SPEAKING to a group of clerics from Malakand agency, Mr Salim Saifullah, federal minister for inter-provincial coordination, said his government intended to Islamise the Constitution of Pakistan in its true spirit and in accord with the aspirations of the people. (Dawn, April 7, 2007).

Let us consider some of the Constitution’s stipulations to see if it is already Islamised:

(1) the state of Pakistan is to exercise its authority within the limits set by God;

(2) it may make no law that is repugnant to Islam, and it is to implement the principles of democracy, freedom, equality, tolerance, and social justice as set forth in the Quran and Sunnah;

(3) it will enable its Muslims citizens to order their individual and collective lives in accordance with the teachings and requirements of Islam;

(4) Islam is to be the state religion;

(5) the Objectives Resolution, originally contained in the Preamble, is made operational;

(6) Islamiat is to be a required subject of study in schools;

(7) Islamic moral standards are to be promoted;

(8) proper organisation of zakat and ushr is to be secured;

(9) publication of obscene materials, including advertisements, is to be banned;

(10) fraternal relations with other Muslim countries are to be pursued.

(11) The president and prime minister of Pakistan must be Muslim;

(12) a Muslim member of the National Assembly must be one who: (a) does not violate Islamic injunctions, (b) has adequate knowledge of Islamic teachings, (c) performs the prescribed Islamic duties, (d) abstains from all major sins; (e) is righteous and non-profligate, (f) is honest, has never given false evidence or committed an act involving moral turpitude, (g) has never expressed an opinion, or acted in any manner, prejudicial to the “ideology of Pakistan.

(13) The state is to establish a Federal Sharia Court which, on its own initiative or upon a citizen’s application, may examine any existing or proposed law or policy for its conformity to Islamic injunctions and declare it null and void if it finds the same to be repugnant to them;

(14) it is also to establish an appellate Sharia bench in the Supreme Court;

(15) the state is to establish a Council of Islamic Ideology, which will, upon request, advise the executive or legislature whether a law is repugnant to Islam, identify existing laws which may be repugnant, advise how their repugnance is to be removed, and suggest ways and means whereby the state may enable its Muslim citizens to live in accordance with Islam.

It seems to me that the above stipulations make the Constitution abundantly Islamic. It is hard to see what could usefully be added and to what end. The qualifications required of legislators, which may be deemed to apply to officials in the executive branch as well, bring the government close to being a theocracy. What more can we want?

It is an entirely different matter that the stipulations listed above, like many other provisions in the Constitution, are actually disregarded or violated. There can be no assurance that additional Islamic provisions will change the existing state of affairs. It may be useful to recall that Islamic injunctions made the law of the land in much of the Muslim world through much of its history, but after the end of the pious caliphate (661 AD), while this law applied to the ordinary folks, mostly the poor, it did not touch the political or personal conduct of princes, their high officials, and cronies at the capital or that of the rich and powerful out in the provinces.

Mr Saifullah wants to honour the spirit of the Constitution in the process of Islamising it further. I wonder if he knows what that spirit is, and where we are to look for it: in its original version adopted in March 1973, in the one after it had been mutilated by Ziaul Haq’s infamous eighth amendment (1985), or as it stood after it had been further deformed by Pervez Musharraf’s seventeenth amendment (2002)? In its original version it was undoubtedly democratic in spirit. It provided for a strong executive, albeit, within the overall framework of parliamentary supremacy.

It designated the prime minister, a nominee of the National Assembly, as head of the executive and made the president, an indirectly elected functionary, wholly dependent upon the prime minister’s advice. It made minor concessions to the advocates of provincial autonomy, created a quasi-federal political system that allowed a high degree of centralisation. In sum democracy, parliamentary supremacy, centralisation, and deference to Islamic law and injunctions combined to form the “spirit” of the Constitution in its original version.

The eighth and seventeenth amendments, forced upon the nation by Ziaul Haq and Pervez Musharraf, taken together as a package, tilted the balance of power within the executive heavily towards the president, negated the notion of parliamentary supremacy in that it invested the president with discretionary authority to dissolve the National Assembly, and beyond that it whittled down parliamentary control of the executive, and further centralised the political system. It enlarged the parliament’s obligation to abide by Islamic law and injunctions. It moved towards recognising the military’s entitlement to a role in the country’s governance and politics.

Let us now see what one might expect if the Constitution were further Islamised in concord with its present “spirit” as spelled out above. Centralisation is one of its main ingredients. This will go well with the Islamic tradition. It is generally agreed that the conduct of state during the pious caliphate (632-661) is to be taken as an Islamic model. We will see that in terms of organisation it incorporates the extreme of centralisation, both horizontal and vertical.

Remaining within the bounds of Islamic law and injunctions, the caliph during this period is the chief executive, and in that capacity he does not have to share authority with any other person or organ; he is the chief rule maker in situations where the Sharia is silent; he may or may not accept the advice of those he chooses to consult (shura); he is the chief judge in the realm and may hear cases in his own court if he so elects; he is the commander-in-chief of the army and may actually lead his troops if he so decides.(The first three pious caliphs carried the sword but they were not particularly noteworthy as warriors; the fourth one – Ali ibn Abu Talib – was, and he did lead his army during his caliphate in the battles of Jamal and Safin.) Governing authority resided at the capital, the caliph was the chief administrator, the provincial governors owed their appointments to him, served during his pleasure and exercised only as much authority as he had allowed them.

This is a system that concentrates all lawful authority at one place. It does not admit of “separation of powers” and “checks and balances.” It delivered justice and served the public interest because the caliphs during the period under reference were self-denying and righteous. The likes of them did not appear during the rest of Muslim history, except rarely and that for very short terms.

Nor does anyone expect them to appear in our own time or in the foreseeable future. Given the currently prevalent corruption of morals, if the concentration of authority and power that characterised the pious caliphate were to be re-enacted in Pakistan, an unmitigated and frightful tyranny would result and make all of us utterly miserable.

In advancing Islamisation, Mr Saifullah wants to take account of the people’s aspirations in this regard. He may not know what these aspirations are or even whether the people have given the matter any thought. Let us assume for the sake of argument that they have. In that case, those with the Taliban type of mindset would want a more general observance of the prescribed Islamic duties (prayer and fasting), abstention from forbidden indulgences, piety, and restriction of women’s appearance and activity in public places.

But many people will want more than piety. They will look to Islamisation to bring them democracy, equality, social justice, and access to the basic amenities of life. They will expect it to narrow the gap between the rich and the poor, discourage accumulation and concentration of wealth, stop ostentatious spending, encourage spending of surpluses in the “way of the Lord,” meaning for public purposes. This is a meaning of Islamisation that the founder of Pakistan, Mr M.A. Jinnah, had in mind, and which most of us – except the feudal lords, hereditary aristocrats, barons of commerce, and captains of industry – will accept and work to implement.

Which one of these two sets of aspirations does Mr Saifullah’s government wish to uphold? They are not mutually exclusive, but it makes a huge difference where one locates one’s priority. The great majority of the people in this country have rejected the Islamic parties, whose mindset is similar to that of the Taliban, in successive elections. It would seem to follow that they are not awaiting the enforcement of the Islamic penal law or the exclusion of women from the professions and public life and their confinement within their homes. But they do await the implementation of Islamic injunctions that call for liberty, equality and social justice.

The Islamic establishment in Pakistan does not oppose accumulation or the concentration of wealth. Nor does it oppose ostentatious consumption and consumerism. It does not favour equal rights for non-Muslim minorities, and it is sceptical of democracy as we understand it.

Lastly, we should like to know if the present government has any intention of going beyond rhetoric and actually implementing Islamic injunctions, principles, and values that have already been made part of this country’s Constitution and law. Does it, for instance, intend to seek the disqualification of those members of the National Assembly who are not regular in prayer and fasting, give and take bribes, default on repayment of loans, or are otherwise “profligate”? If not, why allow loose talk of Islam and Islamisation?

The writer is a visiting professor at the Lahore School of Economics for the spring semester. Email:anwarhs@lahoreschool.edu.pk

THE current show of strength by the lawyers and clerics, though unconnected and in pursuit of their respective aims, has some dangerous and far reaching implications. The common message emanating from their separate protests is that if the state fails to administer justice or prevent evil, as they view it, some groups or individuals may act on their own or, in other words, take the law into their own hands. It bodes ill for the country.

The lawyers are contesting both the legality and substance of the charges against the Chief Justice in the Supreme Judicial Council and the Supreme Court itself. But if they lose the legal battle many among them seem determined to enforce justice of their own conception through street power that they have exhibited already.

The clerics of Islamabad’s Lal Masjid have given the legal course short shrift. To justify a raid on a private home (allegedly being used as a brothel) and the kidnapping of two women and an infant child, the deputy administrator of the madressah, Abdul Rashid Ghazi, contends that he was compelled to act when the police, despite persuasion and pressure, refused to act.

It came somewhat as a surprise when Qazi Hussain Ahmad who, besides being the head of the country’s only faction-free religious party is also a lawmaker, lent support to the maverick maulana’s raid-and-kidnap actions. It was not against the law, argued the venerable Qazi, to take the law into one’s own hands if the state was either indifferent to or unwilling to do its duty.

One does not have to go far in time or place to show the fallacy in Qazi sahib’s reasoning. In the adjoining province of the NWFP where Maulana Yusuf Qureshi, imam of Peshawar’s historic Mohabat Khan mosque, has commanded his disciples to spread out and close brothels and gambling dens wherever found, Chief Minister Akram Durrani has protested that Yusuf is inciting his followers to act in violation of the law not to eradicate social evils but to undermine the authority of his government.

Now, while Qazi Hussain Ahmad readily, though unexpectedly, endorsed Maulana Ghazi’s action against a suspected Islamabad brothel he has not been heard justifying a similar campaign by Maulana Yusuf’s men in Peshawar. His silence speaks for itself. Ghazi’s action exposes to ridicule the federal government that Qazi sahib loathes while the NWFP is administered by the MMA religious alliance that he heads.

The moral campaigns are thus intended to serve political ends which differ in Islamabad and the NWFP. In Lahore, where neither the conventional clerics nor the religious parties are in a position to challenge the authority of the Punjab government or win the support of the people at large, their youthful zealots are content to disrupt musical soirees or harass unveiled girls on the university campus. The secular MQM and nationalists of Sindh deny them even that limited scope for their puritanical exertions.

Governance founded on religious edicts presents problems far more intractable than the seminarians raiding brothels or building mosques on public lands can imagine, much less grasp. The status and rights of citizens belonging to various religious persuasions or moral codes have to be reconciled to the policies and laws of the state. To appreciate the contradictions that would bedevil such an exercise it would be useful both for the divines and laymen to have recourse to the report of the court of enquiry comprising Justices Munir and Kiyani on the Punjab disturbances of 1953.

When the reporter of a Lahore weekly asked Maulana Rashid Ghazi why his pupils were raiding homes and music shops he said it was to enforce the law of Sharia. He evaded answering the second part of the reporter’s question which was how he would feel if India were to decide to enforce the Hindu law.

Relevant to Ghazi’s short, glib answer is a question that the court had put to Maulana Abul Hasanat, at that time president of Jamiat Ulema-i-Pakistan (this party still dominates Pakistan’s religio-political scene). That question and the maulana’s reply are reproduced below:

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 about the law relating to which [an answer] cannot be discovered from the Quran or the hadith.

Many other views – milder or more radical – were expressed. Their brief summation by the court was: “Legislature in its present sense is unknown to the Islamic system”. The report then went on to add: “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.”

If this view were to prevail the first result of the enforcement of the rule of Sharia would be the dissolution of all assemblies sending the whole lot or ministers, MNAs, MPAs and senators to look for other profitable vocations. Only ‘scholars’ like Abdul Aziz and Abdul Rashid of Lal Masjid would be left to interpret the Islamic injunctions and lay down the standards of human conduct in public and private life.

On the rights of the citizens in a state ruled by Sharia, widely divergent and dangerous views were expressed by the leaders of religious parties and other scholars appearing before the court but they all agreed on the minimum that the non-Muslims would have no voice in making or administering laws nor would they be eligible to hold public office and surely not in the army and judiciary. They conceded that India too had the right to declare itself a Hindu state and treat its Muslims likewise.

Today’s divines and scholars surely will have a more realistic view of statecraft in a globalised world in which Pakistan is not the only Muslim country. The transformation is fast and continuing. Lal Masjid, quite obviously, is not a part of this process of change, but just a sore outgrowth of corrupt governance as well as its nemesis. The problem it presents is administrative and not political or ideological. It should be viewed as such and handled by the administrator of Islamabad and not by the chief of a political party.