English The Islamic Law and Constitution Maududi
English The Islamic Law and Constitution Maududi
English The Islamic Law and Constitution Maududi
Is la m ic L a w
and
C o n s ti tu ti o n
By
SAYYID ABUL A'LA MAUDUD1
Tr an sla te d an d Ed ite d by
KHURSHID AH MA D
AUTHOR'S PREFACE
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 those persons who
want to study the nature of the Islamic State, its theory, form
and underlying principles, and who wish to understand bow 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 are a demand of its faith and
conscience. The people want that the Islamic Law should be
introduced in their respective countries bo that they may follow
a law to which they owe their honest and sincere allegiance. But,
unfortunately, in almost all such countries the reins of power
havo been in the hands of those persons who not only did not
TA« Zsiamtc Law and Oonsiitution
have even an elementary understanding of Islamic Law and Con*
stitution, but had all their education and training for the run
ning of Godless 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
of the Muslim masses is not very dissimilar in certain respects.
No doubt they arc extremely eager to re-establish the Islamic
waj' of life and this urge of theirs is very real and sincere. But
they too are not clear about the nature and form of the state
whose establiBhmet they so sincerely urge. They also do not
know as to what should they do to establish the 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 whoso 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 because of any malice, and as suoh 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 h>s properly and thoroughly acquainted him
self 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 nm 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
the Western roviowera and critics. But I would submit that
. In the name of. Allah the Beneficent, the Merciful vii
the re should bo a lim it to one's des ire to see eve ryth ing in
accord with one’s own wishes. There can bo a people who mny
hav e very basic differences with the West in respect of hum an
values, ideals, culture and civilization and thov have as much a
righ t to fash ion the ir collective life in accordance with their
own values and ideals as tho West has to do according to its
own, For a happy Co-existenco, tho thruut-ing of one’s beliefs
and dpctrin ea on the oth er is as det rim ental and inju riou s as is
an hon est endeavour to und erstand one ano ther's ideology in its
true ligh ts necessary and helpful,
A B U L A‘L A M AU DU D1
Lah ore : 15th October, 196 0.
CONTENTS
Page
PR EF AC E
>• • vii
INTRODUCTION
1
•Why Muslims Wa nt an Islamic Sta te 1 2
-Histo rica l Background of Pak ista n 11
-The Ideological Problem 16
-The Movement for Islamic Co nstitution
26
—-About this Book
« «* 33
• PA RT I
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 them. If they wanted anything else,
then an explanation would perhaps bo* called for ; and not
,-F "
1. H ero n cla rifi cat ion is por hnp s .ca lled for .
T her e jm n I m v u c dif fer enc e
bet we en a ‘M usl im Sale* and an ‘Is la m ic Sta
te* . A M usl im S la te is any
■st ate wh ich is rul ed by M usl im s. Isl a m ic
S tal e. <m th e o th e r h an d , is
one wh ich o p ts to con duc t its aff air s in Ao
cor dnn rc w ith th e rev eal ed
gui dan ce of Isl a m and acc ep ts th e so v e re ig
n ty o f A llah and th e sup re-
' m acy o f H is Law , an d wh ich dev ote s its
res ou rce s to ach iev e Hits end .
Introduction 7
“ No Muslim people hag 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 polities 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
and opportunism in diplomacy. Politics has become out-and-out
machiavellian and this state of affairs haa greatly impairedjthe
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 tho 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 value 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 conceivable that secular
happiness for the individual may be .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 religious :
the effort to take sides with what is good against what is evil,
and the effort to attain harmony with Absolute Reality or
III
HISTORICAL BACKGROUND 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 dem onstrate the efficacy of the
Islamio way of life.
Islam came to India through Muslim trad ers, trav ellersand
8ufis, With the spread of Islam, the desire to establish an
Islamic polity in the sub-continent gained stren gth. Muslim
rulers, in response to the aspirations of the Muslim masses,
introduced Islamic Law and established the Sha'air-e-Islam
(Islamic Institutio ns). Although there was monarchy and des-
A
•
(б) Tlio idea behind Pakistan haa been the establishm ent
of a country where Islamic State and Islamic aooiety
could be established .
(e) The leaders o f the movement made thia very promise
with the people whose support and unbounded
enthusiasm for the demand was motivated by thia very
Islamic nature o f the enterprise.*2
VI
ABOUT TH IS BOOK
Isla mic Law and Constitution is a collection of some of
those writings and speeches of Abu l A 9la Ma udu di which deal
with the political and con stit utio nal tho ugh t o f Isla m. Ma vdu di
is one of the lead ing thin ker s of the world of Isla
m and his
ideas have influenced a generation* It wou ld be of interest and
profit for all to see what he has to say on the problems and th e .
prospects of an Islamic Sta te.
The chie f contribution of Maududi is that ho has dev oted
34 TAs Islam ic Law and Constitution
a WMutay the
V
fell into the hands of those who w an shorn o f all Islamic back
ground. They adopted the creed o f Nationalism, directed their
efforts towards the cause o f national independence and pros
perity along secular lines and tried to copy, step by atop, the
advanced nations of thia 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 tidetrack or suppress the issue, as they are ignorant of even
the A*B C. of the Islamic Shari*ah. Their education and intelle
ctual development has alienated them ao completely from the
spirit and the structure of IelamiaJd eoIogy that it is, at least
for the moment, very difficult ior-Hhem to understand suoh
da mands.
As regards the Muslim religious leadership, it has in no
way fared bettor, because our religious institution s are tried to
the intellectual atmosphere of^the fifth oentury A.H ,r as a
consoquence of which they have not been able to produce such
into power. So much so that the penalty o f severing the hand of habi
tually hardened thief was awarded as late m 17&1 A.D. Thereafter the
process of suppression began till at last by the middle of the nineteenth
century; the whole of the •Short'ah had been abrogated, excepting of
course injunctions regarding; purely personal matters like marriage,
divorce, eto. Other states where Muslims them selvds were in power,
took their cue from the Muslims o f India and the leading pare in this
- transition was taken by the Muslim N ative States of India. In 1884,
Egypt changed over her own laws to Code Napoleon leaving only matter
of divorce, marriage an inheritance to the jurisdiction o f 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, Franca, Sw itzerland and Germany, making
such inroads on Muslim personal law itself as no non-Muslim state
would dare do. Albania led the wgy by penalizing polygamy and Turkey
followed her by changing the mandatory provisions of the H oly Qur'an
in respect o f divorce and inheri taboo. There now remain only
Afghanista n and Saudi Arabia where the Shari*ah ie accepted ae the
State Law though even there the spirit o f the Shari'ah has long sinoe
disappeared and the whole of Shari1ah too is not being enforced.
T*e ta r L’
43
leaders o f Islamic thought atfd action m could be capable of
administering the affairs o f a modern state in the light o f Islamic
principles. This is the situation prevail ling throughout the
Muslim world and is, indeed, a very real obstacle facing the
Islamic countries in their march towards the goal of Islamic
rmuussance.
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 objeot of
becoming the homeland o f Islam. For the last ten 1 years, we
have been ceaselessly fighting for the recognition o f the fact
that we are a separate nation by virtue of our 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 o f non-Muslim^ We have all along been
demanding a separate homeland for the purpose of translating
info 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 Buffered deep humiliation in respect
of the honour and chastity of a large number o f our womenfolk,
we 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 rea lity * live force
to fashion all facets o f our life, our entire struggle and all our
sacrifices become futile and meaningless.
Indeed, if instead of an Islamic, a secular and Godless Con
stitution was to be introduced, and if instead of the Islamic '
Skari‘a&, the British Civil and Criminal Procedure Codes had to
be 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
*<>cialistie programme, we could have done so in collaboration
^_wjth the Communist and the Socialist parties of India without
*♦ Remember that this speech was delivered in 1948— Editor,
44 T in Itlxm ic and atMMfitwfikm ’ '
" ••* *
plunging the nation into thia grant bloodbath and mtybty
ordeal. - *3
The fiot ia that we are already'committed before God. Man i
and History for the promulgation of Islamic Constitution and-
the introduction of Islamic way of life in this country and no 1
going hack on our words is possible. Whatever the hurdles and •;
howsoever great they may be, we have to continue our march
towards our goal of a full-fledged Islamic 8tate in Pakistan .
• .
•
Recording to
wh ■ich •we formulate the principles of production,• dis tribu tio n
“
Tfce Itlam k Sb
.1 •
IV
LEGAL ASPECTS OF THE SHARI AH
From this discussion, I think, it has become fairly clear
that'what we, at present, technidally 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
neither be uoderstooi* nor enforced separately. To enforce it
separately votM, in fact, be ? g * i n a t t b * ivtertfak o f th *
Lav-Giver. . What ia required of n» ia to trsaaiate into practice
the entire Islamic programme of life and not merely a fragment
of it. Then and then alone can the legal aspects be properly
implemented.
which can take any and every shape and can always suffer trans-
figuration, and metamorphosis, ’
Moreover, a thorough study o f these directives, injunctions
and lim itations will lead every reasonable man to the conclusion
that they have been given to us by the Sharjah. only for those
matters where the human mind is likely to commit errors and
go astray. On all such occasions, the Sharjah has, so to say,
set the signposts by issuing directives of making categorical pro
hibitions so that we may proceed along th© right path. And
these signposts far from impeding the march of human progress^
J r*
are meant to keep us along the road and to save us from skidding
away. In this connection, it might not be out o f place here to
refer to the laws of the Shari*ah governing marriage, divorce
and inheritance which were the target o f very bitter criticism
in the recent past. I t is these very laws, however, to which the
world is now turning for guidance, though after innumerable
bitter experiences I
The second part o f Islamic Law is that which is subject to
modification according to the need and requirements o f the
changing times and it is this part o f the Islamic Law which
endows it with wide possibilities of growth and advancement
and makes it fully capable o f fulfilling all the needs o f an
expanding human society in every age.
This part consists o f the following
(a) Ta'weel (Interpretation) : I t consists in probing, into
the meanings o f the injunctions found in th© Qur’an
and the Sunnah. As such, it has always occupied and
still occupies a place o f immense importance in IaUmio
Jurisprudence. When those endowed with penetrating
insight and legal acumen ponder over the injunctions
r
o f the Qur'an and the Sunnah, they find that many o f
them are open to different fruitful and valid interprets*
. ■
* __
*
you believe in the Islaznio values o f life and standards of
morality or those o f the modern civiliz ation” I I f you have
made your choiqe and accepted some other values and some
different' standard o f right and wrong, o f virtue and vice, of the
permissible and the prohibited as agains t those envisaged by
Islam, it is then a difference of a very fundam ental nature . It
means that you differ with and disbelieve in the Islamic
ideolo gy itself. In this case you should have the courage to
declare that you reject Islam outrig ht. Is it not foolish to
allege faith in a God Whose laws you consider as barbarous 1
Anyho w nobod y can remain inside the pale of Islam after hold*
ing such an opinion about the law o f G od. 1
3. The Bogey o f Sectarian Differences
We have dealt with two objections so far. The third
objection is that there being many schools o f Islamic
Jurisp ruden ce,. it is not possible to evolve an agreed code of
law which m ight be acceptable to all the schools o f Muslim
though t. I t is this objection on whioh rests the last hope of
the opponents of the Islami c Law , and they seem to feel
confident that on thia count they will be able to score a point
by drivin g a wedge among the Muslim s. Moreover, this
problem also baffles many sincere people who are loyal to Islam
and. who, not being fully conversant with its teachings, fail to
two historical facta fully and properly and then makes & scien
tific study of the means by which Sunnah is to be ascertained,
he will never fall a prey to any misgiving that be is faced with
some insoluble puzzle.
(it?) There is no doubt that there have been numerous
differences in the matter o f ascertaining and establishing the
Sunnah and such differences can also arise in future. But then
similar differences have occurred, and many indeed will occur in
future, even in the matter of interpreting a good many rules
and injunctions of the Holy Qur’an. I f such 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 o f his claim. I f hie argument
is sound, it will be accepted by the learned men of the Ummah
or at least 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. Thia is the principle on the
basis of which millions o f Muslims in various parts of the world
have agreed on a particular juristic school o f thought and large
blocs of their populations have established their social system
on the strength of a particular interpretation of the Qur’anic
injunctions and'a particular set of the proved Sunnah.
2. The second criticism that has been offered about my
paper is that there is contradiction in it. A certain critio 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 The Islamic Law and Constitution
III
IJTIHAD. IJMA‘ AND SI10RA
Outline :
It seems that the people are going to the opposite extremes in
dealing with the nature and scope of legislation in Islam. Some say
that there is no scope for legislation in Islam, Law has been revealed
by God and H is Prophet and the M uslims are left only io follow the
law in the prescribed farm. Some others hold that there is unlimited
scope for free legislation in Islam and they say that Ike rulers are
entitled even to change or make amends in the forms of - worship
(Ibadaat) determined by the Holy Prophet. For instance, they
permit them to change the form of the prayer, of the fast and the like.
Please let us know what is the real stope 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 personal
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. B ut in the field of individual and social affairs
(Mu'amalat) there is a limited scope for legislation in m atters
about which the Qur’an and Sunuah are silent.
The basic principle which holds good in Islamic law is th a t
in respect of worships, do w hat has been prescribed and do not
innovate ; while in respect of tlfe general affairs of life, follow
th a t what has been commended, avoid th a t what has been
forbidden, and where the Law-giver has not given any guidance
00 The Islamic Law and Constitution
you are free to act on your own ’dsion and decide accordingly.
Shatibi .in his book Al-I'tisam 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 affaire the law is
th a t where the sovereign is silent, the people are free
to aot on their own vision. This is the field of
permissibles. B at contrary to this, in respect of matters
of worship and prayer no such thing can be adopted
which has no basis in the Sbari‘ah. For 'iiadaat are
directly related to the clear command and the will of
God. The reason for this distinction is that in the
general worldly m atters we ourselves 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” .1
2. In the realm of the general affairs of life (Mu'amalat)
legislation can be made in four fields, viz :
(i) Interpretation, i.e,, the ascertainment of the intent and
the meaning of the nass (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.
(ti) Analogy. I t consists in applying to a certain case
about which no specifio guidance is provided, a command
which has been given by the Law-giver for a similar or
like case. This is done by discovering the reason or
the effective cause (iUah) of a certain commandment
and to apply it to cases where the same effective cause
is pres out.
(h i ) Inference and Ijtihad. This is the application of the
general principles of the Shari*dh to the ordinary,
minor and day-to-day problems and an endeavour to
formulate, on the basis of suggestions, indications or
<
1. Shatibi. Al-I'tiaarrh Vol. I l , p. 115 (Matha* Mustafa Muhammad, Cairo),
Legislation and Jjtihad in Islam 87
implications of the injunctions of the Shari'ah, an
overall view of life as the Lftw-givor would like it to be.
(w) New Legislation. To formulate, in respect of those
problems about which the Law-giver has provided no
guidance, new laws which are in conformity with the
ultimate objective of Islam, and are capable of mebting
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 'Masaleh M urxdlah' and 'Iatihsan', By mazaleh
, mursalah are meant ‘all those expediences which have
been left to our own choice and nothing has been pres
cribed either way’. Zrtifcan, on the other hand is, in &
sense, a concept of equity, wherein although a oertain
commandment is arrived at through analogy [Qiyas).
but because of greater and wider expediences admissi ble
’ 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 neod any further elucidation, but those of 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'ak and not repugnant to
them in any way.
(b) 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 genuino
need, or to remove any genuine difficulty^
be found out only for the period in which the political system
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
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', these people refused to accept that
claim. Thus they did not dispute the authority of ijma9 as such ;
they only disputed the occurrence of ijma9 on that specific issue.
Shaft* i has discussed this point in sufficient detail. In his
92 Islamic Law and Constitution
hook Jami al-‘Hm he says that it has now become impossible to
ascertain all the opinions of the 'Ulama on minor and detailed
problems because the world of Islam has spread far and wide,
the 9 Ulama have dispersed and the close organisation of the
community has shattered. In such conditions it is wrong to
claim any ijma' on points of detail. But as to the basic
principles and the major problems, it can be said that there
has been ijma* on them, for instance, there has been ijma* on
the timings o f the five prayers, or the conditions of fasting etc.
In the words of Ibn T aim iya:
"Ijma* means, that al! 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 accept that. Thia 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” J
The above discussion clearly shows that the ijma* and the
majority decision of the Ummah . on a certain interpretation of
nass or on a certain qiyas, ijtihad or expedientiai legislation do
constitute law and are deemed to be authoritative in Shariah.
I f 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
o f the world and if it has been enacted by those of any one
country or region, then it will hold good for them alone.
Islam io Law,
W HE NE VE R there ia a discussion. on
is passed is,
one of the m ost im portant questions that
question is,
How wi ll it be introduced ? And th is
er to Islam ic
indeed, a.v er y im portant one* A changeov
lem in . -Ives
Law cannot be made ov er nig ht. The prob
is th e duij of
many a trioky complication* And it
e their be '*•
th e scholars and th e ad ministrators to giv
and adopt
thou gh t to th e problem and su gg est
ic Law in a
practical ste ps to introduce th e.I sla m
ma tic an d sci en tif ic wa y* M aulan a Maududi
sy ste
cu sse d th e pr ob lem s inv olv ed in th e int roduction of
dis
ered on 19th
Islam ic Law in Pa kistan in a speech deliv
re, and also
February, 1948 in th e Law College, Laho
intro du ction
ga ve some practical su gg estion s for its
th at speech is
in Pa kistan . The En glish tra nslation of
— Ed ito r.
presented in the follow ing ohap ter.
HOW TO INTRODUCE
ISLAMIC LAW IN PAKISTAN ?
Jnmy previous discourse 1 1 had de alt with the sp iri t and the
ties and
fundamental precepts of Islamic Law and ou r du
s in thi s reg ard . I ha d als o rep lie d to the ob jec tions
obligati on
n of Islamic
tha t are generally pu t forward ab ou t the introductio
efficacy as
Law in modern times and to the criticisms about its
al sys tem . Th at ad dre ss of mi ne wa s of an int rod uctory
a leg
ater length
nature. Now I propose to discuss this problem at gre
be adopted
and will explain the course tha t should, in my view,
for the enforcement of Islamic Law in our country.
doubts
I would like, at the very outset, to dispel some of the
considerable
and misgivings which crowd into the minds of a
enforcement
section of our people as soon as the y think of the
intention to
of Islamic Law. Many people on hearing of our
an Isl am ic St ate in Pa kis tan , wh ich wo uld of co urse,
establish
t the very
be governed by Islamic Law, begin to think tha
the prebent
moment Pakistan is declard an Islamic Sta te, all
ing Islamio
laws will be repealed and replaced by correspond
e.
Laws without a minute’s delay and all in one strok
n folk
This misunderstanding is not confined to the commo
It is fou nd am ong pe rso ns of rel igi ou s un de rst anding as
only.
Th ey see m to thi nk the da y we res olv e to mo uld Pakistan
well.
the practical
into an Islamic Sta te, it should also be the day of
the fact tha t
fulfilment of tha t resolution. Such people overlook
. Ra the r,
the legal code of a country does not exist in a vaouum
is de ep ly int erl ink ed wi th the eth ica l no rm s an d the social,
it
no mi c an d po liti cal ord er of the co un try . Th ey do no t realise
eco
no t alter
tha t so long as the social set-up of a country does
ange. They
radically, the legal system can undergo bu t little ch
t tha t vit al cha ng os ha ve bee n wr ou gh t in ou r lives
also forge
rin g the pe rio d of the Br itis h rul e an d tha t the en tire mode
du
ested of its
of our living has been de-lslamised* It has been div
w 1. ~ E d it or.
nce ie to Ch apt er 1, ‘The Tsl amio La
1. The refere
la m ic La w in Pa ki sta nt 95
How to In tro du ce Is
is be in g go ve rn ed by pr in ci pl es derived
Islam ic character and
an Is la m . C on se qu en tly , w ha t is required
front sources other th
th e en tir e sy st em of our lif e. And th is , in
of ua is to Islam ise an en or m ou s am ou nt of ’
d de m an ds
its turn, is an uphill task an
strenuous effort. s of modern life,
of th e pr ac tic al pr ob le m
H avin g no idea
no ra nt lo ve rs of Is la m ta ke th e task of
these ferv en t but ig
co lle ct iv e lif e of a na tio n ve ry lig ht ly and
revolutionising th e
ey in du lg e in da y- dr ea m in g an d crying
superficially. Hence th
ut su ch an ou tlo ok se rv es on ly th e in te re sts of
for th e moon. B
tr yi ng th ei r be st to pr ev en t th e establism en t of
th ose who are to scoff at the
ov id es th em w ith gr ou nd s
an Isla m ic State and pr
ve ry idea of th is venture.
I
GRADUAL CHANGE
ish to se e ou r Is la m ic id ea ls tr an sla ted in to
If we really w
no t ov er lo ok th e ba sio la w of nature th at all
reality, we should
uh in g ch an ge s in th e co lle ct iv e lif e of people
stable and fa rr ea is , th e more
e m or e su dd en a ch an ge
come ab ou t gr ad ua lly . Th
ge ne ra lly tu rn s ou t to be . For a permanent
sh ort-lived it is t bias *
it sh ou ld be fr ee fr om ex tr em
change* it is necessary th at
The best ex
«
and unbalanced approach.
am pl e of th is gr ad ua l ch an ge is th e re vo lu tio n
t by th e H ol y Pr op he t (p ea ce be upon him) in
brought abou , w ith the
qu ai nt ed , ev en su pe rf ic ia lly
Arabia. One who is ac he did no t
t’s ac hi ev em en ts , kn ow s th at
histor y of th e Prop he
tir e bo dy of Is la m ic La w al l at once. Instead of
enforce the en fo rcement.
ep ar ed gr ad ua lly fo r th eir en
th at , th e society was pr f in th e
fo r re fo rm by in cu lc at in g be lie
H e star ted his efforts
Is la m , vi z, th e un ity of Q od , th e Life after
fundam entals of
st itu tio n of Pr op he t-h oo d an d by inducing the
D eath and the in
ri gh te ou sn es s an d pi et y. Th ose who
people to liv e a lif e of
m es sa ge w er e tw in ed by hi m to believe in *an d’
accepted this ev ed to a
of lif e. W he n th is w as ac hi
practise th e Islamic way him) w^nt a
, th e Pr op he t (p ea ce be up on
considerable degree
The Islamic Law and Constitution
step further and established an Islamic State in Madinah with
the object of making the entire life of the oountry conform to
tbo Islamic pattern. After gaining political 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
(peaoe be on him) introduced a new system of education—a
system which, in keeping with the conditions obtaining in his
time, consisted mainly of verbal instruction and went on with
the execution of a well-chalked-out and a systematic plan for an
overall reform in the moral, social, cultural and economic life
of the corrupt society of his day. These efforts progressively
brought about a radical ohange in the mental outlook and the
practical conduct of the people. In commensuration with the
progress made in this field the Prophet (peace 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—social,
political, economic and legal.
A careful study of the Qur'an and the- HadM 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 (hijfah). The gradual
enforcement of the rules and regulations regarding mfi.rria.ga 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 early in Meccan life (i.eM before
£ the Holy Prophet migrated to Madinah) yet it was not practi-
Bow to Introduce Islamic Law in Pakistan t 9?
Ill
CONSTRUCTIVE WORK FOR THE
ENFORCEMENT OF ISLAMIC LAW
A t this stage it seems necessary to throw some ligh t 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 o f reform to which I have
referred above demands an enormous amount o f hard work in
almost every walk o f life. After centuries o f 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 o f other aspeots 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 o f Islam ic 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 w&
all know, a very great part * of the literature on Islamic
Jurisprudence is still in Arabic and the modem educated of
104 TAe Islam ic Law and Constitut ion
(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 much 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 cannot be gained unless one knows the language
of the Qur’an, and that of the Prophet (peace be on him). In
the initial stages we shall no doubt experience difficulties in
obtaining Arabic knowing students for law colleges. We might
even have to start Arabic classes in law colleges themselves for
the first few years and might also have to increase the period of
education by one year but later oa> when Arabic becomes
compulsory in our educational system, Arabic knowing studedts
for our law colleges will be easily available.
(2) Along with the teaching of Arabic, the students must
• also be made to study the Qur'an and the Hadilh 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
How to Introduce 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 SharPah, on the one hand and between the Skari'ah
and the problems of Fiqh on the other.1 The result of
this typ e of education is tha t most of these people believe
as if the minute details of law and the doctrine stressed
by or peculiar to the ir own school of tho ugh t alone is the real
essence of religion. And it is this erro r tha t has created
sectarian controversies and bigotry among the Muslims. Again,
as a result of this some of the basic objectives of the SAari'aA
have sometimes been overlooked in applying the rules of Fiqh
to the problems of everyday life. We wish this situ atio n to
come to an end. A stu den t must acquire an understanding of
Islam as a system through a stu dy of the Qur’an and the Hadith
before he begins the stu dy of Figh,
We will, no dou bt, 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 sta rt classes of the Qu r’an and Hadith as weft in the law
colleges. Bu t gradually, as our general educational reforms
will bear fru it, we wiil be able to lay down the condition tha t
only those students who had Tajsvr (Interpretation of the
Qur’an) and Hddilh in degree classes as the ir optional subjects
will be eligible for admission to law colleges or else they will
have to spend an extra year to study these subjects.
(3) The curricu la of law colleges mu st necessarily include
the following three subjects :
(a) Principles of Islamic Jur isp rud enc e;
(ft) His tory of Islamic Jurisprudence ; and
(c) Fiqh, an unprejudiced stu dy of all the major
schools of Fiqh,
Witho ut mastering these three subjects, the students can
neither gain^a ^ complete understanding of Fiqh nor can they
develop those qualities of sound reasoning which are a pre-
I- Por a d iscu ssio n of the diff eren ce betw een Z)>n and
Sha ri*a h see Abu l
A ’la Mau dud h Tow arde s Und erstand ing Isla m , Tr-a nd
ed. K har ah id
A h m a d ,Isla m ic P ubl icat ions L td ,, I960, pp, 162-55,
112 TAc Islam ic Law and Constitution
if the architects who know the design o f the building and have
the will to construct it and possess the requisite resources* are
o
not available. On the other hand, if they are available, anything
can be built—be it a temple or a mosque*
Part II
II
FPN DAMENTALS OF ISLAM
< I t should be clearly understood in the very beginning that
Islam is not a jumble o f unrelated ideas and incoherent modes
o f conduct. I t is rather a well ordered system, a consistent
whole, resting on a definite set o f clear-cut postulates. Its
major tenets as well as detailed rules of conduct 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 oorollary o f 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 m ay spread in all directions, all its
leaves and branolies 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
ideology one may like to study, he must, first of all, go to the
roots and look to the fundam ental principles, Then and then
alone he can have a really correct 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 divinely
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 preaohing- of Islam. And Prophet
Muhammad (peace be upon him) was the last of their line*
With him prophethood came to an end and to him was revealed
the final code of human guidance, in all its completeness. All
the pi ophets conveyed to the mankind the guidance which was
revealed to, them and asked it to acknowledge the absolute
sovereignty of God and to render unalloyed obedienoe to Him.
This was. the mission which each one of the prophe ts 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 yf the prophets is that when-
ever these sorvanta of God proclaimed th at “ there is no ifah
(object of worship) except Allah”, all the forces of evil made
Political Theory of Islam 127
1. 4J-Qur*a» : 26 i 2® ; 28 : 33 ; 79 : 24.
Political Theory of Islam 131
and set, The question at issue was not the dominion over the
sun and the moon and the universe bub th at of the allegiance of
the people ; not that who should be regarded as controlling the
forces of nature, but th at 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 Abraham 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 hie 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
commonly 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 universe, 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' was
called 4an*data' (the provider of sustenance) and people
prostrated themselves before him although he made no pretenoe
of being God and his subjects never recognised him as such.
Much the same was, and still is, the state of affairs in all other
countries.
Words synonymous with ‘ilah' and ‘rafcfr’ 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 Constiiul icn
If you were to look at the matter from this angle, you will
find that the root-cause of all evil and mischief in the world is
the domination of man over man, be it direct or indirect. Thia
was the origin of all the troubles of mankind and even to this
day it remains the main oause 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’, ‘Hah*
and and looking up to him for help and guidance in the
complex and baffling affairs of hie 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^Hia place in your thinking and
behaviour. It is ©ven poaaible that instead of one real God, a
number of false gods, Slabs' and ‘raWs’ may impose themselves
upon ybu.
IM The Islam ic Law and ConsMniw n
Even toda y man is enchained in the slave ry 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-m agnate «or the
like in such a manner that man’s control over man, man’s
worship of man, man’s surveillan ce of man continue unabated.
Modern man has discarded nature-w orship, but man-worship he
still does. In fine, wherever you turn your eyes, you will find
that one nation dom inate s another, one class hold s another in
subjection, or a polit ical party having gained complete ascend*
ancy, constitute s itsel f as the arbiter of men’s destiny ; or again
in some places a dicta tor concentra tes in his hands all power
and influence setti ng hims elf up as the lord and master of the
peop le. Now here has man been able to do with out an ‘ilah* I
Wha t are the couaequences o f thia domination of man by
man, of this attem pt by man to play the role of divin ity 1 The
same that would follo w from a mean and incom petent person
being appointed a polic e comm issioner or some ignor ant and
narrow-m inded polit ician being exalted to the rank of a prim e
minister. For one thing , the effeot of godhood is so intox icating
that one who taste s this powerful drink oan never keep hims elf
under control. Even assum ing that self-control is possible, the
vast knowledge, the keen insig ht, the unquestioned impa rtiality
and perfect disin terestedn ess which are required for carrying out
the dutie s of godhood, will alwa ys remain out of the reaoh of
man. That is why tyran ny, desp otism , intemperance, unlawful
explo itatio n, and ineq uality reign supreme, whenever man ’s
overlordship and dom ination (ilah iyyat and rabubiyyat) over
man are estab lished. The hum an soul is inevitably deprived of
its natural freedom ; and man’s mind and heart and his inborn
facu lties and aptitudes are subjected to such vexa tious restric
tions that the proper grow th and developm ent o f his perso nality
is arrested* How truly did the Holy Prophet observe ;
"God, the Alm ighty says : ‘I created men with a
pliab le nature ; then the devfls came and contrived to lead
them astra y from their faith and prohibited for them
Pol itic al Theory of Islam 135
what I had made lawful for the m’. ’*1
As I have ind icated 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 impedim ent to
his progress. Thia is the canker which has eaten into the vita ls
of hia moral, inte llec tua l >politic al and econom ic life , destroying
all the valu es which alone make him human and mark him off
from anima ls. So it was in the remote past and so it is tod ay.
The only remedy for this dreadful malady lies in the repudiation
and renunciation* by man o f all masters and in the exp lici t
recognition by him o f God Alm igh ty as his sole master and lord
(ilah and rabb). There is no way to his salv atio n exc ept thia ; for
even if he were to become an ath eist and heretic he would not be
able to shake him self free of all the se masters (ilah* and ruths).
This was the radical reformation effected from tim e to time
by the Prophets in the life of hum anity. They aim ed at the
dem olition of man's supremacy over man. Their real mission
was to deliver man from this inju stic e, this slav ery of false
gods, this tyra nny of man over man, and this exp loitatio n of the
weak by the strong. Their object was to thr ust back into the ir
proper lim its tho se who had over-stepped them and to raise to
the proper leve l tho se who had been forced dow n from it. They
endeavoured to evo lve a social organisation based on human
equ ality in which man should be neither the slave nor the
master of his fellow-beings and in which all men should become
the serv ants o f one real Lord. The message of all the Prophets
tha t came into the world was the sam e, nam ely :
“ 0 my people, worship Allah. There ia 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 exa ctly what
Hud declared ; Salih affirmed the same tru th ; Sho aib gav e the
same message, and the same doctrine was repeated and confirmed
by Moses, Christ and by Prophet Muhammad (peace bq upon
1. Al-Madani, Al^ItUhafat alsanyya fil-Ahadith al-Qud&iyy<*, Hadith
No. 343, Daira’t al-Ma*arif, Hyderabad (Deooan), 1323 A.H.
*
136 Ths Isla mic Law and Oon stiM ion
them all), The last of the Prophets, Mohammad (God’s blessing
and peace be upon him) Baid ;
“I am only a Warner, and ther e is no God save Allah,
the One, the Absolute Lord of the heavens and the earth
and all that is between them ” . (38 : 05-66)
“ Lo 1 Tou r Lord is Allah Who created the heavens
and the earth in six day s, then mounted He the Throne,
He covereth the nigh t with the day, which is in hast e to
follow and hath made the sun and the moon and the stars
subservient by His command. His verily is all oreatfcm
and (His verily is the) com mandment” . (17 ; 54)
“Buch is Alla h, your Lord. There is no God save
Him , the Creator.of all thin gs, so worship Him . And He
take th care of all thin gs”, (16 ; 102)
“And they are not enjoined any thin g except that
they shou ld serv e Alla h, keeping relig ion pure for Him , as
men by natu re upright” . (98 : 5)
“ Come to a word common between ns and between
f
III
FIRST PRINCIPLE OF ISLAMIC
POLITICAL. THEORY
The beli ef in the Uni ty and the Sovereig nty of Allah is the
foundation of the social and moral system propounded by the
Politic al Theory of M em 137
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 Sunnah has also been laid down by God.
The Qur’an says :
41 We verily sent Our messengers with clear proofs, and
--- • ’ 1 1 A
1. To avoid repetition, the Editor hat deleted those portions of the essay
related to the problems, discussed in detai l i t Chapter 7—
Chapter 5
Political Concepts of
the Qur'an
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 th at 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£ vioegerenoy on the earth,
God made it explicitly clear to him that He alone is the Lord,
Polit ical Concepts of the Qur'an I55
the Ruler and the Deity . Ab such the entir e Universe aud all
the creatures in it (including man) must subm it to Him. alone.
Man must not think hims elf total ly free and should know that
this earth is not his permanent abode He has been made t<i
live upon it only during the period of hie probation and in due
course he will return unto his Lord, to be judged according to
the way he has utilised the period of probation. The only
right course for man iB to acknowledge God as the only Lord,
the Sustainer and the Deity and to follow Hie 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 objective
shou ld 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 ) ho will succeed
in' this world and in the next—in this world he will have a life
o f peace and contentment and in the hereafter he will qualify
hims elf for th® heaven of etern al bliss, al-Ja nnah . And if he
chooses to follow the other course; i-e M that of Godlessneas 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—tha t
abode of pain and misery which is called Hell.
3. After administering this warning God sent man upon
the eaith and prov ided the very first human beings (Adam and
Eve) with His Guidance in accordance with which men were to
live on the earth. Thus man’s 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
know ledge from God Himself. He had know ledge of the reality
and was given the code of life by follow ing which he could have
a life of bliss. This 00 de of life was Islam , the attitu de of com
plete subm ission to Allah , the Creator of man and the whole uni
verse, It was this religion whicji Adam, the first man, passed
down to posterity. B it later gene ratio ns grad ually drifted away
trom the right path and adopted different, erroueoas ways of
156 TAe Islamic Law and Constitution
life. Out o f negligence they lost their original religion or out
of misohief they adulterated and perverted it. They associated
with God innumerable human beings, non-hum an objects and
imaginary beings as deities and indulged in shirk (polytheism)
of the worst type. They mixed up the pure teachings 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 oolleotive morality, the Sharjah,
and deprived the human life of peace and tranquillity.
4. Although men departed from the path of truth, disre
garded and perverted the Shari* ah 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 not 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 (Deen) i.e. t the way which was revealed to man
on the first day o f his existence. All of them followed the same
guidance : 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 the 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 acoepted it, gradually
Political Concepts of the Qur'an 157
drifted astray and after a lapse of time lost the guidance or
distorted it with innovations and perversions. ’*
6. At last God raised Prophet Muhammad (peace be on
him) in the land of Arabia and assigned to him th6 completion
of the mission for which earlier prophets were ordained. The
message of Muhammad (peace be on him) was for entire man
kind. He presented anew the teachings of Islam in their pris
tine form and provided humanity once again with the Divine
Guidance. He organised all those who aocepted his message
into one ummah which was charged with reconstructing its own
life in accordance with the teachings 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 Holy Qur’an whioh constitutes the only right code of con
duct for the mankind.1
Islamic Concept o f Life
These are the basic postulates which, on the one hand,
reveal God’s design for providing guidanoe 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 :
4 ‘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
whioh is binding on him in the Torah and the Injtel and the
Qur'an,. And who is more faithful unto his covenant than
Allah 1 Rejoice then in you* in bargain that ye have mado,
for that is the supreme t r i u m p h (9 ; 111)
In the above verse the nature of the relationship which
comes into existence between man and God because of ImHit
I. Abul A ’lti Maududi, Tafbim alQur'cm, Vol. J, Lahore, 1U51, pp, 16-l ’J.
>
158 The Islamic Law and Constitution
bargain comes in. This bargain does not mean that God is
purchasing something whioh belongs to man. Its real natu re 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 His which 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 volu ntarily renounces the freedom to
. refuse God’s supremacy and inste ad acknowledges His overlord
ship, so to say, 'sells* his ’autonomy’ (which too is a gift from
God and not man’s own) 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 Mo'm in (believer) and Iman (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 attem pt to avoid or abrogate this
contract is technically known as Kufr.
Such is the natu re of the contract. Now let us briefly study
its various stipulations*
1. God has put man to serious trial on two counts r—
(a) He has left man free, but even after giving him that
freedom He wishes to soo whether or not man realises
his true position ; whether he remains honest and
stead fast and maintains loyalty and allegiance to the
Lord or loses his head and revq lts against his own
Creator ; whether he behaves like a gentleman or
tramples underfoot all values of decency and starts
1
playing such fanta stic tricks as make the angels weep.
__ _ __ r-- —_-V
1. The trans lator as here tried tp borro w the word s o f fthak espea re who
has beaut ifully p rot rayed th is a ttitu d e of man in the folio wiiige oupfe t:
Moria proud man.
<
160 !the Islamic Law and Conttiluticm
life. A Muslim who has real faith in Allah , makes every aspect
of his life subservient to the Will o f Allah. Hia entire life is
one o f obedience and surrender and he never behaves in an
arrogant or an autonomous way, eave in a moment of
forgetfulness. And after such a lapse as soon as he becomes
oonscious of it he again readdresses himse lf 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 ideolo gy, its legal system and its
intern ational policy must all be in tone with the Code of
Guidance revealed by Allah and must, in no way, contravene it.
And if ever through errror any contravention is comm itted, it
must on realising this, correct this imme diately and return
forthw ith to the state of subservience to the Law of God. It
ia the way of the non-believers to feel free from God’s
Guidance and to behave as one’s own maste r. Whoever adopts
such a policy is, even though he may bear a name silmilar to
that of a Muslim, treading the Satanic path and follow ing the
way of the non-believers.
4. The Will of God, which it is obliga tory upon man to
follow , is the one which God Hims elf has revealed for man’s
guidance. The Will of God is not to be determ ined by man
himself. God has Hims elf dearl y enunciated it and there is no
ambig uity about it. Therefore if a person 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 of the Proph et (peace be on him),
A little reflection will show that these stipul ation s are
logica lly implicit in the bargain and it is also clear from the
above discussion why the paym ent of the 1price’ has been post*
poned to the life after death . Paradise is not the. reward for the
mere profession of the bargain, it is4he reward for the faithful
execution of the contract. Unless the oontraot ia fully execu ted
and the aotual life-be havio ur of the ‘vendor’ complies with the
terms of the contract he does, not beoome entitled to the reward.
Thus the ‘sale* is concluded only at the last moment of vendor’s
162 The Islam ic Law and Constitution
life and aa such it is natural that the reward shou ld be given to
him in the life-hereafter.
There is another significant point which emerges for the
stud y of the verse quoted above with reference to its context.
In the verses preceding it. reference has been made to the people
who professed Iman and prom ised 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
plaved open tricks of hypo crisy and rofused to sacrifice their
lives and riches in the Cause of Allah. The Qur’an, after
exposing these poople and criticising their insin cerity and
hypocrisy, makes it clear that Iman is a contract, a form of
pledge, between man and God. It does not consist in a mere
profession of belie f in Allah . It is an acknowledgem ent of the
fact that Allah alone is our Lord, Sovereign and Ruler and
that ever ythin g that man has, inclu ding his own life, belongs
to Him and must be used in accordance with His direc tives.
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 dicta tes in all fields of activ ity. They stake their
ajl in obedience to the Commands of the Lord, and do not
devia te even an inch from the path of loya lty to God* Such
alone are the true believers.
Some people object that the promise referred to in the verse
does not occur in Jnjeel (Gospel) or Taural (Torah). So far as
Injeel is concerned we find the. following verses in i t :
“UluBsed are they which arerpersecuted for righteousness’
sake : for their ’s is the Kingdom of heaven*’.1
“ Ho that findeth hie life shall lose i t ; and ho that loseth
his life for my sake shall find it”.2
"And every one that hath*forsaken houses, or brethren,
ur sisters, or father, or mother, or wife, nr children, or
II
NECESSITY FOR AN ISLAMIC STATE
The Islamic conoept of life as envisaged in the Qur'an is tha t
man should devote his entire life to the causes of Allah, Whose
injunctions should be followed in all the Helds 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 tran slated 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 each one
of them (with) a hundred stripes. And let not pity for tho
twain withhold you from obedience to the dm of (i.e., way
of life prescribed by) Allah, if ye beliovo in Allah and the
Last Day” . (24 : 2)
A very basic point emerges from thia verse. Here the
criminal law of Islam has been called Din-Allah i.e the religion
fi
of God. It means that religion does not merely moan prayers,
and fasting and Hajj and Zakat, it also includes tho law of the
land and tho 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 tho Divine
Law and make the Shari*ah the law of the land. If the latter is
not established, then oven if the institutions of Salat etc., ia in
force, it will not amount to the estabishment of din. It would
I ■I - _ v
1. Tafh im al Qur'an, Vol. I l , pp.
Political Concepts of the Qur’an 165
III
SOVEREIGNTY OF GOD
The next and the most fundamental and most revolutionary
political concept of the Qur’an is the sove reign ty of God over
the entire life of man. So far as the concept of the sovereign ty
of God over the uni verso is concerned, it io accepted by most
of the people but wha t the Qur'an dem ands is that they must
also acknowledge Him as the Sovereign in his moral, social,
cultural, economic) and polit ical sphere o f life.
Stud ents of political science know how vexe d the issue of
sovereignty has become in the pres ent age. It is perhaps the
most-disputed issue of polit ical science, and a good many
thinkers have even pleaded that the problem is ao confusing
that it would be better if the poiitioal theo rists discard it
altogether. Not only are there theo retic al and logical anomalies
but also the developm ent of inter natio nalism seems to have
more or less rendered the concept of natio nal sovereign ty
obsolete. The root cause of al] 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 fit. Keeping
in view the attributes of the sove reign , no human being or
human organisation oan really claim title to it. And when
sove reign ty is forced upon human beings, it results in confusion
on all hands.
The Quranic concept of sovereignty is simple. God is
the Creator o f the Universe. He is it* real Sustaiaer 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.
The above view of sove reign ty is presented in fhe
I. ’ Ta/Aim <d-Qur'ant Vol. If, p. 638.
PofihcffZ Concept# of tht Qur'ttn 167
following verses of the Holy Qur*an :
(a) Prophet Joseph (God’s blessing be on him), on announc
ing the mission entrusted to him, declared ;
“ Verily I have abandoned the creed on a people who
believe not in Allah and who are disbelievers in the Here
after. And I have followed the religion of my fathers,
Abraham and Isaac and Jacob, It xiover was for us to
attribute aught as partner to Allah. This is the bounty of
Allah unto us and unto mankind ; but most gi ve not thanks.
O my fellow prisoners t are diverse lords better, or Allah,
*. the One, the Snhdure P Those whom ve worship beside
Him are but names which yo have named, ye and your
fathers. Allah hath revealed no sanction for them. The
Authority rests with Allah alone, Who hath Commanded
you that ye obey none save Him. This is the right religion,
but most men know not”. (12v: 37—40)
This is one of the Lest and most eloquent arguments
for 'AMrA/fr? and contains many important points for con
sideration $
(1) This, perhaps, is the first public speech of Joseph as a
prophet. The earlier verso* 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 find that he lias begun his practical work
as a prophet. It also seems to be the first occasion for him in
Egypt to reveal his real identity, /'.fl., being the kin of Abraham
and Isaac and Jacob, ft 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 Tawkeed whose
1. The original word is al-Zahhart which according to 'Arabio-
English Lexicon* means : The subduer of his creatures but His so*
veroign authority and power, and th© Disposer of them as ho please th,
with and against their wilP’. W ehava rendered this word ae ‘the
Subduor’.
2. This discussion has been abridged. Only pointe having a direct bear
ing upon the political ocnoepis have^een dealt with, th© others being
left out,—Editor.
168 TAe Islamic Law ant ConttiMion
leaders had been Abraham and Isaac and Jacob—m entioning
only those whom the people must have known because of
geographical and historica l proximity,
(2) It shows that the Prophet started his work not by go*
ing into petty trivialitie s, but by presenting the basic postulate s
of Islam. In hie very first discourse he clearly expounded the
differences between Tawheed (monotheism) and Shirk (polythe
ism) and called the people to the path of Tawheed in a befitting
manner. The message was so dear, bo truthful and so well-
presented that it must have gone straight to the hoart of his
list Hers. As the listeners were slaves, they could 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 o f shirk in all its forms, apd acknow
ledgemen t of the overlordship of one God in all fields of
existence. Joseph (peace be on him) tells his listeners that gods
they worship are more names and do not possess any attribute
of real lordship or sovereignty, He stressed that whoa they too
acknowledged that the real sovereign of entire creation is Allah
Who is the Creator and Sustainer of the universe, why then
avoid ita 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 exclusive ly His. And he has enjoinod
that His Command should reign supremo. Man is to worship
none except Him, to obey non© except Him, and to follow none
except Him, He is the real sovereign and His Law must prevail1
(6) ^The concopt of sovereign ty is further explained ' in the
following verse :
“ Verily, your Lord iB Allah Who created the heavens
and the earth in six Days, then mounted He the Throne.
He covereth the night wifh the day, which is in haste to
1. Tajhim ol-Qur'an, Vol. IL PP.
Political Concepts of the Qur’an 169
follow it, and hath made the sun and the moon and the
stars subservient by Hie Command. Verily His is all creation
and His is the Command (the Law). Blessed be Allah, the
Lord o f the Worlds.” (7 : 54)
God is not the one who created the world and then retired.1
This concept of retirement is fallacious. The Creator has not
severed His connection with the universe after having created 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 o f dust to the gigantic nebulae every*
thing is subservient to His Will and obeys His Commands.
The destiny o f this entire creation is dependent upon Him.
Thus the Qur’an demolishes the very foundation^ of shirk
(polytheism), atheism and selLworship. If a man does not
I. The Hindu concept is that God retired after creating the Univorse.
According to Encyclopedia Britannica, th a Hindu view i* that He
•♦having porformed his legitimate part in the mundane evolution by His
original creation of the Universes, has retired into the background'*
(Vol. X I, page 077). The philosophy of modern deism is also bason
on a similar misconception-*Editor,
170 The Islamic Law and Constitution
regard Allah as the Creator and the Governor and thinks that
God has severed His connection with the universe and now haB
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. The only reasonable course for
man is to acknowledge the Creator and the Lord as the Deity
and the object of worship in the religious sense of the word and
as the only Sovereign, Ruler and King in the political and
social meaning of it.
The point is further clarified by the expression lahu ab
Khalq w(i al •Amr (Verily His is the Croation and His is the
Command). This clearly 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 change accident
ally, but it is the Will of God which regulates all this : He can
make the change anywhere He likes. 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 Hie being the
Creator that His Will and His Law should reign supreme.1
(c) Another verse of tho Qur’an also throws light on this
concept :
1. To/JUm al-Qur*a*t Vol. I I . pp. 36-37,
Po lit ica l Co nc ep ts of the Qur'an
f
in
"H e un to Whom belongeth th e so ve
re ig nty of the
heaven s and th e earth. H e hath ta
ken unto H im se lf no
son nor ha th He an y partner in th e So
vere ign ty . He hath
created ev er ything and ha th meted ou
t for it a measure” .
(25 : 2)
Here th e word employed is H ul k whioh
is used in Arabic to
convey the meaning of supremacy,
so ve re ig nty and kingship.
According to th is verse Allah alone is th
e Governor, K in g and
Ruler of th e entire universe and no on
e else shares even a shred
of H is au th or ity . He is th e absolute
So vere ig n. Th is clearly
brings home to one th e tru th th at He
alone can be th e De ity ,
because one offers hie worships on ly
to one who commands
power and au th or ity , can bless or repr
ove him , and change his
de stiny favourably or ad ve rsely . No
t even a fool would be
prepared to bow before one whom he
kn ow s to be devo id of all
power and au th or ity . If men would on
ly realise th at all power
rests with Allah, no on e would be prepar
ed to bow before anyone
else or to ob ey and follow others
or so lio it th eir help and
guidance. H is au th or ity alone would
he acknowledged and His
Commands alone would be obeyed
and no such law would be
followed as in vo lv es H is disobedience.
To acknowledge th is au th ority of Allah
is the kernel o f the
Islam ic concept of So ve re ig nt y.1
(d) The po in t in disp ut e betw een the pr
ophets of Allah and
th e non-believers has alw ays been th at
th e prophets demanded
ab so lu te obedience to Allah and co m
plete acknowledgment of
H is so ve re ign ty in th e social, po lit ica l,
cu ltu ra l and all other
fields, but th os e in power whether th
ey were th e heads or the
elders of tr ib es or were th e kings an
d monarchs, refused to
forego th eir au th or ity and acknow led
ge th at of Allah. The
following verse of the Qur’an illustr ates
th is po sition :
"And Moses said : My Lord is beet aw
are of him who
bringeth guidance from H is presenoe,
and whose will be the
sequ el of th e Ho m e (o f bliss). Lo 1 wr
ong-doers will no t be
successful.
I . Ta/him al*Qur\m pp. 433.
f
172 The Islamic Law and Comtifation
alone and no one else enjoys even a fragment of it. This means
tha t the authority to legislate ves ts in Him alone. Whoever
else tries to declare or adjudge abo ut the law fuln ess or otherw ise
of thin gs of his own authority is a transgressor, unless ho does
so on the author ity of and wit hin the lim its proscribed by God.
Unabashed legislation —th e act of declaring, withou t any
let or hindrance, certain things lawful and oth ers unlawful—
has been described as 'inv ent ing lies against Allah’. It has
been called so because this can be the resu lt of one of the
following two thin gs only : Eith er the person doing so alleges
tha t what he is declaring lawful or unlawful withou t showing
any basis therefor in the .Book of God, has a matter of fact,
been so ordained by God Him self or tha t God has abdicated
His author ity in his favour and left him free to legislate as and
what he likes. Whichever of the se two positio ns he claims for
him self is a lie pure and sim ple and a false imputation to God J
Not only tha t, at another place the Qur'an sa y s:
''Those who do not make decisions in accordance with
tha t which Allah has revealed, ver ily they are the disbe
liev ers ..... . the unj ust ..... .the transgressors” . (5 : 44, 4o, 47)
Here God warns those who do not adm inister their affairs
in accordance with His revealed law and do not enforce it tha t
the y are (a) disb elie vers (6) unjust and (c) transgressors. This
means tha t one who diso bey s the law of the Lord is gui lty of
three orimea JTw/r, Zulm and Fis q. Fir stly this disobeyal
means tha t he is flouting the author ity of Allah and is refusing
to aocept His Command—which is Kufr. Secondly it amounts
to perpetration of inju stic e, for the Command of the Lord is
justice, pure and com plete and any dev iation from it results in
nothin g but tyra nny and inju stic e, or in the words of Qur’an in
Zulm. Lastly, man being the sub ject of God,- by disobeying
the Command of the Lord, he step s out of the am bit of loya lty
and obedienoe to Him , and this act of his is an act of
transgression. And tha t is Thus whenever a man
), N ew T t t l a w n f , S t , M atth ew , 16 ; 3-0.
2. Ib id ., S t. M ark, 7 : 5-J3, *
3. Tafh-im af-Q w 'tinj V ol. I, pp. 254.66.
Political Concepts of the Qur'an 170
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 o f God, His 'abd (Slave}.
All other positions are just secondary. The centre o f loyalty
and obedience for a Muslim>in his individual as well as collective
life, is God alone. All other loyalties muBt be subject to and
totally within the sanction of God, None of them should, aven
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 w ords:
°There is no (permission for) obedience to the creature
if it involves disobedienoe 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 r ig h t; it is in faoi, the practical manifes
tation of obedience to God. The Prophet is obeyed because
he is the only authentic 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 unauthentio
and therefore, untrustworthy. Thus the disobeys! of the Prophet
is tantamount to disobeys] 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’ obedience the Islamic
Order of life are the ulul-amr, ».e», the men in authority, the
government. But obedience to ulul-amr comes only next to
obedience to Odd tend 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. « *
1. Bukhari, AbSakih.
2 Muslim. Al-Sah b
Po litica l Concepts of the Qur'an 181
The
come, sh ou ld we no t wage war against them 1° 1
o ! No t as lon g as the y off er sal at” .
Prophet said : “N
to God and
According to thia hadith the sym bol of obedience
d it also, then
to His Prophet is salat. If the ulul-amr discar
ste p ou t of the ba sic loy alt y to Go d an d His Prophet,
they
d the n it be com es pe rm iss ibl e to str ive to rem ove them.
An
(d) The Ho ly Prophet said :
and who
“ Your worst rulers are those whom you ha te
o ourse
ha te you and tho se whom you ourse and wh
het of
yo u” . Asked the Companions ; “ O, the Prop
not rise
God I If such is the situa tio n, then should we
op he t:
in rev olt again st them ?” . Replied the Ho ly Pr
among
“N o I No t as long as the y estab lish prayer
yo u” .2
in (c) above.
This hadilb further confirms the one mentioned
tha t even if the
The first hadith migh t be construed as meaning
rig ht to exact
rulers offer prayer in pr iva te, they retain the
y. Bu t the lat ter ha dit h cle arl y en un oia tee tha t wh at is
loy alt
uir ed is est ab lish me nt of the ins tit uti on of salat in the
req
, not only they
co lle ctive life of the Muslims. In other words
also uti lis e the
should the mselv es offer pravers, bu t should
r of the Sta te to est ab lish the ins tit uti on of salat in the
powe
ain s its Islam ic
com munity. If the Sta te do es this, it ret
it would mean
character. Bu t if eve n thi s much is no t there,
Sta te is no t pre pa red to ful fil eve n the fir st essen tia l
tha t the
would become
requirement o f Islam. In such a ’case it
ge the order of
perm issible for the Muslims to atrivo to chan
sod by the Holy
things. The po int has been further emphasi
Prophet in the follow ing hadilh :
We sh all no t dis pu te an d str ive ag ain st the rul ers save
(c) “
in the
when we see open Ku fr in the ir affairs—Ku fr
e our
presence of which we will ha ve no thing to eav
3
face before the Lord,
1. Muslim , *
2. ZMtf,
3. Bu kha ri, Al-Sahih* ah o Muglira.
18i TAe Isla mic Law and Constitution
The fourth principle which too has been dea rly and
definitely expounded in the above verge of the Qur’an is tha t in
An loh inic Sta te the Command of God and the Sunnah of the
Prophet are the final author ity. Whenever there ia a dispute
■ ’• "r •
* am ong the people or between the people and the rulers, it eha
ll
■be referred to the Book o f Allah and the Sunnah of the Prophe
t
and whatever Judgm ent follows therefrom should be accepted
as binding on all. Thus the fundam ental and distinc tive
characteristic of the Isla mic Sta te, which distinguishes it from a
non-Islamic Sta te, is that it accepts God and His Prophet as the
fina l authorities. I f this be lacking the State is not Islamic.
Some people ask how a modern sta te can look to the
Qur’an and the Sunnah for the solu tion o f all its problems.
There are Jots of problems concerning Municipalities, Rai l
ways, Pos ts and Telegraphs etc ., abo ut which the Qur’an and
the Sunnah hav e nothin g to say . Wh at will the Sta te do in
respect of the se 1
The objection is miscon ceived. The factor whioh dis
ting uish es a Muslim from a non-Muslim ie the difference o f their
approach to life . The non-Muslims, even tho se who believe in
God and in Prophethood, have ceased to loo k to His guidance
in reg ula ting the ir affairs. They regard themselves free to ohalk
ou t the ir own solu tion s for the ir problem s. A tru e Muslim, on
the other hand, regards him self subject to the Law of God in
all tha t he does and exercises his will to regulate his affairs
only to the ext ent he has been premitted to do so by Allah. He
first o f all turns to the guidance provided by God and His
Prophet and aots according to his own ligh ts only when and
where no specific or imp lied guidanoe is ava ilab le in the Qur’an
and the Sunnah. And this action in accordance wit h his own
ligh ts too is based on the principle tha t the sile nce of God and
His Prophet in a certain ma tter imp lies tha t They hav e left
tha t ma tter to the good sense of the Muslims.
5. The verse alto gives the people the right to differ with
their rulers and is a charater of the ir politic al freedom . In case
of disouto, however, the ver dict of Allah and His Messenger is
Politic al Concepts of the Qur'an 183
This
to be taken as final, both by the rulers and the ruled.
iding
clearly imp lies tha t there must be some ins titu tion for dec
In
such dispute in the ligh t of the Qur’an and the Sunnah.
epen
other words, the judiciary in an Islamic Sta te must be ind
dic t
den t, com petent and bold enough to giv e an impartial ver
dis
irrespective of the position and power of the parties to a
put e.1
V
THE PURPOSE OF THE STATE
Now we come to the purpose o f the Sta te. The Qur’an
lays down the follow ing dir ective in this respect :
“(Muslims are) tho se who, if We giv e them power in
the land, esta blish the sys tem of Salat (worship and
prayers) and Zakai (poor-due), enjoin rig ht and virtue
and forbid wrong and evi l.” (22 : 41)
The above verse epitom ises the purposes of the Islamic
inis
Sta te and the basic characteristics of the rulers and adm
the
tra tor s. This one verse alo ne is sufficient to giv e an idea of
nty"
nature and the objective s of the Isla mic Sta te. God’s bou
act
and assistance are for tho se people wh o, when giv en power,
in the follow ing way :—
(а) In their personal live s the y adopt the way of pie ty and
obedience. Their character is free from the blemisheB
of sin , disobe dience to God, van ity and arroganoe
They behave like real gen tlem en, offer prayers to their
Lord, act hum bly and esta blish the sys tem of Salat in
the collective life of the people.
(б) Their wealth and resources are not wasted on sensua
lities and luxuries. Instead the y esta blish the institu
tion o f Zakat (poor-due) the y pay the ir own Zakat
and organise the ins titu tion o f -Zdfeit so tha t the
wealth of the com mu nity may hav e an equ itab le dia.
trib ution and the Sta te ma y fulfil its wolfare functions.
1. Tnfhim al'Q ur’an Vol. I, pp. 363-66..
184 TA« Islam ic Law emd Constitution
( c) They use the powers of the State for the eradication of
evil and of ein and for the prom otion and establish*
meat o f virt ue and goodness.
These are the objectives of the Islam ic State .1 2
VI
THE PRINCIPLE S OP GOVERNMENT
In the Islam ic State the Government is democratically
cons titute d and is run with mutual consu ltation. The Qur'an
•Ays ;—
(a) "God has promised to those among you who believe
and work righteous deed s that Ho will surely grant
them viceg eren cy in the lan d /’ (24 : 65)
The verse is quite clear on the poin t that this vicegereney
is promised to the entir e Muslim comm unity. Therefore it is a
popular vicegerenoy and is not limit ed to any particular indiv i
dual or group of peop le. Consequently, the entire comm unity
is responsible for the affairs of the State8 and as such only that
government can legitimate ly carry on the business of the State ,
that has been cons titut ed by popu lar will and works in confor-
■
with the powers deleg ated to it by the comm unity.
(d) " It was by the mercy of Allah that thou hast been
gentle with them (O Muhammad}, for if thou h&dst
been stern and hard-hearted, they would have surely
dispersed from around abou t 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 I
Allah lovet h those who put their trust (in Him )” .
( 1 : 169)
(c) “ TAey manage their affairs by mutual consultation.”
(42 : 38)
It follo ws from the above verses that the approach of
1. Ta/W m al-Qw?an> Vol. I l l , p, 235.
2, Based on $ Tajhim al-Qur'an, Vol. H I, Surah pp. <17-420.
Political Concepts of the Qur’an 186
CONCEPT OF CITIZENSHIP
•. ’l l . x , « f !' v . r * . v j*
the subject race was deprived of all human rights and was with
out any guarantee of life or honour, in which all economic bene-
fitp were reserved for those who were born among the group of
rulers and all avenues of progress were closed upon the rest
who were subjected to servitude so that their life became an
unending woe of misery and deprivation.1
vin
bi&fecHVkffiiNfcihtfeSor state frbticY
N
for regret . and seek the bounty o f Allah so that he :may serve
. “ «. • t ; j '. f t . . .-• * • > : tT * ‘ 4 \ . : i. j 3 • . *
(d) In the 6th item it has been suggested that people should
. z ' • . I* * • . . . • • . •
*•
wealth that they neither hinder the proper and equitable cir-
culation o f wealth by acting miserly nor fritter away economic
strength by adopting ways o f extravaganoe.. They should main
tain a balance in their expenditure — neither hesitate to spend
where necessary, nor indulge in avoidable or uncalled for ex
penditure. All those who, 1q their spendings, are motivated by
hypocrisy, ostentation and exhibition o f wealth, or who spend
in the cause o f luxury, vulgarity, or corruption or needs other •. • *
* . "
(e) The seventh princtple gives tho lie to the basis on which
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
Is lam io Manifesto directs people to totally avoid all those efforts
which aim at curtailing the number of the people and instead
to devote heart and soul to tho constru ctive effort of multip ly
ing the means o f econom ic 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 econom ic resources.
God says that the provision p f econom ic resources does not lie
with man, it is solely in His Hands . He made the world, He
endowed it with all necessary resources, and He has been feed
ing those who have gone before and will feed those who are to
come in future. It is He Who has taken upon Himself the
feeding of His oreatiou. History also tels us that the economio
potential has increased in the countries whose population has
increased and often tho rate of growth of the economy has been
196 The Isla m ic Law and Constitution
m ore rapid. Ev er yb od y who is
■’ ' ••’ <borp on th is earth does no t
> ! . . {
J Jt L ■ •• ' . • * ••
arrive ju st w ith a ‘mouth and a stom i - i < s. * * *<z
First Principles of
•“ •
the Islamic State
«
1, All th® im plications o f the term « written co n stitu tio n 11 ehould bo very
clearly understood hero, A “ writ ten con stitu tion 0 m eans a. document
wherein aJl the bad io principles o f state organisation have been reduc.
6'1 into writing an d which is accepted ha the only authoritative
docum ent for th is purpose. W hen a country does n o t possess a
constitution. written in a form o f sileh a docum ent, it i*» en-id to have
an unwritten constitution, aven though all th e constitutional laws and
practices which go to con stitu te the unw ritten constitution of that
country, m ay be p resent in black and w hite,
Firaf Principle* of the Ielamic State SOS
I
SOURCES OF ISLAMIC CONSTITUTION
There ere four sources o f the unwritten Islamic Constitu
tion :—
1. The Qur’an r -
It 18 the first and the primary source, containing aa it does
all the fundamental directives and instructions from God Him
self. These directives and injunctions cover the entire gamut
o f 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 o f man. It has also
been clearly shown therein as to why should Muslims endeavour
to create and establish a state of their own.
2. The Sunnah
golden era. It has been accepted in Islam from the very begin
ning that interpretatio ns of the Qur'an and the Sunnah having
the unanimous approval of all the Companions (technically
known as Zjm5‘) and the decisions of the Caliphs relating to
constitutiona l and judicial problems accepted by the Compan
ions, are binding on all and for all times. In other words, such
interpretations and such decisions must be accepted in M o 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 interpretatio ns are aotually possible and any one of them
oan be preferred to the other on the basis o f sound reasoning.
But where there is a general consensus of opinions among them,
that shows that ono and only one interpretatio n or decision is
the correct and authoritative one. The reason being that as the
Companions were the direct disoipleB of the Holy Prophet (peace
be on him) and were trained by him personally, it is simply un
thinkable that even all of them combined failed to grasp the
real purport of the Prophet’s teachings or could be unanimous
in giving a decision against the real spirit of Islam.
4. The Rulings o f Great Jurists
These rulings which comprise the fourth sourco, are the
decisions of top-ranking jurists in regard to various constitu
tional problems o f 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 ate the four sources of our constitution. Whenever
we have to reduce the Constitution of an Islamic State into
writing we shall have 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 constitutiona l conventions,
various statutory provisions and infer a number of points from
the judgments of their courts relating to constitutiona l problems.
First Principles of the Islamic State 205
DIFFICULTIES
No doubt, all these four sources of Islamic Constitution exist
in a written form. The Qur’an is 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 is vague
or wanting ; and yet at the very outset of our quest of reducing
this unwritten constitution into a written one*1 a host of
difficulties and obstructions confront us. Before proceeding
further it is necessary that we should understand the true
nature of these difficulties.
(a) Novelty
• of
% Terms•
The first difficulty is linguistic, The Qur’anio terms relating
to constitutional matters, as also those of Haditb and Fiqb, have
long been out of use and have by now become incomprehensible
even to the learned amongst us, let alone the commoners.
Unfortunately, Islam has been a dosed book for all practical
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, kaftan,
Mulk, Hul&n, Amr, WHayat, 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 ^uprising,
for, in the Qur’an they find no chapter with 'Constitution’ as its
title.
1. A leading law yer of P a k is ta n had even declared, in an artiele publi
shed in the D aily Dawn, Karachi, th at the Qur’an cannot give a
'C on stitu tion 1 and had challenged that do one can produce an article
■ o f the C onstitution from the Qur'an—Editor.
206 The Islamic Law and Constitution
II
FUNDAMENTAL PROBLEMS
OF POLITICAL THOUGHT
I will now disouss 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. Thia
will help you to judge for yourselves whether Islam gives any
guidance io us in the field of constitution or not and whether
that guidance is merely of a recommendatory oharaoter or of a
mandatory nature—so fundamentally mandatory that we can*
not overlook or by*pass it, if we olaim to be and wish to remain
Muslims. In order to finish the disoussion 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 I Any king or body of people !
Any class, clan or the whole nation ? Or God Almighty
Himself ?
(2) What are the functions and scope of an Islamic
State ? To what extent can it command allegiance from its
citizens and whore and when the State will lose this right I
(3) What are the powerB and functions of the various
organs of this state, i.e.» the Executive, the Judiciary and
the Legislature ? What are the rights, duties and Limita
tions of each, and what are their relations inter sc 1
(4) What is the real purpose of the State I That is,
what are the objectives that it will strive to achieve and
what are the fundamentals of its overall policy ?
J
State f ill
P in t Pr in ci pl es of the Is la m ic
ve rn m en t of th is st at e to be co ns tituted!
(o) How is th e go
t w ill be th e qu al if ic at io ns of pe rs ons consider
(6) W ha
le fo r ru nn in g th e go ve rn m en t of th is state ?
ed elig ib
be th e co nd iti on s of its ci tiz en ship and
(7) W hat will
this righ t ?
how will a person acquire and lose
ill be th e fu nd am en ta l ri gh ts of it s citizens? and
(ft) W hat w s citizens
th e ba si c ob lig at io ns of it
(9) W hat will be
towards th e St at e 1 eo ry and
ar e th e ke y- po in ts of po lit ic al th
These questions sw er s to th em .1
e cl ea r-cu t an
a co ns titutio n is expected to provid
HI
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 thia point fully, we would be well advised to first
grasp the exact 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 hia 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 beoause the Lawgiver desires
to be so. If, therefore, the Law*Qiver 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
bis orders, questions of good and evil and right and wrong can-.
First Principles of the Islamic Stale
4
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. H is behaviour is the criterion o f right and wrong and
none can question it. I t ia thus inescapable that the sovereign
should be accepted as being absolutely above all aberrations and
errors, even though he may not actually be so.
Such is the nature and meaning of the concept of sovereign
ty as enunciated by the modern 4lawyers and jurists 1. 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 is not available. In the
can find nobody of the size whom thia cap would fit—t hat fa,
nobody from amongst the human beings. Even in the entire
gamut of creation, there is no creature who oan rightly claim to
possess all the attrib utes of sovereignty. The Qur’an stresses
this very truth when it says repeatedly that sovereignty belongs
to God and God alone. He is Omnipotent, t.e,,
He can whatever He likes j1
He has to refer to none and to render account to none ;2
He is the source and fount of all autho rity ;34
He is the only one whose autho rity and power nothing can
limit or restrain ;< and
He alone fa above all abberration and error.5
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 contraven
tion of or in contradiction to hia will, that he should have to
be implicitly and explicitly obeyed, and th at no question of
right or wrong, virtue or vice, should be possible to be raised
in respect of his words or wishes.
Whoever actually enjoys these attrib utes, whether an
individual or an institution or a people, the question will in
evitably be asked : what justification is there for the investment
of those powers and for that sovereign autho rity ? The most
that can be said in reply to this would be that a general
consensus of opinion justifies such a course. But, aro we pre
pared to accept Buch a contention ? Suppose a person willingly
auctions himself. Does the purchaser really become his owner?
If it is not ao, we may well ask : how can then mere acceptance
by the people of such an investment justify this alleged sover
eign statue? The Qur’an unravels this knot by declaring that no
1. Al-Qut'dn, 33 : 36. 5
X Ibid., 5 ; U .
222 Islam ic Law And Constitution
would decide which of these inter preta tions should be
placed on the Statu te 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
lette r of the Shari'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 auth ority to accord preference to one or
the othe r of the various interpreta tions and to enact
the one preferred by it into law, provided of course
that it is only an inter preta tion and not a perversion
and camouflaged deviation from the law.
. If'
(m) Wherever there is no explicit provision in the Qur’an
or the Sunnah, the function 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 matt ers even basic guidance
is not available from the Qur’an or the iSuw-naA, or the
conventions of the Righ teou s Caliphs, ft vpould be
taken to mean that God has left us free to legislate on
those points according to our best lights. In such
cases, therefore, the legislation can form ulate laws
without restriction, prov ided such legislation is not in
contravention of the lette r and the spirit of the
Shari* ah—the principle herein being th at whatever has
not been disallowed is allowed.
We have deduced these four functions from the Qur’an, the
Sunnah, the usages of Khilafai-t- Rashidab and the opinions and
rulings of eminent juris ts of Islam . If need be, I can quote their
sources but 1 think that whosoever has grasped fully the funds-*
jnental principles of the Islamic State , can also realise by mcle
commonseuse that in a state of thia character, these should
Principles o/ ike Islamic State 223
constitute the functions of the legislature.
Function o f the Executiv e
We now come 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
practical application in its life. It is this characteristic of the
Executive of a Muslim state which distinguishes it from the
executive of a jion-Muslim • • state. The woittg Ulul-Amr and
Umara* 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.’1 (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 :
(i) "Even if a defaced slave is made your Amir, listen to
him and obey him as long as he leads you in accordance
with the Book of God”*1
(u) “ Obedience is obligatory on every Mnslim, whether he
likes the command or not, unless he is ordered to
commit sin,—in which case the obligation lapses
automatically” .2
1, Muslim, al-Sahth.
2. Multaflq 'A laJi u.e., Both the authentic books of hadith, Bukhari wid
Muslim quote it.—-Editor.
224 Tta Islamic Law and Constitution
■ discussed about
thevarioug organs of the State is, In what form are these organs
of the Islamic; State —* the legislature, the executive and the
judiciary — related to one another ? There are no clear - cut
instructions on thia point. But the conventions o f the Prophet’s
period and of the period o f the Righteous Caliphate afford us all
the necessary guidance. From these conventions we learn that
the. Head of an Islamic State is, as such, the supreme head o f all
these three different organa. The Prophet enjoyed the same
status and this position was maintained by all the Righteous
Caliphs. '■
'' ' • ' A ’
But under the Head of the State the three organs functioned
separately and independently of one another. The body called
• • • . • ' * *• . " . * . • •, f , •
1. No doubt, the Shi's sect o f the Muslims hold the belief that, like the
■Prophet, the I main a too are chosen and nominated by God Almighty
H im self, This divergence o f belief from the rest of the Cfynmnfc
the AM al-Sunnah has, however, no practical value now, as with the
disappearance o f th® 15th Imam, the Imamate remains in abej’anoe
until he reappears. For all actions in respect of the collective pro
blems o f Muslims, therefore, reference has got to be made to some
Such person who has not been directly ohosen by God Al n ig h tly but
fleeted by the Muslims themselves,
Fir st Prin ciples of the Islamic State 233
the opinion being sligh tly more in favour of ‘Uthm an. So the
vote was oast in his favour and he was openly accepted as the
Caliph.
4
Then oocurred the tragic and deplorable incid ent of Uth-
man’s brutal assassination which created a serious situa tion.
Some of the Companions, there fore, 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, shou l
der that respo nsibility. 4All declined to do so. Bat when these
people insis ted, he, at last, agreed saying.
“ If you wish it to be so, then come to the mosque, for
my acceptance as Amir cannot be secret nor witho ut the
approval of the Muslim masses®” .1
Consequently, 'Ali went to Prop het’s Mosque where people
were assem bled. And it is an incon trove rtible fact that the
majo rity of the people accepted him as their Caliph, even
thou gh this acceptance was not unanimous.
Last ly, when •Ali was murderously attacked and the time
of his death drew near, he was asked if he perm itted 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
2
bo. You can decid e according to your light s.”
Thia, therefore, is the accepted convention of the period of
the Caliphate regarding the appointm ent and election of the
Head of the Islam ic State , and this is also the sum-total of the
colle ctive conduct of the Companions in this impo rtant matter.
It ie baaed as much on the Prop het’s abstinenc e from nominat
ing his successor as on the Qur’anie injun ction that all impor
tant decisions in matters of colle ctive inter est should be taken
by consu ltatio n. The poin t, that can be clearly inferred from
these auth entic constitutio nal precedents are : •
(1) In an Islam ic State , the eleotion of its Head depends
entir ely on the will o f the general public and nobody
1, Tabari, op. oil., Vol, III, p. 450.
2. Ibid., Vol. IV, p. 112.
First Principles of the Mamie State 230
1. There are some people who say that this be accepted as the principle
of Tel am, what about the verdiot of eminent jurists and learned men
of the days of the Muslim kings who acoepted the authority of those
who became the rulers through sheer force of arms. As a matter of
fact ‘ aych people mix up and confuse the following two entirely
different and distinct positions adopted by the Muslims scholars of
the p a st:
(1) All the eminent scholars are unanimously of the opinion that
the only proper and psrmiW&fe method is that of election in which the
will of the Muslim masses 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
doss not interfere with the fundamentals of Islam. Tn other wordB,
the most that these people do is not to concede a right to revolt, be
cause that would lead to anarchy only. This does not all mean that
persons holding this opinion upprove of such tyrants and prefer them
to properly elected Amirs
2. In relation to thia matter also, certain people raise doubts as to how
to reconcile it with the Hadith in which the Quraysh have been declar
ed to be the fittest for the ofiice of the Caliphate. I have already
replied to this in my book : ZtasaM wo Afaea’tl. Vol, I, p. 76, 3rd
impression, Lahore.
236 The Islam ic Law and Constitution
ative Assembly (Ma jlis^ cShu ra) to be eleoted and who shall
elect them 1
From a superficial stud y 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 consult. This error is due to the
fact that the preceden ts of thes e time s are applied to modern
„practices with out referenoe to the then prev ailin g conditions.
The oorreot way would be to apply them only with reference to
the then exist ing circumstances and to make an hone st attem pt
to understand the spirit of thos e principles and their deta ils
as interpreted with in the framework of the then existing condi
tions.
Islam arose in Mecca as an ideological movement. And it
is an inherent feature of all ideo logical mov ements that persons
accepting that movement first, are counted sb the true compani
ons and friends as well as advisers o f the Leaders of that move
men t. Likewise in Islam, persons who were the first to associate
them selves with the Prophet and his movement, naturally and
auto matically beoame his advisers whom he invariably consult
ed in all cases wherever clear and defin ite inju nctio ns of the
Qur’an were not available . When, how ever, new blood entered
the Islam io body polit ic and the stru ggle with the opposing
force increased, those who rendered outstand ing services by
virtue of their sacrifices, insig ht and wisd om, natu rally beoame
prominent with out any conscious effort on their part. This
election, therefore, took place not by means of vote s but by
virtue of practical tests and performance which are indisput
ably a more natural and reliable meth od. Thus even before the
Prop het migrated to Madinah, two kinds of people had already
become members of hie Con sulta tive Assembly, viz.
(а) Those who had been associated with him from the very
beginnin g, and
(б) Those who subseque ntly became prom inent by virtue of
First Principles of the Islamic 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, certain influential personalities of Madinah had
embraced Islam and through their labours, Islam had establi-
shed a secure foothold in th at city among the tribes of Aus and
KKazraj, I t 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. I t was, therefore, only
natural that these very people, with whose services Islam had
prospered and progressed in Madinah Bhould be the leaders of
the newly-formed society and its political organization. And
naturally again, it was most befitting th at 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 al) important matters every body automatically
looked to them. Tho 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 tho most reliable authorities in these matters.
238 The Islamic Law and Constitution
collective good.1
From the conventions of the Caliph a, nay, even from the
oonduct of the Prophet himself, the inferred rule la that the
Amir*s Consultative Assembly is not to con sistof 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 o f the publio 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.
VI
RULERS AND THEIR QUALIFICATIONS
From the Islamic point of view, the qualifications of office
bearers is very importan t. 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 bo termed as legal eligibility, on the
basis of which an Election Tribunal or a Judge, after due con-
First Principles of the Islamic State 243
1. Bukhari, 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 which 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 Hadith,
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 J ’ (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 ohosen 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 remembrance, one who is
followed by the dictates of his own deBires and his
case is that in which due limits are transgressed.”
(18 28)
The Holy Prophet (peace bo upon him) says :
(a) “ Whosoever honours and reveres an innovator (in
religion), helps in bringing down the edifice of Islam.” 1
(b) “ 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.”23
(o) “ Wo consider the seeker after a post (of trust and
responsibility) as the moBt untrustworthy.”2
Some of those 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 Mutton.
3. Quoted by Abu Da'ud.
JMrtf Principles of the Islamic State 24S
for election should be declared ineligible. As regards other quali
fications for which no legal limit can be prescribed, wo 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 oonduct 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 beating 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 disejiminating between them in practice and withhold
ing even the fundamental human rights from a considerable
Bection of the population, like Russia. In fact, in all modern
countries the national and the Ideological minorities1 are invari
ably treated in this very fashion. The course adopted by Islam
in this respect too is most rational, jusi 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 : 4>
“ Verily those who believed and migrated and struggl
ed hard in Allah’s Way with their property and their souls,
1, I t must not be forgotten that there is a world of difference between a
political minority and an ideological cultural of national minority.
246 The Islamic Law and Constitution
Duties of Citizens
As against these rights of the citizens, thera are certain
rights of the State upon its citizens. Among these, the fost is
that of obedience, for whioh the technical term o f flsrt-o-T a’at
Fundamentals of Islamic
Constitution
(as enunciated. in the Qur’&n and the Sunnah)
t
I
The Holy Qur’an says :—
“The (right of) Command is for none but Allah. He
hath commanded that ye follow none but Him. That is the
. right way (of life)”* (12 : 40)
This verse dearly points out that the authority of giving
commands and the title to sovereig nty is the sole preroga
tive of Allah. There is nothing in the text to confine His Sover*
eignty merely to its metaphysical aspects. It is direotly address*
ed to mankind and is obviously all inclusiv e. It comprehends
all spheres of human life : the doctrinal, moral, legal as well as
politica l. The Qur’an itself specifically states that all these
spheres of sovereig nty belong to Allah alone, and i t puts it in
very clear termB that Allah is not only the Sustainer and the
Lord of mankind but also its Sovereign and Ruler :—
“ Say (0 Muhammad) : I seek refuge in the Sustained
of mankind, th’e»Sovereign (Ruler) of mankind, the Lord of
mankind ” (114 : 1-3)
The Qur’an further IayB down that Allah is the Master of
the land and has no partner in His Sovere ignty.. Thue says the
Qur’an : ’
“Say : 0 Allah 1 Owner of the Kingdo m I Thou giveat
kingdom to whom Thou wilt and takest it away from whom
Thou wilt”. (3 :2 6 )
“ None is a partner in His Sovereignty”. (18 : 111)
The Qur’an declares very explicit ly 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)
4 Rule”. (7 : 54)
Obviously, the sovereignty which the Qur’an claims for
God id not merely of the metaph ysical type but is also legal and
256 I’M laiemtc Law and Constitution
II
All the prophets in general and the Holy Prophet
Muhammad (peace be on him) in particular are the representa
tives of this political and legal sovereignty of God. As a corol*
lary to this, the prophets of God are entitled to the obedience
of those who accept God as their Sovereign. It is. therefore,
the bounden duty of every such individual, community and
nation as believe in Divine Sovereignty to follow the pattern
/tmiomenla J* of Islamic Constitutio n 257
IV
How thi s principle of ‘Popular Vioegerenc
y’ should be
translated into action has been described clearl
y in the follow
ing :
“ They manage their affairs by mutual consu lta
tion’*.
(42 : 38)
Th is verse tells us the dis tin cti ve fea ture of
the Islamic
way of life , namely, tha t all the co llective affair
s are performed
by mutual co nsultation . From th e co nte xt
where this verse
occurs, it is ev ide nt tha t it is no t a mere sta tem
en t of fact but
an injunction and a command. In thi s co nn
ection Kh atib al-
Baghdadi quotes the follow ing from Caliph f Al
i :
“I said, ‘O Messenger of Allah 1 what sh ou ld we
do if,
after your demise, we are confronted with a pr
oblem about
which we ne ith er find an yth ing in the Qu
r’an nor ha te
anything from you* t He replied : ‘Get
togeth er the
ob ed ien t (to God and His Law) people from
amongst my
followers and place the matter before them
for consu lta
tion. Do no t make decisions on the ba sis of the
opinion of
an y sin gle person’/ ’1
Po inting ou t the true sp iri t of co nsultation
, the Holy
Prophet (peace be on him) says ;
“ The man who giv es a counsel to his brother
knowing
I. Alual, Huh ul^ lu* uui.
260 Th* Islamic Law and Constitution
full well that it is not right, does most surely betray his
trust’*.1
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 dimes. I t does not, therefore, lay
down whether the people should be consulted directly or
through their accredited representatives ; whether the represent
tatives should be elected in general elections or through electo
ral colleges ; whether consultative body should have one house
or two houses, eto. Obviously, these are matters of detail and
can vary with different societies and under different conditions.
That is why the Skari'ah leaves these problems open for solu
tion according to the needs of the time. The following three
things, however, are essential in the light of the Qnr’anio verse
and the Traditions of the Prophet cited 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 hie will, for
. during the period of suspension he would be nothing
short of an autocrat.
(2) All the people concerned should be consulted directly or
through their trusted representatives.
(3) The 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 must be observed, and no loophole
should be left whereby anyone g6ts the opportunity at any time
to govern without consulting the people or their accredited
V
Aa 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)
(t) 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 :
(а) “ 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”.l
(б) “ 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” .*2
(c) “ We consider the seeker after a post (of trust and res
ponsibility) is the most untrustworthy.” 3
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 onquirod of the
. Messenger of Allah about appointments on posts of trust,
L R elated by M uslim.
2. R elated by Bukhari and Afeeftm.
3, Related by Abu D g'u4,
262 Ths Isla mic Law and Constitution
He replied : ‘Th ey w e for tho se who do not aspire for them
and not for tho se who are greedy afte r the m ; they are for
tho se who run away from them and not for tho se who
scramble for them ; they are for tho se to whom they are
offered (withou t asking) and not for those who claim them
as their righ t’*.1
Alth oug h the instruction s contained in the above-m ention
ed quotations are of a general nature and do not specify any
particu lar machinery of elec tion for bringing the right typ e of
people to the helm of affairs, it is the dut y of the con stitu tion
makers o f tod ay to dev ise practical means for putting these
injunctions into practice. They should evo lve suoh a system of
election s as would ensure the app ointmen t of only those who are
trustworthy and piou s, are loved by the people and are their
well-wishers. They should also dev ise effective measures to
defeat the designs and machinations of tho se who scramble for
posts of truth and are consequently hated and cursed by the ’
people in spite of their BO-called “ victorie s” in the elections.
VI
The Holy Qur'an Bays :
“ Men are in-oharge of women” . (4 : 34)
And in a Bad ith we have been told :
*
“ A nation tha t entrusts its affairs (of the Sta te) to a
woman can never prosper?*2
These injunctions of the Qur’an and the Sunnah categori
cally declare tha t the posts of resp onsibility in an Islamic Sta te
(whether it be its pre side ntsh ip, min iste rsh ip or membership of
its legislature or the directorship of some department) cannot
be eutrusted to a woman.
In Islam there is a fun ctional distribu tion between men and
women and according to tha t the fields of politics and adm inis
tration belong to the men’s sphere of resp onsibilities. There
1. Shark al-Sunnah.
966 TAc Mamie Law and Constitution
up) against them.’11 >
Another tradition says that when the Companions asked
the Prophets permission to rise against bad rulers, he replied ;
%4No (you cannot rebel against them) so long as they
IX
The Qur’an says ;
“ Lo ! Allah commandeth you to repose truth with the
trustworthy and when you judge between people, judge
justly.” (4 ; 58).
H Let not the enmity of any people. seduce you from
pie of Islamic Shari'ah that all noh-MuHlims who live under the
protection of an Islamic State are entitled to the same civic
rights that the Muslims enjoy.
(3) As regards the procedure to be adopted for the admin^
istratio n 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, ho 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 territo ry of Iraq, some people began to back
bite and make false allegations against one another and in this
way, wore responsible for sending many persons behind the
bars. When such complaints were brought before the Caliph
4Umar, he passed the above order. It meant that no one could
bo imprisoned without a regular trial in a law court and without
giving him full opportunity to defend himself.
(4) When, the KharijiUs who did not believe in any stite,
rose in revolt during the Xhilafat of Caliph 'Ali, ho
wrote to them :
L Related by Bukhar i.
2. R elated by Abu Da’ud, T irm iti and
3. R elated by M alik, M uwatta.
Fundamentals of Isla mic Constitution M9
Rights of Non-Muslims
in Islamic State
1. Hence the word "Ztmmi" which literally means •*gus ran toed
2. Foreign reviewers and oritios have particularly criticised this U is w -
siozi over the approach and policy of a national state and have
described it as inaccurate and even **burlesque.**
Rights aj ffon-ifiuNmi In ItlomZe State 9 ft
o itise u of the State on paper on the one hand and leaving none
o f them unviolated in practice on the other.
We now revert to the problem under consideration.
II
THE CLASSIFICATION OF NON-MUSLIM
CITIZENS
The Islamic Shari1ah divides its non-Muslim citizens into
three categories, vis.
(a) Those who become the subjects 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,
“ Coutractees”
For those who accept the hegemony of an Islamic State
without or even during a war, and enter into a Bpecifio contract
with it* Islam prescribes that all matters relating to them
should invariably be decided in accordance with tho terms pf
the treaty or agreement* To offer generous treatment to oppo
nents in order to persuade them to lay down arms and then to
throw them overboard, is the everyday practice of all the so-
called civilized nations of the world ; but it militates against
tho injunctions of Islam which cannot brook such deception.
Islam considers such feats of strategy as fraudulent and mean
and prohibits them totally. It enjoins that once the terms have
been settled with any group or community, they must be fully
adhered to, even if the-v seem to be distasteful later on. *Iu3-
lima are bound by their faith to abide by them and to carry
them out in letter and spirit. The Holy Prophet (peace bo ou
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 111930 of
their progenies, then do not take a penny more than the
fixed amount, because that will not be valid,”12
1. Imam Abu Y ousuf was one of-tho greatest Jurists of lel&m. Ho wee
the Chief Juelice o f the Abbas id empire during the reign of Harun
al-Reshid. He was the chief disciple o f the groat legist, Imam Abu
Hanifa and he has been regarded, throughout Muslim history. as an
authority on Muslim Law. Hie great work, K itab al-Kbarty is counted
as one of the sou roe-book s on the Hanaflto law.—Editor.
2. Abu Yu,usuf, KiAib al-Kharoj, Cairo, p, 35,
Rights 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 oertain specific rights, details of which oan be found
in all the standard books on this subject. Here we state briefly
all those relevant injunctions on this point, which explain the
constitutio nal status of Zimmis belonging to thia category :
(a) As soon as the State accepts Jizyah from them, i t be
comes the obligatory responsib ility 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.”
Ill
GENERAL RIGHTS OF THE ZIMM1S
We will now discuss those rights of the Zimmis which cover
all the three groups categorised above.
The blood of a Zimmi is considered as sacred as that of a
1. A rupee ie approximately equal to 4.S pence and there are 1U0 paisas
in a Rupee,—Editor.
2. 8©e: Kamaluddin Ibn Ham roam, Fatk al-Qadir and Abu Yousuf, KitaZ>
ol.K haraj,
3. AbS Yousuf, I bid.
Rights of Non* Muslims in Islam ic Slats 283
1. T his period is norm ally four m o n th s and ten. days. Tn the case of pre
gnancy, it exten d s to and expires. on do!ivory.
ate 2S7
Righte of N on -M utlim s in M am ie St
la m ic Co ur ts w ill en fo rc e th e Sh ar i'ah on them .
Shari'ah, th e Is
in a m at te r of Pe rs on al La w, on e of th e pa rtie s is a
Further, if
e ca se w ill ha ve to be de al t w ith in aooordanse w ith
Muslim, th
h. Fo r in sta nc e, if a Ch ris tia n woman
th e Islam ic Shar i'a
us lim an d be co m es a wi do w, sh e oa nnol be pe rm itt
marries a M 1Id io t. If
th e ex pi ry o f th e fu ll pe rio d o f
ed to marry un til
m ar ria ge wo ul d be re ga rd ed as nu ll and
she do es so, such a
vo id .1
Religions Rites
an d pr ac tic e re ga rd in g th e pu bl ic perfor
The Is la m ic Law
lig io us ri te s an d co m m un al fe st iv al s by th e Zim m te
mance of* re
In th ei r ow n to w ns an d ci tie s, th ey are
are equally generous.
to do so w ith th e fu lle st fr ee do m . In purely Muslim
allowed
2 3 ve r, an Is la m ic G ov er nm en t ha s fa ll discre
ha bita tio ns, howe
re st ri ct io ns on th ei r ob se rv an ce as it deems
tion to put such
necessary.
In Badai' it is sa id :
ie s no t co ve re d by th e te rm 'p ur el y Muslim
“ In lo ca lit
*, th e Zi m m it wi ll no t be st op pe d from selling
habitations
po rk or fr om ta ki ng ou t pr oc es sio ns of th e Cross or
wine or
no he s, al th ou gh th e nu m be r o f M uslim in
from blow in g oo
er ein m ay no t be ne gl ig ib le . Th ese matter#
ha bita nt s th
we ve r, be co ns id er ed ob je ct io na bl e in to w ns and
will, ho
wh ich m ay be te rm ed as 'p ur ely Muslim habitation*
places
er e Fr id ay an d *l d co ng re ga tio ns ar e he ld ” .
i.e ., th ose wh
rd in g ac ts wh ich ar e pr oh ib ite d by their codes
“ Rega
fo r in st an ce ad ul te ry , th ey ar e to be restrained from
also ,
ev en w ith in th e lim its of th ei r ow n to wn s
co m m ittin g them
8
and ha bi ta tio ns ”.
" amounts which may bo beyond their means. Caliph ‘Umar had
clearly ordered that they should not be made to pay more than
what they could actually afford.12
And even for that are not to be put to any undue in con*
venienoe. Thus, their properties cannot be auctioned in case of
failure to pay Jizyah. Caliph '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 hi a 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
auctioned for this purpose. Now that we have been made
their rulers wo should treat them with mildness and
lenienoy. 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 office’*.3 45
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
When, during his journey to Syria, Caliph ‘Umar learnb/of
governor’s punishing the jSiwttnw for non-payment of Jizyah, he
said :
“Do not chastise them, for if you do bo, God Almighty
will do the same to you on the Day of Judgment”-3
Hisham bin Hakam found a Government officer punishing
a Qibli for failure to pay Jizyah by making him stand in the
Trade T ax
Zimm i traders also have to pay a trade -tax as is charged
from the Muslim traders on trade goods oi the value o f X)0
dirhams or more or i f they own 20 miihgals or more o f gold.*
No doub t, in the begin ning, the Juris ts levied 5% trade -tax on
Zim m i basinem-m en whereas only 2 was realised from the
Muslim trade rs. Thia was, however, not on the basis o f any
Qur’anic injun ction but solely on the exige ncies of time. The
position was th at Muslims had been most ly busy in the defence
o f the country and business had almo st entir ely passed into the
hands o f the Zimtn is. The tax was reduced in the case of
Muslim traders only to enoourage and prote ct them from undue
comp etitio n.
Excm ydan from M ilitar y Service
Zim m is have been exem pted from milit ary d u ty, because
the defence o f State again st its enemies has been made the res
ponsibility of its Muslim popu lation only. Evide ntly only
those people who believe in the basic ideology of the State
sincerely can and should fight for its protection* A gain, only
the believers in that ideology can be expected to honour the
moral principles whioh have been prescribed by Islam for war
fare. Other s can fight for it only as mercenaries and, conse
quen tly, they canno t be expected to observe the Islam ic ethic al
code in the heat of the battle . These are the main reasons
1. For a detai led discu ssion on thia subje ct refer to ; Mabaul, Vol. X,
pp. 78-79 ; Ha (lay a, Kitab al-Siy ar fi Kaifl yat Qitma l al-Gh waem and
Boat al~Ji*yah ; Fath al-Qadirt Vol. IV, pp. 827-28 and pp. 369-70.
It shoul d, however, be remem bered that if the Zimm is offer their
Services volun tarily in ease of war, the persona doing so will be ex
empt ed from paym ent of Jityah . Furth ermo re, the fact that should
also be kept in view in this respect is that the obno xious ness that the
non.-Muslims gener ally feel by the very mention of the term Jizya hi
is the resul t of persistent, basel ess propaganda that the antag onists
o f Islam have been carry ing on for the last so many centu ries. As a
matter of fact there is absol utely no basis for this feelin g. Jizya h iff
the consi derat ion for the prote ction and the safegu ard o f their rights
that an Islam ic State guara ntees to the nun-M uslim s. Then , this is
realis ed from the Rblo-bodied adult raak.i only. The people who mis
chiev ously call it ‘a fine for not accep ting Islam *, can be pertin ently
asked : what name will they give to Zaka which is charg ed from all
adult Muslims—m ales as well as fem alos—and the rate of which is
much highe r than that o f Jizya h ?■ Is that the 'fine for accep ting
Islam 1 T .
IWpAfa of Non-Muslims in Mamie State 293
towns, writes that when the Muslims refunded the amounts of.
Jizyahin 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 are not going to allow their agents to enter the
gates of the city unless we are overpowered by them”.1
IV
MUSLIM JURISTS AND THE Z IM M IS
In the foregoing pages we have briefly disoussed the details
of some of the laws which were adopted to protect 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 the Muslim
Jurists stood up with one voice to champion 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 thia to
him and he at once wrote to the governor of the province to de
molish thoBe portions of the mosque which 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 back all the exiles to Cyprus, for
which he was highly praised both by his friends and foes.
Isma'il bin ’Ayyash has mentioned this. He says :
V
ADDITIONAL RIGHTS AND PRIVILEGES
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 upon them by the Islamic
Shari'ah t Muslima are not entitled to ourtail 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 :
■
(I) 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 which are commonly
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
(Council) is to assist him in doing so. It is thus obvious that
those who do not aocept 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 nomMuslims to become its members provided that it has
been fully ensured in the constitution that :
(i) It would be ulira vires of the Parliament or the Legis
lature to enact any law which is repugnant to the
. Qur'an and the Sunnah.
296 TAe Islamic Law and Constitution
(tt) The Qur'an and the Sunnah would be the chief source
of the public law of the land.
(m ) The Head of the State or the assenting authority would
necessarily be a Muslim.
With these provisions ensured, the sphere o f influence of
non-MusIim minorities would be limited to m attenfrelating 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 up 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 receiving the assent f
of the Head of the State ;
(b) they may submit representations, objections, sugges-
tions etc., with the fullest freedom in regard to the
general administration of the Government and the
decisions o f 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 o f Expression
In an Islamio State all non-Muslims will have the same
feeedom^of conscience, o f opinion, o f expression (through words
Rights of Non*Muslima in Islamic State 297
(3) Education
They shall n urally have to accept the same system of
education as the G ermnent may enforce for the whole country.
As regards religio education, however, they will not be com
pelled to study If m, but will have the right to make arrange
ments for impart g knowledge o f their own religion to their
children in their own schools and colleges or even in the
National Universities and Colleges.
(4) Government Service
With the exception of a few keyposts all other services will
be open to them without any prejudice. The criteria o f compe
tence for Muslims and non-Muslima will be the same and the
most competent persons will always be selected without any
discrimination.
298 The Islamic Law and Constitution
A list of keypostB 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 impo rtant 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 lette r and the
spirit of the ideology. With the exception of these keypoata,
however, all othe r posts will bo open to the Zimmis. For
instance, nothing can debar them from being appointed as
Accountant-General, Chief Engineer or Postm aster-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 Zimmis.
(5) Trade and Profe ssion
VI
THE LAST WORD
It is necessary to emphaeize before closing the discussion
that an Ialamio State ie bound to give to the non-Mualim citizens
whatever rights Islam prescribes or perm its, regardless of what
rights and privileges are given to or withheld from Muslima in
the neighbouring or othe r non-Muslim state s. Islam does not
believe in the faot that Muslims should draw up their social or
economic policies only with reference to the policies of non-
Bights of Non-Muslims in Islamic State 299
Muslims, nor does it tolerate that if non-Muslims act unjustly,
the Muslim states should make thoir 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 code 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 Taiam io 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 oirole of injustice be broken which
ia unfortunately going on in India with full vigour. And only
in this way can Pakistan become the harbinger of truth and
justice and show the right path to India also. The pity, how
ever, i s - that many non-Muslims of Pakistan who have been
paying heed io 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 th at a Secular Republic like the one in India
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
to try and test a system of life based on godliness, honesty and
observance of unalterable ethical principles than to follow one
that has been tried and found wanting 1
Chapter 9
it ever the nation al mind o f the Muslim s 1 Was this the ir line
of thin kin g in pre-partition days ? Did the general Muslims’
minds mo ve in these overt grooves i We are confident tha t the
Muslims neither subscribed to this view in the past nor hold
the view -po int tod ay. Our nation al psy cho logy has neither
been bo corroded in the past nor is it by the grace of God so
polluted tod ay.
Their rejection of the Congress stan dpo int was not merely
because its adopt Bn would have led to cata stro phic results for
the Muslim minority inh abiting the Ind o-P akistan sub-continent
but prim arily because 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.
Ths history of this very sub -con tine nt knocks the bottom
out of the idea of territorial nation alis m. Innumerable Hindus
of India embraced Islam many centuries ago and aa soo n aa
the y did this , the y cut off all their affinities with the Hindu
soc iety in spite of the fact tha t the se con ver ts to Islam and
the ir former kith and kin belonged to the same race, expressed
themselves in the same language and live d on the same terri
tory . On the contrary, Muslims coming from various distant
countries were soon absorbed into the loca l Muslim soc iety
despite geographical, racial and ling uistic differences. They
become one with the local converts— members of one Islamic
fratern ity. .
All this was not just a mere acc iden t. It was the resu lt of
. a peculiar concept of ideo logical nation hood and of the centur*
ies old trad itio ns of Muslims—a concept and trad itio ns which
out accross all barriers of race, colour and language.
It was due to these factors tha t Muslims star ted demanding
separate elec tora te as soon as dem ocratic inst itut ion s were set
up in the sub -con tinent. They trampled the Congrossite one-
nation theory under the ir feet and rejected the system of join t
electorate which was intended to weld all the com munities in-
The Prob lem of Elec tora te . 300
Bat in this case the next step—a step that most follow—is
to frame a secular constitutio n, which will lead to a still fur-
ther step—to let religion live by suffer anoe and remain strictly
oonfined 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.
Is this the object of the protagonists of joint electorate I
If this is their objective, they should at least have the moral
courage tQ say it frankly.
But this may be the view of a few secularists. As for the
millions of Muslims o f Pakistan) they have nothing but con
tempt for it. Because, if this was what the Muslims wanted,
what was the harm in a United India (Akhand Bharat) 1 What
was tho need of offering a heavy price of life and property for
the establishm ent o f 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 thia will prove suicidal
for the integrity of Pakistan.
We should not forget that it is tho 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 single country.
Race, geography, language and mode of living—none of these
factors can unify them. The only unifying factor is the religion
o f the majority which initially led to the establishm ent o f this
State and which alone can work as a unifying factor.
The day the religious spirit and consciousness o f the people
are cooled down and people Login to feel in terms of any other
linguistic and cultural differences are bound to gain strength
The Problem of Electorate 309
and open work. Now they want to Bit behind the screen and
pull wires. They know that those Muslima who are elected with
the backing of Hindus will be far more useful and effective for
the achievement of their aims than the Hindus thems elves.
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 dissen sions in
the ranks of Muslims will persist as a permanent featur e of
Bengali politic s. Will those of our Muslim brethren who are
so vociferous in their demand for joint electorate, let us know
as to why this state of affairs should continue to persis t 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 Hindu s, it would have
already gone to the share of India at the time of partition.
Now there is no area which the Hindu s may legitim ately
demand. If the members of a oommunity are in a major ity in
some small town or sub-district, can any sane person demand!
on this basis, that comm unity ? .
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 elector ate alone is in
consonance with the ideolo gy and n
Chapter 10
Basic Principles^bf
Islamic State
'Ulama's Amendments
to the Basic Principles
Committee's Report
L The origin al te x t o f the R eport is given in ita lics apd the propon ed
me in bold type. Chapt ars, sec bions and clause s referre d to are those
nt the Basic Princi ples C om m ittee’? Repor t,
340 T ie Islamic Law and Constitution
Section 2, Clause (2), Sub-Clause (b)
Prohibition of drinking, gambling and prostitution in alt their
various forms.
The recom mendations contained in thia sub-clause of the
Report are defect ive in two respects. Firstl y , they prohibit
only drinking and not the Bale or manufacture o f liquor and are
even silent in regard to other intoxic ants. Secondly, they do
not fix any period for the eradication o f the evils of drinking,
gambling and prostitution . This lends to an apprehension that
these evils may contin ue for an indefinite period in the Islamic
State o f Pakistan. We, therefore, deem it essential that the
follow ing be substituted in place of the existin g words
“ Intoxicants, gambling and prostitution in alt their various
forms . be completely prohibited through proper legisla
T '-lb tion within
a maximum period of three years from (he 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 Repor t have not prescrib
ed any period for bringing the existin g laws of the land into
confor mity with the Holy Qur’an and the Sunnah ; henoe it is
apprehended that the existin g un-Islamio laws might be allowe d
to remain in force for an indefinite period . This is intoler able
and we, therefore, consider it necessary that thia clause be
amended to read as follow s ;—
(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
*XJlama's Amendments 341
Holy Qur’an and the Sunnah as are held valid by the respective
schools o f 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*
merit, infirmity, sickness or any other sim ilar reason.
The following wording in place of the present wordings o f
thja 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 o f unemployment, infirmity or
sickness or any other similar reason.”
(a) The Sta te should ensure that in the sec tion , appofnmen
t
and promotion of Muslim candidates and em ployees,
Isla mic
character and observance o f the ten ets of Isla m are given
due con
sideration alo ng with abi lity , efficiency and other relevant
fac tors,
(b) “ In the tra inin g of the Mu slim em ployees of the Sta
te
whether civ il or militar y, spe cial arrangements for the
ir moral
and religio us trainin g and education should be made, so
that the
moral standard o f the Sta te em ployees of Pak ista n, as also
their
standard of efficien cy, be hig h eno ugh .”
(c) “ Alt fac ilit ies should be provided to the Muslim
em
plo yee s o f the Sta te for carrying out their religio us dut
ies and
observing the tenets of Islam ”
New Clause
“ The propagation of ath eism and infidelity and the insu ltin
g
or ridiculing of the Ho ly Qur’an or the Sun nah should
be pro
hibited through leg isla tion .”
Chapter III— PR OC ED UR E FO R PR EV EN TIN G LE
GIS LA
TIO N RE PU GN AN T TO TH E QU R’AN AN D
the su n n a h . -
Sec tion 3
No legislature should enact any law which is rep ugn ant to
the
Ho ly Qur’an and the Sun nah ,
I t is not eno ugh to pro vid e onl y in a neg ativ e manner tha
t
no law sho uld be ena cte d wh ich is rep ugn ant to the Qu
r’an and
tho Sun nah . W hat is required is tha t it sho uld be laid
dow n
344 The Islamic Law and Constitution
am a should
2. The appointm ent of the above-mentioned 'Vl
ed fin the Ba sic
be made fin the sam e manner as has been propos
judges of the
Principles Co mm itte e's Report in regard to the
Suprem e Court.
3. On ly such should be qualified for appointm ent to
. this office as :
Mu fti
(a) has worked in som e religio us institu tio n as a
for a minimum period of 10 yea rs ; or
mini
(b) has been an accepted Mu fti in som e area for a
mum period of l^ pe ars ; or
ished
(c) has worked as a Qadi in som e duly establ
Ma hak am a-e-Qa da ; or
som e
(d) has been a teacher of T ajs ir, Hadith or Fiq h in
religio us institu tio n.
Sec tio n 7
to Money
Th e pro vis ion of thi s cha pte r sho uld not ap p ly
B ills .
n of the
We were ext rem ely sur prised to see thi s sec tio
ve aooepted in
Re por t and to no te tha t the ver y person s wh o ha
cte d wh ich is
Sec tio n 3 the principle tha t no law sho uld be ena
ha ve stip ula ted
rep ugn ant to the Qur’an and the Su nn ah sho uld
wo uld be in
tha t the dic tat es of the Qur’an and the Su nn ah
f the Sta te. I f
op era tiv e in reg ard to the fin anc ial ma tte rs o
com ma nd
the Sta te acc ept s the sup rem acy o f the dic tat es and
m the wording
me nts o f Allah and H is Pro ph et, as is evi den t fro 2
ed on this point.
l. Three of the par ticipan ts o f the Co nventio n disagre
se Am end ments as
Th eir vie w-p oin t is app end ed at the end of the
Annexure No. I,
‘Ulama^s Amendments 349
o f Section 3, there is no reason why the financial matters of the
State should be placed beyond the jurisdic tion of Allah and His
Prophet. Islam is the best guide for us in all matters. It is so in
the case of financial problem s too. We are not at all prepared
to accept a dear rote of no-confidence against Islam in one of
the Section s of our Constitution.
However, we do concede that for some time to come there
might be some practical difficulties in adjustin g the financial
matters of the State aooording to the principles of Islam and for
that it would suffioe to provide that the provisio n o f 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 substitu ted by the followin g :
4 ’The provisio
ns 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 FEDER ATION AND IT S TERRI TORIE S
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 States as hove acceded or may accede to the
Federation and such other areas as formed part of Pakistan
immediately before the commencement of the Constitu tion or may
hereafter be included in it. *
In Clause (1) o f thia aeotion, ‘Pakista n’ baa . beeh, proposed
to be the name of the State. In our opinion this 1* not enough
and the name should be Islamic Republic of Pakistan.
The presence of non-Muslim commu nities in Pakista n
cannot be put forth as a valid objection against this name be
cause if the presence of innumerable non-sooialiets in Russia
does not prevent its being named • Union of Soviet Socialists
Republics’ why should it stand in the way of Pakista n being
called an Islamic Republic ? The appella tion of Islamic Repub-
360 The Islamic Law and Oonstitniion
lio is just to indicate that it is a Republic which is based on the
principles of Islam—something which has already been specified
in the Objectives Resolution, and Section 3 of the Report too
leads to the same conclusion.
Apart from this, the followin g addition s should also be
made in this section. After Clause ())» the followin g 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 FEDER ATION
Chapter I—THE EXECUTIVE
Section 23, Clause (2)
Appointment of the Election Commission and Election Tri
bunals.
The power to appoint Election Tribunals has been categoris
ed with powers which are to be exercised by the Head of tho
State in his discretion. In our opinion thia is not proper. The
maintenance of justice and fairness in election s is of immense
significance to the existenc e of our State and like other matters
requiring justice, this too should be entruste d to the Judiciary
and kept immune from the interference of the Executive.
Therefore the words ‘and Election Tribunals9 occurring in this
Clause should be deleted.
Our alternative proposal in thia behalf is to be found in
the chapter relating to elections in Part X II.
Section 23, Clauses 2 and 3
(2) The Prime Minister who, for a period of six consecutive
months. I* not a number rf the Ilouse of the People should at the
*Ulamd's Amendments 351
expiration of that period cease to be the Prime Minister,
(3) Provision should be made for app oin ting as Min ister a
person who is not a member of either Houser provided that a per
son
should cease to be a Min iste r unless he gels elected within a per
iod
of six months fro m the date of his appointment.
These two clauses pro vid e tha t eve n such persons as hav
e
not been eleoted to the Legislature ma y be appointed as Pri
me
Minister or Minister and tha t the y should try to got themse
lves
elected after the y are well in sad dle for 6 mo nth s. Thi
s is
hig hly objectionable and harmful. To place a person in aut
ho
rity and then provide him a chance to win his elec tion mig
ht
lea d to the moral deterio ration of the adm inis tra tive machi
nery
as well as of the voters. Therefore this door muBt be clos
ed
and both these clauses should be deleted.
• Th e same wrong has been repeated in Clause (2) o f Section
89 wherein provision has been made for uneleoted persons
to be
appointed as Chief Minister or Minister in a U nit and
to be
giv en a chance to get elected.
Therefore Clause (2) of Section 89 should also be deleted*
1, A s th is Con fere nce was held in Jan uar y 1953 and the ind
icat ions of an
acco rd betw een the pol itic ians wer e ava ilab le, the
Con fere nca ref
rain ed from givi ng any sug gest ion in thia resp ect.
Later on the
con flict was reso lved in the form o f the P arit y For m ula
of Muhomnuid
AH of D ogr a.—E dito r.
352 Islamic Law and Oonstilution
JUDICI ARY
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 'taqwa and tadayyun 9 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 th a t in respect of the
•V lama's Amendments 3M
Part XI
IO N
SB RV IC BS AN D PU BL IC S8 RV IC B COMM ISS
TION
Chapter I—SERV IC ES UN DE R TH E FEDERA
AN D TH E UN ITS
Section 222, Ch ose (1)
protection
No Bi ll or amendment to abolish or restrict the
by Section 197
afforded to certain servants of the State in Pa kistan
Co de of Cr im ina l Pro ced ure , 189 8, or by Sec tio ns 80 to 82 of
of the
uced or moved
the Code of Civ il Procedure, 1908, should be introd
it without the
in the Federal Legislature or the Legislature of a Un
ad of the Unit,
previous sanction of the Head of the State or the He
as the case ma y be.
nable. If
In our op inion, thi s clause is extrem ely objectio
ser va nts of the Sta te of Pa kis tan are pu bli c serva nts and
the
Head of the
no t the servants of the Head of the Sta te or o f the
representatives
Un its , the re is no reason wh y the rig ht of the
peo ple to mo ve an y bil l or am en dm en t to int roduce any
of the
leg es o f such
change in respect of the rig hts , powers and privi
r
358 The Islamic Law and Constitution
ser van ts should be con ditioned by previous a¬ion of the
Head o f the Sta te or of the Head of the Un its.
As a ma tter of fac t it is ignoble enough tha t so flagrantly
unjust a pro visi on as is contained in Sec tion 197 of the Crimi
nal Procedure Code or in Sections 80 to 82 o f the Civil Pro
ce
dure Code should be allowed to rem ain on the Sta tut e Book of
a
free Pak ista n ; And it is eve n more ign oble tha t in order
to
protect the se Sec tion s, the power of the leg isla tor s should be
so
restricted tha t the y may not even move, except with the pre
vio us permission of the Head of the Sta te or the Un its, a Bill
to amend or abolish any of the se provisions.
Therefore this clause must be deleted.
Part XII
EL EC TIO NS
It is necessary tha t it should be provided by means of new
section in this chapter th a t:
(a) It should not be permissible for the Head of the Sta te or
the Head of the Units or 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) Sea ts falling vacant in the Central or Un it Legislature
should necessarily be filled through by-election within a
maximum period of 4 months from the date of their
falling vacant.
Section 234, Clause (2)
The A lection Commission should consist of the Chief Election
Commissioner and such number of other Election Commissioners}
if
any, as the Head of the State ma y in his discretion from time
to
'Ulam a's Amen d/rents 359
time fix and the appoin tment of the Chief Election Commissioner
and other Eledio n Comm ission ers should , subject to the provis ions
of any law made in that behalf by the Federal Legislature, be made
by the Head of the State in his discretion.
This oiause leaves the autho rity to appoi nt Electi on Com
missio ners to th e discre tion of the Head of th e State just as in
the case of the Chief Electi on Comm ission er. So far as the
appoi ntmen t of the Chief Electi on Comm ission er is concerned
there appea rs to be no altern ative, but with a view to ensure
fairne ss and freedo m in m atters o f electi on it would be proper
to ensur e th a t th e entire Electi on Comm ission is not so const i
tuted as to be prote ge of the Head of th e State.
There fore we propo se that the portio n ^and the appoin tment
........... in his discre tion,” be substituted by the follow ing :
“ and the appointment o f the Chief Election Comm issioner
and other Election Comm issioners should subject to the provisions
o f any law made in that behal f by the Federal Legislature, be
made by the Head of State respectively in his discretion and on
the recommendation of Chief Election Comm ission er.”
W ith a view to ensuring fair and free electi ons it is also
necessary to add the follow ing at the end of Clause (2) of Sectio n
234 :
“ (1) The office o f Chief Electi on Comm issioner should be a
permanent one and he should be entrusted not only with the work
of general electio ns in the Centre and the Units but also with by
electio ns in respect of seats fallin g vacant from time to time. It
should also be his duty alway s to maintain an up-to-date list of
voters.”
. “ (2) The status of the Chief Election Comm ission er should be
the same as that of a judge of the Supreme Court and he should be
subject to the same disab ilities as have been laid down in Clauses
(2) and (3) o f Sectio n 227 in respect o f the Chairman of the
Public Servic e Comm ission ?9
“ (3) Only such person should be appointed as Chief Election
Comm issioner as has worked ns a Judge o f a High Court for a
mininimum period o f three years ? 9
360 . Tfce Islamic Law and OonsiiMio n
Section 239, Clause (2)
The Election Tribunal should be appointed by the Head of
the Slate or the Head of the Unit, as the case may be. in his dis
cretion.
This clause empowers the Head o f the State and the Head
of the Units to appoint Election Tribunals in the Centre and
the Units respective ly. As stated by us in the oontext of
Section 23, this is detrimenta l to the free conduct o f 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 vest respectively in the Supreme Court or the
High Court concerned as the case may be.”
SCHEDUL E I
LIST I (FEDERA L)
*
The following additional items should be included in List I :
(1) The determin ation, co-ordination and direction of the
educational policy in accord with the Directive Principles of State
Policy and the estabishment of academic and educational Instltu-
tions.
(2) The protection of the basic ideology and mission of the
State in accordance with Directive Principles.
LIST II (FEDERAL)
Item N o. 3
Preventive detention ♦« the territory of Pakistan for reasons
connected with defence, external affairs or the security of Pakistan,
persons subjected to preventive detention under the authority of the
Federation.
Annexare No. 1
In our opinion Section 4 should read as under :
“In the eve nt of an objection being raised aga inst the
interpretation and definition of the Qur’an and the Sunnah
, the
ma tter should be referred to a Board of exp erts of Islamic
Law
t'U lam a-e-Pa kisa n) and the Legislature ahiould be bound by
the
ver dic t of thi s Boa rd.”
Sim ilar ly in Clause (1) of Sec tion 6 rela ting to the com
positio n of the Board our am endments are as under :
“ Pakistan Government should call for the name of the
Ulama of Pak ista n from such religio us organisations of ‘Ul
ama
as have been working on Central and Provin cial lev els
in a
regular manner since after the establishm ent of Pak ista n
and
whose organisations are int act up till now and the Head of
the
State should notify the ir nam es.”
If by the ter m ‘exp erts of Islamic Law ’ are to be meant
‘ U lam a-i-Din ', the n the y should have this much of dig nity
and
power tha t their ver dic t is treated final and dec isiv e. We
do
not agree with the proposal in its present form tha t just for
the
interpreta tion o f the Qur’an and the Sunnah ‘Ulamd should
bo
associated wit h the Supreme Court as it is futile tha t
they
should he associated with the judges of the Supreme Court
only
for the interpreta tion of the Qur’an and the Sunnah. Howev
er,
if 'Ulam a are appointed as Jud ges, t.e. , Qadift to adjudi
cate
upon imp ortant religio us ma tter s which become an impend
ing
necessity then it would be proper enough,
Signatories :—
Maulana Abul Hasan at Qadri.
Maulana Mohammad Abdul Hamid AI-Qadri Badauni.
Mufti Muhammad Sahib Dad,
%
Appendix III
Co m m en ts on th e Dr aft
Co ns titutio n of 19 56
We, therefore, plead that the President should not al all be given
the power io 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
at the end of
"other than the Su pre me Court” should be added
Clause (2) of Ar ticle 203.
Bills, and
(h ) 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 conformity with the Islamic
Injunctions within a maximum period of ten
years.
Thia Commission shall present a report each year, and
. will complete its work within five years o f its appointment.
The annual reports of the Commission shall be presented
before the National Assembly within six months of their
receipt and the Assembly, after studying them, shall enact
such laws as may be necessary under Clauses (2) and (3).
The Clause (4) of the existing Article 205 may ba numbered
as Clause (5) and the last explanatory note retained as
such.
Our above-mentioned proposal, on the one hand, solves all
those difficulties for the solution whereof authors o f 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 solvol is as to who should act as a final authority to
decide whether a law is or is not in conformity with Islam ; the
Supreme Court or the Legislature itself 1 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 tho first 10 or 15 years
five ‘Ulama should bo appoited to help the Supreme Court in
deciding suoh disputes. Anyhow, if the members of the Consti
tuent Assembly are not at all prepared to accept this proposal
thon only acceptable solution is to leave it to the decision
of the majority of the total number of Muslim members of the
Legislature x
Comments m the Draft Constitution of 1958 379
PART X I I : CHAPTER V—MISCELLANEOUS
The following Articles too, are objectionable and should be
suitably amend ed:—
Martia l Law
Article 214 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 objected to is the way it is being provid ed for.
On the one hand the Article is silent as to the circumstances in
whioh Martial Law may be imposed, and does not impose any
restrictions on its nature, extent or duration, and on the other,
it empowers the parliam ent withou t any restric tion not only to
indemnify any person in respect of any act done during Martial
Law but also to validat e all sentences passed, punishments
inflicted, forfeitu res ordered or other acts done by the Martial
Law author ities. The fact becomes all the more painfu l when we
observe that our constituion-makers do not seem prepared to allow
even a.s much latitude to their own naiion as its British conquerors
allowed it in the worst of times. Regulation 10 o f 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 ..
(it) 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 involve d, Lord Wellesley issued cloar instructions that
the militar y officials could only arrest and detain them for
delivery to the civil authorities for trial. Moreover, Indem nity
380 TAe Islamic Law and Constitution
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" should be inserted
after the word “person" in this Article.
SECOND SCHEDULE
SOME ADDITIONS
Pacts an<LAgreements
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 eleotiona shall
be held throughout the country.
Appendix IV
Co m m en ts on
19 56 Co ns tit ut io n
was so vehem ent against this move that the framers of the
Constitution had to defer final decisio n on this issue. A pro
vision was made in the Constitution that the system o f electro
rat® will be decided by Nation al Assem blies. The West Pakistan
Aasemblo voted in favour o f separate elector ates and the vote
was almost unanim ous, only 10 persons dissen ting in a House
of 310. The East Pakistan Assem bly is alleged to have decided
in favour of joint electorates. But 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 Assem bly, and worse
of all, in a House which was in a state of utter chaos because
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
Nation al Assem bly it evolve d a most dangerous and nonsen-
Bible formula. It adopted Joint Electo rates for East Pakistan
and Separate Electo rates for West Pakistan. This was done
at a time when practic ally the whole of the country was de
manding separate electorates. Seotion 144 was dampe d 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 which only a couple of dayet
earlier had most unequ ivocally assured to stand by its own and
the nation ’s unanim ous decisio n in favour of separate elector
ates, overnight took a somerBault under pressure from the
President and the West Pakistan Governor who had flown to
Dacca. It colluded with people bent upon undoin g Pakistan
and its basic ideology simply to retain power and voted for the
said foolish formula. Everyb ody knows how oven the open
enemies of Pakistan laughed at this and questioned the justi
fication for Pakistan thereafter. And finally in April 1957 the
Republican-Awami Ministry, disregarding all the public
demands, amended the elector ate formula and imposed joint
electorates over the antiro country. All this was done to
396 T ie Islamic Law and Constitution
appease the Hindu members and thereby keep themselves in
power. This was the shameful w a y -o u t 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
separate electorates dawned, all the vested interests again
eonspired 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 has been so thorough and so over
whelming that the so-called 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 beed 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 oonsequences
for Pakistan and is loaded with more explosive dangers for the
future. The fact is that even a cursory 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—th e 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
I f iHotand will inject alien ideas into the minds
e Pr ob le m # of El ec to ra te# 397
White Pa pe r on Ik
in g ge ne TS tio na . W ea ke ni ng of the*
of th e coin
fe el in gs w ill au to m at ic al ly result in
Islam ic
of th e bo nd s of in te gr at io n of Pakistan.
weakening
st an co ns is ts of so m an y ot he rw ise hetero
Pa ki
s el em en ts — w hi ch ha ve be en un ite d in to a
gene ou
m un it on ly by Is la m * A ny th in g th at weakens
fir
is bo un d to ao t as a fo rc e of disinte
th is tie ,
at io n. Th is id ea of jo in t el ec to ra tes is based
gr
of te rr ito ri al na tio na lis m an d not
on th e th eo ry
on Isla m ,
el ec to ra te is , as a m at te r of fa ct , the first step
(6) Jo in t
th e sc he m e of its pr om ot er s. T he y are fanning
in
* And th ey have
th e flames of Bengali nationalism
e th an su ffi ci en t in di ca tio ns th at their
give n mor ss io n. T he jubi
real aim s are se cu la ri sm an d se ce
ch w as de m on st ra te d by th e H in du leaders
lance whi
e H in du pr es s of B ha ra t on th e im po sitio n of
and th
ec to ra te s an d th e fe lic ita tio ns whioh none
jo in t el
ister expressed on
othe r than th e Bh arti Prim e M in
io n of N oo n M in ist ry ar e fir m in dicators
th e format
fu tu re . Th e jo in t el ec to ra te is th e door
of th e
ug h w hi ch th e de m an d fo r U nite d Bengal
thro
an ts to en te r. Th ey ha ve er ec ted th e door and
w
ou sly gu ar di ng it. M on ey , in fluence,
are now jeal
, ev er yt hi ng is be in g la vi sh ly us ed in keep
pressure
e do or in ta ct . Th is is th e gr eatest crack
ing th
ha s oc cu rr ed in ou r de fe no e w all—th e next
th at
w ill be th e de m ol iti on of th is w all.
st ep
w hy H id us , C om m un ist s an d th e vested
(c) Tho reason
ar e so ea ge r to re ta in jo in t el ectorates
in te re sts
m es cr ys ta l-c le ar w he n, on e st ud ie s th e influ
beco
ar e go in g to co m m an d ov er th e elec tio ns
ence they
th is sy st em . St at is tic s sh ow th at Hindus
un de r/
d th e M us lim po lit ic ia ns of th ei r choice w ill gain
an
nt ro l ov er th e po lit ic al lif e of E ast Pa kistan and,
co
ro ug h it , w ill be co m e a de ci siv o factor tn the
th
398 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
strategy 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 facts 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 constituen cies Hindu votes are in majority and
here they are bound to get representatives of their own choice
elected. These constituen cies a r e :
1. Khulna Sadar South East.
2. Khulna Sadar South.
3. Satkhira East.
4. Bagerhat South.
5. 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 4949% . As such, they, without the support
of any Muslim votes, can get their candidates elected because
(i) very few Muslim . women vote while most of Hindu
. women cast their votes ; ,
Pr ob le m of .Electorates 399
IFAtte Pa pe r <yn the
Percentage of
Name of the Constituencies non-Muelim
Population
27. Magurah North ... 40.0
28, Narail 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 West ... 40.0
33. Khulna Sadar North East ... 40.0
34. Bakerganj Sadar West ... 39.0
35. Brahmanbaria East ... 36.3
In eighty-nine constituencies Hindus have a consolidated,
vote of 20% to 35.45% and calculations 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
Name of the Constituencies non-Muelim
Population
I. Netrokona South East ... 35.43
2. Nilphamari North ... 35-43
3. Rajshahi Sadar West ... 35.37
4. Feni 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 ... 34.56
10. Nilphamari West ... 34.0
11. Brahmanbaria North ... 34.0
12. Manikganj West ... 33.43
13. Thakurgaon West ... 33.33
14. Habibganj North ... 33.0
15. Magurah South ... 32.19
Ut Pa pe r <m the Problem of El ec to ra l* an
Percentage of
non-M uslim
Name of the Conrtiiuenciee•
Population
... 32.11
16. Brahmanbaria South Ea st
... 31.84
17. K ishorganj No rth Ea st
... 31.84
IB. Mymensingh Sadar No rth
... 31.04
19. Satkhira N or th W est
... 31 .0 4
20. Ch ittagon g Sadar Central
... 30 .0 6
21. Dinajpur Sadar Central
... 30.06
22. Dinajp ur Sadar So uth
... 30.06
23. Habibganj W est
... 29.95
24. Sunamganj No rth
... 29 .0
25. Dacca Sadar W es t
... 29 .0
26 . Dacca Sadar Central North
... 29 .0
27 . Narayanganj W est
... 29 .0
28. Nougaon No rth
... 29 .0
29. Nougaon Central
... 29 .0
30. Netrokona No rth Ea st
... 28.93
31 . Rangpur Sadar No rth Ea st
... 28.3
82. Na ra il Ea st
... 27.76
33. Jh in aidah North
... 27.54
34. Kurigram N or th W est
h ... 27.54
85. Ch ittag on g Sadar Central So ut
... 27.54
36. Tangail So ut h Ea st
... 27.29
37. Faridpur Sadar.. North
... 27.29
38. Manikganj Ea st
... 27.29
89. K ishorganj South Ea st
... 27.17
40 . Bogra No rth W est
... 27.16
41. Chittagong Sadar No rth W est
... 27.16
42 . Dacca Sadar No rth W es t
... 26.67
43. Nilphamari Ea st
... 26 .0
44 . Madaripur South
... 26 .0
45 . Manikganj Central
... 26 .0
46 . Dacca Sadar So uth
... 26 .0
47. Sunamganj South
»«•
48. Bagerhat So uth Ea st
409 Tin Islamic Law and Constitution
Per ssntaps of
Name of Un OonMiintncitt t
No rth Sy lh et So ut h ... 31 .0
82 .
..; 21.0
83, Chittagong Sadar No rth Ea et
Sa da r So ut h Ea st ... 20.88
84. Pa bn a
ag on g Ba da r ... 20.5
85. Ch itt
... 20 .3
86. Faridpur Sadar Eaat
... 20.0
87, Faridpur Sadar So uth
ah So ut h ... 20.0
88. Jb in aid
... 20 .0
89. Dinajp ur Sadar So uth Eaat
n co ns tit ue nc ies no n- M us lim vo tee ra nge fn>m
In fo ur wome
AD th es e fou r se at s ar e Hi nd u su re sh ota. Thus
34% to 39.7%.
t ele cto ra te sy ste m » Hi nd us ar e su re to get 142
under th e jo in
he r for th em se lve s or for th eir no mi nees wh ile under
seats eit
te ele cto ra tes th ey we re ha rin g 70 se ats on ly . In other
separa
nc ies als o th eir co ns oli da ted vo tes m ay pa y them
constitue
handsome divid en ds .
ia eo nd us iee Zy sA ow t M at Hi nd us w ill wi eld decisive
TA
kis tan po lit ics an d thr ou gh it up on ths Centre.
influence in Pa st Pa
be the co ns eq ue nc es of it; is no t dif fic ult to im agine.
What would
is fu rth er sh ow s th at ev en i f on e ge ne ra l election is held on
Th
ba sis of jo in t ele cto ra tes it wo uld be su fficient io give the anti*
the
am ple op po rtu ni tie s to ad mi ni ste r, Go d fo rb id, a
Pa kistan forces
l of Pa kis tan ,
shattering blow to the in teg rit y an d su rv iva
w, wh at is th e wa y oa t o f th is da ng erous im pa sse t
■7. No
cts — dr ive us to th e co nc lu sio n th at th e issue
All facts— hard fa
sh ou ld be fin all y de cid ed ac co rd in g to th e will of
o f electorates
be fo re th e fir st ge ne ra l ele cti on s ar e he ld . And th is
th e peop le
if th e.i ssu e is ref err ed io the pe op le fo r decision.
can be done
Hence our demand is for a Referendum. o
• *
sh ou ld be im m ed iat ely he ld , be ca us e th is is th e
Referendum
e th is iss ue pe ac efu lly an d am ica bl y and With
only way to so lv
for de lay wi ll giv e up pe rh an d to those elements
ou t delay —
in ua no e in po we r m ay en da ng er th e ve ry ex isten ce of
whose oont
404 Ths Islamic Law and Constitution
the country.
Referendum is the only way to decide the issue democrati
cally. People have been very cunningly deprived of their basic
political rights. Decisions are being oontinuoualy made by the
ruling coterie in a dictatorial way and the voioe df 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 democracy in the coun
try and will sound the death-knell of the anti-democratic forces
who are bragging about revolutionary councils and the like.
As a matter o f 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 publio censure
exert themselves 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
faoe of their aroused interest and united force, there is no
question o f delay in elections. •
Lists should be prepared comm unity-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 o f the Elections Commission all .
this work would be finished by June 1958. On the new arran
gement the tame schedule can be strictly maintained. Referen
dum should be held in October 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 come out o f this dangerous situation without
delaying the general elections.
Appendix VI
ABUL A*LA MAUDUDI
A BIOGtLAPHICAL SKETCH
st think
SA YY ID AB UL A4LA MA UD UD I is one o f the gre ate
s born in
ers and soc ial reformers o f the world of Isla m. He wa
tember,
Aurangabad (Hyderabad, De cca n, India) on 25th Sep
At the
1903 and sta rte d his pub lic life as a journalist in 1920.
Jabalpur
age of sev enteen , he bec am e the editor of dai ly T aj,
most
and later on edited the Al* Jam iait Delhi—one of the
of the
influential and popular Muslim newspapers of Ind ia
he pub
nin eteen-twenties* In 1929, when he was 26 yea n old,
al^ Isk m
lished his scholarly and mo num ental work Al-Jih ad Fi-
Islamic
(Holy War in Isla m). Th is book is unprecedented in the
abic.
lite rature and the equal o f it cannot be found eve n in Ar
d
Maududi, late r on, shifte d from Delhi to Hyderaba
month ly
(Decoan) and in 1932 sta rte d Tarjum an al- Qw 'dn , a
. Th is
journal dedicated to the cause of Isla mic Renaissance
awaken
journal has pla yed the pio nee r’s role in stirring the new
Indian
ing among the educated eli te o f Muslim Ind ia and an
Muslim
historian rig htly declares tha t no future histor ian of the
India can ignore the part pla yed by thi s journal.
na
It was in 1937 tha t Dr . Muhammad Iqbal wrote to Maula
in the
Maududi to shi ft to Punjab and oo-operate with him
ification
gig ant ic researoh work of the reconstruction and the cod
ow ed by
o f Isla mic Jurisprudence. Th is correspondence was foll
it was
two meetin gs between the se lum ina ries o f Isla m. Fin ally
jab and
decided tha t Maulana Maududi should shi ft to Pun
Maulana
direct an ins titu tio n of Isla mic research—Dar al-Islam.
1938.
Maududi lef t Hyderabad and set tled in Punjab in March
"B at alas in the words o f Maududi him self, "he (Iqbal) was
breathed
ip the las t day s o f hjs life , The very nea t month he
406 T*s Islamic Law out OofwWwtfo*
his last and I was left alone for the uphill task we had decided
to undertake jointly 0 .
At Lahore Maulana Maududi also worked for nearly two
y ea n as the Dean o f the Faculty o f Theology, Islamia College,
Lahore. In 1941 he organised the Renaissance Movement—
Jamaat-e-Islami—and was elected its chief. After Partition
he launched the movement o f Islamic Constitution and the
f
Islamic way of life and was arrested on 4th October, 1948. After
20 months o f imprisonment he was released 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 deoisiqn o f
Supreme Court. Again on 6th January 1964, he was arrested for
the third time, when Jamaat-e-Islami, Pakistan was banned
under Ayub Regime. He was released by Punjab High Court on
9 th October 1964.
Fourth time, he was arrested on 29th January 1967 for
opposing Ayub Khan’s regime for celebrating Eid-ul-Fitr one
day before the moon sighting. In consequence o f a writ petition
the Government released Maulana Maududi after 2J months
detention on 15th March 1967.
Maulana Maududi started writing hia 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 o f our age. It has been
completed in six volumes after 30 years 4 months on 7 th June
1972.
Maududi is a prolific writer and is the author o f nearly
sixty works on Islam. His approach is scientific and logical. His
vast knowledge of Islam and o f modern thought has given him
the unique quality o f presenting Islam in the most systematic
way having a special appeal for the educated people. He has .
given a jvery realistic interpretation o f Islam and inspired the
Muslim youth to translate the Islamic way of life into practice.
He is a great thinker and man of action. Ia short, he ia a
‘practioal idealist’.—EPITQR.