The constitutional dilemma

system · March 17, 2009, 1:53am

Please comment. Is it Islam or the lack of agreement amongst religious leaders that is the problem? So where should we start..

The constitutional dilemma ??

DAWN.COM | Pakistan | The constitutional dilemma

By Kunwar Idris

Sunday, 15 Mar, 2009 | 11:17 AM PST |

The preamble to the Constitution of Pakistan binds the state ‘to exercise its powers and authority through the chosen representatives’ who, in turn, are bound to fully observe ‘the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam’.
The constitution is, thus, violated whenever martial law is imposed, which indeed it was for 20 years out of 36, or even when an unelected governor replaces an elected chief minister in a province as in the case of Punjab. But it is the violation of the second part of the constitutional injunction relating to the principles of governance which is serious and perpetual.
Does democracy in Pakistan conform to Islamic principles? In Maulana Sufi Mohammad’s view it doesn’t, for an elected legislature itself is alien to Islam. He can, therefore, assert whenever it suits him or his clients — the Taliban of Swat — that neither the provincial assembly nor Pakistan’s national parliament has the authority to revoke or alter the judicial system that has been introduced in Malakand Agency and neighbouring Kohistan under his auspices to end the insurgency there.
Sufi Mohammad can also ignore or resist a legal challenge to the Nizam-i-Adl Regulation in the courts on the ground that it conforms to the principles enunciated by Islam and is therefore protected by the constitution. Thus a measure that was intended to tide over a crisis might set a precedent for any person, community or region to challenge the authority of the state on the same ground. That could include many preposterous inferences that are drawn by the Taliban such as a woman leaving her home unveiled should be whipped in public or that keeping pigeons is un-Islamic.
The essential point to be made here is that the contradictions in governance and evils that afflict our society ranging from hypocrisy to insurgency all originate from the obligation of the state to establish an order based on the principles of Islam which it must under the constitution but cannot because of total lack of agreement on what these principles are.
This dilemma was summed up thus by the Munir-Kayani court of enquiry in 1954 after recording the views of the exponents of all schools of thought:
‘Hifiz Kifayat Husain, the Shia divine, held out as his ideal the form of government during the Holy Prophet’s [PBUH] time, Maulana Daud Ghaznavi also included in his precedent the days of the Islamic Republic of Umar bin Abdul Aziz, Salahuddin Ayubi 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 AD, a period of less than 30 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 ulema.’
That, of course, the ulema have not ever been able to do. Also expressed before the court was a view (by Maulana Abul Hasanat) conforming to the contention of today’s Sufi Mohammad that elections and legislatures are unnecessary ‘since Islam is a perfect religion containing laws, express or derivable by ijma (consensus) or ijtihad (exertion) governing the whole field of human activity, there is in it no sanction for what may, in the modern sense, be called legislation — our law is complete and merely requires interpretation by those who are experts in it’.
Fifty-five years later, divergent views on the Islamic principles applicable to statecraft have only hardened. Pakistan has now to contend not just with its internal schisms and strife but is hard put to deny the world’s charge of being the hotbed of Islamic terrorism.
Having laid down the principles in the preamble, the constitution goes on to make the state responsible for providing facilities that enable the Muslims to ‘understand the meaning of life according to the Holy Quran and Sunnah’ (Article 31). This responsibility, in fact, has been taken over by parochial organisations, leaving the state to face the brunt of the violence that the sermons at their mosques and lessons at their madressahs lead to. The mayhem at Islamabad’s Red Mosque and the attached women’s seminary is a prime example of this development.
The commitment to religious principles in no manner has promoted equity or justice in society but has caused radicalism to grow at its fringes. Unfortunately, the world recognises Pakistan’s religious character by its persecution of dissidents at home and terrorist strikes across the world. The constitutional provisions have also given parochial groups a say in the affairs of the state disproportionate to their popular vote of less than 10 ten per cent.
If the war in Afghanistan cannot be won, President Barack Obama has been quoted as saying, ‘what are we doing there?’ At the same time, he says, America cannot turn its back on Pakistan. Outwardly encouraging, it has an ominous ring to it — the theatre of war may soon shift from Afghanistan to Pakistan. A confirmation of it has, in fact, already come from Secretary of State Hillary Clinton. Afghanistan, she says, has its internal problems, but more serious external problems come from
Pakistan. One day American troops may walk into Pakistan to deal with the Afghan problem at its very source.
The time seems to have arrived for the state to give up all pretensions to the implementation of Islamic principles and leave this task instead to the people. Surely, Pakistan’s society was far more just, tolerant and ethical before the likes of Ziaul Haq intervened to destroy these values. The government and the armed forces should just take care of the safety and economic well-being of the citizens and defend its borders.
The time has also arrived for Pakistan to extricate itself from the unending conflicts in the region and turn to South and Southeast Asia where the jihad being waged is for economic prosperity, and not for ideological hegemony. In any case, we have closer cultural and ethnic ties with the region to the east which, incidentally, contains two-thirds of the Muslim population of the world. In this alignment lies the solution of Kashmir dispute and also of Pakistan’s extremism.
DAWN.COM | Pakistan | The constitutional dilemma