On Pakistan and the Theory & Practice of the Islamic State: An Excerpt from the Munir Report of 1954
From REPORT of THE COURT OF INQUIRY constituted under PUNJAB ACT II OF 1954 to enquire into the PUNJAB DISTURBANCES OF 1953 “Munir Report”
“ISLAMIC STATE
It has been repeatedly said before us that implicit in the demand for Pakistan was the demand for an Islamic State. Some speeches of important leaders who were striving for Pakistan undoubtedly lend themselves to this construction. These leaders while referring to an Islamic State or to a State governed by Islamic laws perhaps had in their minds the pattern of a legal structure based on or mixed up with Islamic dogma, personal law, ethics and institutions. No one who has given serious thought to the introduction of a religious State in Pakistan has failed to notice the tremendous difficulties with which any such scheme must be confronted. Even Dr. Muhammad Iqbal, who must be considered to be the first thinker who conceived of the possibility of a consolidated North Western Indian Muslim State, in the course of his presidential address to the Muslim League in 1930 said:
“Nor should the Hindus fear that the creation of autonomous Muslim States will mean the introduction of a kind of religious rule in such States. The principle that each group is entitled to free development on its own lines is not inspired by any feeling of narrow communalism”.
When we come to deal with the question of responsibility we shall have the occasion to point out that the most important of the parties who are now clamouring for the enforcement of the three demands on religious grounds were all against the idea of an Islamic State. Even Maulana Abul Ala Maudoodi of Jama’at-i-Islami was of the view that the form of Government in the new Muslim State, if it ever came into existence, could only be secular.
Before the Partition, the first public picture of Pakistan that the Quaid-i-Azam gave to the world was in the course of an interview in New Delhi with Mr. Doon Campbell, Reuter’s Correspondent. The Quaid-i-Azam said that the new State would be a modern democratic State, with sovereignty resting in the people and the members of the new nation having equal rights of citizenship regardless of their religion, caste or creed. When Pakistan formally appeared on the map, the Quaid-i-Azam in his memorable speech of 11th August 1947 to the Constituent Assembly of Pakistan, while stating the principle on which the new State was to be founded, said:—
“All the same, in this division it was impossible to avoid the question of minorities being in one Dominion or the other. Now that was unavoidable. There is no other solution. Now what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and specially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed. If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations., there will be no end to the progress you will make. “I cannot emphasise it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communities—the Hindu community and the Muslim community— because even as regards Muslims you have Pathana, Punjabis, Shias, Sunnis and so on and among the Hindus you have Brahmins, Vashnavas, Khatris, also Bengalis, Madrasis and so on—will vanish. Indeed if you ask me this has been the biggest hindrance in the way of India to attain its freedom and independence and but for this we would have been free peoples long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time but for this (Applause). Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion or caste or creed— that has nothing to do with the business of the State (Hear, hear). As you know, history shows that in England conditions sometime ago were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God we are not starting in those days. We are starting in the days when there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State (Loud applause). The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the Government of their country and they went through that fire step by step. Today you might say with justice that Roman Catholics and Protestants do not exist: what exists now is that every man is a citizen, an equal citizen, of Great Britain and they are all members of the nation. “Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State”.
The Quaid-i-Azam was the founder of Pakistan and the occasion on which he thus spoke was the first landmark in the history of Pakistan. The speech was intended both for his own people including non-Muslims and the world, and its object was to define as clearly as possible the ideal to the attainment of which the new State was to devote all its energies. There are repeated references in this speech to the bitterness of the past and an appeal to forget and change the past and to bury the hatchet. The future subject of the State is to be a citizen with equal rights, privileges and obligations, irrespective of colour, caste, creed or community. The word ‘nation’ is used more than once and religion is stated to have nothing to do with the business of the State and to be merely a matter of personal faith for the individual.
We asked the ulama whether this conception of a State was acceptable to them and everyone of them replied in an unhesitating negative, including the Ahrar and erstwhile Congressites with whom before the Partition this conception was almost a part of their faith.
If Maulana Amin Ahsan Islahi’s evidence correctly represents the view of Jama’at-i-Islami, a State based on this idea is the creature of the devil, and he is confirmed in this by several writings of his chief, Maulana Abul Ala Maudoodi, the founder of the jama’at. None of the ulama can tolerate a State which is based on nationalism and all that it implies; with them millat and all that it connotes can alone be the determining factor in State activity.
The Quaid-i-Azam’s conception of a modern national State, it is alleged, became obsolete with the passing of the Objectives Resolution on 12th March 1949; but it has been freely admitted that this Resolution, though grandiloquent in words, phrases and clauses, is nothing but a hoax and that not only does it not contain even a semblance of the embryo of an Islamic State but its provisions, particularly those relating to fundamental rights, are directly opposed to the principles of an Islamic State.
FOUNDATIONS OF ISLAMIC STATE
What is then the Islamic State of which everybody talks but nobody thinks? Before we seek to discover an answer to this question, we must have a clear conception of the scope and function of the State.
The ulama were divided in their opinions when they were asked to cite some precedent of an Islamic State in Muslim history. Thus, though Hafiz Kifayat Husain, the Shia divine, held out as his ideal the form of Government during the Holy Prophet’s time, Maulana Daud Ghaznavi also included in his precedent the days of the Islamic Republic, of Umar bin Abdul Aziz, Salah-ud-Din Ayyubi of Damascus, Sultan Mahmud of Ghazni, Muhammad Tughlaq and Aurangzeb and the present regime in Saudi Arabia. Most of them, however, relied on the form of Government during the Islamic Republic from 632 to 661 A. D., a period of less than thirty years, though some of them also added the very short period of Umar bin Abdul Aziz.
Maulana Abdul Haamid Badayuni stated that the details of the ideal State would be worked out by the ulama while Master Taj-ud-Din Ansari’s confused notion of an Islamic State may be gathered from the following portion of his interrogation :—
“Q.—Were you also in the Khilafat movement ?
A.—Yes.
Q.—When did the Khilafat movement stop in India ?
A.—In 1923. This was after the Turks had declared their country to be a secular State.
Q.—If you are told that the Khilafat movement continued long after the Turks had abolished Khilafat, will that be correct?
A.—As far as I remember, the Khilafat movement finished with the abolition of the Khilafat by the Turks.
Q.—You are reported to have been a member of the Khilafat movement and having made speeches. Is it correct ?
A.—It could not be correct.
Q.—Was the Congress interested in Khilafat ?
A.— Yes.
Q.—Was Khilafat with you a matter of religious conviction or just a political movement ?
A.— It was purely a religious movement.
Q.— Did the Khilafat movement have the support of Mr Gandhi ?
A.—Yes.
Q.— What was the object of the Khilafat movement ?
A.— The Britisher was injuring the Khilafat institution in Turkey and the Musalman was aggrieved by this attitude of the Britisher.
Q.— Was not the object of the movement to resuscitate the Khilafat among the Musalmans ?
A.—No.
Q.— Is Khilafat with you a necessary part of Muslim form of Government ?
A.—Yes.
Q.— Are you, therefore, in favour of having a Khilafat in Pakistan ?
A.—Yes.
Q.— Can there be more than one Khalifa of the Muslims ?
A.— No.
Q.— Will the Khalifa of Pakistan be the Khalifa of all the Muslims of the world ?
A.— He should be but cannot be.”
Throughout the three thousand years over which political thought extends, and such thought in its early stages cannot be separated from religion, two questions have invariably presented themselves for consideration : —
(1) what are the precise functions of the State ? and
(2) who shall control the State ?
If the true scope of the activities of the State is the welfare, temporal or spiritual or both of the individual, then the first question directly gives rise to the bigger question:
What is the object of human life and the ultimate destiny of man? On this, widely divergent views have prevailed, not at different times but at one and the same time. The pygmies of equatorial West Africa still believe that their God Komba has sent them into the forest to hunt and dance and sing. The Epicureans meant very much the same when they said that the object of human life is to drink and eat and be merry, for death denies such pleasures. The utilitarians base their institutions on the assumption that the object of human life is to experience pleasant sensations of mind and body, irrespective of what is to come hereafter. The Stoics believed in curbing and reducing all physical desires, and Diogenes found a tub good enough to live in. German philosophers think that the individual lives for the State and that therefore the object of life is service of the State in all that it might decide to undertake and achieve. Ancient Hindu philosophers believed in the logic of the fist with its natural consequence, the law of natural selection and the struggle for survival. The Semitic theory of State, whether Jewish, Christian or Islamic, has always held that the object of human life is to prepare ourselves for the next life and that, therefore, prayer and good works are the only object of life. Greek philosophers beginning with Socrates thought that the object of human life was to engage in philosophical meditation with a view to discovering the great truths that lie in nature and that the business of the others is to feed the philosophers engaged in that undertaking.
Islam emphasises the doctrine that life in this world is not the only life given to man but that eternal life begins after the present existence comes to an end, and that the status of a human being in the next world will depend upon his beliefs and actions in this world. As the present life is not an end in itself but merely a means to an end, not only the individual but also the State, as opposed to the secular theory which bases all political and economic institutions on a disregard of their consequences on the next life, should strive for human conduct which ensures for a person better status in the next world.
According to this theory Islam is the religion which seeks to attain that object. Therefore the question immediately arises : What is Islam and who is a momin or a Muslim ? We put this question to the ulama and we shall presently refer to their answers to this question. But we cannot refrain from saying here that it was a matter of infinite regret to us that the ulama whose first duty should be to have settled views on this subject, were hopelessly disagreed among themselves.
Apart from how these learned divines have expressed themselves, we conceive of Islam as a system that covers, as every systematic religion must, the following five topics :—
(1) the dogma, namely, the essentials of belief ;
(2) the cult, namely, religious rites and observances which a person must
perform ;
(3) ethics, i. e. rules of moral conduct ;
(4) institutions, social, economic and political ; and
(5) law proper.
The essential basis of the rules on all these subjects is revelation and not reason, though both may coincide. This coincidence, however, is accidental because human reasoning may be faulty and ultimate reason is known only to God, Who sends His message to humanity through His chosen messengers for the direction and guidance of the people. One must, therefore, accept the dogma, observe the cult, follow the ethics, obey the law and establish institutions which God has revealed, though their reason may not be apparent—nay even if they be opposed to human reason. Since an error by God is an impossibility, anything that God has revealed, whether its subject be something occult or preternatural, history, finance, law, worship or something which according to human thought admits of scientific treatment as for instance, birth of man, evolution, cosmology, or astronomy, has got to be accepted as absolute truth. The test of reason is not the acid test and a denial of this amounts to a denial of the supreme wisdom and designs of Allah—it is kufr. Now God has revealed Himself from time to time to His favoured people of whom our Holy Prophet was the last. That revelation is contained in the Qur’an and covers the five topics mentioned above. The true business of a person who believes in Islam is therefore to understand, believe in and act upon that revelation. The people whom God chooses as medium for the transmission of His messages are rasuls (messengers) or nabis (prophets). Since every action or saying of a prophet is, in the case of our own Holy Prophet it certainly was, prompted by Allah, it has the same degree of inerrancy as the formal revelation itself, because prophets are ma’sum, incapable of doing or saying something which is opposed to Divine wishes. These sayings and actions are sunna having the same infallibility as the Qur’an. The record of this sunna is hadith which is to be found in several books which were compiled by Muslim scholars after long, laborious and careful research extending over several generations.
The word hadith means a record of actions or sayings of the Prophet and his companions. At first the sahaba. i. e. people who had lived in the society of the Prophet, were the best authority for a knowledge of the sunna. Later people had to be content with the communications of the tabi’un, i. e. successors, people of the first generation after the Holy Prophet who had received their information from the sahaba, and then in the following generations with the accounts of the so-called successors of the successors (tabi’ul-tabi’un), i.e. people of the second generation after the Holy Prophet, who had concerted with the successors. Marfu’ is a tradition which contains a statement about the Prophet ; mawquf, a tradition that refers only to the sayings or doings of the sahaba ; and maqtu’ a tradition which does not at most go further back than the first generation after the Holy Prophet and deals only with sayings or doings of tabi’un. In some of the ahadith the actual word of God is to be found. Any such tradition is designated Hadith-i-Qudsi or Ilahi as distinguished from an ordinary Hadith-i-Nabvi.
A very large portion of sayings ascribed to the Prophet deals with the ahkam (legal professions), religious obligations, halal and haram (what is allowed and forbidden), with ritual purity, laws regarding food and criminal and civil law. Further they deal with dogma, retribution at the Last Judgment, hell and paradise, angels, creation, revelations, the earlier prophets. Many traditions also contain edifying sayings and moral teachings by the Holy Prophet. The importance of ahadith was realised from the very beginning and they were not only committed to memory but in some cases were reduced to writing. The work of compilation of hadith began in the third century after the Hijra and the Sihah Sitta were all compiled in that century. These are the musannifs of —
(1) Al-Bukhari, died 256/870,
(2) Muslim, died 261/875,
(3) Abu Dawud, died 275/888,
(4) Al-Tirmizi, died 279/892,
(5) All Nasa’i, died 303/915, and
(6) Ibn-i-Maja, died 273/886.
According to modern laws of evidence, including our own, the ahadith are inadmissible evidence of sunna because each of them contains several links of hearsay, but as authority on law they are admissible pro prio vigore. The merit of these collections lies not so much in the fact that (as is often wrongly stated) their authors decided for the first time which of the numerous traditions in circulation were genuine and which false but rather in the fact that they brought together everything that was recognised as genuine in orthodox circles in those days.
The Shias judge hadith from their own stand-point and only consider such traditions reliable as are based on the authority of Ali and his adherents. They have, therefore, their own works on the subject and hold the following five works in particularly high esteem—
(1) Al-Kafi of Muhammad b. Yaqub Al-Kulini, died 328/939,
(2) Man La Yastahdiruhu’ul-Fakih of Muhammad b. Ali b. Babuya Al-Kummi,
died 381/991,
(3) Tahdib Al-Ahkam,
(4) Al-Istibsar Fi-Ma’khtalafa Fihi’l-Akhbar (extract from the preceding) of
Muhammad Altusi, died 459/1067, and
(5) Nahj Al-Balagha (alleged sayings of Ali) of Ali b. Tahir Al-Sharif Al-Murtaza, died 436/1044 (or of his brother Radi Al-Din Al-Baghdadi.)
After the ritual, the dogma and the most important political and social institutions had taken definite shape in the second and third centuries, there arose a certain communis opinio regarding the reliability of most transmitters of tradition and the value of their statement. The main principles of doctrine had already been established in the writings of Malik b. Anas, Al-Shafi’i and other scholars regarded as authoritative in different circles and mainly on the authority of traditional sayings of the Holy Prophet. In the long run no one dared to doubt the truth of these traditions and this almost conclusive presumption of truth has since continued to be attached to the ahadith compiled in the Sihah Sitta.
We have so far arrived at this result that any rule on any subject that may be derived from the Qur’an or the sunna of the Holy Prophet is binding on every Musalman. But since the only evidence of sunna is the hadith, the words sunna and hadith have become mixed up with, and indistinguishable from, each other with the result that the expression Qur’an and hadith is not infrequently employed where the intention is to refer to Qur’an and sunna.
At this stage another principle, equally basic, comes into operation, and that is that Islam is the final religion revealed by God, complete and exhaustive in all respects, and that God will not abrogate, detract from or add to this religion (din) any more than He will send a fresh messenger. The din having been perfected (Akmalto lakum dinokum, Sura V, verse 3), there remains no need for any new code repealing, modifying or amplifying the original code; nor for any fresh messenger or message. In this sense, therefore, prophethood ceased with the Holy Prophet and revelation stopped for ever. This is the doctrine of the cessation of wahi-i-nubuwwat.
If the proposition that Muslim dogma, ethics and institutions, etc., are all based on the doctrine of inerrancy, whether such inerrancy lies in the Qur’an, the sunna, ijma’ or ijtihad-i-mutlaq, is fully comprehended, the various deductions that follow from it will be easily understandable. As the ultimate test of truth, whether the matter be one of a ritual or political or social or economic nature, is revelation and revelation has to be gathered from the Qur’an, and the sunna carries almost the same degree of inerrancy as revelation and the only evidence of sunna is hadith, the first duty of those who desire to establish an Islamic State will be to discover the precise rule applicable to the existing circumstances whether that rule is to be found in the Qur’an or hadith. Obviously the persons most suited for the purpose would be those who have made the Qur’an and hadith their lifelong study, namely, among the Sunnies, the ulama, and among the Shias, the mujtahids who are the spokesmen of the hidden Imam, the ruler de jure divino. The function of these divines would be to engage themselves in discovering rules applicable to particular situations and they will be engaged in a task similar to that in which Greek philosophers were engaged, with only this difference that whereas the latter thought that all truth lay in nature which had merely to be discovered by individual effort, the ulama and the mujtahids will have to get at the truth that lies in the holy Book and the books of hadith.
The ulama Board which was recommended by the Basic Principles Committee was a logical recognition of this principle, and the true objection against that Board should indeed have been that the Board was too inadequate a mechanism to implement the principle which had brought that body into existence.
Ijma’ means concurrence of the mujtahids of the people, i.e., of those who have a right, in virtue of knowledge, to form a judgment of their own, after the death of the Holy Prophet. The authority of ijma’ rests on the principle of a divine protection against error and is founded on a basal tradition of the Holy Prophet, “My people will never agree in error”, reported in Ibn Maja, By this procedure points which had been in dispute were fixed, and when fixed, they became an essential part of the faith and disbelief in them an act of unbelief (kufr). The essential point to remember about ijma’ is that it represents the agreement of the mujtahids and that the agreement of the masses is especially excluded.
Thus ijma’ has not only fixed unsettled points but has changed settled doctrines of the greatest importance.
The distinction between ijma’ and ijtihad is that whereas the former is collective, the latter is individual. Ijtihad means the exerting of one’s self to the utmost degree to form an opinion in a case or as to a rule of law. This is done by applying analogy to the Qur’an and the sunna. Ijtihad did not originally involve inerrancy, its result being always zann or fallible opinion. Only combined ijtihad led to ijma, and was inerrant. But this broad ijtihad soon passed into special ijtihad of those who had a peculiar right to form judgments. When later doctors looked back to the founding of the four legal schools, they assigned to their founders an ijtihad of the first rank (ijtihad-i-mutlaq). But from time to time individuals appeared who returned to the earliest meaning of ijtihad and claimed for themselves the right to form their own opinion from first principles. One of these was the Hanbalite Ibn Taimiya (died 728). Another was Suyuti (died 911) in whom the claim to ijtihad unites with one to be the mujaddid or renewer of religion in his century. At every time there must exist at least one mujtahid, was his contention, just as in every century there must come a mujaddid.
In Shia Islam there are still absolute mujtahids because they are regarded as the spokesmen of the hidden Imam. Thus collective ijtihad leads to ijma’, and the basis of ijma’ is divine protection against error—inerrancy.
ESSENTIALS OF ISLAMIC STATE
Since the basis of Islamic law is the principle of inerrancy of revelation and of the Holy Prophet, the law to be found in the Qur’an and the sunna is above all man-made laws, and in case of conflict between the two, the latter, irrespective of its nature, must yield to the former. Thus, provided there be a rule in the Qur’an or the sunna on a matter which according to our conceptions falls within the region of Constitutional Law or International Law, the rule must be given effect to unless that rule itself permits a departure from it. Thus no distinction exists in Islamic law between Constitutional Law and other law, the whole law to be found in the Qur’an and the sunna being a part of the law of the land for Muslim subjects of the State. Similarly if there be a rule in the Qur’an or the sunna relating to the State’s relations with other States or to the relations of Muslim subjects of the State with other States or the subjects of those States, the rule will have the same superiority of sanction as any other law to be found in the Qur’an or the sunna.
Therefore if Pakistan is or is intended to be converted into an Islamic State in the true sense of the word, its Constitution must contain the following five provisions:—
(1) that all laws to be found in the Qur’an or the sunna shall be deemed to be a part of the law of the land for Muslims and shall be enforced accordingly;
(2) that unless the Constitution itself is framed by ijma’-i-ummat, namely, by the agreement of the ulama and mujtahids of acknowledged status, any provision in the Constitution which is repugnant to the Qur’an or sunna shall to the extent of the repugnancy be void;
(3) that unless the existing laws of Pakistan are adapted by ijma’-i-ummat of the kind mentioned above, any provision in the existing law which is contrary to the Qur’an or sunna shall to the extent of the repugnancy be void;
(4) that any provision in any future law which is repugnant to Qur’an or sunna shall be void;
(5) that no rule of International Law and no provision in any convention or treaty to which Pakistan is a party, which is contrary to the Qur’an or the sunna shall be binding on any Muslim in Pakistan.
SOVEREIGNTY AND DEMOCRACY IN ISLAMIC STATE
That the form of Government in Pakistan, if that form is to comply with the principles of Islam, will not be democratic is conceded by the ulama. We have already explained the doctrine of sovereignty of the Qur’an and the sunna. The Objectives Resolution rightly recognised this position when it recited that all sovereignty rests with God Almighty alone. But the authors of that Resolution misused the words ‘sovereign’ and ‘democracy’ when they recited that the Constitution to be framed was for a sovereign State in which principles of democracy as enunciated by Islam shall be fully observed.
It may be that in the context in which they were used, these words could not be misunderstood by those who are well versed in Islamic principles, but both these words were borrowed from western political philosophy and in that sense they were both wrongly used in the Resolution. When it is said that a country is sovereign, the implication is that its people or any other group of persons in it are entitled to conduct the affairs of that country in any way they like and untrammelled by any considerations except those of expediency and policy. An Islamic State, however, cannot in this sense be sovereign, because it will not be competent to abrogate, repeal or do away with any law in the Qur’an or the sunna. Absolute restriction on the legislative power of a State is a restriction on the sovereignty of the people of that State and if the origin of this restriction lies elsewhere than in the will of the people, then to the extent of that restriction the sovereignty of the State and its people is necessarily taken away. In an Islamic State, sovereignty, in its essentially juristic sense, can only rest with Allah. In the same way, democracy means the rule of the demos, namely, the people, directly by them as in ancient Greece and Rome, or indirectly through chosen representatives as in modern democracies. If the power of the people in the framing of the Constitution or in the framing of the laws or in the sphere of executive action is subject to certain immutable rules, it cannot be said that they can pass any law that they like, or, in the exercise of executive functions, do whatever they like. Indeed if the legislature in an Islamic State is a sort of ijma’, the masses are expressly disqualified from taking part in it because ijma’-i-ummat in Islamic jurisprudence is restricted to ulama and mujtahids of acknowledged status and does not at all extend, as in democracy, to the populace.
OTHER INCIDENTS OF ISLAMIC STATE ACCORDING TO ULAMA
In the preceding pages we have attempted to state as clearly as we could the principles on which a religious State must be built if it is to be called an Islamic State. We now proceed to state some incidents of such State, with particular reference to the ulamas’ conception of it.
LEGISLATURE AND LEGISLATION
Legislature in its present sense is unknown to the Islamic system. The religiopolitical system which is called din-i-Islam is a complete system which contains in itself the mechanism for discovering and applying law to any situation that may arise. During the Islamic Republic there was no legislature in its modern sense and for every situation or emergency that arose law could be discovered and applied by the ulama. The law had been made and was not to be made, the only function of those entrusted with the administration of law being to discover the law for the purposes of the particular case, though when enunciated and applied it formed a precedent for others to follow. It is wholly incorrect, as has been suggested from certain quarters, that in a country like Pakistan, which consists of different communities, Muslim and non-Muslim, and where representation is allowed to non-Muslims with a right to vote on every subject that comes up, the legislature is a form of ijma’ or ijtihad, the reason being that ijtihad is not collective but only individual, and though ijma’ is collective, there is no place in it for those who are not experts in the knowledge of the law. This principle at once rules out the infidels (kuffar) whether they be people of Scriptures (ahl-i-kitab) or idolators (mushrikeen).
Since Islam is a perfect religion containing laws, express or derivable by ijma’ or ijtihad, governing the whole field of human activity, there is in it no sanction for what may, in the modern sense, be called legislation.
Questioned on this point Maulana Abul Hasanat, President, Jami’at-ul-Ulama-i-Pakistan says :—
“Q.—Is the institution of legislature as distinguished from the institution of a person or body of persons entrusted with the interpretation of law, an integral part of an Islamic State?
A.—No. Our law is complete and merely requires interpretation by those who are experts in it. According to my belief no question can arise the law relating to which cannot be discovered from the Qur’an or the hadith.
Q.—Who were Sahib-ul-hall-i-wal-aqd
A.—They were the distinguished ulama of the time. These persons attained their status by reason of the knowledge of the law. They were not in any way analogous or similar to the legislature in modern democracy.”
The same view was expressed by Amir-i-Shari’at Sayyad Ata Ullah Shah Bukhari in one of his speeches reported in the ‘Azad’ of 22nd April, 1947, in the course of which he said that our din is complete and perfect and that it amounts to kufr to make more laws.
Maulana Abul Ala Maudoodi, however, is of the opinion that legislation in the true sense is possible in an Islamic State on matters which are not covered by the Qur’an, the sunna, or previous ijma’ and he has attempted to explain his point by reference to the institution of a body of persons whom the Holy Prophet, and after him the khulafa consulted on all matters relating to affairs of State. The question is one of some difficulty and great importance because any institution of legislature will have to be reconciled with the claim put forward by Maulana Abul Hasanat and some other religious divines that Islam is a perfect and exhaustive code wide enough to furnish an answer to any question that may arise relating to any human activity, and that it does not know of any “unoccupied field” to be filled by fresh legislation. There is no doubt that Islam enjoins consultation and that not only the Holy Prophet but also the first four caliphs and even their successors resorted to consultation with the leading men of the time, who for their knowledge of the law and piety could well be relied upon.
In the inquiry not much has been disclosed about the Majlis-i-Shura except what is contained in Maulana Abul Ala Maudoodi’s written statement which he supplied to the Court at its request. That there was a body of men who were consulted is true, but whether this was a standing body and whether its advice had any legal or binding force, seems somewhat doubtful. These men were certainly not elected in the modern way, though their representative character cannot be disputed. Their advice was certainly asked ad hoc, but that they were competent to make law as the modern legislatures make laws is certainly not correct. The decisions taken by them undoubtedly served as precedents and were in the nature of ijma’, which is not legislation but the application of an existing law to a particular case. When consulted in affairs of State, their functions were truly in the nature of an advice given by a modern cabinet but such advice is not law but only a decision.
Nor can the legislature in a modern State correspond to ijma’ because as we have already pointed out, the legislature legislates while the ulama of Majlis-i-Shura who were called upon to determine what should be the decision on a particular point which was not covered by the Qur’an and the sunna, merely sought to discover and apply the law and not to promulgate the law, though the decision when taken had to be taken not only for the purposes of the particular case but for subsequent occasions as a binding precedent.
An intriguing situation might arise if the Constitution Act provided that any provision of it, if it was inconsistent with the Qur’an or the sunna, would be void, and the intra vires of a law made by the legislature were questioned before the Supreme Court on the ground that the institution of legislature itself was contrary to the Qur’an and the sunna.
POSITION OF NON-MUSLIMS
The ground on which the removal of Chaudhri Zafrullah Khan and other Ahmadis occupying key positions in the State is demanded is that the Ahmadis are non-Muslims and that therefore like zimmies in an Islamic State they are not eligible for appointment to higher offices in the State. This aspect of the demands has directly raised a question about the position of non-Muslims in Pakistan if we are to have an Islamic Constitution.
According to the leading ulama the position of non-Muslims in the Islamic State of Pakistan will be that of zimmies and they will not be full citizens of Pakistan because they will not have the same rights as Muslims They will have no voice in the making of the law, no right to administer the law and no right to hold public offices.
A full statement of this position will be found in the evidence of Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri, Maulana Ahmad Ali, Mian Tufail Muhammad and Maulana Abdul Haamid Badayuni. Maulana Abul Hasanat on being questioned on the subject stated as follows :—
“Q.—If we were to have an Islamic State in Pakistan, what will be the position of the kuffar (non-Muslims)? Will they have a voice in the making of laws, the right of administering the law and the right to hold public offices?
A.—Their position will be that of zimmies. They will have no voice in the making of laws, no right to administer the law and no right to hold public offices.
Q.—In an Islamic State can the head of the State delegate any part of his powers to kuffar?
A.—No.”
Maulana Ahmad Ali, when questioned, said:—
“Q.—if we were to have an Islamic State in Pakistan, what will be the position of the kuffar? Will they have a hand in the making of the law, the right to administer the law and the right to hold public offices ?
A.—Their position will be that of zimmies. They will have no say in the making of law and no right to administer the law. Government may, however, permit them to hold any public office”.
Mian Tufail Muhammad stated as follows :—
“Q.—Read the article on minorities’ rights in the ‘Civil and Military Gazette’ of 13th October, 1953, and say whether it correctly represents your view of an Islamic State? (It was stated in the articles that minorities would have the same rights as Muslims).
A.—I have read this article and do not acknowledge these rights for the Christians or other non-Muslims in Pakistan if the State is founded on the ideology of the Jama’at”.
The confusion on this point in the mind of Maulana Abdul Haamid Badayuni, President, Jami’at-ul-Ulama-i-Pakistan, is apparent from the following: —
“Q.—Have you ever read the aforesaid speech (the speech of the Quaid-i-Azam to the Constituent Assembly of Pakistan on 11th August, 1947)?
A.—Yes, I have read that speech.
Q.—Do you still agree with the conception of Pakistan that the Quaid-i-Azam presented to the Constituent Assembly in this speech in which he said that thereafter there would be only one Pakistan nation, consisting of Muslims and non-Muslims, having equal civic rights, without any distinction of race, religion or creed and that religion would be merely a private affair of the individual ?
A.—I accept the principle that all communities, whether Muslims or non-Muslims, should have, according to their population, proper representation in the administration of the State and legislation, except that non-Muslims cannot be taken in the army or the judiciary or be appointed as Ministers or to other posts involving the reposing of confidence.
Q.—Are you suggesting that the position of non-Muslims would be that of zimmies or any better ?
A.—No. By zimmies are meant non-Muslim people of lands which have been conquered by an Islamic State, and the word is not applicable to non-Muslim minorities already living in an Islamic State. Such minorities are called mu’ahids, i.e. those people with whom some agreement has been made.
Q.—What will be their status if there is no agreement with them ?
A.—In that case such communities cannot have any rights of citizenship.
Q.—Will the non-Muslim communities inhabiting Pakistan be called by you as mu’ahids?
A.—No, not in the absence of an agreement with them. To my knowledge there is no such agreement with such communities in Pakistan.”
So, according to the evidence of this learned divine, the non-Muslims of Pakistan will neither be citizens nor will they have the status of zimmies or of mu’ahids. During the Islamic Republic, the head of the State, the khalifa, was chosen by a system of election, which was wholly different from the present system of election based on adult or any other form of popular suffrage. The oath of allegiance (ba’it) rendered to him possessed a sacramental virtue, and on his being chosen by the consensus of the people (ijma’-ul-ummat) he became the source of all channels of legitimate Government. He and he alone then was competent to rule, though he could delegate his powers to deputies and collect around him a body of men of outstanding piety and learning, called Majlis-i-Shura or Ahl-ul-Hall-i-wal-Aqd. The principal feature of this system was that the kuffar, for reasons which are too obvious and need not be stated, could not be admitted to this majlis and the power which had vested in the khalifa could not be delegated to the kuffar. The khalifa was the real head of the State, all power vesting in him and not a powerless individual like the President of a modern democratic State who is merely to sign the record of decisions taken by the Prime Minister and his Cabinet. He could not appoint non-Muslims to important posts, and could give them no place either in the interpretation or the administration of the law, the making of the law by them, as already pointed out, being a legal impossibility.
This being the position, the State will have to devise some machinery by which the distinction between a Muslim and a non-Muslim may be determined and its consequences enforced. The question, therefore, whether a person is or is not a Muslim will be of fundamental importance, and it was for this reason that we asked most of the leading ulama, to give their definition of a Muslim, the point being that if the ulama of the various sects believed the Ahmadis to be kafirs, they must have been quite clear in their minds not only about the grounds of such belief but also about the definition of a Muslim because the claim that a certain person or community is not within the pale of Islam implies on the part of the claimant an exact conception of what a Muslim is. The result of this part of the inquiry, however, has been anything but satisfactory, and if considerable confusion exists in the minds of our ulama on such a simple matter, one can easily imagine what the differences on more complicated matters will be. Below we reproduce the definition of a Muslim given by each alim in his own words. This definition was asked after it had been clearly explained to each witness that he was required to give the irreducible minimum conditions which, a person must satisfy to be entitled to be called a Muslim and that the definition was to be on the principle on which a term in grammar is defined.
Here is the result : —
Maulana Abul Hasanat Muhammad Ahmad Qadri, President, Jami’at-ul-Ulamai-
Pakistan —
“Q.— What is the definition of a Muslim ?
A — (1) He must believe in the Unity of God.
(2) He must believe in the prophet of Islam to be a true prophet as well as in all other prophets who have preceded him,
(3) He must believe in the Holy Prophet of Islam as the last of the prophets (khatam-un-nabiyin).
(4) He must believe in the Qur’an as it was revealed by God to the Holy
Prophet of Islam.
(5) He must believe as binding on him the injunctions of the Prophet of
Islam.
(6) He must believe in the qiyamat.
Q.—Is a tarik-us-salat a Muslim ?
A.—Yes, but not a munkir-us-salat”
Maulana Ahmad Ali, President, Jami’at-ul-Ulama-i-Islam, Maghribi Pakistan —
“Q.— Please define a Muslim ?
A.—A person is a Muslim if he believes (1) in the Qur’an and (2) what has been said by the prophet. Any person who possesses these two qualifications is entitled to be called a Muslim without his being required to believe in anything more or to do anything more.”
Maulana Abul Ala Maudoodi, Amir Jama’at-i-Islami —
“Q.—Please define a Muslim ?
A.—A person is a Muslim if he believes (1) in tauheed, (2) in all the prophets (ambiya), (3) all the books revealed by God, (4) in mala’ika (angels), and (5) yaum-ul-akhira (the Day of Judgment).
Q.—Is a mere profession of belief in these articles sufficient to entitle a man
to call himself a Musalman and to be treated as a Musalman in an Islamic State ?
A.—Yes.
Q.—If a person says that he believes in all these things, does any one have a right to question the existence of his belief ?
A.—The five requisites that I have mentioned above are fundamental and any alteration in anyone of these articles will take him out of the pale of Islam.”
Ghazi Siraj-ud-Din Munir—
“Q.—Please define a Muslim ?
A.—I consider a man to be a Muslim if he professes his belief in the kalima, namely, La Ilaha Illalah-o-Muhammad-ur-Rasulullah, and leads a life in the footsteps of the Holy Prophet.”
Mufti Muhammad Idris, Jamia Ashrafia, Nila Gumbad, Lahore—
“Q.—Please give the definition of a Musalman ?
A.—The word ‘Musalman’ is a Persian one. There is a distinction between the word ‘Musalman’ which is a Persian word for Muslim and the word ‘momin’. It is impossible for me to give a complete definition of the word ‘momin’. I would require pages and pages to describe what a momin is. A person is a Muslim who professes to be obedient to Allah. He should believe in the Unity of God, prophethood of the ambiya and in the Day of Judgment. A person who does not believe in the azan or in the qurbani goes outside the pale of Islam. Similarly, there are a large number of other things which have been received by tavatir from our prophet. In order to be a Muslim, he must believe in all these things. It is almost impossible for me to give a complete list of such things.”
Hafiz Kifayat Hussain, Idara-i-Haquq-i-Tahaffuz-i-Shia—
“Q.—Who is a Musalman?
A.—A person is entitled to be called a Musalman if he believes in (1) tauheed, (2) nubuwwat and (3) qiyamat. These are the three fundamental beliefs which a person must profess to be called a Musalman. In regard to these three basic doctrines there is no difference between the Shias and the Sunnies. Besides the belief in these three doctrines, there are other things called ‘zarooriyat-i-din’ which a person must comply with in order to be entitled to be called a Musalman. These will take me two days to define and enumerate. But as an illustration I might state that the respect for the Holy Book, wajoob-i-nimaz, wajoob-i-roza, wajoob-i-hajj-ma’a-sharait, and other things too numerous to mention, are among the ‘zarooriyat-i-din’ ”
Maulana Abdul Hamid Badayuni, President, Jami’at-ul-Ulama-i-Pakistan :
“Q.—Who is a Musalman according to you ?
A.—A person who believes in the zarooriyat-i-din is called a momin and every momin is entitled to be called a Musalman.
Q.—What are these zarooriyat-i-din ?
A.—A person who believes in the five pillars of Islam and who believes in the rasalat of our Holy Prophet fulfils the zarooriyat-i-din.
Q.—Have other actions, apart from the five arakan, anything to do with a man being a Muslim or being outside the pale of Islam?
(Note—Witness has been explained that by actions are meant those rules of moral conduct which in modern society are accepted as correct.)
A.—Certainly.
Q.—Then you will not call a person a Muslim who believes in arakan-ikhamsa and the rasalat of the prophet but who steals other peoples’ things, embezzles property entrusted to him, has an evil eye on his neighbour’s wife and is guilty of the grossest ingratitude to his benefector?
A.—Such a person, if he has the belief already indicated, will be a Muslim despite all this”.
Maulana Muhammad Ali Kandhalvi, Darush-Shahabia, Sialkot —
“Q.—Please define a Musalman?
A.—A person who in obedience to the commands of the prophet performs all the zarooriyat-i-din is a Musalman.
Q.—Can you define zarooriyat-i-din ?
A.—Zarooriyat-i-din are those requirements which are known to every Muslim irrespective of his religious knowledge.
Q.—Can you enumerate zarooriyat-i-din ?
A.—These are too numerous to be mentioned. I myself cannot enumerate these zarooriyat. Some of the zarooriyat-i-din may be mentioned as salat, saum, etc.”
Maulana Amin Ahsan Islahi —
“Q.—Who is a Musalman?
A.—There are two kinds of Musalmans, a political (siyasi) Musalman and a real (haqiqi) Musalman. In order to be called a political Musalman, a person must:
(1) believe in the Unity of God,
(2) believe in our Holy Prophet being khatam-un-nabiyin, i.e., ‘final
authority’ in all matters relating to the life of that person,
(3) believe that all good and evil comes from Allah,
(4) believe in the Day of Judgment,
(5) believe in the Qur’an to be the last book revealed by Allah,
(6) perform the annual pilgrimage to Mecca,
(7) pay the zaka’at,
(8) say his prayers like the Musalmans,
(9) observe all apparent rules of Islami mu’ashira, and
(10) observe the fast (saum).
If a person satisfies all these conditions he is entitled to the rights of a full citizen of an Islamic State. If any one of these conditions is not satisfied, the person concerned will not be a political Musalman. (Again said) It would be enough for a person to be a Musalman if he merely professes his belief in these ten matters irrespective of whether he puts them into practice or not. In order to be a real Musalman, a person must believe in and act on all the injunctions by Allah and his prophet in the manner in which they have been enjoined upon him.
Q.—Will you say that only the real Musalman is ‘mard-i-saleh’ ?
A.—Yes.
Q.—do we understand you aright that in the case of what you have called a political (siyasi) Musalman, belief alone is necessary, while in the case of a haqiqi Musalman there must not only be belief but also action?
A.—No, you have not understood me aright. Even in the case of a political (siyasi) Musalman action is necessary but what I mean to say is that if a person does not act upon the belief that is necessary in the case of such a Musalman, he will not be outside the pale of a political (siyasi) Musalman.
Q.—If a political (siyasi) Musalman does not believe in things which you
have stated to be necessary, will you call such a person be-din ?
A.—No, I will call him merely be-amal”.
The definition by the Sadr Anjuman Ahmadiya, Rabwah, in its written statement
is that a Muslim is a person who belongs to the ummat of the Holy Prophet and professes belief in kalima-i-tayyaba.
Keeping in view the several definitions given by the ulama, need we make any comment except that no two learned divines are agreed on this fundamental. If we attempt our own definition as each learned divine has done and that definition differs from that given by all others, we unanimously go out of the fold of Islam. And if we adopt the definition given by any one of the ulama, we remain Muslims according to the view of that alim but kafirs according to the definition of every one else.
APOSTASY
Apostasy in an Islamic State is punishable with death. On this the ulama are practically unanimous (vide the evidence of Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri, President, Jami’at-ul-Ulama-i-Pakistan, Punjab; Maulana Ahmad Ali, Sadr Jami’at-ul-Ulama-i-Islam, West Pakistan; Maulana Abul Ala Maudoodi, founder and ex-Amir-i-Jama’at-i-Islami, Pakistan; Mufti Muhammad Idris, Jami’Ashrafia, Lahore, and Member, Jami’at-ul-Ulama-i-Pakistan; Maulana Daud Ghaznavi, President, Jami’at-i-Ahl-i-Hadith, Maghribi Pakistan; Maulana Abdul Haleem Qasimi, Jami’at-ul-Ulama-i-Islam, Punjab; and Mr. Ibrahim Ali Chishti). According to this doctrine, Chaudhri Zafrullah Khan, if he has not inherited his present religious beliefs but has voluntarily elected to be an Ahmadi, must be put to death. And the same fate should befall Deobandis and Wahabis, including Maulana Muhammad Shafi Deobandi, Member, Board of Talimat-i-Islami attached to the Constituent Assembly of Pakistan, and Maulana Daud Ghaznavi, if Maulana Abul Hasanat Sayyad Muhammad Ahmad Qadri or Mirza Raza Ahmad Khan Barelvi, or any one of the numerous ulama who are shown perched on every leaf of a beautiful tree in the fatwa, Ex. D. E. 14, were the head of such Islamic State. And if Maulana Muhammad Shafi Deobandi were the head of the State, he would exclude those who have pronounced Deobandis as kafirs from the pale of Islam and inflict on them the death penalty if they come within the definition of murtadd, namely, if they have changed and not inherited their religious views.
The genuineness of the fatwa, Ex. D. E. 13, by the Deobandis which says that Asna Ashari Shias are kafirs and murtadds, was questioned in the course of enquiry, but Maulana Muhammad Shafi made an inquiry on the subject from Deoband, and received from the records of that institution the copy of a fatwa signed by all the teachers of the Darul Uloom including Maulana Muhammad Shafi himself which is to the effect that those who do not believe in the sahabiyyat of Hazrat Siddiq Akbar and who are qazif of Hazrat Aisha Siddiqa and have been guilty of tehrif of Qur’an are kafirs. This opinion is also supported by Mr. Ibrahim Ali Chishti who has studied and knows his subject. He thinks the Shias are kafirs because they believe that Hazrat Ali shared the prophethood with our Holy Prophet. He refused to answer the question whether a person who being a Sunni changes his view and agrees with the Shia view would be guilty of irtidad so as to deserve the death penalty. According to the Shias all Sunnis are kafirs, and Ahl-i-Qur’an; namely, persons who consider hadith to be unreliable and therefore not binding, are unanimously kafirs and so are all independent thinkers. The net result of all this is that neither Shias nor Sunnis nor Deobandis nor Ahl-i-Hadith nor Barelvis are Muslims and any change from one view to the other must be accompanied in an Islamic State with the penalty of death if the Government of the State is in the hands of the party which considers the other party to be kafirs. And it does not require much imagination to judge of the consequences of this doctrine when it is remembered that no two ulama have agreed before us as to the definition of a Muslim. If the constituents of each of the definitions given by the ulama are given effect to, and subjected to the rule of ‘combination and permutation’ and the form of charge in the Inquisition’s sentence on Galileo is adopted mutatis mutandis as a model, the grounds on which a person may be indicted for apostasy will be too numerous to count.
In an earlier part of the report we have referred to the proscription of the ‘Ashshahab’, a pamphlet written by Maulana Shabbir Ahmad Usmani who later became Sheikh-ul-Islam-i-Pakistan. In that pamphlet the Maulana had attempted to show from the Qur’an, the sunna, the ijma’ and qayas that in Islam the punishment for apostasy (irtidad) simpliciter is death. After propounding the theological doctrine the Maulana had made in that document a statement of fact that in the time of the Caliph Siddiq-i-Akbar and the subsequent Caliphs vast areas of Arabia became repeatedly red with the blood of apostates. We are not called upon to express any opinion as to the correctness or otherwise of this doctrine but knowing that the suggestion to the Punjab Government to proscribe this pamphlet had come from the Minister for the Interior we have attempted to inquire of ourselves the reasons for Government’s taking a step which ex hypothesi amounted to condemning a doctrine which the Maulana had professed to derive from the Qur’an and the sunna. The death penalty for irtidad has implications of a far-reaching character and stamps Islam as a religion of fanatics, which punishes all independent thinking. The Qur’an again and again lays emphasis on reason and thought, advises toleration and preaches against compulsion in religious matters but the doctrine of irtidad as enunciated in this pamphlet strikes at the very root of independent thinking when it propounds the view that anyone who, being born a Muslim or having embraced Islam, attempts to think on the subject of religion with a view, if he comes to that conclusion, to choose for himself any religion he likes, has the capital penalty in store for him. With this implication Islam becomes an embodiment of complete intellectual paralysis. And the statement in the pamphlet that vast areas of Arabia were repeatedly bespattered with human blood, if true, could only lend itself to this inference that even when Islam was at the height of its splendour and held absolute sway in Arabia there were in that country a large number of people who turned away from that religion and preferred to die than to remain in that system. It must have been some such reaction of this pamphlet on the mind of the Minister for the Interior which prompted him to advise the Punjab Government to proscribe the pamphlet. Further the Minister who was himself well-versed in religious matters must have thought that the conclusion drawn by the author of the pamphlet which was principally based on the precedent mentioned in paras. 26, 27 and 28 of the Old Testament and which is only partially referred to in the Qur’an in the 54th verse of the Second Sura, could not be applicable to apostasy from Islam and that therefore the author’s opinion was in fact incorrect, there being no express text in the Qur’an for the death penalty for apostasy. On the contrary each of the two ideas, one underlying the six brief verses of Surat-ul-Kafiroon and the other the La Ikrah verse of the second Sura, has merely to be understood to reject as erroneous the view propounded in the ‘Ash-Shahab’. Each of the verses in Surat-ul-Kafiroon which contains thirty words and no verse of which exceeds six words, brings out a fundamental trait in man engrained in him since his creation while the La Ikrah verse, the relevant portion of which contains only nine words, states the rule of responsibility of the mind with a precision that cannot be surpassed. Both of these texts which are an early part of the Revelation are, individually and collectively, the foundation of that principle which human society, after centuries of conflict, hatred and bloodshed, has adopted in defining one of the most important fundamental rights of man. But our doctors would never dissociate chauvinism from Islam.
Independent Indian: Work & Life of Professor Subroto Roy 
August 30, 2015 at 9:46 pm
Very thorough and well written. Asks alot of painful questions that need to be answered, if a cohesive and progressive country wants to emerge.
Unfortunately, the religious leaders are as clueless as the common man about what to apply where. And yet they demand our attention and respect for their “vast” religious indoctrination.
December 10, 2015 at 3:26 pm
Pakistan was not created by muslims of india as the same population of Muslims have left in the New India, but was created by British imperialist with the help of their agents – nawab,waderas and choudhries- in order to divide muslims of India, Pakhtoons in south Asia and finally a big south Asian power -India- to break. According to jinah the system of newly established state will be secular, and the same secular system prevail in India, so why was a new state established – to practice what? According to jinah Hindus, christian and muslims in newly created country will all be equal and brother, why was the same not possible in United India?