally
that Constitution-making would proceed smoothly- Unfor-
tunately, however, there was plenty of frustration still in store
for the people.

When after waiting for an year and a half, the Basic Prin-
ciples Committee's Report came to light in Soptember 1950, the
people were surprised to find that it was a gross and flagrant
betrayal of the Objectives Resolution. They protested most
vehemently against this betrayal. Maududi toured the length
and breadth of West Pakistan to mobilise public opinion against
it 1 The Jamia't at 0 lama t-Islam took up this work in East
Pakistan. And in a very short period such a huge storm of
opposition gathered on the political horizon that the report had
to be withdrawn — an event which forms a landmark in Pakistan's
history. This meant the second defeat for the Westernised
ruling group.

■

Unfortunately, the ruling group did not take the defeat in

good grace, and, instead of mending its ways, it started a

campaign of blackmail and black-paint against the workers for
Islam and also against the very concept ot Islamic polity. It

was alleged that there was such a severe conflict of opinions
among the different schools of Islamic thought that iio unanim-
ous version of Islamic Constitution was possible, and it was,
therefore, Utopian to talk of the establishment of an Islamic
State.

«

1. Se© Dat/vH 8ifair$hat par Utnqid&tabtrtl, Lahore, 1950.

Obviowly. it was » ohaUsnge to W»m, The Ftema took it
upends Conference of renowned scholars of ell schools of
Islamic thought was convened in Karachi in January, 1951.
Within three days the Conference formulated unanimously the
"Principles of the Islamic State" in the form of 22 Article* and
brought to naught the allegation of the Westernised group.* " +■

Then came a lull in the political arena. A full eighteen
mouths wore off and nobody ever heard during those days even a
whisper about the Constitution. The people became impatient
and suspicion quite naturally began to grow as regards the
intentions of the political leaders. Consequently, Mau&udi once
again stood up in May 1053 to voice the Muslims* sentiments.
He oriticised the dilly-dallying policy of the Constitution-
Makers and put forward his famous demand that the Constitu-
tion should be framed before the end of 1952 and that it should
embody the following eight points :

(t) That the Islamic Shari'ah shall form the law of the
land ;

(2) That there shall be no such legislation as would con-
travene any of the dictates or principles of the
Shari'ah ;

(3) That all such laws as are in conflict with the dictates
or the principles of the Shari'ah shall be abrogated ;

(4) That it shall be incumbent upon the State to eradi-
cate the vioea which Islam wants to be eradicated
and to uphold and enforce the virtues which Islam
requires to be upheld and enforced ;

(5) That none of the basic civic rights of the people-
security of life and property, freedom of speech and
expression, and freedom of association and movement
—shall be forfeited except when a crime has been
proved in an open court of law after affording due
opportunity of defence ;

(6) That the people shall hare the rights to resort to a
oourt of law against transgressions on the part of the

• 8«o Appendix I. .

30

Tk4 Islamic Law and Constitution

legislative or the executive machinery of the State ;

(7) That the Jadioiary shall be immune from all inter-
ference from the Executive ;

(8) That it shall be tha responaibility of the 8tate to aee
that no citizen remains unprovided for in reepeot of
the basic necessities of life, viz, food, clothing,
shelter, medical aid and education *

This demand was raised by people belonging to ail shades
of opinion. The voice grew louder and louder and it was
- echoed from every nook and corner ol the country. The result
was that Kh. Nazim-ud-din 9 the then Prime Minister presented
the Basic Principles Committee Report in December 1952. It
embodied most of the points of demand, but obviously not all of

them. A Convention of the Muslim scholars, representing all
schools of thought, was again convened in Karachi in January
1953, and the Ulama decided to accept the report with certain
amendments unanimously formulated by them. 2

The nation took up the Ulama's amendments and demanded
their acceptance. 3 But the movement was just gathering
momentum when, like a bolt from the blue, came the sudden
removal of Nazim-ud-din Ministry and the formation of a new
Government under the premiership of our ex-ambassador to
the U.S.A., Jfr. Mohammad Ali of Bogra.

2. Later on a ninth point about Qadianis was also included in his
demand. This w- * dona to direct into constitutional channels the
growing public agitation for the declaration of the Qadianis as a non-
Muslim minority and to concentrate the entire force of the people on
the constitution problem so that the people may not be sidetracked
into subsidiary issues as was the attempt of tho high-ups. The ninth
point was as follows :

"That the Qadianis shall be included in the list of non-Muslim
minorities and their seats shall bo reserved according to thoir
population* through separate electorate'*.
'2, See Appendix II.

3. Maudvdi ajjain extensively toured tho country to mobilise public
opinion. For the historic spoeoft he mad<> on tho occasion, see Abul

A«ia Maududi, Ttihrihal. Supplement to Ohiraah-9-Rah, Karachi;
Jaly. 1053.

Introduction $J

With the advent of the new Ministry the stunt of "Pro-
visional Constitution" wm pat forward, a reign of terror was
let loose and the workers of Ialam were harassed, persecuted and
imprisoned.' Despite ell this show of tyranny, however, the
tempo of the' people's demand could not he slowed down.
Finally, the stunt of the Provisional Constitution proved abor-
tive and the work of framing a full-fledged Constitution had to
be started. The deadlock on "parity" between the two wings of
Pakistan was solved in the shape of Mohammad Ali's formula,
xvhich was adopted by the Constituent Assembly. Most of tl ie
Mama's amendments were incorporated in the Report during its
adoption by the Constituent Assembly, though some of the
■mportant ones were left out. The work progressed rapidly and
the Prime Minister of Pakistan promised to give the country a
Constitution by the end of 1964. Just at the last hour, Low-
ever, the Constituent Assembly was dissolved, obvious! v to
enable the Westernista to frame a Constitution of their choice.
Maududi and his leading supporters were already in jail.
Maududi was sentenced to death on the flimsy pretext of writing
a pamphlet, namely, "The Qadiani Problem", which itself was
nover bannedt All artifices were used to crush the movement for
Islamic Constitution and create confusion amongst the people,'
but to no avail.

Maududi had been put in jail in 1953 for fourteen years,
but the struggle went on. In 1955 the new Constituent Assembly '
was formed and it again started the task of constitution making.
The demand for Islamic Constitution again began to mount.
Maududi who was released in the spring of 1955 because of the
nullification of the very law under which he oould be detained
'» jail, now presented his detailed comments upon the draft Bill*
and mobilised the public opinion in favour of his plea. It was
in this context that Constitution of 1956 was formulated and
was piloted in the Consembiy hy Ck. Muhammad Ali the then
I'rime Ministe r of Pakistan It was a compromise document, but

1 »<•<» Ali Ahmad Khai,, Yeh Qtriftarian Kiun t (Why thine arrets ?).

: Karachi 1953.
2- See Appendix III.

did incorporate the basic demands of the people and at lout
• provided a good ground to stand upon and move ahead. All
sections of opinion welcomed it. 1 It was hoped that Pakistan
will now turn a new leaf in its political life.

But unfortunately those vested interests which were delay-
ing the framing of the Constitution now began to avoid its
implementation and tried to sabotage it from within. Two and
a half years passed and they did not even hold the first general
elections, much less implement it in its entirety. On the other
hand they tried every artifice to avoid its implementation. And
at last it was abrogated on 7th October, 1958 by the then
President Major General Iskandtr Mirza*

Now the country is once again trying to have a constitution.

This movement for Islamic Constitution has been a popular
movement. Thousands of meetings were held to ventilate the
demand. Hundreds of processions were carried out in all the
major cities of the country. Millions of post-cards, letters and
telegrams were sent to the Prima Minister and the Speaker of
the Constituent Assembly in support of the demand. Hundreds
of deputations met the members of the Constituent Assembly.
The demand became so pressing and so widespread that the
rulers had to face it in every nook and corner of Pakistan. 3

This movement is unique in certain respects :

(n) It was the first popular movement in Pakistan and was
carried out on purely democratic lines. A very critical ■:
moment came when certain political interests tried
to sabotage it by fanning agitation on the Qadiani

1. For Maududi's comments on it see Appendix VI.

2. Abul A'la Maududi, /efomto Lav and Constitution. Ed. Khurshid
Ahmad, Karachi, 1955, p. 204.

3. Here it may be mentioned in passing that the English press, control*
led by the ultra-modern minority, totally boycotted this movement and
did not even had tho guia and conscience in ropon it. If an idea of
tliy extern and popularity of this movement is to be made, resort roust
be had to the t/rdu frees, particularly to The Dail y Tomtom, Lahore,
The Daily KohioUtn, Rawalpindi and Lahore, The Daily Turnout
KawaJpindi. The Daily Skuthbax, Peshawar, The Daily Jung, Karachi,
The Daily Anjam, Karachi: and the Daily Paoban, Dacca.

Introduction

Problem %o overshadow this movement, bat the leaders
of the movement very wisely added a new point (the
ninth point) to the demand and tried to canalise the
agitation on constitutional lines. Although they could
not fully succeed in that objective yet the movement
for a* Islamic Constitution continued to progress on
purely democratic and constitutional lines.
(&) It was unique that the interest of the masses was
aroused on such a wide scale on a debate about eon.
stitution. Perhaps it can be said without any fear of
contradiction that in no other country of the world
did the masses take so muoh interest in constitution-
making, as was taken by them in Pakistan.

(c) The movement v as an educative mo vemcnt and brought
the people nearor to.the Islamic ideology, made them
understand its moaning aad prepared them to achieve
it through sustained struggle.

(d) The democratic tradition began to crystallise in the
country.

(«) New literature was produced on the political and con-
stttutional thought of Islam and the Islamic concept
was presented with greater clarity and precisioo.
In the present book our concern is mainly with this last
point and we propose to present in it some of the best writings
produced in this period.

VI

ABOUT THIS BOOK

Islamic Law and Constitution is a collection of some of
those writings and speeches of Abul A'la Maududi which deal
with the politioal and constitutional thought of Islam. Maududi
is one of the leading thinkers of the world of Islam and his
ideas have influenced a generation* It would be of interest and
profit for all to see what he has to say on the problems and the
prospects of an Islamic State.

The chief contribution of Maududi is that he has devoted

34 The Islamic Law and Constitution

himself to the socio-politico-oultural aspect of Islam and has
discussed those problems which the writers on Islam ware avoid*
ing for a long time in the reooat pt*t. He has tried to meet the
new intellectual challenge of the Wast and has presented Islam
in the language of today. In political thought, . his main con-
tribution is that he ha.H not only presented the teachings of
Islam in a clear, preeise, cogent and convincing way but has also
interpreted them for our times and has tried to suggest the form
which the Islamic tenets can take to crystallise in the world of
twentieth century. This has been a difficult task and he has
come to grips with it in an admirable way.

The editor compiled some of his writing* on law and con.
ntitution in 1955 under the title of Islamic Law and Constitution. I
The book was sold out within one year. It influenced the
thinking of the Pakistani intelligentsia and was again and again
referred to even in the Assembly debates and tho party-meet-
ings. The need of the second edition was pressing for a long
timo, but the editor was so absorbed in other works that he
could not find out sutfioieat time to devote to this work. He
was eager to revise the book thoroughly, because the first
edition was prepared while ho was a university student. He
was conscious of the drawbacks of translation and editing and
wanted to improve the book to tho best of his ability. He also
wanted to make many additions to it and thus make the volume
truly representative of Maududi's writings on political and con-
stitutional thought. Now he has tried to do the entire work
anew. The book has increased twofold in volume and ho hopes
that in the present form it will prove much more valuable to the
students of Islamic political thought.

The book is being presented with the hope that it will help
the people m understanding the concept of Islamic Constitution
and of Islamic State. A large number of our own people, who
have acquired modern Western education and who are not well.
versed in Inlam io literature, have not understood properly the

I. Abul A«U iUududi, Islamic Law and Constitution, Ed. Khuwhid \hmad
Karaclii, 1950, p. 214.

introduction V jar-

real nature and meaning ofu Islamic Constitution. Many of
them harbour falaa notion* aboat Islamic policy and ita practice.
This book can help them in grasping meaning of (he Mimic
State.

Then, too ideological character of Pakistan hat aroused the
interest of foreign students and scholars and they are eager to
know what an Islamic Constitution is. This book will enlighten
them on this question.

Moreover, throughout the Muslim world there are move-
ments demanding the establishment of the Islamto Skari'ah ;
this book may act as a guiding star to them.

■ It is hoped that this book may serve the above outlined
purposes. A clarification is, however, needed at this stage,
Islamic Law and Constitution is a collection of some of those
writings and speeches of Abul A'la Maududi whioh throw light
on the problems of Islamic law and polity. The essays were
penned from time to time and the speeches were delivered on
different occasions and before different typaa of aadienoes,
ranging from the uneducated masses to select gatherings of
lawyers, legists and students. In spite of that, however, a
common thread runs through them all and links them into a
unity of purpose. The reader may find some repetition here
or there but that is quite natural in a work of this kind.

In the preparation of this book several persons have helped
me and I am thankful to them all for their labour of love. I
am particularly indebted to Maulana Zafar Ahmad Ansari for-
mer Seoretary, Board of Taleemat-e-Islamiah, Constituent As-
sembly. Pakistan, Mr. Zafar Ishaq Ansari. Lecturer in Islamic
Hwtory, University of Karachi and Khwaja Abdul WaUtd,
Editor, Al- Islam, Karachi, for the immense assistance they pro-
vided me in translating and revising the manuscript. My thanks
are also due to my brothers Anis Ahamad and Muslim Sajjad
for checking the references and verifying the quotations from
the Qur'an. Mr. Sh-xkzad Muhammad typed ungrodgingly my
badly written manuscript again and again. I must also eonfess
that the book is seeing the light of the day only beoause of the

TU Islamic Law and Constituti

on

never-iailing endeavour of CAaudAri MmIm, Ar*A«m m «d ,S'aA»i>
who hu been the main aouroe of atimulua and encouragement; -
The book is being presented with the sole purpose of dis-
neminating the view-point of Islam before a world torn by con-
foots and devastated by war.. Let it be hoped that it will be
received without any biaa.

1, New Queens Road KHURSHID AHMAD

Karachi, 14th July, I960

*

r

PART I

ASPECTS OF ISLAMIC LAW

Chapter 1

THE ISLAMIC LAW

■

*

At the rtidko of midnight, on August 14, 15H7 when

The world wu Paki.t.n wa. bom »to e* s-

teL-P.kl.tW the bomel.nd of Mi-. But the

Moment of • f«H.fledg<d Islamic .ociety reined ,
distant hope, because the road wa. .trcwn w.th hard-
. m >. Minds were riddled * itk many a ser.ous nnsun-
demanding and confusion- What, in fact, „ Is Unuc
kwl I. it practicable in the twentieth century 1
Would it not mar material progress 1 Such and the
like questions were disturbing many of our modern
educated people. Maulana M.Mi reahsed the .».
portanee of the*e question, and did not »
answer them and ^u, refut. the mistaken notion, of
the -educated folk'. H. delivered a speech on the
Mamie Uu> on January 6. 1948 at the Law Col ege,
Lahore, »nd delineated the real nature of LUtmo Law.
The following i. the English rendering of that speech.

—Editor.

THE ISLAMIC LAW

I

This an irony of fate that, now a days, the demand for the
enforcement of Islamic Law has become surrounded by such
a thick mist of misgivings that a mere reference to it, eten in a
Muslim country like Pakistan, raises a storm of criticism. Thn«,
for instance, the questions are asked : Can a centuries-old legal
system bo adequate to fulfil the requirements of our modern
state and sreiety ? Is it not absurd to think that the law
which had been framed under certain particular circumstances
in by -gone clays, can hold gocd in every age and every clime ?
Do you sericrpjy propose to start chopping off the hands of
thieves and iVgping human beines in this modern, enlightened
age ? Will our markets again alornd in slaves and deal in the
sale ard purchase of human beings as chattels and playthinga ?
Which particular sect's legal system is going to be introduced
here 7 What about the non-Muslim minorities who will never
tolerate 'the dominance of the Muslim religious law and will
resist it with all the force at their command ? One has to face
a volley of such questions while discussing the problem, and,
strangely enough, not from non-Muslim" but from the Muslim
educated elite !

To be sure, these queFtions are not the outcome of any an-
tagonism towards Islam but mostly of sheer ignorance which

must quite naturally breed suspicion. And to our utter misfor-
tune, ignorance abounds in our ranks. We have people who are
otherwise educated but who know practically nothing about
their great ideology and their glorious heritage. No wonder,

then, that they labour under strong prejudices.

This state of degradation, however, has not come as a bolt
from the blue : it is, rather, the culmination of a gradual process
of decay spread over many centuries. Commencing with stagna-
tion in the domains of knowlege and learning, research and dis- .
covfiy and tr.cugtt and cultuie, it finally culminated in ow

political bfUkdoini, making wmy a Untitm eowtty the sla*s
of Q<m-Hi?*Hia iraperiaUst power*. Political slavery gaw birth
to aii jjtf etfori ty-coinptex and the reial tan t intellectual sstrStom
e ve*ttt-fly swept the entire Muslim world off its feet, to jugfe
so that eveo those Muslim countries w}ycb were able to retain
their political freedom could not pscape its evil influence. The
ultimate consequence of, this evil situation wm that when
Muslims woke up again to the call of progress, they were incap-
able, of looking at things except through the coloured glasses of
Western Thought. Nothing which was not Western oould
inspire confidence in them. Indeed, the adoption of Western
Culture and Civilization and aping the West even in the most
personal things became their craze. Eventually, they succumbed
totally to the slavery of the Weat.

This trend towards Westernism wan also the mult of the
disappointment which came to the nation from the side of the
Muslim religious leaders. Being therneolves the victims of the
wido-sproad degeneration that had engulfed the entire Muslim
world they were incapable of initiating any constructive move-
ment or taking any revolutionary step which could combat the
evils afflicting the Muslim society. Quite naturally, this dis-.
appointment' turned the discontented Muslims towards that
: system of life which had the glamour of being successful in the
modern world. Thns they succumbed to the onslaughts of
modern thought, adopted the new culture of the West and began
to ape blindly Western modes and manners. Gradually, the
religious leaders were pushed into the background and were
replaced, as regards power and control over the people, by men
boreft of a^l knowledge of their religion and imbued only with

the spirit of modern thought and Westernjdeals. This is why, we
find that many a Muslim country has, in the recent past, eitner

completely abrogated tho Islamic Law or confined its operation
the domain of puroly personal matters only— that is, a posi-
tion conferred on the non-Muslims in a truly Islamic State. 1

i. The flr»t country where the abrogation of Islamic Law started was India,
although the SharTak continued iiaforoe long after the British had oome

m The Mimic L**m*4 0*%*it*io*

In all those Mnslim countries, which suffered from fowdgn
domination, the leadership of polities*! Mid cultural movements
fell into the hands of (hove who were thorn of ell Islamic back-
ground. 'They aabpt*! the creed of Nationalism, directed their
effort* towards the causo of national independence* and pros-
perity along secular linee and tiled to copy, step by step, the
advanced nations of thii age. Consequently if these gentlemen
feel vexed with the demand for Islamic Constitution and Islamic
-Laws, it is quite natural for them. It is also natural for them
to sidetrack or suppress the issue, as they are ignorant of even
the A.B C. of the Islamic SharVah. Their education and intelle.
otnal development has alienated them so completely from the
spirit and the structure of Islamioideology that it is, at least
for the moment, very difficult lor«rthem to understand suoh
damands.

As regards the Muslim religions leadership, it has in no
way fared bettor, because our religious institutions are tried to
the intellectual atmosphere of 4he fifth oentury A.H,, as a
consequence of which they ha*e not been able to produce such

into power. So much so t hat the penalty of severing the band of habi-
tually hardened thief was awarded aa late aa 1791 A.D. Thereafter the
prooess of suppression began till at last by the middle of the nineteenth
century; the whole of th© tfhqci'ah had been abrogated, excepting of
course injunctions regarding* purely personal matters like marriage,
divorce, etc. Other states where Muslims themselvds were in power,
took their cue from the Muslims of India and the leading part in this
transition was taken by the Muslim Native States of India, In 188*.
Egypt ohanged ov*r her own laws to Cads NipoUan leaving only matter
of divorce, marriage an inVritsnee to the jurisdiction of the QadU,
In the twentieth century Turkey and Albania took a further lead over
their fellow Muslim states and not only proclaimed themselves to be
completely secular States and not only proclaimed themselves to be
pattern of those of Italy. France, Switzerland and Germany, making
such inroads on Muslim personal law itself as no non- Mnslim state
would dare do. Albania led the way by penalizing polygamy and Turkey
followed her by changing th© mandatory provisions of the Holy QorW
in respect of divorce and inheritance. There now remain only
Afghanistan and Saudi Arabia where the SkaH'ah is accepted as the
State Law though even there the spirit of the Shari'ah has long sine*
disappeared and the whole of SaaWcA too is not being enforced.

leaders of Mamie thought and action as could be capable of
administering the affairs of a modern state in the light of Islamic
principle*. This is the situation prevailing throughout the
Muslim world and is, indeed, & wy real obstacle facing the
Islamic countries An their march towards the goal of Islamic
renaissance.

Notwithstanding certain similarities, the case of Pakistan is
not, however, the same as that of other Muslim countries. This
is so because it has been achieved exclusively with the object of
becoming the homeland of Islam. For the last ten* years, we
have been ceaselessly righting for the recognition of the fact
thjat we are a separate nation by virtne of oar adherence to
Islam. We have been proclaiming from house-tops that we
have a distinct culture of our own, and that we possess a world
view, an outlook on life and a code of living fundamentally
different from those of con-Muslims. We have all along been
demanding a separate homeland for the purpose of translating
into practice the ideals envisaged by Islam, and at least, after
a long and arduous struggle, in which we sustained a heavy
loss of life and property and suffered deep humiliation in respect
of the honour and chastity of a large number of our womenfolk,
wc have succeeded in attaining our cherished goal— this country
of Pakistan. If, now, after all these precious sacrifices, we fail
to achieve the real and ultimate objective of making Islam a
practical, social, political and constitutional reality-a live force
to fashion all facets of our life, our entire struggle and all our
sacrifices become futile and meaningless.

Indeed, if instead of an Islamic, a secular and Oodless Con-
stitution was to be introduced, and if instead of the Islamio ■
Skari'ah, the British Civil and Criminal Procedure Codes had to
enforced, what was the sense in all this struggle for a
separate Muslim homeland ? We could have had them without
that. Similarly, if we simply intended to implement any
"ocialistie programme, we could have done so in collaboration
_yith the Commnniwt and the Socialist parties of India without
*. Remember that this speech was delivered in Editor.

44 Tht Islamic Law and eorutUution

plunging the nation into this grant bloodbath and; mighty
ordeal .

The hot is that we are already committed before God. Matt
and History for the promulgation of Islamic Constitution and
the introduction of Islamic way of life in this country and no 3
going Lack on our words is possible- Whatever the hurdles and
howsoever great they may be, we have to oontinue our march
towards our goal of a full-fledged Islamic State in Pakistan.

No doubt, there do exist many hardships and difficulties in
the way of achieving this goal. But what groat goal can be or
has ever been achieved without facing difficulties boldly and
intelligently T And I must emphatically say that the difficulties
which impede our way are in no way insurmountable. Indeed,
none of them i" real exoept the difficulty that many among
thoae who hold the reins of power are devoid of faith in the
effioaoy of the Islemio ideology which, in its turn, is not due
to any defcot in Warn but is purely a product of their own grow
ignorance of the Islamic teachings.

The first task, therefore, is to explain to our educated
people the meaning and the implications of Islamic law, — its
objectives, its spirit, its struoture, and its categorical and
unchangeable injunctions along with the reasons for thoir per-
raanenoe. They should also be informed of the dynamic element ii
of Islamic Law and how it guarantees the fulfilment of the ever-
increasing needs of progretsive human society in every age.
Then, they should be enlightened in regard to the rational »
foundations of the SharVah. Finally it is also needed to expose •
the hollownesa of the vituperative oritioiams against Islam and *
to remove thereby the fog of misunderstandings that shroud the |
issue. If once we succeed in accomplishing this task and con- J
sequently gaining ths support of Muslim intelligentsia, we wiUj

pave the way for the establishment of an Islamic state and thas
creation of an Islamic society in Pakistan. It is with ^biij
intention that I am making this speech before the student* ot
the Law College.

* v J *

■ 46

LAW AND LIFE

Hi© term "Law" bears reference to the qaery: "What
saonld he the conduct of maa la, his indirfdaal art collect!™ life?"
Hie qaery present* itself td u« ia connection with innumerable
matters. Hence its reply covers a very wide range of topics
wider than what the term "Law" technically signifies, ft in-
cludes our system of education and training in the light of
which we strive to mould the character of individuals ; it
comprehends our social system which regulates our social
relationships ; it enoompasses our economic order according to
which we formulate the principles of production, distribution
end exchange of wealth. Thus we possess a vast system of
raleB which determine our conduct in various walks of life.
Technically speaking, all these acts of rules are not "Law".

The term "Law" is technically applied only to such of the
rules as are enforceable by the the coercive power of the State.

to understand them, can
afford to confine his attention to them alone. He must take
into consideration the entire scheme of moral and social guid-
ance prescribed by a particular ideology, because it is only
then that'he will be able to appreciate the spirit and objectives
of the Law" and to form a critical opinion about its merits
and demerits.

It should not be difficult to understand that the principles

caMy derived from and are deeply influenced by our conceptions
scout the ends of human life and by our notions of right and
wrong, g 0p d and evil and justice and injuatioe. Consequently
«e nature of a legal system depends entirely upon the source
or sources from which it is derived. TJiua. the difference, dis-
^^.^^V*** of different societies are
3«£ d,ff — of their sources of guidance and

^TS^r ™r»»* s: •*? -

4* The Idamc lem **& 0<mstttiaie*

of life «nd of the society which H brings into existence and to
appreciate the complete process of tbo development of that
gyBtem end the evolution of that society, we will not be eble to
understand, mqch less to criticise on any rational bads, the
mandatory legal provisions of the system— especially- when our
knowledge of those provisions consists, in the main, of hearsay

Had conjecture. .

I do f Bel that a comparative oritical study of the Islamic
and the Western system of life would be the best way to ex-
plain and eluoidate my view-point. If the differences between
the original sources and the basic postulates of both tha systems
are kept in mind, radically different sshemes of life that both
envisage can be easily understood. But the paucity of time
at my disposal does not permit such a digression, and conse-
quently, I shall confine myself, at presant, to the exposition of
the Islamic Shari ah only.
Sources of the Islamic System of Life

The first source of the Islamic system of life ia a book, or to
bo more exact, "The Book". The world received several
editions of it under the titles of the Old Testament, the Now
Testament, the Pslams, etc., the last and the final edition being
th* one presented to msnkind under the name of the Qur'Sn. ^

The second source of this system are the persons to whom
the different editions of the Book were revealed and who, by
their preachings and their coaduot, interpreted them to the
people. Ah different personalities, they bore the names of Noah,
Abraham, Moses, Jesns and Mahammad (peaoe be on them all)
but as the bearers and upholders of the same mission of life,
all stand under the general title of "The Messenger".

The Islamic Concept of Life

The view of life which Islam has presented is that thtt
universe Of ours, whioh follows a set course of law and func-
tions according to an intelligent and well-laid-out plan is tf
reality the Kingdom of tuo One God— Allah. It is He WW
created it It is Ho Who owns it. It is Ho Who governs i£
The earth on which w* live is just a small part— a provinoe—flt

tfonin©mj?le4eIy^^

ouraelvea — i.e., w© human beings^- we are nothing mor« then
His "bora subjects*'. It is He Who oreeted us, suateina us «d
causes ™* Kv*. Henoe, every notion of oar abtoluu imUptn-
itnce is nothing but a sheer deception and misjudgement God
controls every fibre of otir being and none can eeoape Hie grip.

Every thinking mind it aware of the faet that a very large
aector of our life ia governed and directly oontrolled by .* High
Power and with snob abeolateneas that we are practioally help-
leas in reapeot of it. From the time we are eonoeived in tho

wombs of our mothers till the moment we breathe our . last, we
are subject to God's inexorable Laws of Nature to aueh an extent
that we oannot claim to be free from their control even for a
single moment.

Of oourae there ia another sphere of our life in which we
possess a certain amount of freedom. This is the moral and
social sphere of life in which we are bestowed with a free- will
and independence of choice in respect of individual as well aa
collective affairs and behaviour. But this independence can
hardly justify our rejection of the Guidance of our Creator and
His Laws. It is only to give as a ehoioe leading our lives as the
obedient subjects of God— au attitude consistent with the real
order of things— or of being diaregardful of His commaudjlitate
and thua rebel againat Ham and our true nature. ^

Obvioualy, to the faithful, the Guidance and Law of God ia
the truest and moat consistent attitude for mankind. It seta the

•tandard for the orderly behaviour of man "both individually
wid collectively and in respect of the biggest as well as the

«mail w fcta»ithe m»yli»vetofaoe. Having once aooepted the
phitoaophy of life enunciated by "Book" and "The Messenger"
•s the embodiment of Reality, one has no justification for not
obeying God'* revealed Guidance in the aphere of one ohoioe
*l«o. Indeed, it is bat rational that we ahould admit God'*
J^f^ *» tbU sphere as well just as we are ptrforoo doing

pbyaioai life. And this for several

48 Tks hl tm it l**A»d Constitution

Firstly, the power and the organs through which our f re**
will functions, we gift* from God and not the result of o*r
own efforts.

Sccoadly, the independence of choice itself has been delegat-
ed to us by God and not bj as through our personal endeavour.
Thirdly, all those things in whiph oar free-will operates are
' not only the property but also the creation of God.

Fourthly, the territory in whioh we exercise our indepen-
dence and freedom is also the territory of God.

Fifthly, the harmonisation of human life with the universe
dictates the necessity of there being one Sovereign and a common
Source of law for both the spheres of human activity— tho
voluntary and the involuntary, or in other words the moral and
the physical. The separation of these two spheres into water*
. tight compartments led to the creation of an irreconcilable con-
flict which finally. lands not only the individuals but even
biggest nations in endless trouble and disaster.

The Final Book of God and the Final Messenger stand
today as the repositories of this truth, and they invite the
whole of humanity to accept it freely and without compulsion.
God Almighty has endowed man with free-will in the moral
domain, and it is to this free-will that this acceptance bears
reference. Consequently, it is always an act of volition and not
of compulsion. Whosoever agrees that the concept of Reality
stated by the Holy Prophet and the Holy Book is true, it is for
him to step forward and surrender his will to the will of God,
It is this submission which is called 'Mam' and those who do
so i.e.a those who of their own free-will accept God as their
Sovereign and surrender to His Divine will and undertake to
regulate their lives in accordance with His oomlnandments are

called 'Muslims'.

All those persons who thus surrender themselves to the will
of God are welded into a community and that how the "Muslim
Society 9 ' comes into being. Thus* this is an ideological society
—a society radically different from those whioh spring from
accidents of races, colour of country. This society is the result

of a deliberate choice ud effort ; itia the o ut so ae of -» - ! «6on*
tra^t" which takes pbM between human being* sad their Crea-
tor. Those who eater into this contract undertake to reoognis*
God ** their Sovereign p Hii Guidance ft* supreme, 4nd His injunc-
tions as absolute law. They ftleo undertake to accept, without
qa oat ion, or doubt, His classification of Good wad Evil, Bight
ud Wrong, the Permissible end Prohibited. In short, the
Islamic society agrees to limit its volition to the extent pre-
scribed by the All-Knowing God In other words, it is Ood and
not Man- whose will is the Source of L%w in a Muslim Society.

When such a Society comes into existence, the Book ftnd the
Messenger prescribe for it a cods of life called' JSharVmk, and
this society is bound to conform to it by virtue of the contract
into whioh it has entered. It is, therefore, inconceivable that
any Muslim Society worth the name can deliberately adopt a
system of life other than the Skari'ak. If it does *o, its con-
tract is automatically broken and the whole society becomes
"un-Islamic". 1

But we ihust clearly distinguish between the everyday sins
of individuals and a deliberate rerolt against the Sharx'ak. The
former may not imply breaking the contract, while the latter
would mean nothing less. The point that should be clearly under-
stood here is thst if an Islamic society consciously resolves not
to accept the Shari'ah and decides to enact its own constitution
and laws or borrow then) from any other source in disregard
of the Shari'ah such a society broaks its contract with God and
forfeits its right to be called 'Islamic 9 .

in

* *

THE OBJECriVES AND CHARACTERISTICS

OF THE SHARI'AH

■ *

Let us now proceed to understand the scheme of life envi-
saged by the Skirrah, To understand thst, it is essential that
we should start with a ole*r ojaupton of the Objectives and
the Fundamentals of the Shari'ah.

ft* Mami e L*w mnd Conttttuiion

The main objeccive of the fflfcari'afc ia t q construct bumatt
life on the basis of Ma'rufa* {virUm ) and to cleans© it of :
Jf wntwttt (vioes). The tern Ma'rufat, denotes all the virtue*
and good qualities that have always been accepted as "good" by
the human conscience. Conversely Munkarat denotes all the
sins and evils that have always been condemned by human
nature as "evil". In short, tbe Ma'rufat are in harmony with
human nature and its requirements in general and the Munkarat
are just the opposite. Tbe Shari'ah gives a clear view of these
Marufat and Munkarat and states them ae the norms to which
the individual and social behaviour should conform.

The Shari'ah does not, however, limit its function to provid-
ing us with an, inventory of virtues and vices ; it lays dowh the
entire scheme of life in such a manner that virtues may flourish
and vices may not contaminate human lifo.

To achieve this end Shari'ahs has embraced in its scheme

■

all the factors that encourageHhe growth of good and has recom-
mended steps for the removal of impediments that might pre-
vent its growth and development. This process gives rise to a
subsidiary series of Ma'rufat consisting of the causes and means
initiating and nurturing the good and further of Ma'rufat constat- .
ing of prohibitions of preventives to good. Similarly there is
subsidiary list of Munkarat which might initiate or a^iow

growth of evil.

The Shari'ah shapes the Islamic society io« way conducive
to the unfettered growth of good, virtue and truth in every
sphere of human activity, and gives full play to the forces of
good iu all directions. And at the same time it removes all
impediments in the path of virtue. Alongwith it, this attempts
to eradicate evil from its social scheme by prohibiting vice, by
obviating the causes of its appearance and growth, by closing
the inlets through which it creeps into society and by adopting
diderent measures to check its occurrence.

Marufat

. .

The Shari'ah olawifiw Ma'rufat into three eategories :
. The Mandatory (Fard and Wajib)

fk* Idamic Law M

The R>oomm«id«tory (Jfaflrffl, and
The Permissible (JfntoA).

The observance of the mandatory (JfaVu/al) ii obligatory
on » Muslim society md the Shot i'ah has given clear and bind*
ing direction* abonfc them. The recommendatory {Mo'rufat) are
thoae which the Skari'ak wants that a Muslim society should
observe and practise. Some of them hare been clearly demanded
of na while others have been recommended by implication and
deduction from the Sayings of the Holy Prophet (peace be upon
him)- Besides this, special arrangements hare been made for
the growth and encouragement of some of them in the scheme of
life enunoiated by the SkarVah. Others still hare simply been
recommended by the SkarVah, leaving it to the society or to its
more virtnons elements to look to their promotion.

This leaves ns with the permissible Ma'rufat. Strictly
■peaking, according to the Shari'ah everything which has not
been expressly prohibited by it is a permissible Afa'rufaL It is.
not at all necessary that an express permission should exist
about it or that it should have been expressly left to oor choice.
Consequently the iphere of permissible Ma rufai Is rery wide,
so muoh so that except for a few things specULoslly prohibited '
by the Shari<ah, everything is permissible for a Muslim. And
this is exactly the sphere where we have been gi ven freedom
and where we can legislate according to our discretion, to suit
the requirements of our age and conditions.

Mukarat

The MmnkanU (or the things prohibited in Islam) have been
grouped into two categories : Baram (i-e., those things which
have been prohibited absolutely) and ifaJbrnA (i.e., those things
which have been simply disliked). It has been enjoined on
Muslims by clear and mandatory in junctions to refrain totally
from everything that has been declared Haram. As for the
Mairmhai the Shari 'ah signifies its dislike in some way or the
other, i.o., either expressly or by implication also as to the
degree of such dislike. For example there are some Makruhai
bordering on Bar am, while othera btfar affinity with the acta

02 Th* Islamic Law *nd OantiiMiom

which are permissible. Of course, their number ft v«ry large
ranging between the two extreme* of prohibitory tad permissible
actions. Moreover, io some oases explicit measure* have ^been
presoribed by the SAari'ah for the pronation of Mairuhat,
while in others such arrangements hare been left to the dis-
cretion of the society or to the individual.

The Characteristic of (he Short* oh

The SharVak thns prescribe) directives for the regulation of
onr individual as well as collective life. These directives touch
such varied subjects as religious rituals, personal character,
morals, habits, family relationships, social and economic affairs,
administration, rights, and duties of citizens, judicial system,
laws of war and peace and international reliations. In short, it
embraces all the various departments of human life. These
directives reveal what is good and bad, what is beneficial and
useful and what is injurious and harmful, what are the virtues
which we have to cultivate and encourage and what are the
evils which we have to suppress and guard against, what is the
sphere of our voluntary, untrammelled, personal and social
action and what are its limits, and finally, what ways and
means we can adopt in establishing such a dynamic order of
society and what methods we should spurn. The Shari'ah is a
complete scheme oi life and an all-embracing social order where
nothing is superfluous, and nothing is lacking.

Another remarkable fact about the Shari'ah is that it is an
organic whole. The entire scheme of life propounded by Islam
is animated by the same spirit and hence any arbitrary division
of the scheme is bound to harm the spirit as well as the structure
of the Sharrah. In this respect it might be compared to the
human body which is an organic -whole. A leg pulled out of the
body cannot be called one-eighth or one-sixth man, because after
its separation from the living human body, the leg can no more
perform its human function. Njr can it be placed in the body
of some other animal with any hop* *>f unking it human to the
extent of the limb. Likewise, we cannot form a correct opinion
about the utility, efficiency and beauty of the hand, the eye or

fh* nose of a komtn being e^ftwrtely, witboet inlglng Hi jpMte
and function within a living body.

The mw cm be based in regard to the scheme eg Ufa envi-
saged by the ^Aart'oA. Islam signifies the entire scheme of life
and not any isolated part or parts thereof. Consequently,
neither can it be appropriate to view the different parts of the
Short' ah in isolation from one another and without regard to the
whole, nor will it bo of any use to take any particular part and
bracket it with any other "ism", The Shari'ah can function
smoothly and can demonstrate its effieaoy only if the entire
system of life is practised in accordance with it and not other-
wise.

Many of the present-day misunderstandings about the

Shari'ah owe themselves to this faulty attitude in judging its
worth, namely, forming opinions about its different aspects
separately. Some injunctions of it are isolated from the main
body of the Islamic Laws and thon they are considered in the
prospective of modern civilization, or they are viewed as if they
were something completely self-contained. Thus, people take
just one injunction of the Shari'ah at random, which becomes
maimed after its removal from the context, view it in the con-
text of some modern legal system, and criticise it on the score
of its incongruity with present-day conceptions. But they fail
to realise that it was never meant to be isolated for it forma an
organic pert of a distinct and self-contained system of life.

There are some people who take a few provisions of the
Islamic Penal Code out of their context and jeer at them. But
they do not realize that those provisions are to be viewed with
the background of the whole Islamic system of life covering the
economic, social, political and educational spheres of activity.
If all these departments are not working, then those isolated

provisions of our Penal Code can certainly work no miraoles.

For example, we all know, that Islam imposes the penalty
of amputating the hand for the commitment of theft. Bat this
injunction is meant to be promulgated in a full-fledged Islamic
society wherein the wealthy pay Zukai to the state and the
•tate provides for the basic necessities of the needy and the

*t Tht Mamie U* wwd GmtHhOim

■

destitute; wherein every township is enjoined to play boat to
visitors at it* own expense for a mini mam period of three day*. ;
wherein all citizens are provided with equal privilege! and
opportunities to seek economic livelihood; wherein monopolistic
tendencies are discouraged ; wherein people an God-fearing
and seek His pleasure with devotion ; wherein the virtues of
generosity , helping the poor, treating the si ok, providing for
the needy prevail to the extent that even a small boy is made
to realize that he is not a true Muslim if he allows his
neighbour to sleep hungry while he has taken his meal. In
other words, it is not meant for the present-day society where
von cannot got a single penny without having to pay interest ;
where in place of Uaitul Mai there are implicable money-lenders
and banks which, instead of providing relief and succour to
the poor and the needy, treat them with callous disregard,
heartless refusal and brutal contempt ; where the guiding'
motto is : '.'Everybody for himself and devil takes the
hindmost" ; where there are great privileges for the privileged
ones while others are deprived even of their legitimate rights ;

where the economic system propelled by greed and piloted by
exploitation, only leads to the enrichment of the few at the cost

of .crushing poverty and intolerable misery of the many, and
where the political system serves only to prop up injustice,
clsss-privileges and distressing economic disparities. Under
such conditions, it is doubtful if theft should be penalised at
all. not to speak of ontting off the thief's hands I Because to
do so would, as a matter of fact, amount to protecting the
ill-gotten wealth of a few blood-suckers rather than awarding
adequate punishment to the guilty .1

1. How it must not be misunderstood that I em defending theft or any
other form of lawlessness. Not the least I My intention is only to show
the vast and radical differences that reign between tha nontext in whioh
the pno.shment M , and is applienbl. end the state of affairs we «re to-
day enveloped in. The only logical eonelnsion that follows is the need

iZL ^1 " tl ? ***** " TBtmm * f When «» stmoture of

th 22 * T ^ * * ******* ineongruity
nt ,w « d «»• P«-ent eonta rt of aft*, would be

' awsa Md »• *vemie for it* application would be opened.

*"\»* • • The I*lamtcLm • «

■ M ■
_ ■

' On «^ bftar k«d, Mam Ma^. #Mh r»
which none is compelled by the fow^<4jpcw to
For, hvthc Islamic social order, a|*W* '-wMife'^^ help
provided by individual*, the atat© guarantees the basic
necessities of life to all. Bat, after providing all that, Islam
enjoins a severe and exemplary punishment for those who
commit theft, as their action shows that they are unfit to" live
in such a just, generous 'and healthy society and would cause a
greater harm to it, if left unchecked.

. Similar is the cafle'of the punishment for adultery and
fornioation.- .Islam prescribes a hundred stripes for the
unmarried and stoning to death for the married partners in the
crime. But, of coarse, it applies to a society wAerejn every
trace of suggestiveness has been destroyed, where mixed
i gatherings of men and women have been prohibited/ where
public appearance of painted and pampered women is completely
non-existent, where marriage has been made easy, where virtue,
pioty and charity are current coins and where the remembrance
of God and the hereafter is kept ever fresh in men's minds and *
hearts. These punishments are not meant for that filthy

society wherein aexaal excitement is- rampant, wherein nude
pictures, obsoene- books and vulgar isengs have become common

recreations ; wherein sexual perversions have taken hold of the
cinema and all other places of amusement, wherein mixed,
semi-nude parties are considered the acme of social progress
and wherein economic conditions and social customs have made

■ *

marriage extremely difficult. *

IV

LEGAL ASPECTS OF THE SHAM' AH

From this discussion, I think, it has become fairly clear
that what we, at present, technically call 'Islamic Law' is only
a part of a complete scheme of life and does not have any
independent existence in isolation from that scheme. It can
AeitUer be understood* nor enforced separately. To enforce it

separately would, in ftusfc ke againat hrteation of tha

I*w~ Giver. What is required of t>» in to translate into practise
the entire Islamic programme of life and not merely a fragment

of it. Then and then alone can the legal aspect* be properly

implemented.

■

This scheme of the Shari'ah is, however, divided into many
parts. .There are aspeets of it which do not need any external
force for their enforcement ; they are and can be enforced only
by the ever-awake conscience kindled by his faith in a Muslim.
There arc other parts which are enforced by Islam's programme
of education, training of man's character and the purification of
his heart and his morals. To enforce certain other parts, Islam
resorts to the use of the force of public opinion : the general
will and pressure of the society. There are still other parts
which have been sanctified by the traditions and the conventions
of Muslim society- A very large part of the Islsmio system of
law, however, needs for its enforcement, in all its details, the
coercive powers and authority of the state. Political power is
essential for protecting the Islamic system o^ life from
deterioration and perversion, for the eradication of vice and
the establishment of virtue and, finally, for the enforcement of
all these laws that require the sanction of the state and the
judiciary for their operation.

■

Speaking from a purely juridical view-point it is this last
part, out of the whole Islamic scheme of life, that the term
"Law" can be appropriately applied. For, it is only those
injunctions and regulations which are backed by political
authority that are, in modern parlance, termed as "law". But
as far as the Islamic conception is concerned the entire Shari'ah
stands as synonymous with "law", because the whole code of
life has been deoreed by the AH-Powerfal Sovereign of the
universe. However, to avoid confusion, we shall apply the
term "Islamic Law" to those portions of the Shari'ah only
which demand the sanction of* the State-power for their
enforcement.

The Ulamic Law

67

Major Branches of Islamic Law

The establishment of a political authority which may
enforce Islamic Law requires a Constitutional Law, and the
Shari'ah has clearly laid down its fundamentals. The Shari'ah
has provided answers to the basic questions of Constitutional
Law and has solved its fundamental problems, viz., What is
the basio theory of the State ? What is the source of the
authority of its legislation 1 What are the guiding principles
of state-policy I What are the qualifications of the rules of an
Islamic State 1 What are the objectives of an Islamic State 1
In whom does sovereignty reside and what are the different
organs of the State 1 What is the mode of the distribution of
power between the different organs of the State, viz., the
Legislature, the Exeoutive and the Judioiary ? What are the
conditions for citizenship 1 What are the rights and duties of
Muslim citizens 1 and What are the rights of noa- Muslim
oitixens (Zitntnis) ! The guidance which the Shari'ah has
provided in respect to these questions constitutes the
constitutional law of Islam.

Besides laying down the fundamentals of Constitutional
law, the Shari'ah has also enunciated the basio principles of*
Administrative Law. Besides that, there are precedents in
administrative practice established by the Holy Prophet
himself (peace be upon him) and the first four rightly-guided
Caliphs of Islam. For instance, the hari'oh enumerates the
source of income permissible for an Islamic State and those,
which are prohibited. It also prescribes the avenunes of
expenditure. It lays down rules of conduct for the Police, the
Judiciary and the Administrative machinery. It defines the
responsibilities of the rulers regarding the moral and material
well-being of the citizens, laying particular emphasis on their
obligations as regards the suppression of vice and the
establishment of virtuet. It also specifically states as to what
extent the State can interfere with the affairs of its citizens.
In this connection, we find not only detective principles but
also many categorical injunctions. The Shari'ah ha* given ua

Sg The Islamic Law and Ooiutitotion

the broad framework of Administrative Law-exactly In the
same way as it has given the fundamentals of Constitutional
Law and has left it to the discretion of the Muslims to build
up the details in accordance with the demands of the age or
country in which they live-subject, of course, to the limits

presoribed by the Shari'ah.

Proceeding further, we find the Shari'ah guiding us in
connection with Public as well as Personal Law-which are
essential for the administration of justice. This guidance
covers such an extensive field that we can never feel the need
of going beyond the Shari'ah for meeting our legislative
requirements. Its detailed injunctions are such that they can
always fulfil the needs of human society in every age and in
every country-provided, of courae, that the ent.re Islamic
soheme of life is in operation. They are so comprehensive that
we can frame detailed laws for every emergency and every
fresh problem on their basis for which the legislature has been
given the right of legislation. All laws thus framed are to be
considered an integral part of the Islamic Law. That is why
the laws framed by our jurists in the early days of Islam for
the sake of "Public Good" form a part and parcel of the
Islamic Law.

Lastly, we have that part of the Law which deals with the
relations ot the Islamic State with other states, i.e., the
loternatlooal Law. In this connection, too, the Shari'ah gives
us comprehensive regulation relating to war and peace, neutrality
and alliance, etc. Where, however, no specific injunctions are
to be found, the laws can be framed in the light of the general
directives as laid down in their behalf.
Permanence and Change in Islamic Law

■

This brief classification and elucidation shows that the
guidance of the Shari'ah extends to all the branches of law
which have been evolved by the ingenuity and need of the
human mind so far. This is a standing testimony to the
independence of the Islamic Law and its inherent potentialities.
Anybody who takes the trouble of making a detailed study of

Tht lalamic Law

59

the subject will be able to distinguish between the part of the

Shari'ah which has a permanent and unalterable character and

is, as such, extremely beneficial for mankind, and that part

whioh is flexible and has thus the potentialities of meeting the

ever-increasing requirements of every time and age.

The unalterable elements of Islamic Law may be classified
under the following heads :

(I) Those laws that have been laid down in explicit and
unambiguous terms in the Qur'an or the authentio
Traditions of the Prophet, like the prohibition of
alcoholic drinks, interest and gambling the punishment
prescribed for adultery and theft and the rules for
inheritance etc

*

(5) The direotive principles laid down in the Holy Qur'an
and authentio Traditions, e.g., prohibition of the use
of intoxicants in general, or the nullification of all
exchange transactions whioh are not the outcome of
the free-will of both the parties, or the principle that 1
men are protectors and in charge of women.

(3) The limitations imposed on human activity by the
Qur'an and the Traditions of the Prophet, which oan
never be transgressed, e.g., the limitation in connection
with the plurality of wives where the maximum number
has been fixed at four, or the limitation that the number
of divorces to a wife cannot exceed three, or the
limitation imposed on a will, the amount of which
cannot exceed one-third of the total inheritance etc. /
It is these unalterable mandatory provisions of the Islamic
Law whioh give a permanent oomplexion to the Islamic Social
Order and the characteristic features to its Culture. In fact,
one cannot find a single oulture in the entire history of mankind
which oan retain its separate entity and its distinct character
without possessing an unalterable and permanent element.

If there are no permanent elements in a culture and every
part of it is subject to change, amendment and modification, it
is not an idependent culture at all. It is juni like a fluid,

60

The Islamic Law and OonHUnHon

which can fair* any and every shape and can always suffer trans-
figuration and metamorphosis.

Moreover, a thorough study of these directives, injunctions
and limitations will lead every reasonable man to the conclusion
that they have been given to us by the Shari'ah only for those
matters where the human mind is likely to commit errors and
go astray. On all such occasions, the SharVah has, so to say,
set the signposts by issuing directives of making categorical pro-
hibitions so that we may proceed along the right path. And
these signposts far from impeding the march of human progress*
are meant to keep us along the road and to save us from skidding
away. I*i this connection, it might not be out of place here to
refer to the laws of the Shari*ah governing marriage, divorce
and inheritance which were the target of very bitter criticism
in the recent past. It is these very laws, however, to which the

world is now turning for guidance, though after innumerable
bitter experiences I

The second; part of Islamic Law is that which is subject to
modification according to the need and requirements of the
changing times and it is this part of the Islamic Law which
endows it with wide possibilities of growth and advancement
and makes it fully capable of fulfilling all the needs of an
expanding human society in every age.

This part consists of the following : —

(a) Ta'ureel (Interpretation) : It consists in probing into
the meanings of the injunctions fonnd in the Qor'an
and the Sunnah. As such, it has always occupied and'
still occupies a place of immense importance in Islamic
Jurisprudence. When those endowed with penetrating
insight and legal acumen ponder over the injunctions
of the Qur'an and the Sunnah, they find that many of
them are open to different fruitful and valid interprets-
tions. Consequently, every one of them accepts some
particular interpretation according to his lights on the
merits of the case. lot tjtfs way, the door* of difference
of opinions have always been open in the past, are open
even today, and will continue to remain so in the future.

The Islamic Law 61

(6) Qiyas (Deduction by Analogy) : It consists in applying
to a matter with respect to which there is no dear
guidance, a rule or injunction available for some similar
matter.

(c) Ijtihad (Disciplined Judgment of Jurists) : It consists in
legislating on matters for which neither any explicit
injunctions nor even precedents exist, subject* of
oourse, to the genera] principles and precepts of the
Shari'ah.

(d) Istihsan { Jnristic Preference) : It means framing rules,
if necessary, in non-probibrted matters in conformity
with the spirit of the Islamio legal system.

Any one who considers the possibilities inherent in the
above-mentioned four ways of legislation, can never reasonably
entertain any misgivings as to the dynamism, adaptability,
progressive nature and power of evolutionary growth of the
legal system of Islam. But it should be remembered that every
Tom, Dick and Harry is not entitled to exercise the right of
' Qiyas, Ijtihad, Istihsan,

the right of every passer-by to give verdict on problems of
national impprtanoe. Undoubtedly, it requires profound legal
knowledge and a trained mind to enable one to speak with
authority on any legal matter.

Similar is the case with the Islamic Law. Obviously, to
achieve the status of a jurist one should be fully conversant with
Arabic language and literature. He should also have a complete
grasp of the real historical background of the injunctions of
Islam. He should have special insight into the Qur'anio style of
expression. He should have a thorough knowledge of the vast
literature oh the Traditions of the Holy Prophet as well as of
the Traditions themselves.

In the special field of analogous deduction, a Muslim jurist
is required to possess a keen sense of legal judgment and tho
requisite capacity for interpretation of facts on the basis of
analogy; otherwise it would not be possible for him to save him-
self from falling into errors. As regards Ijtihad, or original

6t (The Islamic Law and OoTtsUtvtion

legislation, it requires tin jurist to have not only a deep knowl-
edge of Islamic Law but also a developed sense pf interpreting
matters in the true Islamic spirit. Similarly as regards Istihsan
or the consideration of public good and legislation for that
purpose it calls for a complete understanding of the entire
Islamic scheme of life as also a complete grasp of the spirit of
Islam so that he may adopt only those things which can be
appropriately assimilated in the Islamic Scheme and which do
not amount to driving square pegs in round holes.

And, over and above all these intellectual accomplishments,
there is another thing which is vitally essential, and that is
unstinted devotion and loyalty to Islam and a deep sense of
accountability before God, As regards those who care little for
God and of the Fin^I Accountability, whose watch- word in life
is sheer expediency, and who prefer the non-Islamic values of
culture and civilization to those given by Islam, they must be
regarded as the last persons to whom the work of Islamic legis-
lation can be entrusted. For, in their hands, the Islamic Law
will only suffer perversion and corruption. It will not grow,
evolve and prosper.

AN EXAMINATION OF OBJECTIONS ON

ISLAMIC LAW

We shall now try to examine briefly some of the objectigna
usually raised against the demand for the introduction and
enforcement of Islamic Law in Pakistan. These objections are
many but it would be an unnecessary waste of time to mention
all of them here. Therefore I propose to confine to the exami-
nation of those objections only which are of a fundamental
nature.

1. "Islamic Laws are Antiquated"

The Srst objection that is raised is that, as the Islamic

Laws were framed thirteen centuries ago in the light of the

requirements of a primitive society, they cannot be of any use

for a modern state of our age.

I doubt very much whether people who take this stand are

tth* Islamic Law

conversant even with the rudiments of the Islamic Law and
possess even an elementary knowledge of it. Perhaps, they
have heard from somewhere that the fundamentals of the
Islamic Law were enunciated more than thirteen hundreds years
ago, and they have assumed that this Law has remained static
since then and has failed to respond to the requirements of
changing conditions of human life. On this misconception
they have further assumed that Islamic Law will be unsuited
to the needs of the present-day sooiety and will clog the
wheels of progress. These oritios fail to realize, however, that
the laws propounded thirteen and a half centuries ago, did not
remain in a vacuum ; they formed part and parcel of the life of
Muslim sooiety and brought into being a State which was run in
the light of these laws. This naturally provided an opportunity
of evolution of Islamic Law from the earliest days, as it had to
be applied to day-to-day matters through the prooess or Ta'weet
Qiyas,ljtihad*n{llstihean.

Very soon after its inception, Islam began to hold away
over nearly half the civilised world stretching from the Pacific-
to the Atlantic and during the following twelve hundred years,
the Islamic Law continued to be the -law of the land in all
Muslim states. This process of the evolution of Islamic Law, .
therefore, did apt stop for a moment up to the beginning of the
nineteenth century, because it had to meet the challenge of the
ever-changing circumstances and face oountless problems con-
fronting different countries in different stages of history. Even
in our Indo-Pakistan sub-oontinent, the Islamic Civil and Penal
Codes were in vogue up to the beginning of the nineteenth
century. ^-.^

Thus, it is only for the last one hundred yea^s that the
Islamic Law remained inoperative and suffered stagnation. But,
firstly, this period does not form a big gap and we can easily
make np for the loss with some amount of strenuous effort ;
secondly, we possess full records of the development of our
jurisprudence century by century and there can be absolutely no
ground for frustration or despondency. Our path of legal pro-

64= The Islamic Law and Constitution

greasis, thus,**

vuw , „„ — grasped the fundamental principles and the
basic facts concerning the evolution of the Mamie system of
Law, we cannot remain in doubt that this law shall be as res-
ponsive to the urges of a progressive society in the present and
the future as it has been in the past. Only those who suffer
from ignorance can fall a prey to suoh nonsense, while those who
have a grasp Of Islam and the Mamie Law, are aware of its

potentialities of progress and those who possess even a cursory
knowledge of the history of its development, can never suspect
it of being an antiquated or a stagnant system of law, incapable
of keeping pace with the march of history.
2. "Islamic Laws are Relics of Barbarism" I

The second moBt common Dejection— an objeotion which is
forward nubliclv onlv in a round-about' manner but which

is presented with much vehemence and venom in private talks-
is that Islam is just a relic of the Dark Ages ! And those who
Bay so also argue, with an air of haughtiness and arrogance, that
the "progressive, cultured and humane" outlook Of the modern,
enlightened age can never tolerate suoh "cruel" penalties as
the cutting of the hands, or flogging, or stoning to death-
penalties imposed by Islam for certain- crimes.

This objeotion and this allegation, coming as it does from
the supporters, of modern Western civilisation, makes one gasp
with wonder. It is, indeed, amazing to hear that the normal
values Of the present age are "advanced" and "progressive .
The heartlessneBS shown by the "enlightened" man of today to
his fellow beings hardly finds a parallel in the darkest ages of
history. He does not punish by stoning to death, but he can
kill people indiscriminately with the atom bomb . He doest not
merely out off the hands of the people but he also tears their
bodies into shreds. He is not oontent with flogging, he would
like to burn alive the people en masse and manufacture soap out
of the fat extracted from their dead bodies* Leaving aside

1. This was done in Germany, ono of tho most "progressive" conntrios
in the worW— Bditor.

The Islamic Law

85

tfaete demonstrations of hearties Bness daring the period of war
wherein everything is considered fair nowdaye, the modern man
brutally chastises— and does it unsparingly— the political
"etimhsmbt" : alleged "traitors" to the national cause and
the rivals in the economic and political fields. The highly objeo-
tionable and inhuman modern methods of investigation and
extortion of confession employed even before 'proving the charges,

are. an open secret. In view of these facts, it is non-sensical to
say that the modern man cannot tolerate the punishments pres-
cribed by Islam for proved and established criminals because he
possesses a more refined outlook ; and it does not lie in the
mouth of those who can tolerate bloody "purges" after con-
cocted confessions and phoney trails and who uphold political
inquisitions and concentration camps, to pour out venom against

the Islamic Penal Code. 1

The truth is that it is not the severity of the punishments
in Islam whioh the upholders of modern civilization abhor, for
they resort to even more tortuous punishments themselves. The
reason for their hysteric outbursts against this alleged "bar-
barism" lies actually in the perversion of Snoral value— that is,
in the fact that they do not think that crimes like drunkenness
and adultery deserve even a word of. reproach, what to speak of
painful pimiahmenta. Had they been opposed to these punish-
ments on humanitarian considerations, they would have like-
wise condemned the brutal punishments given to people on
flimsy political and economic grounds. They complain in
respect of Islam only because they do not at all deem as a sin
or crime many a thing condemned by it.

I would like to put a straight question to these varieties of
"modernity" : "What are the values that you believe in 1 Do

■

1. Prof. E. P. M. Durbin, after narrating the callous and inhuman treat,
merit whioh is being meted out in the most "progressive" states of
tin* world, oouoludes that ! "such large-scale brutality has rarely been

witnessed. I am thankful to say, in the previous history of the
world" The Polities of Democratic Sohiali*m> p. 25) .

See also -Khurehid Ahmad, Fanaticism, Intolerance and Ialam A
Islamic Publications Limited, Lahore,* 2nd ed. ( 1960— Editor.

58 Tht Islamic Law and Constitution

r

i

yon believe in the Islaznio values of life and standards of
morality or those of the modern civilization" ! If you have
made your choice and accepted some other values and some
different standard of right and wrong, of virtue and vice, of the
permissible and the prohibited as against those envisaged by
Islam, it is then a difference of a very fundamental nature. It
means that you differ with and disbelieve in the Islamic
ideology itself. In this ease you should have the courage to
declare that you rejeot Islam outright. Is it not foolish to
allege faith in a God Whose law* you consider as barbarous I
Anyhow nobody can remain inside the pale of Islam after hold-
ing suoh an opinion about the law of God.l '

3. The Bogey of Sectarian Differences

We have dealt with two objections so far. The third
objeotion is that there being many schools of Islamic
Jurisprudence, it is not possible to evolve an agreed code of
law which might be acceptable to all the schools of Muslim
thought. It is this objection on whioh rests the last hope of
the opponents of the Islamic Law, and they seem to feel
confident that on this count they will be able to score a point
by driving a wedge among the Muslims. Moreover, this
problem also baffles many sincere people who are loyal to Islam
and who, not being fully conversant with its teachings, fail to

1. Hero the learned author is replying to those oritios who claim to be
Muslims but under the spell of alien influenoes want to amend the
basio tenets of Islam, without any regard for the spirit and ideals of
Islamic ideology. They are apologetio in their attitude and want to
blow hot and oold in the same breath.

As to the question whether the punishments are too harsh or not,
he has already answered in the earlier part of the discussion. Islam
creates suoh conditions as may ensure the elimination of the eaute*
of the commission of crimes. But, if, in spite of it, the evil doers
commit them, Islam punishes the criminals in suoh a way that others
may not dare to do that. ' That is why we find that when theae
punishments were in vogue, orimes were extinct while today, despite
all the clap-trap, crimes are on the increase and we hear voices from

of punishments, are proving
inoapable of grappling with the problem.— Editor.

The Islamic Law W

understand how the 'complication' can he removed. The fact
ia that this complication is merely a figment of fertile
imagination, for, the existence of different schools of law can

never become an obstacle in the way of the enforcement of

Islamic Law.

The first point to be understood in this connection in that
the broad outlines of iBlamio Law, consisting of mandatory and
unalterable commandments and fundamental principles and
limitations have always been accepted unanimously by all the
Muslim schools of thought. Neither there ever was, nor there
is now, any conflict of opinion regarding this portion of our
, laws. Whatever differences had ever arisen were always in
connection with the details .that were to be framed through
interpretation, deduction and Ijtihad— all, of course, within

limits prescribed by Islam.

The nature of these differences can also be understood by

the fact that rules derived by jurists through interpretation,
deduotion, Ijtihad or Ittihtan oould never acquire the force of
law without either being accepted unanimously {Ijma') or
kaving the approval of the majority (Jamhoor). This explain*
why the phrases like ^L^l ^ (unanimous agreement),
J>f -*Jl V* (majority agreement) and ^ (adopted

judgement) are appended to the expression of final opinions by
our jurists in discussing legal matters, and it signifies that
their opinion had finally to obtain legal sanotion in order to
beoome a law for Muslims.

These unanimous or majority decisions can be of two
kinds:

' r w

Firstly, those which have always been accepted by the entire
Muslim world or by the majority of Muslims.

Secondly, those based on the unanimous agreement of the
Muslims of a particular country at a particular period, or of
their majority.

Decisions coming under the, first category, if based on
unanimous agreement, are not subject to review and should
s>lways be accepted as part and parcel of Muslim Law,

68

The Islamic Law and Constitution

Decisions made by majority agreement can be accepted as
law only if the majority of the Muslim! of the country wherein
they have to be promulgated also aceepts them, as such. If
the majority of that oountry accepts them, they will become a
law for this country, otherwise ndt.

So much about the past. As for the future, the laws which
are accepted unanimously by majority of the Muslims of this
country, will be enacted here. In the past too, this has been
the practice and no law used to operate without either the
unanimous approval or the approval of the majority of the
Muslims. And it is this method which is practicable even
today. I do not think that any other prooedue can be
prescribed from the democratic point of view either.

A question may be asked as to what would be the position
of those Muslims who might not agree with the majority.!
They are entitled to demand the enforcement of their own Code
in their personal matters and this demand of theirs must be
accepted. But, of oourse, the "Law of the Land" shall be the
one whioh has the sanction of the majority.

I am sure that no Muslim of any sect would ever adopt the
foolish position of preferring the continuance of un- Islamic laws
in Pakistan on the ground that he is not in agreement with the
Views of the majority of Muslims on oertaiu points of Islamic
Law. Obviously we cannot discard the Islamic way of life
simply because we are not unanimous on all details of its law.
Has there ever been or can there ever be any law or system of
life on all details of vhioh all its followers were, are or can ever
be unanimous 1 What do you say about the legal system, that
is in force ih the country at present or anywhere else I

■

I. This objection was blown up by the complete agreement of the
•Utoma 1 of all schools of thought in the Conventions held in 1051 and
1963 at, Karachi. In those Conventions, the <Uktma' unanimously
formulated the Basic Principles of the Islamic State (see Appendix I)
and also moved Amendments to the Basic Principles Committee's
■ Report (see Appendix II). This objection, therefore, has absolutely '

.} ' . no ground — Editor.

The Islamic Lav, M

4, The Problem of Non-Mimltai Mluorltlei

The last important objection in th; a l •

SI * Kovernod by the religioUB Uwof the

riS ~ ~ - f= -=

miBonderZSng ^ ^ di »^ the fog of thia

, w according to h» own Personar Law Th«r»fo^
^orit ygro houM feol ^ ^ ' - .

own rehgious laws on them in their personal m^w lI ™ ««
Minorities are entitled to demand ' safeffnard. ft,. * K •

'0 The Islamic law and Constitution

replace Islamic Law by those of any other type without
conscious apostasy and betrayal of Islam. Are the minorities
really entitled to ask the majority to gire up its religion and
its way of life 1 Hare they the right to demand that the
majority should give up the principles which it considers right
and adopt others which are against its convictions 1 Or, is it
reasonable that in a multi-religious country all the communities
should beoome irreligious ? If the answers to all these questions
are in the negative, I find no reason why -Islamic Law' should
not become the 'Law of theXand* in a country whew Muslims
are in a predominant majority. 1

Moreover, the true position is that the representatives of the
Christies in the First Constituent Assembly of Pakistan and some of
the leaders of the scheduled oastee, who form the most impprtant
minority, hive dwnandtd the establishment of an Islamic State, for
they hold that their rights oan be better safeguarded in such a state
They know that an Islamic State does not permit any chasm to exist
between precept and practice. All Muslims are under an obligation
to do what their religion commands. And if they violate, they can
do .so only at the cost of their own religion-nay, their very faith and
salvation.— jgtKttr. '

Chapter 2

Legislation and 'Ijtihad'

in Islam

MAULANA ABXJL A' LA MAUDODI read apaper
entitled 'Role of Ijtihad and Soope of Legislation in
Islam' at the Colloquium on Islam io Culture held at
Lahore in January 1058. He was a delegate from
Pakistan and was also a member of the Organising
Committee of the Colloquium. This paper constitutes
first section of the present chapter. Its second section
consists of the reply which he gave to the objections
raised at his said paper. The third and the last
section has been taken from a note of Maulana
Maududi which he wrote in reply to a query and which
was published in Chigrah»e-r4th r Islami Qanoon Number;
/ • : Vo], II (Vol. 12 : No. 7).- Editor.

i

>

LEGISLATION AND IJTIHAD' IN ISLAM

TpOR an adequate appreciation of the subject under discussion,

two basic facta have to bo clearly bo me in mind, via ;
(i) the Sovereignty of God, and

(ft) the prophethood of Mnhummad (peace be upon him).

Islam admits of no sovereignty except that of God and,
consequently, does not recognise any Law-giver other than
Him. The Concept of the unity of God, as advocated by the
Qur'an, is not limited to Hk being the sole objeot of worship
in the religious sense alone. Along with it, He is invested
with complete 'legal sovereignty', in the sense in which the
term is understood in Jurisprudence and Political Science.
This aspect of the legal sovereignty of God is aa much and as
olearly emphasised by the Qur'an as the one pertaining to His

i

being the only deity to be worshipped. According to the
Qur'an these twin faoets of the Divinity of God are the sine
qua non of the Divine Entity and are so vitally interlinked
that a negation of either ipso facto infringes the very concept
of His divinity. And the Qur'an leaves no room for the
impression that the divine law may mean merely the law of
nature and nothing more. On the contrary, it rears the entire
edifice of its ideology on the basis that mankind should order

the.affaira of its ethical and aooial life in accordance with the
law (Shari'ah) that God has communicated through His
Prophets (may His blessings be on them). It is this submission
to the revealed law and surrender of one's freedom to it that
has been assigned the name of Islam (surrender) by the Qur'an.
It denies in the clearBt terms the light of man to exercise any
discretion in such matters as have been decided by Allah and

His Prophet (peace be upon him).

Says the Qur'an :

"It is not for the faithful, man or woman, to decide by
themselves a matter tha| has been decided by Allah

78

Legislation and Ijtihad in Islam

73

and His messenger, and whosoever commits an affront
to Allah and His messenger is certainly on the wrong
path". (33 :'M)

I

PROPHETHOOD OF MUHAMMAD (pbuh)

The second point which is as fundamental in Jul am as is
the Unity of God, is the finality of the Prophefchood of
Muhammad (may God's blessings be on him). It is really
because of this factor that the concept of the Unity of God
transforms itself from an abstract idea into a practical system
and the whole edifice of the Islamic way of life is raised upon
this foundation. According to this concept the teachings of
all the earlier messengers of Allah have been incorporated,
with numerous important additions and alterations in the
teachings of Muhammad (may God's blessings be on him).
Honco those teachings constitute Ihe only source of Divine
guidance and law t as no further revealed guidance is to como
.to which it may become necessary for mankind to turn. It is
this dispensation by Muhammad (may God's bloseings be on
him) that constitutes the SUPREME LAW which represents
the Will ef God, the real Sovereign. This Law hag boon
bequeathed to us by the Holy Prophet (peace be upon hi in) in
two forms :

First; the Qur'an which embodies, word by word, the
instruction and commandments of God and is His unadulterated
word. *

Second : the ideal conduct of Muhammad (may God**
blessings be on him), that is to say Sunnah, which clarifies,
explains and exemplifies the meaning of the Qur'an.

In fact the Holy Prophet was not merely the bearer of a
message having nothing more to do than transmitting the Word
of God to mankind. He wan also the Divinely appointed leader,
the ruler and the teacher. 1 The duty laid on him was to explain 2

I, AI-Qnr'ati, 01 : 9 ; 3 : 164 ; 62 : 2— .Editor.
3. Al-Qur'an* 16 : 44 and 64-»J£cttfor,

7*

The Islamic Law and Oonttitution

and illustrate the law of God by his word* and deeds, to make
people understand its real import, to train individuals and form
thorn into a disciplined body, and with their aid to initiate a
struggle for the reconstruction of society, and finally, to mould
the society into a reformed and reforming state and thus to
demanstrate how an ideal civilisation, founded on the principles
of Islam, could be established. This entire life-work of the
Holy Prophet, which was completed in twenty-three years of
his prophethood, is the Sunnah which in conjunction with the
Qur'an formulates and completes the Supreme Law of the real
Sovereign and this Law constitutes what is callec! "Shari'ah" in
Islamic terminology.

SCOPE OF LEGISLATION

Prom what has been stated heretofore one is apt to think
that these fundamental facts leave no room for human legisla-
tion in an Islamic State, because herein all legislative functions

vest in God and the only function left for the Muslims lies in
their observance of the God-made law vouchsafed to them

through the agency of the Prophet. The fact of the matter,
however, is that Islam does not totally exclude human legisla-
tion. It only limits its scope and gudies it on right lines.
Human legislation, according to Islam, is and should be subject
to the Supremacy of Divine Law and within the limits prescribed
by it.

Now I proceed to describe the scope and limits of this
legislation which, in Islam, takes the following four forms :

1. Interpretation

In certain matters the Qur'an and the Sunnah have laid
down clear and categorical injunctions and prescribed specific
rules of conduct. In suoh matters no jurist, judge, legislative
body, not even the Ummah as a whole, can alter the specific
injunctions of the Shari'ah or the rules of behaviour expounded

by it. This does not mean, however, that there is no scope left
for legislation in this sphere. The function of human legislation
in relation to such matters lies in

(a) finding out exactly and precisely what the law is ; its*
nature and extent,

Legislation and Ijtihad in Warn

75

{h) determining its meaning and intent,

■

(c) investigating the conditions for which it is intended
and the way in which it is to be applied to the
practical problems,

(d) working out minor details in the case of such laws as
are too brief for a straightaway application in actual
life, and

{ft) determining the extent of its applicability or non-
applicability in case of exceptional circumstances.

2. Analogy

Then there are those types of problems about which
although no speoiflo injunctions have been laid down in the
Shari*ah, but provisions have been made about some analogous
situations. In this sphere the function of the legislature would
be to apply such injunctions, after a precise appreciation of the
reasons and causes underlying them, to all those matters
wherein identical causal connections aotually exist and to
exempt all such cases from their application wherein these
connections are non-existent.

3. Inference

There is yet another category of human affairs about which
the SharVah has prescribed no specific guidanoe but has laid
down broad principles or indicated the intention of the Lawgiver
as to what is to be encouraged and what is to be discouraged.
In regard to such affairs, the function of the legislature is to
understand the principles of the Shari'ah and the intention of

the Law-giver and formulate such laws about the practical
problems as are based on these principles and fulfil the intention
of the Law- giver.

4. Province of Independent Legislation

Apart from these, there is yet another vast range of human
affairs about which the Shari'ah is totally silent. It has neither
made any direct provision introspect thereof nor is there any
guidance for identical or kindred situations so as to enable us to
draw an analogical inference therefrom. This silence is by itself

76

The Islamic Law and Constitution

indicative of the fact that the Supreme Law-giver has left it to
human beings to decide such matters in their own discretion
and judgement. Henoe independent legislation can be resorted
to in such cases but it must he in consonance with the real ajyiit
of Islam and its general principles and, what is more important,
should in no way ho repugnant to the general pattern and
temperament of Islam. It mmt uaturally and appropriately
fit into the general scheme of the Islamic ideology.

IJTIHAD

The whole of this legislative process which makes the legal
system of Islam dynamic and makes its development and evolu-
tion in the changing circumstances possible, results from a parti-
cular type of academic researoh and intellectual effort which, in
the terminology of Islam, is called Ijtihad. Literally the word <
Ijtihad means to put in the maximum of effort in performing a
job but technically it signifies 'maximum effort to ascertain, in
a given problem or issue, the injunction of Islam and its real
intent 1 . Some persons seem to be labouring under the erroneous
impression that Ijtihad means completely independent use of
one's opinion. But no one conversant with the nature of the
Islamic Law can imagine that there can be any place for this
kind of independence in the legal system of iBlam. The real
law of Islam is the Qur'an and the Sunnah. The legislation that
human being may undertake must essentially be derived from
this Fundamental Law or it should bewithin the limits prescribed
by it for the use of one's discretion or the exercise of one's
opinion. For Ijtihad that purports to be Independent of the
Shari'ah can neither be an Islamic Ijtihad nor is there any room
for such an incursion in the legal system of Islam.

Essential Qualifications

It is clear from what has been said above that the purpose
and object of Ijtihad is not to replace the Divine Law by man-
made law. Its real object is to properly understand the Supreme
Law and to inipart dynamism to the legal system of Islam by
keeping it in conformity with the fundamental guidance of the

Legiilaiion anSIjtihad in Ulam 77

Skari'ah and abreast of the changing conditions of the world. In
view of this basic fact, no healthy Ijtikad is possible unless our
law-makers are equipped with the following qualifications :

(1) Faith in the Shari'ah and conviction of its truthfulness ;
a sincere intention to follow it ; absence of any desiro
to act independently of it: and the will to derive
inspiration and acquire all objectives, principles and
values from it and not from any other source.

(2) A proper knowledge of the Arabic langua$, its
grammar and literature because the Qur'an has been
revealed in this language and the means of ascertaining
the Sunnah also depend upon this medium.

(3) Such knowledge and insight in the teachings of the
Qur'an and the Sunnah as would enable one not only
to be conversant with the details of islamic injunctions
and their application in actual practice but fully to
appreciate the basic principles of the Shari'ah and ita
objectives. One should know, on the one hand, the
Shari'ah's over-all reform scheme from human life and,
on the other hand, the exact place of oaoh aspect of
life within the frame-work of this comprehensive
scheme, the lines on which the Shari'ah desires to
mould human life and society and the objectives
underlying it. In other words, such knowledge of the
Qur'an and the Sunnah is the sine qua nan of Ijtihadw
would enable one to grasp the kernel of the Shari'ah.

(4) Acquaintance with the contributions of the oarlior
jurists and thinkers (Mujtahidin) of Islam. This is
necessary not merely for training in the technic ue of
Ijlihad but also for tho sake of ensuring continuity in
the evolution of Jaw. Of course it is not, and should
not be, the purpose of Ijiihad that every generation m&y
necessarily destroy or discard what previous genera
tiona have built and thus try to build the wf>oU
structure afresh.

•78 Tht Islamic Law and Constitution

15) Acquaintance with the problems and conditions of our
times-the new problems of life to which an answer >s
sought and the new conditions in which the principles
and injunctions of the Shari'ah are to be applied. A
correct appreciation of the current problem is extremely
essential for the proper exercise of Ijtihad.

(6) Commendable character and conduct according to the
Islamic ethical standard. Absence of tins virtue ,s
bound to affect adversely the quantum of public trust
in the legislators. A law made by the Ijtihad of un-
worthy individuals, devoid of good moral character, is
not likely to inspire respect and confidence m the

Muslim people.
The above description of the essential qualificat.ons does
not entail that any one undertaking Ijtihad should produce ^a
certificate before the commencement of his ass.gumen that he
ZLly possessed of them. Rather the idea » merely to show
that a healthy development of Islam.c law on proper hues
through Ijtihad is possible only if the system of legal tra m
and education starts producing learned men of such calibre and
qualifications. Any legislation undertaken without these requi-
res would neither ft into the legal system of Islam nor would
it ever be palatable to the Muslim society to accept and

digest it.

Technique of Ijtihad

Just as Ijtihad and any legislation based thereon depends
for its popular acceptance on the ability of those responsible for
it, similarly its success would, to a large degree, depend upon
the employment of a correct method and proper technique. A
whether he is engaged in the interpretation of inmnc
wm !□ busy in analogical reasoning or in drawing inferences,
has, in any event, to base his reining on the Qur an and the
S„»„nh. Even while indulging in ' independent leg. Nation m
Habere of permissible {M vbak*) h, must clearly establish
that the Qur au and the Hunvah h»v« not laid down any rule or
x»rder nor even have furnished a basis for any analogy for that

Legislation and Ijtihad in Islam ?9

particular issue. Furthermore, the methods adopted for putting
construction on the Qur'an and the Sunnah should be reasonable
and well-recognised. While arguing from the Qur'an it is imper-
ative to interpret the meaning of a verse in accordance with the
requirements of the language, i.e., Arabic lexicography, grammar
and established usage which should 6t into the context of the
verse and may not be in conflict with the observations made
elsewhere in the Qur'an on the same topic. In addition to that,
if it is not positively supported by word or deed of the Prophet,
at least the Sunnah be not contrary to suoh meaning. While
drawing upon the Sunnah in oonsonanoe with the considerations
of language, its rules and the context, it is also essential that
the traditions whioh are relied upon about a particular matter
are authentio ones in accordance with the principles concerning

•

this branch of knowledge (of Traditions), that other relevant tra-
ditions are not ignored and no single citation (Khabar-e-Wahid)
is allowed to hold its own against a Sunnah that has been well-
established on the strength of authentio sources. Any Ijtihad
based on wishful interpretation and in disregard to these
precautions even, if raised to the status of law by dint of politi-
cal power, will neither be aooepted by the collective conscience
of the Muslim community nor oan it form an integral part of
Islamio system of law. As soon the political power enforoing
such a law disappears from the political arena, such a law would
bejthrown into the dustbin.
How Ijtihad attains the status of law

A number of methods have been recognised in the legal
system of Islam whereby an Ijtihad aoquireB the force of law.
Firstly consensus of opinion (Ijma 1 ) by the learned men of the
community. Secondly the Ijtihad of an individual or a group of
individuals may gain wide popularity and people may suo moto
adopt their verdict, for instance, the Ijtihad of the Hanafite, the
Shafe'ite, the Malikite, and the Hanbalite schools of law w*re
voluntarily accepted by large groups pi Muslim masses. Thirdly >
a Muslim government may adopt a particular piece of Ijtihad

80

the Islamic Law and Constitution

as its law, as for example the Ottoman government barf adopted
the Hanafi Law as the Law of the Land. Fourthly, an institution
may be constitutionally empowered in an Islamic State to legis-
late and it may enact a particular piece of Ijtihad in the form
of law. Apart from these four methods, any Ijtihad performed
by various Muslim scholars can be no more than a verdict
(fatwa). As regards the judicial pronouncement of the judges
(Qadi*) t they are enforceable as law only in respect of the
particular case in which a court may have pronounced them and
they may also have the force of a precedent but they cannot be
classified as law in the true sense of the term so much so that even
the judicial pronouncements of the Right Guided Caliphs— given
by thorn in their judicial capacity as Qalis — did not acquire in
Islam the force of law. The concept of the "judge-made-law" i*
foreign to the legal system of Islam.

ii

THE PLACE OF SUNNAH IN ISLAMIC LAW

I will try to answer as briefly as possible the oriticism that
has been offerod on my paper on : 'The Role of Ijtihad and the -

Scope of Legislation in Islam. 1

I. The first criticism relates to the status that has been
assigned to 'Sunnah* along with the Qur'an. In dealing with
this I should like to mention a few points in a certain sequence
so that the problem may be clarified.

(i) It ia an irrefutable historical fact that after receiving
the prophetic assignment, Muhammad (peace be upon him) did
not stop at the mere transmission of the Qur'an to the people
but led an all-comprehensive movement which resulted in the
evolution of an organised Muslim society, a new system of
civilization and culture, and the establishment of a state. The
question arises : In what capacity did the Prophet perform those
functions which were in .addition to the mere trausmisHion of the
Qur'an \ Wero those tasks jmrformed in his prophetic capacity
in which he reprosrntwi thrill oY God in the same way aw it is
represented in the form of the Holy Book \ Or did his prophetic

Legislation and Ijtikad in Islam

81

status end with the transmission of the Qar'an and thereafter
he merely acted like an ordinary Muslim individual whose words
and deeds did not possess in themselves any legal authority ? If
the former, then there is no alternative but to accept the
Sunnak as possessing legal authority along with the Qur'an. If
the latter, then of course there can be no ground for treating it
as law.

(it) The Qur'an gives a very clear verdict in this matter by
stating that Muhmmad (peace be on him) was not merely a
messenger but a divinely-appointed leader, ruler and teacher as
well, rendering obedience to whom is obligatory on the Muslims
and whose life had been put forward by God as an ideal to be
followed by the faithful. Reason and intellect fail to conceive
that a prophet is to be treated as Buch to the extent merely of
transmitting the word of God and, thereafter, he is* reduced to
the level of a common man. In so far as tho Muslims are con-
oerned they have, from the advent of Islrm up to this day,
unanimously upheld, in every age and clime, that the Holy
Prophet was an ideal to be imitated, and his injunctions and "
inhibitions were obligatory on the believers. Even a non-Muslim
student of Islam cannot deny the fact that the Muslims have
always assigned this position to the Holy Prophet and on this
very basis his Sunuah has been treated, along with tho Qur'an,
as a source of law in the legal system of Islam. I cannot indeed
imagine how anyone can challenge this legal aspoot of the
Bunnah unless he takes up the position that the Holy Prophet
was a prophet only in so far as ho transmitted tho Holy Book
and his prophetic status ended with the performance of this
duty. And if anyone puts forward such a claitu he will have to
state whether he is assigning this position to the Holy Prophet
on hia own or whether the Holy Qur'an itself has assigned it to
him. In the first ease his stand would bo no concern of Islam at
all, while in the second case he w^ill have to adduce some proof
of his claim from the Holy Book.

(iii) On accepting the Sunnah as a source of law, the ques-
tion arises, as to how it can be ascertained. How can we find

82

The Islamic Law and Constitution

out what Sunnah had boeu bequeathed by the Prophet who was
raised so many centuries ago ? In this connection it should be
remembered that this is not a problem with which we are con-
fronted for the first time Ufter the lapse of 1377 years. The
following two historical facts are iucontrovorti ble.

The first one is that the community and the society which
were formed on the basis of the teachings of the Qur'an and the
Sunnah of the Holy Prophet, on the very first day ot the advent
of Islam, has been continuously in existence; its life was not
interrupted by a single day and its institutions have been work-
ing all the time without any break. The deep similarity which
exists at present among the Muslims the world over in respect
of their beliefs, mode* of thinking, ethical standards and values,
acts of worship and mundane affairs and in their social concept
and ways of life (wherein the elements of similarity are more
than those of disparity and which is the largest fundamental
factor in keeping them together as an Umtnah despite being
scattered all over the surfaoe of the earth) is a positive proof of
tho fact that this society was established on a Sunnah and that
tradition has continued without interruption throughout these
long centuries. There is no ' 'missing link" for which we may
have to search in darkness.

The second historical fact which is equally .potent is that
the Muslims have, in every age, after the death of the Holy
Prophet, been endeavouring consistently to ascertain what
exactly his established Sunnah is, and whether any novel factor
ibid<a) was entering into their system of life through some
forged means. They neither were nor could afford to be careless
aboat investigating and ascertaining the Sunnah because it had
the status of law for them, it formed the basis of judicial deci. ' .
sions in their law-courts, and all their affairs, were being
managed in accordance with it. The means of this research
and the results thereof have been* bequeathed to us from
generation to generation, from the time of the first Islamic
Caliphate right up to our own times, and the labours of each
generation have been fully preserved. If one understands these

Legislation and Ijtihad in Islam 83

two historical facts fully and properly and then makes a scien-
tific study of the means by which Sunnah is to be ascertained,
he will never fall a prey to any misgiving that he is faced with
some insoluble puzzle.

(iv) There is no doubt that there have been numerous
differences in the matter of ascertaining and establishing the
Sunnah and such differences can also arise in future. But then
similar differences have occurred, and many indeed will ocour in
future, even in the matter of interpreting a good many rules
and injunctions of the Holy Qur'an. If suoh differences cannot
form an argument for giving up the Qur'an why should they be
made an excuse for giving up the Sunnah 1 The principle has been
accepted in the past (and even now there is no alternative but
to accept it) that whoever puts forward anything as the in-
junction of the Qur'an or the injunction of the Sunnah should
produce his arguments in support of his claim. If his argument
is sound, it will be acoepted by the learned men of the Ummah
or at loast by a large section of them and anything which would
be devoid of convincing argument will itself fizzle out and will
not be able to gain any ground. This is the principle on the
basis of whioh millions of Muslims in various parts of the world
have agreed on a particular juristio' school of thought and large
blocs of their populations have established their social system
on the strength of a particular interpretation of the Qur'anio
injunctions and- a particular set of the proved Sunnah.

%. The second criticism that has been offered about my
paper is that there is contradiction in it. A certain oritio has
sought to point out that on the one hand I have stated that no
one has the authority to change the clear and positive injunc-
tions of the Qur'an and Sunnah, and on the other I have said
that in exceptional conditions and circumstances Ijtihad can be
utilised to ascertain the situations justifying deviations from
these injunctions to suit the exigencies of the time. I have not
been able to appreciate the nature of the alleged contradiction.
Every law in the world makes provision for exceptions from the
general rules in abnormal and extraordinary situations. In the

84 Tie Islamic Law and Constitution

Qur'an also there are numerous examples of such concessions
and from these the jurists have deduced the principles whioh
have to be borne in mind in regulating the limits and occasions,
for the concessions, e.g., the dictum 'necessities make certain
inhibitions legal' ; or that 'difficulties attract concessions*.

3. The third criticism has been extended to all those who
have mentioned some conditions for Ijtihad in their discourse
and as J am also one of them, it is incumbent on me to answer
it. I would respectfully submit that the conditions mentioned
by me may be studied over again and then the particular condi-
tion which is sought to be annulled should be pin-pointed. Is it
desired to rule out the condition that those undertaking Ijtihad
should be sincerely desirous of following the dictates of the
Sharif ah and not wanted to overstep its limits 1 Or the condi-
tion that they should be conversant with the language of the
Qur'an and the Sunnah ? Or the condition that they should
have made suoh a deep study of the Qur'an and the Sunnah as
would enable them to fully understand the system of the
Shari'aht Or that they should be cognizant of the contributions
made by the past MujtahidinX Or the condition that they should
be conversant with the problems and affairs of the world * Or
again that they should not be persons of bad conduct and devoid
of Islamic moral standards ? Whichever of these conditions is
considered to be unnecessary by the critic should be specified
precisely. To say that in the whole Islamic world not more than
ten or twelve persons can be found who fulfil these conditions
and come up to this standard, is, in my view, expressing a very
poor opinion about the Muslims of the whole world. Perhaps

w

even our opponents do not consider us' to be so degraded as to
think that we Muslims of the whole world cannot produce
more than ten or twelve persons possessing such qualifications.
Nevertheless, if anyone wishes to dash the door of Ijtihad wide
open for every Tom, Dick and Harry, qualified or unqualified for
the job, he may do so. But I shouM like to know how he will
be able to make the Muslim public swallow the results of Ijtihad
thus undertaken by men who are devoid of good conduct and

Legislation and Ijtikad in Islam

85

sound learning and whose motives and sincerity is looked upon
as doubtful and questionable 3 Can tlio Jjfihad performed by
such people ovor win the support, confidence and loyalty oP the
people % And if it cannot, as it is bound to, then of what value
would it bo for ns* and the posterity 1

in

IJTIHAD, IJMA' AND SHtlRA

Outline :

It seems that the people art going to the opposite extremes in
dealing with the nature and scope of legislation in Islam. Some say
thai there is no scope for legislation in Islam, Law has been revealed
by God and His Prophet and the Muslims are left only to follow the
law in the prescribed form. Some others hold that there is unlimited
scope for free legislation in Islam and they say that the rulers are
entitled even to change or make amends in the forma of - worship
{Ibadaat) determined by the Holy Prophet. For instance, they
ptrmit them to change the form of the. prayer, of the fast and the like.

"Please let us know what is the. real seopc of legislation in
Islam and what form can legislation take in an Islamic State.
Please also let us know what is the legal position of the fwrsonal
and consultative verdicts of the right -guided Caliphs and of the

opinions of the legists of the past Also throw some light on the
concepts of Ijma' and Shura.

Answer : #

1. In Islam, there is no scope for legislation in the field of
worships. Their forms have been laid and cannot be changed
or amended. But in the field of individual and social affairs
{Mu'amalat) there is a limited scope for legislation in matters
about which the Qur'an and Sunuah are silent.

The basic principle which holds good in Islamic law is that
in respect of worships, do what has been prescribed and do not
innovate ; while in respect of ttio general affairs of life, follow
that what has been commended, avoid that what has been

forbidden, and where the Law-giver has not given any guidance

Tte Islamic Law and Constitution

you ara free to act on your own vision and decide accordingly.
Shatibi in his book Al-Vlimm states this principle in the
following words :

"The rule for worships is a little different from the one

for general affairs of life. In general affairs the law is
that where the sovereign is silent, the people are free
to act on their own vision. This is the field of
permissibles, Bat contrary to this, in respect of matters
of worship and prayer no such thing can be adopted
which has no basis in the SKari'ah. For Hbadaat are
directly related to the clear command and the will of
God. The reason for this distinction is that in the
general worldly matters we ooreelves may, with the
help of our own intellect, discover the right path, but
intellect cannot guide us in the realm of worship. It

cannot tell us how to get nearest to the Lord".*
2. In the realm of the general affairs of life (Mu'amalat)
legislation can be made in four fields, viz :

(t) Interpretation, i.e., the ascertainment of the intent and
the meaning of the naes (a Qur'anic verse or established
tradition) in respect of matters about which a command
in the nature of order or forbiddance is available from
the Law-giver.

(ii) Analogy. It consists in applying to a certain case
about which no specific guidance is provided, a command
which has been given by the Law-giver for a similar or
liko case. This is done by discovering the reason or
the effective cause (illah) of a certain commandment
and to apply it to cases where the same effeotive cause
is present.

(m) Inference and Ijtikad. This is the application of the
general principles of the Shari'dk to the ordinary,
minor and day-to-day problems and an endeavour to
formulate, on the basis of suggestions, indications or

1. Shatibi, Al-Ptiaam, Vol. II, p. 115 (M&tba' Mustafa Muhammad, Cairo).

Leginlaiion and Ijtikad in Islam

87

implications of tho injunctions of the SKari'ah, an
overall view of life as the Lawgiver would like it to bo.
(iv) New Legislation. To formulate, in respect of those
problems about which the Law -giver has provided no
guidance, now laws which are in conformity with tho
ultimate objective of Islam, and are capable of mefeting
the real needs of the people and thus are expedient
and are not repugnant to the spirit, temperament and
the overall system of Islam. Muslim legists have called
this 'Ma/taleh Mursalah' and 'hlihaan'. By mamleh
. mursalah are meant 'all those expediences which have
been left to our own choice and nothing has boon pros-
cribed either way 1 . Istihsan, on the other hand is, in a
sense, a concept of equity, wherein although a certain
commandment is arrived at through analogy (Q it/as).
bat because of greater and wider expediences admissible
in Islam, the dictate of expediency is given preference

over the apparent inference through analogy,
3, The concepts of interpretation, analogy and inference do
not need any further elucidation, but those of masaleh mursalah
and istihsan do need some explanation. Shatibi has discussed
these problems in a masterly way. 1 He proves with incontrovert-
ible arguments that legislation under masaleh mursalah does not
amount to totally independent and unfettered legislation. There

are certain conditions which must be fulfilled and they are :

{a) The legislation so made should bo in conformity with

the objectives oi the Shari'ah and not repugnant to

them in any way.
(£>) That it should be intelligible and acceptable to the .

people when presented before them. 2
(c) That it should be made to fulfil any real and genuine

need, or to remove any genuine difficulty*

1, So© Shatibi, AlPtitom, op. cit. *

% This means that it should not be contrary to tho general notions of

reasons as accepted by th^ Muslim society— Editor,
3, Shatibi, AUrHmm, Vol. II, pj>. 110-14,

88 Tht Mamie Law and Constitution

Shatibi also discusses the principle of istihmn in detail.
According to him, istihsan consist* in the rejection of Qiyas and
the acceptance of the dictate of equity and expediency in a case
where an inference from Qiyas leads to a situation which involves
in the eyes of the jurist, any suoh tangible inconvenience,
discomfort or loss which the Skari'ah wants to avoid, is against
the express good of the people or is repugnant to an admissible
custom. Thus in case of iMksan, the apparent dictate of Qiyas
can be rejected only if there is a genuine case of equity and
there are strong arguments to support and establish it.i

4. The opinion, fatua, or research of a legist or jurist, how-
ever high, in respect of the above discussed four fields, will at
best be only an expert opinion or a research conclusion, and will
enjoy as much weight and respect as is commensurate with the
strength of the argument and the academic position of the legist.
But such opinion will not amount to LAW. To give it the
status of law it is essential that the legislative council of an
Islamic State, consisting, as it must, of the men of authority
and learning, should enact that interpretation, Qiyas, inference
ijtikad, istiksan or istislah into LAW, through its ijma 1 (consen-
sus) or majority decision.2 I would like to substantiate this
point by some examples from the period of Khilafat € -Ra*hidah.
{i) The Qur'an has prohibited the drinking of liquor, but
no spocifio punishment has been prescribed for the
offence in the Book. The Holy Prophet imparted
different punishments to different offenders — eaoh
suiting the specific case in which it was awarded. As
such, he did not prescribe any specific punishment
(ha&d) for this offence. Abu Bakr and 'Umar gave the
punishment of forty stripes to the offender but they
too did not make any Jaw to that effect. During the
reign of 'Uthman, when the number of offenders
increased, the problem was presented before the
Maj lis-i-SKura. In the meeting of this council, *Ali

1- Shutibi, Al-I'tUam,., pp. 118-19, *

2. So© also Chapter No. V, Firtt Principle* of an Mimic Stole.

Legislation and JjUhad in Islam

89

made, a brief but impressive speech and suggested that
eighty stripes be laid as punishment for the crime.
They unanimously adopted this suggestion and through
this ijma* the decision became law. 1
(it) It was enacted during the KhilafaUt-Rashidah that a
worker or manufacturer was responsible for the com-
modity he had been given to work uppn, and if that
commodity was destroyed while it wap with him', he
would have to make good the loss! For instance, if
some cloth has been given to a tailor or a piece of gold
to a goldsmith and the commodity is destroyed while in
his possession, he will have to make good the loss. This
decision too was made on the plea made by 'Ali. He
argued that although, on the face of it, the worker or
the manufacturer does not seem to be responsible for
the loss which is not the result of his own negligence,
but if there is no such law of vicarious liability, the
workers will normally become negligent towards the
properties of others and this would involve a greater

national loss. Thus it is expediential to hold him
responsible for the goods given to him. This law, too,

was made through tjma'. 2

(lit) l Umar judicially decided that when in a murder more

than one person were involved, Qisa* should be derived

from all the accomplices. Malik and Shafe'i have

adopted this position. Bui the decision of 1 Umar has

not been regarded as a part of the law, for it was a

judicial verdict, and was not enacted into law by an

ijma* or the majority of the Shura*
(%v) The question arose that : If a person whose where-
abouts were not known and whose wife had, with the
permission of the court, contracted a second marriage,
appears, which of the two husbands will have

1. Shatibi, AUVtUam, Vol, It, p, 101.

2. IMA, Vol. II, p. 102,

3. Ibid,. II,

90 The Islamic Law and Constitution

preferential right upon the wife 1 Khulafa-e-Rashidin
gave quite different verdicts in such oases. But none
of the decisions enjoys the status of law, for the
problem was never presented before the $hura and no
ijma 1 was ever arrived at o» the same. 1
5, The above discussion clearly shows that the position
given to the judicial verdicts in the legal system of Islam is quite
different from the one given to them in the English law. In the
English law the verdicts of the Judiciary are precedents and
amount to law as such. But in Islam the decision of a judge,
whioh involves a certain interpretation of a nass is the result
of a. Qiyas or an Ijtihad, will definitely be enforced in the case it
deals with, but it will not become an integral part of the law
as such. Similarly, a judge too is not bound by his own earlier

judgments. He oan later on give a different decision in a similar *
case, provided he hat change^ his views on the subject and has

realised that his earlier view was not correct.

6- After the period of the Khilafat-eRashidah, the institu- '
tion of Shura disintegrated. During the later period different
legists and jurists formulated their corpus juirs. Thes codes of
fiqh began to enjoy semi legal status for the simple reason that
the overwhelming majority of the people of different regions had
voluntarily accepted the fiqh of a certain Imam. For instance,
Iraq and {eastern provinces adopted the fiqh of Abu Hanifa,
Spain and North Africa, of Malik, Egypt, of skafe'i, etc. But
the mere popularity of a certain fiqh in a certain region does not
impart to it the status of law in the real sense of the word. If
a certain fiqh has become law, it has become so only if a state
has adopted it as its law, and not otherwise.

There has been some differences of opinion as to the exaot
definition of ijma*. According to Shqpi, ijma 1 is "a complete
consensus of all the learned on a certain point of law". Accord-
ing to him, there should not be a single opinion against the
consensus. Ibn Jar it, AUTabari and Abu Bahr Al-Razi regard
even a majority decision as ijma'. -The position of Ahmad ibn

U Shatibi, AUVtiaam, Vol II, p, 126,

Legislation and Ijtikad in Islam 91

Hanbal is i hat when he says "we know of no opposition to this
view" that means that he regards that decision as ijma'*

All are agreed that ijma* is a final authority. This means
that when the ijma 1 has been arrived at on a cetain interpreta-
tion of a it a** or on a certain ijtihai, Qiyas or expediential
legislation, then such un ijma* is binding on all and mnst be
followed. Differences arise only a* to the question whether there
has been an ijma' on a certain legal point or not ? No one
challenges the authority of ijma* as such. The controversy hovers
round the point : whether it has b*>*n arrived at or not f

As far as the period of the KkUnfa-fi-ttaAidah i* concerned,
there is no difficulty in finding out the i jmu arrired at in that
period. The institution of Shura was there and all the decisions
made through consensus or majority verdict are enshrined in the
traditions. Suoh decisions can be depended upon as of the
unimpeachable authority. But as to the later period, when the
institution of Shura disintegrated and when there was no proper
machinery for the achievement of the consensu*, it became very
difficult to know whether there had been an ijma? on a certain
point or not. That is why the ijma* of the Kkilafut-c-Ra&hidah
is indisputably accepted. But when anyone olaiins that there
has been an ijma' on a point in any later period, then all the]
scholars do not accept the claim. In our own opinioJfcyVn« can.

be found out only for the period in which the politioaPsystem
of Islam has been in operation : without this, it is not possible
to ascertain decisively the existence of an ijma*.

There is a common misconception that Shafe*i, Ahmad ibn
Hanbal and some others do not believe in the existence of ijma*.
This misconception is the product of a failure to appreciate the
above-mentioned position. When a person claimed that there
had been an ijma' on a certain point and did not produce any
proof of such an ijma 1 , these people refused to accept that
claim. Thus they did not dispute the authority of ijma' as such ;
they only disputed the occurrence of ijma' on that specific issue.

Shaft* i has discussed this point in sufficient detail. In his

92

Th* Mamie Law and Constitution

book Jami al-'Tlm be says that it has now become impossible to
ascertain all the opinions of the 'Utama on minor and detailed
problems because the world of Islam has spread far and wide,
the 1 Vlama have dispersed and the close organisation of the
community has shattered. In such conditions it is wrong to
claim any ijma 1 on points of detail. But as to the basic
principles and the major problems, it can be said that there
has been ijma 1 on them, for instance, there has been ijma* on
the timings of the five prayers, or the conditions of fasting etc.
In the words of Ibn Taimiya :

"Ijma* means, that all the 'Ulama of the Ummah have
agreed upon a certain point. And when it is established
that there has been a consensus of the entire Ummah
on a certain legal point, then it is not rightful for any
person to refuse to aooept that. This is so because the
entire Ummah cannot have consensus on error. But
there are many problems about which people think
that there is ijma* on them, while in fact there is none.
Rather in some cases even the opposite view is correct
and is upheld". 1
The above discussion clearly shows that the ijma' and the
majority decision of the Ummah on a certain interpretation of
na$s or on a certain qiyas, ijtihad or expediential legislation do
constitute law and are deemed to be authoritative in Shari'ah.

I i

If such a law has been enacted by the men of learning and
authority in the world of Islam, it is binding on all the Muslims
of the world and if it has been enacted by those of any one
country or region, then it will hold good for them alone.

4

1. Taimiya, Patawa, Vol. I, p. 406. MatbV Kurdist&n-al-Ilrai&h, Cairo,
IS26 A,H,

Chapter 3

How to Introduce Islamic
Law in Pakistan ?

WHENEVER there is a discussion on Islamic Law,
one of the most important questions that is passed is,
How will it be introduced? And this question is,
indeed, a . very important one. A changeover to Islamic
Law cannot he made overnight. The prohlem in . Ives
many a tricky complication. And it is the dm., of
the scholars and the administrators to give their be
thought to the problem and suggest and adopt
practical steps to introduce the . Islamic Law in a
systematic and scientific way. Maulana Maududi
discussed the problems involved in the introduction ot
Islamic Law in Pakistan in a speech delivered on 19th
February, 1948 in the Law College, Lahore, and also
gave some practical suggestions for its introduction
in Pakistan. The English translation of that speech is
presented in the following ohapter. —Editor.

HOW TO INTRODUCE
ISLAMIC LAW IN PAKISTAN ?

IN my previous discourse* I hud dealt with the spirit and the
fundamental precepts of Islamic Law and our duties and
obligations in this regard. I had also replied to the objections
lhat are generally put forward about the introduction of Islamic
Law in modern times and to the criticisms about its efficacy as
» legal system. That address of mine was of an introductory
nature. Now I propose to discuss this problem at greater length
and will explain the course that should, in my view, be adopted
for the enforcement of Islamic Law in our country .

I would like, at the very outset, to dispel some of the doubts
ft nd misgivings which crowd into the minds of . considerable
section of our people as soon as they think of the enforcement
of Islamic Law. Many people on hearing of our intention to
eatablish an Islamic State in Pakistan, which would of oourse,
be governed by Islamic Law, begin to think that the very
it Pakistan is deolard an Islamic State, all the present
-ill be repealed and replaced by corresponding Islamic
Laws without a minute's delay and all in one stroke.

This misunderstanding is not confined to the common folk
only. It is found among persons of religious understanding as
well. They seem to think the day we resolve to mould Pakistan
into an Islamic State, it should also be the day of the praotical
fulfilment of that resolution. Suoh people overlook the fact that
the legal code of a oountry does not exist in a vacuum. Rather,
it is deeply interlinked with the ethical norms and the social,
economic and political order of the country. They do not realise
that so long as the social set-up of a oountry does not alter
radically, the legal system can undergo but little change. They
also forget that vital changes have been wrought in our lives
during the period of the British rule and that the entire mode
of our living has been de-Islamisod, It has been divested of its

^^s^sl^^s^r ^ — ^ ^^^"^^w^^

1. the ref«enoe Chapter 1, «T«ie Islamic Law\— Editor.

mllM

How to Introduce

Pakistan

m

Islamic character and is being governed by principle* derived
from sources other than Islam. Consequently, what is required
j- T»i««ia« t.hA nntire system of our life. And this, m

mormous amount of

its tarn, ie an uphill task and demands an ei

these fervent but ignorant lovers of Islam take th task of
revolutionising the collective life of a nation very lightly and

« 11 Wence thev indulge in daydreaming and crying
superficially. Hence they jna g , g q{

for the moon. But such an outlooK serves «ui, .
hose who are trying their best to prevent the «tabhsment of
an Islamic State and provides them with ground, to scoff at the
very idea of this venture.

GRADUAL CHANGE

If we really wish to see our Islamic ideals translated into
reality we should not overlook the basic law of nature that a 1

b fand far-reaching changes in the collective life of peop
come about gradually. The more sudden a change «, the more
short livea it generally turns out to be. For a permanent
Tang! Itls nelary that it should be free from extremist b.as -
and unbalanced approach. .

The best example of this gradual change » the revo ut on
brought about by the Holy Prophet (peace be upon bw) fat
Hla Ononis acquainted, even superficially wit i *h.
history of the Prophet's achievements, knows that he did not

enforcl the entire body of Islamic Law all at once. of
Lt, the society was prepared gradually or their
He sterted his efforts for reform by inculcating behef in th
fandlentals of Islam, the unity of God the lafcrf*
Death and the institution of Prophet-hood and by xnduc ng th
people to live a life of righteousness and piety. Those who
!l p ted this message were twined by him to beheve an an
p aoL the islamic way of life. When this was achieved •
.- considerable degree, the Prophet (peace be upon him) went a

&6

The Mamie Law and Constitution

step further and established an Islamic State in Madinah with
the object of making the entire life of the country conform to
tho Islamic pattern. After gaining politioal power and taking
the reins of administration in his hands, he (peaoe be on him)
started an all-out campaign for the regeneration and the
reconstruction of the collective life of the community of Islamic
concepts of life : an end for which he had been heretofore
endeavouring by means of preaohing and persuasion only. He
(peace be on him) introduced a new system of education — a
system whioh, in keeping with the conditions obtaining in his

time, consisted mainly of verbal instruction and went on with
the exeoution of a well-chalked -out and a systematic plan for an
overall reform in the moral, sooial, cultural and economic life
of the corrupt society of his day. These efforts progressively
brought about a ra^ioal change in the mental outlook and the
practical oonduot of the people. In commensuration with the
progress made in this field the Prophet (peaoe be on him)
uprooted the practices of the "Age of Ignorance"' one by one and

substituted for them new, moderate and humane principles of
human conduct. Along with these reforms, the Prophet
proceeded with the gradual enforcement of the legal code of
Islam, and the result was that within a period of nine years,
the life of the country was Islamised in all its aspects — sooial,
politioal, economic and legal.

A oareful study of the Qur'an and the Hadith reveals the
gradual and marvellously effective course adopted by the Prophet.
We find that the Islamic Law of Inheritance was enforced
in the third year after the migration (hijrah). The gradual
enforcement of the rules and regulations regarding marriage and
divorce was completed in the year 7 A.H. The enforcement of
criminal code was spread over a period of many years and got
its final touches in 8 A.H. An atmosphere congenial for the
prohibition of wine was created gradually and its absolute
prohibition was effected in the 8th A.H. Similarly, though the
evils of interest were stressed earl? in Meccan life (i.e., before
Ethe Holy Prophet migrated to Madiaah) yet it was not practi-

Sow to Introduce islamic Law in Pakistan t 9?

oally prohibited until 9 A.H. when the whole economic structure
of the Muslim society had undergone a complete transformation
and the new social order had been firmly established.

All this can be very well compared to the labour of an
architect who, while erecting a building, proceeds gradually
with his plan. He begins with gathering an adequate number
of masons and other labourers and proouring the required
material ; he then levels the ground, lays the foundation and
raises the walls brick by brick. The roof is laid when the walls
are ready and thus after continuous and extensive hard labour,
he completes the construction of the building.

The British rule over this sub-continent is another such
instance from our recent past. As we all know very well, the
Britishers did not commit the mistake of changing the entire
setup of Indian life including its legal structure all at once.
The Islamic Shari'ah was the law of the land before their
arrival, and it was no easy job to wipe out the current traditions
of living and to bring about a thorough Westernization of the
entire life. Consequently, for a considerable period of time
after the establishment of the British rule, the Islamic SKari'ah
remained in vogue in the country. The courts had the Qadis
to decide the oases in accordance with the Islamic Shari'ah
which was not confined only to the personal affairs of the
Muslims but constituted the law of the land. The Britishors
tolerated all that and took about a hundred years to replace

*

the Shari'ah by their own code of law.

9 All this was done very gradually and systematically. First
of all the Britishers strained the people who could serve their
purpose by effecting a change in the educational system of the
country. Skilfully they propagated their ideas, reinforced their
propaganda with official power and thus revolutionised the
mental attitue of the people. Thev also changed the economic
order prevailing in the sub-oontinent. All this resulted in a
gradual change in the collective life of the country followed by
a gradual replacement of old laws by new ones,

88 The Islamic Law and Comtitution

Coming to our own times and our own country, Pakistan,
if we wish to promulgate Islamic Law here it would mean
nothing short of demolishing the entire structure erected by our
British masters and the erection of a new one in its place. It is
obvious that this cannot be achieved by just an official proclama-
tion or a parliamentary bill, because it is a stupendous task and
demands a good deal of hard and systematic work according to a
well thought-out and all-embracing programme. For instance,
we need a thorough reorientation of our educational system.
At present we find two kinds of educational institutions running
simultaneously in our country, viz. , the old religious 'madrasah**
and the modern secular schools, colleges and universities. None
of them can produce people needed to run a modern Islamic
State. The old-fashioned schools are steeped in conservatism to
such an extent that they have lost all touoh with the modern
world. Their education has lost all contact with the practical
problems of life and has thus become barren and lifeless. It
cannot, therefore, produce people who might be able to serve,
for instance, as judges and magistrates of a progressive modern
state. As for our modern secular institutions! they produce
people who are bereft of even a rudimentary knowledge of Islam
and its laws. Moreover, we can hardly find such persons among
them whose mentality has not been affected by the poisonous
content and the thoroughly materialistic bias of modern secular
eduoation.

There is yet another difficulty. The lslamio Law has not
been in force for the last one century or so. Consequently, our
Legal Code has become stagnant and lags behind the time, while
our urgent need is to bring it in level with the latest develop*
merits of the modern age. Obviously, this would require a

considerable amount of hard work.

There is, however, an even bigger hurdle. Living under the
domination of an alien power and deprived of the Islamic
influences for a long time, the pattern of our moral, cultural,

social, economic and political life has undergone a radical change
and is at present far removed from the Islamic ideals. Under

Bow to liUroduce litamic Law in Pakistan t 99

such circumstances it cannot be fruitful, even if it were possible,
to change the legal structure of the country all at once because

then the general pattern of life and the legal structure will be
poles apart, and the legal change will have to suffer the fate of a
sapling planted in an uncongenial soil, facing a hostile environ-
ment. It is, therefore, inevitable that the required reform should
be gradual and the changes in the laws should be effected in such
a manner as to balance favourably the change in the moral,
educational, social, cultural and political life of the nation.

But making a pretext of this reasonable consideration for
gradation in change, some people plead for the establishment
of a secular state for the time being. They argue that when
an Islamic atmosphere is created, an Islamic state will auto-
matically come into existence and the enforcement of Islamic
laws wffl follow in its nutural course. Such statements are ab-
solutely fallacious and misleading. The question is : who will
build up the required Islamic atmosphere 1 Can an irreligious
state, with Westernized people at its helm, do this job 1 Will
the persons well-versed only in running bars and night olubs and
movie houses spend their energies in constructing and maintain-
ing moseques ? If the answer is in the affirmative, it will indeed
be a unique experiment of its kind in human history : ungodli-
ness fostering godliness so that it might ultimately be supplant-
ed by the latter !

If they have any other interpretation, they may kindly
elucidate as to who will create the "Islamic atmosphere" and
what will be the resources at his command ? And, during this
interim period, what will be the purpose of the secular state 1
What end will its organs serve ?

If we reflect for a moment and consider the examples quot-
ed above to support that principle of gradual ohange in the
transformation of collective life, whether Islamic or un-Islamic,
can be brought into existence ooly when the goal is unmistak-
ably clear and a definite plan is chalked out for the achieve*
ment of that goal.

The Islamic revolution brought about by the Holy Prophet

100

The Islamic Law and Constitution

(peace be on him) was the outcome of years of toil years

spent in producing men suitable for the cause and in changing
the outlook of the people by propagating the teachings of Islam.
And above all, the entire administrative machinery of the small
city state of Madinah was utilized for the regeneration of the
society and the creation of a new civilisation. Thus was the
ground prepared for the enforcement of the Islamic laws.

The Britishers could sucoeed in bringing about their cherish-
ed changes in India only because the reins of government were
in their hands and because they knew the proper method of
transforming the collective life of a people. They had a definite
goal and a clear plan. They worked incessantly for it and at
last succeeded in establishing a legal system which was in con-
formity with their ideology and oulture. But still some people
are under the delusion that a building can be erected without
architects or by those who are neither competent nor willing to
do the job 1

ii

THE CORRECT PROCEDURE

No reasonable person can deny that Pakistan was demand-
ed and established in the name of Islam and for the sake of the
revival of its glory. It is thus potentially an Islamic ideological
state. And this being so, it must be recognized as an incontro-
vertible fact that it is the state which Bhould play a positive
role in the establishment of the Islamio system of life. When
the state is our own and we have placed at its disposal all the
resources of our country, there is no reason why we should go
elsewhere to fetch the architects of the Islamic order.

First Step-If what has been stated above is correct, then

the first step towards our destination would be to Muslimise

(convert to Islam) the state which is still based on and working

according to the same secular bases on which it did during the

British period. The practical shape for the achievement of this

end would be that our Constituent Assembly should unequivo-
cally declare :

Row to Introduce Islamic Law in Pakistan ? 101

■

(i) That the sovereignty in Pakistan belong* to God
Almighty alone and that the Government of Pakistan
shall administer the country as His agent.

(ii) That the basio law of the land is the Islamic Short* ah
which has come to us through our Prophet Muhammad
(peace be on him).

(Hi) That all those existing laws which may be in conflict
with the Shari'ah shall in due course bo repealed or
brought into conformity with the basic law and no law
which may be in any way repugnant to Shari'ah shall

■ ■

be enacted in future.
{iv) That the State, in exercising its powers, shall not be
competent to transgress the limits laid down by Islam.
This declaration will have a far-reaching effect on every
department ~of our national life. For instance, after such a decla-
ration, our voters will become aware of the purpose for which
they have to eleot their representatives. Howsoever deficient
the general mass of our voters may be in respect of formal edu-
cation, they certainly possess the sense to decide as to what type
of people can be relied upon for a certain purpose. We have
never seen them committing the folly of seeking the services of
a medical practitioner to plead a legal case for them or to
approach a lawyer for medical treatment 1 They do know, if not
fully at least to a considerable extent, as to who among their
fellow-countrymen, are God-feaiing and virtuous and who are
completely given to worldliness, salf-interest and vice. People
cho9se persons acoording to the ends in view. Up till now they
never had in view the object of electing representatives for
running an Islamic system of government. Therefore, they had
no need of finding out the people suitable for this purpose. The
country had a system of government devoid of religious ideals
and moral values and it required a particular type of people to
administer it. People, therefore, ha*d the same type of men in
view and voted them to power. Now, if we frame an Islamic
constitution and the people are confronted with the question of
- ' electing those who are capable of efficiently running the Islamic

/, 1M The lalamic Law and Constitution

system of government, they will naturally keep Islamic stan-
dards before themselves. Their selection may not be an ideal
one, but this much is certain that they will not select the
wicked or the corrupt type or the blind imitators of the West.
They are bound to select those peraons who are both mentally
and morally equipped for the task.

Second Step—Oar next step towards the establishment of the
Islamic way of life should be the transference of the reins of
power to the people who are capable of using it effectively for
the realization of the above-mentioned objective. This will of
oourse be achieved throogh the well-known democratic procedure
of general eleotions.

Third Step-The third step will be to chalk out a compre-
hensive plan for a thorough reform of all the departments of
our national life for which all the resources of the state will
have to be utilized. Thus the eduoational system will be
reorientated in all the means of propaganda— the press, the
platform, the cinema and the radio— will be used for the purpose
of creating a new Islamic consciousness, a new healthy outlook ;
and an incessant and sjstematio effort will have to be made to
mould the sooiety and its culture into Islamio patterns.

Persons who have been incorrigibly affected by the deca-
dent, sinful and corrupt system of life can be compared to a
fibre of discordant colour which will not fit into our pattern,
luey are the lost men and are of no use from our point of view.

uoh people will have to be roplaepd everywhere by those who
can prove helpful in the task ahead.

The economic system will also have to be basically altered
and its whole structure which is built on the Hinduistic and
Western semi -feudalists and semi-capitalistio foundations, will
have to be demolished.

visionT n r re /I iatifa n '« hteou9 « rou P of People, possessing
full 1 a 7 * tate8mana fcp. fields political power and, making
use of the administrative machinery of the government
utilizes all the resources at its disposal foi the execution of a
well-conceived plan of national regeneration, the collective life

Bow to Introduce Islamic Law in Pakistan ? 103

of this country can be totally changed within a period of ten
years. And as this change cornea about gradually, the British
made laws can be amended or repealed and replaced by the

Islamic laws. This process will continue as such for some time
and ultimately all un-Islamio laws will be repealed and our
state will be governed by Islamic laws alone.

Ill

CONSTRUCTIVE WORK FOR THE
ENFORCEMENT OF ISLAMIC LAW

At this stage it seems necessary to throw some light on the
constructive work that has to be done in order to change the
existing legal system of the country and to replace it by an
Islamic one. The vast programme of reform to which I have
referred above demands an enormous amount of hard work In
almost every walk of life. After centuries of stagnation and
inertia, degeneration and mental parasitism and servitude, we
find that every aspect of our national and cultural life has been
reduced to a mess. Here I will confine myself only to the ways
and means necessary for effecting reform in the legal system
and will not deal with the measures that should be adopted for
the reform of other aspects of our national life.

I. Academy of Law

The first thing that should be done towards this direction
is the establishment of an Academy of Law which should take
stock of the entire legal literature bequeathed by our ancestors.
This academy should not only translate into our national
language all those books which are necessary for acquiring an
understanding of Islamic Jurisprudence and Law but also edit
and annotate them afresh according to modern methods of
editing so that they may become accessible to the modern
educated people and useful for our [present-day needs. As we
all know, a very great part of the literature on Islamic
Jurisprudence is still in Arabic and the modern educated of

104

fkt Islamic Law and Constitution

our people are generally not conversant with this language.
The result is that owing to inability of their approach to the
real sources and the inimical propaganda of our opponents,
they have come to harbour many a misunderstandings about
lalamio Law. These misunderstandings have in some cases
assumed such proportions that some people have .started even
saying in so many words that the entire mass of age-old
controversies, legal hair-splittings and long-drawn arguments
should be thrown into the wasto-paper basket and that we
should start work on Islamic Law all afresh. But the faot of
the matter is that the people who express such funny ideas
betray not only their lack of knowledge but also their lack of
vision and imagination. If such people earnestly and
dispassionately study the achievements of their ancestors in the
field of jurisprudence, they will shudder at their ignorance.
They will come to know that during the last thirteen centuries,
their forefathers had not been engaged in fruitless controversies :
on the contrary, they have left a very vast and priceless
treasure of knowledge and research for the posterity. They
have built for us quite a considerable portion of the edifice ;
—and what a folly it would be if, out of sheer ignorance,
we insist on demolishing what has already been built and start
constructing all anew. Even common-sense demands that we
should make the best use of what we have inherited from our
forefathers and spend our energies only on further expansion
according to our present needs. Otherwise, if every generation
of ours were to reduce the labours of its predecssors to naught
and start anew, we would never be able to make any progress
worth the name.

I have already mentioned in my previous discourse 1 that
during the past centuries the various Muslim states which
flourished over a large part of the then civilized world, had
Islamic Fiqh as their 'law of the*land\ Muslims of those days
were not "barbarians". Bather, they had a highly advanced

t. See Chapter 1, Th* Islamic L*w-EM<it %

Bow to Inttoduct Islamic Law in Pakistan t 105

culture and their scholars of religious law had applied Islamio
prinoiples to all the problems of their civilization. It were
these experts of Islamic Fiqh who held important positions as
magistrates, judges and chief justices and their judgements and
decrees hare produced a large volume of legal precedents.
Indeed, these experts have made prodigious contribution to every
branch of law. Their works evoke one's highest admiration
not only when they discuss problems of Civil and Criminal Law
but also w,hen they deal with the problems of Constitutional and
International Law. A perusal of their writings and judgements
gives us an idea of their deep insight in, and their intelligent **
and masterly grasp of all these problems. What is really
needed now is that a body of scholars should be deputed to take
a detailed a to ok of all the writings left by our anoestors and to
re-edit them in the form of modern books of Law.

There are some books which must necessarily be translated
into the national language :

(1) The following three books on Ahkam al-Qur'an (the
Legal Injunctions of the Qur'an) :

(i) AVJassas,
{ii) Ibn al-'Arabl and
(Hi) Qurtubi.

Their study will train our students to deduce injunctions
and laws from the Qur'an. These books present a commentary
on and an explanation of all the Quranio verses relating to legal
commandments and also contain all the relevant details from
ahadith (Propbetio Traditions) and the sayings and practices of
the Companions of the Holy Prophet (peace be on him).
Besides these, they give us the various 'deductions made by the
great jurists of the past along with their arguments in favour
of those deductions.

(2) Next to these three books on Quranic injunctions comes
the great treasure of the commentaries on the books of Badith.
In these books, apart from commandments and laws, we find
the best material on legal precedents and their explanations.
From this treasure the following books should particuarly be

106 The- Islamic Lav> and Constitution

translated :

(*) On aUBukhari : 1 Aini and Fath al-Bari.
(ii) On Muslim : Nauwvi and Fath ahMuthim.
(Hi) On Abu Da'ud : 'Aunul-Ma'bud and Badhl aUMajhud.
{iv) On Muwalta : Shah Wali-ulidh's Musawwa and Musaffa,
and Avjaz al-Masalik by a contemporary Indian scholar.

(v) On Muniaqa al-Akhbar : Shaukam's Nail aUA'wtar.

(vi) On Mishkat : Atfaliq~u&~Sabeth.

(vii) On 'Jlm-al-Athar ; Ma'ani al-Athar by Imam Tahawi.
(3)- After this we should turn to the fundamental books of
Fiqh from which the following must particularly be translated :
(i) On Hanafi Fiqh :

Al-Mabsut and Shark alrSiyar al-Rabir by Imam

Sarakhei
Bada'V al-Sana'i 1 by Kashani ;
Ibn Humam'a Fath al-Qadir ;
Hidayah and •
Fa tawa* i 'A lam gtri .
(it) On Shafe'i Fiqh : . ,

Kitab al-Umm ;

SAarft al-Muhadh&kab and

Jlfu^n* ahMuhtaj.

(Hi) On Maliki ^tg* :

Al Mudawwanah and any other important book that

might be selected by scholars,

(iv) OnHanbali Fiqh:

, AUMnghni by Ibn Qudamah ;

(v) On Zahiri Fiqh :
AhMuhalla by Ibn Hazm ;

(vi) On Madhahib-e-Arba'ah (the Four Schools of Thought);
Bidayat al-Mujtahid by Ibn Rushd and fit*
Madhahib al-Arba'ah compiled by Egyptian scholars.

(vii) On certain special problems :

.Kitab al-Kharaj by Imam Abu Yusuf ;

JR-Kharaj by Yahya Ibn Adam ;

Kitab aUAmwal by Abu 'Ubaid al-Qasim ;

How t& Introduce Islamic Law in Pakistan t 107

Ahkdm al-Wakf by Hilal Ibn Yafaya and,
Ahkam al-Mitwarith by Dimyati.
(4) We must also translate some important books oa
Jurisprudence and on the philosophy of law, so that our legal
experts may acquire a deep insight into and gain a correct
understanding of the spirit of Islamic Fiqh. In my opinion the
following books should be selected for this purpose :
(t) Usui aUAhkam by Ibn'Hazm.
(u) Al-Ihkam luUsul aUAhkam by Amidi.
(tn) Usui al-Fiqh by Khadari.

(iv) AUMuwafaqat by Imam Shatibi.
(v) riam al-Muwaqqi'in by Ibn al-Qayyim.

(vi) Bujjat Allah aUBolighah by Shah Waliullah.

As I hare already said, our need is not only to translate
these books, but also to-arrange their contents on the pattern
of modern books of Law. New headings will have to be set t
scattered discussions on legal problems will have to be gathered
and collected under relevant headings, and indices will have to
be prepared. Unless we take paina to effect these improvements
those books will not become fully useful for our present-day
needs. The method of compiling a book in olden days was
quite different from that of the present age. Moreover, in those
days such detailed classification of Law as exists today had not
yet come into existence. For instance, our jurists had no
separate branch of Constitutional Law or International Law.
No doubt, they dealt with these problems but under headings
like Jihad (Laws of War and Peace), Kharaj {Revenue and
Finance), Marriage and Inheritance. Likewise, they had no
separate branch of Criminal Law. They dealt with such
problems under the headings of Eudud (Punishments), Jinayat
(Crimes) and Diyai (fine-money or blood-money). They were
used to discuss a subject at different places, therefore material
on a certain subject often scattered under so many headings.
They also did not discuss Economics and Finance as separate
subjects. They severally dealt with these subjects under headings
like : 'the book of sales 1 , 'the book of land-cultivation' etc.

108 *The Islamic Law and Constitution

- 1 Itt the same way, they did »ot use modern terms like La*fr 6f
Evidence, Civil Procedure Code, Penal Code, Criminal Procedure
Code elc. Questions relating to these aspects of law were dis-
cussed by them under headjngs like 'the etiquette for the judges',
♦the book of claims',- 'the 'book of agreements', and so on. Now.
i Ahese books are merely translated they cannot be of much use
. to us. It is, therefore, imperative that persons having knowl-
edge of modern legal syetems should work on all such materials
and rearrange them to fulfil the modern requirements. If this is
considered to be a very laborious and lengthy task, we should at
least prepare oomplete and exhaustive indices of all these works
and should also compile detailed bibliographies for the guidanoe
of a student of law. These should cover all the branohes of
modern Law so that one may not experience any difficulty in
finding out material on a required topic.
II. The Codification of Law •

The next important step in this connection is to appoint a
body of Islamio scholars and experts of modern legal thought
who should be entrusted with the task of codification of the
Islamio Law section and clauae-wise according to the modern
patterns. In my discourse on the Islamic Law* I have already
explained, at length that, from aoademio and Islamic points of
view, it is not binding to accept any and every saying or
expression of opirrion by an authority on Fiqh, or anything and
everything written in a book of Fiqh. This is so because
everything contained in a book of Fiqh does not constitute
Islatoio Law. Jt is only the following four things that constitute

■

Islamic Law : —

(i) An explicit commandment of God laid down in the

Qur'an ; or .
(it) An explanation or elucidation of a Quranic command-
ment or an explicit order or prohibition from the Holy
Prophet (peace be on him) ; or
\iii). An interpretation, inference, Qiyas (analogy), ijtihad t or

I. See Chapter ^Editor. .

Bow to Introduce islamic Law in Pakistan t 109

istihsan (juristic preference) on which there has been a
consensus (ijma*) of the umrnah ; or it may be a
majority decision of the 'ulama which has been accepted
by an overwhelming majority of our own people ; or
(iff) An ijma* or a majority decision of the nature discussed
in (Hi) above arrived at by our own men of learning
and authority.

My proposal is that a body of experts of Islamic laws
should compile the first three categories of laws and command-
ments into a Code. Additions to it will continue to be made
as fresh laws are framed by general consent or majority decision.
If and when such an exhaustive code has. been compiled, it ^ill
be the basic book of Law and all the current books of Fiqh
serve as commentaries for this book. Thus the enforcement of
Islamic Law by our courts and its teaching in our Law Colleges
will be greatly facilitated.

III. Reform of Legal Education

The third important measure will be to ohange the prevail-
ing system of legal education. It is imperative that both the
courses of study and the methods of teaching should be
radically changed and overhauled so that our law colleges may
prepare the students academically as well as morally for the
enforcement of Islamic Law in the country.

The type of education which is being imparted in our law
colleges at present is worthless from our point of view. Students
who receive this education not only fail to develop any insight
in the Islamic Law r but their mentality and mode of thought
also become anything but Islamic. Moreover, the atmosphere
of these colleges is such that the students are deprived of the
opportunity of imbibing those moral qualities which are needed
to run an Islamic state. Consequently unless we change this
state of affairs and radically reorient the curricula and the
methods of teaching to suit our need of producing legal experts
of a high mental and moral calibre who are well-versed in
Islamic as well as modern legal thought, we oannot have good

ilO ' ■ The Islamic Law and Constitution

lawyers, magistrates and judges for the courts of an Islamic
state.

For this purpose I would like to make certain suggestions
for the consideration of the scholars and the educationists :

(1) The first and basic reform is to deoide that the knowl-
edge of Arabic shall be a pre-requisite for admission to a law
college. This knowledge of Arabic should be such as to enable
the students to study the Qur'an, the Hadith and the Fiqh.
Though we desire to make our own language the medium of
instruction in Law as muoh as in other subjects and want all the
relevant books to be translated, nevertheless the necessity of a
fair knowledge of the Arabic language is immense. An insight
into Islamic Law oannot be gained unless one knows the language
of the Qur'an, and that of the Prophet (peace be on htm), In
the initial stages we shall no doubt experience difficulties in
obtaining Arabio knowing students for law colleges. We might
even have to start Arabio classes in law oolleges themselves for
the first few years and might also have to increase the period of
education by one year but later on* when Arabio becomes
compulsory in our educational system, Arabio knowing studedts
for our law colleges will be easily available.

(2) Along with the teaohing of -Arabic, the students must
• also be made to study the Qur'an and the Hadith before beginn-
ing their education in Law so that they become capable of
understanding the spirit and the broad outlines of the system of
life envisaged by Islam. Our theological institutions have been
following since long the wrong method of beginning their educa-
tion with Fiqh. In these institutions, the followers of the
various schools of thought teach Hadith according to the view
point of their particular school. One or two longer chapters
of the Qur'an are included in the curriculum just as a sacred
relic and even the study of these chapters, only the literary
beauties of the Qur'an are stressed. The result is that although
graduates from these institutions are well aware of many
particulars and details of the Mamie law, they are not fully
conversant with the real spirit, the ideals and the overall

Bow to Ittfroduce Islamic Law in Pakistan ? Ill

system of Islam, which these laws seek to safeguard.
Sometimes they do not even know the relation between Din
and Shari'ah, on the one hand and between the Skari'ah
and the problems of Fiqh on the other i The result of
this type of education is that most of these people believe
as if the minute details of law and the doctrine stressed
by or peculiar to their own school of thought alone is the real
essence of religion. And it is this error that has created
sectarian controversies and bigotry among the Muslims. Again,
as a result of this some of the basic objectives of the Shari ( ah
have sometimes been overlooked in applying the rules of Fiqh
to the problems of everyday life. We wish this situation to
come to an end. A student must acquire an understanding of
Islam as a system through a study of the Qur'an and the Hadith
before he begins the study of Fiqh.

We will, no doubt, be confronted with difficulties for the
first few years because we will not get graduates with good
knowledge of the Qur'an and Hadith and hence we might have
to start classes of the Qar'an and Hadith as wefl in the law
colleges. Bat gradually, as our general educational reforms
will bear fruit, we wiil be able to lay down the condition that
only those students who had Tafeir (Interpretation of the
Qur'an) and Hadith in degree classes as their optional subjects
will be eligible for admission to law oolleges or else they will
have to spend an extra year to study these subjects.

(3) The enmoula of law colleges must necessarily include
the following three subjects :

(o) Principles of Islamic Jurisprudence ;

(6) History of Islamic Jurisprudence ; and

(c) Fiqh, i.e., an unprejudiced study of all the major
schools of Fiqh.

Without mastering these three subjects, the students can
neither gam^complete understanding of Fiqh nor can thev
develop those qualities of sound reasoning which are a pre-

i- For a discussion of the d^ r6Me between i>, n and SHaH-oh see Abul
Aftmad, Iilanuo Pubhcatjons Ltd,. 1060, pp. 162-65.

iii

The hlamic Law and Constitution

requisite for becoming good lawyers and jurists. They cannot
also become experts in law, capable of framing new rules and
regulations for our progressive state and capable of employing
the correct modes of interpretation and analogous reasoning.
Without that they oannot pronounoe judgments of the standard,
clarity, vision, and depth evinced by the legists of the past.
And if the judgments of our modern legists lack in these respects,
they will never be able to command respect and wholesome
approval of the people. Not only that, without fully understand-
ing the principles of their own law, they cannot apply them to
the new problems which will be cropping up every day and will
be oreating altogether new situations. It is only the history of
Fiqk which reveals the evolution of Islamic Law and also points
out the lines along whioh this law oan develop in future. Con-
sequently, unless the students of law are fully conversant with
all the important contributions of the scholars of the past, they
oannot benefit from other schools of Fiqh in oases where they
are unable to solve a certain problem with the help of the
approach and literature of some particular school. This ia
essential also because they should as a rule make use of this
guidanoe and get assistance from the workB of the past before
making an independent effort and pronouncing a final jndgment.
It is for these reasons that I consider the inclusion of the above-
mentioned three subjeota essential in the list of compulsory
subjects in the ourricula of our law colleges.

(4) Along with reforming the ourrioula of legal education we
will also have to give due importance to the moral training and
oharaotor-building of the students. From the Islamic point of
view, the law colleges should not serve as factories for producing
unconscientious lawyers, unscrupulous magistrates and unjust
judges ; on the contrary, they should produce lawyers and
jurists of high moral stature, of unimpeachable integrity and
strength of charaoter. They should be the living emblems of

honesty, fairness and justice. %

Of all professions, the dispensation of justice requires the
highest degree of piety, the aoutcst sense of responsibility and

Sow to Introduce Islamic Law in Pakistan lit

■

the greatest measure of the fear of God. Graduates from our
law colleges must, therefor©, be persons fit to take the place of
such luminaries of our history like Qadi Shurayh, Imam Abu
Hanifah, Imam Malik, Imam Ahmad Ibn Hanbai, Imam Shafe'i
and Qadi Abu Yusuf. These oolleges must produce persons of
strong and. dependable character who, while deciding a case in
the light of the Shari?ah, have their eyes fixed on God and are
not at all swayed by greed, fear, personal interest or individul
likes and dislikes', and who may not deviate from what they
believe and know to be right out of any consideration
whatsoever.

IV. Reform of Judicial Systt

In order to prepare the ground for the enforcement of
Islamic law, we will have to introduce many reforms in our
Judicial system also. Leading aside other less important
faotors, I will mention only two of them which are most
important from the Islamic point of view.

(1) The first problem which deserves attention is the legal
profession which is one of the worst and probably the greatest
banes of the present judioial system. From the moral point of
view not a Bingle argument can be put forward in its favour and,
in. the practical field, there is not a single genuine requirement
of court procedure for which a better alternative cannot be
provided for. This profession stands in such contrast with the
principles of Islam that as long as it exists, it would be extremely
difficult to enforce the Islamic law in its real spirit. Moreover,
if the same jugglery is praotised with the Law of God as is being
practised day in and day out with the man-made law, that may
not only deprive us of justice but may also rob us of our faith.
It is, therefore, imperative that this profession in its present
form is gradually abolished.

Theoretically speaking, the task of the lawyer is to help the
oourt in understanding the law and applying it to the case under
trial. In principle, such a need cannot be denied. It oan also
be accepted that two experts of law may hold different opinions

1U

The Islamic Law and Constitution

regarding,the same case. It ia also possible that in the opinion
of one of the experts the case of a certain party may be stronger
than that of the other and vice versa. Thus, in order to arrive at
a sound judgment, it may be useful for the court to know and
hear the arguments put forward on behalf of both the parties.
But the question ia : Are these ends achieved in actual practice
and does this profession really meet this just requirement t

Actually, the situation is very d liferent. A, person possessing
legal knowledge and insight sells his services in the market.
Such a person is always ready to think out and produce legal
points in favour of the highest bidder, irrespective of the merits
of the case. Thus a lawyer is not at all concerned whether his
client is in the wrong, whether he has committed a crime or is
innocent, whether he wishes to get what is rightfully due to him
or wants to encroach upon the rights of others. Again, a lawyer
has also no oonoern with the spirit and the real objeot of the law
itself and whether, in that sense, the case of his client is just or
unjust. What concerns him is that a certain person has paid him
his fees for pleading the oase on his behalf. Consequently, he
prepares the case and gives it a legal shape. He hides its weaker
points; plays up the favourable ones and picks out from the facts
of the oase and from the evidence only such points as streng-
then the side taken by him. He also tries to influence and confuse
the witnesses so that the aotual facts of the case— if they go
against his client— remain in the dark or at least become
doubtful. It is the supposed duty of a lawyer to put forward
only such interpretations of the laws as serve his client's
purpose and to strengthen it by referring to legal precedents.
Thus, he tries, in a way, to mislead the judge and circumvent the
process of justice. All this is done only to extract from the
judge a judgment whicK i%*n favour of his client, and not the
one which is desirable from the point of view of justioe.

A lawyer does not worry at all whether a criminal is being

person is^>eing convicted, whether a
person loses his right or usurps someone else's. It is not his
business to support truth and uphold a just cause. He is not

Bow to Introduce Islamic Law in Pakistan , 115

there to have justice done ; his sole aim is money ! For him
anyone prepared to pay the highest amount is always in the"
right. Can a legal profession of sush a nature be deolared right
and just if we hare even the least regard for Islam ? Can any
man with moral values, a healthy conscience and the fear of
«od, take such an awful responsibility upon himself as to have
a wronged man deprived of justice and to see that the wrongdoer
continues to enjoy the fruit of his wickedness ? And can the
advice of such legal experts who are paid to present » One-sided
picture be of any help to the court in deciding a oase jvttly 1
Who can believe that the difference of opinion in the
interpretation of the lawyers "hired" by opposing parties, can
reasonably be honest and genuine ? Surely, both of them would
have put forward just the contrary arguments with the same
vehemence, had their olients been exohanged between them.

It is, therefore, apparent that incalculable disservioe has
been done to the cause of law and justice by making law a pro-
lesaion. It has given premium to the violation rather than the
obsorvance of Jaw. It has corroded the entire collective life and
has made over politios extremely dirty. In fact it is during the
lawyer's educational life itself that the seeds of an immoral
attitude are sown, College debates make them habituated to
speak against their convictions: The real qualification of a good
debator is considered to be his oapaoity to speak with the same
vigour and eloquence both for and against a proposition/
regardless of his personal views. The edge of his proficiency in
speaking and arguing against truth is further sharpened during
the course of his praotice in law and he becomes perfeot in using
his mind and his tongue against the dictates of his conscience.
Then, this malady does not stop here. When these people, with
this moth-eaten character, enter the arena of public life' and
politics, they poison the academic, cultural and political life, of
the whole nation.

Islam is in no way prepared to tolerate such an ugly state of
affairs, and there is no place within its legal and judicial strud-
turo for this profession, as it is prevalent now-a-days ; for in its

118

The Islamic Law and Constitution

present form it is quite contrary to the spirit and traditions of
Islam. Muslims have ruled almost half the then-known world
during the last ten or twelve centuries but one cannot find even
a trace of the legal profession in their judicial system. On the
contrary, the muftis of the past had always had independent
means of livelihood and used to render the service of issuing
edicts and helping the courts in the elucidation of points of law,
gratis. In view of the inoreased need of our time, we can per-
manently engage the required number of legal experts including
specialists in different branohes of Law in cities, towns and
'villages; and give them reasonable salaries from the government
exchequer. But every effort should be made to keep them
immune from any obligation to any of the contending parties.
The approach to them by any of the parties to a case should be
prohibited and none of them should be allowed to render any
"service" to them in any form, thus keeping them all the time
completely immune from every type of pressure or allurement.
Even the government should not have the right of putting any
pressure on them, just as it is not entitled to influence the
opinion of the judges. The courts can refer cases to them and
solicit their opinion. If there is any difference of opinion, they
can be asked to appear in oourts and argue their respective view-
points. During the proceedings of a case, besides the cross-
examination of the witnesses by the oourt, these legal experts
should also be entitled to extract facts from them which throw
any light on the case. This will really help the courts in the
correct interpretation and application of law. Honest differences
of opinion among legal experts will still be there. But his will
help in solving many a knotty legal problem : this will also save
much of the time that is wasted due to the cleverly made-up
Cases and false evidence. And, above all, this wll go a long
way in effectively checking litigation which is so rampant in our
society, mostly due to this legal profession.

There is, however, one important gap that we shall have to
fill up in the absence of the lawyer*. This concerns the prepara-
tion of the cases for presentation to the courts. This is a genuine

Eow to Introduce Mamie Late in Pakida* 117

necessity of litigant public and without a proper machinery for
this purpose they will not only them selves experience much
inconvenience bnt also waste muoh of the valuable time of our
courts and confuse them by putting up their eases in an irregular
and incomplete form. A solution of this problem is that we
may revive the old institution of "Afvkhtari ,£ which existed in
the past and still continues in a deteriorated form in some parts
of our country. Our law colleges should hold subsidiary classes
to teach the procedural law to the people of average education
and make them oonversant with the practical aspects of the
judicial business. The duty of sach persons would be to give a
legal shape to a case bo that it may be properly presented in a

court of lUw. . They would also instruct the parties regarding
judioiai prooedure at the various stages of a case- These people
may be allowed to oharge fees for their services. This will not
lead to the evils that we find in the present-day legal profession.

(2) In order to make the country's judioiai system conform
to the Islamic standards, another important reform is needed,
and that is the abolition of the court-fee. This is a pernicious
innovation and we Muslims were not even acquainted with it
before the domination of the Western political thought and
values over us. It is foreign to the very spirit of Islam that our
courts of law, instead of rendering the service of dispensing
justice, should be tnrned into 'shops of law' whose doors are
closed for the persons who are not in a position to pay the price
of their services. ThiB state of affairs is reminiscent of the
British regime and now that foreign rule has come to an end, we
feel that this evil should also go. We want to see our courts
functioning on Islamic concepts, according to which dispensing
of justice is not a 'business' but a religious duty of every
Muslim and of their state most of all-a duty for which no fees

should be charged.

One might say that if the court-fee is abolished, how will

the expenses incurred on the v judiciary be met ? I wish to
mention the following two points in this regard :

Firetfy, imder an Islamio dispensation the present heavy

118

Th$ Islamic Law and OonstUtUton

judioial establishment, rendered indispensable by the current
state of affairs, will no longer be necessary. Abolition of the
lawyer s profession will also play its part in reducing litigation.
Moreover, the duration of theoases will be considerably reduced.
Social, economic and moral reforms will go a Jong way in curtail-
ing the number of cases. Adequate training of police and |ail
officials and reforms in these departments will also indirectly
©ontrfbute to reducing the number of Crimea. Thus we will not
be in need of as many judges and magistrates and as heavy a
judicial establishment as we need at present, consequently, there
will be quite a remarkable decrease in the expenditure of our
judioial department. Besides that, in an Islamic state the scales
of pay also will not be the same as they are today.

After all these reforms and other curtailments of expenditure
and the burden of expenditure of the judiciary on our national
exchequer will become much lighter and, instead of imposing it
on those who need and seek justice, we can distribute it over
those persons who go to the courts to serve their unjust ends or
those who are greatly benefited by them. For instance, we can
fine such persons who try to evade summons [or file fictitious
suits. The fine imposed upon criminals can also be used for the
same purpose. Besides this, a person who gets a decree from a
court worth more than a certain amount of money may be taxed
according to a certain fixed rate. If, in spite of all this, the
judioial department has a deficit balance of expenditure, the
deficit oan be met from the national exchequer, because to
dispense justice among the people is, as has been said earlier,

one of the basic obligations of an Islamic state. If the exchequer
bears the burden of police, education and health services, why
should it not finance the administration of justice t

The above are a few suggestions which, I think, must be put
into praotioe in order to make the enforcement of Islamic law
possible in this country. I request the scholars and those who
have practical experience in legal and judioial matters to thrash
out these suggestions and try to supplement them wherever need
be. In the meantime I hope that this explanation of mine will

How to Introduce Islamic Law in Pakistan ll9

to some extent, satisfy those who entertain the wrong notion
that the enforcement of Islamic law is not possible at present,
and will make them understand that this work can be done. It
will also enable them to -have an idea of the ways and means of
doing this important task. But the enforcement of the Islamic
law requires primarily an urge— an irrepressible urge — to do the
job. What wo need is a group of people — a leadership—which
is imbued with the spirit of Islam and which is determined to
establish Islam, oome what may. We all know that if a
building has to be constructed, the objeotive cannot be achieved
if the architects who know the design of the building and have
the will to construct it and possess the requisite resources, are
not available. On the other hand, if they are available, anything
can be built — be it a temple or a mosqne.

POLITICAL
TUTIONAL

IS

art n

AND CONSTI-
THOUGHT OF

/

Chapter 4

Political Theory of Islam

WHAT is Islam and how does it approach the
political problem ! What is its political philosophy ?
What are the Quranic foundations of the Islamic
state ! What are its basic characteristics t its
fundamental principles t its ultimate objectives 1
— -These questions had begun to agitate the minds of
the Muslim India at the very outest of its contemporary
political awakening. In tho tumultuous years of the
pre nineteen forty era, Muslims were in a bewildered
state of mind. They had not clear-cut destination
before them. Emotionally they were all for Islam but
they lacked a clear idea of the Islamic political order.
They were, to borrow the words of Tennyson, like ;

An infant crying in the night

An infant orying for the light

And with no language but a cry.

Maulana Maududi tried to present the Islamic
scheme of life to the Muslim India which was orying
for it. In this connection he also wrote a paper on
the 'Political Theory of Islam' which was read at a
meeting of the Inter- Collegiate Muslim Brotherhood,
Lahore in October 1939. The paper was published
in the form of a pamphlet. We are presenting here
its English rendering. {The paper has also been
revised in accordance with he instructions of the
Wthor, —Editor.

POLITICAL THEORY OF ISLAM

I

'}J\J'lTK certain people it has become a sort of fashion to
somehow identify Islam with one or the other system of
life in vogue at the time. So at this time also there are people
who say that Islam is a democracy, and by this they mean to
imply that there is no difference between Islam and the demo-
cracy as in vogue in the West. Some others suggest that Com-
munism is but the latest and revised version of Islam and it is in
the fitness of things that Muslims imitate the Communist experi-
ment of Soviet Russia. Still tome others whisper that Islam has
elements of dictatorship in it and we should revive the colt of
"obedience to the Amir" (the leader). All these people, in their
misinformed and misguided zeal to serve what they hold to be
the cause of Islam, are always at great pains to prove that
Islam contains within itself the elements of all types>f contem-
porary social and politioal thought and action. Most of the
people who indulge in this prattle have no clear idea of the
Islamic way of life. They have never made nor try to make a
systematic study of the Islamic political order— the place and
nature of democracy, social justice, and equality in it. Instead

they behave like the proverbial blind men who gave altogether
contradictory description of an elephant because one had been
able to touch only its tail, the other its legs, the third its belly
and the fourth its ears only. Or perhaps they look upon

■

Islam as an orphan when sole hope for survival lies in winning
the patronage and the sheltering care of some dominant creed.
That is why some people have begun to present apologies on
Islam's behalf. As a matter of fact this attitude emerges
from an inferiority complex, from* the belief that we as Muslims
can earn no honour or respect unless we are able to show that

oijr religion resembles the modern creeds and it is in agreement

Political Theory of Islam

125

with most of the contemporary ideologies. These people have
done a great disservioe to Islam ; they have reduced the political
theory of Islam to a puzzle, a hotchpotch. They have turned
Islam into a juggler's bag out of which can be produced anything
that holds a demand ! Such is the intellectual plight in which
we are engulfed. Perhaps it is a result of this sorry state of
affairs that some pople have even begun to say that Islam has
no political or economic system of its own and anything oa^fit

into its scheme.

In these circumstances it has become essential that a oareful
study of the political theory of Islam Bhould be made in a scien-
tific way, with a view to grasp its real meaning, nature, purpose
and significance. Such a systematic study alone can put an end

to this confusion of thought and silence those who out of ignor-
ance proclaim that there is nothing like Islamic political theory,
Islamic social order and Islamic culture. I hope it will also
bring to the world groping in darkness the light that it urgently
needs, although it is not yet completely conscious of such a need.

ii

FUNDAMENTALS OF ISLAM

i It should be clearly understood in the very beginning that
Islam is not a jumble of unrelated ideas and incoherent modes
of conduct. It is rather a well ordered system, a consistent
whole, resting on a definite set of clear-out postulates. Its
major tenets as well as detailed rules of oonduct are all derived
from and logically connected with its basic principles. All the
rules and regulations that Islam has laid down for the different
spheres of human life are in their essence and spirit a reflexion,
an extension and corollary of its first principles. The various
phases of Islamic life and activity flow from these fundamental
postulates exactly as the plant sprouts forth from its seed. And
just as even though the tree may spread in all directions, all its
leaves and branches remain firmly attached to the roots and
derive sustenance from them and it is always the seed and the

126 The Islamic Law and Constitution

root which determine the nature and form of the tree, similar is
the case with Islam. Its entire scheme of life also flows from
its basic postulates. Therefore whatever aspect of the Islamic
ideoJogy one may like to study, he must, first of all, go to the
roots and look to the fundamental principles. Then and then
alone he can have a really correot and satisfactory understanding
of the ideology and its specific injunctions and a real
appreciation of its spirit and nature.

The Mission of the Prophets

The mission of a prophet is to propagate Islam, disseminate
the teachings of Allah and establish the divine guidance in this
world of flesh and bones. This was the mission of all the divinoly
inspired prophets who appeared in succession ever since the
man's habitation on earth up to the advent of Muhammad
(peace be upon him). In fact the mission of all the prophets
was one and the same— the preaching of Islam. And Prophet
Muhammad (peace be upon him) was the last of their line.
With him prophethood oame to an end and to him was revealed
the final code of human guidance, in all its completeness. All
the piophets conveyed to the mankind the guidance which was
revealed to them and asked it to acknowledge the absolute
sovereignty of CJpd and to render unalloyed obedienoe to Him.
This was the mission which each one of the prophets was
assigned to perform.

At first sight this mission appears to be very simple and
innocuous. But if you probe a little deeper and examine the
full significance and the logical and practical implications of
Divine Sovereignty and the concept of Tawheed (the Unity of
Godhead), you will soon realise that the matter is not so simple
as it appears on the- surface, and that there must be something
revolutionary in a doctrine which roused such bitter opposition
and sustained hostility on the part of the non-believers. What
strikes us most in the long history $f the prophets is that when-
ever these servants of God proclaimed that "there is no ilah
(object of worship) except Allah", all the forces of evil made

Political Theory of hlant

12?

common cause to challenge them. If it were merely a call to
bow uotfn in the places of worship before one God with perfect
freedom outside these sacred preoincts to owe allegiance to and
carry out the will of the powers that be, it would have been the
height of folly on the part of the ruling classes to suppress the
religious liberties of its loyal subjects for a minor matter which
had no bearing on their attitude towards the established
government. Let us therefore try to explore the real point of
dispute between the Prophets and their opponents.

There are many verses of the Qur'an which make it
absolutely clear that the non-believers and polytheists too, who
opposed the prophets, did not deny the existence of God nor
that He was the sole Creator of heavens and earth and maa, nor
that the whole mechanism of nature operated in accordance with
His commands, nor that it is He Who pours down the rain,
drives the winds and controls the sun, the moon, the earth and
everything else. Says the Qur'an :

• ■ ■

"Say: unto whom (belongeth) the earth and whosoever
is therein, if ye have knowledge 1 They will say : unto
Allah. Say : Will ye not then remember ? Say ; Who is
Lord of the seven heavens, and Lord of the Tremendous-
Throne 1 They will say ; Unto Allah (all that belongeth).
Say : Will ye not then keep duty (unto Him) 1 (Say) : In
Whose hands is the dominion over all things and He pro-

tecfceth, while against Him there is no protection, if ye
have knowledge ? They will say : Unto Allah (all that

belongeth). Say : How then are ye bewitched 1 ' ?

(23:84-89).

"And if you were to ask them : Who created the*
heavens and the earth, and constrained the sun and the*
moon (to their appointed task) t they would say ; Allah-.

How then are they turned away ! And if thou wert

to ask them : Who oauseth water to come down from the
sky, and therewith reviveth the earth after its death ?
they verily would my : Allah". (29 : 61-63)

"And if thau4ffft£%l them who created them, they will

The talamic Law and Constitution

surely say : Allah. How then are they turned away". .

(43:87)

These verses make it abundantly clear that the dispute was
not about the existence of God or Hie being the Creator and
Lord of heavens and earth. All men acknowledged these truths.
Henoe there was no question of there being any dispute on what
was already admitted on all hands. The question arises, then
what was it that gave rise to the tremendous opposition that
every prophet without any exception had to face when he made
this call ? The Qur'an states that the whole dispute centered
round the uncompromising demand of the prophets that the
non-believers should recognise as their rabb (Lord) and ilah
. (Master and Law -giver) also the very Being whom they
acknowledged as their Creator and that they should assign this
position to none else. But the people were not prepared to
accept this demand oF the prophet.

Let us now try to find out the real oause of the refusal and
what the terms ilah and rabb mean. Furthermore, why did the
prophet insist that Allah alone should be recognised and
acknowledged as ilah and rabb and why did the whole world
range itself against them upon this apparently simple demand *

The Arabic word ilah stands for ma' bud (».«., the object of
worship) which in itself is derived from the word 'abd, meaning
a servant or slave. The relationship which exists between man
and God is that of 'the worshipper* and 'the worshipped 1 . Man
is to offer 'ibadat to God and is to live like His *abd.

And 'ibadat does not merely mean ritual or any specific
form of prayer. It means a life of continuous servioe and
unremitting obedience like the life of a slave in relation to his
Lord. To wait upon a person in service, to fold one's hands in
reverence to him, to bow down one's head in acknowledgement
of hie elevated position, to oneself in obedience to his

commands, to carry out his orders and cheerfully submit to all
ibhe toil and discipline involved therein, to humble oneself in the
riresenoe of the master, to offer what he demands, to obey what
e commands, to set one's face steadily against the cause of his

Political Theory of Islam

129

displeasure, and to sacrifice even one's life when such is his
pleasure — these are the real implications of the term 'ibadat
(worship or service) and a man's true ma' bud (object of worship)
is he whom he worships in this manner.

And what is the meaning of the word 'rabb' % In Arabic it
literally means "one who nourishes and sustains and regulates
and perfects". Sinoe the moral consciousness of man requires
that one who nourishes, sustains and provides for us has a
superior claim on our allegiance, the word rabb is also used in
the sense of master or owner. For this reason the Arabic
equivalent for the owner of property is rabb al-mal and for the
owner of a house, rabb al-dar. A person's 'rabb 9 is one whom he
looks upon as his nourisher and patron ; from whom he expects
favour and obligations ; to whom he looks for honour
advancement and peaoe ; whose displeasure he considers to be
prejudicial to his life and happiness ; whom he declares to be
his lord and master ; and lastly, whom he follows and obeys. 1

Keeping in view the real meaning of these two words 'ilah*
and 'rabb 1 it can be easily found who is it that may rightfully
claim to be man's Hah and Rabb and who can, therefore, demand
that he should be served, obeyed and worshipped. Trees, stones,
riven, animals, the sun, the moon and the stars, none of them
can venture to lay claim to this position in relation to man. It
is only man who can, and does, claim godhood in relation to his
fellow-beings. The desire for godhood can take root only in
man's mind. It is only man's excessive lust for power and desire
for exploitation that prompts him to project himself on other
people as a god and extract their obedienoe ; force them to bow
down before him in reverential awe, and make them instruments
of his self -aggrandisement. The pleasure of posing as a god is
more enchanting and appealing than anything else that man has
yet been able to discover. Whosver possesses power or wealth
or cleverness or any^ther superior faculty, develops a strong

1. For detailed discussion over taa meaning and concept of ilah and rabb
•ee : Abul A*la Maududi, QuSmn Ki Char Bunyadi IstUahen (Four
Basic Terms oi" the Qur'an) Islamic Publications, Ltd.* Lahore.

130

The Islamic Law and Constitution

inclination to outstep hia natural and proper limits, to extend
his area of influence and thrust his godhood upon such of his
fellow-men as are comparatively feeble, poor, weak-minded or
deficient in any manner.

Such aspirants to godhood are of two kinds and accordingly
they adopt two different lines of action. There ia a type of
people who are comparatively bold or who possess adequate
means of forcing their claim on those over whom they wield
power and who consequently make a direct claim to godhood.
For instance, there was Pharaoh who was so intoxicated with
power and so proud of his empire that he proclaimed to the
inhabitants of Egypt : "Ana rabbakum al*a'l*" {I am your
highest Lord).

and "Ma'alimtu Uthum min ilahin ghairi" (I do not know
of any other 'ilah* for you but myself).

When Prophet Moses approached him with a demand for tho
liberation of his people and told him that he too should surrender
himself to the Lord of the Universe, Pharaoh replied that
since he had the power to cast him into tho prison-house, Moses
shonld rather acknowledge him as 'ilah. 1 Similarly, there was
another king who had an argument with Prophet Abraham.
Ponder carefully over the words in which the Qur'an has
narrated this episode It says :

"Bethink thee of him who had an argument with
Abraham about his Lord because Allah had given him the
kingdom ; how, when Abraham laid : My Lord is He Who
giveth life and causeth death, he answered : I give life
and cause death. Abraham said : Lo I Allah oauseth the
sun to rise in the East, so do thou cause it to come up from
the West. Thus was the disbeliever king flabbergasted".

(2 : 268)

Why was the unbeliever king flabbergasted ? Not because
he denied the existence of God. He did believe that God was
the ruler of the universe and that He Aloxfb made the sun rise

1, Al-Qu/an ; 26 j 29 ; 28 : 33 j 79 t 24.

Political Theory of lelam

131

and set. The question at issue was not the dominion over the
Bun and the moon and the universe but that of the allegiance of
the people ; not that who should be regarded as controlling the
forces of nature, but that who should have the right to claim the
obedience of men. He did not put forth the claim that he was
Allah ; what he actually demanded was that no objection should
be cast over the absoluteness of his authority over his subjects.
His authority as the ruler should not be challenged. This claim
was based on the fact that he held the reins of government:
he could do whatever he liked with the property or the
lives of his people ; he had absolute power to punish his subjects
with death or to spare them. He, therefore, demanded from
Abraham that the latter should recognise him as his master,
serve him and do his bidding. But when Abrah^n declared
that he would obey, serve and accept no one but the Lord of

the universe, the king was bewildered and shocked and did not
know how to bring such a person under his control.

This claim to godhood which Pharaoh and Nimrod had put
forth was by no means peculiar to them. Rulers all over the
world in ages past and present have advanced such claims. In
Iran the words 'Khuda* (Master) and 'Khudawand* (Lord) were
oomraonly employed in relation to the king and all the
ceremonies indicative of servility were performed before him,
in spite of the fact that no Iranian looked upon the king as the
lord of the unirerse, that is to say God, nor did the king
represent himself as such. Similarly, the ruling dynasties in
India claimed descent from the gods, the solar and lunar
dynasties are well known down to this day. The 'raja 9 was
called l an-data' (the provider of sustenance) and people
prostrated themselves before him although he made no pretence
of being God and his subjects never recognised him as suoh.
Much the same was, and still is, the state of affairs in all other
countries.

Words synonymous with 'ildh' and 'rabb* are still used in
direct reference to rulers of many places. Even where this is

■

not customary, the attitude of the people towards their rulers

132

The Islamic Law and Constitution

is similar to what is implied by these two words. It is not
necessary for a man who claims godhood that be should openly
declare himself to be an 'ilaV or 'rabb'. All persons who
exercise unqualified dominion over a group of men, who impose
their will upon others, who make them their t instruments and
seek to control their destinies in the same manner as Pharaoh
and Nimrod did in the hey day of their power, are essentially
claimants to godhood, though the olaim maybe tacit, veiled and
unexpressed. And those who serve and obey them admit their
godhood even if they do not say so by word of mouth.

In contrast to these people who direotly seek recognition of
their godhood there is another type of men who do not possess
the necessary means or strength to get themselves accepted as
Hlah' or 'rabb*. But they are resourceful and ounning enough to
cast a spell over the minds and hearts of the common people.
By the use of sinister methods, they invest some spirit, god,
idol, tomb, plant, or tree with the character of l ilaV and dupe
the common people successfully into believing that these objects
are capable of doing them harm and bringing them good : that
they can provide for their needs, answer their prayers and afford
them shelter and protection from evils which beset them all
around. They tell them in effect : 'If you do not seek their
pleasure and approval, they will involve you in famines, epide-
mics and afflictions. But if you approach them in the proper
way and solicit their help they will come to your aid. We know
the methods by which they can be propitiated and their pleasure
can be secured. We alone can show you the means of access to
these deities. Therefore, acknowledge our superiority, seek our
pleasure and entrust to our charge .your life, wealth, and
honour 1 . Many stupid persons are caught in thi*£r.ap and thus,
under cover of false gods, is established the godhftotf and
supremaoy of prieBts and shrine keepers.

There are some others belonging to the same category who
employ the arts of soothsaying, ^astrology, fortune-telling
charms, incantations etc- There are yet others who, while
owing aJlogiancc to God, also assert that one cannot gain direct

Political Theory of Mam

133

access to God, They claim that they are the intermediaries
through whom one should approach his threshold ; that all cere-

w

monials should be performed through their mediation ; and that
all religious rites from one's birth to death can be performed
only at their hands. There are still others who proclaim them-
selves to be the bearers of the Book of God and yet they de-
liberately keep the common people ignorant oi its meaning and
contents. Constituting themselves into mouthpieces of God,
they start dictating others what is lawful (halal) and what is nn-
lawful (haram). In this way their word becomes law and they
force people to obey their own commands instead of those of
God. This is the source of Brahmanism and Papacy whioh has
appeared under various names and in diverse forms in all parts
of the world from times immemorial down to the present day
and in oonsequenoe of which certain families, races and classes
have imposed their will and authority over large masses of men
and women.

If you were to look at the matter from this angle, you will
find that the root-cause of ail evil and mischief in the world is
the domination of man over man* be it direct or indirect. This
was the origin of all the troubles of mankind and even to this
day it remains the main cause of all the misfortunes and vices
whioh have brought untold misery on the teeming humanity.
God, of course, knows all the secrets of human nature. But the
truth of this observation has also been confirmed and brought
home to humanity by the experiences of thousands of years that
man cannot help setting up someone or other as hie 'god 1 , Hlah 9
and 'rabb\ and looking up to him for help and guidance in the
complex and baffling affairs of his life and obeying his com-
mands. This fact has been established beyond question by the
historical experience of mankind that if you do not believe in
God, some artificial god will take % His place in your thinking and
behaviour. It is even possible that instead of one real God, a
number of false gods, 'ilahs' and 'rahbs 1 may impose themselves

upon ybu.

134 The Islamic Law and Constitution

Even today man is enchained in the slavery of many a false
god. May he be in Russia or America, Italy or Yugoslavia,
England or China, he is generally under the spell of some party,
some ruler, some leader or group, some money-magnate -or the
like in such a manner that man's control over man, man's
worship of man, man's surveillance of man continue unabated.
Modern man has discarded nature-worship, bat man- worship he
still does. In fine, wherever you turn your eyes, you will find
that one nation dominates another, one class holds another in
subjection, or a political party having gained complete ascend,
ancy, constitutes itself as the arbiter of men's destiny ; or again
in some plaoes a dictator concentrates in his hands all power
and influenoe setting himself up as the lord and master of the
people- Nowhere has man been able to do without an 'ilah* 1

What are the cousequences of this domination of man by
man, of this attempt by man to play the role of divinity ? The
(Mime that would follow from a mean and incompetent person
being appointed a police commissioner or some ignorant and
narrow-minded politician being exalted to the rank of a prime
minister. For one thing, the effect of godhood is so intoxicating
that one who tastes this powerful drink oan never keep himself
under control. Even assuming that self-oontrol is possible, the
vast knowledge, the keen insight, the unquestioned impartiality
and perfect disinterestedness whioh are required for carrying out
the duties of godhood, will always remain out of the reach of
man. That is why tyranny, despotism, intemperance, unlawful
exploitation, and inequality reign supreme, whenever man's
overiordship and domination {ilahiyyat and rabubiyyat) over
man are established. The human soul is inevitably deprived of
its natural freedom ; and man's mind and heart and his inborn
faculties and aptitudes are subjected to such vexatious restric-
tions that the proper growth and development of his personality
is arrested. How truly did the Holy Prophet observe :

"God, the Almighty says : 'I created men with a
pliable nature ; then the devils came and contrived to lead
them astr&y from their faith and prohibited for them

Political Theory of Islam 135
what I had made lawful for them'."*

As I have indicated above, this ia the sole cause of all the
miseries and conflicts from which man has suffered during the
long course of human history. This is the real impediment to
his progress. This is the canker which has eaten into the vitals
of his moral, intellectual, political and economic life, destroying
all the values which alone make him human and mark him off
from animals. So it was in the remote past and so it is today.
The only remedy for this dreadful malady lies in the repudiation
and renunciation- by man of all masters and in the explioit
recognition by him of God Almighty as his sole master and lord
(ilah and rabb). There is no way to his salvation except this ; for
even if he were to become an atheist and heretio he would not be
able to shake himself free of all these masters (Hah* and rabb 8 ).

This was the radioal reformation effected from time to time
by the Prophets in the life of humanity. They aimed at the
demolition of man's supremacy over man. Their real mission
was to deliver man from this injustioe, this slavery of false
gods, this tyranny of man over man, and this exploitation of the
weak by the Btrong. Their object was to thrust baok into their
proper limits those who had over-stepped them and to raise to
the proper level those who had been forced down from it. They
endeavoured to evolve a social organisation based on human
equality in which man should be neither the slave nor the
master of his fellow-beings and in which all men should become
the servants of one real Lord. The message of all the Prophets
that came into the world was the same, namely :

"0 my people, worship Allah. There is no ilah what-
ever for you except He". (17 : 59, 75, 86 ; also 11 : 50,
61,84).

This was precisely what Noah said ; this is exactly what
Hud declared ; Salih affirmed the same truth ; Shoaib gave the
same message, and the same doctrine was repeated and confirmed
by Mo sea, Christ and by Prophet Muhammad (peace be upon

t Ai-Madani, AUttehafat al-aanyya fil-Ahadith al-Qudtiyyu, Haditfa
No. 343, Daira't al-Ma«arif, Hyderabad (Deooan), 1323 A.He

136

The Islamic Law and Constitution

them all). The laat of the Prophets, Mohammad (God's blearing
and peace be upon him) said ;

"I am only a warner, and there is no God save Allah,
the One, the Absolute Lord of the heavens and the earth
and all that is between them". (38 : 65-66)

"Lo ] Your Lord is Allah Who created the heavens
and the earth in six days, then mounted He the Throne.
He covereth the night with the day, which is in haste to
follow and hath made the sun and the moon and the stars
subservient by His command. His verily is all creation
and (His verily is the) commandment". (17 : 64)

"Such is Allah, your Lord. There is no God save
Him, the Creator. of all things, so worship Him. And He
taketh care of all things". (16 • 102)

"And they are not enjoined anything except that
they should serve Allah, keeping religion pure for Him, as
men by nator* upright". (M : 6)

"Come to a word common between us and between
you, that we shall worship none but Allah, and that we
shall ascribe no partner unto Him and that none of us
shall take others for lords beside Allah". (3 : 64)
This was the proclamation that released the human soul
from its fetters and set man's intellectual and material powers
free from the bonds of slavery that held them in subjection. It
relieved them of the burden that weighed heavily upon them and
was breaking their backs. It gave them a real charter of liberty
and freedom. The Holy Qar'an refers to this marvellous achieve-
ment of the Prophet of Islam when it says :

"And he (the Prophet) relieves them of their burden
and the chains that were around them". (7 : 157)

III

FIRST PRINCIPLE OF ISLAMIC
POLITICAL. THEORY

, The belief in the Unity and the Sovereignty of Allah is the

foundation of the social and moral system propounded by the

Political Theory of Mam

137

Prophets. It is the very starting-point of the Islamic politioal
philosophy. The basic prinoiple of Islam is that hnman beings
must, individually and collectively, surrender all rights on
overlordahip, legislation and exercising of authority over others.
No one should be allowed to pass orders or make commands in
hit own right and no one ought to accept the obligation to carry
out such commands and obey such orders. None is entitled to
make laws on his own authority and none is obliged to abide by
■ them. This right vests in Allah alone ;

"The Authority rests with none but Allah, He com-
mands you not to surrender to any one save Him. This is
the right way (of life)". (12 : 40)

"They ask : 'have we also got some authority V Say;
'all authority belongs to God alone*." (3 : 154)

"Do not say wrongly with your tongues that this is
lawful and that it unlawful". (16 : 116)

"Whoso does not establish and decide by that which
Allah hath revealed, such are disbelievers." (5 : 44)
According to this theory, sovereignty belongs to Allah, He
alone is the law-giver. No man, even if he be a prophet, has the
right to order others in Ma own righi to do or not to do certain
things. The Prophet himself is subject to God's commands :

"I do not follow anything except what is revealed to
me". (6 : 50)

Other people are required to obey the Prophet because he
enunciates not his own but God's commands :

"We sent no messenger save that he should be obeyed
ba/AUoh'ateave". (4:64)

"They are the people unto whom We gave the Scrip-
ture and Command and Prophethood". (* : 90)

"It is not (possible) for any human being unto whom
Allah has given the Scripture and the Wisdom and the
Prophethood that he should have thereafter said unto
mankind : Become slaves of me instead of Allah ; but
(what he said was) be ye fiuthful servants of the Lord".

(3:79)

138

The Islamic Law and Constitution

Thus the main characteristics of an Islamic State that can
be deduced from these express statements of the Holy Qnr'an
are aa follows

(1) No 'person, class or group, not even the entire popula-
tion of the state as a whole, can lay claim to sovereignty. God
alone is the real sovereign ; all others are merely His subjects ;

(2) God is the real law- giver and the authority of absolute
legislation vests in Him. The believers cannot resort to totally
independent legislation nor can they modify any law which God
has laid dow, even if the desire to effect suoh legislation or
change in Divine laws is unanimous and

(3) An Islamic state must, in all respects, bo founded upon
the law laid down by God through His Prophet. The govern-
ment which runs such a state will be entitled to obdienoe in its
capacity as a political agency set to enforce the laws of God
and only in so far as it aots in that eapacity. If it disregard*

the law revealed by God, its commands will not be binding on
the believers.

IV

THE ISLAMIC STATE
ITS NATURE AND CHARACTERISTICS

■

The preceding disoussion makes it quite clear that Islam,
speaking from the view-point of political philosophy, is the
very antithesis of secular Western demooraoy. The philosophi-
cal foundation of Western democracy is the sovereignty of the
people. In it, this type of absolute powers of legislation— of
the determination of values and of the norms of behaviour-
rest in the hands of the people. Law-making is their preroga-
tive and legislation must correspond to the mood and temper of
their opinion. If a particular piece of legislation is desired by
the masses, however, ill-conceived, it may be from religious and

^^^^^ ,L " ^^^^^^^^^^ ^^^^H

1. Here the absolute right of legislation is being dieouaaed. In the Ielamio
political theory thia right veats in Allah alone. As to the scope and
extent of humnn legislation providedJ>y the Shari'ah itielf pleats see
Chapter 2 'Legislation, and Ijtihad in Islam' and Chapter 6 'First
Principles of Islamic State',— Editor.

Political Theory of Islam 139

moral viewpoint, steps hare to be taken to place it on the
statute book ; if the people dislike any law and demand its
abrogation, howsoever just and rightful, it might be, it has to
be expunged forthwith. This ie not the case in Islam. On this
count, Islam has no trace of Western democracy. Islam, as al-
ready explained, altogether repudiates the philosophy of popu-
lar sovereignty and rears its polity on the foundations of the
sovereignty of God and the vicegerency {Khilafai) of man.*

A more apt name for the Islamio polity would be the
"kingddm of God" which is described in English as a "theo-
oraoy". But Islamic theocracy is something altogether different
from the theocracy of which Europe had a bitter experience
wherein a priestly olass, sharply markod off from the rest of the
population, exercises unchecked domination and enforces laws
of its own making in the name of God, thus virtually imposing
its own divinity and godhood upon the common people. 2 Such
a system of government is satanio rather than divine. Contrary
to this r the theocracy built op by Islam is not ruled by any
particular religious olass but by whole community of Muslims
including the rank and file. The entire Muslim population runs
the state in acoordanoe with the Book of God and the practice
of His Prophet. If I were permitted to coin a new term, I
would describe this system of government as a "theo-demo-
oraoy", that is to say a divine democratic government, because

1. Here it must be clearly understood that democrnoy as a 'philosophy'

and democracy as a 'form of organisation' are not the same thing. In

the form of organisation, Islam has its own system of demooraoy as is

explained in the following pages. But as a philosophy, the two

Islam and Western democracy are basioally different, rather opposed
to each other.— Bdi tor.

V

3. "Theooraoy: a form of government in which God (or a deity) ia-
reoogniftod as the king or immediate ruler, and his laws are taken as
the statute book of kingdom, these laws being usually administered
by a priestly order as his ministers and agents ; hence (loosely) a
system of government by a aaoerdotal order claiming a divine commis-
sion". Shorter Oxford Dictionary, Vol. II, Oxford, 1966, p. SliSQ.

140 The Mamie Law and Constitution

under it the Muslims hare been given a limited popular sover-
eignty tinder the suzerainty of God. The executive under this
system of government is constituted by the general will of the
Muslims who have also the right to depose it. All administra-
tive matters and all questions about which no explicit injunc-
tion is to be found in the Shari'ah are settled by the consensus
of opinion among the Muslims. Every Muslim who is capable
and qualified to give a sound opinion on matters of Islamic
law, is entitled to interpret the law of God when suoh interpre-
tation becomes necessary. In this senBe the Islamic polity is a
democracy. But as has been explained above, it is a theocracy
in the sense that where an explicit command of God or His
Prophet already exists, no Muslim leader or legislature, or any
religious soholar can form an independent judgment, not even
all the Muslims of the world put together, have any right to
make the least alteration in it.

Before proceeding further, I feel that I should pat in a
word of explanation as to why these limitations and restrictions
have been placed upon popular sovereignty in Islam, and what
is the nature of these limitations and restrictions. It may be
said that God has, in this manner, taken away the liberty of
human mind and intellect instead of safeguarding it as I was
trying to prove. My reply is that God has retained the right of
legislation in His own hand not in order to deprive man of his
natural freedom but to safeguard that very freedom. His purpose
is to save man from going astray and inviting his own ruin.

One can easily understand this point by attempting a little
analysis of the so-called Western secular democracy. It is
claimed that this democracy is founded on popular sovereignty.
But everybody knows that the people who constitute a state do
not all of them take part either in legislation or in its administ-
ration. They have to delegate their sovereignty to their elected
representatives so that the latter may make and enforce laws

on their behalf. For this purpose an electoral system is set up.
But as a divorce has been effected between politics and religion,
and as a result of this secularisation, the society and partiou-
u* «niii.inAHv active elements have ceased to attach much

Political Theory of Islam

141

or any importance to morality and ethics. And this is also a
fact that only those persons generally come to the top who can
dupe the masses by their wealth, power and deceptive^, propa-
ganda. Although these representatives come into poWer by the
votes of the common people, they soon set themselves up as an
independent authority and assume the position of overlords
{ilahs). They often make laws not in the best interest of the
people who raised them to power but to further their own
seotional and class interests. They impose their will on the
people by virtue of the authority delegated to them by those
over whom they rule. This is the situation which besets people
in England, America and in ail those countries which claim to
be the haven of secular democraoy.

Even if we overlook this aspect of the matter and admit
that in these countries laws are made according to the wishes
of the common people, it has been established by experience
that the great mass of the common people are inoapable of

perceiving their own true interests. It is the natural weakness
of man that in most of the affairs concerning his life he takes

into consideration only some one aspect of reality and loses
sight of other aspects. His judgments are usually onesided and
he is swayed by emotions and desires to such an extent that
rarely, if ever, can he judge important matters with the im-
partiality and objectivity of scientific reason. Quite often he
reject the plea of reason simply beoause it conflicts with his
passions and desires. I can dite many instances in support of
this contention but "to avoid -prolixity I shall content mysolf

with giving only one example : the Prohibition Law of
America. It had been rationally and logically established that
drinking is injurious to health, produces deleterious effects on
mental and intellectual faculties and leads to disorder in human
society. The American public accepted these facts and agree to
the enactment of the Prohibition Law. Accordingly the law
was passed by the majority ^fote. But when it was put into
effect, the very same people by whose vote it had been passed,
revolted against it. The worst kinds of wine were illicitly

142 The Islamic law and Constitution

manufactured and consumed , and their use and consumption
became more widespread than before. Crimes inoreased in
number. And eventually drinking was legalised by the vote
of the same people who had previously voted for its prohibiti-
on. This sudden change in public opinion was not the result
of any fresh scientific discovery or the revelation of new facts
providing evidence against the advantages of prohibition, but
because the people had been completely enaalved by their habit
and could not forego the pleasure of self-indulgence. They
delegated their own sovereignty to the evil spirit in them and
set up their own desire and passions at their "ilahs" (gods) at
whose call they all went in for the repeal of the very law they
had passed after having been convinced of its rationality and
correctness. There are many other similar instances which go
to prove that man is not competent to become an absolute
legislator. Even if he secures deliverenoe from the service of
other ilaha, he becomes a slave to his own petty passions and
exalts the devil in him to the position of a supreme Lord.
Limitations on human freedom, provided they are appropriate
and do not deprive him of all initiative are absolutely necessary
in the interest of man himself *

That is why God has laid down those limits which in
Islamic phraseology, are termed 'Divine Limits' (Hudud-kllah)
These limits consist of certain principles, check and balances

and specific injunctions in different spheres of life and activity,
and they have been prescribed in order that man may be
trained to lead a balanced and moderate life. They are intended
to lay down the bro*d framework within which man is free to
legislate, decide his own affairs and frame subsidiary laws and
regulations for his conduot. These limits he is not permitted to

1. The question however is ; Who Ui to impose these restrictions ?
According to the Islamic view it is only Allah the Creator, the
Nourisher, the All-Knowing Who is entitled to impose restrictions on
human freedom and not any man. No man is entitled to do ao. If
any man arbitrarily imposes restrictions on human freedom, that is
despotism pure and simple. In Islam there is no place for such
despotism. — Editor, *

Political Theory of Islam

143

overstep and if he does so, the whole scheme of his life will go
away.

Take for example man's economic life. In this sphere God
has placed certain restrictions on human freedom. The right to
private property has been recognised, but it is qualified by the
obligation to pay Zakat (poor dues) and the prohibition of
interest, gambling and speculation. A specific law of inheritance
for the distribution of property among the largest number of
surviving relations on the death of its owner has been laid
down and certain forms of acquiring; accumulating and spending
wealth have been declared unlawful. If people observe these
just limits and regulate their affairs within these boundary
walls, on the one hand their personal liberty is adequately safe*
guarded and, on the other possibility of class war and domina-
tion of one class over another, which begins with capitalist
oppression and ends in working-class dictatorship, is safely and
conveniently eliminated.

Similarly in the sphere of family life, God has prohibited
the unrestricted intermingling of the sexes and prescribed
purdah, reoognised man's guardianship of woman, and clearly
defined the rights and duties of husband, wife and children.
The laws of divoroe and separation have been dearly set forth,
conditional polygamy has been permitted and penalties for
fornication and false accusations of adultery have been pres-
cribed. He has thus laid down limits which, if observed by
man, would stabilise his family life and make it a haven of
peace and happiness. There would remain neither that tyranny
of male over female whioh makes family life an inferno of
oruelty and oppression, nor that satanio flood of female liberty

and licence whioh threatens to destroy human civilization in
the West.

In like manner, for the preservation of human culture and
society God has, by formulating the law of Qisas (Retaliation),
commanding to cut off the hand* for theft, prohibiting wine-
drinking, placing limitations on uncovering of one's private
parts and by laying down a few aimilar permanent rules and
regulations, closed the door of social disorder for ever. I have

144

The Mamie Law and Constitution

no time to present to you a complete list of all the Divine
Limits and show in detail how essential each one of them is for
maintaining equilibrium and poise in life. What I want to
bring home to you here is that through these injunctions God
has provided a permanent and immutable code of behaviour for
man, and that it does not deprive him of any essential liberty

nor does it dull the edge of his mental faculties. On the con-
trary, it sets a straight and clear path before him, so that he
may not, owing to his ignorance and weaknesses which he
inherently possesses, lose himself in the maze of destruction and
instead of wasting his faoulties in the pursuit of wrong ends, he
may follow the road that leads to success and progress in this

world and the hereafter. If you have ever happened to visit a
mountainous region, you must have noticed that in the winding
mountain paths which are bounded by deep oaves on the one
side and lofty rooks on the other, the border of the road is
barricaded and proteoted in suoh a way as to prevent travellers
from straying towards the abyss by mistake. Are these barri-
cades intended to deprive the way farer of his liberty % No, as
a matter of faot, they are meant to proteot him from destruc-
tion ; to warn him at every bend of the dangers ahead and to
show him the path leading to his destination. That precisely
is the purpose of the restrictions {hudud) which God has laid
down in His revealed Code. These limits determine what
direction man should take in life's journey and they guide him
at every turn and pass and point out to him. the path of safety
which he should steadfastly follow.

As I have already stated, this oode enacted as it is by God,
is unchangeable. You can, if you like, rebel against it, ae some
Muslim countries have done. But you cannot alter it. It will
continue to be unalterable till the last day. It has its own
avenues of growth and evolution, but no human being has any
right to tamper with it. Whenever the Islamic State comes into
existence, this code would form i^a fundamental law and will

constitute the mainspring of all its legislation. Everyone who
desires to remain a Muslim is under an obligation to follow the

Political Theory of hlam 146

Qur'an and the Sunnah which must constitute the basic law of
an Islamic State,

The Purpose of the Islamic State

The purpose of the state that may be formed on the^basis
of the Qur'an and the Sun-nah has also been laid down by God.

■

The Qur'an says :

"We verily sent Our messengers with clear proofs, and
revealed with them the Scripture and the Balance, that
. mankind may observe right measure ; and We revealed
iron, wherein is mighty power and (many) uses for man-
kind". (57:25)

In this verse steel symbolises politioal power and the verse
also makes it clear that the mission of the prophets is to create
conditions in which the mass of people will be assured of social
justice in aooordanoe with the standards enunoiated by God in
His Book which gives explicit instructions for a well-disciplined
mode of life. In another place God has said

"(Muslims are) those who, if We give them power in
the land, establish the system of Salat (worship) and Zakat
(poor dues) and enjoin virtue and forbid evil and inequity".

(22 ; 41)

••You are the best community sent forth unto man-
kind ; ye enjoin the Right ooduct and forbid the wrong i
and ye believe in Allah." (3 : 110)

It will readily become manifest to anyone who reflects upon
these verses that the purpose of the state visualised by the Holy
Qur'an is not negative but positive. The object of the state is
not merely to prevent people from exploiting each other to
safeguard their liberty and to protect its subjects from foreign
invasion. It also aims at evolving and developing that well-
balanced system of social justice which has been set forth by God
in His Holy Book. Its object is to eradicate all forms of evil and
to encourage all types of virtue and excellence expressly men*
tioned by God in the Holy Qnr'ati. For this purpose political
power will be made use of as and when the occasion demands ;
all means of propaganda and peaceful persuasion will be

146 The Islamic Law and Constitution

employed ; the moral education of the people will also be under-
taken ; and social influence as well as tbe force of public opinion

will be harnessed to the task.

Islamic State Is Universal and AIl-Embraciog

A state of this sort cannot evidently restrict the scope of its
activities. Its approach is universal and all-embracing. Its
sphere of activity is coextensive with the whole of human life.
It seeks to mould every aspeot of life and activity in consonance
with its moral norms and programme of social reform. In suoh
a state no one can regard any field of his affairs as personal and
private. Considered from this aspect the Islamic State bears a
kind of resemblance to the Fascist and Communist states.
But you will find later on that, despite its all-inclusiveness, it is
something vastly and basically different from the totalitarian
and authoritarian states. Individual liberty is not suppressed
under it nor is there any trace of dictatorship in it. It presents
the middle course and embodies the beet that the human sooiety
has ever ovolved. The excellent balance an£ moderation that
characterise the Islamic system of government and the precise
distinctions made in it between right and wrong elicit from all
men of honesty and intelligence the admiration and the admis-
sion that Buoh a balanced system could not have been framed by
anyone^ttt the Omniscient and All-Wise God.
Islamic State la an Ideological State

Another characteristic of the Islamic State is that it is an
ideological atate. It is clear from a careful consideration of the
Qur'an and the Sunnah that the state in Islam is based on an
ideology and its objective is to establish that ideology. State
is an instrument of reform and must act likewise. It is a dictate
of this very nature of the Islamic State that suoh a state should
be run only by those who believe in the ideology on which it is

based and in the Divine Law which it is assigned to administer.
The administrators of the Islamic State must be those whose
whole life is devoted to the observance and enforcement of this
Law, who not only agree with its reformatory programme and

fully believe in it but thoroughly comprehend its spirit and are

Political Theory of Ulam

147

acquainted with its details. Islam does not reoognise any geo-
graphical, linguistic or colour bars in this respect. It puts for-
ward its code of guidance and the scheme of its reform before all
men. Whoever accepts this programme, no matter to what race,
nation or country he may belong, can join the community that

runs the Islamic State. But those who do not acoept it are not
entitled to have any hand in shaping the fundamental policy of
the state. They can live within the confines of the state as non-
Muslim citizens {zimmta). Specific rights and privileges have
been accorded to them in the Islamic Law. A zimmV* life,

property and honour will be fully protected and if he is capable
of any service, his services will also be made use of. He will
not,, however, be allowed to influence the basic policy of this
ideological state. The Islamio State is based on a particular
ideology and it is the community which believes in the Islamio
ideology that pilots it. Here again, we notioe some sort of
resemblance between the Islamio and the Communist states.
But the treatment meted out by the Communist states to per-
sons holding creeds and ideologies other than its own bears no
comparison with the attitude of the Islamic State, Unlike the
Communist state, Islam does not impose its sooial principles on
others by force, nor doeB it confiscate their properties or unleash
a reign of terror by mass executions of the people and their
transportation to the slave camps of Siberia. Islam does not
want to eliminate its minorities, it wants to protect them and
give them the freedom to live according to their own culture.
The generous and just treatment which Islam has accorded to
non-Muslims in an Islamic State and the fine distinction drawn
by it between justice and injustice and good and evil will con-
vince all those who are not prejudiced against it, that the
prophets sent by God accomplish their task in an altogether
different manner — something radioally different and diametri-
cally opposed to the way of the false reformers who strut about
here and there on the stage of history". 1

L This paper was written in 1930 and in it the author has dealt with the

theoretical aspect of the problem only. In his later articles he haa

[Co***.

148

The Islamic Law and Constitution

V

THE THEORY OF THE CALIPHATE

■

AND THE NATURE OF DEMOCRACY IN ISLAM

I will now try to give s> brief exposition of the composition
and structure of the Islamio State. I have already stated that
in Islam, God alone is the real sovereign. Keeping this cardinal
prinoiple in mind if we consider the position of those persons
who set out to enforce Qod's law on earth, it is but natural to
aay that they should be regarded as representatives of the
Supreme Ruler. Islam has assigned precisely that very position
to them. Accordingly the Holy Qur'an says :—

"Allah has promised to those among you who believe
and do righteous deeds that He will assuredly make them
to succeed (the present rulers) and grant them vioegerenoy
in the land just as He made those before them to succeed
(others)." (24 : 66)

diaoused the praotioal aspects as well. In bit article on the 'Right*
of Non-Muslims in Islamic State' (see Chapter VUI) he writes :

''However, in regard to a parliament or a legislature of the
modern conception, which is considerably different from Shura in its
traditional sense, this rule could be relaxed to allow n on- Muslims to
become its members provided that it has been fully ensured in the
Constitution that :

(i) It would be ultra vires of the parliament or the legislature to enact

any law whioh is repugnant to the Qar'an and ths Suunah *
(it) The Qur'an and the Sunnak would be the chief source of the publio
law of the land*

(Hi) The head of the state or the assenting authority would necessarily
be a Muslim. With these provisions ensured, the sphere of
influence of non- Muslims would be limited to matters relating to
the general problems of the country or to the interests of
minorities concerned and their participation would not damage
the fundamental requirements of Islam 1 '.
The non-Muslims cannot occupy key-posts— posts from where the
ideological policy of the state can be influenced— but they can oooupy
general administrative posts and can act in the service of the state.
?or a detailed discussion of their position see Chapter VIII,— Editor,

Political Theory of Mam 149

+

The vera© illustrates very clearly the Islamic theory of
state. Two fundamental points emerge from it :

1. The first point is that Islam uses the term 'vioegerenoy'
{kkilafat) instead of sovereignty. Since, according to Islam,
sovereignty helongs to God alone, anyone who nolds power and
rules in accordance with the laws of God wonld undoubtedly be
the vicegerent of the Supreme Ruler and will not be authorised
to exercise any powers other than those delegated to him.

2. The second point stated in the verse is that the power
to rule over the earth has been promised to the whole community
of believers ; it has not been stated that any particular person or
class among them will be raised to that position. From this it
follows that all believers are repositories of the Caliphate. The
Caliphate granted by God to the faithful is the popular viee-
gerency and not a limited one. There is no reservation in favour
of any family, class or race. Every believer is a Caliph of God
in his individual capacity. By virtue of this position he is in-
dividually responsible to God. The Holy Prophet has said :
"Everyone of you is a ruler and everyone in answerable for his
subjects". Thus one Caliph is in no way inferior to another. ^

This is the real foundation of democracy in Islam. The

following points emerge from an analysis of this oonoeption of

popular vicegerenoy :

(a) A society in which everyone is a caliph of God and an

equal participant in this caliphate, cannot tolerate any class
divisions based on distinctions of birth and social position. All
men enjoy equal status and position in such a society. The only
criterion of superiority in this social order is personal ability and
character. This is what has been repeatedly and explicitly
asserted by the Holy Prophet :

"No one is anperior to another except in point of faith

and piety. All men we descended from Adam and Adam

waa made of clay".

"An Arab haa no superiority over a non-Arab nor a non-

Arab oyer an Arab ; neither doe- a white man poase^a any

superiority over a black man nor a bl{*?k fflw ora « »Wt«

160

TKt Islamic Law and Constitution

one, except in point of piety".

After the conquest of Mecca, when the whole of Arabia
came under the dominion of the Islamic State, the Holy Prophet
addressing the member, of his own clan, who in the day* before
Islam enjoyed the same status in Arabia as the Brahmins did in
ancient India, said :

"O people of Qurayish ! Allah has rooted out your
haughtiness of the days of Ignorance and the pride of
ancestry. 0 men, all of you are descended from Adam and
Adam was made of day. There is no pride whatever in
ancestry; there is no merit in an Arab as against a non-Arab
nor in a non-Arab as against an Arab. Verily the most
meritorious among you in the eyes of God is he who is the
most pious".

(b) In such a sooiety no individual or gronp of individuals
will suffer any disability on account of birth, social status, or
profession that may in any way impede the growth of his
faculties or hamper the development of his personality. Every
one would enjoy equal opportunities of progress. The way would
be left open for him to make as much progress as possible
according to his inborn capacity and personal merits without
prejudice to similar rights of other people. Thus, unrestricted
scope for personal achievement has always been the hallmark of
Islamic sooiety. Slaves and their descendants were appointed as
military officers and governors of provinoes, and noblemen
belonging to the highest families did not feel ashamed to serve
under them. Cobblers who used to stitch and mend shoes rose
in the social scale and became leaders of highest order (imams) :
Weavers and olothsellers became judges, muftis and jurists and
to this day they are reckoned as the heroes of Islam. The Holy
Prophet has said :

"Listen and obey even if a negro is appointed as a ruler

over you". ' .

(c) There is no room in such a sooiety for the dictatorship of
any person or group of persons sinoe everyone is a oaliph of God
herein. No person or group of persons is entitled to become an

Political Theory of Islam

151

Absolute ruler by depriving the rank and file of their inherent
right of caliphate. The position of a man who is selected to
conduct the affairs of the state is no more than this : that al!
Muslims (or, technically speaking, all caliphs of God) delegate
their caliphate to him for administrative purposes. He is
answerable to God on the one hand and on the other to his fellow
'caliphs' who have delegated their authority to him. Now, if he
raises himself to the position of an irresponsible absolute ruler,
that is to say, a dictator he assumes the oharaeter of a usurper
rather than a caliph, because dictatorship is the negation of
popular vioegerenoy. No donbt the Islamic State is an all-
embracing state and comprises within its sphere all departments
of life, but this all-inolusiveness and universality are based upon
the universality of Divine Law which an Islamic ruler has to
observe and enforoe. The guidance given by God about every
aspect of life wi ' certainly be enforced in its entirety. But an
Islamic ruler cannot depart from these instructions and adopt a
policy of regimentation of his own. He cannot foroe people to
follow or not to follow a particular profession ; to learn or not
to learn a special art ; to use or not to use a certain script ; to
wear or not to wear a certain dress and to educate or not to
educate their children in a certain manner. The powers which
the dictators of Russia, Germany and Italy have appropriated
or which Ataturk has exercised in Turkey have not been granted
by Islam to its Amir (leader). Besides this, another important
point is that in Islam every individual is held personally answer-
able to God. This personal responsibility cannot be shared by
anyone else. Hence, an individual enjoys full liberty to choose
whichever path he likes and to develop his faculties in any direction
that suits his natural gifts. If the leader obstructs him or obst-
ructs the growth of his personality, he will himself be punished
by God for this tryanny. That is precisely the reason why there
is not the slightest trace of regimentation in the rule of the
Holy Prophet and of his rightly -guided Caliphs ; and

(d) In such a society every sine and adult Muslim, male or
female, is entitled to express his or her opinion, for each one of

152

Th* Islamic Late and Constitution

them is the repository of the caliphate. God has mad* this
caliphate conditional, not upon any particular standard of wealth
or competence but only upon faith and good conduct. Therefore
all Muslims hare equal freedom to express their opinions.

Equilibrium Between Individualism and Collectivism

■

Islam seeks to set up, on the one hand, this superlative
democracy and on the other it has put an end to that indivi-
dualism which militates against the health of the body politic.
The relations between the individual and the society have been
regulated in such a manner that neither the personality of the
individual suffers any diminution, or corrosion as it does in the
Communist and Fascist social system, nor is the individual
allowed to exceed his bounds to such an extent as to become
harmful to the community, as hsppens in the Western demo,
oraoiea. In Islam, the purpose of an individual's life is the same
as that of the life of the community, namely, the execution and
enforcement of Divine Law and the acquisition of God's plea-
sure. Moreover, Islam has, after safeguarding the right* of the
individual, imposed upon him certain duties towards the
community. In this way requirements of individualism and
collectivism have been so well harmonised that the individual ia
afforded the fullest opportunity to develop his potentialities and
is thus enabled to employ his developed faculties in the service
of the community at large.

These are, briefly, the basic principles and essential features
of the Islamic political theory. 1

*

1. To avoid repetition, the Editor aaa deleted those portions of the eesay
relate* to t^e problems, di#ou*sed in detail in Chapter 7— Mttor,

Chapter 5

Political Concepts of
the Qur'an

THE Qur'an is a complete code for mankind and
provides guidance for man in all walks of his life.
It has its own eoncepts of ethics, politics, economics
and sociology. In the following artioles an attempt
has been mad© to present some of the basic political
concepts of the Qur'an.

■

Maulana Maadudi has written a Tafsir (Common,
tary) of the Qur'an under the title Tafhim al-Qur'an.
This great work has been completed in six volumes
and published recently. Tafhim al*Qur'an contains,
inter alia, very valuable discussion of all tho moral
and social concepts of the Qur'an. The present art-
icle is in the nature of a logical compilation of the
discussions, in so far as they relate to the political
oonoepta. The Editor has abided some notes here and
there to maintain the continuity and to distinguish
the editorial notes from the text, the two have been
aligned differently. — Editor.

POLITICAL CONCEPTS OF THE QUR'AN

mHE chief ohracteristic of Islamic ideology ia that it does
<*■ not admit a conflict, nay, not even a significant separation
between life spiritual and life mundane. It does not confine
itself merely to purifying the spirit and the morals, Its domain
extends to the entire gamut of life. It wants to mould indivi-
dual as well as the social behaviour upon healthy pattern, so
that the Kingdom of God may really bo established on the
earth and so that peace, contentment and well being may fill the
world as water fills the oceans. The political concepts of the
Qur'an spring from this unique approach to life and its concept
of man's place an the universe. That is why it is necessary that
before we proceed to discuss the major political oonoepts of the
Qur'an we ought to have a clear idea of the Quranic oonoept
of life.

i

THE QURANIC CONCEPT OF LIFE

There are certain basic postulates which must be under-
stood at the very outset. These postulates are as follows ;
Basic Postulates

1. God, Who is the Creator, the Ruler and the Lord of the
Universe, created man and provided him with temporary abode
in that part of His vast kingdom (cosmos) which is known as
the earth. He has endowed man with the faculties of thinking
and understanding and has given him the power to distinguish
right from wrong. Man has also been invested with freedom of
will and choice and the power to use the resources of the world
in any manner he likes. In short, man has been given a sort
of autonomy while being appointed God's vicegerent on earth..

2. Before assigning to man th$ vioegerency on the earth,
God made it explicitly clear to him that H« alone is the Lord,

Political Concepts of the Qur'an 1 55

the Ruler and the Deify. As such the entire Universe and all
the orCatures in it (including man) must submit to Him alone.
Man must not think himself totally free and should know that
this earth is not his permanent abode He has been made U>
Hve upon it only during the period of his probation and in du*
course he will retnrn unto his Lord, to be judged acoording to
the way he has utilised the period of probation. The only
right course for man is to acknowledge God as the only Lord,
the Sustainer and the Deity and to follow His Guidance and
His precepts in all aspects of life. Man must live this life with
the realisation that he is to be judged and his solo objeotivo
should be to merit the pleasure of Allah so as to emerge success,
ful in the final test. Conduct contrary to this would lead man
on to the evil path. If man follows the course of pioty and
godliness (which he is free to choose and follow) he will succeed
iff this world and in the next— in this world he will have a lifo
of peace and contentment and in the hereafter he will qualify
himself for the heaven of eternal bliss, aUJannah. And if he
chooses to follow the other course, i.e., that of Godlessness and
evil (which he is equally free to choose and follow) his life will
be one of corruption, disruption and frustration in this world
and he will meet colossal misfortune in the life to come— that
abode of pain and misery which is called Hell.

3. After administering this warning God sent man upon
the eaith and provided the very first human beings {Adam and
Eve) with His Guidance in accordance with which men were to
lire on the earth. Thus man> life on this earth did not begin
in utter darkness. The very first man was provided with a
burning torch of light and guidance so that humanity may
attain to its glorious destiny. The first man received revealed
knowledge from God Himself. He had knowledge of the reality
and was given the code of life by following which he could have
a life of bliss. This code of life was Islam, the attitude of com-
plete submission to Allah , the Creator of man and the whole uni-
verse. It was this religion whicji Adam, the first man, passed
down to posterity. But later generations gradually drifted away
from the right path and adopted different, erroneous ways of

156 The Manic Law and Constitution

life. Out of negligence they lost their original religion or out
of mischief they adulterated and perverted it. Ther associated
with God innumerable human beings, non-human objects and
imaginary beings as deities and indulged in shirt (polytheism)
of the worst type. They mixed op the pure teaohings of God
with strange myths, ideas and philosophies and thus produced
a jungle of religions and cults. They discarded the God given
principles of social ethics and collective morality, the Shart'ah,
and deprived the human life of peace and tranquillity.

4. Although men departed from the path of truth, disre-
garded and perverted the Shari'ak and some of them even
revolted against the code of Divine Guidance, yet God did not
forthwith destroy them or force them to the right course.
Forced conversion to the right path was rtot in keeping with
the autonomy he had given to man. Instead, God appointed
certain virtuous persons from amongst the people themselves,
to discharge the responsibility of recalling and guiding men to
the right path during their sojourn on the earth. These men
believed in God and lived in a life of obedience to Him- He
honoured them by his revelations and gave them the know-
ledge of reality. These men, known as prophets, were assigned
the job of presenting the message of truth to the humanity ask-
ing the people to the path of the Lord,

5. These prophets were raised in all epochs, in all lands
and in all nations. Their number exceeds many thousands. All
of them brought the same message, all of them advocated the
same way of life (Been) ».«., the way whioh was revealed to man
on the first day of his existence. All of them followed the same
guidanoe : the guidance which was prescribed by the Lord for
man at the outset of civilization. All of them stood for the
same mission : they called men to the religion of Islam, asked
those who accepted tbe Divine Guidanoe to live in accordance

•

with it and organised them into a movement for the establish-
ment of the Divine Law and for putting an end to all deviations
from the Right Path. Every prophet tried to fulfil this mission
in the best possible way. But a great number of people never
accepted their guidance and those who aooepted it, gradually

Political Concept* of the Qur'an 15?

■

drifted astray and after a lapse of time lost the guidance or
distorted it with innovations and perversions. P *

6, At last God raised Prophet Muhammad (peaoe be on
him) in the land of Arabia and assigned to him the completion
of the mission for which earlier prophets were ordained. The
message of Muhammad (peaoe be on him) was for entire man-
kind. He presented anew the teachings of Islam in their pris-
tine form and provided humanity onoe again with the Divine
Guidance. He organised all those who accepted his message
into one ummah which was charged with reconstructing its own
life in accordance with the teaohings of Islam, with calling
humanity to the path of righteousness and with establishing
the -Word of God on the earth. This guidance is enshrined in
the HoJy Qur'an whioh constitutes the only right oode of con-
duct for the mankind.^
Mamie Concept of Life

These are the basio postulates which, on the one hand,
reveal God's design for providing guidance for man in this
world and, on the other, define the nature, position and status
of man in it. Now let us study the foundations on which the
Qur'an rears man's relationship with Allah and the concept of
life which naturally follows from that relationship.

The Qur'an deals with this problem on many an occasion
but the entire concept of life envisaged by it is epitomised in
the following verse :

"Verily Allah hath bought of the believers their lives
and their properties for the price that theirs shall be the
Paradise : so they fight in the way of Allah and slay and
are slain. It the promise of the Paradise) is a promise
which is binding on him in the Torah and the Injeel and the
Qur'an. And who is more faithful unto his covenant than
Allah ? Rejoice then in youf in bargain that ye have made,
for that is the supreme triumph". (9 ; 111)
In the above verse the nature of the relationship which
comes into existence between man and God because of Iman

1, Abul A'la Maududi, Tafhim al Qur*an t Vol. l t Lahore, 1051, pp. f'M'l.

158 The Islamic Law and Constitution

9

(the act of reposing faith in Allah) has been called a 'bargain*.
Tina means that Iman in Allah is not a mere metaphysical
concept ; it is in the nature of a contract by which man barters
his life and his belongings with Allah in exchange for the pro-
mise of Paradise in the life-hereafter. God, so to say, purchases
a believer's life and property and promises, by way of price, the
award of Paradise in the life after death. This concept of
bargain has important implications and we should therefore
first of all clearly understand its naturo and meaning.

m

The fact of the nature is that each and everything in this
world belongs to Allah. He is the real owner of it all. As such,
man's life and riches which are part of this world, also belong
to'Him, because it is He Who created them and it is He Who
has assigned them to each man for his use. Looking at the
problem from this angle the question of any sale or purchase
doos not arise at all. God is the real owner, there is no question
of His purchasing what is already His. Man is not their real
owner, he has no title to sell them- But there is one thing
which has been conferred on man and which now belongs fully
to him, and that is his free will, the freedom of choice follow-
ing or not following the path of Allah. As man has been
endowed with free will in this respeot, he is free to acknowledge
or not to acknowledge the reality of things. Although this
freedom of will and choioe that man possesses, does not auto-
matically make him the real owner of all the energies and
resources of which he has command, nor does he acquire the
title to utilise them in any way he likes, not his acknowledg-
ment of reality or refusal to do so does in any way affect the
reality as such, yet it does mean that he is free to acknowledge
the sovereignty of God and HU overlordship on his own life
and belongings or refuse to acknowledge it and to arrogate to
himself the position of independence. He may, if he likes, deem
himself free from all obligations to the Lord and may think
that he enjoys the rights and powers over all that he has and
may use thorn according to his own wishes, unfettered by any
higher command. This is how and where the question of

Political Concept* of the Qur'an 169

bargain cornea iu. Thia bargain does not mean that God is
purchasing something whioh belongs to man. Its real nature is
this : All creation belongs to God but he has bestowed certain
things on man to be used by him as a trust from God. And man
has been given the full freedom to honestly fulfil the trust or
to betray it. Now God demands that man should willingly and
voluntarily (and not under duress or compulsion) acknowledge
those things as Hie whioh really belong to Him and should use
them as a trust from God and not as his own to do with as he
pleases. Thus a man who voluntarily renounces the freedom to
refuse God's supremacy and instead acknowledges His overlord-
ship, so to say, 'sells' his 'autonomy' (which too is a gift from
God and not man's ovn) to God and gets in return God's pro-
mise of eternal bliss that is Paradise A man who makes such
a bargain is a Motrin (believer) and /man (belief) is the Islamic
name for this contract ; and the one who chooses not to enter
into this contract or after making such contract adopts a be-
haviour in contravention thereof amounting to breach of that
contract, is a Kafir and the attempt to avoid or abrogate this
contract is technically known as Kufr.

Such is the nature of the oontraot. Now let us briefly study

its various stipulations.

1, God has put man to serious trial on two counts :—
(a) He has left man free, but even after giving him that
freedom He wishes to see whether or not man realises

his true position ; whether he remains honest and
steadfast and maintains loyalty and allegiance to the
Lord or loses his head and revolts against his own
Creator ; whether he behaves like a gentleman or
tramples underfoot all values of decency and starts
playing such fantastic tricks as make the angels weep. 1

"I. The translators here tried tp borrow the words of Shakes pear e whu
haa beautifully protrayed this attitude of man m the folio wiugeoupJct-

Man, proud mtvrw

160 ^Tht Islamic Late and Constitution

(b) He wants to see whether man is prepared to hare such
confidence in God aa to offer hie life and wealth in
return for what is a promise that is to materialise in
the next world — and whether he is prepared to surren-
der hia autonomy and all the charms which it haa, in
exchange for a promise about the future,

2. It is an accepted principle of Islamic law that Iman con-
sists in adherence to a certain set of doctrines and whosoever
reposes faith in doctrines beoomes a Mo'min. No one has a
rigiit to denounce such a man as non-believer or drive him out
of the fold of the* ummah, save when there is explicit proof of
falsity or of renunciation of the belief. This is the legal aspect
of the problem. But in the eyes of the Lord, only that ImSn
is valuable which consists in complete surrender of one's will
and choioe to the will of Allah. It is that state of thought and
action wherein man submits himself fully to Allah, renouncing
all olaim to his own supremacy. It is something that comes
from the heart. It is an attitude of the mind and prepares man
for a certain course of action. If a man recites Katima, owns
the contract and even performs his prayers and other acts of
worship, but in his heart he regards himself as the owner and
the dispenser of his physical and mental powers and of his
moral and material resources, uses them to his own liking and
upholds his freedom of will, then, however much the people
may look upon him as violin, in the eyes of God he will be a
non-believer, for he has, in fact, not really entered into the
bargain which according to the Qur'an is the essence of Im&n.
If a man does not use his powers and resources in the way God
has prescribed for him and instead uses them in pursuits which
God has prohibited, it clearly shows that either he has not
pledged his life and property to Allah or even after pledging
them to Him, he falsifies the pledge by his conduct.

3. This nature of Iman makes the Islamio way of life,
distinct from, nay, the very opposite of the non-Islamic way of

Plays -such fantastic tricks before heaven.

Aa make the angels weep. — Shakespeare. Measure for Meanvre
(I»ab«!U), Act II, So. II.

Political Concepts of the Qur'an

161

life. A Muslim who has real faith in Allah, makes every aspect
of hia life subservient to the Will of Allah. His entire life is
one of obedience and surrender and he never behaves in an
arrogant or an autonomous way, save in a moment of
forgetfulness. And after such a lapse as soon as he becomes
conscious of it he again readdresses himself to his Lord and
repents of his error. Similarly a group of people or a society
which consist of true Muslims can never break away from the
Law of their Lord. Its political order, its social policy, its
culture, its economic ideology, its legal system and its
international policy must all be in tone with the Code of
Guidanoe revealed by Allah and must, in no way, contravene it.
And if ever through errror any contravention is committed, it
must on realising this, correct this immediately and return
forthwith to the state of subservience to the Law of God. It
is the way of the non-believers to feel free from God's
Guidance and to behave as one's own master. Whoever adopts
such a policy is, even though he may bear a name silmilar to
that of a Muslim, treading the Satanic path and following the

way of the non-believers.

4. The Will of God, which it is obligatory upon man to
follow, is the one which God Himself has revealed for man's
guidance. The Will of God is not to be determined by man
himself. God has Himself dearly enunciated it and there is no
ambiguity about it. Therefore if a persen or society is honest
and steadfast in its contract with Allah, it must scrupulously
fashion its entire life in accordance with the Book of God and
the Sunnah of the Prophet (peace be on him),

A little reflection will show that these stipulations are
logically implicit in the bargain and it is also clear from the
above discussion why the payment of the 'price* has been post-
poned to the life after death. Paradise is not the reward for the
mere profession of the bargain, it is^the reward for the faithful
execution of the contract. Unless the oontraot is fully executed
and the actual life-behaviour of the 'vendor' complies with the

terms of the contract he does not become entitled to the reward.
Thus the 'sale' is concluded only a>t the last moment of vendor's

162

The Islamic Law and Constitution

life and as such it is natural that the roward should be given to
him in the life -hereafter.

There is another significant point which emerges for the
study of the verse quoted above with reference to its context.
In the verses preceding it. reference has been made to the people
who professed Irntln and promised a life of obedience, but when
the hour of trial came they proved unequal to the task. Some
neglected the oall of the hour and betrayed the cause. Others
played open tricks of hypocrisy and refused to sacrifice their
lives and riches in the Cause of Allah. The Qur'an, after
exposing those poople and criticising their insincerity and
hypocria>, makos it clear that Iman is a contract, a form of
pledge, between man and God. It does not consist in a mere
profession of belief in Allah. It is an acknowledgement of the
fact that Allah alone is our Lord, Sovereign and Ruler and
that everything that man has, including his own life, belongs
to Him and must be used in accordance with His directives.
If a Muslim adopts a contrary course, he is insincere in his
profession of faith. True believers are only those who have
really sold their lives and all that they possess to God and who
follow His dictates in all fields of activity. They stake their
4) in obedience to the Commands of the Lord, and do not
deviate even an inch from the path of loyalty to God. Suoh
alone are the true believers.

Some people object that the promise referred to in the verse
does not ooour in Injeel (Gospel) or Taural (Torah). So far as
Injeel is concerned we find the following verses in it :

"Blessed are they which arerpersecutedfor righteousness-
sake : for their's is the Kingdom of heaven".!

"Ho that findeth his life shall lose it ; and he that loseth
his life for my sake shall find it f \»

"And every one that hath^ forsaken houses, or brethren,
or sisters, or father, or mother, or wife, or children, or

1. New TtfiUemtnt, St. Mttttlisw. ■*■ : le.

2. lhid\ St. M*tthrtw, If : 3£>.

Concepts

163

lands, for my name's sake, shall receive an hundredfold,
and shall inherit everlasting life". 1

This is what we find in the Injeel as it exists at present and
the above verses convey more or loss the very same idea as is
given by the verses quoted from the Qur'an. As to the Taurat
(the first five books of the Bible) it is correct that it does not
contain a clear statement to this effect. But that is not all
important, for the Taurat as it is today, is devoid of even clear
concept of life after death, of the Day of Judgment and of the
Reward and Punishment in the next world, although those have
always been an insei>arablc part of the religion of G"d. It is in
no way correct to think that the roal Taurat too was devoid of
these concepts. The fact is that Jews beoame so materialistic
in their approach in the days of their deoadenco that they could
not think of any greater reward than material and worldly
prosperity. So in the rewriting of the Taurat they reduced the
concept of Paradise and reward in tho hereafter to that of
material bliss of this world and regarded the promised land of
Palestine as the paradise. Thus we find in the Taurat that

"Hear, 0 Israel : The Lord our God is one Lord ; and
thou shalt love the Lord thy God with all thine heart, and
with all thy soul and with all thy might". 2

"Is not He thy Father that bath bought thee 1 Hath
He not made thee and established thee" ? 3
But the reward for this devotion to the Lord, described in
the Taurat, is tha^ you shall become the owners of the land
wherein milk and honey flow i.e., Palestine 1 The reasen for this
is thit firstly > the Taurat available to us is incomplete and many
of its parts have been lost and destroyed and secondly, it does
not consist of the unadulterated teachings of God ; instead
there have been intermingled in it the teaohings of God and the
national traditions, racial prejudices, myths, aspirations,
„ interpretations etc., of the Jewish people. That is why it is

1. Ntwttttament, St. Matthew, IS : 28.
%. Old Tttlament, Deuteronomy, 6 : 4-S.
3. Ibid^ Deuteronomy, 32 : fl -

164 . Th e Islamic Law and Constitution

not generally possible to distinguish the word of God from the
word of man. In such a situation the absence of a clear
statement in the present Taurat does not affect the claim of the
Qur'an as to God's promise to inan.i

II

NECESSITY FOR AN ISLAMIC STATE

The Islamic concept of lifo aa envisaged in the Qur'an is that
man should devote his entire life to the causes of Allah, Whose
injunctions should be followed in all the fields of human activity.
The Qur'an not only lays down principles of morality and ethics,
but also gives guidance in the political, social and economic
fields. It prescribes punishments for certain crimes and
enunciates principles of monetary and fiscal policy. These
cannot be translated into practice unless there is a State to
enforce them. And herein lies the necessity of an Islamic State.

This concept is presented in the following verses of the
Qur'an

"The adulterer and the adulteress, scourge ye eaoh one
of them (with) a hundred stripes. And let not pity for the
twain withhold you from obedience to the din of {i.e., way

of life prescribed by) Allah, if ye believe in Allah and the
Last Bay". (24 : 2)

A very basic point emerges from this verse. Here the
criminal law of Islam has been called Din- Allah t\e„ the religion
of God. It means that religion does not merely mean prayers,
and fasting and Hajj and Zakat, it also includes the law of the
land and the institutions of the State. If we want to establish
religion of God, the objective will not be achieved by merely
establishing the • institutions of Saum (fast) and Salat (prayer).
We shall have to establish side by side with them the Divine
Lawand make the S&ari'ah the law of the land. If the latter is
not established, then even if the institutions of Salal etc., is in
force, it will not amount to the estabishment of din. It would

I. Tafhitn ahQur'an, Vol. 11, pp.

Political Concepts of the Qur'an 165

only he a partial enforcement of it and not a total one. And if
instead of God-given Jaws some other laws are adopted, it means
nothing short of rejection of the din as such. 1

Another verse of the Qur'an which throws light on this

problem is as follows : —

"Say : O my Lord I let my entry be by the Gate of

Truth and Honour ; and likewise my exit be by tho Gate of

Truth and Honour ; And grant me from Thy presence a

ruling authority to add me". (17 : SO)

That ib, either grant power to me or grant me the assistance
of any ruling authority, or state, so that. I may with the force
and the resources of the coercive power of the State establish
virtue, eradicate evil, put an end to corruption, vulgarity and
sin, set at right disruption which has spread throughout social
life and administer justice according to Thy revealed law. This
is what this verse means so is also clear from the interpretation
placed upon it by Hasan Basri, Qatada, Ibn Jarir and Ibn Kathir.
This view is further supported by the hadith : "Allah brings to
an end through the State what He does not eradicate through
the Qur'an".

This shows that reforms which Islam wants to bring about
cannot bo carried out merely by sermons. Political power is
essential for their achievement. And as the above prayer has
been taught by none other than Allah to His own prophet, it also
shows that the struggle for obtaining control over tho organs of
the State, when motivated by the urge to establish tho din and
the Islamic Shari'ali and to onforoe the iBlamio injunctions, is
not only permissible bu* is positively desirable and aa suoh
obligatory. Those who regard such an endeavour as something
mean and this worldly or characterise it as "power-seeking" are
totally mistaken. If a person strives for personal glory and wants

to gain power for personal ends, Jhat is certainly to be condemn-
ed. It is un-Islamic. But if power is being sought to establish the

din of Allah, then it is an undisputed act of Godliness and

1. Mftududi, TafMm al-Qvr'nn, Vol, III, Suaah al-Xur, p. 343.

166

The Islamic Law an* Constitution

piety and mast not be confused with power thintineM.i

III

SOVEREIGNTY OF GOD

The next and the most fundamental and most revolutionary
political concept of the Qur'an is the sovereignty of God over
the entire life of man. So far as the concept of the sovereignty
ofGodovertheuniversoisconcerned.it is accepted by most
of the people but what the Qur'an demands is that they must
also acknowledge Him as the Sovereign in his moral, sooial,
cultural, economic and political sphere of life.

Students of political soience know how vexed the issue of
sovereignty has become in the present age. It is perhaps the
most-disputed issue of politioal soienca and a good many
thinkers have even pleaded that the problem is so confusing
that it would be better if the political theorists discard it
altogether. Not only are there thooretioal and logical anomalies
but atao the development of internationaliim seems to have
more or less rendered the concept of national sovereignty
obsolete. The root cause of all the difficulties in respect to
this question is a basic fallacy : the political philosophers have
tried to place the cap of sovereignty on man a being for whom it
was never Intended and whom it can therefore never at. Keeping
in view the attributes of the sovereign, no human being or
human organisation can really claim title to it. And when
sovereignty is forced upon human beings, it results in confusion
on all hands.

The Quranic concept of sovereignty is simple. God is
the Creator of the Universe. He Is Its real Sustainer and
Ruler. It Is His Will that prevails in the cosmos all around.
As all creation is His, His command should also be established
and obeyed In man's society. He is the real Sovereign and
His Will should reign supreme as the Law.

J 5? 4b0Va View of ■ 0T * f * i S | rty « presented in the

1. Ta/him «*-$«r'an, Vol. IT. p. 6S8. *

Political Concepts of the Qur'an

16?

following verses of the Holy Qnr'an :

(a) Prophet Joseph (God's blessing be on him), on announc-
ing the mission entrusted to him, declared :

"Verily I hare abandoned the creed on a people who
believe not in Allah and who are disbelievers in the Here-
after. And I havo followed the religion of my fathers,
Abraham and Isaac and Jacob. It never was for us to
attribute aught as partner to Allah. This is the bounty of
Allah unto us and unto mankind ; but most give not thanks.
0 my fellow prisoners 1 arc diverse lords better, or Allah,
" the Ono, the Subdure V Those whom ye worship beside
Him are but namos which yo have named, ye and your
fathers. Allah harh revealed no sanction for them. The
Authority reats with Allah alone, Who hath Commanded
you that yo obey none aavo Him. This is the right religion,
but most men know not". (12 v : 37 — 40)

This is one of the best and most eloquont arguments
for Tawhrctl and contains mnny important points for con-
sideration. 2

(1) This, perhaps, is f lu* first public speech of Joseph as a
prophet. The earlier versos- of the Qur'an, in so far as they relate
to him deal with his unblemished character and his life of virtue
and integrity. Now we iind that he has begun his practical work
as a prophet. It also seems to bo the first occasion for him in
Egypt to reveal his real identity, i.e., being the kin of Abraham
and Isaac and Jacob. I t is here that he tells the people that he
is not propounding anything new — that his message is the same
as that of the earlier prophots. He also tells the people that he
belongs to the same international movement for Tawheed whose

1. The original word ia al-Zahhar, whioh according to Lano'b 'Arabia-
English Lexicon' means : Tho subduer of his oreAfcure* but Hie so*
vereign authority and power, and the Disposer of them as he please th,
with and against their will*'. We have rendered this word as 'the
Subduor*.

2. This discussion has been abridged. Only points having a direct bear-
ing upon the political concept* have "been dealt with, the others being
left out,— Editor.

168

Tht Atomic Law and Conttttuiian

loaders had been Abraham and Isaac and Jacob— mentioning
only those whom the pooplo must have known because of
geographical and historical proximity.

(2) It shows that the Prophet started his work not by go-
ing into petty trivialities, but by presenting the basic postulates
of Islam. In his very first discourse he clearly expounded the
differences between Tawhttd (monotheism) and Shirk (polythe-
ism) and called the people to the path of Tavshtti in a befitting
manner. The message was so clear, so truthful and so well-
presented that it must have gone straight to the heart of his
listners. As the listeners were slaves, they oould very well
understand the underlying truth of the question : "Are diverse
lords better, or One Powerful Master?" They knew how difficult
it was to serve more than one master. The message, in a nutshell,
was that of denunciation of shirk in all its forms, apd acknow-
ledgement of the overlordship of one God in all fields of
existence. Joseph (peace be on him) tells his listeners that gods
they worship are mere names and do not possess any attribute
of real lordship or sovereignty. He stressed that when they too
acknowledged that the real sovereign of entire creation is Allah
Who is the Creator and Sustaincr of the universe, why then
avoid its natural and logical consequences. It naturally follows
that He alone should and as a matter of fact does, enjoy real
authority and He had not provided any sanction for the worship
and obedience of any of the gods before whom they bowed. He
alone is the Law-giver. Rule and authority belong to Him. All
these prerogatives are exclusively His. And he has onjoined
that His Command should reign supreme. Man is to worship
none except Him, to obey none except Him, and to follow none
except Him. He is the real sovereign and His Law must prevail. 1

(6) ;The concept of sovereignty is further explained in the
following verse :

"Verily, your Lord is Allah Who created the heavens
and the earth in six Days, then mounted He the Throne.
He covereth the night wi& the day, which is in haste to

1. Ta/him al-Qur'an, Vol, II, pp. 401-404.

Political Conctfia of tht Qw>an

160

follow it, and hath made the sun And the moon and the
stars subservient by His Command. Verily His is all creation
and His ia the Command (the Law). Blessed be Allah, the
Lord of the Worlds." (7 : 54)

It is difficult to precisely understand what is meant by
iatawa 'alal 'arsh (Mounted He the Throne). It is possible that
God appointed a oortain place as the centre of this limitless
cosmos and made it the centre— and the control -house of the
universe. And it is this place, from where the universe is being
governed, which haa been called 'arsh (the Throne). It is also
possible that the word has been used as the symbol of authority
and suzerainty and 'to mount the Throne' implies that after
creating the universe God took hold of the reins of power and
became its Ruler and King. Whatever be the actual nature of
the happening;, the real import and significance of 'mounting of
the Throne* ia that God is not the mere Creator of the Universe,
He is also its Ruler and Governor. This is a very important
concept and the Qur'an wants that this point should be fully
realised by man.

God is not the one who created the world and then retired.!
ThiB concept of retirement is fallacious. The Creator has not
fevered His connection with the universe after having oreated it.
He still controls it and provides for its maintenance. He controls
its every aspect. All authority and all power rest in His hands.
From the smallest particle of dust to the gigantic nebulae every-
thing is subservient to His Will and obeys His Commands.
The destiny of this entire creation is dependent upon Him.
Thus the Qur'an demolishes the very foundation* of shirk
(polytheism), atheism and self-worship. If a man does not

1. The Hindu concept ia that God retired after creating the XJnivorse.
According tb Encyclopedia Britannica, the Hindu view i« that He
"having performed his legitimate part in the mundane evolution by His
original creation of the Universes, ha* retired into the background"
(Vol. XI, page 577), The philosophy of modern deism is also baaon
oo a similar misconception— Editor*

170

Tht Ulamic Law and Constitution

regard Allah as the Creator and the Governor and thinks that
God has severed His connection with the universe and now has
no practical say in its running, the natural result of this concept
would either be the arrogance of all authority by man to himself
or the association and acknowledgment of other powers as
deities. The Qur'an has totally banished the possibility of either.

The Qur'an repeatedly uses the political terms like King-
ship, Lord and Sovereign to explain the relationship of God with
man and His other creation. It most unambiguously lays down
that the real King of the heavens and of the earth is Allah and
to Him alone belongs tho sovereignty over the Universe. The
entire universe is one organic system which is being controlled
by one Authority. Thus, whoever else claims partial or total
sovereignty, whether for himself or for any group or organisa-
tion, is labouring under delusion. Tho only reasonable course for
man is to acknowledge the Creator and the Lord as the Doity
and the objeot of worship in the religious sense of the word and
as the only Sovereign, Ruler and Kin)? in the political and

social meaning of it.

The point is farther clarified by tho expression lahu aU

Kkalq wa al-Amr (Verily His is the Creation and His is the
Command). This dearly states that God is not only the Creator
but also the Commander and the Ruler. He has neither left His
Creation to the mercy of others to command it as they like, nor
granted any section of it the freedom and autonomy to do
whatever it chooses. God is the real and virtual Ruler and
exercises real control over his Kingdom. Day and night do not
follow each other of their own, nor do seasons ohange accident-
ally, but it is the Will of God which regulates all this : He can
make the change anywhere He likeB. Everything is subservient
to His Will and obeys Him implicitly. All act in the manner
God Wills them to act. It is a natural demand of His being the
Creator that His Will and His La& should reign supreme. 1

(c) Another verse of the Qur'an also throws light on this
concept :

1. Tafhtm al-Qur*an t Vol. II, pp. 36-37,

Political Concepts of the Qur'an M

"He unto Whom belongeth the sovereignty of the
heavens and the earth. He hath taken unto Himself no
son nor hath He any partner in the Sovereignty. He hath
created everything and hath meted out for it a measure".

„ (25:2)
Here the word employed is MuUc which is used in Arabio to
convey the meaning of supremaoy, sovereignty and kingship.
According to this verse Allah alone is the Governor. King and
Ruler of the entire universe and no one else shares even a shred
of His authority. He is the absolute Sovereign. This clearly
bring, home to one the truth that He alone can be the Deity,
because one offer, his worships only to one who commands
power and authority, can bless or reprove him, and change his
destiny favourably or adversely, tfot eTM a foo , wouM bfl

bef ° re ° ne Wh0m he knows t0 be dev °id ^ all
power and authority. If men would only realise that all power

rests with Allah, no one would be prepared to bow before anyone

else or to obey and follow others or solicit their help and

guidance. His authority alone would be acknowledged and His
Co mmanda ftlone wou , d be oboye(J wd nQ 8uoh

followed as involves His disobedienoo

Island S n °T Ia Jf thi8 aUth ° rity ° f AMh ,8 the kwnel <* th.
isiamio oonoept of Sovereignty.'

the it ? ? pomt ia diaputo between the P r °P heta of A »«» «a

loZ 1 7 rs hM 8,Wftya b * 9a that fch8 p r °p heta de ™^

absolute obedience to Allah and complete acknowledgment of
His sovereignty in the social, political, cultural and all other

eldet' .f U + \ th086 iD P ° Ver Wheth6r th6y Vera the <* the

fo ego the,, authority and aotnowIedg6 thatofA „. h Tfle
following verse of the Qur'an illustrates this position •

"And Moses said : My Lord is best aware of him who
bnngeth guidance from His presence, and whose will be the
aequo] of the Home (of bliss). Lo I wrong-doers will not be
successful.

1. Ta/him <ti»Qur>an, pp.433.

172

The Islamic Law and Constitution

"And Pharaoh said : O chiefs ! I know not that ye
have a god other than me. So kindle for me a fire, O
Ham an to bake the mud, and set up for me a lofty tower in
order that I may search the God of Moses and lo 1 I deem
him of the liars." (28 : 37, 88)

■

The Pharaoh thus claimed godhood. But he could not have
by that meant that he was the Creator of the heavens and the
earth . Nor any man in his senses oould claim that. The
Pharaoh gsould not e/en mean that he was the only object of
worship, for the Egyptians worshipped a host ©f deities. In fact
the Pharaoh himself worshipped many, a god and owned hia
exalted position to his being regarded as the descendant of the
Sun-god.

This being the position, the Pharaoh's olaim to godhood
could only mean that ke wanted to be obeyed as the King and
the Sovereign of the people of Egypt. And from this viewpoint
hia position was not very dissimilar to that of the states which
claim legal and politioal sovereignty ior themselves independent
of the law of God. Such states may assign the sovereign position
to any one individual or to the will of the demons, but so long
as they olaim the laws made by them and not those laid down
by Allah and His Prophet are to reign supreme, there is no
difference, in principle, between them and the Pharaohs. The
nature of the olaim is the same, and there is no difference bet-
ween a Pharaoh who called himself ilah and the modern seoular
states whioh regard themselves sovereign in this respect. 1

According to Islam sovereignty belongs to Allah alone and

He is the only Law- giver.

(e) It is as a logical consequence of this concept of sovere-
ignty, that the politioal organisation of the Islamic State
has been called Khilafat (vicegerency). Man is God's vicegerent
on earth and as a vicegerent his nyssion in life is to carry out
and establish the command of the Sovereign. According to the
Qur'an :

1. Tafhim al-Qur an, Vol. Ill, pp. 637^8,

Political Concepts of the Qur'an

173

"Thy Lord said unto the angels : Lo ! I am about to
place a viceroy on the earth". (2 : 30)

Khalifa means one who enjoya certain rights and powers,
not in his own right but aa representative and viceroy of his
Lord. His authority is not inherent ; it is a delegated one. He
is not free to do whatever he likes, but has to act according to
the directives of his Principal. If he disobeys the latter, arro-
gates to himself power whioh does not belong to him, and aots
in oontravention of the directives of his Sovereign, then his
behaviour is not in keeping with his real position and amounts
to rebellion.

The purpose of the relevant injunctions of the Qur'an is
that mau should realise his real status of victgerency, and as
auoh, his duty to obey his Lord, follow His instructions and
establish His Will on Earth. If man does the contrary, he will
fall a prey to Satan— the eternal foe of man and will go astray. 1

This vioegerency is a popular vioegerenoy. Basioally it
belongs to all mankind and is not the exclusive privilege of any
individual, family, tribe, class or sect. But as it implies acknow-
ledgment of God aa the Sovereign, only those who acknowledge
this (».«., Muslims), to whatever class or clan they may belong,
have the right to exercise it. That is why in an Islamic State,
vioegerenoy is confioed to the Muslims alone, but is enjoyed by
all of them and is not confined to any clan, class or dynasty. 2

(/) As we have said earlier, it follows from the concept of
the Sovereignty of God and the vioegerenoy of man that the
latter shoald follow the law revealed by the Lord. This is what
the Qur'an emphasises time and again,

"And say not concerning that wherein your tongues
utter a lie : this is lawful, and this is unlawful that ye may
invent a lie against Allah ; verily those who fabricate lie
ajainst Allah shall not succeed". (16 : 116)
This verse clearly states that the authority to declare one
thing to be lawful and another to be unlawful rests with Allah

_.- »

1. TvJhmTal-QuWan, Vol. I, p. «
i\ Al QuSan. 24 : 55.

174 The Islamic Law and Constitution

alone and no one else enjoys even a fragment of i t. This mean*
that the authority to legislate veBte in Him alone. Whoever
else tries to declare or adjudge about the lawfulness or otherwise
of things of his own authority is a transgressor, unless he does
bo on the authority of and within the limits prescribed by God.

Unabashed legislation— the act of deolaring, without any
let or hindrance, certain things lawful and others unlawful-
has been described as 'inventing lies against Allah'. It has
been called so because this can be the result of one of the
following two things only : Either the person doing so alleges
that what he is deolaring lawful or unlawful without showing
any basis therefor in the .Book of God, has a matter of fact,
been so ordained by God Himself or that God has abdicated
His authority in his favour and left him free to legislate as and
what he likes. Whichever of these two positions he claims for
himself is a lie pure and simple and a false imputation to uodA
Not only that, at another place the Qur'an says :

"Those who do not make decisions in accordance with
that which Allah has revealed, verily they are the disbe-
lievers the unjust the transgressors". (5 : 44, 46, 47)

Here God warns those who do not administer their affairs
in accordance with His revealed law and do not enforce it that
they are (a) disbelievers (6) unjust and (c) transgressors. This
means that one who disobeys the law of the Lord is guilty of
three crime* Kufr, Zulm and Fisq. Firstly this disobeyal
means that he is flouting the authority of Allah and is refusing
to accept His Command-which is Kufr. Secondly it amounts
to perpetration of injustice, for the Command of the Lord is
justice, pure and oomplete and any deviation from it results in
nothing but tyranny and injustioe, or in the words of Qur'an in
Zulm. Lastly, man being the subject of God, by disobeying
the Command of the Lord, he steps out of the ambit of loyalty
and obedienoe to Him, and this act of his is an act of
transgression. And that is Fisq. Thus whenever a man

1. Tofltim at-(iur'an. Vol. I, p. 678.

Political Concepts of the Qur'an 176

deviates from the Shari'ah he commits all the three crimes. It
is impossible that one may disobey a directive of All?.h and not
be guilty of these three crimes. The extent of guilt will, of
course, depend upon the extent of the deviation and disobey*!.
If a man regards a command of God as WRONG or doubtful
or outmoded and deems his own opinion or that of somebody
else as correct, he is a Kafir, a Zalim and a Fasiq of the highest
order and goes outside the pale of Islam. If ^a man acknowledges
the authority of Allah and professes his belief in it, but in the
practical affairs of life does not care for His Commands, then,
although he does not go outside the fold of the ummah hi*
Iman definitely gets mixed up with Kujr and Zulm and Pisq
and ho is not a real and pure Muslim. And if there is a man
who obeys God in certain fields and disobeys Him in others,
then his Iman too gets mixed up with Kufr and Zulm and Fisq
to the extent he disobeys the Lord.

The moral of the above verse is that the only correct, the
only just, and the only prudent courae for a Muslim is to follow
the law of the Lord and establish it over his entire life and in
that of the sooiety. 1

(g) The above is the natural dictate of the Islamic concept
of sovereignty and this concept is not only the cardinal concept
of the Qur'an but all the prophets of God were raised to
propagate it and establish it. The message of all the prophets
was one and the same : 'acknowledge God's Sovereignty and
follow me'. According to the Qur'an Prophet Jesus said :

,c And (I come) confirming that which was before me of
Torah, so that I may allow some of what was (formerly)
forbidden unto you. I come unto you with a sign from
your Lord, so keep your duty to Allah and obey me. Lo I
Allah is my Lord and your Lord, so worship Him. That
is the straight path". (3 : 60-51)

This verse clearly lays down that like all the prophets of
God 1 the message of Jesus was also the same and comprised
three basic points, viz. *

I. Tajhim atrQurtn, Vol. I, pp, 47&>7tf.

176

J

The Islamic Law and Constitution

(i) Sovereignty belongs to Allah alone— it is He who is to
be worshipped and it is His Guidance on which the
entire structure of morality, sooiety and culture is to
be reared.

(ii) The Prophet is to be obeyed as the representative and
the messenger of God, the Supreme Ruler.

(Hi) The law which is to decide the legality and correctness
or otherwise {halal and haram) of the things, most be
the Law of the Lord. It is His Shari'ah alone which

is to prescribe the lawful and the unlawful. None else

can have any say in this respect.
Thus the mission of Hoses, Jesus and Muhammad (peace be
upon them all) was one and the same. All of them stood for
the same ideology. People who have ascribed different missions
to different prophets are utterly wrong and make a baseless
allegation. Whosoever oame as the Messenger of the Lord,
asked the people to deaist from His disobeyal, from associating
partners with Him, from deviating from His guidance, and
called them to a life of unconditional obedience, loyalty and

submission to Him.

It is unfortunate that Bible as we have it to-day does not

present this mission of the Prophet Jesus (peace be on him) as
precisely and as clearly as is presented in the above verse of the
Qur'an. Nevertheless, even in the Bible as it exists we find
references, though scattered here and there, to all the three
points mentioned above.

About the first principle, relating to sovereignty and
worship, the New Testament says that :

"Then saith Jesus unto him, Get thee hence, Satan ;
for it is written, thou shalt worship the Lord thy God, and
Him only shalt thou serve". 8

And he further stated that the Will of God must prevail in

the domain of human world— the field in which man has been

• *

1 -

1. Al-Qw"*n, 26 : 108, 128, 144, ICS, 17».
%, Nmo rt$tammt t St. Matthew, 4:10.

Political Concept* of the Qur'an

177

given freedom and autonomy — as it prevails in the realm of
nature.

"Thy Kingdom oome. Thy Will be done in earth, ae it in
in heaven". 1

The second principle that Prophet Jeans presented himself
as the Messenger and the Agent of God the Real Sovereign and
asked the people to obey him in this very capacity, is supported
by many verses an the New Testament. When he began to
deliver his message and call the people of the Nazareth to the
religion of God and his own kith and kin stood in revolt to him,
he declared : So we are told on the authority of saints Matthew,
Mark and Luke that a prophet is never honoured in his own
country. And when conspiracies were hatched in Jerusalem to
do away with him and when his friends and associates requested
him to leave the place, he said that the prophet shall not die out
of Jerusalem. And when he entered Jerusalem for the last time,
his diBoiples were saying : "Bleseeth be the King that oometh
tn the name of the lord" I On that some of the Pharisees were
enraged and they said to Jesus to "rebuke thy disciples". Jesus
said : "I tell you that, if these should hold their peaoe, the
stones would immediately ory out" * On another occasion Jesus
said:

"Come unto me ye that labour and are heavy laden,
and I will give you rest. Take my yoke upon you, and

learn of me ; For my yoke is easy and my burden is

light 1 *."

And, lastly, that Jesus wanted people to revolt against
man-made law and to obey Diving Law, is upheld by the
following passage in the Gospel, according to 8t. Matthew :

'•Then came to Jesus scribes and Pharisees, which
were of Jerusalem, saying. Why do thy disoiplea transgress
the tradition of the elders t for they wash not their hands

K N**> Testam*»t, St. Matthew, 6 : 10.
2. I*d.. St. I«ke, 1ft s 3*-4ft.
& tbid., St. Matthew, 11 : 28-30.

178

The Islamic Law and Constitution

when thoy eat bread. But he answered and said unto them,
Why do ye also transgress the commandment of God by
your traditions!... Thus have ye made the commandment of
God of non-effect by your tradition. Ye hypocrites, well
did Esauas prophesy of yon saying :

"This people draweth nigh unto me with their mouth
and honoureth me with their lips ; But their heart is far
from me. But in vain they do worship me, Teaching for

Doctrine the commandments of men". 1
There is a similar passage in St. Mark 2

All these references go to prove that the mission of Jesus,
like that of all other prophets before him, was to preach the
sovereignty of God and to establish His law on the earth.*

THE PRINCIPLES OF LOYALTY TO

THE STATE

The Qur'anic concept of sovereignty is very dear and un-
ambiguous. It automatically follows from the ooncept that the
centre of loyalties, in the state founded on this concept, can
only be Allah and under His sanction, His Prophet. This
principle is further elucidated by the Qur'an in the following
verse :

"0 you who believe, obey Allah and obey His Mes-
senger and those from among yourselves who hold authority;
then if there is any dispute between ,you concerning any
matter, refer it to Allah and His Messenger if you really
believe in Allah and the Last Day. This is the best course
(in itself) and better as regards the result". (4 : 59)
This verse sets down the basis for the entire religious,
political, social and cultural system of Islam and comprises the
first principles of an Islamic constitution. It lays down the
following fundamental and unalterable principles :

\. Ntw Tf lament. St. Matthew, 16 :

% Ibid., St. Mark, 7 : 5-13. *

3. Tafhim al-Quran, Vol. T, pp. 254^56.

Political Ooncepts of the Qur*an

179

1. The real and sole object of our obedience is Allah, the
Real Sovereign. He alone is to be obeyed in His own right. A
Muslim is first and the last, the subject of God, His <abd (Slave).
All other positions are just secondary. The centre of loyalty
and obedience for a Muslim, in his individual as well as collective
life, is God alone. All other loyalties must be subject to and
totally within the sanction of God. None of them should, even
in the minutest degree, amount to a repudiation of the loyalty
we owe to Him. This idea has been expressed by the Holy
Prophet in these words :

"There is no (permission for) obedience to the creature
if it involves disobedience to the Creator".

2. The second fundamental basis for the Islamic Order is
loyalty and obedience to the Prophet. This obedience is not
demanded in its own right ; it is in faot, the practical manifes-
tation of obedience to God. The Prophet is obeyed because
he is the only authentio source through which the directives
and commandments of our Lord are communicated to us. As
such we can obey God only by obeying His Prophet. 1 There is
no reliable authority other than the Prophet to make us know
the Will of God and the way of His obedience. As such any
form of obedience not sanctioned by the Prophet is unauthentic
and therefore, untrustworthy. Thus tho disobeyal of the Prophet
is tantamount to disobeyal of God. The Holy Prophet
enunciated this principle when he said : .

"Whoever followed me followed God and whoever
disobeyed me disobeyed God".

3. This third object of the Muslims 1 obedience the Islamic
Order of life are the ulul-amr, i.e., the men in authority, the
government. Bat obedience to nhthamr comes only next to
obedience to Gdd and His Prophet and is subservient to both of
Them. And futhermore, the ulul-amr must according to the
very -verse wherein this term occurs, be from amongst the
Muslims themselves.

t. Cf. "Whoso obeys the Messenger, obeys Allah"- {Al*Qur'aH t i i 80),

180

The Islamic Law and Constitution

Ulul-amr is a term of wide connotation. It includes all
those leaders of the Muslim society who control and administer
its affairs, may they be leaders of thought or literature, religions
divines, political leaders, administrators, judges, commanders or
ohiefe of social, cultural, tribal, municipal or local organisations,
Thus whoever be in charge of any facet of the affairs of the
Muslims, deserves to be obeyed and followed in his own sphere.
It is not permitted that one should, by unnecessarily raising
issues with them and creating atmosphere of strife and conflict,
disturb the life of the community. The obedience to the
ulul-amr is, however, subject to the following two essential
conditions :

(») These ulul-amr should be from amongst the Muslim
community.

{«) They should themselves be obedient to God and His
Prophet and their policies and actions must conform to
the letter and the spirit of the Sharx'ah.

The Holy Prophet (peace be upon him) has expressed and
elucidated this prinoiple in many of his sayings. For instance :

(a) "A Muslim must listen to and obey the ruler whether
he approve? of what is ordered or abhors it, provided
he is not ordered to sin. In that case, he should neither
listen nor obey". 1

(6) "There is no obedience in sin. It is only in virtue". 2

(c) "You will be governed by people some of whose acts
and commands would be virtuous and some others
sinful. Then whoever expresses his open disapproval
over the munkarat (the sinful acts) will not be held
responsible for them and whosoever disapproves of
them and dislikes them (at heart, although he does not
express his disapproval in so many words) will atao
' save his skin ; but whosoever approves of them and
follows them would be held accountable for them".
The Companions asked ; "When the days of suoh rulers

1. Bukhari, AUSakik.

Political Concepts of Ike Qur'an I 81

should we not wage war against them V The

Prophet Baid : "No ! Not as long as they offer saint".*
According to this haditk the symbol of obedience to God and
to Hin Prophet is salat. If the ulvl-amr discard it also, then
they step out of the basic loyalty to God and His Prophet.
And then it becomes permissible to stride to remove them.

IS) The Holy Prophet said :

"Your worst rulers are those whom you hate and who
hate you and those whom you curse and who ourse
you". Asked the Companions : "O, the Prophet of
Qod 1 If such is the situation, then should we not rise
in revolt against them 1" Replied the Holy Prophet :
•«No I Not as long as they establish prayer among

you". 2

This hadith further confirms the one mentioned m {c) above.
The first hadith might be construed as meaning that even if the
rulers offer prayer in private, they retain the right to exact
loyalty But the latter hadith clearly enunciates that what is
required is establishment of the institution of salat in the
collective life of the Muslims. In other words, not only they
should themselves offer pravers, but should also utilise the
power of the State to establish the institution of salat in the
community. If the State does this, it retains its Islamic
oharaoter. But if even this much is not there, it would mean
that the State is not prepared to fulfil even the first essential
requirement of Islam. In such a J case it would become
permissible for the Muslims to strive to change the order of
things. The point has been further emphasised by the Holy

Prophet in the following hadith :

(«) "We shall not dispute and strive against the rulers save
when we see open Kufr in their affairs—K«/r in the
presence of which wo will have nothing to save our
face before the Lord. 3

T. "Muslim, AUSahih. *
Z. Ibid,

3, Bukhai'i, Al-Sahih, also Muslim.

182 The Islam ic Law and Constitution

The fourth principle which too baa been clearly and
*m*tj expounded in the above verse of the Qur'an is that in
an Islamic State the Command of God and the Sunnah of the
Prophet are the final anthority. Whenever there is a dispute
among the people or between the people and the rulers, it shall
be referred to the Book of Allah and the Sunnah of the Prophet
•ad whatever Judgment follows therefrom should be aoeepted
*a binding on all. Thus the fundamental and distinctive
characteristic of the Islamic State, which distinguishes it from a
non.Ielamic State, is that it accepts God and Bis Prophet as the
final authorities. If this be lacking the State is not Islamic.

Some people ask how a modern state can look to the
Qur'an and the Sunnah for the solution of all its problems.
There are Jots of problems concerning Municipalities, Rail-
ways, Posts and Telegraphs eto., about which the Qur'an and
the Sunnah have nothing to say. What will the State do in
respect of these 1

The objection is misconceived. The factor which dis-
tinguishes a Muslim from a non-Muslim is the difference of their
approaoh to life. The non-Muslims, even those who believe in
God and in Prophethood, have ceased to look to His guidance
in regulating their affairs. They regard themselves free to chalk
on t their own solutions for their problems. A true Muslim, on
the other hand, regards himself subject to the Law of God in
all that he does and exercises his will to regulate bis affairs
only to the extent he has been premitted to do so by Allah. He
first of all turns to the guidance provided by God and His
Prophet and aots according to his own lights only when and
where no specific or implied guidance is available in the Qur'an
and the Sunnah. And this action in accordance with his own
lights too is based on the principle that the silence of God and
His Prophet in a certain matter implies that They have left
that matter to the good sense of the Muslims.

5. The verse also gives the people the right to differ with
their rulers and is a charater of their political freedom. In case
of diaoute, however, the verdict of Allah and His Messenger in

Political Concept* of the Qur'an

163

to be taken as final, both by the rulers and the ruled. Thin
clearly implies that there must be some institution for deciding
such dispute it. the light of the Qur'an and the Sunnah. In
other words, the judiciary in an Islamic State must be indepen-
dent, competent and bold enough to give an impartial verdiot
irrespective of the position and power of the parties to a dis-
pute. 1

V

THE PURPOSE OF THE STATE

Now we come to the purpose of the State. The Qur'an
lays down the following directive in this respect :

"(Muslims are) those who, if We give them power in
the land, establish the system of Salal (worship and
prayers) and Zakat (poor-due), enjoin right and virtue
and forbid wrong and evil." (22 : 41)
The above verse epitomises the purposes of the Islamic
State and the basic characteristics of the rulers and adminis-
trators. This one verse alone is sufficient to give an idea of the
nature and the objectives of the Islamic State. God's bounty
and assistance are for those people who, when given power, act

in the following way :—

(a) In their personal lives they adopt the way of piety and
obedience. Their character is free from the blemishes
of sin, disobedienee to God, vanity and arrogance
They behave like real gentlemen, offer prayers to their
Lord, act humbly and establish the system of Salat in
the collective life of the people.
(6) Their wealth and resources are not wasted on sensua-
lities and luxuries. Instead they establish the institu-
tion of Zakat (poor-due) -*.«., they pay their own Zakat
and organise the institution of Zakat so that the
wealth of the community may have an equitable dis-
tribution and the State may fulfil its welfare functions,

U~Tafhim al-Qur'an Vol. I, pp. 563-66.

184

The Islamic Law and Constitution

{ c) They use the powers of the State for the eradication of
evil and of sin and for the promotion and establish*
ment of virtue and goodness.

These are the objectives of the Islamic State.*

VI

THE PRINCIPLES OF GOVERNMENT

In the Islamic State the Government is democratically
constituted and is ran with mutual consultation. The Qur'an
•ays :—

(a) "God has promised to those among yon who believe
and work righteous deeds that Ho will surely grant
them vicegerency in the land." (24 : 65)
The verse is quite clear on the point that this vicegerency
is promised to the entire Muslim community. Therefore it is a
popular vicegerency and is not limited to any particular indivj.
dual or group of people. Consequently, the entire community
is responsible for the affairs of the State* and as such only that
government can legitimately carry on the business of the State,
that has been constituted by popular will and works in confor-
with the powers delegated to it by the community.

(6) "It was by the mercy of Allah that thou hast been
gentle with them (O Muhammad), for ifthouhadst
been stern and hard-hearted, they would have surely
dispersed from around about thee. So pardon them,
and ask forgiveness for them and consult with them
upon the conduct of affairs. And when thou (O Muham-
mad) art resolved, then put thy trust in Allah- Lo !
Allah loveth those who put their trust (in Him}".

(1 : 159)

(c) "They manage their affairs by mutual consultation."

(42:38)

It follows from the above verses that the approach of
1. Tafhim al-Qur'en, Vol. IU, p, 235.

ft Based on j Tajhim al-Qur'an, Vol. IU, Surah ai-Nur, pp. 417-490.

Political Concepts of the Qur 9 an 185

government towards the people should be baaed on love, sympa-
thy and forgiveness. It should try to lighten their burdened
provide for them the necessities as well as the comforts of life.
It should look to their welfare, betterment and prosperity.

Fdraterm^re, the government should be c6nstituted and
run in consultation with the people. Its structure must be such
that the people are able to express their viewpoint; It is their
will whicii shouicj preVail. Ani this ein take place only in a
state that is demo&atio in structure and in its working.

YI?

CO^fEPT OF CITIZENSHIP

(a) Although the Islamic State is an ideological state, it
confines its citizenship to only those persons who live on its
tettitc-ry or migrate to it. It is not an extra-territorial state.
This is borne out by the following verse of the Qur'an :

* ^iiy those who befieWand migrited and struggled
hard ik^flah's wky with their property ai!d Inelif soul*,
jtitif* ttiorfe Who gave (theni) shelter and hel^hey are
guardians of ekoh other, and (as for) those who believe but
4*4 ' ™f ™fgrate ' (to the Islamio State), you bave nothing
fo J do witjHhefr guardianship until they migrate ; but if
ttiey Beet ielp from you in the matter bf fttifch then it is
your cfuty to lielp (them) exbept against a ; folk between
whbnT and you there is a treaty. Allah is Seer of what ye

TWe verse lays down another basic principle of the Con-
stitutional law of Islam, viz., only those persons will be under
ihe ^^ans% <>f tne Islamio State who either li ve in dar dl
lafohi >6t ^ Who migrate to it. As for those Muslims who live out-
side >ne &nltf$'oftiki Mamfo' State, it will nbt assume their
guard&nstep: The reiationship of Islamio brotherhood will be
ther^Vbu* i^t the legal rospohsi&lity of guardianship ' If they
migrate Vo ^ ^n'^cine they wiM be entitled toits' gualrdiin-
ship. If they oonte only as visitors and retain their citizenship

1S6 The Islamic Law and Constitution

of a non -Islamic State, they will be regarded as the citizens of
that non-Islamic State and will not become entitled to the
guardianship of the Islamic State.

Wilayat is an Arabic word and it means support, assis-
tance, protection, friendship, relationship, patronage, guardian-
ship and the like. In ita context the above quoted verse clearly
denotes the relationship subsisting between the State and its
citizens and among the citizens themselves. Thus it limits the
political and constitutional guardianship (/.«., the citizenship)
to the territorial limits of the State and excludes from this
guardianship those Muslims who live outsido the dar aJ^Tdam.

The legal consequences of this distinction are far-reaching. 1
This will also affect the foreign polioy of the Islamic State.
Tn the light of this verso the direct responsibility of the State
is limited to the Muslims who reside in its territory and does
not extend to those who do not live in it. This is what the Holy
Prophet meant when be t*aid ; —

"I am not responsible for the protection of a Muslim

•vrho lives among the Muthrifo (Polytheists)."

This is how the Islamic law has cut the gordian knot which
has been at the root of many an international complication.
For when a state takes upon itself the protection and guardian-
ship of the minorities which live outside its territory, it invol-
ves itself in such complications that even consecutive wars oan-
not help it to wriggle out of them.

The Qur'an does not hold the Islamic State politically
responsible for the protection and guardianship of those Mus.
lims who live outside itB territory. But it does emphasise the
relationship of religious fraternity and takes cognizanco of its
implications. If Muslims are being subjected to tyranny, if
genocide is being perpetrated upo» them and if they invoke the
help and assistance of the Islamic State on the basis of their
membeship of the Islamic fraternity, it is obligatory on the

I. Mauduiii, Ram^l-o-Maeail. Vol. II, I*Uu»ic Publications Ltd.,
Uhove, pp. 150-164

Politieal Concepts of the Qur'an 18?

State to go to their help and to protect them. But this function
must be discharged with doe regard to international commit-
ments and moral obligations. The Islamic State is not free to
hehave in any manner it likes. If it is bound in an agreement
with the tyrant nation, then the Islamic State cannot extend
auch a help as may contravene the agreement or its moral obli-
gations without first repudiating the agreement openly.

The word whioh has been used for agreement in the verse
is meethSq whioh is used in the sense of trust and understand-
ing. By meethSq is meant any understanding which shows that
one state is not at war with another. If this understanding is
there, even though there be no written treaty of alliance or of
friendship or a non- aggression pact or a no- war treaty the
Islamic State would be deemed to have a meethSq with such a
State. ■

The words used in this verse are : bainahum tea bainahum
meethSq (between whom and you there is a treaty). This shows
that the treaty between the Islamio and the non-Islamio State
is not merely a treaty between two states ; it is a covenant
between the two peoples as well, and the Muslim nation is also
morally responsible for the treaty along with its government.
The Shari'ah does not admit of a situation in whioh the Mus<
hm people may be deemed to be absolved of the moral respond-
bihty of the treaty entered into by their state. But the moral
responsibility of the treaties of the Islamic State will devolve
only on the Muslims who are citizens of the Islamic State. It
will not extend or apply to those Muslims who are not citizens
of the State binding itself by a treaty. That is why the Treaty
of Hudaybiah was not deemed to be binding on those Muslims
of Mecoa (e.g., Abu Basir and Abu Jandal) who had not yet
become the citizens of the Islamio State.

Thus it follows that the State can help the other Muslim
brethren outside its territory only in ways which do not con-
travene the treaty between the Islamic and the non-Islamio
State or can help them after openly denouncing the treaty, if it
bo deems fit. It cannot do bq in any manner contrary to

188 TM Islamic Law and Constitution

recognized standards of International ethics an<| morality.*

(b) As the Islamic State is an ideological state it classifies
its citizens into two categories, p%z. Muslims and %immis. Tjus

differentiation is essential in view of the ideological nature of
the State, But ii does not lead tol the division of the people

into different cases, nor is any group deprived of basic human
rights. The Quran says :

!'Lo I the Pharaoh exalted himself in the earth and

runt ion and oorrnption (fasaaa).

Tfaus in the eyes of his government all citizens were not
equal in law. All did not enjoy similar rights. Instead he
adopted the policy of dividing people into groups and castes
and of oppressing one group arid exalting another, making one
the subject and the other the over}ord.

Hore some one may raise an objeotion and say that the
Islamic State too classifies its citizens into Muslims and Zimmis
and do* not give each one of them rights and privileges similar
in all respects. But this objection does not hold good beoause
the grounds of classification in an Islamio State are radically
different from those on $he basis of which the non-Musliii
states of the past atid present have been making this classifica-
tion. Islam does not 1 divide people on the basis of tribe, race,
colour, language or class. It differentiates between them on the
basis of a principle and an ideology. And whoever accepts the
ideology Which is its basic principle, its raison d'etre governing
all its actions etc. becomes entitled to the rights of full citizen-
ship.

Further, the Islamic State confers all basic human rights
on its non-Muslim citizens as well and there is no distinction as
to rights and privileges between Muslims and non-Muslims in
this respect. Whatever distinction is made between the two, is
in the realm of political responsibUities only. Since an Islamio

1. Wtifhim al-Qur*<tn, Vol. II, pp. 161-63,

Political ConctpU of the Qur'an 169

Stat© is based on an ideology, it is evident that only those who
believe in that ideology can be entrusted with the responsi-
bility of running its affairs. Only those of its people can herein
bear We responsibility of policy-making who believe in the
ideology which must necessarily govern its policies arid pro-
grammes. Arid, as already explained, whoever accepts the
ideology, becomes one of the , governing class an<t whoever
spurns it, steps out of their fold. Thus there is absolutely ho
similarity betweep this classification and the one mafle and
maintained by the Pharaoh under wliich rip one from the sub-
ject race could ever qhter the fc?ld of the ruling class, in which
the subject race was deprived of all human rignts and was with-
out any guarantee of life or honour, in whioh all economic bene-
fitp were reserved for those who were born among the group of
rqlers and all avenues of progress were closed upon the reat
who were subjected to servitude so that their life became an
unending woe of misery and deprivation. 1

Viii

BilfcttVfc iftlNfclftiS tifr StATE ^LltY

Aibagwltn the Vasic poiitjoal concepts, the Qur'an has also
given some cogent directives for Btate policy. A careful study
of these directives tnrowa ample light on the objectives of the
Islamic State. The following verses of the Qur'an are very
important in this respect :

"Set not up with Allah any other god (0 man) lest

thou ait down reproved, forsaken. Thy. Lord hath decreed

that:

■ »

(1) Ye worship none save Him ;

(2) (Ye show) kindness to the parents. If one of them or
both of them attain old age with thee, say not "Fie"
unto them nor repulse them, but speak onto them a
gracious word. And lower unto them the wing of

1. Tafhvm abQur'an, Vol. Ill, pp. 613-W.

The Islamic Law and Constitution

TIT*

submission through mercy and kindness and say : My
Lord ! Have mercy on them hoth as they did care for
me when I was little. Your Lord is best aware of
■ what is in your minds. If ye are righteous, then lo 1
He was ever Forgiving unto those who turn unto Him ;

(3) Give the kinsman his due, and the needy and the way-
farer :

(4) Squander not thy wealth in wantonness and extrava-
gance. Lo 1 the squanderers were ever brothers of the
devils and the devil was ever an ingrate to the Lord ;

(5) But if thou turn away from them (i.e., the deserving
kinsmen, the needy and the wayfarer) seeking mercy
from thy Lord, for which thou hopest, then speak unto
them a reasonable and kind word ;

(6) And let not thy hand be chained to thy neck nor open
it with a complete opening, leat thou sit down rebuked,
denuded ; Lo 1 thy Lord enlargeth the provision for
whom He Will, and straiteneth (it for whom He Will).
Lo 1 He was ever Knower, Seer of His subjects ;

(7) Slay not your ohildren, fearing a fall to poverty, (it is)
We (Who) provide for them and for you, Lo I the slay-
ing of them is great sin ;

(8) And go^not near unto adultery. Lo 1 it is an abomina-
tion and an evil way ;

(9) And slay not the life which Allah hath forbidden save
with right. Whoso is slain wrongfully, We have given
power unto his hdir, but let him not commit excess in
slaying. Lo 1 he will be helped ;

(10) Come not near the wealth of the orphan save in a be-
fitting manner till he comes to strength ;

(11) Keep the covenant. Lo I of the covenant it will be
asked ;

(12) Fill the measure when ye measure and weigh with a
right balance ; that is neat and better in the end ;

(13) (0 man), follow not that whereof thou hast no know-

Political Concepts oj the Qur'an

191

ledge. Lo 1 the hearing and the sight and the heart of
each of these it will be asked ;
(14) And walk not in earth exultant. Lo ! thou canst not
rend the earth, nor canst thou stretch to the height of

the hills.

The evil aspect of all these is hateful in the sight ol
thy Lord.' This is part of that wisdom wherewith the Lord
hath revealed unto thee (0 Muhammad I)". (17 : 29-39)
In the above verses the Qur'an has presented those basic
principles which constitute the bedrock of the Islamio Order.
The verses were revealed at a moment of historic significance,
i.e., on the eve of the beginning of Madianite period. The
Meooan period was coming to a close" and a new chapter was
going to be opened in the life of the Islamio movement. On
this historic oooasion the Manifesto of Islam was revealed : a
manifesto which was to act as the source of policy and conduct
for the new Islamio State of Medinah. It sets down the guiding
principles for the moral, religious, social, economic, political
and cultural reconstruction of the new state and society.

(a) The real meaning of the first principle is that none
except Allah should be worshipped and bowed before, and
also that He alone and no one else should be unconditionally

obeyed in all fields of life. His Command alone should be taken
as the Command and His Law alone should be accepted as the
Law and He alone should be acknowledged as the sole Roler, the
Sovereign and the King. The principle is not meant to be
merely as a private belief and article of faith for the individual
but also constitutes the very "foundation of the Islamic system
of life and it was on this very pillar that the Prophet (peace be
upon him) Bet up the society and state of Islam at Madinah.
The Islamio Sta'ttf'of Madinah was founded upon an ideology
and this ideoldgy was none other than thiB : that Allah is the
supreme Ruler, the Sovereign and the King and it his Shari'ah
which constitutes for man the code of conduct and for the State

the law of the land. ^

(b) According to the second prinoiple^the rights of the

parents come first among those of all- human relations and are

192 Tht Islamic Law and Constitution

ne^t only $o the f ights of God Himaelf. , People; must be res-
pectful and obedient to their parents and should serve them, to
the best of their capacity. The moral climate of the society
should be ^h as to make the sons and deters respeotfqi %o
the parents and not disobedient to them. It should inculcate in
them the spirit of service and induce them to look after thpir
parents in the same way as they were themselves looked after by
them when they were young and in neod of it. This verse is
not merely in the nature of a moral precept ; rather it was the
foundation upon which the legal rights of the parents were later
determined as is clear from the relevant portions of the books
of Hadith and Fiqh. Similarly because of this injunction, an
honoured position has been assigned to the parents in Islamic
society and culture, and it is the duty of the community as well
as of the State to take measures to protect aud maintain this
position. Moreover, in the sight of this injunction, the principle

has been laid for ever that the Islamic State will so fashion its
legal, educational and administrative policy that the institution
of the family is upheld and strengthened and is provided with
state protection.

s (c) The real import of articles 3, 4 and 5 of this Manifesto
is that a man should not reserve his earning exclusively for his
own needs. Rather he should maintain an unostentatious and
balanced standard of life and devote his surplus wealth for
helping his relatives and the needy and the destitute to meet
their needs, so that the spirit of co-operation, mutual sacrifice,
economic cohesion and deep regard for each other's rights may
permeate ♦ he whole social climate of the history. Every person
should hAp and assist his relatives. The rich should come to
tJj^A^p of the poor and assist them in nieeting the ups and
downs of life. Every wayfarer should always be assured of a
. square meal wherever he may be in a Muslim land. The people
should be so imbued with the Islamic-concept of 'right' that
they should always feel that in their wealth is a share for the
people who live around them and if they help and assist them,
they merely give them something which was the latter's 'right'

Political Concepts of the Qur'an 193

(as distipgxiished from 'dole' or charity), 1 And if a person it not
in a position to assist others, then lie should regard it as a cause
for regret and seek the bounty of Allah so that he may serve
other people and assist them in procuring the amenities of life.

Like the first provision, these provisions of the Islamic Man i-
festo, too. were not meant to be mere moral tenets. The Islamic
State of Madinah translated these injunctions into practice and
it was in their light that a system of compulsory contributions
sadaqm-e-tvdjibah) and of voluntary contributions (tadaq&t-e-
nafiiah) was evolved, that a system of waalyah (Will), wirasah
(Inheritance) and awqaf (Trusts) was devised and proper safe-
guards were provided for maintenance of the rights and proper-
ties of the orphans. It was made obligatory on every habitation
to play host for three days, at least, to any traveller who comes
to it. Moreover, every endeavour was made to infuse to the
community the spirit of sacrifice, generosity, philanthropy and
co-operatiOn so much so that the people came to attach as much
importance to the moral rights and responsibilities as they did
to the legal rights and duties.

(d) In the 6th item it has been suggested that people should
^either become too tight-fisted nor top open-handed. Instead
they should adopt a via media and should so expend their
wealth that they neither hinder the proper and equitable cir-
culation of wealth by acting miserly nor fritter away economic
strength by adopting ways of extravagance. They should main-
tain a balance in their expenditure — neither hesitate to spend
where necessary, nor indulge in avoidable or unoalled for ex-
penditure. All those who, in their spendings, are motivated by
hypocrisy, ostentation and exhibition of wealth, or who spend
in the cause of luxury, vulgarity, or corruption or needs other
than genuine, divert wealth into wrong, wasteful and unpro-
ductive channels and are guilty of abuse of God's blessings.

J. Tb© Qur'an aays t . .

♦•la their wealth the beggar and the destitute have their due (ifof)"*

(Al-QuSan, 51 : 19) — Editor.

The Islamic Law and Constitution

According to the Qur'an those who misuse their wealth on evil
pursuits act as Satan's accomplices.

These injunctions too have their legal and social bearing
and clearly suggest that a healthy society should, through
moral education, social pressure and legal restrictions, check
the waste of wealth. It was in pursuance of these injunctions
thjit the Islamic State of Madinah legally prohibited certain
forms of expenditure, stopped the flow ot money into certain
channels and through social reform abolished many a wrong
custom which involved extravagance and over-expenditure.
The State was empowered to pot a stop to pronounced forms of
public extravagance. Through all these measures wastage of
wealth was cheeked.

Side by side with this, through Zakat and Sadaqdt a smash-
ing blow was administered against miserliness. Through them
the possibility of hoarding of wealth was eliminated and it was
ensured that there was proper circulation of wealth in the
community. Through sooial education people were made to
understand the difference between philanthropy and extrava*
ganeo, benevolence and reckloss spending, miserliness And
austerity and niggardliness and thrift. In the social olimate so
engendered the spend-thrift and the miser were looked down
upon, while the philanthropic and the generous and those who
maintained a balance in their life were looked upon with honour.
And it is a result of this very moral and mental training that
ever since then Muslim society has loved and respected the
generous and philanthropic and despised the miserly and the
greedy.

It is further suggested in the passages quoted above that
the disparities of wealth are not neoessarily unnatural. Dia*
parities due to natural causes and not due to artificial barriers
raised by man are not essentially an evil and hence it is in no way
advisable to try to eliminate them by enforcing an unnatural
equality. Equality of the unequala is no equality at all !
Neither is it proper to change natural inequality nor to extend
inequality to unnatural limits and make them inequitable.

Political Concepts of the Qur'an

195

Both the extremes are equally reprehensible. A healthy econo-
mic system should maintain justice and keep the distribution
of wealth within the limits prescribed by the Lord of the
universe.

It was as a result of this directive that the concept of
"class Btruggle" could never gain ground in the economic policies
of the Madinite State. Differences in income and wealth were
never regarded as an evil in themselves which must at all
costs be eliminated. Thus the Islamu State recognised the
natural differences whioh are inherent in men and instead of
enforoing an unnatural equality it tried to so fashion the society
through moral education and lega} processes that economic dis-
parities, instead of becoming an instrument of oppression or
exploitation, became agencies of the promotion of many a social,
moral and economic virtues.

(«) The seventh princtple gives tho lie to the basis on whioh
the movement for Birth Control and Family Planning has been
raising its head from time to time. In old times the fear of
poverty led the people to resort to the killing of their offspring
or to abortion, and now the method of contraception has been
added to it by modern science. This seventh clause of the
Islamic Manifesto directs people to totally avoid all those efforts
whioh aim at curtailing the number of the people and instead
to devote heart and soul to the constructive effort of multiply-
ing the means of economio sustenance. According to this pro-
vision, it is one of the greatest follies of human beings that
they resort to the curtailment of their numbers merely out of
an imaginary fear of the insufficiency of economio resources.
" God says that the provision pf economic resources does not lie
with man, it is solely in His Hands. He made the world, He
endowsd it with all necessary resources, and He has been feed-
ing those who have gone before and will feed those who are to
oome in future. It is He Who has taken upon HimBelf the
feeding of His creation. History also tels us that the economic
potential has increased in the countries whose population has
increased and oftaa the rate of growth of the economy has been

196

The Mamie Law and Constitution

S Z : .U'^- y - 1° " >°* ? n tbis does not
3 Sd 0 --es also endow-

StSt ^ ^ A • 14 » jotf* to think that

Nature e plan ,s defective and that we must destroy or check
human torogenoy to correct the situation i

It isaresultof this very teaching of the Qur'an that Birth
Consul has never applied much to Sfuslim society and has never
gained currency among them.

in ^r?° fl™ T aduJt6ry " " a oommaa * ^^essed to the
ndmdua^ and the society alike. For the individual it means
that he should not only avoid adultery but should also avoid all
those pregnanes which may lead to it. He should avoid all
those things whioh tannm* » stepping ■

and adultery) For the society as sucn ,t means that it should
«™ S a T *T h T 8h ° M a,8 ° eIiminat ° * — • -cen.
root and branch This purpose is to be achieved through proper

^r^t T r 0a8UrM aDd ail Ofch0r effective T*"
individual and the society both must be free from the evil of

This injunction became the source of many social laws and
ru esofcnduct iol.^. For Stance zina and false a,cus

duc^andT/TT;r gniZab,6 ° ffenCefl; ^^ ™
duced and its rules laid down, stringent step, were adopted to

stop vulgarity and corruption, drinking was forbidden ; and so
were instrumental music, dancing and the making of human
likenesses - (all the kith and kin of zina I) ; and a family law
was evolved by which marriage was made easy and a simple
affair and the social causes of zina were totally eliminated.

(?) The ninth principle forbids the slaying of human beings
Th,s^iesas much to suicide as it applies to the killing of

intend in fh. r Atom -Market, Lahore, 19m. Those

Jm V y™™"^™*** Plea for birth-control mav

Sett/ " » 6rn ! * Y 0rH mth ° Ut War ' L ^"- Arthur
VKtonaM, Pcopte, Space, Food, London, 19ft'.

Political Concept of The Qur'an 197

others. According to the Law of Islam the slaying of human
life— whether of others or of one's own self— is the greatest crime
and a Muslim must never ever think of it. Man has harboured
tjie illusion that'fcie own life belongs to him andf h« Is entitled
to put end to it. It is a misconception, pure and Himple. All
lite belongs to Aflah an d m an has no right even to misuse it,
much less to destroy it. God has By bestowing life and other
resources on man put him on trial and he should always be pre-
pared to faco this trial to the last fcreath, whatever the ion-
diiions thathe may have to pass through duW^tyie 'f*f
t^is triaU * To rim away from the trial is folly.' And to commit
±v "s Tolly J)y "means of suicide— a gruesome oritne— is worst'of all.
., aen lb1)y anij crime are wedded together; nothing }>ut ' igno*
miny in &e woV)4 and' worst punishment in the hereafter can
resujfc from it. Can anything be more futile than to court
eternal pain and ingtory to avoid temporary misfortunes and
frustrations of this world ?

Taking of human life baa been forbidden save with right.
According to islamic law this right is limited to five oeoaeibhi,

W ?

' (0 Qtofl {Retaliation) from a murderer,

(n) filling of enemies in an Islamic war,

(Hi), punishment for those who try to overthrow the Islamic

way of life,

(iv) punishment for adultery by married males or females,
and '

(v) punishment for irtidad, i.e., high treason,
j&«e«m taking of

human Kfe justifed and legal and not otherwiae.
ft has further been said :

"Ve have given power unto his ((Jeoeased's) heir but let
him not commit excess in slaying .

'* py Power 1 ' (««Kan) is meant justification to Remand Qisaa
(retaliatory killing). From this arises a principle of Jsjamio
law that in a case of murder the real plaintiff is not the State
but tie heirs of the murdered person— and they are empowered

188 The Islamic Law and Conafitvtion

to forgive the murderer and to take blood-money from him in-
stead, or forgive him altogether. The State itBelf does not
have the right to grant pardon.

There can he many kinds of excesses in slaying and they
are forbidden in Islam, e.y., to kill persons other than the mur*
defer, to kill him by torture or by excessively painful methods,
or to xnulilate his body after his [death ; or to kill him even
after taking the blood-money, and so on. \

It has been said : "He will be helped", but as at the time
of tbe revelation of this verse the Islamic State had not yet
come into existence it was not explained who would help him.
Later on when the State was established, it was decided for all
times that the pnnjabment will be imparted by the Islamic
State through its judiciary. No individual or group or clan or
tribe is entitled to take the law into its own hands to avenge a
murder. Only the State can do that. The hair of the murdered
porsons is to seek justice from tbe Stste which *ball provide it
in full measure.

(A) The principle adumbrated by the 10th clause was also
not a mere moral precept; it inspired the Islamic State of
Madinah to devise legal and administrative means to safeguard
the rights of the orphans, the details of which are available in
books of Badith and Fiqh. And from it was derived the general
principle that the Islamio State is responsible for the protection
of the right of those citizens who cannot look after their own
interests. The following hadith of the Holy Prophet refers to
this very point and constitutes the source of great many laws
in Islam :,

"I am the guardian of one who has no other guardian".

(i) The 11th clause also became the corner-stone of the
internal and foreign policy of the State. It too was a moral
precept as well as a directive for state policy.

ij) The 12th clause presents the view that honesty is not
OI *ly » good moral quality, it is also the best economic policy.
It is good for this world and for the hereafter. In this world it
will build up good reputation and will enable the vendor to wfy

Political Concept* of the Qur*an 199

the confidence of the buyer. This will automatically lead to the
promotion of trade and fostering of mutual prosperity. And in
the hereafter, the honest will prosper, for therein entire reward
would depend upon man's honesty and his fear of God.

Like the other injunctions, this one too is not meant an a
moral precept only. It has acted as a directive atate-polioy and
it was held to be the responsibility of the Islamic State to keep
an eye upon trade-practices and to see that right measures were
being used. And it was from this injunction that the general
rule was derived that it is a function of the Islamic State to
check malpractices and exploitation in the economic field and

enforce justice therein.

(k) In clause thirteen it has been said that Muslims should
not base their aotions on suspicion or doubt. They should
always fashion their individual and social polioies in the light
of "reliable knowledge". This dictum too had many far-reach-
ing effects. Ia the realm of ethics it oame to be a principle that
one should avoid casting suspicions and doubts upon others and
should never make any allegation against others without proper
investigation and verification. . In the 6eld of law, the principle
was adopted that no aotion would be taken against anyone
merely on the basis of suspicion. Similarly it was forbidden to
arrest a person, to beat him or imprison him merely on suspicion.
In foreign relations it was not permissible to take any step
against another people or state without just cause ; nor was it
proper to give currency to rumourB merely on ground of sus-
picion. In education those subjects were not encouraged which
are not based on sound foundations and which rest on mere
conjectures. And above all, it led to the eradication of all
superstition in religion. Muslims were asked to form their belief
on what was revealed to them by God through His Prophet and
on what was taught by the latter— in other words, on surest
Knowledge and not upon myth or ignorance.

(/) Lastly, Muslims are told that they should shun the ways
and the manners of the arrogant and the tyrant. This precept
too is meant for individual and national life alike. And it was

200 The Islamic Law and Constitution

» result of this very injunction that the lire* of the ruler., the
foremen and the generals of the Islamic Stete of Madinah were

f ^ ffifi ar * i * c ! al |«b| which ig a okiriteatie of

« '«^|^t-»n^ J ^*^ra«l and the deoaiient. They
fef ? I^^W! TWr maimers were 8inii>1e and aCraightfor-
w«ra.' Cfborteay «id, kindness were their w*yi\ They hehaved

™* h • P eo P* 8 in W ^ eBt °f w »y" : with and sympathy

"^feiS^^P**- " " " ^FT^j? "'iSfc^ar'"-*^^ 1 ^' wMhibb^ words of

" ride or »rrog»noe. And' when Vio^oriona, they never tried to
™k-i-i ««i.„. u ™- ,»4 bJiow. Thia waa hdw'the laiamio

it)..

|to of the Islamic movement led by

^P^fW?^ him} and in it

wer'eTaM^

1. )U«du«VrVMft a*.Q«r\w», Vol, II, pp. 609*17,

Chapter 6

*

First Principles of
the Islamic State

The movement for the adoption of Islamic
Constitution waa at its climax in the last quarter
of 1952 when Manlana Maududi visited Karachi
in November. He waa invited by the President
of the Karaohi Bar Association to address a
gathering of the lawyers and the intelligentsia of
the metropolis- As it was a disonssion forum,
Maulana Maududi prefaced the discussion with
a brief but comprehensive talk on the basic
principles of the Islamic State and the nature
and contents of Islamic Constitution. This talk
was given to enlist the support of the upper
intelligentsia to the cause of the movement for
the establishment of an Islamic State in Pakistan.
It also possesses a historic significance, for it was
given at Karaohi at a time when the Basic Princi-
ples Committee Report was being finalised. The
Report was going to be presented before the
Constituent Assembly in November 1952, but at
the last hour its presentation was postponed
for one month and material changes were made
in its text to incorporate some of the demands
of the Islamic elements. A resume of the said
talk is given in the following pages.— Editor,

FIRST PRINCIPLES OF THE
ISLAMIC STATE

should, at the very outset, clearly understand the

nature of the problem that confronts us. When we say

that this country should have an Islamic Constitution, we do

not mean that we possess a Constitution of the Islamic State in

a written form and that the only thing that is required to he

done is to enforce it- The core of the problem is that we want

an unwritten constitution to bo transformed into a written one. 1
What we term as Islamic Constitution is in reality an unwritten

constitution. It is contained in certain specific sources, and it

is from this that we have to evolve a written constitution in

keeping with the present-day requirements of our country.

An unwritten constitution is nothing unique or strange for
the world. Indeed, up to the middle of the 18th century, the
structure of Governments throughout the world rested on un-
written constitutions ; and even today the British Government
is functioning without a written constitution. Just as if the
people of Britain ohoose to have a written constitution instead
of an unwritten one, they will have to take recourse to the
various sources of their unwritten constitution, to colleot
material therefrom and then codify it article- wise,. similar is the
course that we shall have to adopt for the codification of an
Islamic Constitution.

1. All the implication* of the terra "written constitution" should bo very
clearly understood here, A "written constitution" means a document
wherein all the basic principles of state organisation have been reduc-
ed into writing and which is accepted as the only authoritative
document for this purpose. When a country does not possess a
constitution written in a form of sUeh a document, it i* said to have
an unwritten constitution, even though all the constitutional laws and
practices which go to constitute thd unwritten constitution of that
country, may be present iu black and white.

First Principle* of tit* Islamic State

808

I

SOURCES OF ISLAMIC CONSTITUTION

There are four sources of the unwritten Islamic Constitu-
tion : —

1. TheQur'ao

It ia the first and the primary source, containing as it does
all the fundamental directives and instructions from God Him-
self. These directives and injunctions cover the entire gamut
of man's existence. Herein are to be found not only directives
relating to individual conduct but also principles regulating all
the aspects of the sooial and cultural life of man. It has also
been clearly shown therein aa to why should Muslims endeavour
to create and establish a state of their own.

2. The Sunnah

This is the second source. It shows the way in which the
Holy Prophet (peace be upon him) translated the ideology of
Islam in the light of Qur'anio guidance into practical shape,
developed it into a positive social order and finally elevated it
to a full-fledged Islamic State. These things we can know from
the Sunnah and Sunnah alone. It will also guide us how to
ascertain tb6 precise sense, purport and meaning of the Qur'anic
directives. In other words, the Sunnah is the practical applica-
tion of the Qur'anic principles to the various problems of life.
Therefore it contains invaluable precedents and very important
material relating to the Constitutional practices and conven-
tions.

3. The Conventions of Khilafat e-Rashidah

These conventions constitute the third source of Islamic
Constitution. How the Bight-guided Caliphs managed the
Islamic State after the passing away of the tfoly Prophet (peace
be upon him) is preserved in the books of Badith, History and
Biography which are replete with glittering precedents of that

The Islamic Law and Constitution

golden era. It has been accepted in Islam from the very begin-
ning that interpretations of the Qur'an and the Sunnah having
the unanimous approval of all the Companions (technically
known as IjntiF) and the decisions of the Caliphs relating to
constitutional and judicial problems acoepted by the Compan-
ions, are binding on all and for all times. In other words, such
interpretations and such decisions must be accepted in toto t
because the consenus of opinion of the Companions on any
matter is tantamount of an authoritative exposition of the law.
Where there has been a difference of opinion among the Com-
panions, that is a sufficient proof of the fact that two or even
more interpretations are actually possible and any one of them
can be preferred to the other on the basis of sound reasoning.
But where there is a general consensus of opinions among them,
that shows that one and only one interpretation or decision is
the correct and authoritative one. The reason being that as the
Companions were the direct disoiples of the Holy Prophet (poaoe
be on him) and were trained by him personally, it is simply an-
thinkable that even all of them combined failed to grasp the
real purport of the Prophet's teaohings or could be unanimous
in giving a decision against the real spirit of Islam.

4. The Rulings of Great Jurists

These rulings which comprise the fourth source, are the
decisions of top-ranking jurists in regard to various constitu-
tional problems of their times. They may not be conclusive on
this subject, yet it cannot be gainsaid that they contain
fundamentally the best guidance for a proper understanding of
the spirit and principles of Islamic Constitution.

These are the four sources of our constitution. Whenever
we have to reduce the Constitution of an Islamic State into
writing we shall hare to collect relevant material from all of
them, in the same way as the people of England, were they
inclined to reduce their constitution into writing, would have to
refer to their Common Law, their constitutional conventions,
various statutory provisions and infer a number of points from
(be judgments of their courts relating to constitutional problems.

First Principles of the Islamic State

DIFFICULTIES

206

No doubt, all these four source* of Islamic Constitution exist
in a written form. The Qur f an ia a written book. The Sunnah
and the conventions of the Caliphs too are present in detail in
the books on Hadith and the biographical literature of early
Islam. The rulings of all Jurists of Islam are also obtainable in
authoritative publications. Nothing is missing, no part ia vague
or wanting ; and yet at the very outset of our quest of reducing
this unwritten constitution into a written one* a host of
difficulties and obstructions confront us. Before proceeding
further it is necessary that we should understand the true
nature of theBe difficulties .
(a) Novelty of Terms

The first difficulty is linguistic. The Qur'anio terms relating
to constitutional matters, as also those of Hadith and Fiqh, have
long beon out of use and have by now become incoraprehonnible
even to the learned amongst us, let alone the commoners.
Unfortunately, Islam has been a dosed book for all praotioal
purposes, the most of us for a long time and, consequently,
these terms are no longer in vogue. There are numerous words
in the Qur'an which we read and repeat every day without ever
realising that they have some constitutional import. Sultan,
Mulky Hukm t Amr, Wilayat, etc., may be quoted by way of
example. The exact constitutional purport of these terms is
understood, if at all, by a few people. When translated into
other languages, they become almost lifeless or even distorted.
That is why, on hearing of the constitutional concepts and
directives of the Qur'an, even fairly well-read people ask in
wonder as to which verses of that book relate and refer to
constitution. 1 Their amazement or ignorance is not auprising,
for, in the Qur'an they find no chapter with 'Constitution 1 as its
title.

1. A leading lawyer of Pakistan had even declared, in an artiole publi-
shed in the Daily Dawn, Karachi, that the Qur'an cannot give a
'Constitution 1 and had challenged that no one can produce an article
of the Constitution from the Qur'an— Bdticr.

206 The Islamic Law and Constitution

■
■

(b) Odd-Editing of tbe Ancient Juristic Literature

The second difficulty arises from the unfamiliar method of
compilation of our old literature. In the old juristic literature,
the constitutional problems have not been reported under
separate heads. On the contrary, the purely constitutional and
the purely legal discussions are inextrioably mixed up therein.
Everyone knows that the consideration of constitutional
problems, as a subject apart from the purely legal matters, is a
recent innovation and the use of the very word 'constitution'
in its ourrent sense is comparatively modern. Problems called
'constitutional' have nevertheless been dealt with in detail by
all eminent Muslim Jurists. But all their learned dissertations
on this subjeot are to be found in the ordinary book of Fiqh,
dispersed in different chapters and mixed up with other allied
problems. For instance, one- of theee problems you will find
dealt with in the chapter on 'MatTiages', while another will be
found in the chapter on * Inheritance' and a third in the chapter
on 'War' and a fourth ifi a chapter dealing with some other
problem, and so on and so forth. Likewise, one question may
have been discussed along with the problems of 'Criminal Law'
while another would prJbably be encountered in the treatise
on 'Public Finance'. Besides this, the language and the ter-
minology used therein are so different from the terms in vogue
today that unless the student possesses sufficient erudition in
various branches of law and the problems arising therefrom,
and is, in addition to that, a versatile soholar of Arabic (both
modern and ancient), he can hardly discern where a problem of
international law has been disoussed cheek by jowl with a
common law point or where a problem of personal law has been
dealt with in the course of discussions on constitutional law.
The fact, however, remains that even in the early centuries of
Islam, our best brains thought over these problems and have
left behind them a legacy of valuable material relating to cons-
titutional law and practices. To edit all this material properly,
after reviewing, sifting and cataloguing it and then to present
it accurately to the world in modern terms is the work of greaj

First Principles of the Islamic State

207

diligence and elaborate research. And most of tho Muslim
scholars of the present generation, who have been for long con-
tent with the left-over of others, are hardly competent for this
task. What is even more tragic, is that without knowing or
trying to realise the true value of this great heritage, the pre-
sent generation has developed a tendency to look down upon it.

(<:) Defects of Oar Educational System

The third difficulty is due to the defective system of our
eduoation. Under this system of education those who choose
the theological branch of learning, generally keep themselves
utterly ignorant of such modren subjects as Political Science,
Economics, Constitutional Law and the problems arising there-
from. Consequently, even though they spend most of their
time in leading and teaching the texts and interpretations of
the Qur'an and Hadith and the Fiqh they do not possess even
an elementary understanding and grasp of current political and
constitutional problems enunciated in the simplest modern
terminology, let alone making a deep and scholarly study of
them. Thus they remain incapable of giving any lead to the
people by regarding the modern political and constitutional
problems in the light of their knowledge of Islam. Instead of
approaching the front of learning themselves, they await that

these problems bo enunciated and explained to thorn in 'the
terminology that they understand.

The other class consists of those people who have acquired
modern education and who are practically in full control of all
branches of State organisation. This class, though quite fami*
liar with most of the modern problems of life, actually knows
very little, if at all, of the glorious heritage of Islam. Most of
them are unfamiliar with even the fundamental principles and
the basic directives of Islam much less that they should possess
any knowledge of their necessary details and other implica-
tions. Whatever they know of Islamic constitutional law or
political science or jurisprudence, they acquire it through the
medium of Western education and consequently, all their know-
ledge of the Qur'an and the Sunnah is not only exceedingly

208 The Islamic Law and Constitution

—

poor, sketchy and inadequate but also is indirect and some-
times third or even fourth-hand. And it is for this reason that
even such of them a* sincerely and genuinely long for a renaia*
sance of Islam are hardly capable of affording guidance to
others. They search for a verdict of the Qur'an on all modern
problems only in the language which they can understand. tfhis
is indeed a very great difficulty and is perhaps the biggest one
amongst those which are hindering the framing of a truly
Islamic Constitution.

■

(d) Ignorance Run Amuck

The fourth stumbling-block in our way to Islamic system
of life is the claim of some people wielding influence to give
rulings without requisite knowledge of Islam. And the tragedy
of the matter is that this tendency is assuming alarming pro-
portions with the passage of time. The slogan of these people
is that Islam does not recognise priesthood and therefore the
Mulla cannot be the sole interpreter of Islam. Everybody has
an equal right to interpret the directives of the Qur'an and to
draw inferences therefrom. There is no reason, they say, why a
Mulla's word should be taken as being more weighty than that
of a layman. Thus spiak those who are conversant neither with
the language of the Qur'an and the Sunnah nor possess any in-
sight in Islamic traditions. None of them has seriously devoted
even a day of his life to the study of Islam and its vast liter*,
ture. Instead of honostly realising their weaknesses and defi-
ciencies and making an effort to remove them, they deny the
very need for acquiring knowledge and insist that they should
be given a free hand to interpret Islam as they like.

Evidently, if this kind of ignorance is allowed to have its
way in any one department of collective life, there would be no
end to mischief. Somebody would stand up tomorrow and say
that there being no "Lawyer-hood" in Islam, even the most
ignorant has the same right to pronounce authoritative verdicts
on points of law, evea though he knows nothing about it. Then
another person may stand up and say that there being no
'Engineer-hood* in Inlam, therefore he has as much a right to

First Principles of the Islam ic State

209

meddle with the Engineering problems of the country as a
qualified engineer. This may be followed by a third one's
assertion that there being no 4 Physician-hood' in Islam, there-
fore everybody has an equal right to prescribe for the si ok, no
matter if it means having more people inside the graveyards
than out of them I

I am really surprised to find even some well-read and other-
wise intelligent people giving vent to suoh like childish ideaa.
Do they presume that the whole nation consists merely of
ignoramuses and would applaud all suoh senseless assertions 1
No doubt, Islam does not recognise prieathood aa a class. But,
have the protagonists of this slogan ever tried to understand
what it implies 1 It only means that Islam neither recognises
the Jewish and Brahmanio principle of giving the monopoly of
religious knowledge and spiritual work to a particular privileg-
ed race or tribe, nor does it uphold the Christian doctrine of the
separation of the secular and the religious into two watertight
compartments. Nobody can, therefore, claim in Islam to enjoy
spiritual monopoly and the "Mulla" or the "Alirn" is not a
titular head claiming any inherent and exclusive rights of inter-
preting religious laws and doctrines. On the contrary, just as
anybody may become a judge or a lawyer or a doctor by proper-
ly qualifying for these professions, similarly whosoever devotes
his time and energy to the study of the Qur'an and the Sunnah
and becomes well-versed in Islamic learning is entitled to speak
as an expert in matters pertaining to Islam.

If there is any sense and meaning in the assertion that
there is no priesthood in Islam, it is only what has been stated
above. It does not and cannot mean that Islam licenses every-
body to start pronouncing authoritatively regarding the Qur'an
and its directives and instructions, without trying to have any
insight in it. Indeed, if an empty claim to be an authority on
matters secular is not acceptable anywhere, how can it be so in
religious matters which pertain not only to the most important
aspects of our life in this world but also to our JmSn and the
life after death 1

2l0 STAe Islamic Law and Constitution

This fourth difficulty in our path has become tho most real
difficulty for the moment. For, in the case of the first three,
we can hope to remove them by dint of hard work and honeat
labour. In fact, we have already removed thorn to some extent.

But the solution to this last one is not so easy to find, more so
because it is being wilfully used as a handle by those who
happen to hold the reins of power one way or the other.

ii

FUNDAMENTAL PROBLEMS
OF POLITICAL THOUGHT

I will now discuss the fundamental problems of constitution
and try to present before you briefly what guidance is available
to us in this behalf from the original sources of Islam. This
will help you to judge for yourselves whether Islam gives any
guidance to us in the field of constitution or not and whether
that guidance is merely of a recommendatory character or of a
mandatory nature — so fundamentally mandatory that we can-
not overlook or by-pass it, if we claim to be and wish to remain
Muslims. In order to finish the discussion within the time at
my disposal I propose to confine myself to the following nine
basic points of an Islamic constitution :

(1) Who is the Sovereign ? Any king or body of people 1
Any class, clan or the whole nation ! Or Qod Almighty
Himself ?

(2) What are the functions and scope of an Islamic
State I To what extent can it command allegiance from its
citizens and where and when the State will lose this right ?

(3) What are the powers and functions of the various
organs of this state, i.e., the Exeoutive, the Judiciary and
the Legislature \ What are the rights, duties and limita-
tions of each, and what are their relations inter se 1

(4) What is the real purpose of the State ? That is,
what are the objectives that it will strive to achieve and
what are the fundamentals of its overall policy ?

first Principle* of (he Islamic Statt ill

(5) How is the government of this state to be constituted!

(6) What will be the qualifications of persons consider,
ed eligible for running the government of this state ?

(7) What will be the conditions of its citizenship and
how will a person acquire and lose this right ?

(R) What will be the fundamental rights of its citizens* and
(0) What will be the basic obligations of its citizens
towards the State 1

These questions are the key-points of political theory and
constitution is expected to provide clear-cut answers to them.

Som. ofth.aut.hof.ttos on Oouatitutlonal ll*w have defined it as

(aT-Constitutional Law. as the tern is used **^J**r££
* include all ruto. which directly or ^V^^X

1LTJZ£S££Zc. or the thereof,

Z« TJL Its ruL prescribe the order of succession to the

eigQ of the Stat. to ^ o/ ^

W T he ooi-ots of ^ Ooa.Ut.tion in short a. ^ ^ -J.

W ^tt.nr^i of the sovereign power."-
governed, and fc o - * eHn ° J f r „., jwh - as , London, p, 10.

1957 (2nd edition), p. 5. ^agement and distribution

(d) "The term Constitution aigninos tae at g

Ba J farm*, p. 20~Jff<K*or-

212 The hlamic Law and Constitution

We must, therefore, try to find out Islam's answer to those
questions.

Ill

ISLAMIC CONCEPT OF SOVEREIGNTY

Let us start with the first question as to who enjoys the

right to sovereignty in an Islamic State. The Qur'an furnishes
an unequivocal reply to this question. It says that sovereignty
in all its aspects, is only for God. He alone is the Creator and
the real Ruler of this universe. Therefore to Him belongs the
sole right of being the sovereign over all this creation. To
understand this point fully, we would be well advised to first
grasp the exaofc purport of the word 'Sovereignty' itself.

The Meaning of Sovereignty

In the terminology of Modern Political Science, this word
is used in the sense of absolute overlordship or complete suzer-
ainty. If a person or a group of persons or an institution is to
be Sovereign, it would mean that the word of that person,
group or institution is law. A Sovereign has the undisputed
right to impose his orders on all subjects of the State and the
subjects are under an absolute obligation to obey them, be it
willingly or unwillingly. No outside agency, excepting his own
will, imposes any limitations or restrictions on his power to
rule. No subject has any absolute right against him or in
contravention of his orders. Whatever rights anybody enjoys
emanate from him and whatever rights he withdraws become
extinct forthwith. It is a universal legal axiom that every right
in law comes into existence only beoauae the Law-Giver desires
to be so. If, therefore, the Law-Giver withdraws it, its very
existence is obliterated and it cannot be demanded thereafter.
Laws come into existence by dint of the will of the Sovereign
and place all subjects of the State under an obligation to obey
them ; but no law binds the Sovereign himself. In other words,
he is the absolute authority, which means that, in relation to
his orders, questions of good and evil and right and wrong can-

First Principle* of the Islamic State

213

not and should not arise at all. Whatever he does, is just and
nobody can question his conduct or his orders and their enforce-
ment. His behaviour is the criterion of right and wrong and
none can question it. It ia thus inescapable that the sovereign
should be acoepted as being absolutely above all aberrations and
errors, even though he may not actually beao.

Such is the nature and meaning of the concept of sovereign-
ty as enunciated by the modern 'lawyers and jurists'. 1 Nothing
short of this can be termed as sovereignty. This sovereignty,
however, remains a mere legal supposition so long as some
active paramount capable of enforcing it ia not available. In the

1. "Sovereignty", is derived from the Latin word supernuus which means
Supreme. The definitions of the term are varied but "it always signi-
fies a highest governmental and legal authority of some sort." (Pranais
W. Coker, "Sovereignty." Encyclopaedia of Social Science*, Vol. 14,
p. 265). Jean Bodin who first developed the concept in modern politi-
cal thought defined it as "Summa in civia ac sabditos legibusgu* solute
potestes" tho supreme power of the State over citizens and sub-
jects, unrestrained by law. Grotis defined it as "the supreme political
power in him whose acts are not subject to any other and whose will
cannot be overridden". Blackstone conceives it to be "the supreme
irresistible, absolute, uncontrolled authority in which the jura mnmi
imperi reside." Jullinok defines it as that "Character is tio by virtue
of which it cannot be legally bound except by its own will, or limit by
any other power than itself." Burgee characterises it as "original,
absolute, unlimited power over the individual subject and over all
associations of subjects." He calls it »*the underived and independent
power to command and compel obedience." The attributes and
characteristics of sovereignty are said to be permanence, exclusive*
ness, ail-comprehensiveness, indivisibility and absoluteness. See
Edward McCheaney Sait (Ed.), Master* of Political Thought, Vol. II,
London, 1949 ; James Wifford Garner, Political Science and Govern-
ment, American Book Co. 4 World Press (Private) Ltd., Calcutta
1958: Bryoe, "The Nature of the Spvereignty." Studies inJuri*pru-
dene* and History, Vol. II, 1901 : Harold J. Laski,. The Problem of
Sovereignty. London, 1917, and Grammar of Politic*, London (for a
critique of the concept of absolute sovereignty) ; Mat tern, History of
Theory of Sovereignty since Rousseau, London, 1910 ; Mahajan and
.. ; v Sethi, Recent Political Thought, Delhi, 1956, and Jacques Martin, "The
Concept qf Sovereignty," Man and the Stat*, Chicago, 1951.— Editor,

The Islamic Law and Constitution

language of Political Science, therefore, legal sovereignty with-
out political sovereignty has no practical existence. Political
Sovereignty thus naturally means ownership of the authority
of enforcing legal sovereignty.

The questions that now arise are : Does such sovereignty
really exist within the bounds of humanity ? If so, where 1 And
who can be construed and treated as being invested with it !

Is there any monarohioal system where the monarch posses-
ses all these attributes of sovereignty today, or has ever
posaeaed them in the past, or can be expected to possess them
in the future 1 We may take the case of any of the most
powerful monarohs and analyse the myth of his sovereignty
only to find that all the authority enjoyed by him was in
praotice always limited by a number of external factors which
were beyond his control.

If not in monarchy, oan we name any democracy which
might be regarded as being fully sovereign in the real sense of
the term ? Here again the reply must be in the negative. For
it will be found on close analysis that, behind all the parade of
absolute power, there are a number of factors variously quali-
fying and restraining it and which are beyond the control of
the so called "sovereign" .1

It is exactly for this rerson that whenever the experts of
Political Science, imbued with this ideological sense of soverei-
gnty, had endeavoured to locate the possessor of such soverei-
gnty in human society, they have invariably failed. For they

1, "But in the political sphere, and with respect to men or agenoiee, in
charge of guiding people towards their earthly destinies, there is no
valid use of Sovereignty.. .If the State is accountable and subject to
the supervision, how oan it be sovereign 1 What oan possibly be the
concept of a sovereignty liable to supervision and accountable ?
Clearly, the State is not sovereign. Nor are the people. Nordo they
•zeroise a power without accountability.. .the power they exercise,
either by mass reflexes and extra-legal means or through regular
channels of a truly democratic society is in no way & power without
accountability," Jacques Martin, Man and the Statt t Chicago, 1&55,

pp. 00-ea... editor.

First Principles of the Islamic Stats 2!5

can find nobody of the size whom this cap would fit—that is,
nobody from amongst the human being*. Even in the entire
gamut of creation, there is no creature who oan rightly claim to
possess all the attributes of sovereignty. The Qur'an stresses
this very truth when it says repeatedly that sovereignty belongs
to God and God alone- He is Omnipotent, i.e.,
He can whatever He likes j 1

He has to refer to none and to render account to none ; 2
He is the source and fount of all authority ;3

He is the only one whose authority and power nothing can
limit or restrain and

He alone is above all abberration and error.*
Secondly, even if we close our eyes to this truth and invest
somebody other than God with this sovereign status, would it
really become a human being to be so invested that his mere
word should be law, that there should be no right in oontraven-
tion of or in contradiction to his will, that he should have to
be implioitly and explicitly obeyed, and that no question of
right or wrong, virtue or vice, should be possible to be raised
in respeot of his words or wishes.

Whoever actually enjoys these attributes, whether an
individual or an institution or a people, the question will in-
evitably bo asked : what justification is there for the investment
of those powers and for that sovereign authority % The most
that can be said in reply to this would be that a general
consensus of opinion justifies such a course. But, are we pre-
pared to accept such a contention % Suppose a person willingly
auctions himself. Does the purchaser really become his owner?
If it is not so, wo may well ask : how oan then mere acceptance
by the people of such an investment justify this alleged sover-
eign status? The Qur'an unravels this knot by declaring that no

1. Al-Qur'an, 11 t 107,

2. Ibid* 21 s 23.

3. Ibid,, 29 1 83.

4. Xbid. t 23? 88.
IMA, 89:29-24.

216 The Ulamic Law and Constitution

creature hae the right to impose his will or words on other
creatures and that this is a right exclusively reserved for Qod
Himself and is inherent in Him by reason of Hit being the
Creator. It says :

"Verily, His is the Creation and His is the Law". (7 : 54)
This is such a rational and convincing position that none
can reasonably contest it, and surely not those who accept Ood
as the Creator of the universe.

. The third point which automatically arises is that if we
invest some human agency with this superhuman mantle of
sovereignty, overlooking the inherent shortcomings, would it
be of any service or advantage to humanity t No human being,
whether invested with this status individually or oolleotively,
can easily digest such a huge dose of sovereignty, wherein he
has unlimited powers to enforce his will over large numbers of
people. Such authority, whenever and wherever invested in a
human agency, has invariably resulted in injustioe and malad-
ministration of the most contagious type.

Evil is inherent in the nature of such a system and when-
ever humanity has adopted it, evil has inescapably raised its
head. For, he who is really not sovereign, and has no right to
be sovereign, whenever made so artificially cannot but use his
powers unjustly. This is exactly what the Qur'an enunciates in
these words ;

<«And those who do not make their decisions in accord-
ance with that revealed by Allah, are (in fact) the
unjust". {5: 45)

God's de Jure Sovereignty

That is why it has been definitely laid down in Islam that
de jure sovereignty also belongs to Allah whose de. facto soverei-
gnty is inherent and manifest in the working of the entire
universe and Who enjoys exclusively the sovereign prerogative
over all oreation. The Qur'an repeatedly stresses it with an
increasing emphasis,. At one place it says :

"The Command is for none but God : He hath com-
manded that ye obey none but Him : that is the right
path." (12 : 40)

First Principles of the Islamic State 217

At another place it enjoins :

"Follow the revelation sent unto you from your Lord,
and do not follow the (so-called) guardians other than
Him." (7:3)

At a third place, any deviation from this position of accept-
ance of his de jure sovereignty has been described as plain and
unadulterated Kufr {i.e., disbelief) ;

* f "And those who do not make their decisions in accord-*
ance with that revealed by Allah, are (in fact) the dis-
believers." (5 : 44)

These injunctions olearly show that the acceptance and
admission of the de jure sovereignty of God is Islam and its '
denial is Kufr.

The Role of the Prophets

The Prophets alone are the true agencies through whom the
directives and the commands of the Almighty are communicated
to mankind. That is why it is ordained in Islam that the Pro-
phets must be obeyed implicitly and without any 'ifs 1 and *buts\
You will note in the Qur'an that whosoever has claimed to have
come from God as His Messenger, has unequivocally proclaimed;
"Fear God and obey me." (26 : 108, 126, 144, 163, 179).

The Qur'an enunciates this as definite principle in these
words :

"Each and every messenger who was sent by Us was
sent for the sole purpose that he should be obeyed tinder
the sanction of Allah". (4 : 64)
And again :

"He who obeys t&e Messenger obeys God." (4 : 80)
The stress on this faot is so definite that the Qur'an refuses
so recognise him as a Muslim who declines to accept the Prophet
as the final adjudicating authority. Thus it says :

^Nay, (0 Muhammad 1) by the Lord, they will not be
believes until thoy accept you as the final arbiter in all
their disputes and submit to your decision whole-heartedly

without *ny heartache," (4 66)

218

The Islamic Law and Constitution

Again, the Qur'an prescribes thna :

"It is not for a believing man or a believing woman to
have a say in any affair when it has been decided by Allah
and Hia Messenger ; and whoever disobeys Allah and His
Messenger, he goes astray manifestly." (33 : 36)
Viewed against this background, there is no room to doubt
the premise that in Islam de jure sovereignty exclusively and
solely belongs to God and under His aegis to His Prophet (peace
be on him). As a matter of fact the Prophet (peace be on him)
is the physical, manifestation of God's de jure sovereignty on
earth and His mouthpiece for this purpose.
The Position of the State

After this interpretation of the basic constitutional problem
of sovereignty, the only question that remains to be answered is
as to who enjoys the political sovereignty in this set-up *
Unhesitatingly the reply would be that political sovereignty too,
as a matter of fact, belongs to God and God alone. Whatever
human agency is constituted to enforce the political system of
Islam in a state, will not possess real sovereignty in the legal
and political sense of the term, because not only that it does
not possess de jure sovereignty but also that its powers are
limited and circumscribed by a supreme law whioh it can neither
alter nor interfere with. The true position of this agenoy has
been described by the Qur'an itself. The terms need by the
Qur'an for this agency is "Khilafat" whioh means that such an
agenoy is not sovereign in itself but is the vicegerent of the de
jure and the de facto sovereign God Almighty.
The Doctrine of Democratic Khilafat

By the word "vicegerency" your mind should not turn
towards the Divine Right of Kings, or to Papal authority.
According to the Qur'an the vicegerency of God is not the
exclusive birthright of any individual or clan or olass of people:
it is the collective right of all those who accept and admit
God's absolute sovereignty over themselves and adopt the
Divine Code, conveyed through the Prophet, aa the law above
all laws and regulations. It says :

First Principles of the ItUmie State 819

"Allah has promised suoh of you as have become bdU
ever* and done good deeds that He will most surely make
them His vicegerent in the earth". (24 : 55)

This concept of life makes the Islamic Khilafat a demo-
oraoy, which in essence and fundamental! ia the anti thesis of the
Theooratic, the Monarchical and the Papal form of Government,
as also of the present-day Western Secular Democraoy. For,
aocording to the modern Western oonoepts, democracy is that
philosophy of political organisation in which it is presumed
that the people possess absolute sovereignty. On the other
hand, what we Muslims oall democracy ii a system wherein the
people enjoy only the right of Khilafat or vicegerenoy of God
Who alone is the Sovereign. In Western Secular Democracy, the
Government is established or changed by the exercise of the
Will of the common voters. Our democraoy also envisages the
same ; but the difference lies in the fact that whereas in the
Western system a democratic state enjoys the right of absolute
authority, inour democraoy the Khilafat is bound to keep with-
in the limits prescribed by the Divine Code.

IV

THIS STATE : ITS ORGANS AND ACTIVITIES

The foregoing discussion'ovei the Islamic concept of Khila-
fat automatically brings us to the question : what is the scope
of activities of »n Islamic State and the nature of limitations
imposed thereon ? And the answer is that as this State is a
vicegerent of God and accepts His de jure sovereignty, the scope
of its activities will naturally be restricted within the limits
ordained by the Almighty Himself. This means that the State
can act only within the framework of the limitations and is not
empowered to infringe er overstep them. This is not only an
inference deduced from the acceptance of God's sovereignty but
the Qur'an emphasises it directly also and warns repeatedly in
clear words : '

220

The Islamic Law and Constitution

"These are the limits ©rcWned by God ; bo do not
transgress them.

If any do transgress the limits ordained by God, such

persons are the unjust." (2 : 229)
The positive and comprehensive prinoiple which the Qur'an

lays down in this respect is :

"0 you who believe.obey Allah and obey His Messen-
ger and those from among yourselves who hold authority ;
then if there is any dispute between you concerning any
matter, refer it to Allah and His Messenger, if you (really)
believe in Allah and the Last Day. This is the best course
(in itself) and better as regards the result." (4 : 59)
According to the above injunction, obedience to the State
is subject to the obedience to God and His Prophet and not
independent of it ; which clearly means that on insisting to
violate the commands of God and the limitations prescribed by .
the Prophet (peace be on him), the State loses the right of
claiming obedience from the people. This very truth has been

explained by the Prophet in those words :

"There is no obedience for him who disobeys God." 1
"There is no obedienoe to any oreature if it involves
disobedience to the Creator."*

The other principle which follows from the above injunc-
tion of the Qur'an is that whatever dispute and difference of
opinion may arise in the Muslim Society, be it between mdiv.d-
uals or groups, or between the people and the State, or amongst
the various organs and departments of the State, it should be
referred to that fundamental Law which God and His Prophets
has given to us. Thus the very nature of this principle demands
that there should be an institution in the State which should
undertake to adjudicate in strict accordance with the Book of
God and the Sunnah of the Prophet.
Legislature, Executive and the Judiciary

Now we come to the fourth question : What are the powers

1. Tibrani.

1 Shark aUSunnah': Uiahkat No. 3515, .

first Principle* of tit Mamie State 221

and functions of the various organs of the State and what are

their respective fields of action ? Let us discuss this in little
detail.

■

Function of the Legislature

The Legislature is what in the old terminology of Fiqh was
known as the "Body whioh resolves and prescribes" (Ahl al-Hal
wa al-'Aqd). It is quite clear that a State established on the
basis of God's dt jure sovereignty cannot legislate in contra-
vention of the Qur'an and the Sunnak even if the consensus of
opinion of its people demands it. I have just elated the Qur'anic
injunction whioh lays down that where Allah and His Prophet

have given a ruling in a matter, no Muslim has any right to
decide it on the basis of his own opinion 1 and that those who
do not decide in accordance with the Divine Code, are Unbeli-
evers.* It automatically follows from the injunctions, that it
is beyond the purview of any legislature of an Islamic State to
legislate in contravention of the Directives of God and His
Prophet, and all such piecee of legislation, even though approv-
ed by the Legislature would ipso facto be considered ultra vires
of the Constitution.

One may pertinently ask here that is this the state of
affairs in an Islamic State ? The reply is that in spite of this
limitation the Legislature in an Islamic State has a number of
functions to perform :

(») Where the explicit directives of God and His Prophet
.are available, although the legislature cannot alter or
amend them, yet the legislature alone will be compe-
tent to enact them in the shape of sections, devise
relevant definitions and details and make rules and

■ ■

regulations for the purpose of enforcing them.
{ii) Where the directives of the Qur'an and the Sunnah are
. capable of more than one interpretation, the legislature

1. Al~Qw y dn, 33 ; 36.
.2. Ibid., 6 : 44..

222 f he tslanUc Law and Constitution

would decide which of those interpretations should be
placed on the Statute Book. To this end, it is indis-
pensable that the legislature should consist of a body of
such learned men who have the ability and the capacity
to interpret Qur'anic injunctions and who in giving de-
cisions, would not take liberties with the spirit or the
letter of the Skari'ah. (This point really falls under the
purview of Elections). Fundamentally, it will have to
be accepted that for the purposes of legislation, a legis-
lature has the authority to aooord preference to one or
the other of the various interpretations and to enaot
the one preferred by it into law, provided of course
that it is only an interpretation and not a perversion
and camouflaged deviation from the law.

(in) Wherevor there is no explicit provision in the Qur'an
or the Stmnah, the funotion of the legislature would be
to enact laws relating to the same, of course always
keeping in view the general Bpirit of Islam, and where
previously enacted laws are present in the books of
Fiqh, to adopt any one of them.

(iv) Wherever and in whatever matters even basic guidance
is not available from the Qur'an or the Sunnah, or the
conventions of the Righteous Caliphs, it ^ould be
taken to mean that God has left us free to legislate on
those points aooording to our best lights. In such
cases, therefore, the legislation can formulate laws
without restriction, provided such legislation is not in
contravention of the letter and the spirit of the
Skari'ah- the principle herein being that whatever has

not been disallowed is allowed,.
We have deduced these four functions from the Qur'an, the
Sunnah, the usages of Khilafat-z- Uashidah and the opinions and
rulings of eminent jurists of Islam. If need be, I can quote their
sources but 1 think that whosoever has grasped fully the funda-
mental principles of the Islamio State, can also realise by mtl*
oommonaonso that in a state of this character, these should

first Principles of the Islamic State

223

constitute the functions of the legislature.
Function of the Executive

We now oome to the Executive. In an Islamic State, the
real purpose of the Executive is to enforce the directives of God
conveyed through the Qur'an and the Sunnah and to bring
about a society ready to accept and adopt these directives for
practioal application in its life. It is this characteristic of the
Executive of a Muslim state whioh distinguishes it from the
executive of a jion-Muslim state. The worYls Ulul-Amr and
Vmara* have been used for the Executive in the Qur'an and the
Hadith (respectively, which enjoin obedience to it on the condi-
tion that it obeys God and His Prophet (peace.be on him) and
avoids the path of sin and transgression.

The Qur'an is explicit in this connection when it says :

"And obey not a person whose heart We have per-
mitted to become unmindful of Our remembrance, one who
is following the dictates of his own desires and his case is
that in which due limits are transgressed." (18 : 28)
And again :

"Obey not those who overstep the limits {We have set)
and create trouble on the earth, and have no tendency to
reform themselves." (26 : 151, 152)

The Holy Prophet has also repeatedly stressed it very
clearly and emphatically. He says ;

(♦) "Even if a defaoed slaye is made your Amir, listen to
him and obey him as long as he leads you in accordance
with the Book of God".*

(ii) "Obedience is obligatory on every Mnslim, whether he
likoa the command or not, unless he is ordered to
commit sin,— in whioh case the obligation lapses
automatically" .2

1. Muslim, al-SaUh.

2. Muttaftg l Ala.h *\e. v Both the authentic books of hadith, Bukheri mid

Muslim quote it.— Editor.

224 The Islamic Law and Constitution

(Hi) "There is no obedience in an act of sin. Obedience is

obligatory only in virtue". 1
(iv) "Whosoever innovates anything contrary to the spirit

of this order of Ours, is everlastingly cursed*' *
(v) "Whosoever honours and reveres an innovator, helps

in bringing down the edifice of Islam". 8
No duobt can exist, after these clear directives, as to the
exact nature of the functional limits of the executive and the
administrative powers is Islam.

Function of the Judiciary i

The scope of the Judiciary (which in the terminology of
Islamic Jurisprudence is called Qada) also becomes well peesoribed
by the acceptance of the de jure sovereignty of God Almighty,
When Islam established its state in f ooordanoe with its eternal
principles, the Prophet himself was the first judge of that state,
and he performed that function in strict accordance with the
Law of God. Those who suoceedod him, had no alternative
but to base their decisions on the La,w of God as transmitted
to them through the Prophet. >

IntheQur'an one full section of the fifth chapter, AU
Mtfidah, deals specifically with this very subject.* There the
narration begins with the history of Israel, going next to the
Christians, and finally refers to the Muslims. We have been
told that God revealed the Torah to Moses, after which all the
Israelite Prophets and the Jewish Rabbis followed it ae the
Code of Law in all their affairs, settling the disputes of the
people in accordance with it « Afterwards came Jesus with a

1. 'Muttafiq 'Alaih i.e., Both the authentic books of Kadith, Bukhari and

Muslim quote it.— Editor.

2. Ibid. .

3. - Al-B&ihaqi, Sho'ab ai-Iman.

4. Al-Qur'an, 5 i 44-60.

5. One finds the following reference in the Old Testament : "If they
speak not according to this word, it is because there is no light ia
them" [Isaiah, 8 : 20) and "cursed be that confirmeth not all words of
this law to do them." (Deuteronomy : The Fifth Book*>f Moses* 27 *

ftrtt Principle of th$ Ulamic State 425

fresh Revelation, and the Qur'an tells us that his followers too
were ordained to decide their affairs in accordance with that
revelation. Then comes the reference to the Holy Prophet
(peace be upon him). Addressing hind directly God Almighty
says :

"So judge between them*-' by that which Allah hath

revealed, and follow not their desires away from the truth

that has come unto thee". (5 : 48)

The discourse finally ends with these words :

I'lk it the judgment of the time of Ignorance that they

' are seeking t Who is better than Allah for judgment for

: «: people who have certainty (in their belief" 1). (S :80)

During the course of his peroration, it has been stated with

emphasis that those who do not adjudicate in accordance with

the Divine Code, are not believers and they are unjust and rebels.

: After this, it need hardly be stressed that the Courts of

Law in an Islamic State are established for the purpose of
enforcing the Divine Code and not to violate it as they are doing
at present in almost all the Muslim States.

■ i ■ *

* * J, * ♦ t * • •

I 1 I I I

Relations among the Different Organs of the State

: ' The only question that now remains to bo disoussed about
tl(0;irariouB organs of the State is, In what form are these organs
&f the Islamic State — the legislature, the executive and the
judiciary — related to one another ? There are no clear - cut
instructions on this point. But the conventions of the Prophet's
period and of the period of the Righteous Caliphate afford us all
the necessary guidance. ..From these conventions we learn that
t^ Hea^ of an Islamic State is, as such, the supreme head of all
these three different organs. The Prophet enjoyed the same
status and this position was maintained by all the Righteous

caiiphs. . •

But under the Head of the State the three organs functioned
separately and independently of one another/ The. body called

"AM al-Hal ura al-'Aqd" whose funotion it was to advise the

Head of the State in matters of law, administration and state-
policy was a separate entity. Then there were the executive

226 The Islamic Law arid Constitution

officers who had no say in judicial matters which were dealt
separately and independently by the Judges' {Qadis).

In all important matters of the State, such as formulating a
policy or giving a ruling in some intricate administrative or legal
problem, the Caliphs invariably consulted the AM al-Hal wa
aUAqd and as Boon as the requisite measure of agreement was
reached, the work of this body was over.

Executive officers worked direotly under the Caliphs. They
appointed them to carry out the administration under their
direct supervision and guidance.

The Qadis were also directly appointed by them. But the
Calijths could not ordinarily terminate their services nor
influence their decisions, so much so that if in their personal
capacity or in their capacity 'as the executive head, anybody

'brought a suit against the Caliphs, they had to appear and plead
their cases before the Qadi like any commoner.

We fail to encounter even a single instance where the same
person was simultaneously a Qadi and a Collector of the same
area : or where 1 any Collector or Governor or even the Head of
the State interfered with a judicial decision. Nobody, not even
any of the most important dignitaries of the State, was exempt
from appearing before the Qadi for pleading in his own civil or

criminal oase. •

■

We can amend or alter the details of this set-up according
to our existing requirements. But the fundamental principles
we will have to keep intaot. For instance, we can reconsider
the powers of the Head of the State and alter them as much as
necessary. It is evident that at present we can hardly expect to

have a Head of the State of the same moral calibre and spiritual
standard as the Bighteous Caliphs. We can, therefore, consider
and restrict his administrative powers in order to safeguard

may also restrain him from
hearing and deciding oases, so that he may have no opportunity

First Principles of th$ Islamic State

227

to obstruct the course of juatioe. 1

Likewise we make some other changes also in this set-up,
as for instance :

(1) We may make fresh rules and regulations to suit

our present needs for the election of the Head of the State
and may also enact bye-laws for conducting the business of

the legislature.

(2) We may specify and fix the powers and the status
of the various courts.

Two questions may be asked at this stage. Firstly, whether
there is room in Islam for the Judiciary to reject or to restrict
the powers of tlie legislature in respect of enacting law in cont-
ravention of the Qur'an and the Sunndh. I know of no specific
ruling on this question, but the conventions established during
the reign of the righteous Caliphs go to show that the Judiciary
did not enjoy or exercise such powers at that time. At least,
there is no instance of any Qadi taking such an action. But
here again the reason, in my opinion, is that the members of
the legislature at that time had a very deep and true insight in
the Qur'an and the Sunnah and almost all the Caliphs too were
the most reliable persons in all respeots. Under them, therefore,

If On this - point^a "listener asked as to what was the source sad authority
for this opinion. The speaker replied that he derived support for, -this
argument from the fact that during the period of the Righteous
Oaliphs, tho Executive and the Judiciary were entirely separate and
even in the person of the Head of the State these two branches of the
Government were amalgamated not by virtue of any explioit injuno-
tion of the Qur'an or the Swww* but by reason of people's absolute
faith in the integrity, honesty and devotion to God and His Prophet
of these persons and beoause of the assurance that" they would never
permit executive exigencies to influence their judgments and decisions
as a judge. The people had so much faith in the Caliphs that they
positively wanted them to be the "courts of last appeal" in order to
be sure that even if justice was denied to them elsewhere, it would
ultimately be available to them from there. If we have no longer
amongst us

personalities worthy of such reliance and faith, we cer-
tainly are not compelled by any injunction of the Qur'an and the
Sunnah to keep the two important positions of the Chief Juatioe and
the Highest Executive amalgamated in the person of the Head of the
State.

228

The Islamic Law and Constitution

there was no real danger of any suoh legislation taking plaoe
which was contrary to the spirit of the Qur'an and the Sunnah.
Even today, if we oould ensure that no legislature will enact
laws in contravention of the spirit of the Qur'an and the Sunnah,
the Judiciary need not have the authority to reject the decisions
of the legislature. Bat if it cannot be so, then the only
satisfactory course would be to give the Judiciary power to
declare void and ultra vires of the constitution all laws and
legislations enacted in contravention of the Qur'an and the
Sunnah*

The other question that may be asked is : What, in Islam,
is the oorreot position of the legislature! It is only an advisory
body for the Head of the State, whose advioe oould be accepted
or rejected by him* at his discretion, or, is the Head of the State
bound to accept their unanimous or majority recommendations?
In this respect, the Qur'an prescribes thus :

• "They manage their affairs by mutual consultation". (42:38)

Addressing the Prophet as the Head of the State, the
Qur'an ordains thus :

"Consult them in the oonduot of affairs. And when
thou art resolved, then put thy trust in Allah." (3 : 159)
These two verses make consultation compulsory and also
direct the Head of the State that when, after mutual consulta-
tions, a decision has been taken by him, he should enforce it '
with determination, having full faith in God. However, even
this does not furnish a clear reply to our query, and I have been
unable to discover any definite ruling on this point in the books
of Hadith either. It is the convention of the Caliphs and the
judgment of the eminent Jurists of Islam that finally guide us to
the conclusion that the de facto responsibility of all adminis-
tration rests with the Head of the State. And the Head of the
State, although obliged to consult his advisers (i.e., the legis.
lature), yet is under no obligation to sanction, follow or adopt
their unanimoua*or even majority verdict or opinion. In other

m m

JL This stand has also been endorsed by all the leading "Ulama of
\ Pakistan, See Appendix II.— Edii or.

First Principles of the Islamic State 229

words, he can always exercise Mb "veto".

But this, when expressed in that precise form, can cause
extensive misunderstanding because in modern society, people
try to interpret these ' things with reference to present-day
environments, ignoring entirely the background attending the
establishment of the conventions. In the period of the Right-
eons Caliphs, persons who were aoting as advisers were not the
leaders or members of separate organized parties, nor were they
hemmed in by parliamentary procedures which is a feature of
the modern parliamentary system. They did not come fore-
armed with policies and programmes drawn up in advance at
party meetings. In their case, whenever asked to assemble and
advise, they came with unbiased hearts and open minds and in

their individual capacity, and the Caliphs themselves attended
the sitting with them. The problem was freely discussed and

opinions both for and against were fearlessly given. In the end,
the Caliph weighed all the arguments and exercised his own
judgment, after which he gave his final verdict, — a verdict which
was generally such that the entire assembly accepted it. Seldom
did it happen that someone refused to be converted to it ; but
even so, he would respect it, because it came from the Caliph.
In practice, however, despite their disagreement, they used to
accept his final verdict without mental reservation and followed
that whole-heartedly.

During the whole period of the Khilafat-e.Rashidah there is
not a single instance where the differences of the advisers could
force a voting ; and there are only two instances where a Caliph
ignored the unanimous opinion of his advisers and decided to
act against it on his own. One was the oase of permitting Uso-
mah to proceed on his military campaign, and the other was the
matter of waging war against the "apostates". But even in
those two oases, the basis on which the Companions ungrudg-
ingly accepted the decisions of the Caliph was not so much the
rigfc* of veto of the Caliph, whereby they would be compelled to
accept it, but the fact that the Companions had absolute faith
in his deep Islamic insight and wisdom. Hence, when they ob-
served him preferring his own individual opinion of his advisers

230 The Mamie Law and Constitution

mainly in the interests of the State, tbey reconciled themselves
to his opinion with very good grace. And not only that. After*
wards they freely admitted that his opinion was certainly the
better one and that had he not been so firm, immense harm
would have been done to Islam at that early stage. It is now, an
undeniable faot of Islamic history that Caliph 'Umar who in the
beginning was opposed to the opinion of Caliph Abu Bakr in the
matter of the "apostates'*, openly accepted his error of judgment
later on and declared that God Almighty had endowed the first
Caliph with better insight and judgment and that whatever he
had deoided was really the right course.

We oan judge from these oases how the system of veto
developed in Islam and in what environment were these prece-
dents established. If, therefore, the method of consultation is
observed in its true spirit today also and the character of "the
people who are consulted" is similar to that whioh existed in the
days of the Caliphs, undoubtedly there would be no better line
of action than the one adopted then. Following it to its logical
conclusion, however, we oan say that, in a consultative body
of this kind, if the Head of the State and bis advisers stick to
their own individual opinions and neither of them is prepared
to recede in favour of the other, recourse may then be had to
referendum after which the one whose opinion is rejected by the

people should resign. But so long as it is not possible in our
country to create a consultative body of that calibre and to -

foster that spirit and that mentality, there is no other alter-
native but to restrict and to subordinate the executive to the
majority decisions of the legislature.
The Purpose of the State

We now come to a very important point : What are the

■

fundamental objects for which Islam advocates the establish*
meat of an Islamic State? These objects, as denned and explain-
ed in the Qur'an and the Sunnak, are as follows :

■

The Qur'an says :

"Certainly We sent our Messengers with clear proofs,
and sent down with them the Book and the Balance, so

First Principles of the Mamie State

231

that people may conduct themselves with equity". (47 : 25)
At another place it has been said :

"(Muslims are) those who, if We give them power in the
land, establish the system of SatUt (worship) and Zakat

(poor-due) and enjoin virtue and forlSid evil". (22 : 41)
The Holy Prophet (peace be on him) said :

"Allah brings to an end through the State what He
does not eradicate with the Qur'an" 1 .

In other words, the evils which are not eradicated through
the preachings of the Qur'an need the ooeroive power of the
State to eradicate them. '

This means that the main objects of an Islamic State or to
enforce and implement with all the resources of its organised
power that reformatory programme which Islam has given for
the betterment of mankind. Mere establishment of peace, mere
protection of national frontiers, mere endeavour to raise the
standard of living of the common man do not form its ultimate
goal, nor do they constitute the characteristics which distinguish
the Islamic State from the non-Islamic states. Its distinction
lies in the fact that it has to enoourage and popularise those
good practices which Islam desires humanity to adopt and to
discourage, eradicate and crush with full force all those evils of
which Islam aims to purge mankind.

V

THE INSTITUTION OF GOVERNMENT

How, then, should the Government of a state baaed on
these foundations be formed f In this connection the most im-
portant point is the appointment of the Head of the State ter-
med as Imam or Amir or Khalifa (Caliph) in Islamic termino-
logy. In order to fully understand the stand -point of Islam
with regard to this we will have to refer to initial history.
Election of the Head of the State

As all of us are well aware, it was more than 1300 years

1, Quoted, Tmf9\T Ibn al-Kathir.

232 The Islamic Law and Constitution

•go, that the corner-stone of what is called Islamic society was
laid in the town of Mecca under circumstances intensely inimi-
cal and highly hostile. To initiate and then gradually to
develop an Islamic society, in the faoe of that stern opposition,
was the life-mission of our Great Prophet (peace be on him).
And, when, after considerable development this Islamic society
had achieved political independence and its internal organiza-
tion had progressed to the stage of a regular state, our Great
Prophet Muhammad (peace be on him) became and was accepted
as its first Head. He #aa not elected by anybody. He had been
chosen for this very ta'sk by God Almighty Himself.

For ten years he performed the duties of the Head of that
State and then his mighty soul went to its eternal abode. He
left behind no explicit instructions or nomination for the elec-
tion or appointment of his successor. On acoonnt of this
abstinence on his part, and by reason of the explicit Qur'anio
injunction that all matters affecting the Ummah should be
decided by consultation, the Companions rightly inferred that
with the passing away of the Prophet, selection and appoint-
ment of the Head of the Islamic State had been left to the
elective discretion of the Muslims, which was to be exercised in
accordance with the spirit of the said Qur'inio injunction.*

The first Caliph; Abu Bakr, was thus elected publicly. And
when hie last moment came, although he was personally con-
vinced that 'Umar was the fittest person to be the Caliph, he
did not forthwith nominate him as his successor but consulted
the most prominent among the Companions, jointly and sever-

1. No doubt, the Shi'a soot of the MasliniB hold the belief that, like the

Prophet, the Imams too are chosen and nominated by God Almighty
Himself, This divergence of belief from the rest of the Ummah »,«.,

the AMal-Sunnah has, however, no practical valne now, as with the
disappearance of the 12th Imam, the Imamate remains in abeyance
until he reappears. For all actions in respect of the collective pro-
blems of Muslims, therefore, reference has got to be made to some
suoh person who has not been directly chosen by God Almi^htlv but
elected by the Muslims themselves,

Firtt Principles oj the Islamie State 233

ally, and then dictated his will in favour of 'Umar. Thereafter,
despite his (serious illness, he addressed the Muslim masses thus:
"Are you willing to accept him your Amir whom I no-
minate as my successor 1 God is my Judge, I hare left no
stone unturned in coming to (the best) conclusion in this
matter, I am not nominating anybody related to me. I
nominate 'Umar son of Khaftab as my successor. There-
fore, listen you all to him and obey him."

From the crowd the people cried : "We have heard

and we accept."*

Here we find that Abu Bakr only suggested and recom-
mended the name of 'Umar after consultations with those in
whom the people had oonfidenoe, and then it was put tp the
vote of the Muslim masses who accepted him.

Again, when 'Umar was on the point of leaving this world,
he noticed • that out of the large number of the most reliable
Companions of the Prophet, only six persons were then alive
to whom the Muslim masses could look for guidance and from
amongst whom his successor could be chosen. He, therefore,
created a Consultative Body of those six persons and delegated
to them the task of selecting the next Caliph from amongst
themselves, prescribing that whosoever tried to become the
Amir without the approval of the Muslim masses was to be

i

beheaded. 8

This consultative body ultimately delegated its task to one
of its members, «Abd al-Rehman Ibn 'Auf, who went round
Madinah to gauge the feelings of the general publio in the
town. He ascertained the opinions of the women-folk and the
reactions of the students of schools also and even of the pilg-
rims from various parts of the country, who visited Madinah
after tbeir pilgrimage at Mecca. After this thorough survey, he
oame to the conclusion that the Muslim masses had the greatest
possible faith in two person*, « Ali and 'Utbman, of these two,

1. Tabari, Tarikh al-Vmam tpo'al-lioluk, Vol. II, Cairo, p. 818.

2. ' Muhammad Hussain Haykel. iW«Wf 'Umar, Cairo, Vol. V, p. Mft

234 The Islamic Late and Oonrtititticn

the opinion being slightly more in favour of 'Uthman. So the
vote was oast in his favour and he was openly accepted as the
Caliph.

Then occurred the tragic and deplorable incident of <Uth-
man's brutal assassination which created a serious situation.
Some of the Companions, therefore, assembled in the house of
'Ali and told him that nobody was there more suited than him
to be the Amir af the Muslims and he should, therefore, shoul-
der that responsibility. 'AH declined to do so. But when these
people insisted, he, at last, agreed saying.

"If you wish it to be so, then oome to the mosque, for

my acceptance as Amir cannot be secret nor without the

approval of the Muslim massess". 1

Consequently, 'AH went to Prophet's Mosque where people
were assembled. And it is an incontrovertible fact that the
majority of the people aooopted him as their Caliph, even
though this aooeptanoe was not unanimous.

Lastly, when 'AH was murderously attacked and the time
of his death drew near, he was asked if he permitted the
Muslims to accept his son Hasan as their next Amir, his reply
was clear :

"I neither ask you to do so, nor forbid you from doing
so. You oan decide aocording to your lights." 2
This, therefore, is the accepted convention of the period of
the Caliphate regarding the appointment and election of the
Head of the Islamic Stated and this is also the sum-total of the
oolleotive conduct of the Companions in thiB important matter.
It is based as much on the Prophet's abstinence from nominat-
ing his successor as on the Qur'anic injunction that all impor-
tant decisions in matters of collective interest should be taken
by consultation. The point, that can be clearly inferred from
these authentic constitutional precedents are :

(1) In an Islamic State, the election of its Head depends
entirely on the will of the general public and nobody

1. Tabari, op. oft., Vol. Ill, p. 450.

2, Ibit., Vol IV, p. 112.

First Principles of the Mamie State

2»6

has the right to impose himself forcibly as their
Amir*

(2) No elan or class has & monopoly of this office 2

(3) The election should take place with the free-will of
the Muslim masses and without any coercion or

force.

How is this opinion of the masses to he determined is ft
point where Islam does not limit its scope by prescribing speoifio
methods. Different methods can be adopted in different plaoes,
on different occasions, and nnder different circumstances, pro-
vided such methods are designed only to determine as to who
enjoys the greatest measure of nation's confidence and regard.
The Formation of the Consultative Assembly

After the problem of the eleotion of the Amir the next most
important problem is : How are the members of the Consult-

1. There are some people who say that this be aooepted as the prinoiple
of Islam, what about the verdiot of eminent jurists and learned men
of the days of the Muslim kings who aooepted the authority of those
who became the rulers through sheer force of arms. As a matter of
faet such people mix up and confuse the following two entirely
different and distinot positions adopted by the Muslims scholars of
the pasts

(1) All the eminent soholara are unanimously of the opinion that
the only proper and p«rm»»«6fe method is that of eleotion in which the
will of the Muslim mat a ©a should express itself freely.

(2) Even the most modest attitude adopted by our learned men
does not go beyond the fact that such tyrants can only be tolerated in
the common interests of collective security, provided such an Amir
does not interfere with the fundamentals of Islam. In other words,
the most that these people do is not to conoede a right to revolt, be-
cause that would lead to anarchy only. This does not all mean that
persons holding this opinion approve of such tyrants and prefer them
to properly elected Amirs

2. In relation to this matter also, certain people raise doubts as to how
to reoonoUe it with the Badith in which the Quraysh have been declar.
ed to be the attest for the office of the Caliphate. I have already
replied to this in my book : Baaa'tl wo Maea'il. Vol, I, p. 76, 8rd
impression, Lahore.

236 The Islamic Law and Constitution

ative Assembly {Majlis^Shura) to be elected and who shall
eleet them t

From a superficial study of the problem it has been erron-
eously concluded that because, during the period of the Caliphs,
the members of the Consultative Assembly were not chosen
through organized general elections, there is no place of elections
in Islam and it has been left solely to the discretion of the
Khalifah as to whom he should oonsult. This error is due to the
fact that the precedents of these times are applied to modern
praotioes without referenoe to the then prevailing conditions.
The correct way would be to apply them only with referenoe to
the then existing circumstances and to make an honest attempt
to understand the spirit of those principles and their details
as interpreted within the framewoik of the then existing condi-
tions.

Islam arose in Meooa as an ideological movement. And it
ia an inherent feature of all ideological movements that persons
aooepting that movement first, are oounted as the true compani-
ons and friends as well as advisers of the Leaders of that move-
ment. Likewise in Islam, persons who were the first to associate
themselves with the Prophet and his movement, naturally and
automatically became his advisers whom he invariably consult-
ed in all oases wherever clear and definite injunctions of the
Qur'an were not available. When, however, new blood entered
the Islamic body politic and the struggle with the opposing
force increased, those who rendered outstanding services by
virtue of their sacrifices, insight and wisdom, naturally became
prominent without any oonsoious effort on their part. This
election, therefore, took place not by means of votes but by
virtue of practical tests and performance which are indisput-
ably a more natural and reliable method. Thus even before the
Prophet migrated to Madinah, two kinds of people had already
become members of hie Consultative Assembly, viz,

(a) Those who had been associated with him from the very

beginning, and

(b) Thoge who subsequently became prominent by virtue of

Fir$t Principles of ike hlamic State 237

their sacrifices, insight and ability.
The members of both these groups enjoyed the confidence
of the Muslim masses also to the same extent to which they
enjoyed the confidence of the Prophet himself.

Then occurred the historical event of Migration (hijrah)
and it took shape in the following way. A year or two before
migration, oertain influential personalities of Madinah had
embraced Islam and through their labours, Islam had establi-
shed a secure foothold in that city among the tribes of Aue and
Rhavaj, It was at the instance and request of these people of
Madinah that, leaving their hearths and homes, the Prophet
and his followers migrated to that city where the Islamic
movement naturally grew into a political organization and
blossomed into a full-fledged state. It was, therefore, only
natural that these very people, with whose services Islam had
prospered and progressed in Madinah should be the leaders of
the newly-formed society and its political organization. And
naturally again, it was most befitting that these very people
should be included in the Consultative Assembly of the Prophet
along with his very first associates and tested comrades from
Mecca. These people thus beoame the representatives of people
and the members of the Consultative Assembly through a

natural process of selection, and they enjoyed the confidence of
the Muslim masses to such a degree that if elections of the type

current in modern days would have been held, these and these
people alone would have been chosen.

Later on, in this society of Madinah, two kinds of people
began to become prominent. The first were those who during
the next eight to ten years rendered yeoman's service in
political, military and missionary fields to such an extent that
practically in all important matters every body automatically
looked to them. The second group consisted of those persons
who gradually became well-known for their wide knowledge and
deep insight in the Qur'anio jurisprudence and literature. After
the passing away of the Prophet, the people naturally treated
them as being the most reliable authorities in these matters,

The Islamic Law and Constitution

The Prophet himself, by saying that the Qur'an should be learnt
and understood from such and suoh persons, put his seal on
their erudition. Thus, these two groups also were elected as a
matter of course, like those before them, by the same process
of natural selection and became automatically included in the
Consultative Assembly of the Prophet's successors. There was,
thus, no need to take a vote for them and even if vote was
taken, there was nobody else in that sooiety who would have
been preferred by the voters. And those constitutional conven-
tions under which fresh nominees continued to be incorporated
in the Consultative Assembly by virtue of their services, exper-
ience and outstanding intellectual attributes, automatically
received universal approval.

This was the class of people which was known as AhtaUHal
wat-'Aqd (i.s., those who oould' "tie" and "untie"), and it was
these people without whose advice no decision was ever taken
in any important matter. As to their constitutional status, some
opinion can be formed by the faot that when, after the unfortu-
nate assassination of Hadrat 'Uthman, some of the Companions
came to Hadrat 'Ali to ask him to aooept the office of the
Caliphate, Hadrat 'Ali said : —

"This is not a matter whereon you can take a decision.
This is a task for all those who can advise and have fought
in the battle of Badr (AM al-SKura wa ahlal-Badr). Whoso-
ever is approved by them will be the Caliph and let us,
therefore, congregate and consider it." 1
It is thus clear that at that time there were certain specific
persons called "Akl aUHal waUAqd" who had been continu-
ously holding the position of great trust for a very long time
and were thus entitled to take collective decisions in all impor-
tant matters affecting the Vmmah. There is, therefore, no
valid ground to presume that the Khali/ah could call for consul-
tations whomsoever he liked or that it was not generally known
as to who were his advisers {AM al-Shura) entitled to give
advice to him in the most important matters affecting the

1. Ibn Qutaib&K aUlmamah wa al-Sipanyyah, Cairo, p. 41.

First Principles 0/ the Islamic State 239

collective good. 1

From the conventions of the Caliphs, nay, even from the
conduct of the Prophet himself, the inferred rule is that the

■

Amir's Consultative Assembly ifl not to coneisfcof his hand-
picked men but only of those persons who enjoy the confidence
of the masses. They should be such whose sincerity, ability and
loyalty is above reproach in the eyes of the public and whose
participation in the major decisions of the State would itself be
a guarantee of the fact that free and willing co-operation of the
masses would be available to the State in the implementation of
all the decisions thus taken.

1. Her© the question naturally arises : Why were these AM al-Ral va ai-
4 Agd comprised only of people from Madinah, although the frontiers
of th© Islamic Stat© had extended beyond Arabia up to Afghanistan
in th© East and North Africa in the West during the period of the
Righteous Caliphs, and why wer© not loyal representatives from other
parts of th© Stat© summoned for this purpose T Th© answer is that it
was duo to two very valid reasons, namely

(a) The Islamic State was not a mere National State. It bad come
into existence in a unique fashion. With the preliminary pro.
pagation of th© Islamio ideology in th© minds and morals of th©
people an ideal society was first created, which subsequently
developed into an ideal state. In such a state, naturally, the
load-oentre of all devotion was the individual who had initiated
and then perfected the revolution. Next to him,the body of his
associates and right-hand men became the repository of all pub*
lie confidence and faith. Their leadership was thus most natural
and nobody else from amongst the society oould possibly be
anyway more worthy of ^ie confidence of the public. That is
exactly the reason why, in spite of complete freedom of exprea.
sion, even in that era,' nobody from any corner of the country
raised even a single voice of protest against the selection of
only the people from Madinah for inclusion in the Consultative
Assembly.

(b) Secondly, it was not possible in th© then existing conditions of
life to hold general elections in an area extending from Afghan-
istan to North Africa and thereafter to expect that all elected
members of the Consultative Assembly oould attend all its
ordinary sittings and meetings.

240 {Thehlamlc law and Constitution

It may well be asked as to how the. parsons enjoying such
confidence of the masses are to be determined today. It is
evident that the shape of things which existed in the special
circumstances of the early days of Islam is not to be found to-
day, nor do the obstacles existing in the civio conditions of that
era exist now. Consequently, after considering the circumstances
and needs of modern times, we can adopt all such possible and
permissible methods whereby we might be able to find out truly
as to which persons enjoy the confidence of the masses in great-
est measure. The modern system of eleotions is one of these
permissible methods, provided it is not tarred with these
corrupt practices which render demooraoy a sheer farce.

The Form and Nature of Government

We now come to the third important point : What should
be the form and nature of the Government of an Islamic State ?
If we closely Btudy the convention of the Caliphs to obtain
guidanoe on this point, we will notice that the Amir was the
only person to whom obedience and loyalty were enjoined and
to whom the people delegated in the fullest possible measure
their right of taking decisions in all matters concerning their
collective existence. His status Was, therefore, entirely different
from the status of the British Monarch, or the French Presi-
dent or the British Prh& Minister, or the American President,
or the Head of the Soviet Union. He was not only the President
Of the State, but also the Prime Minister. He attended the
parliament himself and presided over all its sittings. He used
to take the fullest part in its discussions and was responsible
not only for his own acts and opinions but also for all the
decisions of his Government. In his parliament there was
neither any specific Government Party nor any specific Opposi-
tion Party. The whole parliament was his party as long as he
kept. to the right path. But as soon as he deviated from it, his
whole party automatically turned into opposition. Every mem-
ber of his parliament had full freedom to vote for or against
him on any point and even his Ministers were free to oppose
him if they felt impelled to do so honestly and sincerely. And,

first Principles of the Mamie State 241

in spite of all this, the Ministers and the Head of the State
were all along working in complete co-operation and harmony
and the question of anyhody resigning in protest never arose
at all.

The Caliph was not only answerable before the parliament
but also before the people ; and that not only for his pnbho
aots but also for his private and personal condnot. Five times
every day he had to face the people in the mosque, and he had
to address them every week on Fridays. Each and every mem-
ber of the public had the right to atop him in the streets of
Madinah to question him on his conduct or to demand any of
his righta from him, and he would do bo at all times and at aU
hours No such rule existed that if a question was to be asked
from the Government, some member of the parliament must
give a previous notice about it. The general proclamation of
the Head of the Islamic State was :

-'Assist me when I act rightly ; but if I go wrong put
me on the right path. Obey me as long as I remain loyal
to Allah and His Prophet ; but if I disobey Allah and His
Prophet, then none is under the slightest obligation to
accord obedience to me." 1

This form of government cannot be identified with any
modern form of government. But it is this which stands in the
fullest accord with the ideology of Islam. It is, therefore, our
ideal too. But it can be achieved only when the society has been
already developed in accordance with all the revolutionary
teachings of Islam. And that is exactly why no sooner than the
Islamic society deteriorated this idea of government could not
be fully adhered to. As to the present times, if we desire to
revert to it, it would be essential to adopt the following four
basic principles initially, and then to adjust them in accordance
with our subsequent requirements and needs :

It) Whosoever is entrusted with the responsibilities of
government should be required to face not only the

1. Muhammad Huasaia Haykal, Al-Siddiq, Cairo, p. 67.

242 The Islamic Law and Constitution

representatives of the public but the public itself ;
farther, he should not only discharge his duties in
consultation with those entrusted with the job but
also should be answerable for all his actions,

(2) We should reform the prevalent system of strict party-
loyalties— a system which instead of remaining
an agency of publio opinion become? the standard of
truth and untruth. Such a system pollutes the govern-
ment with a false sense of loyalties, and it carries
within it the possibility that once a group of self-
seeking people comes into power, it may manoeuvre
party politics; at publio expense itself, in such a way
as to continue in the saddle ad infinitum.

(3) The system of government should not be based on such
complicated rules and regulations as may render it
extremely diffioult for the earnest workers to work, for
the critics to criticise and for the people in general to
find out the root cause of the evils that might arise
from time to time.

(4) The last and the most important principle should be
that only those elected as Head of the State and as
members of the Consultative Assembly, who possess
those qualities and are equipped with those qualifica-
tions which have been prescribed by Islam for the
office-bearers.

RULERS AND THEIR QUALIFICATIONS

From the Islamic point of view, the qualifications of office-
bearers is very important. In fact, this alone can guarantee the
proper functioning of the Islamic Constitution.

As regards the eligibility for membership of the Consulta-
tive Assembly or for the post of the Head of the State, there is
one aspect which might be termed as legal eligibility, on the
basis of which an Election-Tribunal or a Judge, after due con-

fir* Principles of the Islamic State 243

sideration and verification, may declare a person eligible or
non-eligible for election. There is yet another aspect of eligi-
bility on which the selectors, the proposers and the voters base
their judgment. The first aspect of eligibility may be possessed
by everyone of the millions of citizens of a state, but it is the
second which actually elevates a very select few to the top.
Criteria with regard to the first aspect are to be included in a
few operative clauses of the Constitution. But the standards of
the second aspect of eligibility must permeate the spirit of the
entire Constitution. The success or otherwise of any constitu-
tion would depend on the fact that the minds of the masses
have or have not been trained properly to eleot only those who
are eligible for those august positions in accordance with the
spirit of the Constitution rather than its form only.

Both the Qur'an and the Hadith givo, clear guidance about
these two aspects of eligibility. As regards the first, the
following four conditions have been prescribed :

(1) Should be a Muslim— The injunction of the Qur'an is :
"0 ye who believe I Obey Allah, and obey the Prophet
and (obey) those who are in authority from among
you." (4 : 59)

(2) Should be a Male—The Qur'an says :
"Men are in charge of women." (4 : 34)

And the Prophet declares :

"Verily, that nation would not prosper which hands
over the reigns of its government to a woman."*

(3) Should be sane and adult— The Qur'an lays down :
"And do not make over your property, which Allah
has made for you a (means of) support, to the weak
of understanding. 1 ' (4:5)

(4) Should be a citizen of the Islamic State—The Qur'an
declares :

"And those who have declared their belief in Islam
bat have not migrated (to the Islamic State), you

h Bukhart, al-Sahih

244

The Islamic Law and Constitution

have nothing to do with their guardianship until
they migrate." (8 : 72)

These are the four legal qualifications whioh determine a
person's eligibility to the membership of the Consultative
Assembly or to the post of the Head of an Islamic State. But
the question is : Whom, among the countless legally eligible
persons, should we elect and whom should we ignore for those
important offices of State ? A clear reply to this most important
question also is to be found both in the Qur'an and the Eadtih.

The Holy Qur'an says :

(o) "Verily Allah commands you to make over trusts (i.e.,

positions of responsibility) to those who are trust-
worthy." (4:58)

(b) "Verily the most respectable of you in the sight of
Allah is the one who is most God-fearing." (49 : 13)

(c) "He said : Verily Allah has chosen him (to rule over
you) in preference to you, and He has increased him
abundantly in knowledge and physique." (2 : 247)

(d) And obey not a person whose heart We have permitted
to become unmindful of Our remeznbranoe, one who is
followed by the dictates of his own desires and his
ease is that in which due limits are transgressed."

(18 : 28)

The Holy Prophet (peace be upon him) says :
(a) "Whosoever honours and reveres an innovator (in

religion), helps in bringing down the edifice of Islam
(&) "By God we do not assign the affairs of our govern-
ment to any one who aspires for it or is greedy in
respect of it." 2

(c) "We consider the seeker after a post (of trust and

responsibility) as the moBt untrustworthy."*
Some of these qualifications can be easily incorporated as
operative clauses in our Constitution. A self-styled candidate

1. Quoted by Al-Baihaqi.

2. Quoted by Bukhari and Muelim.

3. Quoted by Abu Da'ud.

First Principles of the Islamic BtaU 248

for election should be declared ineligible. As regards other quali-
fications for which no legal limit can be prescribed, we can cer-
tainly include provisions for them in the chapter on Directives.
The duties of the Election Commissioner would, thereby, have
to include the obligation to inform and educate the masses re-
garding the qualifications which are essentially and indispensab-
ly required and prescribed for Ulul-amr in Islam.

VII

CITIZENSHIP

We now come to the question of citizenship. Since Islam is
a system of both thought and conduot and sinoe it aims at creat-
ing a state on the basis of its ideology, it prescribes two types
of citizenship. Furthermore, because straightforwardness and
truthfulness form the very quintessence and soul of Islam, this
idea of dual citizenship is plainly prescribed in its political
structure without any boating about the bush. It does not, for
instance, try to mislead the world by adopting methods of giv-
ing full and equal rights to all its citizens on paper, and yet all
the time disojiminating between them in practice and withhold-
ing even the fuudamental human rights from a considerable
Bection of the population, like Russia. In fact, in all modern
countries the national and the ideological minorities 1 are invari-
ably treated in this very fashion. The coarse adopted by Islam
in this respect too is most rational, just and honourable.

The two kinds of citizenship that Islam envisages, are the
following :

(0 The Muslims ; and
(2) The Zimmis.
(1) As regards the Muslim citizens, the Qur'an speaks
thus : &

"Verily those who believed and migrated and struggl-
ed hard in Allah's Way with their property and their souls,

1, It roust not be forgotten that there is & world of di£ferenoe between a
political minority and an ideological cultural of national minority.

246 The Islamic Law and Constitution

and those who gave (them) shelter and help — they are
guardians of each other ; and (as for) those who believed
and did not migrate (to the Islamic State), yon have noth-
ing to do with their guardianship until they migrate"*
(8 : 72)

Prom this verse it is clear that the basic qualifications for
citizenship as prescribed by the Qur'an are two, viz., faith in
Islam and original or acquired domicile in an Islamic State. If
a person, even though he may be from amongst the faithful,
does not renounce his allegiance to a non-Islamic State and
migrate to Islamic State, he is not and cannot be its citizen.
Contrary to this, all those believers who, whether they were
born in the Islamic State or have migrated to it, are its citizens
at par and helpers of one another.*

Upon the shoulders of the Muslim oitiiona of an Islamic
State devolves the main burden of running it in accordance with
Islam's best traditions : as they alone are supposed to believe
in it implicitly. On thorn alone it enforces its laws as a whole
and enjoins them to oarry out all its religious, moral, cultural
and political directives. It invests them with all its obligations,
andv^deinjknds from them every sacrifice for the defence of its
realm. Concurrent with this, it gives them the right to choose
the Head of their State and to be the members of its Parliament.
It also entitles them to be appointed to the keyposts, so that the
basio policy of this ideological state remains in conformity with
the fundamentals of Islam. That is the standpoint of Islam is

I. A precautionary measure prescribed by the Qur'an in the case of the
people who migrate to the Islamic territory is to test their bona fides.
This, though spoken with reference to immigrant ladies, forms the
basis of the general inference that the people who migrate to an Islamic
State prove their bonafide* i.e., that they are truly Muslims and im-
migrants. This is to safeguard against evit-doera entering the Islamic

State under the guise of immigrants. Although the truth of one's
faith is known only to God. the State in all such cases should try to
verify the antecedents of immigrants to the best of its resources and
means.

First Principle* of the Islamic State 247

proved by the utter abaenoe of even a single instance in the

days of the Holy Prophet (peace be on him) or the Calipha
where a Zimmi (non-Muslim citizen) may have been made a
member of the Parliament, or the Governor of a province, or the
Qadi t or the Director of any Government department, or the
Commander of the Army, or a Minister of the Government ; or
may have been ever allowed to participate in the election of the
Calipha, although the number of Zimmi* even in the days of the
Prophet was considerable and during the days of Khilafat~e~
Baehidah it had gone up to millions. As such, were it right to
give them a ahare in the Government, we fail to understand
how the Prophet of God (peace be on him) oould have done in-
justice to them in the first instanoe, and how the persons direct-
ly and diligently trained by the Prophet himself could have
continued to "deprive 1 ' them of their "due rights" for the next
thirty years.

(2) By Zitnmi* are meant all those non-Muslims who have
affirmed to remain loyal and obedient to the Islamic State
wherein they propose to live, regardless of the country they
were born in. For all citizens of this kind, Islam furnishes a
guarantee of protection of life and limb, property and culture,
faith and honour. It enforces only its law of the land on them
and it gives them equal rights with Muslims in all civil matters.
They are eligible for all kinds of employment except for key-
posts : they have an equal share with Muslims in the matter of
all civil liberties, and even in economic matters. No discri-
mination is made between a Muslim and a Zimmi. Furthermore,

■

the Zimmi* are exempt from the responsibility of the State,
which devolves exclusively and entirely on the Muslim
eifcizena.

If any one has any objection with regard to these two kinds
of citizenship in an Islamic State and their distinctive features,
he should try to acquaint himself with the details of the treat-
ment meted out practically by other ideological states to the
people who do not believe in their ideology and with the dis-
abilities attaching to all national minorities %f the national

248

Tht Islamic Law and Constitution

states. In truth, it can be categorically stated that, compared
with other systems of government, Islam has definitely enjoined
the most just, the most tolerant and the most generous treat*
ment to the minorities who choose to stay within the borders
of its state and lead a life directed and governed by those
principles which are different from and even hostile to the
ideology of the majority.

In fact, the beat and most just solution of the nnusnal com-
plications arising out of the existence of a foreign element in
the body politio of a nation or an ideological state is offered by
Islam alone. Others have resolved this difficulty in one of the
two ways : They have either wiped out the minorities or have
kept them under perpetual bondage as untouchables. Islam, on
the other hand, adopts a very humane and equitable method.
It prescribes a line of demarcation between its adherents and
nonadherents and on its followers alone it enjoins oomplote and
absolute adherence to its basic and fundamental principles with
all their details. In addition to that, it places only on its adhe-
rents the responsibility of defending and running the State in

accordance with those principles.

To those who do not submit to its principles, Islam gives
ample latitude to lead their lives in their own way, binding
them only to that extent which is the minimum essential for
maintaining State Administration. And although it absolves
them from the liabilities of running or defending the State, it
guarantees' them all cultural and human rights.

Rights of Citizens

The next question relates to the fundamental rights of

citizens in an Islamic State.

In Islam, the first and foremost right of the citizens is the
protection of their life, property and honour, together with the
assurance that this right would not be interfered with, except
on valid legal grounds. The Prophet has explicitly and repeat-
edly enunciated this thing. In his well-known address giren on
the occasion of the Farewell Pilgrimage, wherein the details of
the Islamic way of life were stressed, he said :

First Principle* of the Islamic State

240

* 4 Your lives, your properties, and your honour are as
sacred as this day>(of the Xbjft".*

There is only one exception to it, which the Prophet him-
self describes in another HaSith as <J** H\ i.e., if there ie
demand for life, property or honour according to any law of
Islam, it shall have to be realised in accordance with the pre-
scribed procedure. -

The second important right is that of the protection of
personal freedom. Jn Islsm, personal freedom cannot be violat-
ed, save after proving delinquency in accordance with the due
process of law and never without giving an opportunity to the
acoused to put up his defence. It has been related that some
people were arrested in MadJnah, in the days of the Prophet, for
being of doubtful antecedents. Subsequently, while the Prophet
was delivering the Friday Sermon, a Companion got up and
enquired of him as to why and on what grounds has his neigh-
bours been arrested. The Prophet kept quiet while the question
was repeated twice, thus giving an ample opportunity to the
Police Officer present there to explain the legal position. When
the question was put a third time, and it again failed to elicit
the reply from the Police Officer, the Prophet directed that
those people should be released .2 This is a conclusive proof of
the fact that as long as a specific charge is not laid against a
person, he cannot be detained or imprisoned. Imam Khattabi,
while explaining this Badith in his Ma'alim aUSurman, says
that in Islam detention is only of two kinds :

(a) detention under orders of the court, namely, when a
person is sentenoed by the court and is kept in prison,
till the expiry of the term of his sentence ; and

(6) detention for investigation. Besides these, there can
be no other ground for depriving a person of his
freedom.

Imam Abu Yousaf, in his Eitab al-Eharaj, has also stressed
the same point, i.e., nobody can be imprisoned on false or

1, Muslim : Farewell Pilgrimage : lim Bitham, pp. 380-391.

2, Abu Va'ud.

250

The Mamie Lav? and Constitution

unproved charges. The Holy Prophet did not imprison people
on mere accusations. It was necessary that the two parties
should appear in the oonrt and if the complainant failed to
prove his allegation with all the evidence at Vie disposal, the
defendant was acquitted.

'Umar, the second Caliph, while pronouncing judgment in
a famous case, said :

"In Islam no one oan be imprisoned without due
course of justice,"*

The third important right is that of freedom of opinion and
belief. 'Ali, the fourth Caliph, has given the best exposition of
Islamio law in this respect. During his period, the party known
as the Kharijites reared its head in revolt. This group was very
similar to the modern anarchists and nihilists. Its members
defied the State openly and denied the need for its existence in
Islam, and they were making preparations, to wipe it out by
sword. 'Ali (God bless his soul) sent the following message to
them : r

"You may live wherever you like, the only condition
between- us being that you will not indulge in bloodshed
and will not practise oruel methods. "»
On another oooasion, 'Ali addressed them thus :

"As long as you do not indulge in actual disruption
and disorder, we will not wage war against you. "3
This makes it quite clear that even an organised group may
entertain any set »*of ideas and may also peacefully practise
them ; and an Islamio State would not hinder or harm it. But if
it tries to foistf its ideology on others r by violent means and
endangers the security of the State or its administration,
necessary action sTiall certainly be taken against it.

Another right which has been greatly emphasised in Islam
is that of the^provision of basic necessities of life to all citizens

f-r: — 1 v

1. Imam Malik, Muwatta, Baab Sharaat al-Shahid, Kitab A hkam at-
'Khilafat.

\ Shftukani, Nad al-Autar, Vol. VIII, p. 139.
3. p. 133.

First Principles of the Islamic State 261

without distinction of caste or creed. Zakdt was made compul-
sory for Muslims for this very purpose and the Prophet himself
flays :

"It shall he taken fiom the rioh and distributed
amongst the poor and the needy." 1

At another place he (peace be on him) enunciates the
following principle :

"The- Government is the guardian (helper) of everyone

who has no guardian." 2

And again : M

"Whoever leaves liabilities (such as debts or destitute

families at the time of his death), the burden (of all suoh

liabilities) is upon us (i.e., the State)."*

In this matter, Islam has made no distinction between the
Muslims and non-Muslims. It gives to the Zimmia the same
guarantee as it gives to the Muslims, that the State would pot
let anybody be without food and clothing or a place of resi-
dence. Caliph 'Umar once found a Zimmi begging alms. He
granted a pension to him, absolved him from the payment of
Jizyah and wrote to his Treasury Officer :

"By God, we fail to do justice if we leave people

unprovided for in their old age, while making the fullest

use of their services in the prime of their life,"*
The Covenant that Khalid, the Sword of God, gave to the
non-Muslims of Hirah, contained the oondition that whosoever
beeante old or afflicted or destitute, would not be required to
pay the Jizyah, and that, on the other hand, he and his family
would be looked after from the funds of the State Treasury.

Duties of Citizens

As against these rights of the citizens, there are certain
rights of the State upon its citizens. Among these, the first is

that of obedience, for whioh the technical term of Smn'-o-Ta'at

1. Related by Bukhari and Muslim.

2, Abu Dm'ud, Tirmizi.

8. Kelated by Buhhari and Muslim.
4, 4hu Yousaf, KUab at-Kharaj, p, 72.

254 The Islamic Law and Constitution

is used in Islam. The Prophet has explained it thus -

"The State shall hare to be heard and shall have to be
obeyed, in adversity and in prosperity, and whether it is
pleasant or unpleasant to do so". 1

la other words, the order of the State, be it palatable or
unpalatable, easy or arduous, shall have to be obeyed under all
circumstances (save of course when it involves God's disobe-
dience, as disoussed earlier).

The second obligation on the oitizens vis a-vie an Islamic
State is that they should be loyal to it and work for its welfare.
In the Qur'an and the Hadith the term ^ "Nus'h" has been
used for this purpose, which in Arabio means more than what
is conveyed by the words loyalty and allegiance. It inherently
demands that a person should, truly and faithfully and with all
his heart, wish and work for the good r prosperity and the
betterment of the State, and should not tolerate anything likely
to harm its interests.

It is also obligatory on the citizens of the Islamic State to
co-operate whole heartedly with the government and to make
sacrifices of life and property for it, so much so that if any dan.
ger threatens the State, he who wilfully refrains from making a
aaorifice of his life and property for warding off that danger has
been called a hypoorite in the Qur'an.

Broadly speaking, these are the salient features of that
ideal form of government which we call an Telamio State. You
may describe it by any modern technioal term you choose. You
may call it secular, or democratic, or theocratic. We will not
fight for giving it a particular name. What we do insist upon is
the content. So long as we claim to believe in Islam and to
accept it as our way of life, our system of government should

essentially be based on the fundamentals prescribed by the
Qur'an and by the Holy Prophet Muhammad (blessings of Allah
be with him for all times to come).

Bukhari and Muslim

Chapter 7

Fundamentals of Islamic

Constitution

(as enunciated in the Qnr'4n and the Sunnah)

In the last quarter of 1952, when the Basic
Principles Committee Report was reaching oomple-
tion, a very vioiouB oampaign was launched in the
press against Islamio Constitution. It was alleged
that the demand for Islamic Constitution was
merely a political stunt and that the Qur'an and the
Sunnah throw no light on problems of Constitu-
tional Law. Maulana Maududi wrote this article in
November 1952 and showed that the fundamentals
of the Islamic Constitution are clearly stated in the
Book of God and the Traditions of the Holy
Prophet (peace be on him). It was a telling rejoin-
der to the protagonists of the plea that 'the Qur'an
cannot give a Constitution', and left the opponents
dumb-founded. It was published in Urdu, Bengali,
and English and is now being included in the pre-
. sent volume to show the salient features of Islamio
Constitution as enunciated in the Qur'an and the
Sunnah —Editor.

FUNDAMENTALS OF ISLAMIC
CONSTITUTION

(„ enunciated in the Qur'm and the Stmna fc)

w S the framing of our Constitution is entering its final stage
A it U the duty of all who are conversant with the ^
to assist the Constituent Assembly in framing an
etitution. From the very beginning we have been
discharge our duty to the best of our ability. The re P re ^'
£SE- of all the Muslim schools of thought
notorious services in this connection. In January ^«rth£
unanimously formulated the basic principles of the Islamic
State! But lt is very sad to note that some people have all
a Ion* been trying to confuse both the common people and the
Members of 'the 5 Constituent Assembly about
of bUmio Constitution. They have been repeating time and
again that there is no guidance in the Qur'an for the formu a
tfon of a Constitution, that Islam does not prescribe any special
form of government and that there is no such thing as an Islam-
xnio Constitution. In spite of the fact that these statements are
absolutely baseless, it is just possible f^™*"*^
ganda might produce confusion in the minds of those who are
not well versed in the Qur'an and the Sunnak. II .has, therefore
become necessary to cite verses of the Qur'an
of the Prophet (peace be on him) in order to counter *><W*
ganda and to show that the principles put forward by the
ganaa» u Mamie flonstitut on are based

'ULama. tor tne ionnui»"-u

on the original sources of Islamic Law. Incidentally, this will
also do away with the only possible excuse of the members of
the Constituent Assembly that they were not Jime
about the commands of the Almighty-God and His Messenger
concerning the Constitution of the State.

I, goo Appendix I- -Editor.

1 Fundamentals of Islamic Constitution 255

We reproduce below the relevant Qur'anio verses and the

authentic Traditions of the Prophet (peace be on him), along

with the constitutional principles which are deducible' from
them :

■

i

The Holy Qur'an says :—

"The (right of) Command ia for none but Allah. He
hath commanded that ye follow none but Him, That is the
right way (of life)". { !2 : 40)

This verse clearly points ont that the authority of giving
commands and the title to sovereignty is the sole preroga-
tive of Allah. Therte is nothing in the text to confine His Sorer,
eignty merely to its metaphysical aspects. It is directly address-
ed to mankind and is obviously all inclusive. It comprehends
all spheres of human life : the dootrinal, moral, legal as well as
political. The Qur'an itself specifically" states that all these
spheres of sovereignty belong to Allah alone, and it puts it in
very dear terms that Allah is not only the Sustainer and the
Lord of mankind but also its Sovereign and Ruler

"Say (0 Muhajnm^d) ; I seek refuge in the Sustainer

of mankind, the»S6vereign (Ruler) of mankind, the Lord of

mankind." (114 : 1-3)

The Qur'an further lays down that Allah is the Master of
the land and has no partner in His Sovereignty. . Thus says the
Qur'an : •

"Say : 0 Allah 1 Owner of the Kingdom ! Thou givest
kingdom to whom Thou wilt and takest it away from whom
Thou wilt". (3:26)

"None is a partner in His Sovereignty". (18 ; 111)

The Qur'an declares very explicitly that God is the sole

Creator and, therefore, to Him alone should and does belong

the right to rule over His Creation. The Qur'an says :

"Beware I His is the creation and His is the (right to)
, Rule". (7 : 54)

Obviously, the sovereignty which the Qur'an claims for
God ia aot merely of the metaphysical type but is also legal and

256

fk* Islamic Law and Constitution

political. The Qur'an states this fact specifically in the follow-
verees :

"Follow the revelation sent unto yon from your Lord
and do not follow the (so called) guardians other than
Him": (7:3)

"And those who do not make their decision in accord-
ance with what has been revealfrd by Allah, are (in face)
disbelievers". {5 : 44)

This conception of the political and legal sovereignty of
God is one of the fundamental principles of Islam. Indeed, all
Muslim jurists are agreed that legal sovereignty is the exclusive
prerogative of God. Thus, for instance, in his famous book :
Al-Ihkam ji Usui al-Ahham, which deals with the principles of
Fiqh, 'AUama Amidi writes as follows :

"Know that none but Allah is the Sovereign and no

command is worthy of obedienoe except that which is given

by Him".

• Shaikh Muhammad Khadhiri, a modern Egyptian writer on
tBlamio JurisprudenoeTaays in his book Usui al-Figh :

"As Command is the exclusive prerogative of Allah,
none is entitled to give any Command but He. This is a
point on which all Muslims are agreed".

It is quite clear from the above that state becomes Islamic
only when it recognises in clear terms the politioal and legal
sovereignty of Allah and binds itself to His obedienoe and
acknowledges Him as the Paramount Power Whose commands
must be uphold, come what may.

ii

All the prophets in general and the Holy Prophet
Muhammad (peace be on him) in particular are the repreaenta*
tives of this political and legal sovereiguty of God. As a corol-
lary to this, the prophets of God are entitled to the obedienoe
of those who accept God as their Sovereign. It is. therefore,
the bounden duty of every such individual, oommunity and
nation as believe in Divine Sovereiguty to follow the pattern

fundamentals of Islamic Constitution 257

■

set by them and to submit to their decisions without demur.
This principle has been very clearly enunciated in the Qur'an
over and over again. A few verses are quoted below in proof
thereof :

(a) "Whoso obeys the Messenger, obeys Allah". (4 : 80)
{b) "We never sent any Messenger, but for the sole pur-

pose that he should be obeyed under the sanction of

Allah". (4 : 64)
(c) "And take whatsoever Messenger gives you and abstain

from whatsoever he forbids". (59 : 7)
{d) "0 Muhammad ! We Have revealed this Book to you
with Truth that you may judge among mankind by
(the light) which Allah has shown to you". (4 : 105)
(e) "Nay, 0 Muhammad I by thy Lord, they will not be
believers until they accept you as the final arbiter in
all their disputes^and submit to your decision whole-
heartedly without any heartache". (4 : 66)
From these verses* we derive the second fundamental
principle of the Islamic Constitution, namely, that it must also
recognize the Sunnah of the Prophet as the Bouroe of law and
must incorporate a speoifio article to the effect that neither the
Executive nor the Legislature nor the Judioiary can issue order
or enact laws or pronounce verdicts contrary to the Sunnah,

in

The Qur'an says :

"Allah has promised to those among you who believe
and work righteous deeds, that He will most surely make
them Hia vicegerents in the earth as He had made the like
people before them His Vicegerents." (24 : 55)
This verse enunciates two very important constitutional
principles :

(1) The real status of an Islamic State is not that of a

Sovereign but of a vicegerent.

(2) In an Islamic State, the powers of "vioegerenoy" are
vested not in any one individual or family or group

t m m

but in the whole Muslim community — of course, when

258 The Islamic Law and Constitution

it is blessed with the possession of An independent state.

The concepts of 'Sovereignty' and 'Vicegerenoy' need some
elucidation. It is inherent in the very conception of sovereignty
that the authority of the sovereign power should neither he
limited by any power other than its own free-will Uor bound
by any law imposed from outside. Thus if a state acknowledges
that the injunctions of God and His Messenger are above ques-
tion, and neither its exeoutive can issue any'order nor its legis-
Iatura oan pass any laws nor its judioiary can give any verdict
repugnant to them ; it means that it has surrendered its claims
to sovereignty in favour of God and His Messenger. On this
acknowledgement its position automatically becomes that of an
agont or vicegerent of God and His Messenger. To say that
such a state possesses absolute sovereignty (except with refe-
rence to other state of the world) would be a contradiction in
terms. No doubt, an Islamio State is a sovereign state in the
real sense of this term m-a-vw the other states of the world,
but if it tries to assert its sovereignty vis-a-vis the oommands
qf God and His Messenger, this will amount the clear negation
of its Islamio character.

As to the second principle, it would be noted that Islam
vests all the Muslim oitinens of an Islamio State with 'vioege-
renoy'. Thus the 'vicegerency' in an Islamic State is popular
and not limited to any person, class or clan. And it is the
'popular vicegerency' that forms the basis of democracy in an
Islamio State while 'popular sovereignty' is its basis in a secular
state. In the Islamio polity, the term 'vioegerenoy' has been
adopted because the authority thai; vests in this society and its
state is delegated by God and can be wielded only within the
limits prescribed by Him. But as explained above, the autho-
rity is delegated to the Muslim community of the State as a
whole and not to any particular individual or group. Asa
result of this, tho government oan be formed only with the
consent of all the Muslim community of the State as a whole
and not to any particular individual or group. As a result of
this, the govornmont can be formed only with the consent of

Fundamentals of Islamic Constitution 259

all the Muslims or their majority and can function and remain
in power only as long as it enjoys their confidence. This is
why Caliph Abu Bakr refused to be called the 'vicegerent of
God* as he was not directly appointed by God but was elected
by the Muslim community to wield the delegated authority on
their behalf.

These two principles demand that the constitution of an
Islamic State must forsake all claims to absolute sovereign^ and
declare m unequivocal term that it is merely the vicegerent of
God and its function is to execute His will and commandments.

IV

* *

How this principle of 'Popular Vioegerency 1 should be
translated into action has been described clearly in the follow-
ing;

"They manage their affairs by mutual oonsultation".

(42 ■ 38)

This verse tells us the distinctive feature of the Islamic
way of life, namely, that all the collective affairs are performed
by mutual oonsultation. From the context where this verse
occurs, it is evident that it is not a mere statement of fact but
an injunction and a command. In this connection Khatib al-
Baghdadi quotes the following from Caliph 'Ali :

"I said, 'O Messenger of Allah 1 what should we do if
after your demise, we are confronted with a problem about
which we neither find anything in the Qur'an nor hate
anything from you' ! He replied : 'Get together the
obedient {to God and His Law) people from amongst my
followers and place the matter before them for consulta-
tion. Do not make deoisions on the basis of the opinion of
any single person '."1

Pointing out the true spirit of consultation, the Holy
Prophet (peaoe be on him) says :

"The man who gives a counsel to his brother knowing

I. AIluI, Ituh al-Ma'uiii.

260

The Islamic Law and Constitution

full well that it is not right, does most surely betray his
trust", i

As regards the mode of consultation, it has been very
wisely left to the discretion of Muslims. Islam does not pres-
cribe any definite form for the formation of the consultative
body or bodies for the simple reason that it is a universal religion
meant for all times and olimes. It does not, therefore, lay
down whether the people should be consulted directly or
through their accredited representatives ; whether the represen-
tatives should be elected in general eleotions or through electo-
ral colleges ; whether consultative body should, have one house
or two houses, etc. Obviously, these are matters of detail and
can vary with different societies and under different conditions.
That is why tho Shari'ah leaves these problems open for solu-
tion according to the needs of the time. The following three

things, howevor, are essential in the light of the Qur'anio verse
and the Traditions of the Prophet oited above :

(1) As no collective matter of the Muslims should be con-
ducted without consulting the people concerned, this

rule will apply in the very first instance to the appoint-
ment of the Head of the State. As such, it rules out
monarohy, despotism and dictatorship. Incidentally, it
does not permit the Head of the State to enjoy the
power suspending the constitution at his will, for
during the period of suspension he would be nothing
short of an autoorat.

(2) All the people concerned should be oonsulted directly or
through their trusted representatives.

(3) Tho consultation should be free, impartial and genuine.
Any consultation held under duress or temptation is in
reality no consultation at all.

Thus, whatever the details of the Constitution, these three
principles. oF the Shari'ah muat be observed, and no loophole
should be left whereby anyone gets the opportunity at any time
to govern without consulting the people or their accredited

I Keltktoil by Abu iJa y ud.

Fundamentals of Islamic Constitution 261

'representatives. Furthermore, the Islamic Constitution must
devise such a system of election as may enable the whole com-
munity to give their verdict without any tinge of fear, favour

or fraud,

V

■

As regards the qualifications of the Head of the State, the
Ministers, the members of the Consultative body and the
officers in general, the following instructions are found in the
Qur'an and the Sunnah :

The Holy Qur'an says :

(a) "Verily, Allah Commands you to make over trusts

(i.e., positions of responsibility) to those who are trust-
worthy". (4 : 58)

(b) As a matter of fact, the noblest of you in the sight of
Allah is the one who is most Godfearing". (49 : 13)

The Holy Prophet (peace be on him) says :
(a) "Your best leaders are those whom you love and who
love you and for whom you pray and who pray for
you, (while) your worst leaders are those whom you
hate and who hate you and whom you curse and who
curse you".*

' (b) "By God, wo do not assign the affairs of our govern*
ment to any one who aspires for it or is greedy in
respect of it". a

(c) "We consider the seeker after a post (of trust and res-
ponsibility) is the most untrustworthy.' 13

Not only the Qur'an and the Sunnah but also our history
testifies that Islam abhors the very idea of 'a person seeking
after positions of trust'. Thus we are told by Qalqashandi :

"It is related of Abu Bakr that he enquired of the

Messenger of Allah about appointments on posts of trust,

U Belated by Muslim.

2. Related by Buhhari and Muslim.

3, Related by Abu Dofud.

262 Thi Islamic Laic and Constitution

4

He replied : 'They are for those who do not aspire for them
and not for thoae who are greedy after them ; they are for
those who ran away from them and not for those who
scramble for them ; they are for those to whom they ara
offered (without asking) and not for those who claim them
aa their right".*

Although the instructions contained in the above-mention-
ed quotations are of a general nature and do not apeoify any
partioular machinery of election for bringing the right type of
people to the helm of affairs, it is the duty of the constitution-
makers of today to devise practical means for putting these
injunctions into practice. They should evolve suoh a system of
elections as would ensure the appointment of only those who are
trustworthy and pious, are loved by the people and are their
well-wishers. They should also devise effective measures to
defeat the designs and maohinations of those who scramble for
posts of truth and are consequently hated and cursed by the
people in spite of their BO-oalled "victories" in the elections.

VI

The Holy Qup'in says :

"Men are in-oharge of women". (4:34)
And in a Badith we have been told :

"A nation that entrusts its affairs (of the State) to a
woman can never prosper.""

These injunctions of the Qur'an and the Sunnah categori-
cally declare that the poata of responsibility in an Islamic State
(whether it be its presidentship, ministership or membership of
its legislature or the directorship of some department) ■
be eutrnsted to a woman.

In Islam there is a functional distribution between m>
women and acoording to that the fields of politics and ad
tration belong to the men's sphere of resoonsibilitiea. '

' « *

1. Qalqaahandi, Subh al-A'Sha, Vol. I, p. 240.

2, Related h 7 Bukhari, I

Fundamentals of Islamic Constitution

263

fore it wilt not be in keeping with the teachings of Islam to
drag women into these affairs. And to do so would bo clearly
against the injuctions of Allah and His Prophet (peace he
on him). 1 ^

VII

The Qur'an states that :

"(Muslims are) those who, if We give them power in
the land, establish the systems of Salat (worship) and Zakat
(poor-due) and enjoin virtue and forbid evil." (22 : 41)
This verse states clearly the aims, objects and duties of an
Islamio State. Unlike a Secular state, its duty is not merely to
maintain internal order, to defend the frontiers and to work for
the material prosperity of the country. Rather, its first and
foremost obligation is to establish the systems of Salat and
Zak^t to propagate and establish those things whioh are consi-
dered to be "virtues' by God and His Messenger, and to eradi-
cate those things whioh have been declared to be 'vice' by
them. In other words, no state can be called Islamic if it does
not fulfil this fundamental objeotive of an Islamio State. Thus
a state whioh does not take interest in establishing virtue and
eradicating vioe and in which adultery, drinking, gambling,
obscene literature, indecent films, vulgar songs, immoral display
of beauty, promiscuous mingling of men and women, co.
education, etc. flourish without let or hindrance, cannot be
called an Islamio State. An Islamic Constitution must declare
the above mentioned objective as the primary duty of the
State.

VIII

We have been told in the Qur'an :

"0 you who believe, obey Allah and obey His
Messenger and those from among yourselves who hold au-

!. As this is one of the most vexed problems of oar age, the reader in
requested to study those works of the learned author whioh deal with
this problem in detail. The reader is particularly refen id to Purdah
'and tho Statu* of Woman in Islam by Maulana Maududi, Published by
Islamic Publications Ltd., Lahore.— Editor.

264 The Mamie Law and ConsfiMttm

thority, and if there is any dispute bet ween yon ooncerning
any matter, refer it to Allah and the Messenger, if yon
{really) believe in Allah and the Last Day. This is the best
course (in itself) and better as regards the result." (4 : 69)
This verse enunciates three most important constitutional
principles :

(1) Muslims are bound to obey Allah and His Messenger

individually and as a community, and this obedience
must be given priority to every other obedience. Con-
sequently, obedience to everybody else comes after this
and not before that, and it is subject to it and not
independent of it.
The following verses and traditions also snpport the same
point :

(a) "It is not for a believing man or a believing woman to
have a say in any affair when it has been decided by

Allah and His Messenger ; and whoever disobeys Allah
and His Messenger, he goos astray manifestly." (33 : 36)

(b) "Thsoe who do not make decisions in accordance with
that whioh Allah has revealed are disbelievers . . . un-
just . . . transgressors." (5 : 44, 45, 47)

(c) "A Muslim must listen to and obey the ruler whether
he approves of what is ordered or abhors it, provided
he is not ordered to commit sin. In that oase, he
should neither listen nor obey."*

{d) "Even if an ugly and deformed slave is elected aa your
ruler and he conducts your affairs in accordance with
the teachings of the Book and the Sunnah, you must
listen to and obey him." a
(e) "There is no obedience in. sin ; it is only in virtue." 8
(/) "There is no obedience for those who disobey Allah ."4

1. Related by Bukhari and Muslim.

2. Belated by Muslim,

3. Related by Bukhari and Muslim.

4. Tibrart.

PuntomtiOals of J$lamie Cvnrtihdicm

*66

(g) "There is no obedience to the Creature if it Involve*
disobedience to the Creator.'*

The above-mentioned in junctions of the Qur'an and the
Sunnak definitely point out that in an Islamic State the legis-
lature has no right to make laws, the executive has no right to
issue orders and the law courts have no right to decide cases in
contravention of the teachings of the Qur'an and the Suntuih ;
and if they do so, the Muslims have no obligation to obey
them. Not only that, the fact of the matter is that if they
disobey them, they will be perfectly within their right and will
not be committing any sin. Furthermore, if anything is proved
to be right in the light of the Qur'an and the Sunnah. it cannot
be rejected by any judge or authority on the ground that it is in
conflict with any order of the Government of any law enacted by
the legislature. In such a case it is that order or the legislative
enactment which is in conflict with Shari'ah — and not the
Shari'ah — that should be declared ultra vires of the constitution
and set aside.

■ (2) Muslims alone caD be the rulers in an Islamic State.
The verse (4 : 59) quoted above clearly lays down :
'obey those from among yourselves who hold authority.'
It means that it is the Muslim rulers whom the Mus-
lims have been asked to obey. Moreover, in case of a
dispute between the rulers anil the ruled both have
been ordered to refer the matter to Allah and His
Messenger and it is only a Muslim ruler who can agree
to refer the dispute to Allah and His Messenger.
In addition to this the tradition already quoted also
supports the above conclusion.

Jn another tradition 'Ubadah bin Samit relates that the
Holy Prophet took the following pledge from us ;

"We will not dispute and fight with our rulers unless
we see signs of (such) open disbelief in their deeds which
may provide us with a justification from Allah (to stand

1 . Shark al-Sunnah.

366

Th* Islamic Law and Constitution

up) against them ' * - -

Another tradition «ya that when the Companions asked
the Prophet's permission to rise against bad rulers, he replied ;

"No (you cannot rebel against them) so long as they

continue to establish Salat among you." 2
After these clarifications, no shadow of doubt is left that
there is absolutely no scope for making any provision in the
constitution of an Islamic State for a non-Muslim to become a
ruler. And, as a matter of fact, to do so would be as irrational
and impracticable as would be a non-Communist's becoming
the ruler of a Communist state or a Fascist's becoming the
ruler of a democratic state,

(3) The verse (4 : 69) also gives the people the right to
differ with their rulers. In that case, the verdict of
Allah and His Messenger is to be taken as final both by
the rulers and the ruled. This implies that there must
be some institution for deciding such disputes in tho
light of the Qur'an and the Sunnah. But the Shariah
does not prescribe any definite form for this purpose.
It may be a body of 'Ulama or it may be in the form of
a Supreme Court. The verse demands that there must
be some institution for this purpose. 3

IX

The Qur'an says :

"Lo ! Allah commandeth you to repose truth with the
trustworthy and when you judge between people, judge
justly:" (4:68).

"Let not the enmity of any people seduce yon from
doing justice (to them). Do justice (in every ease) for it is
nearer to piety." (5 : 8)

1. Related by Bukhari and Muslim.

2. Related by Muslim.

3. Maulana Maududi has preferred the Supreme Court as the repository
of thU authority. This is clear from hit "Constitutional Proposals"—
Soe Chapter X.— Editor.

Fundamentals of MamiaConHUmtim 287

. . . _ _ -_ - - %■

These verses enjoin the Muslims to dp justice individually
aa well aa collectively. An Islamic State is, therefore, bound to

4

be just, for it is the most powerful institution for administering
justice among people. If there it no justice in its own affaire,
there can be no justice in the society in general.

The Holy Prophet (peace bo on him) and his Rightly
Guided successors {KhuIafa-t-Rashideen) also have impressed
the importance of doing justice between the people, as for
instance :

(1) In his well-known address on the occasion of his last
pilgrimage to Mecca, the Holy Prophet enunciated
some fundamental principles of the Islamic State. Ono
of them was :

"Most surely, your life, your property and your
honour are aa sacred as this day of hajj (pilgrimagp
This declaration of fundamental human rights hinds an

Islamic State to scrupulously safeguard the life, property and

honour of all its citizens.

(2) At the same time, the Holy Prophet himself has
speoified as to when this sanctity can be set aside. He

says :

■

(a) "When people do this (that is. stand witnesses for tho
sovereignty of Allah and the truth of Prophcthood,
establish Salat and pay Zakat), they will save their
lives from me (i e., the State) except when they commit
a crime against the law of Islam. And as regards the
assessment of their intentions, Allah alone can be the
judge."*

(6) "Their lives and their properties are sacred to us
except when they violate the sanctity of the life and
property of others and Allah alone is the judge of
intentions." 3

1. Related by Bukhari find MosHm.

2. Ibid.

3. Ibid.

268 The I$tamic Law and CanttiMion

(c) "Then any one who recites it (the Kalimah o(Towheed)
is entitled to the protection of his life and property bo
long as he does not make himself liable for their for-
feiture before Allah's (Law) and Allah alone is the

judge of intentions." 1
These traditions guarantee the sanctity of life, property
and honour within the limits of Islamic Law and though, in
their context, they refer to Muslims only, it is an agreed princi-
ple of Islamic SharVah that all non-Muslims who live under the
protection of an Islamic State aro entitled to the same civic
rights that the Muslims enjoy.

(3) As regards the procedure to bo adopted for the admin-
istration of justice, tho Holy Prophet (peace be on him)
has laid down the following rule ;

"When two persons bring a dispute to yen for decision,
do not deliver a judgment unless you have given an equal
hearing to both of them." 2

In a case decided by Caliph 'Umar, he makes the following
elucidation : ,

"According to the Islamic Law, none can be imprisoned
without {doing full) justice (to him)." 3

We learn from the details as given in Muwatta that, in the
newly conquered territory of Iraq, some people began to back-
bite and make false allegations against one another and in this
way, were responsible for sending many person behind the
bars. When such complaints were brought before tho Caliph
'Umar, he passed the above order. It meant that no one could
be imprisoned without a regular trial in a law court and without
giving him full opportunity to defend himself.

(4) When- the Kharijites who did not believe in any state,
rose in revolt during the Khilafal of Caliph 'Ali, he
wrote to them :

1. Related by Bukkari.

2. Related by Abu Da'ud, Tirmiti and Ahmad.

3. Related by Malik, Mwatta.

fundamentals of Islamic Conatiimtio* 869

"You may live ud move about wherever you like
you a > not shed.blood or spread ehaoa and resort

_ _ jm. But if you are guilty of any of these, I will go

to war against you." 1

This means that no action would be taken against anyone,
whatever political ideas he might hold, so long as he does not
try to overthrow the government by violent moans.

From these detai Is it must have become perfeotly clear that
the Islamic concoption of justice does not at all allow that the
executive be given the powers to arrest or imprison or exile or
suppress the rights of belief, opinion, expression of any body
without the due process of law that meets the end of justice.

Moreover, wo lcaru from authentic traditions that Islam
does not allow any differentiation or discrimination between the
rulers and the ruled or the high and the low in matters of law
and justice. There is and can be one and the same law, the
aame procedure and the same courts for all of them. Before his
demise, the Holy Prophet (peace be on him) presented his own
self for the satisfaction of any claim that any one might have
against him. Similarly, Caliph 'Uniar forced Jabalah bin Aiham
Ghaesani, the ruler of a native state, to satisfy the claim of a
common man against him. He also categorically refused to
comply with the request of 'Amr bin al-'As for legal safeguards
for the Governors. Not only that, he gave to everybody the
right to sue in ordinary courts any Governor and the highest
officers of the State.

X

■

■ *

The Holy Qur'an says :

(o) "In their wealth the beggar and the destitute have

their due." (51 : 19)
(ft) "Purify them (of vice) and develop them (in virtue) by
taking Zokdl from their wealth and pray for thorn".

(9 : 103)

1. Kelatod by Shuukaai, Nail-al-Autar.

270 The Islamic Law and Constitution

The Holy Prophet saya :

(a) "Allah baa made Zakat obligatory upon the Muslims.
It is to be collected from the wealthy among them and
distributed among their needy ones." 1

(b) "The Government is tho guardiati of any one who haa
no other guardian." 2

(c) "If any one dies while he owes a debt and does not
. leave behind any property for its payment, then the

responsibility for its payment is mine. But if any one
leaves any property behind, (the responsibility devolves
u^pon) his inheritors." 3

Ar-oording to another tradition ;

(J) Anyone who dies in the debt or loaves behind depen-
dents who aro in danger of becoming destitutes, they
should come to mo because I am their guardian.' 1 *

Id the words of yet another tradition :

(e) "If anyone leaves behind property,- it will go to his
heirs, but if anyone leaves behind some liabilities
(instead), tho burden of their responsibility falls on us
(i e. t the State)

A similar tradition is related by Abu Da'ud :

(/) "If a person leavos behind no inheritor, I shall be his
inheritor, both for paying off his liabilities and inherit-
ing his property

These verses and traditions clearly point out that one of
the major duties of an Islamic State is to establish the system
of Zakat and that it carries on its shoulders the responsibility
of providing for all those who are destitute and helpless.

1. Kolated by BukKari and Muslim.

* Belated by Abu Da'ud, Tirmizu lb* Majah. D*rmi. <Musnad-+Ahmad.

3. Related by Bukhari and Muslim.

4. Ibid.

5. Hid.

6. Related by A*>u Da'ud.

Fundamentals of Islamic Constitution 271

THE LAST WORD

Wo have presented, in the foregoing pages, some funda-
mental constitutional principles from the Qur'an and the 8unnah
for the benefit of thosj who are interested in the subject.
Now it id the duty of general Muslims to study them carefully,
from independent opinions of their own and say honestly whe-
ther or not these principles can form the basis for the Constitu-
tion of an Islamic State. We shall be thankful if anyone proves
scientifically and logically that ttiese principles have nothing to
do with the Constitution of the State or poiuts out any funda-
mental constitutional problems (not their details) for which no
guidance is available in the Qur'an or the Sunnah. If, however
neither of these is possible, only the following two courses
remain open for all honest people. Either submit to the demand
for Islamic Constitution or say frankly : 4 * We do not recognize
the Qur'an and the Sunnah as the final authority." To choose a
middle course between "Iman" and "Kufr" is neither honest
nor honourable nor fruitful in the long run.

Chapter 8

Rights of Non-Muslims
in Islamic State

■

THE question of the rights of non-Muslims in an
Islamic State has been oae of the most burning
question* ever aince Pakistan came into being.
In 1&48 the Constituent Assembly issued a ques-
tionnaire to ascertain the opinions of experts sa
well as of the general public about the position of
minorities in Pakistan. Maulana Maududi has
discussed the problem ^om the Islamic viewpoint
in this article which appeared in the Tarjutnan
al-Qur'Sn, in its issue of August, 1948.- Editor.

RIGHTS OF NON- MUSLIMS
IN ISLAMIC STATE

I

"\7TThILE discussing the rights of non-Muslims in an Islamic
State, it should be dearly borne in mind that an Islamic
State is essentially an ideological state, and is thus radically
different from a national state. This difference in the very
nature of these two types of states has an important bearing on
the problem under discission, and can be best understood by a
comparative study of the following points :

(1) An Islamic State olaasi- (1) A national state classi-

fies the people living within fies its citizens into groups of

its jurisdiction in the light of
their belief or disbelief in the
ideology which constitutes
the basis of the State. In
other words, the people are
divided into Muslims (who
believe in the ideology of the
State) and non- Muslims (who
do not believe in that ideo-
logy).

(2) It is obviouB from the
ideological nature of an Isla-
mic State that responsibility
to run the State should rest
primarily with those who
believo in the Islamic ideo-
logy. Those who do not
believe in the ideology of the
State can, no doubt, be asked
to cooperate, if they so like,

people in accordance with
their belonging or not belong-
ing to the nation or race which
has established the State in
question or which dominates
over it and is responsible for
running it. Herein the torms
'majority' and 'minority 1 are
used for the two respective
groups.

(2) The task of guidance
and policy-making in a
national state always remains
in the hands of the majority
community. As for the mino-
rity communities (whether
social, cultural or religious) of
the same nationality, they an*
not trusted with nor deemed
capable of shoulderiug this

Rights of Non-Muslims in Islamic State

275

with the Muslims in the task
of administration' hut they
should be neither called upon
to undertake nor can be en-
trusted with the responsibility
of policy-making.

►onsibility. This position
may not be explicitly declared
or even admitted. Nay, the
constitution of the country
may categorically abolish all
discriminations amongst the
citizens but that is what is in
vogue practically in every
national state. Even if any

member of the minority com-
munity is entrusted with auy

keypost, it is almost always a
subterfuge or as a special deal
with an individual. Iu reality
the minorities have nowhere

any say in important matters
of the State.

(3) On the other hand, a

national state can and in prac-
tice does follow tho hypocriti.

cal policy equating- all its
citizens on paper and still
actually retaining the unfair
discrimination between the
majority and the minority.
Nobody can deny the fact that

the minorities are almost
everywhere deprived of even
their basic human rights in the
so-called modern national
states.

(4) A national state, on the
other hand, generally adopts
any one or more of the follow*

jug courses for the solution of
its minority probfoin :

(3) An Islamic State, as

already stated, is by its very

nature bound to distinguish

between Muslims and non-
Mushms and it, in an honest

aud upright manner, not only

publicly declares this state of

affairs but also precisely

states as to what rights will

be conferred upon its non-
Muslim citizens and which of
them will not be enjoyed by
them.

(4) To solve the problems

arising out of the presence of

non- Muslims (i the people

not subscribing to the basic
principles of tho State) within

276

Th* Islamic Law snd Constitution

its boundaries, an Islamic
State guarantees them certain
specifically state rights. Be-
yond those rights it does not
permit them to meddle with
the affairs of the State which

is based on an ideology to
which they honestly do not

subscribe. Nevertheless, as

Islam does not believe in false

distinctions of race, ooloar,

or territory, it always keeps

the door open for them to

ombrance Islamic principles

of life and become equal

participants in all matters

concerning the State and the

i

government.

(5) An Islamic State is
bound to confer all those
rights on its non-Muslim
citizens which have been con-
ferred upon them by the Isla-
mic Shari'ah. No one has the
right to effect the slightest
curtailment in them 1 . Mus-
lims have, however, been
empowered to confer upon
them additional rights subject
only to their not being repug-
nant to the teachings of Islam.

(») to gradually destroy the
separate entity of the mino-

■

rity community ;

(ii) to exterminate it physi-
cally by means of genocide; or
{Hi) to allow them to exist,
as untouchables.

All these three methods
have been and are still being
largely employed by national
states all over the world.
Muslims of India are now hav-
ing a very bitter experience of
this solution of minority
problem.

(6) Whatever rights
actually granted to the mino-
rity under a national state,
depend on the sanction of the
majority. Thus the fate of
the minorities depends on
the whims and caprices of
the majority who always
has the power to curtail them
and even to deprive them at

will of even the fundamental
human rights. 2

I. Henoe the word "2mmm" which literally means "guaranteed^
S. Foreign reviewers and oritio* have particularly criticised thw Hiioaa-
siou over the approach and policy of a national state and nave

described it as inaccurate and even "burlesque."

Sight* of Non.M**Um* In UUmAc BMU W

These fire points of distinction slurtr rery dearly how
IsUin treats iU iron -Muslim subjects nd how a national state
treats its racial and cultural minorities. I r these distinctions
are ignored, one cannot escape falling a prey to many a mis-
understanding doe to the hypocritical pretension* of the
nresent-day national states of granting equal rights to all

But this criticism of theirs is totally unfounded. The description
of national minorities givon by the author is based on most authentic
sources. Wo would refer tho learned critics to see C. A. Macartney,
National Stole* and National Minorities wherein the author, on unim-
peachable evidence, describes the fate of national minorities ...
national states. Re observes :

"A national stat* and national minorities are incompatibly
Whore fate has pet a nationally conscious minority in a stnte, tlinro
are only three possible solutions and (although few government bo.

lieve this) forcible denationalisation is not one of them- Perhaps
fourth should be counted phytic** ttauahUr : but although thU effective
of ail remedies ie •till in vogue in certain countries, it shall not ba dis-
cussed here. The three possibilities whioh oan be considered are :
either the theoretioal basis and extsiting populations may bo left
untouched, but the frontiers may be revised in suoh a way as to leave
tho alien elements outside them ; or the bases of the 8tate may be
retained, and its frontiers left intact, bat the minorities may be eli-
minated by emigration (perhaps through exohange of populatian) ; or
thirdly, existing population and frontiers may be retained, but the
basis of the State may be altered/* <P- 423 >

This is the theoretical position, but in practice, the second (i.e..
elimination by migration) and the fourth (i.e., physical extermination)
remediee have usually been adopted. An idea of the position of mino-
rities can be had from the following extract from the abrve-quotea
book of Prof. Macartney who aoted as Secretary to the Minorities
Committee of the League of Nations :

■

«<Tho minorities say : Our charter of liberties is thus blatantly in-
adequate. It represents only a fraction of our minimum needs. But
even these have been made a dead latter, our Governments havo vio-
lated their treaties again and again. They have deprived us of our
land, our schools, our churches, and the League has let them do it. It
has winked at flagrant violations of the Treaties. It has put ua off
with mealy-mouthed resolutions about our duties .The marofaet

[Contd.

t

278

Tk$ Islamic Law and (kmMiMitm

citizen* of the Slate on paper on the one hand and leaving none
of them unrelated in practice on the other.

We now revert to the problem under consideration.

ii

THE CLASSIFICATION OF NON-MUSLIM

CITIZENS

The Islamic Shari'ah divides its non-Muslim citizens into
three categories, i)»2.

(a) Those who become the subject* of an Islamic State
under some treaty or agreement ;

(b) Those who become its subjects after being defeated by
the Muslims in a. war, and

(c) Those who are there in the Islamic State in any other

way.

So far as the general rights of non-Muslims (t,e., the funda-
mental human rights) are concerned, all are treated alike.

that from the inauguration of the Loague procedure up to February
1931 no less than 62o petition* had beon submitted to the League
(excluding those submitted under the Upper Silesian procedure)

indicate no \.e; hy state of things It is, moreover, notorious that

certain of the minorities whose cage has been the most dismal have
been afraid to petition tho League at all for fear of incurring reprisals
...the subject-matter of the petitions which have been received ranges
from comparatively trivial cases of insulting words to oases of rap-
ing, torture and murder ; from in justice* inflicted on individuals to
the systematic oppression of communities hundreds of thousands
and even millions strong (pp. 381-384).
The author admits in clear words that :

"Generally speaking, the fate of minorities has been one of suffer-
ing. Almost every state has oommitted. and every minority suffered
under, flagrant violations of the Minority Treaties, And these have
boen committed, to all intents and purposes, with impunity," (p.
390). (Emphasis mine)

Other authorities can also be quoted in support of the bitter facts
presented above— Editor.

Right* of Nan- Muslims *» Mamie State 270

However, the respective instruction* relating to the first two
p roups being slightly different from each other as well as from
those concerning the third group, we propose to deal first with
the specific instructions relating to groups (a) and (b) before em-
barking upon a disoassioa on the general rights of all Zimmis.

"Contractees"

For those who accept the hegemony of an Islamic State
without or even during a war, and enter into a specific contract
with it. Islam prescribes that all matters relating to them
should invariably be decided in accordance with the terms pf
the treaty or agreement. To offer generous treatment to oppo-
nents in order to persuade them to lay down arms and thm to
throw them overboard, is tho everyday practice of all the so-
r ailed civilized nations of the world ; but it militates ajrainst
the injunctions of Islam which cannot brook such deception.
Islam considers such feats of strategy as fraudulent and mean
nnd prohibits them totally. It enjoins that once the terms have
heen settled with any group or community, they must be fully
arfhered to, even if they seem to be distasteful later on. Mus-
lims are bound by their faith to abide by thorn and to carry
^hem out in letter and spirit. The Holy Prophet (peace be on
him) has clearly enjoined :

"If you fight against a people and overpower them, and
they agree to pay a fixed indemnity or annual revenue
(kharaj) to you in order to save their lives and those of
their progenies, then do not take a penny more than tho
fixed amount, because that will not be valid." 1

"Beware ! whosoever is cruel and hard on such people
"contractees") or curtails their rights, or burdens
them with more than they can endure, or realise anything
from them against their f/ee-will. / shall myaelf be a
complainant against him on the Day of Judgement"*

- — ^» i i i *- w m mm

1. Related by Abu Da*ud, Tht Book o/Jihdd,

2. Ibid.

MA

Islamic law and Constitution

These in juno tiors rf the Holy Prop bet (peace be on him)
clearly and unambiguously proclaim that no arbitrary change
or alteration ia permissible in the terms and conditions of any
agreement that is entered into with the Zimmis. Neither ean
the amount of their annual levy be arbitrarily increased nor
their lands and their buildings be confiscated against that agree-
mant. Besides that they cannot be subjected to undue and harsh
treatment and their religion and their personal law shall remain
immune from state interference. Their Hres, honour and pro-
perty are as sacrod as those of the Muslims. Their rights cannot
be curtailed, nor can they be tyrannized. They are not to be

deprived of their lawful belongings, nor made to bear a burden
which is beyond their oapacity.

■

Thus, in the case of the contractee non- Muslims the funda-
mental principle is that the relations between them and the
Islamic State shall bo baaed on the terms of the agreement. As
Buoh no specific laws have been formulated by the Muslim
jurists in regard to the treatment to be meted out to them
except laying down the general rule that snoh non-Muslims
should be treated according to the terms of the agreement or the
treaty that might have been entered into. Imam AbQ Yeusuf 1
writes :

"We shall take from them only what was mutually
fixed at the time of peace-making. AH terms of the treaty
shall be strictly adhered to and no additions would be
permitted."*

The "Conquered"

People who continue to fight against the Muslims till they

1. lmim Abu Youauf was one of tho greatest Jurist* of Islam. Ho was
the Chiof Jiwtioe of tho Abbas id empire during tho reign of Harm*
al-Hftshid. Ho was tho chief disciplo of tho groat legiftt. Imam Abu
Hanifa and he has boon regarded, throughout Mualiza history, a* ma
authority on Muslim Law. HU great work, Kilah al*Kham$ ia counted
as one of the iouroe-books on the Hanaflte law.— Bdtior.

2. Abu Vo.usuf, Kirab aUKharaj, Cairo, p. 35.

Sight* of Non-Muslims in Islamic State

281

are overpowered and lay down arms only when Muslim armies
have entered their cities and towns as conquerors, come under
this second category. When such people are made Zimmis, they
are given certain Bpecifio rights, details of which oan he found
in all the standard books on this subject. Here we state briefly
all those relevant injunctions on this point, which explain the
constitutional status of Zimmis belonging to this category :

(a) As soon as the State accepts Jizyah from them, it be.
comes the obligatory responsibility of every Muslim to
protect their lands and properties and their life and
honour. The acceptance of Jizyah establishes the sanc-
tity of their lives and property, and, thereafter, neither
the Islamic State nor the Muslim public have any right
to violate their property, honour or liberty. 'Umar,
the second Caliph, clearly enjoined Abu 'Ubaidah, the
Commander-in-Chief of Islamic armies, as follows :
"The moment you accept Jizyah from them you forego
the right to take liberties with them or with their
properties."

(6) After the agreement the Zimmis continue to enjoy the
ownership of their properties and their heirs have full
rights of inheritance in it. They possess full power of
sale, transfer, grant and mortgage in respect of all suoh
properties and the Islamic State has no right to dis-
possess them of any of these rights.

(c) The amount of Jizyah is to be fixed in accordance with
their financial position. Those who are rich have to
pay more, while those who belong to the middle class
pay less, and the least amount is charged from the
poor class. Those who are destitutes and do not have
any fixed source of income or depend on others for
their livelihood, are completely exempted. No fixed
amount has been prescribed for Jizyah t and it has been
enjoined that only that much should be taken which
does riot involve undue hardship in payment, Caliph

282

The Mamie Low and Constitution

'Uoiar in bit time, fixed the amounts which were equi-
valent to rupee one 1 per month for the rich people,
fifty paisaa per month for the middle classes and only
t twenty-fire paisaa per month for the poor,

(&) Jizyah is levied only on those who hare actually
fought against Muslims or who are able-bodied and can
participate in a war against Islam. Noncombatants like
women, ohildren, lunatics, blind, lame, age-stricken or
physically disabled persons are exempt from Jizyah.
Similarly the olergy, the monks and the servants of the .
monasteries are exempt therefrom. 1

(e) Muslims do have right to confiscate the places of
worship in such towns as have been taken by storm.
But to forgo this right willingly and to allow such
places of worship to remain intact as a gesture of good
will, is generally held to be more pious. In all the
countries conquered in the days of Caliph 'Umar, not
a single place of worship was ever desecrated or inter-
fered with. Aba Yousuf writes :

"All such places of worship were left as they were.
They were neither razed to the ground nor were tho
conquered deprived of their goods or property* 1 . 8
Ancient places of worship are never permitted to be des-
troyed.

Ill

GENERAL RIGHTS OF THE ZIMM1S

We will now discuss those rights of the Zimmis whioh cover
all the three groups categorised above.

The blood of a Zimmi is considered as sacred as that of a

■

1, A rupee is approximately equal to 4.5 pence and there arc luO paisas
in a Bupee,— Editor.

2. Seei Kamaluddin Ibn Ham roam, Fatk al*Qadir and Abu Yousuf, Kiiab
al*Kharty,

3- Abo Yousuf t Ibid.

Bights of Non-Mtitlima in Islamic Statt 283

Muslim. If a Muslim kills a Ziwwf, retribution and restitution
will have to be made just as for killing a Muslim. A Muslim
killed a Zimmi in the days of the Holy Prophet (peace be on
him).

The Holy Prophet ordered his execution saying :

"I am responsible for obtaining redress for the weak". 1

In the days of Caliph ' Umar a person of the tribe of Bakr
bin Wa'il killed a Zimmi of Hirah. The Caliph ordered that
the murderer be handed over to the kith and kin of the deceas-
ed. This was done and the successors of the deceased executed
him.

During the reign of 'Uthman, the third Caliph, an order
was issued for the execution of Obaidullah, son of Caliph 'Umar
because he was said to have killed Hurmuian, the assassin of
'Umar and the daughter of Abu Lulu under the impression that
they had conspired to murder his illustrious father. Both of

them were Zimmit. .

In the dayB of 'Ali, the fourth Caliph, a Muslim was accus-
ed of murdeiing a Zimmi. The oharge being proved, 'Ali
ordered the execution of the Muslim. The brother of the de-
ceased submitted, however, that he had forgiven him. But 'Ah
was not satisfied and that perhaps the people had threatened
him. It was only when the brother of the deceased sought
pardon for the murderer, persistently insisting that he had
received the blood-money and that the deceased would not
return to life by the ereoution of his murderer, then and only
then did 'Ali gave his oonsent te release the murderer and said :

"Whosoever is our Zimmi his blood is as sacred as our own
and his property is as inviolable as our own property."

In another reference, 'Ali ia reported to have said : "They
have accepted the position of Zimmia on the explicit under-
standing that their properties and their lives will remain sacred
like those of ours, i.e., ofthe Muslims)".

That is .why the Muslim jurists have inferred that if a

I, Shaukani, Noil al-Aular,

384 The Islamic Law and Constitution

Muslim, even unintentionally, kills a Zimmi, similar compensa-
tion must be paid aa is fixed in the case of the unintentional
murdor of a Muslim.

Zimmis and the Criminal Law

The Penal Laws are the same for the Zimrnis and the
Muslims and both are to be treated alike in this regard. The
Zimmis are subjected to the same penalties as are the Muslims.
Thus, for instance, whether, it is a Zimmi who steals or a Mus-
lim, the hands of the thief will be chopped off in both oases.
Similarly, whether it is a Zimmi or a Muslim who levels an
unproved oharge of adultery against any male or female, the
same punishment would be meted out to both. The punishment
or adultery is also the same in both oases. In the matter of
drinking wine, however, the Zimmi* are exempt from punish-
ment. 1

Civil Laws

The Civil Laws, too, are the same for both the Zimmis and
the Muslims. There is thus complete equality between them in
this respect. In fact, this was exactly what 'AH meant when
he said that their properties are as sacred as are the properties
of the Muslims. A natural corollary of this equality of status
is that whatever restrictions are placed on the Muslims under
the Civil Laws, the same are applicable to the Zimmis.

Whatever objects, forms and means of trade are prohibited
for the Muslims, the same are also prohibited for the Zimmis.
For instance, interest is unlawful (haram) for the Muslims and
similarly it is unlawful for the Zimmis. But in the case of
drinking wine and eating pork the Zimmis are free to take
them. They can prepare, drink and deal in wine and they can
also rear, eat and sell pigs. Not only that, if any Muslim harms

w m

m

1. According to Imam Malik, the Zimmit are exempt from the punish-
ment for adultery also. He infers this from the decisions of 'Omar
and *Ali whioh lay do wo that if a Zimmi commits adultery his case,
should be referred to his co-religionists,

Rights of Non-Muslims in Islamic State

285

or destroys their liquor or their pigs, he will be made to pay
compensation for that loss. According to the Dvrr aUMukktar :

"If a Muslim spoils the wine of a Zimmi or harms his pigs,
he will have to pay for them". 1

Protection of Honour

To assault, injure or abuse a Zimmi or even to backbite
him is considered just as immoral as is doing such things in
respeot of. a Muslim. According to the'Islamio Law :

"It is imperative for Muslims to refrain from causing in-
convenience to a Zimmi and to backbite him, for backbiting, a
Zimmi is as much prohibited as is to backbite a Muslim 1 ' 9 . 2

The Inviolability of Guarantees

The responsibility which Muslims take upon themselves in
respect of ^non-Muslims, has an abiding value and they are not
permitted to break the bond. But the Zimmis have, on the
contrary, the right to renounce it as and when they like.
According to the Muslim legists, ao far as Muslims are concern-
ed, the responsibility of Zimmis if once accepted becomes obli-
gatory and it oannot be forsaken. But for the Zimmis, it is
discretionary, i.e., if they desire to forego it, they can do so. 3

A Zimmi may commit the greatest of crimes and yet it
will not disqualify him from being treated as a Zimmi, Even
if he refuses to pay the Jizyah or kills a Muslim or abuses the
Holy Prophet (peaoe be on him) or attacks the honour of a
Muslim woman, he will not be considered to have lost his right
of protection. He will only be punished for the crime he com-
mits but he will not be declared a rebel, nor deprived of the
privileges accorded to him as a Zimmi. There are only the

1. Alauddin,, Dutr al-Mukhlar. It is an authentic collection of the
judgments >ind JaUoae <vordicta> of the Hanafi aofaool of thought. —

.Editor,

2. ^lauddin, Durr ai-Muhhtar.

3. Alauddin Abu Bakr bhi 6a«ud oMCasSni, Baddi' al-Sanai* ; a source-
book of the Hanafi school of Islamic Law.— Bditor.

286

The Islamic Lan and Oonttitution

following two crimes which deprive the Zimmia of their rig hfc

to protection namely :

(1) When they leave the Muslim State and go over to it*
enemies, and

(2) When they openly revolt against the State and try to
overthrow it.

Personal Law

All personal matters of the ZimmU are to be decided in
accordance with their own Personal Law. The corresponding
law of Shari'ah are not to be enforced on them. If anything
is prohibited for the Muslims in their Personal Law but the
same is not forbidden to the Zimmia by their religion, they
will have the right to use that thing and the courts in the
country will decide their cases in the light of their Personal
Law. For instance, marriage without witnesses and without
fixation of Mehr (dower money) or marriages within the period
of '/ddol, 1 or marriages in contravention of consanguinity, if
permitted in the Personal Law of the Zimmi9, will be allowed
to stand. This has been the rule of all Muslim Governments
since the days of the early Caliphs, 'Umar bin' 4 Abd al- 4 Aziz
once asked for Jaiwa in this respect from Hasan al-Basri,
saying : ■

"How is it that the Caliphs left the Zimmia free in the
matters of marriages regardless of consanguinity and in the
matters of drinking wine and eating pork 1"
Hasan replied :

"The Zimmia accepted to pay Jizyoh only beoause
they wanted to be free to live in accordance with their
own Personal Law. Yon have only to follow what your
predecessors did. You are not to deviate or to innovate".
But if from amongst the Zimmia both the parties request
that their disputes be decided in the light of the Islamic

I. This poriod is normally four m* >uth$ and ten days*. In the ease of pre.
gnauoy, it oxtends to and expires on dolivory.

\

Bifhte of Non -JfaeUm. %• bktmU Btato

the Islamic Court, will enforce the Apr** on thenv
Further, if in a matter of Personal Law. one of the part.es « a
Muslim, the case will have to be deaii with in aooordauae with
the Islamic Shari'ak. For instance, if a Christian woman
marries a Muslim and become, a widow she cannot £ p«K.
ed to marry until the expiry of the full period of Iddat. U
she doe. so, such a marriage would be regarded as null and

void. 1

Religious Rite.

The Islamic Law and practice regarding the public perfor-
mance of religious rite, and communal festival, by the ZimmU
are equally generous. In their own towns and citie. they are
allowed to do so with the fullest freedom. In purely Muslim
habitations « however, an Islamic Government has fall discre-
tion to pat such restrictions on their observance as it deems
necessary.

In BadSi' it is said :

"In localities not covered by the term 'purely Muslim

habitations', the Zimmit will not be .topped from selling
wiae or pork or from taking out procession, of the Crow or
from blowing conches, although the number of Muslim in-
• habitant, therein may not be negligible. These matter,
win, however, be considered objectionable in town* . and
places which may be termed as 'purely Muslim habitation
i R ., those where Friday and 'Id congregation, are held

' -Regarding acts which are prohibited by their codes
also for instance adultery, they are to be restrained from
committing them even within the limit, of their own town,
and habitation.". 8

1. AUMabni, Vol. V, pp. 88-40 technical term

2 . ..^ely Musi i in ^^^J^^it^a^ haW**
of the SW»'aA "Amsar al-Mutltm^. a demonstrating
tion on lauds owned by Muslim and consecrated for demonstrat ng
the glory and supremacy of the Islamic way of hfe

3 Al auddm Abu B.kr, Bad*? e*W. ™ * "V

"88 The Mamie Law and Constitution

And even in purely Muslim cities and towns , they are only
restricted from taking out public processions of the Cross and
of the idols and from openly blowing conches in the markets
and along the roads. Within the boundaries of their own places
of worship, they can perform all these rites and no Islamic
Government will interfere therein. 1

Places of Worship

Even in purely Muslim areas, the non-Maalim places of
worship built in the past are not to be interfered with, and if
they are damaged or destroyed, the Zimmia have the right to
rebuild or repair them. But they are not entitled to build new
places of worship in these areas. In places which are not purely
Muslim area, there is no such restriction on them. Similarly,
in those cities and places which may have previously been
purely Muslim areas, but have oeaBed to be such areas and
where Friday and ' irf congregational prayers and enforcement
of hndud are no longer in vogue, the Zimmi* can build new
plaoea of worship and demonstrate the performance of their
religious rites, 2

Ibn 'Abbas has said :

"In towns founded by the Muslims, the Zimtnis have
no right to build new places of worship or to blow conches
in the market or on roads or to sell wine or pork openly.
But in cities originally established by non-Muslims and
only subsequently conquered by the Muslims, the right of
the non-Muslims will be decided in accordance with a treaty
and it is obligatory on the Muslims to abide by it". 3

Concession in the Realisation of Jizyah and Kfaaraj

The use of violence and coercive methods in the realisation
ot Jiyzah or Kkaraj is prohibited and kindness and benevolence
are enjoined in this respect. It is also forbidden to impose

■ ■

■ I, Sharah al-Siyaf aUKabir, Vol. Ill, p. 261.

2. Baddi*. Vol. VII. p. 144 ; Sharah <il-Siyar aUKabir, Vol. Ill, p. 667,

3, Abu Yoususj Kitab a'-Khantj, j>. 88.

Eights of Non-Mualims in Islamic State 280

* amounts which may be beyond their means. Caliph 'Umar bad
clearly ordered that they should not be made to pay more than
what they could actually afford. 1

And even for that are not to be put to any undue incon-
venience. Thus, their properties cannot be auctioned in case of
failure to pay Jizyah. Oaliph 'Ali himself directed one of his
governors not to auction or sell their apparel or cattle for the
realisation of Kharaj* On another occasion he gave the
following instructions to one of his governors at the time of
deputing him for his office :

"Their winter and summer apparel, their utensils and
agricultural implements and their cattle should not be sold
to realise Kharaj, nor should anybody be beaten or kept
standing in the sun, nor should any of their properties be
auotioned for this purpose. Now that we have been made
their rulers we should treat them with mildness Mid
leniency. If you disobey these orders of mine, God will
take you to task for it, and if I learn of your disobedience,

I shall remove you from offioe". 3

In the realisation of Jizyah also, every form of coercion is
strictly forbidden. In his -directive to Abu 'Ubaidah, the
Governor of Syria, Caliph 'Umar said that Muslims should not
•be permitted anyway to harm the Zimmis or put them to in-
convenience or illegally deprive them of their properties'. 4

When, during his journey to Syria, Caliph 'Umar learnfef, of
governor's punishing the Zimmis for non-payment of Jizyah, he
said :

"Do not chastise them, for if you do so, God Almighty
will do the same to you on the Day of Judgment". 6
HiBham bin Hakam found a Government officer punishing
a Qibti for failure to pay Jizyah by making him stand in the

■

1 w

1. Ibid.* pp. 8, 32.

2. Fath al-Bayan, Vol, 4, p. 93.

3. Abu Yousuf, Kiiab al-Kharaf, p. 9.

4. Ibid., p. 82.

5. Abu Yousuf, Kitab aUKhamj p. 71.

290 The Islamic Law and Constitution

sun. He scolded him and said :

"I have heard the Prophet (peace be on him) saying
that God will chastise (in the Hereafter) those who chastise
human beings in this world", 1

In regard to the defaulters of Jizyah, the Muslim Jurists
hare permitted the awarding of only simple imprisonment as a
oorrecti rc measure. 2

Those Zirnmis who become bankrupt, are not onlj
exempt from the payment of Jizyah, but are entitled to
help from the Bait al-Mal (State Exchequer). Khalid bin

Walid, in his famous "Covenant of Peace" given to the
people of Hi rah, wrote :

"I hare stipulated that if any one of them becomes
unfit to work on account of old age or some other cause, or
if anyone who was formerly rich becomes so poor that his
co-religionists hare to support him by giving him alms,

such persons will be exempt from paying the Jizyah and
they, together with their dependents, will be helped from

the Islamic Treasury (Bait al-liaiy\*

Once Caliph 'Umar noticed an old Zimmi begging in the

streets. He asked him as to the reason for doing so. The

Zimmi replied that he did so in order to be able to pay the

Jizyah, whereupon the Caliph exempted him from its payment,
sanctioned a pension for him and directed his Treasury Officer

in the following words :

"By God, it is undoubtedly not just that we derive
benefit from a person in the prime of his youth but leave
him to beg in the streets when he is stricken with old
age".*

During his journey to Damascus, Caliph 'Umar ordered
the fixation of pensions for the invalid and the aged Zimmi* fi

1. Abu Da'ud, Kitab aUKharaj, Baab al-Fae' tea al-Imarak,

2. Ibid., p. 70.

3. Ifctt., p. 85. -

4. PM„ p. 12 ; Fath al-Qadir, Vol. 4, p. 273.

5. Fu/uh al-Bufdan (European edition), p. 129.

BigM* of Non-Mu*lintt i* Idamic State , 301

If any Zimmi dies leaving arrears of J izyah , those arrears
cannot be realised from the property he has left nor can they be
olaimed from his successors. Abu Yousuf writes :

"If any Zimmi has to pay Jizyah and dies before pay-
ing it, the same will not be realisable from bis successors
nor from the propety left by him". 1

Trade Tax

Zimmi traders also have to pay a trade-tax as ia charged
from the Muslim traders on trade goods oi the value of «00
dirhanu or more or if they own 20 mithqals or more of gold*
No doubt, in the beginniog, the Jurists levied 5% trade-tax on
Zimmi business-men whereas only 2*% was realised from the
Muslim traders. This was, however, not on the basis of any
Qur'aoie injunction but solely on the exigencies of time. The
position was that Muslims had been mostly busy in the defence
of the oountry and business had almost entirely passed into the
hands of the Zimmi t. The tax was reduced ia tb* ease of
Muslim traders only to enoourage and protect them from undue

i

competition. 1

Exemption from Military Service

Zimmis have been exempted from military duty, because
the defence of State against its enemies has been made the res-
ponsibility of its Muslim population only. Evidently only
those people who believe in the basic ideology of the State
sinoerely can and should light for its protection. Agaih, only
the believers* in that ideology can be expected to honour the
moral principles whieh have been prescribed by Islam for war-
fare. Others can fight for it only as mercenaries and, oonse-
quently, they cannot be expected to observe the Islamic ethical
code in the heat of the battle. These are the main reason*

1. Abu Youauf, Kiiab aUKharaj, p. 70 ; Al-MaUut, Vol. X, p. M.

2. Ibid., p. 70. But this ceiling for trade good* or ownership can be
revised. It was fixed with respect to the conditions prevailing at- the

time.

292

The Islamic Law and Constitution

why the Zimmis have been exempted from military service and
have only been enjoined to pay their monetary share in the
defence of the State. Jizyah is thus not only a symbol of
loyalty to the State but it is also the contributory compensa-
tion for exemption from military service, and that is why it is
imposed only on males, capable of military service. When-
ever Muslims are unable to protect the Zimmis, the Jizyah and
Kharaj that might have been realized from them, have to be
retnrned.l At the time of the battle of Yurmnk, when the
Romans gathered huge armies to fight against the Muslims and
the Muslims had to forego their occupation of most of the towns
of Syria in order to concentrate at a single point. Abu 'Ubaidah,
the Commander-in-Chief, ordered his subordinates to return the
Jizyah and the Kharaj already realised from the Zimmis and to
inform them that as the Muslims were unable to proteot them,
they were returning whatever they had realised from them. It
need hardly be added that all offioers promptly did so. Balazuri,
describing the reactions of the non-Muslim population of these

. For a detailed discussion on this subject refer to : Mcbttut, Vol. X,
pp. 78-79 ; Hadaya, Kitab al-Siyarfi Kaijly.it Qitmat rt-Gh*uacm and
Baab aUJizyah ; Fath al-Qadir t Vol. IV, pp. 827-28 and pp. 369-70.

It Should, however, bo remembered that if the Zimmis offer their
Services voluntarily in case of war, the persons doing no will be ex-
empted from payment of Jizyah. Furthermore, the faot that should
also be kept in view in this respect is that the obnoxiousness that the
non-Muslims generally feel by the very mention of the term Jizyah,
is the result of persistent, baseless propaganda that the antagonists
of Islam have been carrying on for the last so many centuries. As a
matter of fact there is absolutely no basis for this feeling Jizyah is
the consideration for the protection and the safeguard of their rights
that an Islamic State guarantees to the uon-Muslims. Then, this is
realised from the able-bodied adult male.; only. The people who mis-
ohievously oil) it 'a fine for not accepting Islam can be pertinently
asked ! what name will they givo to &tku which is charged from ail
adult Muslims-males as well « female s-and the rate of which is
much higher than that of Jizyah f- Is that the 'fine for accepting
Islam 1 f

Bighte of Non-Muslims in lelamic State

293

towns, writes that when the Muslims refunded the amounts of
Jizyah in Hums, the people unanimously declared :

"We prefer your Government and its keen sense of
justice to the cruelty and injustice of our own co-religionists
and we aro not going to allow thoir agents to enter the
gates of the city unless we are overpowered by them'*. 1

IV

MUSLIM JURISTS AND THE ZIMMIS

*

In the foregoing pages we have briefly discussed the details
of some of the laws whioh were adopted to proteot the rights
and privileges of non-Muslims in an Islamic State. Before
proceeding further we wish to stress that under all Muslim
governments since the days of the Righteous Caliphs, whenever
any injustice were perpetrated on the Zitnrnis, the Muslim
Jurists stood up with one voice to ohampion their cause and
they emphatically condemned all such acts of high handedness.

A well-known event of history is that the Umayyad Caliph
Walid bin 'Abd al-Malik had forcibly incorporated a portion of
a Cathedral in Damascus into bis mosque. When 'Umar bin
'Abd al-'Aziz became the Caliph, the Christians reported this to
him and he at once wrote to the governor of the province to de-
molish those portions of the mosque whioh stood on the land of
the Cathedral and to hand it over to the Christians, 2

Walid bin Yazid, fearing a Roman attack, had exiled the
Zimmi of Cyprus to Syria. Muslim Jurists and the Muslim
publio protested strongly against the measure and condemned it
as a great sin ; so much so that when his son Yazid bin Walid
became Caliph, he had to send baok all the exiles to Cyprus, for
which he was highly praised both by his friends and foes.
Isina'il bin ' Ayyash has mentioned this. He says :

M

1. Fuluh aUBuldan (European ed.), 137,
Sf. Z6t*,p,132.

294 The Islamic Law and Constitution

" Muslims in general dissociated themselves from this
act and ail well-known Jurists declared it to be a great sin.
And when Yaiid bin Walid became Caliph and sent them
back to Cyprus, Muslims generally approved of it and
praised him for being just and good", 1

Salaanri tells us that onee some of the hill tribes of Lebanon
rose in revolt against the State. Thereupon, the governor, Saleh
bin 'All bin * Abdullah, despatched an army to crash it and the
army put all the male combatants of the revolting band to
death. As for the citizens, he exiled some of them and allowed
the remaining to live there. Imam AuxVi was alive in these
days. When he learnt of it he reprimanded Saleh vehemently. "
The following extraot from the letter that he wrote to him
speaks for itself :

"Zimmis of the hill-tracts of Lebanon have been exiled
and you know the fact. Amongst them are men who had
not taken part id the revolt. I fail to understand why
common people should be punished for sins of particular in-
dividuals and be deprived of their homes and properties.
The Qur'anio injunction is quite clear that ultimately every-
body will have to account for his own actions and nobody
shall be held responsible for anybody else's actions. This
is an eternal and universal injunction, and the beet advice
therefore, that I can give to you is to remind you of one of
the directives of God's Prophet (peaoe be on him) that he
himself will stand up as complainants against all such

* ■

Muslims who are unkind to those non-Muslims who have
entered into an agreement with them and tax them beyond

■

endurance". 2

History is replete with countless instances of the same
nature, which go to show that Muslim Jurists — the same people
who are now-a-days called "Malla" — have always stood for the
rights of Zimmie, and if at any time the rulers dared to be cruel
to them, they ^s well as all the 'Utamd of the age invariably

1. Futuh <d-Buldtm t p # 156.

2. 2bid. t p, ISP.

BighU of Non-Muslim* in Islamic State 295

stood up to defend the rights of the Zimmis and to condemn
such action in the strongest possible terms.

V

ADDITIONAL RIGHTS AND PRIVILEGES

I ■

So far we have referred to those inalienable rights which
must necessarily be bestowed upon the Zimmis by an Islamic
State, as they have heen conferred upDn them by the Islamic
Shari'ah. Muslims are not entitled to curtail them in any way
whatsoever. They are, however, permitted to grant them other
rights and privileges to an extent that is not repugnant to the
spirit or the commandments of the Shari'ah.

Here we attempt to lay down some additional rights that
may be granted to the non-Muslim subjects of an Islamic
State:

(1) Political Representation

Let us take the matter of elections first. An Islamic Govern-
ment is an ideological Government. Therefore it cannot afford
to indulge in the deceptive measures whioh are commonly

II employed by secular national states with regard to the rights of
national minorities. The Head of an Islamic State is bound by
law to conduct the administration of the State in accordance
with the Islamic principles and the primary function of Shura
(Gounoil) is to assist him in doing so. It is thus obvious that
those who do not accept the ideology of Islam as their guiding
light cannot become the Head of the Islamic State or the
members of the Shura (Council).

However, in regard to a Parliament or a Legislature of the
modern conception, which is considerably different from the
Shura in its traditional sense, this rule could be relaxed to
allow non-MuslimB to become its members provided that it has
been fully ensured in the constitution that :

(i) It would be ultra v ires of the Parliament or the Legis-
lature to enact any law whioh is repugnant to the
. Qur'an and the Sunnah.

296 The Islamic Late and Constitution

{ii) The Qur'an and the Sunnah would be the chief source
of the public. law of the land.

(«») The Head of the State or the assenting authority would
necessarily be a Muslim.

With these provisions ensured, the sphere of influence of
non-Muslim minorities would be limited to mattenfrelating to
the general problems of the country or to the interests of
minorities concerned and their participation would not damage
the fundamental requirements of Islam.

It is also possible to permit the sitting op of a separate
representative Assembly for all non- Muslim groups in the
capacity of a Central Agency through which all the demands for
their collective needs may be submitted to the Parliament.
The membership and voting rights of such ah Assembly will be
confined to non-Muslims and they would be given the fullest
freedom within its framework. Through this agency :

(a) they may exercise the right to propose law in connec-
tion with their Personal Law and the amendments
thereto. All such proposals and amendments could be
placed on the Statute-Book after reoeiving the assent ,

of the Head of the State ;

(6) they may submit representations, objections, sugges-
tions etc., with the fullest freedom in regard to the
general administration of the Government and the
decisions of the Parliament. The Islamic Government
would be bound to consider them sympathetically and
justly;

(c) they will be allowed to raise questions with regard to
matters relating to their specific groups as well as the
problems affecting the State as a whole. A representa-
tive of the Government may always be there to furnish
replies to all such questions.

(2) Freedom of Expression

In an Islamic State all non-Muslims will have the same
feeedom r of conscience, of opinion, of expression (through words

RigMa of Non*Mu*Uma in Atomic State 297

spoken and written) and of association as the one enjoyed by
the Muslims themselves, subject to the same limitations as are
imposed by law on the Muslims. Within those limitations, they
will be entitled to Criticise the Government and its officials,
including the Head of the State.

They will also enjoy the same rights of criticising Islam as
the Muslims will hare to criticise their religion.

They will likewise be fully entitled to propagate the good
points of their religion and if a non-Muslim is won over to an-
other non-Islamic creed there can be no objection to it. As
regards Muslims, none of them will be allowed to change creed.
In case any Muslim is inclined to do so, it will be. he who will
be taken to task for such a conduct and not the non-Muslim
individual or organisation whose influenoe might have brought
about this ohange of mind.

The Zimtni* will never be compelled to adopt a belief
contrary to their conscience and it will be perfectly within their
constitutional rights if they refuse to act against their con-
science or creed, so long as they do not violate the law of the
land.

(3) Education

They shall n orally have to accept the same system of
education as the G eminent may enforce for the whole country.

As regards religio eduoation, however, they will not be com-
pelled to study If m, but will have the right to make arrange-
ments for impart g knowledge of their own religion to their
children in their own schools and colleges or even in the
National Universities and Colleges.

(4) Gorentment Service

With the exception of a few keyposts all other services will
be open to them without any prejudice. The criteria of compe-
tence for Muslims and non-Muslims will be the same and the
most competent persons will always be selected without any
discrimination.

298 The Islamic Law and Oonetitution

A list of keyposts can be easily drawn up by a body of
experts. We can only suggest as a general principle that all
posts connected with the formulation of State policies and the
control of important departments should be treated as keyposts.
In every ideological state, such posts are invariably given only
to such persons who have the fullest faith in its ideology and
who are capable of running it according to the letter and the
spirit of the ideology. With the exception of these keyposts,
however, all other posts will be open to the Zimmis. For
instance, nothing can debar them from being appointed as
Accountant-General, Chief Engineer or Postmaster -General of

an Islamic State.

Likewise in the army, only the posts relating to actual war-
fare should be treated as keyposts, while other appointments,
not directly connected with the conduct of war, can be thrown
open to the Zitnmis.

(5) Trade and Profession

In ail Islamic State, the doors of industry, agriculture, trade
and all other professions are open to all, and Muslims have no
special privileges over non-Muslims in this regard, nor are the
non-Muslims debarred from doing that Muslims are permitted
to do. Every citizen, bo he a Muslim or a non-Muslim, enjoys
equal rights in the field of economio enterprise.

VI

THE LAST WORD

It is necessary to emphasise before closing the discussion
that an Islamic State is bound to give to the non-Muslim citizens
whatever rights Islam prescribes or permits, regardless of what
rights and privileges are given to or withheld from Muslims in
the neighbouring or other non-Muslim states. Islam does not
believe in the fact that Muslims should draw up their social or
economic policies only with reference to the policies of non-

Rights of Non-Muslims in Islamic State 290

Muslims, nor does it tolerate that if non-Muslim b act unjustly,
the Muslim states should make their innocent non-Muslim sub-
jects the victims of wrath and vengeance. Islam has its own
definite and! clearly-defined ideology and Muslims have to
observe its oode to the best of their ability. Hence, whatever
we give, we shall give with an open heart. Moreover, the rights

conferred upon the non-Muslims by the Islamic State shall not
be simply meant to adorn the statute-book but it shall be
the duty of the State to translate them into actual
practice.

It is hardly necessary to stress in the face of the above

facts that the establishment of an ideological Islamic State is

the greatest guarantee for non-Muslims in Pakistan. Then, and

then alone, can that vicious oircle of injustice be broken whic^i

is unfortunately going on in India with full vigour. And only

in this way can Pakistan beoome the harbinger of truth and

justice and show the right path to India also. The pity, how-

ever, is that many non- Muslims of Pakistan who have been
paying heed to distorted interpretations of Islam and have been

experiencing its perverted practice, feel greatly perturbed when

they hear of the establishment of an Islamic State in this

country. Not knowing the true facts, some of them start

raising slogans that a Secular Republic like the one in Injiia

should be established in Pakistan. Is it not surprising that
they insist on making an experiment which has already borne

bitter fruits in India ? Is that really something pleasant

enough to be coveted ? And, would it not be more reasonable

m

to try and test a system of life based on godliness, honeBty and
observance of unalterable ethical principles than to follow one
that has been tried and found wanting ?

Chapter 9
The Problem of Electorate

MUSLIMS in our country have always stood for
Separate Electorate. It was unfortunate that a
question which was settled long ago, was reopened
and as a result of political machinations it assumed
great importance. Maulana Maududi discussed the
pros and cons of the problem in an article which
was published in 1955. The artiole is being given
in the following pages.— Editor.

m

THE PROBLEM OF ELECTORATE

■

THE continuous dilly-dallying with constitution-making has
■tarted bearing 'fruits'. And one of the bitterest fru.ts we
find in the form of the hitherto existing problems defying all
tempts at their solution and an increasing number of new pro-
blems cropping up with the passi ng of time.

Not only that the issues which had all along been taken f^r
granted as settled, are now being discussed afresh The latest
Ltance in point is that of separate electorate winch ha op till
now been sanctified by unanimity of Muslim op...- » £
continent. But no. it has entered the realm of con trove„y ^d
debate, as certain groups from amongst the Mushms also have
expressed themselves in favour of the joint electorate.

This, indeed, is a most deplorable state of affairs. But
since the entire nation has to face it, the mere expression of
gri f and pain will not suffice. What is needed is . ^
analysis of the problem and an unbiased evaluation of the
merits and demerits of the two systems of election and a ver-
Sot based on reason rather than sentimental slogans and
political catoh-worda.

■ w

Some Pertinent Questions

To arrive at a sound conclusion, we must take into
consideration the following four questions :

Firstly why were the Muslims so bitterly opposed to the
/ f tint electorate during the British regime m the

whence Indian Rational Congas

1 advocating it on ^^^^J^
hev had opposed all along ?

The Problem of Electorate 303

■

Secondly, we should consider quite .independently on the
merits of the case, which system of election — joint or separate —
is more suitable for a country whose population is composed of
a number of elements differing from one another in respect of
religion, culture and mode of social life ?

Thirdly, can there be any practical consideration, any sub*
stantial national expediency which may make the introduction
of joint electorate desirable ? What are the practical benefits
that may accrue from its introduction and would they be accept-
able to the people or not *

Lastly, what practical results are expected to follow in the
wake of the introduction of tho system of joint electorate and
what are the merits and demerits of the system of separate
electorate.

The following is a brief discussion of some aspects of these
pertinent questions:
Why Now ?

What the protagonists of joint electorate ean say in regard
to the first question is that the system of joint electorate was
wrong and unacceptable to Muslims in undivided India because
they were a minority vis-a-vis the Hindus who were in an over-
whelming majority, and thus they were bound to suffer if the
system of joint electorate was introduced. But now Muslims
are in a majority in Pakistan and the non-Muslims are a mino-
rity and thus the system of joint electorate will be to the

*

advantage of the Muslims.

The protagonists of the joint electorate cannot defend it on
any other basis. This means that they hold sheer "expediency**
as the criterion of right and wrong.

w

A thing was wrong yesterday merely because it was detri-
mental to Muslim interests, just because it was inexpedient. But
today they are prepared, nay, they insist, to adopt it because it is
consistent with their alleged national interests !

No doubt, these people have every right to unveil their
character and the working of the irown mind. But is it or was

304 The Islamic Low and Constitution

it ever the national mind of the Muslims I Was this their line
of thinking in pre-partition days ? Did the general Muslims;
minds move in these overt grooves I We are confident that the
Muslims neither subscribed to this view in the past nor hold
the view-point today. Our national psychology has neither
been so corroded in the past nor is it by the grace of God so
polluted today.

Their rejection of the Congress standpoint was not merely
because its adoption would have led to oatastrophi
the Muslim minority inhabiting the Indo-Pakistan
but primarily beoause the very idea that geography was the basis
of nationhood was not acceptable to them. It was incompatible
with their fundamental creed, their culture, their social philosophy
and their traditions.

The history of this very sub-continent knooks the bottom
out of the idea of territorial nationalism. Innumerable Hindus
of India embraced Islam many centuries ago and as soon as
they did this, they out off all their affinities with the Hindu
society in spite of the fact that these converts to Islam and
their former kith and kin belonged to the same race, expressed
themselves in the Baine language and lived on the same terri-
tory. On the contrary, Muslims coming from various distant
countries were soon absorbed into the local Muslim society
despite geographioal, raoial and linguistic differences. They
become one with the local converts— members of one Islamio
fraternity. .

All this was not just a mere aocidont. It was the result of
a peculiar concept of ideological nationhood and of the oentur.
ies old traditions of Muslims— a concept and traditions which
out accross all barriers of race, colour and language.

It was due to these factors that Muslims started demanding
separate electorate as Boon as democratic institutions were set
up in the sub-oontinent. They trampled the Congressite one-
nation theory under their feet and rejected the system of joint
electorate which was intended to weld all the communities in-

The Problem of Electorate S05

habiting Hindustan into one nation. And it was a product of
this very national consciousness that they ultimately oame for-
ward with their demand for Pakistan in spite of the fact that
they were not unaware that it would entail tremendous sacrifice

in life and property.

The only change that has occurred due to partition is that a
new country has appeared on the map of the world comprising
of Muslim-majority areas. But it is obvious that this political
change has in no way altered the foundations of nationhood. And
how can one believe that this politioal change has so radically
affected the national psychology as to make the nation succumb
to the ooncept of territorial nationalism which was an anathema
for them just a few years back t

Disintegrating Factors

Now we move on to the second question. It is evident that
the system of joint electorate is feasible only in a country differ-
ent sections of whose population differ from one another only in
details and not on fundamentals.

But everyone will acoept that religious creed, moral values,
ooncept of life and patterns of culture and civilisation are not
matters of secondary importance. They are of prime and funda-
mental significance. Moreover, when these different sections
have been separated* from eaoh other to Buoh an extent that
their social spheres have become totally different and distinct,
the consciousness of separate nationhood is bound to develop
and thrive.

To make such varying seotions of population of a country
vote together can never be held as prudent and proper. For
thiB would mean the assumption of a unity that does not exist.
This unfounded assumption cannot change the throbbing facts
and realities ; it cannot weld these divergent elements into one
organic whole. 1

L It would be instructive here to remind the reader of what QuaW-e-
Azam Muhammad AH Jinnah said about this issue. In a speech in

[conic*.

306

The Islamic Laxo and Constitution

Despite this baseless and unwarranted assumption of
national unity, the factors that separate them will still be there
and will continue to work as before. Every community will still
be overwhelmingly inclined to vote for the members of its own
community. The majority community will be satisfied as it
will succeed, to its heart's content, in getting its own people
elected. If the minority is numerically weak in every constit-
uency, it will be deprived of representation altogether. And
this will lead to their perpetual unrest and discontent. And if
the minority is a little powerful, it will start bargaining with
the minority which, in turn, will generate worst tendencies and
lead to bitter discord and an endless oonfliot.

AH this will result in bringing to the fore a group of mor-
ally depraved people piokforked into power by intrigues and
conspiracies, and who will, in fact, ropresent none. And this
will demolish the very basis of democraoy. Instead of adopting
this erroneous and iU-oonceived method, based on a false and
baseless assumption, wiU it not be better and wiser to face
facts, to recognise the differences that do exist and to confer
vpon every community the right to elect its own representatives
who can best represent their view-point ? No one can deny that
this method is more natural, more reasonable and more just.

The Diversity

A* for the third question, the only practical advantage
that the protagonists of joint electorate may claim for that
system is that it will suppress the feelings of separation and
diversity, reduce the distinctive characteristics of these hetero-
geneous elements and ultimately transform them into one
nationhood.

November 1945 he doclared

"We {the Hindus and the Muslim*) are different in everything. We
differ in our religion, our civilization and culture, our history, langu-
age, our architecture, music, jurisprudence and our society, our dress
r-in every way wo are different- we cannot get together only in the

The Problem of Electorate 307

But our point of view is that we are not desirous of elimi-
nating the distinctive features of the different communities of
Pakistan. We are not at all keen to destroy their separate
entity and coerce them to submerge their cultural individuality.
And even if somebody considers this objective desirable, the
method suggested for its achievement is absolutely wrong.

The fundamental faotor that has divided and separated
various sections of people in our country is the difference of
religion. It is religion that has raised a huge wall that sepa-
rates Muslims and non-Muslims. It is thn that has given them
different principles of conduct, different objeotivos of life,
different values of morality and different modes of living. It is
religion alone that has separated their social orbits and has
divided them into separate communities.

One effoctive method of removing the factors that divide
them can be to absorb the non-Muslims in the Muslim
community.

Howsoever desirable this end may seem, we should not
. stoop down to political machinations to achieve it. If somebody
has a liking for the Islamic ideology, he can embrace the
brotherhood of Islam and booome a part and paroel of our
nation. But if he does not agree with the Islamic ideology, he
has every right to do so and we shall still be prepared to
confer upon him his rights as a non-Muslim citizen of our
Country. We are firmly of the view that resorting to the use
of crooked means for the attainment of such an object is un-
fair and un-lslamic and should be condemned by all fair-minded
people.

The only other course that remains to unify and integrate
these diverse communities is to relegate religion and faith into
the lumber-room of insignificance, to destroy religion as the
main faotor shaping culture and civilization and foster a com-
mon secular culture as the basis of Pakistani Nationalism.

If this be the end, joint electorate is definitely a step forward

w

ia this direction.

308 The Islamic Law and Constitution

•

Bat in this case the next step— a step that must follow— is
to frame a secular constitution, which will lead to a atill far-
ther step— to let religion live by sufferance and remain strictly
confined to the narrow domain of beliefs and devotional
practices and even to enoourage intermarriages between diffe-
rent communities in order that Pakistanis may not remain
divided into separate societies which eventually divides them
into separate nationalities.

la this the object of the protagonists of joint electorate!
If this is their objective, they should at least have the moral
courage to say it frankly.

But this may be the view of a few secularists. As for the
millions of Muslims of Pakistan, they have nothing bat con*
tempt for it. Beoause, if this was what the Muslims wanted,
what was the harm in a United India (Akhand Bharat) 1 What
was the need of offering a heavy price of life and property for
the establishment of a separate state 1
Dangerous Consequences

Now we come to the last question and would like to deline-
ate the practical results of introducing joint electorate. It is
certain that this will lead to the growth of two separate nation-
alities on territorial foundations and this will prove suicidal
for the integrity of Pakistan.

Wo should not forget that it is the religious spirit alone
which was responsible for the partition of this sub-continent,
and it is the religious spirit alone that has made the two
regions which are separate from each other by a distance of no
less than a thousand miles, the parts of one Bingle country.
Race, geography, language and mode of living— none of these
factors can unify them. The only unifying factor is the religion
of the majority which initially led to the establishment of this
State and which alone can work as a unifying factor.

The day the religious spirit and consciousness of the people
are cooled down and people begin to feel in terms of any other
linguist ii! and cultural differences are bound to gain strength

The Problem of Electorate 309

and momentum. If this happens, none can stop the growth of
Bengali nationalism in East Pakistan and the same will happen

in West Pakistan,

Thus the notion that the issue of separate electorate is just
a matter of choosing between two systems of election, is fallaci-
ous and deceptive. This, in fact, is a matter of life and death

for the State of Pakistan.

If we want to keep the two wings of the country joined
togethor, the only course can be to keep the consciousness of
Muslim nationhood alive and fresh and to further strengthen
and foster it by establishing the Islamic system of life. And it
is obvious that this necessitates the introduction of the system
of separate electorate.

But if, on the contrary, we are keen to tear the integrity of
Pakistan into shreds, the introduction of joint electorate will
definitely be an effective step in that direction.

This will strengthen, in both the geographically distant
wings of the State, the consciousness of territorial nationhood
at the cost of Islamio fraternity. And, as this feeling will grow
in strength and intensity, Muslims of the two different areas
who have nothing common except religion, will be driven
farther and farther away from their own brother-in-faith and
nearer to the people belonging to their own territory who have
almost every factor common with each other except religion/
The Case for Joint Electorate Considered

Now let us have a oursory glanoe at the arguments advanc-
ed by the protagonists of joint electorate.

Firstly, the claim that when the minority community is
itself insistent on the introduction of joint electorate, there is
no reason why the majority should shun it. Does this mean
that Muslims are suffering from some sort of fear-complex, the
fear of Hindu domination whioh is unf ounded in view of the
superior numerical strength of the Muslims 1

Secondly, due to separate electorate we find a strong block
of Hindu members in East Pakistan Legislative Assembly and

810 The Islamic Law and Constitution

whenever there is an internal dissension in the ranks of Muslim
members, they hold the balance of power in their hands.
Separate electorate will only prepetuate this unfortunate state
of affairs.

Thirdly, the system of separate electorate will perpetuate
the division of the country into separate nationalities, although
the integrity, solidarity and progress of Pakistan are dependent
upon tke consciousness belonging to one nation.

Fourthly, if the two-nation theory is to hold good even
after the establishment of Pakistan, the Hindus of Bengal may
well say : 'If you consider us a separate nation, then give us a
separate national homeland. 1 Will this 'just' and 'fair* demand
be acceptable to us ? And if we turn down this demand, will
we not be only demonstrating our moral bankruptcy as we have
ourselves achieved our own homeland on this very ground 1

The four arguments quoted above exhaust the entire stock
of arguments of the protagonists of joint electorate.

So far as the first argument is concerned, both the founda-
tions on which it rests are extremely weak. It rests on two
wrong assumptions: (1) that the Muslim majority of East
Pakistan demands separate electorate out of fear-complex and
(2) that the Hindu minority is exposing itself to a number of
risks, inherent for it in the system of joint electorate, just out
of love for the greater good of the country.

We have already thrown light on the causes of Muslims'
insistence on separate electorate. As for the Hindus, their
keenness for joint electorate is the outcome of their desire to
fan the fire of Bengali nationalism in Bengal, to sabotage the
Muslims' aspirations to make Pakistan an Islamic State and to
put Pakistan along the road to secular democracy, and last, but
not the least, to use Muslims from behind the scenes for the
fulfilment of all their designs, 1

The Hindus who were most influential in Bengal during the
British rule have realised the futility of the method of direct

I, See Appendix V-Editor %

Th* Problem oj Electorate 31 1

and open work. Now they want to sit behind the ecreen and
pull wires. They know that those Muslims who are elected with
the backing of Hindus will be far more useful and effective for
the achievement of their aims than the Hindus themselves.

These are the reasons which have prompted them to come
out with this stunt of joint electorate and therein lies a formid*
able danger to Pakistan.

The second argument has no weight unless we presume
that the unity among the Hindus of Bengal and dissensions in
the ranks of Muslims will persist as a permanent feature of
Bengali politics. Will those of our Muslim brethren who are
so vooiferous in their demand for joint electorate, let us know
as to why this state of affairs should continue to persist in the
future ?

As for the third argument, we have already dealt with it

earlier in this article.

With reference to the last argument, we have to point out
that had there been any considerable area in Bengal which
could be made the national home of Hindus, it would have
already gone to the share of India at the time of partition.

Now there is no area which the Hindus may legitimately
demand. If the members of a community are in a majority in
some small town or sub-district, can any sane person demand,
on this basis, that community *

This brief discussion brings us to the conclusion that joint
electorate is totally opposed to the needs of our country and
our people and the system of separate electorate alone is in
consonance with the ideology and needs of Pakistan.

Chapter 10
Some Constitutional Proposals

(Submitted to the First Constituent Aworably of Pakistan)

In 1952, Constitution-miking entered its moat
crucial stage. The various Sub-Committees had finalis-
ed their reports and the blue-print of the Constitution
was being given the last touches.

At that moment, Maul ana Maududi put forward
some very oonorete and elaborate Constitutional pro-
posals. These proposals were drafted in August 1962
and were submitted to the first Constituent Assembly
of Pakistan. This ia a very, important essay and
throws a flood of light on the contents of the Con- ^
stitution which the Islam-loving people demand for
Pakistan. An idea of the detailed provisions of an
Islamic Constitution can be had by a thorough study
of this article.- Editor.

SOME CONSTITUTIONAL PROPOSALS

25 T the very outset, we wish to declare in the clearest posai-
ble terms that our first sod foremost concern is to
make Pakistan a truly Islamic State, For this purpose, either the
mere insertion of the Objectives Resolution in the Preamble of
the Constitution, nor the inclusion of an article in the Directive
Principles to the effect that no legislation will bo made against
the Qur'an and the Sunnah, nor even the formation of a Com-
mittee of 'Ulama for consultative purpose (but not having a
final voice) in case of disagreement as to whether particular law
is or is not against the Qur'an and the Sunnah, will serve that
purpose.

This purpose oannot be achieved unless a provision is made
in the body of the Constitution itself that no legislature, Central
or Provincial, shall have the power to enaot any law which
conflict with the teachings of the Qur'an and the Sunnah.
Moreover, there should be a specific provision in the Constitu-
tion that every oititen will have the right to challenge in the
Supreme Court any law passed by a legislature on the ground of
its being repugnant to the teachings of the Qur'an and the
Sunnah and thesefore ultra vires of the Constitution.

In addition to^hese provisions in the body of the Consti-
tution, the following should be included as the Directive
principles ;

(1) All the existing law of the land shall be, brought in
conformity with the Islamic Shari'ah with a prescrib-
ed period which shall not exceed 10 years in any
case.

(2) Moral training in acorodanoe with the Islsmio principles

and standards of conduct shall be made compulsory for
all services : Centra], Provincial, Military and Civil
Mid all that i* not in tune irith the Islamic teachings

Some Constitutional Proposals

316

and the tenet* of Islamio ethics should be strictly

excluded from that training ;

(3) AH the department* of the State shall provide for their

Muslim personnel every facility necessary for tho
observance of the obligations prescribed by Islam and
all the hindrance* in this respect shall be banished root
and branch ;

(4) The Government shall establish and promote all that
is good according to Islam and suppress and eradicate
all that is evil according to it and the polioy of the
State and its execution by the Government in its
various spheres of activity shall be moulded and man-
aged in a way that fully conforms to the Islamic way
of life, both in letter and in spirit ;

• (6) The system of education shall be *o reformed as to
enable the Muslims to get their moral and intellectual
training in strict accordance with the Islamic ideology
and all that is against that ideology shall be eliminated
therefrom ;

' (6) The Government shall complete, within a prescribed
time-limit, not exceeding 10 years, all the necessary
arrangements for taking over legal responsibility to
provide every needy citizen with the basic necessities
of life, viz. % food, clothing, housing, medical aid and

education.

Fundamental Rights

The Constitution of an Islamic State must guarantee funda-
mental rights to all citterns. In this connection, we regret to
note that the report on fundamental rights prepared by the
Fundamental Rights Committee and passed by the Constituent
Assembly in I960, was a gross and flagrant violation of Islamic
tenets and clearly betrayed the evil designs of those who hold
the reina of powers. If the members of the Constituent
Assembly still continue to adopt the same attitude towards
these rights, it will not augur well for anybody in this country.

318 The Islamic Law and Constitution

In order to gain the real co-operation and good -will of the
people and to make Pakistan a really peaceful and prosperous
State all the citizens must be guaranteed — of course, within the
limits of law— the following fundamental rights —

(a) Protection of life, honour and property ;

(6) Freedom of thought, expression, belief and worship :

(c) Freedom of movement throughout the country ;

(d) Freedom of assembly and association;

(«) Freedom of adopting any profession or occupation and
the right to own, acquire and dispose of property ; and
(/) Equality of opportunity in all walks of life and equal

right of benefiting from all public instructions.
In addition to these rights, the Constitution should further
guarantee that :

"No citizen of the State shall be deprived of the fun-
damental rights without his guilt being judicially establish-
ed in an open court of law according to the common law of
the land".

Without this guarantee nobody can feel secure against the
high-handedness of the executive and the feeling of constant
insecurity cannot but breed discontent and even hatred against
the Government itself. This, in its turn, will be most dangerous
and harmful for the largest interest of national solidarity and
sincere oo-operation between the Government and the people.
We, therefore, have no hesitation in declaring that if our
Constitution-makers try to take away or abridge or limit these
Tights, they will be guilty of causing discontent and disruption
in the country and it will be an unpardonable act of perfidy, on
their part, towards the people and the State of Pakistan.
Preventive DenteoUon

As fb'r the reservation of the power of "preventive deten-
tion" for the executive, we opposed this when the Basic Princi-
ples Committee's Report was published in 1950. 1 We still stick
to that position and are definitely of the opinion that these
powers, in the form in which they were proposed in the Report,

|. Abul A* la Waududi, Dattoori SijotUhat par Tonjearf, Lahore, 19SQ,

Some Constitutional Proposals

31?

are a complete violation not only of Islamic Jurisprudence but
also of the f nndaraental principles and common notion of justice.
Anyhow, if the Constitution-makers of this country insist on
the power of preventive detention being granted to the Execu-
tive, they should not do so without the following provisions :—

(1) Every law (whether an Act or an Ordinance) enacted
under the powers of preventive detention must clearly
define the offences that it seeks to prevent ;

(2) Every person arrested under this law must be produc-
ed before a court of law and a deBnite charge brought
against him ;

(3) The Executive should not be given the privilege of
withholding any piece of evidence considered essential
by the court for giving its decision on the charges made.
Mere satisfaction of the Executive should in no case be
a ground sufficient for the detention of a citizen.
Only a court of law, if satisfied as to the guilt of a
person, should have the power to order detention ;

(4) The person so aocused must be afforded every reason-
able facility and opportunity to prove his innocence ;

(5) A court of law and not the Executive should have the
right to decide the period of detention ;

(6) No extension of the period of detention should be
allowed.

In this connection one is impelled to say that it U most
cruel to detain a person for oonaeoutive periods of six months ;
his detention being extended after every term by another term
on the very day on whioh he and his near and dear ones expect
his release. This revengeful method is so mean that no gentle-
man could have invented it. If some member of the Consti-
tuent Assembly do not realise its meanness today, a time might
come when they themselves may learn it through personal
experience. Moreover, the way that the term "emergency" has
been exploited by our rulers in the past few years of indepen-

318

The Mamie Law and Constitution

denoe, constrains us to urge in the strongest possible terms
'hat the Executive should in no circumstances be allowed to
possess the power of suspending either the fundamental righte
or the writ of Habeas Corpus. The maximum allowance that
can be made in this respect is that in oase of actual war,
rebellious persons who are charged with high treason, conspi-
racy against the State or armed revolt may be tried in camera.
But the power of detention without judicial trial or of suspen-
sion of fundamental rights or of the writ of Habeas Corpus,
should in no oase be granted to the Executive. And let it be
known at this very moment that if any such attempt is made
in our Constitution we are determined to resist it with all the
foroe at our command.

The only excuse advanced by or on behalf of the rulers of
the oouutry in favour of these powers is, that if "saboteurs"
and "disruptionists" and "spies" and "agents of the enemy"
are tried in open oourts, the state-secrets whioh Government
intends to guard through their arrest and detention, will be-
come known to the enemy and this would defeat the very par-
pose for which auoh action is taken. The hollowness of this
argument can be exposed by a oursory look at the list and the
type of people so far arrested and detained under these powers.
Moreover, even leaving aside this aspect of the matter and
taking the argument at its face value, the following two
pertinent questions remain unanswered : —

(1) If Btate-seorets do not become known to the enemy
while they are in the knowledge of the police, the
C.I.D. and the Home Department, why does the
Government apprehend that they will leak out as soon
as they come within the knowledge of our Courts !

(2) Does the Government mean to imply that the person-
nel at present presiding orer the courts of Pakistan
consists mostly of spies or agents of the enemies and
they are so keen to transmit the secrets of the State
to them ? Are the judges and magistrates of Pakistan

Some OonaMvtionat PropotaU 319

really leas reliable, in the eyes of the Government than
the personnel of the police and the C.I.D. t

Judiciary

It is the Independence and impartiality of the judiciary
which ensures the internal peaoe of a oonntry and the tranquil-
Uty of its people. No amount of rights and privileges written
in the Constitution can give^ihe people any satisfaction if the
courts, owing to the interference of the people in power are
not free to administer unfettered justioe. As the very existence
of a State depends on the contentment of its people, the
following provisions must be specifically made in the Constitu-
tion :—

(1) The Judiciary shall be completely independent of the
Executive. A maximum time-limit, say a couple of
years, may be fixed for implementing this separation ;

(2) All the subordinate courts shall be under the High
Court both judicially and administratively. The ap-
pointment, dismissal, suspension, promotion, demotion
and transfer of the Judges and other officers of the
lower courts and the magistrates shall be completely
in the hands of the High Court ;

(3) The courts shall have unlimited powers to summon
every kind of evidence whioh they consider necessary
for the administration of justioe. Not even the
Government shall have the privilege to withhold any

ovidence required by a Court of Law ;

(4) Neither the legislature nor the Government nor the
Head of the State should have the power to compel
any law-court' to try any case in camera. The holding
of a trial openly or in camera should be left to the
discretion of the courts themselves ;

(5) AH matters requiring adjudication shall be heard by
common courts of the country even though the
Government, its Ministers, or itB officials are involved.
Moreover, neither the Cential nor the Provinial
Governments nor their legislatures shall have the

T%t Islamic Law and Constitution

power to constitute special tribunals for any matter
. requiring adjudication. Such a power should vest in
the Supreme Court and the High Courts which shall
make use of it if they deem it necessary . Election
Tribunals, too, if and when necessary, sh^jld be
constituted and appointed by the Supreme Cuurt or a
High Court ;

(6) The Sapreme Court of Pakistan shall have the inherent
and original jurisdiction to entertain and decide cases
challenging the validity of the legislation enacted by
the Head of the State or the Central or Provincial
Legislatures, if such legislation is considered to be in
oontravention of the letter or the spirit of the Consti-
tution ;

(7) All legal protections against suits that had been grant-
ed by the former British Government to its employees,
should be withdrawn in toto and the citizens should be
granted the right to use the Government employees
without any let or hindranoe. It should not be for-
gotten that our former alien rulers had resorted to
this method of protecting their employees in order to
overawe and suppress the "natives" ;

(8) This should also be provided in the Constitution that
no cotfrt shall have the power to try a case of its own
contempt unless the contempt is of a general nature ;

(9) All Court-fees should be abolished through an article
of the Constitution. Throughout their long history

Muslims never dreamt of this method of converting the
law-courts into "law-shops." As a matter of fact we
are not aware of any other civilized Government under
the sun except the former British Government of un-
divided India which ever thought of making its court
a business conoern. It will really be extremely dis-
graceful on our part to retain this shameful practice
which negates the very conception of Islamic justice.

Some Constitutional Proposals 321

Election aid Legislatures

It is a truism that the very existence of a democratic

system depends on the nature of elections and the constitution
and powers of the legislatures. A democratic system can never
develop and Sourish on healthy lines if eleotions are not held
in a fair manner and the constitution of the legislatures is not
just and equitable and their powers are not so limited as to
prevent them from impairing the freedom and impartiality of
elections.

To ensure this the following things should be incorporated
in the Constitution

(1) In addition to the various coustitutional and legal
qualifications for the membership of a legislative body,
the mental and moral qualification! prescribed by the
Qnr'an and the Sunnah for holding such offices should
also be included among the Directive Principles. The
Head of the State should, on the eve of elections, draw
special attention of the voters to these qualifications,
give them the widest publicity through the radio and
the press and devise ways and means of ensuring that
these instructions are actually observed ;

(2) Self-candidature should be abolished and made a
disqualification for the membership of an Assembly.
We urge its abolition on the ground that it is against
the Shari'ah. The experience of elections has also
brought vividly to the surface the evils of this practice.
The self-seekers who come forward as candidates have
demoralized, to the very core, the whole of our politi-
cal and social life ;

(3) The rule of 'unopposed elections* should be stopped

forthwith, beoause it is against commonsense and has

also been responsible for many malpractices in the

eleotions. In all such cues the votes must be cast
"for" and "against" the "candidate" on the basis of

"yes" and "no", .In the case of the "no's" being in

the majority, it is far better that the constituency

323 The Islamic Law and Gonttitution

remain* unrepresented instead of being represented by
one who does not represent it ;

(4) Ho legislature should h*T<» the powers to make any
such rules or laws con oerning elections which may, in
^7 imapair the free and impartial holding of
elections or favour any particular party or parties as

against others ;

(5) The department or the commission responsible for the
oondnot of elections should be duly-bound to oondnet
them with complete impartiality. Every cdtisen should
have the right to challenge, in a law-court, the Impar-
tiality and fairneks of elections as a whole or in any
one or more constituencies snd to have it set aside if
he Is able to prove and culpable negligenoe, dishonesty
or partiality therein ;

(6) The right of vote given to women should be qualified,
at least for the present, by a certain standard of
education. Experience has shown that adult franchise
for women under the prevailing conditions has proved
unsuitable for them and harmful to the welfare of the
country ;

(7) As regards the election of women ,to the legislative

assemblies, it is absolutely against the spirit and
precepts of Islam, and is nothing more than a blind

imitation of the West. According to Islam, active
politics and administration are not the field of activity
of the womenfolk. It falls under the men's sphere of
responsibilities. The proper method of solving this
problem is to constitute a separate Assembly whose
membership should be confined to women only — all of
them elected by female voters. The main function
of this Assembly should be to look after the special
affairs of the women such as female education, female
hospitals, etc. Of course, it should have the fall right
to criticise matters relating to the general welare of
the country. Moreover, this Assembly must be con-

Some Constitutional Proposals " 323

suited by the legislature on all matters that concern
the welfare of women ;

(8) The formation of parties and oliques within the Legis-
lative Assemblies should be constitutionally prohibit-
ed. Various parties in the country may take part in
tho election as parties for sending to the Assemblies
the most suitable members in their opinion but after
the election the members of the Assembly should owe
allegiance solely to the STATB, its CONSTITUTION,
and the entire NATION, and should vote and act
according to the dictates of their own conscience ;

(9} If dismissed Government servants are to be disqualified
for elections on the ground of misconduct, the term
"misoondurt" should be defined.

■

The Qadiani Problem

We demand with all the foroe at oar command that, along
with other non-Muslim groups, the Qadianis should be included
in the schedule of minorities having the right to elect their own
representatives, by the method of separate electorates, for the
seats fixed in proportion to their population. The entire Muslim
millat is unanimous on the point that the Qadianis are a separate
Ummah and the Muslims of all shades of opinion with the
exception of a few Westernised people who attach no impor-
tance to religion, have already declared this from the press and
the platform. Under these ciroumstatoes, if the Constituent
Assembly insists on maintaining the statu* quo of the pre*
partition days and treats the Qadianis as a part of the Muslim
nation in the future constitution of Pakistan, this will imply
abuse of the trust it holds on behalf of the nation. 1 The
Qadianis themselves have taken the Btand which makes them a
separate Ummah. For, according to their declared religious

I. It may be mentioned her© that before partition, the Qadiaats them- *
selves demanded from the British Uovernmeot that they should be
declared a minority and given separate scats in tho Assembly-.
Editor.

The Islamic Law and Constitution

beliefs, and creed : — : .

(1) All those Muslims who do not accept Mirza Ghulam
Ahmad a,s a prophet of God, are ''Kafirs'* ;

(2) A Qadiani is prohibited from giving his daughter in
marriage to a Muslim ;

»

(3) They are prohibited from joining the congregational

prayers led by a Muslim Inuyn ; and

(4) They do not and cannot attend even the funeral
prayers offered for a Muslim. 1

In brief, their new "prophet" has raised a wall between

■

them and the Muslims, so muoh so that nothing whioh could
unite them — neither the religious belief nor its practice (e.g.,
prayers etc) nor the social relations — has been left unaffected.
And the matter does not stop here, They have actually organiz-
ed themselves as a separate and parallel Utnmah, whioh has been
in conflict with the Muslims in every walk of life for the last
fifty years. If, in spite of all this, they are not prepared to be
declared as a separate Utnmah it is because they wish to retain
all the benefits they are deriving as a section of the Muslim
nation side by side with those which their organization as a
separate Vmmah gives them. We do not expect that the
Constituent Assembly will become a party to this fraud which
is being perpetrated on the Muslims of this country *

Powers of the Executive and the Head of the State

Another matter of fundamental importance from the consti-
tutional point of view is that of the powers of the Executive
and of the Head of the State, because even the longest list of
fundamental rights and privileges and the best of constitutions
can be set at naught by an unfettered Executive or Head of the

•

1, It in common knowledge thai a Qadiani Central Minister in spite of
being present at the spot, did not join the funeral prayers even of the
Quaid-e-Azam. — Editor.

2. For a fuller appreciation of the problem see Abui A'l* Maududi : Th&
(jaduini PrMem, Xalamio Publications Ltd., Lahore.

Some .(hnrtUutirmal Proposals 325

State. In I960, when the first Basic Principles Committee
Report was published, we had pointed out that it had commit-
ted a blunder in granting unlimited powers to the Executive
and to the Head of the State. We do not know whether the
Committee has now realised the horrible consequences of its
proposals. As a precautionary measure, therefore, we submit
the following proposals to serve as safeguards

(1) The Head of the State should in no circumstances be
, given the power to suspend the Constitution. The

countries which committed the folly of giving such
powers have generally landed themselves in trouble
and therefore it cannot be expected to bring any
good to Pakistan. The utmost that can be conceded
in this respeot is that in times of grave emergency he
may be empowered to suspend the Constitution, at
the most in a province and for a specified period. The
absolute power of suspension of the entire Constitution
inevitably leads to dictatorship.

(2) Nobody in the State, not even its Head—and in no
capaoity, neither private nor public -should be above
law or beyond the jurisdiction of the courts of law.
Moreover, the.oitizens should have the right freely to
seek redress against every officer of the State (includ-
ing its Head) for any injury caused by him in his
official or private capaoity. The argument generally

advanced against this is that it will give rise to malici-
ous and harassing litigation against the State officials
and will hamper their work. But this argument carries
little weight. Leaving aside the fact that this evil can
be checked by adopting several legal means, the actual
faot is that it is not the rulers but the ruled who are
usually at the mercy of the other party. The right to
sue any one for causing injury to a person is such an
inherent and fundamental right of citizens in an Isla-
mic State, that the Muslims and the Zimmis alike have
enjoyed it not only against the Caliphs but against the

S26

The Mamie Late and Constitution

Holy Prophet himself. Thus no power oan take away
this right from the citizens of an Islamic 8 tote.
(S) The Head of an Islamic State cannot be granted the
unlimited power or prerogative of clemency. All that
he may be permitted to do in this respect is that : —
(a) he may grant pardon, in the interest of public
good, for sentences awarded for political or admin-
istrative offences ; and
(6) he may change a death sentence into some other
sentence, not, however, on the ground of clemency
but on the real merits of a case. It would be
advisable that a higher judicial committee be for-
med to help and advise the Head of the State in
such oases.

Beyond this the Head of an Islamic State should hare no
powers, because he is there to uphold justice and not to undo it.
As a matter of fact clemency or mercy to proved criminal ha* no
place in the Islamic conception of jmtioe. Such powers were
devised and assumed by despotic monarch* for asserting their

"divine right" and unlimited powers over their subjects.

Princely States

The states that have acceded to Pakistan must be brought
in line with the provinces. We are not going to tolerate despo-
tic or semi-despotic powers of anybody in any form and any-
where in the country. It must be specifically provided in the
Constitution that the type and pattern of government and
administration of the states shall be like that of the provinces.

Amendment of the Constitution

Two principles should be adopted in regard to the amend-
ment of the Constitution :—

(1) The amendment of such parts of the Constitution as
are of fundamental importance should be made as
difficult as possib^, so that the real nature of the
Constitution may remain intact ;

(2) The amendment <g the remaining parts of the ConstJtu-

Some Constitutional Proposals 327

tion ihonid, on the other hand, bo made easy, to that
it may be improved In the light of practical experi-
ence* wheneyer neoeuary.
A* to what is of fundamental importance and what is not,

can only be decided when the blue-print of the Constitution

comes before as in it* complete form.

APPENDICES

Appendix I

■

*

Basic Principles^
Islamic State

Critics have oft*a trwd to play opon the myth
that there abound gross differences of opinion
amongst the 'UlarnH of the various sects of the
Muslims as to the nature of the Islamio Constitu-
tion and have asserted that, in the absence of
unanimous statement by them, the nature of the
Islamic Constitution will remain "a riddle, wrap-
ped in a mystery inside an enigma". This myth
was fblly exploded when the challenge thrown by
such critios was accepted by the 'UlamS (Sunni and
SK'oh both) and the thinkers of Pakistan, A Con-
vention of the 'Ulamd representing all the schools
of Islamio thought was held from 21st to 24th
January, 1951, in Karachi, and it formulated the
fundamental principles of the Islamic State. The
Convention was attended by thirty -one 'Ulamd
and all their decisions were unanimous. These
basic principles of Islamio Stato are reproduced
here in Appendix I. — Editor.

BASIC PRINCIPLES OF ISLAMIC STATE

THE Constitution of an Islamic State should comprehend the
following Basic Principles :—
1. Ultimate Sovereignty over all Nature and all Law vests in

Allah, the Lord of the universe, alone.
2; The law of the land shall be based on the Qur'an and the
Sunnah, and no law shall beenaetednor any administrative
order issued, in contravention of the Qur'an and the Sunnah.
Explanatory Nott :
If there be any laws in force in the country whioh are
in conflict with the Qur'an or the Sunnah, it would be
necessary to lay down (in the Constitution) that such
laws shall be gradually, within a specified period, re-
pealed or amended in conformity with the Isalmio Law,

3. The State shall be based not on geographical, racial, lingu-
istic or any other materialistic concepts, but on the princi-
ples and ideals of Islamic ideology.

4. It shall be incumbent upon the State to uphold and estab-
lish the Right ( Jf a'ruf) and to suppress and eradicate the
Wrong (Munkar) as presented in the Qur'an and the Sun-
nah, to take all necessary measures for the revival and
advancement of the oultural pattern of Islam, and to make
provision, for Islamic education in accordance with the
requirements of the various recognised sohools of Islamic

thought.

5. It Bhall be incumbent upon the State to strengthen the
bonds of unity and brotherhood among the Muslims of the
world and to inhibit the growth of all prejudicial tenden-
cies based on distinctions of race or language or territory
or any other maWialistic consideration and to preserve and
strengthen the unity of the Millat al-Islamiah.

6. It shall be the responsibility of the Government to guaran-

Batic Principles of Islamic State

333

tee the basic necessities of life, food, slothing, housing,
medical relief and education to all citizens withont distinc-
tion of race or religion, who might temporarily or perma-
nently be incapable of earning their livelihood due to un-
employment, sickness, or other reason.

CITIZENS' RIGHTS

7. The citizens shall be entitled to all the rights conferred up-
on them by the Isamio Lav *\a., they shall be assured
within the limits of the law, of full security of life, pro.
perty and honour, freedom of religion and belief, freedom
of worship, freedom of person, freedom of expression, free-
dom of movement, freedom of association, freedom of
occupation, equality of opportunity and the right to benefit
from public services.

8. No citizen shall, at any time, be deprived of these rights,
except under the law and none shall be awarded any
punishment of any oharge withont being given full opport-
unity of defence and without the decision of a court of law.

9. The recognized Muslim schools of thought shall have,
within the limits of the law, complete religious freedom.
They shall have the right to impart religious instruction to
their adherents and the freedom to propagate their views.
Matters coming under the purview of Personal Law shall
be administered in accordance with their respective codes
of jurisprudence (fiqh), and it will be desirable to make
provision for the administration of such matters by judges
(Qadie) belonging to their respective schools of thought.

10. The non-Muslim citizens of the State shall have, within the
limits of the law, complete freedom of religion and worship,
mode of life, culture and religious education. They shall
be entitled to have all their matters concerning Personal
Law administered in accordance with their own religious
code, usages and customs.

11. All obligations assumed by the State, within the limits of
the Shari'aJi, towards the non-Muslim citizens shall be fully

334 The Islamic Law and Catietitulivn

honoured. They shall be entitled equally with the Muslim
citizens to the rightB of citizenship as enunciated in para-
graph 7 above.

12. The Head of the State shall always be a male Muslim in
whose piety, learning and soundness of judgment the people
or their elected representatives have confidence.

13. The responsibility for the administration of the State shall
primarily vest in the Head of the State although he may
delegate any part of his powers to any individual or body.

GOVERNANCE OF THE STATE

■

14. The Head of the State shall function not in an autocratic
but in a consultative (Shura'i) manner, i.e., he will dis*
charge his duties in consultation with persons holding
responsible positions in the Government and with the
elected representatives of the people.

15. The Head of the State shall have no right to suspend the
Constitution wholly or partly or to run the administration
without a Shura.

16. The body empowered to elect the Head of the State shall
also have the power to remove him by a majority of votes,

17. In respect of civic rights, the Head of the State shall be
on the level of equality with other Muslims and shall not

be above the law.

18. All citizens, whether members of the Government, offioials
or private persons, shall be^uibjeot to the same laws and
the jurisdiction of the same courts.

19. The Judiciary shall be separate from and independent of
the Executive, so that it may not be influenced by the

■

Executive in the discharge of its duties.

20. The propagation and publicity of such views and ideolo-
gies as are calculated to undermine the basic principles and
ideals on which the Islamic State rests, shall be prohibited.

21. The various &one« or regions of the country shall be con-
sidered administrative units of a single State. They shall
not be racial, linguistic or tribal amts but only adminietra-

Basic Principles of Islamic Stat*

335

tive areas which may be given such powers under the
supremacy of the Centre as may be necessary for adminis-
trative convenience. They shall not have the right to
secede.

22. No interpretation of the Constitution which is in conflict
with the provisions of the Qur'an or the Sunnah shall be
valid. /

NAMES OF THE 1 ULAMA PARTICIPATING IN

THIS CONFERENCE

1. Maulana Sayyid Suleman Nadvi (President of this Con-
ference).

2. Maulana Sayyid Abul A'la Maududi, Amir Jamaet-e-Islami,
Pakistan.

3. Maulana Mufti Muhammad Shaft, Member, Board of Ta'Ii-
mat-o-Ifllamia, Constituent Assembly of Pakistan.

4. Maulana Mufti Ja'far Husain, Mujtabid, Member, Board of
Ta'limat-e-Ialamia, Constituent Assembly of Pakistan.

5. Prof. Abdul Khaliq, Member, Board of Ta'limat-e-Islamia,
Constituent Assembly of Pakistan. .

v 6. Maulana Muhammad Zafar Ahmad An sari, Secretary, Board
of Ta'limat-e-Zslamia, Constituent Assembly of Pakistan*

7. Maulana Shams-ul-Haq Afghani, Minister, Religious Affaire,
Kalat State.

8. Maulana Ihtesham-ul-Haq, Mohtamim, Dar-al-'Uioom al-
Islamia, Tando Allah Yar, Sind.

9. Maulana Badr-e-Alam, Head of Hadith Department, Dar al-
'Uloom al-Islamia, Tando Allah Yar, Sind.

10. Maulana Muhammad Yousaf Binnori, Shaikh al-Tafsir,
Dar al-'Uloom al-Islamia, Tando Allah Yar, Sind.

11. Maulana Muhammad Abdul Hamid Qadri Badayuni, Presi-
dent, JamiaWUlama-e- Pakistan, Sind.

12. Maulana Muhammad Idris, Shaikh al-Jamia, Jamia Abba-
sia, Bahawalpur.

13. Maulana Khair Muhammad, Mohtamim, Madrasah Khair

al-Madam, Muitau.

336 Urn Iiiamic La* and Constitution

14. Maulana Mofti Muhammad Hun, Mohtamim, Medrwh
Ashrafia, Lahore.

16. Pir Sahib Muhammad Amin tl-Hwott, Pit of Menki

Sharif.

10. Haji Khadim el-Islam Mohammad Amin, Khalifa, Haji
Tarang Zai, Peehawar District.

17. Qadi Abdoa Samed Sarbaai Qidi, Kalat State.

18. Maulana After ' Ali, 8adr fail, Jamiat al-« Uleme-c-Islnm,
East Pakistan.

19. Maulana Abu Ja'far Muhammad Seleh, Amir, Jamiat
Hizbulleh, East Pakistan.

20. Maulana Baghib Ahsan, Vioe-Preeident, Jamiat al-

•Ulama-e-Islem, East Pakistan.

21. Maulaaa Muhammad Habib-ur-Rehman, Viee-Preaident,
Jamiat el-Mudarresin, Sarsina Sharif, East Pakistan.

22. Maulaaa Muhammad AH Jullundari of MaiHs-a-Ahrar^-
Islam, Pakistan.

23. Maulana Seyyid Muhammad Da'fld Ghatoavi, President,
Jamiat Ahle-Haditb, West Pakistan.

24. Maulana Mufti Heflz Kifayat Hussein, Mujtahid, Idarab-e-
Alia Taheffuz-e-Huquq-e-Shien-e-Pakistan.

25. Maulana Muhammad Ismail, Nezim, Jamiat Ahle-Hadith,
West Pakistan.

26. Maulana Habibullah, Jamia Diniah Der-el-HQde, Terhi,
Khairpur Mirs.

27. Maulana Ahmad Ali, Amir, Asjuman Khuddam-el-Din,
Lahore.

28. Maulana Muhammad Sadiq, Mohtamim, Madrasah Mezher
el-'Uloom, Khaddah, Karachi.

29. Maulana Shams-ul-Haq Faridpuri, Sadr Mohtamim
Madrasah Ashraf al-'UIoom, Dacca.

30. Maulana Mufti Muhammad Sahibdad, Sind Madrasst-al-
Islam, Karachi.

31. Pir Sahib Muhammad Bashim Mujaddidi, Tando Saeendad,

Sind.

Appendix II

*

■

'Ulama's Amendments
to the Basic Principles
Committee's Report

2.

BASIC Principles Committee's Report was publi-
shed in December 1052 and a Convention of the
' Ulamd* representing all schools of Islamic thou-
ght coming from both the wings of the country was
held in Karachi from 11th to 18th January, 1953.
The Convention formulated its amendments to the
Nasimuddin Report unanimously. 2 These amend-
ments of the 'Ulama are a historic document and
are indispensable for those who want to study
the developments of Constitution-making in Pakis-
tan. An idea of the constructive contribution of
the 'Ulama to Constitution-making can be had
from a comparative study of the original Nazimud-
din Report, these amendments, the Muhammad
AH Report and the 1956 Constitution. Similarly a
careful comparative study of these amendment and

I, All the 'Ulamd whose namw appear in Appendix I were invited to thin
convention and aimoit all of them attended, so muoh so that the num-
ber of l Utamti who participated in the Convention, wae &3 imtead of
31

There was only ono point on which d«J ? gat.. di»gwd. Their

views on thi. point Are oppendod »t th. ond of this appendix M
Annezure No. 1.

The Islamic Law and OmMtuiion

the constitutional proposals presented by Maulana
Maududi in August 1952 (Chapter X) also reveals
the part which Maududi has played in the making
of the. mind of the intelligentsia of Pakistan on
constitutional problems.

These amendments also show that the 4 Ulama
were not concerned merely with the apparently
religious aspects of the Constitution. They gave
concrete proposals for all the aspects of the Cons*
titution and did not fall a prey to any narrow-
mindedness. The Islamic oonoept of religion is a
wide one and the amendments reflect that the
l UlamH have upheld the real Islamic concept which
does not admit of any separation between 4 the
religious* and 'the seoular.'— Editor.

'ULAMA'S amendments

■

TO THE

BASIC PRINCIPLES COMMITTEE'S REPORT

(If** Original Text and Proposed One of Relevant Sections)*

Chapter II-DIRECTIVE PRINCIPLES OF STATE POLICY
2. The following should be the Directive Principles of

State Policy.

Section 2, Clause (2), Sab-Clause (a)

Facilities should be provided for them to understand what life

in accordance with the Holy Qur'an and the Sunnah means, and the
teaching of iht' Holy Qar'an to the Muslims should be made
compulsory.

The text of this Bub-clause of the Report loads itself to the
meaning that, while keeping intact the foundations of the sys-
tem of education as obtaining during the British regime, the
Government should endeavour to make the teaching of Holy
Qur'an compulsory for Muslims and to prescribe a course of
theology to enable them to know what life in accordance with
the Holy Qur'an and Sunnah means. This provision would in
no way prove effective in removing those evils of the existing
system of education and training which have their roots in the
•un-Godly bases that form the bed-rook of the present system of
education and training. We, therefore, deem it necessary that
the following words be substituted in place of the existing
words of this Sub-Clause.

"The teaching of the Holy Qnr'an and Islamiyat be made
compulsory for every Muslim and the system of education be so
reformed that it may enable the Muslims to moold their lives in
tfccord with the Holy Qnr'an and the Sunnah"

1. Tbe original text of the Report its given in italic* apd the proposed
>ue in bald type. Chapters, sections and clauses referred to are those

n't the Basic Principles Committee'? Report.

3 *0 The Islamic Law and Constitution

Section 2, Clause (2), Sub-Clause (b)

Prohibition of drinking, (/ambling and prostitution in alt their
various forms.

The recommendations contained in this sub-clause of the
Report are defective in two respects . Firstly, they prohibit
only drinking and not the sale or manufacture of liquor and are
even silent in regard to other intoxioants. Secondly, they do
not fix any period for the eradication of the eWls of drinking,
gambling and prostitution. This lends to an apprehension that
these evils may continue for an indefinite period in the Islamic
State of Pakistan. We, therefore, deem it essential that the
following be substituted in place of the existing words :—

"Intoxicants, gambling and prostitution in all their various
forms be completely prohibited through proper legislation within
a maximum period of three years from the date of enforcement of
the Constitution."
Section 2, Clause (4)

Suitable steps should be taken for bringing the existing laws
into conformity with the Islamic Principles, and for the codifica-
tion of such injunctions of the Holy Qur'dn and the Sunnah as can
be given legislative effect.

In this Clause, the authors of the Report have not prescrib-
ed any period for bringing the existing laws of the land into
conformity with the Holy Qnr'an and the Sunnah ; hence it is
apprehended that the existing un-Islatnio laws might be allowed
to remain in force for an indefinite period. This is intolerable
and we, therefore, consider it necessary that this clause be
amended to read as follows ; —

(a) "Suitable steps should be taken to bring the existing laws
into conformity with the Holy Qur'an and Sunnah within five
years."

(b) "Arrangements should be made for the codification and
enforcement of all such commandments and injunctions of the
Holy Qur'an -and the Sunnah as are enforceable through legisla-
tion. Provided that laws regarding the personal matters of
Muslims should be made in the light of such interpretations of the

'Ulamd's Amendments

341

Holy Qur'an and the Sunnah as are held valid by the respective
schools of thought among Muslims and the followers of one school

of thought should not be bound to follow the Interpretation of an-
other, and that no such law should he made as may create obstruc-
tion in the performance of Its religious rituals and duties."

Section 2, Clause (6)

The State should endeavour to secure basic necessities of life
like food, clothing, education and medical relief for those citizens
of Pakistan, irrespective of caste or creed, who are temporarily or
permanently incapable of earning their livelihood due to unemploy-
ment, infirmity, sickness or any other similar reason.

The following wording in place of the present wordings of
thjs clause would, in our opinion, be more appropriate.

"The State should endeavour to secure basic necessities of life
like food, clothing, housing, education and medical relief for all
citizens of Pakistan, irrespective of caste or creed, and particular-
ly for those who are temporarily or permanently incapable of
earning their livelihood on account of unemployment, infirmity or
sickness or any other similar reason."

Section 2, Clause (7), Sub-Clause (a)

The economic policy of the State should be so directed as to
secure an all-round unll-being of the people irrespective of creed,
race or colour and should be so operated as—

(a) to improve the standard or living of the common man ;

In this Clause it has not been specified that the economic
policy of the State should be based on the Islamic principles of
social justice ; hence the following should be substituted in
place of the existing words :—

■

"The economic policy of the State should be based on the
Islamic principles of social justice. It should be so directed as to
secure an all-round well-being of the people irrespective of creed,
race or colour and should be so operated

342 The Islamic Law and Constitution

Section 2, Clause (7), Sub-Clause (c)

To ensure equitable, adjustment of the rights of labour and the
peasantry in order to prevent their exploitation.

In this Clause, although the existing phraseology, i.e., "the
rights of labour and the peasantry" lends itself to quite a wide
interpretation, the question of compensation to the labour and
peasantry being of great significance its separate treatment and
exposition is essential. The standard of the compensation
should be so fixed as to enable them to meet their basio require-
menta of life. We, therefore, are of the opinion that the sub-
clause should as under :

"An equitable standard of the rights and compensation of the
labour and peasantry be laid down to ensure that they are not
deprived of their necessities of life or exploited."
Section 2, Clause (10)

The State should endeavour to discourage amongst the Muslims
of Pakistan parochial tribal, racial and other similar un- Islamic
feelings and inculcate in them the spirit to keep foremost in their
minds the fundamental unity and solidarity of the Millat and the
requirements of the ideology and the mission for implementation of
which Pakistan came into being.

In this Clause the present wording of the Report is defec-
tive particularly in so far as there is no mention of linguistic
prejudices. We, therefore, think that the following should be
substituted in its place :—

"The State should discourage amongst the Muslims of Pakis-
tan, the geographical, tribal, racial and linguistic and other
similar mvfalamic feelings and inculcate in them the spirit to
keep foremost in their minds the fundamental unity, integrity and
solidarity of Millat-i-Islamia and the requirements of the ideology
and the mission for the implementation of which Pakistan came
Into existence. 1 *

Additions:

Besides the above amendments, we deem it necessary that
the following additions be also made in the Directive Principles
of the State Policy ;

'Ulama's Amendment* 343
Section 2, Sub-Clause (f)

"Proper and effective arrangements should be made for the
promotion of Islamic learning and culture."

Clause 7, Sub-Clause (d)

"The difference in the pay of high and low emplovees of the
State should be brought to an equitable level."
New Cli

(a) The State should ensure that in the section, appoinment
and promotion of Muslim candidates and employees, Islamic
character and observance of the tenets of Islam are given due con-
sideratfon along with ability, efficiency and other relevant factors.

(b) "In the training of the Muslim employees of the State
whether civil or military, special arrangements for their moral
«nd religions training and education should be made, so that the
moral standard of the State employees of Pakistan, as also their
standard of efficiency, be high enough."

(c) "All facilities should be provided to the Muslim em-
ployees of the State for carrying out their religious duties and
observing the tenets of Islam "

New Clause

"The propagation of atheism and infidelity and the insulting
or ridiculing of the Holy Qur'an or the Sunnah should be pro-
hibited through legislation."

Chapter HI-PROCEDURE FOR PREVENTING LEGISLA-
TION REPUGNANT TO THE QUR'SN AND
THE SUNNAH. *

Section 3

No legislature, should enact any law which is repugnant to the
Holy Qur'Sn and the Sunnah.

It is not enough to provide only in a negative manner that
no law should be enacted which is repugnant to the Qur'an and
the Sunnah. What is required is that it ahould be laid down

344 The Islamic Law and Constitution

as a matter of principle that the dictates and directives of the
Qur'an and the Sunnah should be the chief source of legislation
in this State. Therefore the following should be added at the
end of this section

"and the Qur'an and the Sunnah be the chief source of the
law of the land."

Sections 4, 5, 6 aad 8

4. No objection on the ground that a legislation ie in contravene
Hon of the provisions of paragraph 3 should be taken except in
the Legislature concerned and in the manner provided for in
the next two succeeding paragraphs.

5. (1) The Bead of the State should constitute, for a period of

five years, a Board consisting of not more than five persons
well versed in Islamic Laws.

(2) When a Bill is discussed in a House of the Federal Legis-
lature, if any Muslim member raises an objection, at any
stage of the discussion, that the BUI or any provision
thereof is in contravention of the provions of paragraph 3,
the Chairman of the House should record that objection.

(3) If the Bill to which reference has been made in sub-para-
graph (2) of this paragraph comes up for discussion before
the other Bouse of the Federal Legislature the Chairman
of the House should inform the House of any objection
taken in the House in which the Bill has been initiated.

(4) When a Bill is finally parsed by the Federal Legislature
the authority concerned should forward the Bill together
with any objection, taken in either or both the Houses of
the Federal Legislature, to the. Head of the State for

(5) The Bead of the State should consult the Board to ascer-
tain whether the Bill of any provision thereof to which
objection has been taken, is in contravention of the pro-
visions of paragraph 3. The Board should send their
views to the Head of the State within seven days of the
receipt of such reference.

1 U lama's Amendments 345

(6) // a difference of opinion arises amongst the members of
the Board the Head of the. State should give, hi* assent to
the Bill or withhold his assent therefrom,

(7) If the Board is unanimously of the opinion that the Bill
or any provision thereof is in contravention of the provi-
sions of paragraph 3, the Bead of the State, should return
the Bill to a joint sitting of the two Houses of the Federal
Legislature together with the views of the Board and a
message that the Bill or any provision to which objection
has been taken should be reconsidered on the lines sugge-
sted in the message.

(8) (a) If the Federal Legislature amends the Bill on the lines

suggested by the Head of the $tate in his message, the
authority concerned should forward the Bill to th
Bead of the State for his assent.

(b) If the objection is to the whole of the Bill it should
not be deemed to have been passed unless it is passed
by the majority of the members present and voting
which should include the majority of the Muslim
members present and voting.

(c) J/ the objection is to certain provisions of the Bill,
amendments in respect of such provisions should not
be deemed to have been passed unless j^^ed by the
majority of the members present and voting which
should include the majerity of the Muslim members

present and voting.

(9) When the points raised in the message are disposed of in

the manner prescribed in sub-paragraph {8) above, the
Bill, unless it is withdtaum by the leave of the House,
should be resubmitted to the Head of the State for his
assent and it should be assented to by the Head of the
State.

6. (1) The Bead of the Unit should constitute, for a period of

to

five years, a Board consisting of not more than five per-
sons unU v*rs*4 in Islamic Laws.

The Islamic Law and Constitution

(2) Whin a Bill is discussed in the Legislature of the Unit,
if any Muslim member raises an objection, at any stage
of the discussion, that the Bill or any provision thereof is
in contravention of the provisions of paragraph 3, the
Chairman of the LegUtulure concerned should record that
objection and when the Bill is finally passed by the
authority concerned should forward the Bill together with
any objection taken in the Legislature to the Bead of the

Unit for assent,

(3) The Bead of the Unit should consult the Board to ascer-
tain whether the Bill or any provision thereof to which
objection has been taken is in contravention of the provis-
ions of paragraph 3. The Board should send their views
to the Bead of the Unit within seven days of the receipt of
such reference.-

(4) If a difference of opinion arises amongst the members of
the Board, the Bead of the Unit should give as»ent to the
Bill or withhold his assent therefrom or may reserve the

Bill for the consideration of the Bead of the State.
(6) If the Board is unanimous of the opinion that the BUI or
any provision thereof is in contravention of the provisions
of pragraph 3, the Bead of the Unit should return the Bill
to the Legislature of the Unit together with the views of
the Board and a message that the Bill or any provision to
which objection has been taken should be reconsidered on
the lines suggested in the. message.
(6) (a) If the Legislature of the Unit amends the Bill on the
lines suggested by the Head of the Unit in his message
the authority concerned should forward the Bill to the
Head of the Unit for his consent.

(b) If the objection is to the whoh of the Bill it should
not be deemed to have been passed unless it is passed
by the majority of the members present and voting
which should include the majority of the Muslim
members present and voting.

1 UlamtTs Amendments 347
(c) If the objection is to certain provisions of the Bitt t

■

amendments in respect of such provisions should not
be deemed to have been passed unless passed by the
majority of the members present and voting , which
should include the majority of the Muslim members
present and voting.

(7) When the points raised in the message are disposed of in
the manner prescribed in sub-paragraph (6) above, the
Sill unless it is withdrawn by the have of the House,
should be resubmitted to the Head of the Units for hi
assent and it should be assented to by the Head of the
Unit or he may reserve it for the consideration of the
Head of the State.
(8) The provisions of this chapter relating to assent should
have effect notwithstanding anything to the contrary
relating to assent to Bill in other parts of the Constitution.
The device of setting up a Board of 'Ulamd, as proposed in
this section, to avoid legislation repugnant to the Qur'aa and
the Sunnah, far from being reasonable or effective is likey to
prove a source of many a new evil. We fail to understand why
the very same method whioh haa been adopted to check legisla-
tion in contravention of the various provisions of the constitu-
tion, i.e., empowering the Supreme Court to interpret constitu-
tion should not be adopted in regard to the provisions of
Section 3 as well. Of course, for the duration of such period as
may be required to produce judges fully conversant with the
Qur'an and the Sunnah, in keeping with the new constitutional
requirements, some transitional provision should be made to
ensure correct interpretation of the Qur'an and the Sunnah, for
purposes of the provisions of Section 3. Therefore we demand
that Sections 4 to 6 as well as Section 8 related therewith be
deleted altogether and the following be substituted in their
place :

1. To deal with constitutional objections raised under
Section 3 against laws enacted by a legislature or other issues
concerning interpretation of constitution in this behalf, there

348 The Mamie Law avd Constitution

should be appointed Are 'Ulama ia the Supreme Court who, al
with some judge to be nominated for the purpose by the Head
the State in consideration of bis Hadayyun and laqwa' mi
knowledge of Islamic law and learning, should decide whether or
not the law In dispute is in conformity with the Qur an and the
Sunnak.l

2. The appointment of the above-mentioned ' Ulama should
be made in the same manner as has been proposed in the Basic
Principles Committee's Report In regard to the judges of the
Supreme Court.

3. Only such ■ Alim shonld be qualified for appointment to

this office as : .

(a) has worked ia some religious institution as a Muft.

for a minimum period of 10 years ; or

(b) has been an accepted Mufti in some area for a mini-
mum period of l^pears ; or

(c) has worked as a Qadi in some duly established

Mahakama-e-Qada ; or

(d) has been a teacher of Tajsir, Hadith or Fiqh In some
religious institution.

Section 7

The provision of this chapter should not apply to Money
Bills.

We were extremely surprised to see this section of the
Report and to note that the very persons who have accepted in
Section 3 the principle that no law should be enacted which »
repugnant to the Qur'an and the Sunnah should have stipulated
that the dictates of the Qur'an and the Sunnah would be in-
operative in regard to the financial matters of the State. If
the State accepts the supremacy of the dictates and command-
ments of Allah and His Prophet, as is evident from the wording ,

I^Ttoeof the partioipanta of tl» Convention disagreed on this point.
* Their viewpoint is appended at the end of these Amendments as
Annexure No, 1.

'Ulama's Amendments 349

of Section 3, there is no reason why the financial matters of the
State should be placed beyond the jurisdiction of Allah and His
Prophet. Islam is the best guide for us in all matters. It is so in
the case of finanoial problems too. We are not at all prepared
to accept a clear rote of no-confidence against Islam in one of
the Sections of our Constitution.

However, we do ooncede that for some time to come there
might be some practical difficulties in adjusting the financial
matters of the State aocording to the principles of Islam and for
that it would suffloe to provide that the provision of Section 3
should apply to money bills only after the expiration of a
period of 5 years. Therefore, the present wordings of Section 7
of Chapter 3 should be substituted by the following :

"Hie provisions of this chapter should apply to money bills
after the expiry of 5 years from the date of enforcement of the
Constitution."

Part II

THE FEDERATION AND ITS TERRITORIES
Section 9 (1)

The name of the State should be Pakistan which should be a
Federation, of the Provinces including Baluchistan, the Capital of
Federation, such Stales as hove acceded or may accede to the
Federation and such other areas as formed part of Pakistan
immediately before the commencement of Ike Constitution or may
hereafter be included in it.

In Clause (1) of this aeotion, 'Pakistan' has beeir proposed
to be the name of the State, tn our opinion this ft not enough
and the name should be Islamic Republic of Pakistan.

The presence of non-Muslim communities in Pakistan
cannot be put forth as a valid objeotion against this name be*
cause if the presence of innumerable non-socialists in Russia
does not prevent its being named * Union of Soviet Socialists
Republics' 'why should it stand in the way oi Pakistan being
called au Islamic Republic ? The appellation of Islamic Ifcepub-

Mt) The Islamic Law and Constitution

lie ia just to indicate that it is a Republic which is based oa the
principles of Islam— something which haa already been specified
in the Objectives Resolution, and Section 3 of the Report too
leads to the same conclusion.

Apart from this, the following additions should also be
made in this section. After Clause ()), the following Clause
should be added :

2. "The various zones or regions of the country shall be
considered as administrative Units of a single State. They shall
not be racial, linguistic or tribal units but only administrative
areas which may be given such powers under the supremacy of the
Centre as may be necessary for administrative convenience.

3. "The Units of the State shall not have the right to secede."
Existing Clause (2) would thus be renumbered as (4).

Part III

THE FEDERATION
Chapter I— THE EXECUTIVE

Section 23, Clause (2)

Appointment of the Election Commission and Election Tri-

bunal*.

The power to appoint Election Tribunals has been categoris-
ed with powers which are to be exercised by the Head of the
State in his discretion. In our opinion this is not proper. The
maintenance of justice and fairness in elections is of immense
significance to the existence of our State and like other matters
requiring justice, this too should be entrusted to the Judiciary
and kept immune from the interference of the Executive.
Therefore the words 'and Election Tribunals* occurring in this

Clause should be deleted.

Our alternative proposal in thiB behalf is to be found in

the chapter relating to elections in Part XII.

Section 28, Clauses 2 and 3

(2) The Prime Minister wh»> for a jterwl of six eanmutm
ninths. U not a mcmbir rf the House of the People should at the

'Ulam&'s Amendment* 35I

expiration of that period cease to be the Prime Minister.

(3) Provision should be made for appointing as Minister a
person who is not a member of either' House provided that a person
should cease to be a Minister unless he gets elected within a period
of six months from the date of his appointment.

These two clauses provide that even auoh persons as have
not been elected to the Legislature may be appointed as Prime
Minister or Minister and that they should try to get themselves
elected after they are well in saddle for 6 months. This is
highly objectionable and harmful. To place a person in autho-
rity and then provide him a chance to win his election might
lead to the moral deterioration of the administrative machinery
as well as of the voters. Therefore this door must be closed
and both these clauses should be deleted.

The same wrong has been repeated in Clause (2) of Section
89 wherein provision has been made for une looted persons to be

in a Unit and to bo

given a chance to get eleoted.

Therefore Clause (2) of Section 89 should also be deleted.

Chapter II — FEDERAL LEGISLATURE

• * -

The manner in which the .House of Units and the House of
People have been proposed to be oonBtituted is, in the opinion
of this Conference, highly objectionable and exhibits the lack
of principle in many respects. However, in view of the faot that
the political leaders of the various provinces are carrying on
negotiations in this behalf we do not deem

in their way in any manner and propose to reserve our opinion
on this issue.*

1. As this Conference was held in January 1933 and the indications of an
accord between the politicians were available, the Conference ref-
rained from giving any suggestion in this respect. Later on the
conflict was resolved in the form of the Parity tformnla of Mohan, m,. f
All of Ilogra.— Editor.

352 The Islamic Law and Constitution

4

Section 40, Clause (1)

A person should not be qualified to be chosen to fill a seat in
the Mouse of Unite unless Ac—

(i) tfl a citizen of Pakistan :

(ii) has attained the age of thirty years ;

{Hi) is able to read and write in some language ; and

(iv) is entitled to vote in the choice of a member to fill a seat
in the Legislature of the Unit by which he seeks to be elected :

Provided thai the provisions of clause (iv) should not apply in
the case of m Unit which has no legislature of it* own. In that
cast he must be a voter in a territorial constituency in that Unit
for the House of the People.

In this clause four disqualifying conditions have been enu-
merated in regard to a person proposed to be elected to the
Legislature. So far as Muslim members are concerned, a fifth
condition should also be added in the following words :—

"is an observer of 'faraiz* and desists from 'fau>ahish\"
Section 40, Clause (!) subclause (iv)

The wording of this sub- clause is obectionable inasmuoh as
this implieB that a member of the House of Units must neces-
sarily be a resident of the rery same Unit from where he is
elected. This would be conductive to the perpetuation of pro-
vincialism among Pakistanis and therefore we propose that the
present construction be substituted by tbe following : —

"is on the electoral roll of any place in the State of
Pakistan," '

The same is to be found in Clause 4 of Section 47 and it
should also be modified on the above lines.

Section 42, sub-clause (e)

42. A person should be disqualified for being chosen as, and
*or being , a member of the House of Units —

e) If he has been convkted of any vffcv<:t t other than those specu
ed under sub-paragraph (d) above, before or after the cowmen-

'Ulamit's Amendments 3*3

cement of the Constitution, by a competent court in Pakistan and
sentenced to life imprisonment or imprisonment for not less than
. two years, unless a period of five years has elapsed since his release.
According to this sub-clause anybody who baa been con- *
rioted of any offence and sentenced to imprisonment for a
period of 2 years or over, would be disqualified for being chosen
as a member of the House of Units. The term 'any offence* is
too wide and would cover cases of persons convicted for politi-
cal reasons. Therefore, we propose that the words 'any other
offence* should be replaced by the words 'offence involving moral
turpitude'.

Amendments on the same lines should be made in Section
48, sub-clause (e) and Section 102 ( sub-clause (c).

Section 42, sab-clanse (g)

// he has been dismissed for misconduct from service or from
a post in connection with the affairs of the Federation or of a Unit
unless a period of five years or such less period as the Head of the
State may allow in any particular case, has elapsed since his
dismissal

This sub-clause disqualifies a person for being chosen as a
member of the Houbo of Units, if he has been removed, from
Government service on aooonnt of 'misoonduot\ 'Misconduct*
is too wide and vague a term and would cover oases of persons
dismisied by a Party Government for political reasons even
though they may not have been guilty of anything involving
moral turpitude. Therefore, after the word 'misconduct' the

following should be added :—

"involving moral turpitude,"

Amendments on the same lines should also be made in
Sections 48 and 102, sub-clause (g)

Section 50, sub -clause (d)

No person should be included in the electoral roll for vote at
any election in any constituency —

(i) */ he has been convicted of any offence other than those speci-
fied under suh-payrayraph (c) above before or after the
commencement of the Constitution by a competent court in

S54 The Islamic Law and Constitution

Pakistan and sentenced to life imprisonment or to imprison-
ment for not less than two years, unless a period of five years
has elapsed since his release.

This sub-clause also disqualifies anybody who has been
convicted, by a competent oourt, of 'any offence' and sentenced
to an imprisonment of 2 years or over. We have the same
objection in this behalf as in regard to the provision of Seotion
42, sub-clause (e). Therefore, after the word 'offence' the words
'involving moral turpitude' should be added.

Section 106, sub clause (d) should also be amended accord-
ingly.

Section 66, Clause (1)

A member of the Federal Legislature should be required to
take an oath of allegiance to Pakistan. No member should take
his seat in either House of the Federal Legislature until he has

taken the prescribed oath.

This clause provides for an oath of allegianoe to Pakistan

to be taken by the members of the Legislature. The members,
we propose, should also affirm on oath that in all the proceed-
ings of the Legislature they would exercise their vote honestly.
Therefore after the words «oath of allegiance to Pakistan' the
following should be added :—

"and also to the effect that he would exercise his vote honestly."
The above should be added to Section 118, Clause (1) also.

PartX

JUDICIARY

The new sections to the following effect should be incor-
porated somewhere in this chapter ;

(1) "In the appointment and promotion of every officer
entrusted with adjudication, along with other relevant factors, the
qualities of l taqwa and tadayyun* and knowledge of Islamic laws
and learning through original sources, should be given due weight
and treated as preferential factors.

This is necessary in view of the fact that in respect of the

1 Mama's Amendments 365

qualities of 'taqwa 9 and 'tadayyun' Islam lays even greater
emphasis in the case of officers entrusted with the dispensation
of justice than in the ease of the members of the Executive or
of the Legislature. And once the principle has been accepted
that the laws of the State are to be based on the principles and
dictates of Islam, it is but imperative that those administering
justice according to Islamic Law should possess adequate

knowledge of those laws.

(2) "The Legislature or the Executive shall not hare the
power to appoint tribunals."

This is necessary because it is absolutely against the dic-
tates of justioe that the Ereoutive should Have the power,
directly or through the Legislature, to set up, to serve its own
interests, special Court* for specific cases or for oases of a parti-
cular nature, or to impose arbitrary restrictions upon their
right of unfettered administration of justice. Many a bad
example of the objectionable manner in whioh such power has
been exercised is before us. Therefore this method of appoint-
ment of tribunals should be constitutionally stopped and all
sorts of suits should be referred to the duly established courts
of justice in the country.

Chapter I— SUPREME COURT

Section 1S2

The Supreme Court may, in its discretion, grant special leave
to appeal from any judgemerU, decree, final order or sentence in
any cause or matter passed or made by any court or tribunal in the
territory of Pakistan ; provided that it should not be open to the

Supreme Court to grant special leave to appeal against any sentence
or order passsd by any court or tribunal constituted by or under
any law relating to the Armed Forces.

m

This section deprives the Supreme Court of the power to
grant leave to appeal against the decision of any court or tribu-
nal constituted by or under any 'law relating to- the Armed
.Forces. In our opinion, this. restriction is against the dictates

356

The Islamic Law and Constitution

of justice. If the Supremo Court is to be the final Court of
justice in our country, there ia absolutely no reason why any
body in the State, whether civilian or belonging to the Military
or any common citizen should be debarred from any access to
that court for seeking justice thereform. If a person is dissatis-
fied with the decision of Military Tribunal why, after all,
should he not have the right to appeal to the highest Court of
justice t Therefore the following portion of Section 182 shoald

"Provided that relating to the Armed Forces."

Section 186

Subject to the provisions made by the Federal Legislature the
Supreme Court should, as respects the whole territory of Pakistan,
*ave the power to make any order for the purpose of securing the
attendance of any person, the discovery or production of any docu-
ment of the investigation or punishment of any contempt of court.

This section provides for restricting, through legislation,
the authority of the Supreme Court to call for any person or
document for purposes of evidence. This dearly implies that if
the legislature enacts any law to stop the Court from oalling for
evidences or documents of a particular nature, the Supreme
Court would be unable to do so, howsoever necessary its exami-
nation may be for purposes of dispensation of justice. Aooord-
ing to Islam, the Court has the right to call for evidenoe whioh
ia necessary for the dispensation of justice and it is not per-
missible for anybody in possession of suoh evidence to conceal
it. Therefore, the following words occuring in this section should
be deleted :

"subject to the provisions made by the Federal Legislature."

"-Also, the following should be added at the end of the

'Provided that the Executive should have the right to request
the court to make proper arrangements to ensure the secrecy of an
evidence or document, the publicity whereof is, in the opinion of
Executive, prejudicial to the safety an! integrity of the State."

seetipn

'V lama' a Amendments

557

Chapter II-HIGH COURTS

Section 205, Clause (2)

Nothing in this paragraph should be construed as giving to a
High Court any jurisdiction to question any judgement of an in-
ferior court which is not otherwise subject to appeal or revision.

The section is intended to eurtial the jurisdiction of a
High Court to the effect that it should not question the judge-
ment of any subordinate court which is not otherwise subject
to appeal or revision. In our opinion, this limitation upon the
highest court of a Unit is detrimental to the proper fulfilment
of the demands of justice. A High Court should ha T o the fullest
power to take cognizance of, and remedy, and shortcoming in
the dispensation of justice that may at any time come to its
notice in respect of its subordinate courts. Therefore, this
clause should be deleted altogether.

Part XI

SERVICES AND PUBLIC SBBVICE COMMISSION
Chapter I-SERVICES UNDER THE FEDERATION

AND THE UNITS

Section 222, Clause (1)

No Bill or amendment to abolish or restrict the protection
afforded to certain servants of the State in Pakistan by Section 197
of the Code of Criminal Procedure, 1898, or by Sections 80 to 82 of
the Code of Civil Procedure, 1908, should be introduced or moved
in the Federal Legislature or the Legislature of a Unit without the

previous sanction of the Head of the State or the Head of the Unit,
as the case may be.

In our opinion, this clause ia extremely objectionable. If
the servants of the State of Pakistan are public servants and
not the servants of the Head of the State or of the Head of the
Units, there is no reason why the right of the representatives
of the people to move any bill or amendment to introduce any
change in respect of the rights, powers and privileges of such

363

The Islamic Law and Constitution

servants should be conditioned by previous sanction of the
Head of the State or of the Head of the Units.

As a matter of fact it is ignoble enough that so flagrantly
unjust a provision as is contained in Seotion 197 of the Crimi-
nal Procedure Code or in Sections 80 to 82 of the Civil Proce-
dure Code should be allowed to remain on the Statute Book of a
free Pakistan ; And it is even more ignoble that in order to
protect the B e Sections, the power of the legislators should be so
restricted that they may not even move, except with the pre-
nous permission of the Head of the State or the Units, a Bill
to amend or abolish any of these provisions.

■

Therefore this clause most be deleted.

Part XII

ELECTIONS

It is necessary that it should be provided by mrans of new
section in this chapter that :

(a) It should not be permissible for the Head of the State or
the Head of the Units ot Government officials to try to
influence public opinion for or against any party or per-
son in matters of election.

(b) It should not be permissible, in matters of election, for
the Prime Minister, the Chief Ministers, Ministers,
Ministers of State, Deputy Ministers and Parliamentary
Secretaries to use official resources or official pressure or
influence public opinion for or against any party or per-
son by means of official resources or official influence.

(c) Seats falling vacant in the Central or Unit Legislature
should necessarily be fllled through by-election within a
maximum period of 4 months from the date of their
falling vacant.

■

Section 234, Clause (2)

The & lection Commission should consist of the Chief Election
Commissioner and such number of other Election Commissioners, if
any, as the Head of the State may in his discretion from time to

' Vlama's Amendrrents 359

time fix and the appointment of the Chief Election Commissioner
and other Election Commissioner* should, subject to the provisions
of any hw made in that behalf by the Federal Legislature, be made
by the Bead of the State in his discretion.

This olause leaves the authority to appoint Election Com-
missioners to the discretion of the Head of the State just as in
the case of the Chief Election Commissioner, So far as the
appointment of the Chief Election Commissioner is concerned
there appears to be no alternative, but with a view to ensure
fairness and freedom in matters of eleotion it would be proper
to ensure that the entire Election Commission is not so consti-
tuted as to be protege of the Head of the State.

Therefore we propose that the portion Jand the appointment
...in his discretion," be substituted by the following :

"and the appointment of the Chief Election Commissioner
and other Election Commissioners should subject to the provisions
of any law made in that behalf by the Federal Legislature, be
made by the Head of State respectively in his discretion and on
the recommendation of Chief Election Commissioner."

With a view to ensuring fair and free eleotions it is also
necessary to add the following at the end of Clause (2) of Section
234:

"(1) The office of Chief Election Commissioner should be a
permanent one and he shoold be entrusted not only with the work
of general elections in the Centre and the Units bat also with by-
elections in respect of seats falling vacant from time to time. It
should also be his dnty always to maintain an up-to-date list of
voters."

"(2) The status of the Chief Election Commissioner should be
the same as that of a judge of the Supreme Court and he should be
subject to the same disabilities as have been laid down in Clauses
(2) and (3) of Section 227 in respect of the Chairman of the

Public Service Commission."

"(3) Only such person should be appointed as Chief Election
Commissioner as has worked *s a Judge of a High Court for a
mininimum period of three years."

360

The Islamic Law and Constitution

Section 239, Clause (2)

■

The Election Tribunal should be appointed by the Bead of
the State or the Bead of the Unit, as the case map be, in his die*

cretion.

»

This clause empowers the Head of the State and the Head
of the Units to appoint Election Tribunals in the Centre and
the Units respectively. As stated by ns in the context of
Section 23, this is detrimental to the free oondnot of elections
and therefore the existing Clause should be substituted by the
following :

"The power to appoint Election Tribunals for the Centre and
the Units should Test respectively in the Supreme Court or the
High Court concerned as the case may be."

SOHBDULS I
LIST I (FEDERAL)

The following additional Items should be included in List I :

(1) The detcrmin atloo, co-ordination and direction of the
educational policy in accord with the Directive Principles of State
Policy and the estabishment of academic and educational Institu-
tions.

(2) The protection of the basic ideology and mission of the
State In accordance with Directive Principles.

LIST II (FEDERAL)

Item No. 3

Preventive detention in the territory of Pakistan for reasons
connected with defence, external affairs or the security Pakistan,
persons subjected to preventive detention under the authority of the
federation.

■

LIST III (CONCTOMNT)

w

Item No. 3

Preventive intention for reasons connected wth the mmnten*

'TJlama'e Amendments

361

ante of public order \ or the maintenance of supplies and services
essential to the community ; persons subjected to such detention.

Item No. S as existing in these two Lists is highly objec-
tionable. The power of preventive detention as exercised up till
now has manifested itself in laws like the Safety Aot and other
Acts of similar nature which are not only repugnant to the
Shari'ah but are also against commonsense and the universal
concept of justice. Even those so eager to retain. these powers
have, during the days when they were powerless, been most
vociferous in their protest against the use of laws like Safety
Act. Therefore if the retention of Item No. 3 of Lists I and III of
this Schedule is at all considered necessary, the following must
be Incorporated somewhere In the hody of the Constitution.

"If any person Is detained for reasons mentioned in item No.
3, Lists I and III of Schedule I, he should he produced before a
court of law within 15 days of bis arrest and given full opportunity
of defence and it should be the authority of tbe court alone to
determine the period for which he is to be held under preventive
detention."

SCHEDULE II

TABLE OF SEATS— HOUSE OF THE PEOPLE

In this schedule the figure 88 In the column 'seats reserved
for Muslims' against Punjab should be substituted by 87 and a
new column, 'seats reserved for Qadianis' should be added. In
this new column, figure *V should he inserted against Punjab.

The following should be added to the notes to this schedule :

For filling up the seats of Qadianis in Punjab, Qadianis
of other areas in Pakistan should also be entitled to vote and
should be eligible for election. 5 *

"(2) A Qadiani is a person who professes to believe in Mirza ,
Ghtum Ahmad of Q ad Ian as bis religious leader."

This is a very important amendment upon whieh we insist
with all the emphasis' at our command. It is in no manner

392 The Mamie Late and Constitution

proper for the constitution-maker, of onr country to be obli-
vious of the peculiar condition, and the social problems con-
fronting ns in this respect and to frame a constitute on the
basis of their personal view*. They mnst not be unaware of how
delicate and tense the .ituation ha. become in areas where a
considerable number of Qadianis are living along with Muslims.
They should not behave like our erstwhile ru'er. who did not
care to take cognizance of the Hindu-Muslim problem until the
four corners of undivided India had become blood-stained on
account of the Hindu-Muslim disturbances. For our con.titu-
tion-maker., belonging to this country as they do, :t would be
a tragic blunder that they should refuse to take notice , of a
problem which needs an urgent solution and wait until such
time as they find that it ha. grown into a wild fire. What has
added considerably to the delicacy of the problem is that while,
on the one hand, Qadiani. try to pose themselve. as and mix
with Muslims, on the other hand, they .tand not only aloof
from, but as rivals of Muslim, by virtue of their creed relig ions
practices and collective organisation and openly dub all the
Muslims as 'Kafir.'. The remedy even today lies in declaring
them a minority altogether separate from the Muslims as had
been propo.ed by the late 'Allama Iqbal twenty years back.

Similarly, the word, 'and Qadianis', should be added to the
end of Section 1 of the Report of Minorities Committee.

The Report on Fundamental Rights too, which was prcented
in 1950 and hastily adopted, must be amended to the effect that
the following portion occurring in Section 3 thereof is deleted I

■ except in case of an external or Internal threat to the
security of the State or other grave emergency."

The above proviao is intended to .uapend the right of
habeas corpus. Islamic Shari'ah does not allow, in any circum-
gtances whatsoever, that any Muslim or non- Muslim citizen
should be deprived of his right to move the highest court for
redress against unwarranted detention.

.. ... c.w*i«n«4. 7 and 9 of the 'Fuuda-

'V lama' a Amendments 383

Mental Principles of an Islamic State' (Appendix No. I) formu-
lated at Karachi in January, 1951, by accredited 'UlamS of
various sohools of thought are incorporated at some snitable
place io the Const Itation.

Annexure No. 1

In our opinion Section 4 should read as under :
"In the event of an objection being raised against the
interpretation and definition of the Qur'an and the Sunnah, the
matter should be referred to a Board of experts of Islamic Law
VUlama-e-Pakitan) and the Legislature ahould be bound by the
rerdict of this Board."

Similarly in Clauae (1) of Section 5 relating to the com-
position of the Board our amendments are as under :

"Pakistan Government should call for the name of the
Ulama of Pakistan from such religious organisations of 'Ulama
as have been working on Central and Provincial levels in a
regular manner since after the establishment of Pakistan and
whose organisations are intaot up till now and the Head of the
State should notify their names."

If by the term 'experts of Islamic Law' are to be meant
•Ulama-i-Din', then they should have this much of dignity and
power that their verdict is treated final and decisive. We do
not agree with the proposal in its present form that just for the
interpretation of the Qur'an and the Sunnah 'UlamS should be
associated with the Supreme Court as it is futile that they
should be associated with the judges of the Supreme Court only
for the interpretation of the Qur'an and the Sunnah. However,
if 'Ulama are appointed as Judges, i.e., Qadia to adjudicate
upon important religious matters whioh become an impending
necessity then it would be proper enough.

Signatories :—

Maulana Abul Hasanat Qadri.

Maulana Mohammad Abdul Hamid AI-Qadri Badauni.
Mufti Muhammad Sahib Dad,

Appendix III

*

Comments on the Draft
Constitution of 1956

AFTER the establishment of the second Constituent
Assembly in 1956 the task of Constitution-making
was restarted. Chaudhri Muhammad Ali presented
his Draft Constitution in the beginning of 1956,
Maulana Maudadi, in consultation with his associates
prepared detailed comments on the Draft and for-
mulated concrete amendments to it.

Before releasing these oomments for publication
Maulana Maududi tried to ascertain the viewpoint
of other important seotions of the oountry and was
satisBed that no material difference existed between
their viewpoint and that of his own as contained in
these comments. These oomments and amendments
are given in the following pages.— Editor.

m

COMMENTS ON THE DRAFT
CONSTITUTION OF 1956

Part II.— FUNDAMENTAL RIGHTS
Preventive Detention

In Part II the following things are highly objectionable :~

Under Article 7, Clause (4) of the Constitution Bill a party
in power can arm itself with such repressive laws under which
it may detain a person for any length of time without a trial
and without providing him any opportunity for defence. This
Article gives unqualified licence to the Executive to detain
anybody for three months without any let or hindrance what-
soever. And for a longer detention the only restriction im-
posed is that his ease will be put up (evidently ex patie) before
an Advisory Board. Now, if the Board, appointed for this
purpose by the Exeoutiye itself, opinea that there exists suffi-
cient cause for such detention, the Government may keep the
accused in jail for as long as it may desire. Moreover, this
Article authorises the making of laws under which people may
be kept under detention for an unlimited period of time even
without obtaining the opinion of an Advisory Board. We
may be excused for this if we say that this article is much
more oppressive than Article 22 of the Indian Constitution on
which it appears to be based. Under the corresponding Indian
Article, the Executive is at least bound to let the dettnue know
the grounds of his detention and to provide him with an
opportunity to clarify his position before an Advisory Board.
But here, in our Islamic Republic, which should have been
more liberal and just than a non-Islamic State, the detenut is
not being given even that much opportunity. We are of the
view that detention of a person without trial and without
providing him any, much less full, opportunity to defend him-
self is the very negation of justice. As a matter of fact
there should be no place for preventive detention in an Islamic

Oommtnia on the Draft Constitution of 1956 56?

Constitution. But if oar raters insist upon possessing

this power it must necessarily by subject to the following
conditions :—

t

(i) that the person arrested under any such law shall be
produced before a court of law within a period of 15
days and a definite charge brought against him ;

(ii) he shall be afforded full facilities of defence ; and
{Hi) only a court of law, if satisfied as to the guilt of the

accused, shall have the power to order detention and
decide the period for whioh he should be detained.
An Advisory Board, even if consisting of High Court
Judges, cannot and should not, be given the power to
express ez parte opinion against a detenue on the
basis of mere police reports and without hearing the
other side.
Restriction on Freedom

Artiolea 8, 9. 10 and 11 provide on the one hand, freedom
of speech, assembly, association, movement and right to hold
property, and on the other, power has been reserved for the
making of laws whioh may impose all sorts of restrictions on
these freedoms. In this connection too we may be excused
for the statement that these four Articles of our draft Con-
stitution are much iuferior as compared with the correspond-
ing Article 19 of the Indian Constitution. While the Consti-
tution of India allows the imposition of only "reasonable
restrictions" on these freedoms, our draft Constitution allows
full liberty for the imposition of "any restrictions" on them.
And this makes a world of difference in the two. It is evident
that if the word "reBtriotionB" is qualified by the word
"reasonable" the matter becomes justifiable and the courts of
the country can nullify or set aside any restrictions which are
not found to be reasonable. On the other hand if allowance
is made for the imposition of "any restrictions", as has been
proposed in the said Articles, the matter will fall outside the
jurisdiction of the courts and an unscrupulous party or group
in power can get unlimited licence to suppress its opponents

368 The Islamic Lau> and Constitution

by imposing "any restriction*" it likes on their Worn of
speech, expression, assembly, association, movement and right
to hold and dispose of property. It can even confiscate
their property and crush them in whatever manner it likes.

We, therefore, demand that in our Conetitution the 'words
"reasonable restrictions" should be eubstituted for 'any

rearictions" .

Part III-DIRECTIVE PRINCIPLE OF STATE POLICY

The Question of Interest

In Part III the following amendments should be made
Article 25 of the Constitution Bill is silent about the elimi-
nation of Riba (interest) while the corresponding Article of
Constitution prepared by the previous Constituent Assembly
provided for the "elimination of Riba as and when it may be
possible to do so". Considered from purely Islamio point of
'view, practising of Riba is much more heinous a crime than
gambling, use of liquors and prostitution. Islam views it
with so much abhorrenoe that its culprits have been given
ultimatum of war on behalf of God and His Prophet. In fact,
of no other sin suoh a serioua view has been taken by the
Book of God. What then is the reason for deliberately ex-
eluding it from the Directive Principles of State Policy 1

Separation of Judiciary and Executive

- Article 30 which provides for the separation of Judiciary
from the Executive, does not give any time limit for the imple-
mentation of this clause. The former Constituent Assembly
had fixed three years for this purpose. Why should not that
be adhered to 1

Part IV : Chapter 1 — THE FEDERAL GOVERNMENT
The following provisions of this part are objectionable in
our opinion and we regard them very dangerous for the coun-
try. We urge with all the emphasis at our command that
they should be properly amended :—

Comment* on the Draft Constitution of 1956 360

In clause (3) of Article 32 it i« provided that notwithstand-
ing the expiration of his term, the President shall continue to
hold office until his successor enters upon his ofiioe. No doubt
there is a similar provision in Artiole 66 of the Indian Consti-
tution also but that can be no argument for its incorporation
in our Constitutions. We must frame our Constitution accord-
ing to our own genius and the light of our own experience and
our own principles of political behaviour. It will he enor-
mously dangerous to oonstitutionalize the continuance in office
(even for one single day without eleotion) of a person who has
been empowered to dissolve all and each of the three Assem-
blies which jointly constitute the eleotoral college for his
election. The President must necessarily vaoate his office on
the expiry of his term. And in case the election for the Presi-
dentship is not oomplete by the end of his term, the vice-
President may temporarily take over his duties. And in order
te avoid the possibility of both the offioes falline; vaoant at the
aame time the term of office of the President and the vice-
President may differ. (For example, the first Vice-President
may remain in office for 2} years).

President's Unlimited Powers

Articles 35, 37 and 49 empower the President to dissolve
the National Assembly and dismiss the Prime Minister. This
it obviously the. way of dictatorship and not of democracy. As
provided in the Bill the President will not be directly elected
by the people, but indirectly by the National and Provincial
Assemblies. And to give him an unqualified and unlimited
power to dismiss the Cabinet, and dissolve the National
Assembly elected by the people (which is the electoral college
for his own eleotion), amounts to no less than arming him with
the power to instal himself as a dictator. Any scheme which
gives so much power in the hands of a single individual is
absolutely unjustifiable and cannot be tolerated even for a
■ingle moment much less keep the door open to this danger
for full six months- These provisions can at any time turn

370

The Islamic Law and Constitution

the country into a hot-bed of conspiracies and intrigues, and
an ambitious President with the support of a few ambitious
highups in the servioes of the country can at any time turn
the Cabinets and the Assemblies into mere playthings. The
experience that we have had in the recent past of the use of
this power should be sufficient to open our eyes* The pro-
visions made under Article 35 to impeach the President and
remove him from office cannot be relied upon as an effective
safeguard against this danger. On the contrary, they may
have a diametrically opposite effect and may incite a President
to dissolve the National Assembly simply to forestall a move
for his impeachment.

We, therefore, plead thai the President should not at aU be given
the power to dissolve the National Assembly or dismiss the Prime
Minister. As regards the Prime Minister it should on the contrary
be explicitly provided in Article 37 that he shall continue in office
so long as he enjoys the confidence of the majority of the members of
the National Assembly,

President s Assent

Article 66 as proposed in the Constitution Bill can ore-
ate ties in legislation. It should be so worded as to provide
that in case the President wants to withhold his assent to any
Bill; he should make a declaration to that effeot within 16 days
and should return the Bill to the Assembly with his message,
if any, within a period of 30 days, It should also be explicitly
provided that if the Bill is again passed by the Assembly with
or without an amendment the President shall give his assent
within a period of 16 days. Under the Article in its present
form a President may delay a Bill passed by the National
Assembly for any length of time,

Furthermore, it is nowhere provided that the President
will exeroise his powers other than his discretionary powers, on
the advice of his Council of Ministers. This is a grave omission
which should be rectified.

Comments on the Draft Constitution of 1956 371

Parfc V.— THE PROVINCES

Governor's Power*

In this part the following changes are necessary :—
Clause (6) of Article 69 empowers the Governor to remove
the Chief Minister of the Province from his office at pleasure.
And Clauses (1) and {2) of Article 81 authorise the Governor
to dissolve the Provincial Assembly in his discretion. The
bestowal of these autocratic powers on the Gorernor is as wrong
at the bestowal of these powers on the President under the
aforesaid Articles 36, 37 and 49. In fact suoh unlimited powers
of the Provincial Governors enhance the danger of dictatorship
in the country manifold. Under the proposed Constitution the
Governors are not to be elected by the people or even by
Assemblies. They will be appointed by the President presum-
ably in his discretion and hold office during his pleasure. It is
not mentioned anywhere in the Bill that the President shall
appoint or dismiss them on the advice of his Council of Minis-
ters. Thus the Governors will be completely in the hands of the
• President who will exeroise oomplete oontrol over them. Now
just imagine : the President is empowered to dissolve the
National Assembly, dismiss the Prime Minister at pleasure and
has the Provincial Governors with the authority to dismiss their
Chief Ministers and dissolve the Provincial Assemblies complex
tely under his thumb; furthermore, notwithstanding the expira-
tion of his term, he can legally continue in his office until a
successor who can be elected by the said Assemblies alone, is
there to enter upon his office. Does it require any argument to
make one understand that with the help of these provisions demo-
cracy can be put to an end by one stroke of pen, and a period of
six months which can legally intervene between the dissolution
of Assemblies and their re-election is sufficient for manoeuvring
the elections to the desired end 1 Will it be advisable to keep
the door open for such dangerous possibilities ? Therefore, here
too, we plead that the Governors should not have the powers to
dissolve the Provincial Assemblies or dismiss a (Jhizf Sfcskister*

372

The Islamic Law and Constitution

The Chief Ministers must continue in office as long as they
enjoy the confidence of the majority of their Assemblies.

Governor's Assent

* *

Article 88 does not make it binding on the Governor that in
ease they wish to withhold their assent to a Bill they should
make a declaration to that effect and return the Bill to the
Assemblies with their message within a a pacified period. More-
over, no time limit is fixed during which the Governor must
assent to a Bill which has been reconsidered and passed again by
the Assemblies with or without amendment. Therefore, here
too, amendments similar to those suggested under Article 56 should
be made in order to check undue delay in the passage of Bills.

Part IX.— THE JUDICIARY
Appeal Against Military Courts

Article 170 empowers the Supreme Court to grant special
leave to appeal from any judgment, decree, order or sentence of
any court or tribunal in Pakistan. But it expressly bars the
Supreme Court even from looking into the decisions and orders
Of the Military Courts and Tribunals. This is clearly contrary
to justice. If the Supreme Court is to be the final repository of
justice in the country, every aggrieved person whether a civilian
or a military man should have the right to appeal for redress to
the Supreme Court if he feels that any lower court (civil or
military) has failed to do him justice. So far as we are aware,
both in England and in America the highest courts of appeal
have this power and there is no earthly reason why the Supreme
Court of a oountry striving to become an Islamic Republic should
not be given this power. Therefore, the words "other than a Court
or Tribunal constituted by or under any law relating to the Armed
Forces" should be deleted from this Article.

Appointment of Judges

Article 174 lays down that the High Court Judges shall be
appointed by the President after consultation with the Chief
Justice of Pakistan and the Governor of the Province to which

Comments on the Draft Constitution of 195G 373

the appointment relates. We consider the intervention of the
Provincial Governor in the appointment of the Jud&ea of the
High Courts to bo very objectionable. If the Judiciary is to be
independent of the Executive, there is no reason why the heads
of the Provincial Governments should have anything to do with
the appointment of the High Court Judges who have to safe-
guard the rights of the people against the Provincial Executive
also. It is wrong in principle as well as derogatory to the dig-
nity of the High Court and may even exercise an unhealthy
influence over the Court's powers to dispense justice in a free

and unfettered manner. Therefore, the words -the Governor of
the Province to which the appointment relates" should be deleted
from Article 174 (1).

Part XI. — EMERGENCY PROVISIONS
In this part of the Bill the following Articles are objection-
able and should be properly amended :—

Suspension of Fundamental Rights

Article 200 empowers the President to suspend certain or
even all the fundamental rights as well as the right to move any
oourt including the Supreme Court for the enforcement of rights
oonferred by Part II of this Constitution. We are of the opinion
that this, in conjunction with certain other Articles of this Con-
stitution completes the scheme which makes the establishment of
dictatorship possible at any moment. Just imagine the state of
things : the President dissolves ths Central and the Provincial
Assemblies and dismisses the Ministers ; if the people try to pro-
test against this he proclaims an emergency and imposes "any
restrictions" on freedom of speech, expression, assembly, associa-
tion, procession, and puts behind the bar "the more dangerous
elements" including the deposed Ministers and influential mem-
bers of the Assemblies ; bans the parties, if any, in the country
and confiscates all their property. And if the people try to knock
thedoor of judiciary for redress, the President under this Article
suspends even this right of the peoph and this power of the

374

The Islamic Law and Constitution

Courts including the Supreme Court. Perhaps only a miracle can
sate the country from dictatorship under these circumstances.

Have the Hon'ble Member* of the Constituent Assembly
presumed that angels alone will be elected to the Presidentship
of the country and that none throughout the country excepting
the President— not even the Central Ministers, nor any of the
300 members of the National Assembly, nor the Judges of the
Supreme Court— can be trusted in times of emergency t If the
Hon'ble Members of the Constituent Assembly really hold this
opinion about themselves and their nation what is the necessity
of staging this show of democracy ? The best thing in this case
would be to just elect some angel as President and entrust to
him with full confidence all -the judicial, exeoutive and legisla-
tive powers for life and then beseech him to nominate another
angel to succeed him after his death.

We are fully alive to the need of setting some sort of rest*
rictions on the fundamental rights and of the necessity of em-
powering the Executive, in times of emergency, with powers
wider than those enjoyed by it in pormal times, but no human
being should be given such absolute powers a little misuse
whereof may endanger the very freedom and liberty of the
entire nation.

Proclamation of Emergency

Under Clause (2) of Article 203 it has been provided that
the validity of any proclamation of emergency shall not be
questioned in any court. We are of the view that the jurisdic-
tion of the Supreme Court to see into the validity of this mat.
ter should not be barred. When the circumstances whidh can
justify the proclamation of an emergency have been described in
Article 199, there must necessarily be some court in the country
tehich should have the powers to judge whether these circumstances
did or did not in fact exist at the time of the proclamation. Further-
more, there should exist some remedy in the Constitution
against an unjust proclamation of emergency specially when the
National Assembly too is not in existence. Therefore, the rmrds

Commtnte on the Draft Constitution of 1956 375

"other than the Supreme Court" should be added at the end of
Clause (2) of Article 203.

Part XII. — GENERAL PROVISIONS

Islamic Provisions

Chapter I of this Part deals with the Islamic Provisions,
and Article 205 forms the only basis an which will rest the
possibility or otherwise of establishment of an Islamic Order in
the country. Therefore, this Article deserves our special atten-.
tion and it is our duty to carefully consider whether this
Article helps and if so, to what extent, the achievement of the
objective which 'prompted the demand for an Islamic
Constitution.

Clause (1) of this Article declares that 'no law shall be
enacted which is repugnant to the Injunctions of Islam as laid
down in the Holy Qur'an and the Sunnah and the existing lawB
shall bo brought into conformity with such ' Injunctions'. This
provision in itself is no doubt most satisfactory. But the
following Clause (2) lays down that effect shall be given to the
provisions of Clause (1) ONLY in the manner provided in Clause
(3). And Clause (3) is as under :—

"(3) Within one year of the Constitution Day, the Presi-
dent shall appoint a Commission :—

(a) to compile, in a suitable form, for the guidance of the
National Assembly and Provincial Assemblies suoh
Injunctions of Islam as can be given legislative effeot,
and

(6) to make recommendations :—

(*) as to the steps and stages by which the Injunc-
tions of Islam should be given effect ; and
(it) as to the bringing of the existing laws into confor-
mity with the said Injunctions.
The Commission shall submit its final report within 5 years
of its appointment, or may submit any interim report earlier.

378 The Islamic Law and Constitution

The report, whether interim or final, shall be laid before the
National Assembly within six months of its receipt, and the

Assembly- after considering the report shall enact laws in res-
pect thereof,*'

When we ponder over the procedure enumerated in Clause
(3) of this Article we feel that this Clause takes away almost
all that was provided for in Clause (1).

In this scheme the following four drawbacks are quite
evident : —

Firstly, even after the Constitution Day for at least
seven years there will be 'full liberty* for the making of
laws repugnant to the Holy Qur'an and the Sunnah and
Clause (1) of this Article with all its comprehensiveness
will not be able to affect such legislation in the oountry in
. anyway.

Secondly, even after the lapse of this period of seven
years it will not be open to anybody to ohallenge any law
in any oourt on the ground of its repugnancy to the Qur'an
and the Sunnah, because the word "ONLY" in Clause (2)
prohibits that also.

• Thirdly, the Injunctions of the Qur'an and the Sunnah
once compiled by the Commission appointed by the Presi-
dent, will presumably serve as the sole source of Islamic Law
and it will not be open to argue against any law from out-
side it even on the basis of the Holy Qur'an and the
Sunnah, as the word "ONLY" appearing in Clause (2) will
preclude that also.

Fourthly, it is true that after six and a half years the
report of the Commission shall be laid before the National
Assembly, but it will still depend on the sweet will of th,at
Assembly as to what extent it should take cognizance of
that report in enacting laws, and how long it should take
in bringing the existing laws into conformity with the said
'njunctiona.

Comments on the Draft Constitution of 1956 377

These are the reasons which compel us to submit that the
proposed Article in its present form instead of meeting the de-
mand of the people for an Islamic Constitution practically
amounts to an attempt to hoodwink or at least delay it for an
unknown period. We do not at all allege that this is the result
of any such deliberate attempt. On the other hand we are
eonadent that the framers of this Bill had no such intention.
Therefore, we hope that they will welcome suggestions to make
this Article moie effective and practicable for securing the
desired end. It is with this and in view that we suggest the
following form for this Article :—

"Article 206. (1) No law shall be enacted which is
repugnant to the injunctions, directives and the basic teach-
ings of the Holly Qur'an and the Sunnah (hereinafter
referred to as the Injunctions of Islam) and if any objec-
tion is raised in any legislature that a Bill or any part of
it is repugnant to the Islamic Injunctions, it shall be
decided upon by the majority of the Muslim members of
that Assembly.

(2) In the case of Money Bills effeot shall be given to the
provisions of Clause (I) of this Article in the manner
prescribed in Clause (4) below.

(3) The existing laws shall be brought in conformity with
the Islamic Injunctions, in the manner prescribedr in
Clause (4) below.

(4) Within a year of the Constitution Day the President
shall appoint a Commission consisting of equal number
of experts of Islamic law and experts of modern law
and administration to : —

(a) compile in a suitable form an authentic code of
Islamic Injunctions for the guidance of the Nation-
al Assemblies, and

{b) make recommendations :

(i) as to the steps and stages by which Clause (1)
of this Article may be applied to the Money

378

The Islamic Law and Constitution

Bills, and

(n') as to what improvements are desirable in the
existing laws from the Islamic point of view
and the steps and stages by which they should
be brought in oonformity with the Islamic
Injunctions within a maximum period of ten
years.

This Commission shall present a report each year, and
will complete its work within five years of its appointment.
The annual reports of the Commission shall be presentod
before the National Assembly within six months of their
receipt and the Assembly, after studying them, shall enact
suoh laws as may be necessary under Clauses (2) and (3).
The Clause (4) of the existing Article 205 may be numbered
as Clause (5) and the last explanatory note retained as
suoh.

Oar above-mentioned proposal, on the one hand, solves all
those difficulties for the solution whereof authors of the draft
Constitution have worded Article 205 in its present form and,
on the other hand, it does away with all the drawbacks that we
have pointed out above. Now the only question that remains
to be solvel is as to who should act as a final authority to
decide whether a law is or is not in oonformity with Islam ; the
Supreme Court or the Legislature itself T We are of the view
that the best solution is the same which was unanimously propos-
ed by the Conference of 33 ' Ulama in 1953, i.e., like all other
constitutional disputes, the dispute as to whether a law is or is
not in conformity with the Islamic injunctions should be
decided by the Supreme Court and for the first 10 or 15 years
five 'Ulama should be appoited to help the Supreme Court in
deciding such disputes. Anyhow, if the members of the Consti-
tuent Assembly are not at all prepared to accept this proposal
then [Ac only acceptable solution is to leave it to the decision
of the majority of the total number of Muslim members of the
Legislature

Comments on the Draft Constitution of 1956 379

PART XII: CHAPTER V— MISCELLANEOUS

The following Articles too, are objectionable and should be
suitably amended : —

Martial Law

Article 2U will, for the first time in our constitutional his-
tory, confer constitutional basis for the imposition of Martial
Law in the country. Even in the British days the Constitution
was silent in this respect. A provision in the Constitution for
the imposition of Martial Law is not objectionable in itself,
what is being objeoted to is the way it is being provided for.
On the one hand the Article is silent as to the oiroumstances in
which Martial Law may be imposed, and does not impose any
restrictions on its nature, extent or duration, and on the other,
it empowers the parliament without any restriction not only to
indemnify any person in respect of any act done during Martial
Law but also to validate all sentences passed, punishments
inflicted, forfeitures ordered or other acts done by the Martial
Law authorities. The fact becomes alt the more painful when we
observe that our constituion-makers do not seem prepared to allow
even as much latitude to their own naiion as its British conquerors
allowed it in the worst of times. Regulation 10 of 1804 which
the British Government promulgated at a time when it was at
war with the people of India, empowered the Government to
impose Martial Law only in the following two cases : —

{%) In case of war, or

(ft) open rebellion in the country.

And even under these circumstances it permitted the mili-
tary courts to try only those persons who were arrested while
taking part in an armed revolt against the Government or were
caught ' openly helping the enemy. With the exception of these
two types of people, with respect to all others, howsoever
seriously involved, Lord Wellesley issued clear instructions that
the military officials could only arrest and detain them for
delivery to the civjl authorities for trial. Moreover, Indemnity

380

The Islamic Law and Constitution

Acts passed by the British Government always indemnified only
those acts of the authorities which might hare been performed
in good faith. But our Constitution Bill neither prescribes any
conditions for the imposition of Martial Lav, nor places any
limit on the powers of the Military Courts, nor qualifies the acts
to be indemnified with the epithet of " done in good faith."

The Hon'ble Constilution*makers should not forget that they
are making a Constitution not only for their country and nation
but aho for themselves and their coming generations. We, there-
fore, request them to amend this Article in the light of the
following suggestions : —

(1) Only those acts should be allowed to be identi-
fied which may have been performed in good faith and were
necessary for the restoration of law and order.

(2) There should either be no provision for validation
of sentences, punishments and confiscations inflicted or
ordered by the Martial Law authorities or a right of appeal
against them in the High Court or Supreme Court must be
granted ; and

(3) At the end of this Article, the following clauses
should be inserted : —

(a) Martial Law can be imposed through a proclama-
tion by the President :

{•) in case of open rebellion in the country and
when the civil authorities have failed to restore
order or,

(it) in times of war for purposes of defence.

(b) Martial Law shall remain in force only bo long as
the civil authorities are not able to take over the
administration.

(c) The Martial Law authorities shall do no more than
the restoration of law and order,

(d) The Martial Law Courts shall have no jurisdiction
over civilian oitizeus unless arrested in an armed

Commenta on the Draft Constitution of 1956

381

revolt or found actually helping the enemy.

(*) Martial Law regulation or orders shall not apply
to aots done before the promulgation of Martial
Law.

WITHOUT THESE AMENDMENTS THIS ARTICLE
CANNOT BE ACCEPTABLE.

Artiol* 216 gives absolute powera to the President to par-
don or commute sentences passed by any court or authority.
This power of the President, too should be exercisable within
the limits prescribed by the Holy Qur'an and the Sunnah. This
was what the former Constituted Assembly had provided in its
draft and there is no reason why the present Assembly should
depart from that.

Part XII : CHAPTER 6— INTERPRETATION .

■

Oath

Article 224 lays down that where under the Constitution* a
person is required to take or subscribe an oath, he may make
and subscribe an affirmation. This Article should apply to the
non-Muslims only. A Muslim must take the prescribed oath.
Therefore, the words "other than a Muslim 1 * should be inserted
after the word "person" in this Article .

SECOND SCHEDULE

.The forms of oath proposed herein require revision. Many
important components of the oaths prescribed by the previous
Constituent Assembly have been omitted from the forms pre-
scribed by this Schedule. There is no reason why the Muslim
signatories should avoid the taking of these oaths. We, there-
fore, demand that the forms of Oaths prescribed in this
schedule be brought in conformity with those proposed by the
former Constituent Assembly.

382 TKt Islamic Law and Constitution

FOURTH SCHEDULE : PART II
Disqualifications

All persons sentenced to two or more years of imprison-
ment have been disqualified for being elected as member* of the

National and Provincial Assemblies. This disqualification should
be limited to only those persons who may have been imprisoned for
committing any offence 41 involving moral turpitude," The former
CooBtiutent Assembly had accepted this proposal in the pro-
posed draft.

SOME ADDITIONS

Pacts and Agreements

It should be expressly provided in the Constitution .that
Pacts and Agreements with foreign countries shall be placed
before the Parliament for approval and ratification.

General Elections

The Constitution should also lay down the time-limit
within which after the Constitution Day, general elections shall
be held throughout the country.

Appendix IV

Comments on
1956 Constitution

The Second Constituent Assembly of Pakistan
passed 'The Constitution of the Islamic Republic of
Pakistan' on 29th Febrnary, 1956 and the Governor-
General gave his assent to it on 2nd March; 1950,
This Constitution was enforced from 23rd March,
1956. Maulana Maududi's views on it can be known
from the Resolution moved by him in and adopted
by the Majlis-e-Shura (Central Exeoutive Council)
of ex-Jamaat-e-Islami, Pakistan on 18th March
1956 in Lahore Because of its historic value thia
Resolution (whioh was released to the Press in the
form of a statement of the said Majh ■■■) i« reproduced
hera in this Appennix, — R&ttor*

COMMENTS ON 1956 CONSTITUTION

■

LAHORE, March 18 : Majlia-e-Shura, Jamaat-e-Islami,
Pakistan, has issued the following Press Statement on Pakistan's

Constitution :

MAJLIS-E-SHURA, Jamaate-Islami, Pakistan, offers
thanks to Almighty God that after a long struggle stretching
over eight years and passing through various dangerous stages
the question of the future Constitution of the country has f at
long last, been settled in a manner which, to a great extent,
the aspirations of Islam-loving democratic people. In spite of
all its drawbacks the Constitution of the Islamic Republic of
Pakistan as passed by the Constituent Assembly on 29th
February and assented to by the Governor-General on
2nd March, 1956 is for several reasons acceptable and
satisfactory.

Firstly, with the coming in force of this Constitution the
period of our slavery in this country finally comes to an end.
The sovereignty that was transferred to us in August 1947 from
the British Parliament, did not directly devolve on the people
of Pakistan. Instead of that it was entrusted to the Constituent
Assembly and it was left to that body to decide in what manner
or shape it should be transferred to the people. For a number
of years the Constituent Assembly felt reluotant to relinquish
this sacred trust to its rightful recipients. When at last under
public pressure it was just on the verge of transferring the trust
to the real beneficiaries, the then Governor-General dissolved
it in October, 1954 and, as a result of a judgment of the
Federal Court, the sovereign power of the country was declared
to vest not in the Constituent Assembly which could be said to
possess some representative character, but in the Governor-
General who represented nobody and was himself appointed by
the British Crown. Thus our Freedom was, as a matter of
fact, mortgaged, first, with the Constitm Assembly and

Comment* of the DraJ Constitution of 1966 385

thereafter with the Governor-General. Now the assent of the
Governor -General to the Constitution of Pakistan is tanta-
mount to an act of redeeming the mortgaged freedom of the
country after which we are, now for the first time, to really
have our share of the blessings of freedom . Consequently ,
should such an opportunity present itself even with some dis-
count, no well-wisher of this country will refuse to avail of it.

Secondly, the Preamble of the Constitution, its Directive .
Principles and Article 198 of the Constitution have finally and
unequivocally settled the 8-year old struggle between the
Jslamio and anti -Islamic trends in favour of the former. And
the fact that the future system of life in 'this country has to be
shaped on the basis of Islam and that the Qur'an and the
Sunnah shall ever reign supreme here has been so firmly em-
bodied in the Constitution of the oountry that no worldly

power shall, Insha Allah, be able to obliterate it. This in
itself is a great victory for which all Ahle-Iman (believers i.e.,
Muslims) should feel felicitated and thank Almighty God.
After nearly 200 years of domination of 'Kufr' it ie for the
first time that the sovereignty of Almighty God and the legal
supremacy of High faith (Din) has been acknowledged in our
Constitution. Again, it is for the first time that this epoch-
making decision has been incorporated in the Constitution of
tbe State that un-Islamio laws will not be valid, that all laws of
the British period will be brought in conformity with the Qur'an
and the Sunnah, and that no legislation whioh is repugnant to

the Holy Qur'an and the Sunnah shall be enacted in future. Mot
only that, it is for the first time after the Khilafat-e-Rashida£
that the governmental authority of an Islamic State has passed a
into the Hands of the common people instead of royal families.
This great revolution has indeed changed the course of history
and has given birth to new era which, if we desire (and God
helps us) can, with the grace of God, be turned into a second
golden age in the history of Islam. No doubt, the method of
implementing these provisions is not commensurate with their
grandeur ; and it is a pity that the methods of making these

386

The Islamic Law and Cons&ution

provisions effective as suggested by the Islamic parties have
not been accepted. Furthermore, the methods proposed in the
new Constitution is such as will be effeotive only if rifeht sort
of persons are elected by the electorate. Anyhow, if the
Islamic ideology is supported by an awakened and strong
public opinion, and the people continue to return such re-
presentatives in the coming elections as are capable of and
determined to work for Islam, then even this method can be
utilised to achieve such results as would transform Pakistan
into an ideal Islamic State in a few years.

Thirdly, from a democratic point of view too the Constitu-
tion is to a large extent satisfactory. The balance between the
Executive* the Legislature and the Judiciary has been almost
equitably and fairly maintained ; in the form of an Election
Commission, a very good provision has been made for holding
elections ; proper checks have been provided to prevent the
political parties from unduly interfering with and influencing
the Services ; and not much niggardliness has been shown in
conceding the fundamental rights to the people and guarantee-
ing their enforcement. Although along with these bright
spots the Constitution has a good many objectionable features
also— some of which are very dangerous indeed— for instance*
preventive detention, complete suspension of fundamental rights
during an emergency, unlimited powers of promulgating
Martial Law and enacing indemnity laws disqualifying a person
sentenced to imprisonment of two years or more from being
elected to the Assembly irrespective of whether he may have
been sentenced for committing an offence involving moral
turpitude or on political charges, and absolute powers of the
President to grant pardon and reprieve which may even
transgress the limits prescribed by God, yet all these and
other delects (not enumerated here) cannot constitute a suffi-
cient or valid ground for rejecting the Constitution especially
as the methods provided for amending the Constitution is
quite easy. It is open to the people atrany time in future to
elect such representatives as are prepared to run the admiuis-

Comments of the Draft Co dilution of 1956 387

tration of the country without the i Jp of repressive laws and

undue authority and thereby remove these black spots of the
Constitution ,

Fourthly, this Constitution has to a very great extent
satisfactorily settled the controversy over the distribution of
powers between the Centre and the Provinces which had been
raging for a long time and which had particularly created dan-
gerous conditions in East Pakistan. The distribution of powers
has now been effected in such a balanced manner that, while
the Provinces have been given practically all the necessary
powers, the Centre has not been allowed to be weakened so as
to endanger the solidarity of the country in any manner. All
the same, if experience shows any defects in this distribution
of powers and the practical requirements of any part of the
country call for a change therein such a ohange will not
be very difficult due to the flexibility of the Constitution.
Hence no present or future defect of the Constitution can be
reasonably made a ground for rejecting the whole of the
Constitution.

It is for these reasons that Majlis-e-Shura of Jamaat-e-
Islami, Pakistan accepts this Constitution and would also
advise all well-wishers of the country to accept it in all sin-
cerity. At the same time the Majlis appeals to all those
people who are anxious to see Pakistan develop into a full-
fledged Mamie State, that, in order to ensure the successful
working of this Constitution and to make it an effective
means for the achievement of the real object in view, namely
the establishment of the Islamic Order, they should continue
working with the same unanimity of opinion and unity of
action which has brought this success to them in their struggle'
for the framing of an Islamic Constitution.

The Constitution would produce no useful results unless
and until our entire social set-up, with all its various com-
ponents, is morally prepared to see that the Constitution does
work as a successful Islamic Constitution and unless our
masses develop the ability to elect the right type of persons

388

The Islamic Late and Constitution

translating it into action. This calls for concerted effort* on
the part of all sincere Muslims. Mutual recriminations
amobgst various groups over petty trifles would prove dis-
astrous Unity and solidarity are all the more neoessary now
especially as an all-important constitutional issue, the nature
of electorates, still remains undecided. And this question
has not only been left undecided to be tackled by the National
Assembly only, but it has been made incumbent upon the
Assembly to ascertain and consider the views of the Pro-
vincial Assemblies also. In this disconcerting state of affairs
those who stand for an Islamic Constitution cannot in any way
afford to relax their efforts at this stage. We should all stand
as one man and work hard to see that the issue is conclusively
decided in favour of separate electorate and the designs of
introducing the system of joint electorate are buried deep
once for all. This would be impossible of achievement unless
public opinion is so thoroughly mobilized against joint
electorate in Pakistan as well as in West Pakistan that none
but those prepared to commit political suicide should dare to
vote for it.

Appendix V

White Paper on the
Problem of Electorates

THE Jamaat-e-Islami, Pakistan issued a "White
Paper on the Problem of Electorates" in January
1958. Ai this document has becerae a part and
parcel of the political history of Pakistan and as it
presents the electorate problem in its manifold aspects
we deem it advisable to include it as an Appendix in

the present volume. — Editor.

WHITE PAPER ON THE P]

ELECTORATES

PoJiLi?" ° ountry " faced with a oriticaI Bituatio ° tod^y.

being taken in utter ofT™ T

unholy alhances. Economic situation f. worsening day.
^ scene is becoming more and more confused. So/ai
cond^ons are deteriorating like 8Ily thing. Disruption within
and disrepute abroad, this is the situation today.

The confidence of the people ha. been shaken to its very

Zand ' "'7 " ^ * ^ ******* ^

SIT f 8 ^ bul c ^aoUs Have leen

their re Permanentll> *^ * right of choosing .

t*«r real representative in an honeet, clear and fair way by

c a mping upon them a system of e,ectorate which so oonU
tfato that mosUy the intriguers and the vested interest Z
emerge successful out of it. Thia h the mightie8t ^ ^

•tote, for all t.mes to come. „ ^ , Ae fa

time has come when the facade of this ugly conspiracy should be
torn asunder aud a united effort be made to protect the con.
Btnut.cn and lay the foundations of real democracy in the
country.

2. Muslim India has alwajs stood for the ideal of its sepa.
ratenat-onhood. In ttam there is noplace for the narrow
chanvnustio idea of territorial nationalism. Muslims

White Paper on the Problem of Electorates 391

■ ■

their separate entity and in 1906 demanded separate elector-
ates. The demand was accepted fin 1909) and despite all the
machinations and manoeuvrings of the Hindus, the Muslims
succeeded safegarding this system. Mr, Jinnah's famous
Fourteen Points included the demand that "the representation
should continue to be by means of separate electroates. as at
present^ and a further elucidation of the point was made in
the fifteenth point added later on, which unequivocally declar-
ed that the system of "Separate Electorate is inevitable".
This demand was not based merely on any time-bound regard
for political protection but was definitely an outcome of the
realisation of the separate nationhood of Muslims. It is clearly
borne out in what Quaid-e-Azam said in November, 1915 :

'•We (the Hindus and Muslims) are different in every-
thing. We differ in our religion, our civilisation and
culture, our history, language, our architecture, music,
jurisprudence and our society, our dress— in every way we
are different— FFe cannot get together in the ballot box"*
That is why after partition the issue naturally remained
settled. People never had even the slightest idea of effecting

any change in the system. Elections in the Punjab, N.W.F.P,,

Sind and East Pakistan were bold on this basis. The Liaquat
Ali Khan Report (1950) presented this principle. The Nazim-
uddin Report (1952) was based on it. Muhammad Ali Bogra
Report (1954) envisaged this very principle, In the East
Pakistan elections, held in March 1954, no reference was made
to it and the twenty-two points of the United Front do not
mention it directly or Indirectly. The prinoiple of parity was
adopted during this period but no mention of any change in
the prinoiple of electorate was made in that either. After the
dissolution of the first Constituent Assembly Mr. Suhrawardy
joined the cabinet and got the principle of parity accepted by
his East wing colleagues, but not the slightest reference was
made to the reopening of the issue. The formation of one
Unit was effected in 1055 and here too no reference was made
to the issue of electorates. Even when the Awami League

392 The Islamic Law and Constitution

opposed the One Unit bill, no mention was made of this issue.
The only thing with which the One Unit bill was linked, was
the principle of parity. So the history shows, that the issue of
electorates was never a dispntable issue in the eyes of the
Muslims of Pakistan and even in their political circles it never
arose for reconsideration. Nor was this issue linked up with
any other question, be that of Parity or One Unit or any
thing else,

3. It may be asked that if this is so then how and when
did this question arise and assume so muoh importance *

The fact is that the Hindus have been trying to impose
joint electorates over the Muslims of the sub-continent from the
very outset. Like us, for them too the problem of electorates
is an ideological issue. They want to erect the polity on the
foundations of secularism and territorial nationalism, and joint
electorate is an important and effeotive devioe in their scheme
of things. Not only that ; the system of electorate is of sig*
nifioant imortance in a modern state. It acts as the very
foundation upon which the political institutions are baaed. It
is an integral part of the political structure and cannot be
detached from it, because it is the ladder by means of which
the political leadership emerges in a modern polity and con-
trols all the organs of the state. Hindus realised this signi-
ficance of the electorates and fought tooth and nail against
the Muslims' demand for separate electorates, so much so
that when the Muslims succeeded in getting this demand
accepted in 1909, they devoted all their energies to undo it.
And' when they formulated their draft constitution of the
country in the form of the 'Nehru Report', they incorporated
therein the principle of joint electorates and were not prepared

to effect any change in that.

Despite the partition of the country and the vindication
of the Muslim view- point they refused to reconcile themselves
to the basic approach of the Muslims of Pakistan. This was
fully realised by QuaJd-e-Azam himself and after carefully
studying the trends that set in, he declared that ;

Paper on the Problem of Electorates

393

"Before we oould asanme the reins of office, non-Mus-
lima started pulling out of Pakistan, which subsequent
events have proved, was part of a well-organised plan to
cripple Pakistan". (October 1947).

'•We have been the victims of a deeply laid and well-
planned conspiracy executed with utter disregard of the
elementary principles of honesty, chivalry and honour .

(October 1947). . . . .

"Minority Communities must not by mere words but

by actions show this that they are truly loyal and they
must make majority community feel that they are true
citizens of Pakistan". (June 1948).

"It is now perfectly obvious that, having failed to
prevent Muslims from achieving Pakistan, these agencies are
i>» trying to disrupt Pakistan from within by insidious
propagaJa aimed at setting brother Muslim against
brother Muslims". (March, 1948).

Thus, instead of reconciling themselves to the basic ideo-
logy on which Pakistan is based, they began to assail it from
within. They tried to raise the slogan of joint electorates on
the first opportunity that they got. In 1951 when an amend,
ment to the fifth and sixth schedule of the Government of
India Act, 1935, was being discussed in the Constituent
Assembly and the principle of adult suffrage was being adopt-
ed Hindu leaders girded up their loins and Mr. Raj Kumar
Chakravarty, without paying any heed to the relevancy of the

• *

issue, deolared : . .

"Sir, we all want-especially the nunonties-joint

electorates, nor only in Sind but also in East Bengal But

I find that an important omission The more of the Bui

should also have moved for the system of joint electorates

without reservation I want to raiae here the question

that in Bengal ice are very keen about the system of joint
electorates without reservation" A # — .

They failed to convert anybody to their yiew- point. But
1. Oonstitwmt A^embly of PatisU,* VeboU*, Volume IX, No. 2, P . 31 .

394 The Islamic Law and Constitution

despite the failure they continued their campaign singlohandod.
Then came that unfortunate period of our history when political
wrangling* and power-politics divided the Muslims into half-a-
dozen groups and the balance of power went into the hands of
the Hindus. Being in possession of the balance of power they
tried to oull out a heavy price of their support. In August 1955
Central as well as East Pakistan Ministries were formed with
the support of the Hindus. And the Muslim parties which
joined these Ministries were prepared to barter away even the
ideology of Pakistan for the votes of the Hindus I Mr. B.K.
; Das, leader of the Congress Party, while giving reasons of
their participation in Government said on September 6, 1966 :
"The Pakistan National Congress bas throughout been
fighting for the acceptance of the principle of Joint Electro-
rates and a constitution for the country fully democratic in

outlook At present, however, there are signs disoernible

that the reasonableness of our demand from the standpoint
of the larger interests of the state stands recognised by the
parties as they have recently emerged in both the wings,,.
We were eager to take advantage of the changed circumstances
and decided to work in co-operation with all sections and
communities". {Dawn, Sept. 6, 1955).
That was how and when the electorate issue was raised.
And it was done at the instance of Hindus and Hindus alone.
The "changed circumstances' 1 were more congenial to them and
they "took advantage" of this situation. Now they had with
them from amongst the Muslims themselves certain advocates
of their viewpoint.

4. On the very first signs of this deal Jamaat-e-Islami
raised its voice against it. Maulana Maududi warned against
this secret compromise and asked the people to defeat this
maohination of the saborteurs. On 2nd September 1955 he
issued a statement against this move and condemned it in un-
equivocal terms. In November, 1955, on the occasion of the
Aunual Conference of Jamaat-e-lslami, Maulana Maududi again
warned against the dangers of this move. The public opinion

White Paper on the Problem of Electorates

396

was so vehement against thin move that the framers of the
Constitution had to defer final decision on this issue, A pro-
vision was made in the Constitution that the system of electro-
rate will be decided by National Assemblies. The West Pakistan
Assemblo voted in favour of separate electorates and the vote
was almost unanimous, only 10 persons dissenting in a House
of 310. The East Pakistan Assembly is alleged to have decided
' in favour of joint electorates. Bat this decision (if at all
taken) was made with a very small margin and that too with
support of about 60 Hindue votes, against the wishes of a large
majority of the Muslims members of the Assembly, and worse
of all, in a House which was in a state of utter chaos beoause
of coercion, intimidation, and even manual interference from
the galleries filled with Hindus and goondas of the ruling
clique.

Then a week later when the matter came before the
National Assembly it evolved a most dangerous and nonsen*
Bible formula. It adopted Joint Electorates for East Pakistan
and Separate Electorates for West Pakistan. This was done
at a time when practically the whole of the country was de-
manding separate electorates. Section 144 was damped on
Dacca to stop the people from voicing their views and goondas
unleashed upon them to give them some lessons in law and
order. The Republican Party whioh only a couple of day*
earlier had most unequivocally assured to stand by its own and
the nation's unanimous decision in favour of separate elector-
ates, overnight took a somersault under pressure from the
President and the West Pakistan Governor who had flown to
Dacca. It colluded with people bent upon undoing Pakistan
and its basic ideology simply to retain power and voted for the
said foolish formula. Everybody knows how even the open
enemies of Pakistan laughed at this and questioned the justi-
fication for Pakistan thereafter. And finally in April 1957 the
Republican- Aw ami Ministry, disregarding all the public
demands, amended the electorate formula and imposed joint
electorates over the entire oountry. All this was done to

396 The Islamic Law and Constitution

appease the Hindu members and thereby keep themselves in
power. This was the shameful way— out and oat despotic-- in
which the system of joint electorate was thrust upon the
country. Last of all, in October 1957 when after the fall of
the Suhrawardy Ministry, the hope of the re-adoption of
Beparate electorates dawned, all the vested interests again
conspired lo sabotage the move, and once again with the
treachery of Republican Party, this constructive attempt was
defeated, and the system of joint electorate remained tied to
our necks.

5. People have condemned this tyrannical and Hindu-
inspired move of the power-thirsty politicians. They have criti-
cised it in unambiguous terms. They have agitated against it
in all the accepted democratic ways. They have used all
vehicles of democratic expression to voice their disapproval of
it. Their opposition to it hae been so thorough and so over-
whelming that the so-oalled Fact Finding Committee of the
Republican Party did not dare to publish its report. But, all
this has not been able to move the unscrupulous politicians
who rule the country through intrigues and alliance and pay
not the least heed to the will of the people.

6. The imposition of the joint electorates is the most
dangerous conspiracy that has been perpetrated upon the
people of Pakistan. This is generating very grave consequences
for Pakistan and is loaded with more explosive dangers for the
future. The fact is that even a oursory appraisal of these
dangers is sufficient to stagger a real patriot. The joint electro-
ate is not only a negation of the two-nation theory— the very
raisan d'etre of Pakistan— it is also a gross and flagrant vio-
lation of the principles of Islam, and is in clear conflict with
the tenets and the basic scheme of the Constitution of the
country. Nay, it is bound to endanger the very existence of
Pakistan.

These are the consequences which must flow from it :

(a) It will weaken the Islamic consciousness of the
Millat and will inject alien ideas into the minds

White Paper on the Problems of EUciorate$

of the coming generations. Weakening of the-
' Islamic feelings will automatically result m
' weakening of the bonds of integration of Pakistan.
Pakistan consists of so many otherwise hetero-
geneous elementa-which have been united into a
Irm unit only by Islam. Anything that weakens
this tie, is bound to act as a force of d.smte-
gration. This idea of joint electorates is based
on the theory of territorial nationalism and not

on Mam.

(M Joint electorate is. as a matter of fact, the first step
in the scheme of its promoters. They are fanning
the flames of Bengali nationalism. And they have

given more than sufficient indications that their
real aims are secularism and secession. The jubi-
lance which was demonstrated by the Hindu leaders
and the Hindu press of Bharat on the imposition of
joint electorates and the felicitation, which none
other than the Bharti Prime Minister expressed on
the formation of Noon Ministry are firm indicators
of the future. The joint electorate is the door
through which the demand for United Bengal
wants to enter. They have ereoted the door and
are now jealously guarding it. Money, influence,
pressure, everything is being lavishly used in keep-
Ing the door intact. This is the greatest crack
that has occurred in our defence wall-the next
step will be the demolition of this wall .
( C ) The reason why Hidus, Communists and the vested
interests are so eager to retain joint electorate,
becomes crystal-clear when,.one .tudies the influ-
enoe they are going to oommand over the election,
under., this system. Statistic .how that Hindus
and the Muslim politicians of their choioe will gain
oontrol over the political life of Bart Pakistan and,
through it, will become a decisive factor in the

The Islamic Law and Constitution

National Assembly. A careful study of the follow-
ing data shows that Hindus are not demanding
joint electorates out of any love for Pakistan, but
in order to enable themselves to wield real autho-
rity in the political life of the country. Their new
Btrategy is to prevail over Pakistan through this
subterfuge. And the Communists are working hand
in glove with them, for they also see into a sure
chance for infiltrating into the political life of
Pakistan.
The faots are as follows :

The East Pakistan Provincial Assembly will have 300
general and 10 women seats. An analysis of the position of
Hindus in different Constituencies shows that :

In fourteen constituencies Hindu votes are in majority and
here they are bound to get representatives of their own choice
elected. These constituencies are :

1. Khulna Sadar South East.

2. Khulna Sadar South.

3. Satkhira East.

4. Bagerhat South.

6. Dinajpur Sadar North.

6. Gopalganj South West.

7. Gopalganj East.

8. Piroojpur North West. .

9. Gopalganj West.

10. Thakurgaon Central.

11. Chittagong Hill Tracts North.

12. Chittagong Hill Tracts South.

13. Madaripur South West,

14. South Sylhet South West.

In thirty-five constituencies the non-Muslim population
varies from 36% to 49J9%. As such, they ( without the support
of any Muslim votes, ©an get their candidates elected because

(*) very few Muslim women vote whilo most of Hindu
,■ women cast their votes ;

White Paper on the Problem of Electorates 399
Hindu votes will be consolidated while Muslim votes
will not be so -,

all the Muslim voters do not use their votes
are politically much advaDoed, and

a disadvantage to the Muslim voters.
These constituencies are as follows :

Name of the Constituencies

1. Gopalganj North

2. Jeaaore Sadar South Bart

3. Bagerhat Central

4. Dinajpur Sador West

5. Habihganj North Weet

6. Bagerhat North

7. Khulna Sadar South West

8. Satkhira West

9. Satkhira Sadar North

10. Khulna Sadar North

11. Thakurgaon South

12. Bagerhat East

13. Bakerganj Sadar North West

14. Piroojpur North East

15. Narail South East

16. Chittagong Sadar Ceneral North East

17. Dacca Sadar Central South West

18. Satkhira North East

19. Sunamganj South West

20. Habibganj South

21. Habibganj South West

22. Munshiganj North West

23. Rangpur Sadar North

24. Ooalondo South

25. Netrokona North

20. Sunamganj North West

Percentage of
turn-Muslim
Population
49.19
47.5
49.0
49.0
38.0
45.0
45.5
44.5
41.0

47.0
42.3
41.0
47.0
40.0
40.3
42.0
40.5
43.0
48.0
38.9
37.3
39.0

37.5
37.06
38.0
36.0

* * *

* ■ ft

4 * *

400 The Islamic Law and Constitution

Percentage of

Name of the Constituencies non-Muslim

Population

27- Magurah North ... 40.0

28. Xarail Central ... 49.0

29. South Sylhet East ... 48.0

30. South Sylhet South ... 47.0

31. South Sylhet North East ... 40.6

32. South Sylhet North Weat ... 40.0

33. Khulna Sadar North East ... 40.0

34. Bakerganj Sadar West ... 39.0

35. Brahmanbaria East ... 36.3

i

In eighty-nine constituencies Hindus have a consolidated
vote of 20% to 35.45% and caloulationa show that they can win
the elections with the support of very few Muslim votes. In the
constituencies they are the deciding factor and need from .05 to
12.1% other votes to sweep the polls. These constituencies are
as follows ;

Percentage of

1

Name of the Constituencies

non-Muslim
Population

1.

2.

Netrokona South East

... 35.43
... 35 43

Nilphamari North

3.

Rajshahi Sadar West

... 35.37

4.

Feai North

... 35.37

5.

*

Piroojpur West '.

... 35.0

6.

Chittagong Sadar East

... 34.56

7.

Chittagong Sadar Central South East

... 34 56

8.

Bakerganj Sadar Central West

... 34.56

9;

Faridpur Sadar West

... 34.66

10.

Nilphamari West

... 34.0

11.

Brahmaubaria North

... 34.0

12.

Manikganj West

... 33.43

13.

Thakurgaon West

p»+ 33*33

14.

Habibganj North

... 33.0

16.

Magurah South

... 32.19

While Paper on the Problem of ZUetoraH*

401

Name of the Conetituenciea

■

16. Brahmanbaria South East

17. Kishorganj North Bast

18. Mymensingb Sadar North

19. Satkhira North West

20. Chittagong Sadar Central

21. Dinajpur Sadar Central
Dinajpur Sadar South
HabibganJ West

24. Sunamganj North

25. Dacca Sadar Went

28. Daeea Sadar Central North

27. Narayanganj West

28. Nongaon North

29. Nougaon Central

30. Netrokooa North East

31. Rangpur Sadar North East

32. NarailEast

33. Jhinaidah North

34. Kurigram North Wert

85. Chittagong Sadar Central South

36. Tangail 8outh East

37. Faridpur Sadar. North
Menikganj East
Kishorganj South East

40. Bogra North West

41. Chittagong Sadar North West

42. Daeea Sadar North West

43. NUphamari East

44. Hadaripur Sooth
46. Manikganj Central

46. Daooa Sadar South

47. Bunamganj South

48. Bagerhat Sonth East

Percentage of
non-Mualim
Population

32.11
31.84

31.84

31.04

31.01
30.06

30.06
30.06
29.95
29.0
29.0
.0

* * ■

4i ■ i

.0
29.0
29.0
28.93
28.3
27.76
27.64
27.54
27.54
27.29
27.29
27.29
27.17
27.16
27.16
26.67
26.0
28.0
26.0
26.0
25.2

TU Mmie Law and Constitution

P*ro*n$ag$of

. N<m* of tk* Oon*Uuencies noa-Jfwiw*

Population

49.

Jeasore Sadar Sooth

OK 9

... ZO.2

North Sylhet North Wart
Thaknrgaon North

... SO.*

Ol,

KO

...

52

Jhinaidah Central

... M^2

Natore North

... 2a«o«

54

Noagaon North West

... 2*.0Z

55

Brahmanbana Central Weat

... 3KI.O

56.

Goalondo North Went

... AO.V

Tangail Central

... Zo.O

58

Jeasore Sadar Central

4ft A

Brahmanbaria Central

051 1A
... Zd.iO

60.

North Sylhet North East

... ZJ.lD

61.

North Sylhet North

oa ia

62.

Brahmanbaria Wwt

... aa.7f

A3

Fandpnr Sadar North Bast

... 23.77

64.

Tangail South

OA no
... £&*iS

60.

Netrokona Bait

... 22. OU

66.

.narayanganj ootitn

99 KO.

■

67.

Ohittagong Sadar Central North Weat

... 22.66

68.

xippera oauar norm

jva An

■ • a

69.

jLangaii veuvr»i jsj&ic

22.23

70.

T%*j*j*« Qa^aa flnnfh TtTnah

JJHQft OftQftr oOUWl V? OBu

22.02

71.

[Tfl IMI | n If Bil J -Li Ua vu

... 21.92

72.
73.

Tinnnra Q D /1ar TTaaf

... 21.9

ivangpur oaaar uezttra]

21.85

74.

Oiaa^an! Aj^f f k Wait

oirajganj rionn weac

21.85

a • a ™ a ■ w

75.

Jamalpur riortn i^ast

91 85

76.

Chittagong sadar Central boutn west

91 AA

77.

Barkerganj Sadar Central

... 21.68

78.

Faridpur Sadar South Bast

21.68

79.

Nawabganj North

... 21.7

80.

Rajshahi Sadar South

... 21.43

81.

Kiahorganj Central South

... 21.0 .

White Paper oft the Problem of Electorate* 4M

J percentage of

Name of the Constitution aoa-mwKm

Population

North Sylhet South ••;«><>

83. Ohlttagong Sadar Korth East ... 21.0

84. Prim* Sadar Sooth Eart - *™*

85. Chittagong Sadar • ■

86. Faridpor Sadar Eart -

87. Faridpor Sadar South ™

88. Jhiaaidah Sooth - »*

89. Dinajpor Sadar Sooth East - »•«>

la four women conrtituencl- non- Muslim rote, range from
84% to 89.7%. All the* foor seat, are Hindo .ore-hota JThu.
under the joint electorate .yetem, Hindu, are sure to get 142
aaat. either lor themselves or for their nominee, while under
separate electorate, they were having 70 .eat. only. In other
constituencies alao their consolidated rote, may pay them
handsome dividend..

Thi, conclusively shows that Hindus will wield decisive
influence in Mast Pakistan politics and through it upon t he Centre.
What would be the consequences of it; is not difficult to imagine.

This further shows that even if one general election is held on
the basis of joint electorate, it would be sufficient to give the onh>
Pakistan forces ample opportunities to administer, God foro%a, a
shattering blow to the integrity and survival of Pakistan.

7 Now what i. the way oot of thi. dangeroua impasse 1
Ail faote-hard faota-drive o. to the conclusion that the issue
of electorate, should be finally decided according to the will of
the people before the first general election, are held And thi.
can he done if thejseue is referred to the people for decision.

Hence oor demand is for a Referendum.

Referendom Aoold be immediately held, becaose this i.; the
only way to solve thi. issue peacefully and amicably and with-
oot delay-for delay will give upperhand to those elements
whose continuance in power may endanger the very existence of

404 Tke Islamic Lav and Constitution

m

the country .

Referendum is the only way to decide the iuae democrati-
cally. People have been very cunningly deprived of their basic
political right*. Decisions are being continuously made by the
ruling coterie in a dictatorial way and the voioo of the people
is not being given the least importance. Referendum means
reference of an issue to the people, a Partial demonstration of
their sovereign right. It wilt strengthen demooraoy in the coun-
try and will sound the death-knell of the anti- democratic foroee
who are bragging about revolutionary councils and the like.

As a matter of fact, referendum is the only way out.

It will not delay the general elections, rather it will ensure
their early occurrence. If the public pressure and public censure
exert themselvea fully, no power on earth can delay the elec-
tions. The referendum will establish the supremacy of the
people and strengthen their force, power and pressure. In the
face of their aroused interest and united force, there is no
question of delay in elections. : '

Lists should be prepared community-wise so that they can
equally serve under both systems. Delimitation will have to
be done simultaneously on joint and separate basis. This may
entail a little more expenditure but it Is of no significance in
the face of the importance of the problem. With the help of more
staff all arrangements can be made without causing any delay.

According to the schedule of the Elections Commission all
this work would be finished by June 1958. On the new arran-
gement the same schedule can be striotly maintained. Referen-
dum should be held in Ootober 1958. Its result can be compiled
within a fortnight. Preparations for general elections should
continue unabated. And the general elections can be held with-
in two or at the most three months of the referendum date,
this is how we can oome out of this dangerous situation without
delaying the general elections.

Appendix VI

ABUL A'LA MAUDUDI

A BIOGRAPHICAL SKETCH

SAYYID ABUL A'LA MAUDUDI is one of the greatest think-
era and social reformers of the world of Islam. He was born in
Aurangabad (Hyderabad, Deooan, India) on 2fith September,
1003 and started his public life aa a journalist in 1920. At the
age of seventeen, he became the editor of daily Taj, Jabalpur
and later on edited the Al-Jamiat, Delhi-one of the most
influential and popular Muslim newspapers of India, of the
niheteen-twenties. In 1MB, when he wf* : 28 years < >ld, he pub-
lished his scholarly and monumental work Al-Jthad Ft-al-iaum
(Holy War in Islam). This book is unprecedented in the Islamic
literature and the equal of it cannot be found even in Arabic.

Maududi, later on, shifted from Delhi to Hyderabad
(Decoan) and in 1931 started Tarjuman al-Qur'Sn, a monthly
journal dedicated to the cause of Islamic Renaissance. This
journal has played the pioneer's role in stirring the new awaken-
ing among the educated elite of Muslim India and an Indian
historian rightly declares that no future historian of the Muslim
India ©an ignore the part played by this journal.

It was in 1937 that Dr. Muhammad Iqbal wrote to Maulana
Maududi to shift to Punjab and co-operate with him in the
gigantic research work of the reconstruction and the codification
of Islamic Jurisprudence. This correspondence was followed by
two meetings between these luminaries of Islam. Finally it was
decided that Maulana Maududi should shift to Punjab and
direct an institution of Islamic research- Dar ahlslam. Maulana
Maududi left Hyderabad and settled in Punjab in March 1938.
"Bat alas 1", in the words of Maududi himself, "he (Iqbal) was
■ i x a— « *t t*;» life The vprv next month he breathed

40»

Th* Mamie Law ant C<m*U*tiom

his lest and I wu left alone for the uphill task we had decided
to undertake Jointly".

At Lahore Maulana Maududi also worked for nearly two
yean ae the Dean of the Faculty of Theology, Islamia College,
Lahore. In 1941 he organised the Renaissance Movement —
Jantaat-e-lslami— and was elected its chief. After Partition
he launched the movement of Islamic Constitution and the
Islamic way of life and was arrested on 4th October, 1948. After

20 months of imprisonment he was releaied in May, 1950. Again

in 1953 he was sentenced to death for writing a pamphlet which

itself was never proscribed. This sentence was commuted to life

imprisonment, which meant rigorous imprisonment for fourteen

years and was released on 28th April 1955 under a decision of
Supreme Court. Again on 6th January 1964, he was arrested for

the third time, when Jamaat-e-Islami, Pakistan was banned
under Aynb Regime. He was released by Punjab High Court on
9th October 1964.

Fourth time, he was arrested on 29th January 1967 for
opposing Ayub Khan's regime for oelebrating Bid-ul-Fitr one
day before the moon sighting. In oonsequenoe of a writ petition
the Government released Maulana Maududi after 2J months
detention on 15th March 1967.

Maulana Maududi started writing his Tafhim al*Qur'an
(Towards Understanding the Qur'an— Translation and Com*
mentary on the Qur'an) in February 1942. This is the most
revolutionary and epoch-making book of our age. It has been
completed in six volumes after 30 years 4 months on 7th June
1972.

Maududi is a prolific writer and is tbe author of nearly

sixty works on Islam. His approach is scientific and logical. His

vast knowledge of Islam and of modern thought has given him

the unique quality of presenting Islam in the most systematic

way having a special appeal for the educated people. He has

given a jvery realistic interpretation of Islam and inspired the

Muslim youth to translate the Islamic way of life into practice.

He is a great thinker and man of action. In short, he in a
♦practical idealist*.— EPITQR.