ISLAMIC CONCEPT OF STATE AND EFFECT OF ISLAMIZATION OF LAWS*

ISLAMIC CONCEPT OF STATE <!--[if gte mso 10]> ISLAMIC CONCEPT OF STATE AND EFFECT OF ISLAMIZATION OF LAWS* By Mr. Justice Dr. Nasim Hasan Shah, Judge, Supreme Court of Pakistan In the modern world there are two types of State; one in which the States and religion are completely separated, following the principle "Render unto Ceaser (King) what belongs to him and Render unto God what belongs to Him". Here God and King (State) are regarded as two separate and distinct entities. The commands of one are not applicable to the other. The States in Europe are founded on this principle and here spiritual and temporal matters are placed in separate compartments. * Talk delivered to the members of the Faculty and the Students of the 1991 Course at Command and Staff College, Quetta on 5th August, 1991. In the other type of States no such separation exists--the Sovereign and God are one and the same. Here the Supreme authority vests in God Almighty who is the unchallenged ruler and the supreme dispenser and whose commands are obeyed by all. In this State, human rulers are his vice-regents and their orders are obeyed only when they conform with and are derived from His divine commands or at least are not repugnant to them. This is an Islamic State. Professor Wilfred C. Smith, the well-known Western Scholar of Islam commenting on the great debate going in the early 1950's about the role of Islam in Constitution-making in Pakistan, said: "Islam is a religion, and like other religions, is transcendant, ineffable; no form can continue or exhaust it. Like other religions it has been expressed in many forms -- artistic, intellectual, mystic but more than some others, social. In fact, Islam is characterised among the religions by the particular emphasis which it has from the beginning given to the social order." Here he was echoing the thought of Iqbal that "Islam is not a creed. It is a social code". In fact, Islam embraces within its legitimate sphere not only those acts and performances which the followers of many other religions regard as included in the word `wordship', but it also embraces aspects of individual, communal, - national and international activity. Indeed in Islam, the regulation of all aspects of one's life in accordance with the values of Islam constitutes a continuous worship of God. As a distinguished Muslim Scholar, Dr. I.H. Qureshi, put it; "To us religion is not like a Sunday suit which can be put on when we enter a place of worship and put off when we are dealing with day to day life". In fact, in Islam we can discover the underlying principles of social relationship, the laws of peace and war, of state-craft and human intercourse. Indeed, a complete course of conduct. Islam in the West is often portrayed as a return to the dark ages, concerned mainly with the chopping off hands and lashing of criminals; veiling women and denying them human rights and constantly geared to waging holy wars against non-believers. It is projected as medieval and against social change. Nothing could, in fact, be further from the truth. Islam is only not a backward looking or a stagnant religion but the most progressive and enlightened religion that World has ever seen inspiring revolutionary changes in the West. A noted European Scholar Robert Briffault in his book `The Making of Humanity' has observed: "The ideals of freedom for all human beings, of human brotherhood, of the equality of all men before law, of democratic government of consultation and universal suffrage, the ideals which inspired the French Revolution and the Declaration of Rights that guided the framing of the American Constitution and inflamed the struggle for independence in the Latin American countries were not inventions of the West. They find their ultimate inspiration and source in the Holy Quran. They are the quintessence of What the intelligentsia of Mediaeval Europe acquired from Islam over a period of centuries, through the various channels of Muslim Spain, Sicily, the Crusaders; and the ideals propagated by the various societies that developed in the wake of the Crusaders in imitation of the brotherhood association of Islam." Coming to the Concept of an Islamic State it is necessary to state that establishing an Islamic State is not a goal or an end in itself but is only a means to that end, the goal being to create a community of people who stand up for equity and justice, for right and against wrong. However, establishing such a society is only possible with the agency of the State and the power it commands. Such a social order cannot be brought about merely by pious wishes or religious sermons. It ran come about only if the State bends all its energies towards enforcement of the Injunctions of the Sharia in society. The concept of an Islamic State finds its true meaning and justification where the State acting within the framework of the Shariah and actively pursues this goal of establishing a society of the just and the virtuous. What do we mean by the Sharia? According to me, Sharia comprises those clear-cut commands and prohibitions which are contained in the Quran and the Sunnah technically described as the nasus (Singular nass) which delineate the outer limits i.e. the boundaries within which the community must act and must not transgress. In all the remaining innumerable situations falling within these limits the Muslim Community living in the State can itself decide and act in accordance with the requirements of their times and the actual social conditions. The scope of this freedom of action, subject to the limitation stated above, can be exemplified by an analogy. Suppose a horse is tied to a peg with a rope measuring a 100 yards. This will enable the horse to circulate in all directions; North, South, East or West, within a radius of 100 yards. In this circle he will also have the complete freedom to sit, stand or lie down where he likes, when he likes and how he likes. But by the same token he cannot go outside the limits of that circle and must restrict all his actions within the limits of its boundaries. These boundaries can be equated to the nass commands while all the rest of the remaining area falling within the circle where complete freedom of action is available can be equated to the situation of mubah i.e. what is allowed or the sphere where complete freedom of action is available. Indeed the study of the Islamic Injunctions reveals that those commands which are expressed in nass terms are very few and that by far the much larger area of human activity has been left unspecified wherein the community is not forbidden to act as it wants. Thus from the Shari point of view the doing of anything in this field is allowable (mubah). Accordingly, the Muslims are at liberty in this field to provide through legislation or otherwise all that is deemed necessary to deal with every kind of situation which may arise in the community for tackling problems of their times. It is for this reason that it is said in the Qur'an: "For every one of you We have ordained a Divine Law and an open road." (Qur'an V: 48) If we approach our task in this spirit of free inquiry, we arrive at two important conclusions. First, that the concept of Islamic Law--especially with regard to public law acquires a simplicity which was envisaged for it by Almighty Allah but subsequently buried under many layers of conventional and frequently arbitrary interpretation and secondly -- which is more pertinent to the problem before us -- that the outward forms and functions of an Islamic State need not necessarily correspond to any "historical precedent". All that is required of a State in order that it might deservedly be described as "Islamic" is the embodiment in its Constitution and practice of those clear-cut, unambiguous commands of Islam which have a direct bearing on the community's social, political, and economic life. These commands are, as already observed, very few and are very precisely formulated. Resultantly, the Muslim community is left with the widest possible latitude to address itself to the needs of their particular time and social conditions. SOVEREIGNTY OF ALLAH The first and foremost concept of an Islamic State is that Sovereignty herein vests in Almighty Allah. "It is only for Allah to command" (Surah Yusuf, Verse 40) and "to Allah belongeth the dominion of Heaven and the Earth" (Surah Baqarah, Verse 107). Human beings are the Viceregents of God exercising authority as a trust for Him and as His delegates. HEAD OF STATE Since the purpose of an Islamic State is the application of Islamic Injunctions in the governance of the State, it is only a person who is a Muslim who can be entrusted with the office of Head of State. Hence the Head of an Islamic State (Amirul Momenine) is to be a Muslim. However, the community as a whole must have the right to choose its leader and the right to remove him. EXTENT OF ALLEGIANCE In an Islamic State, the believers, no doubt, are enjoined to "Obey God and Obey the Apostle and those in authority among you" Arbi Page 115 But a Muslim's duty of allegiance to the Government represented by the person of the Amir is not unconditional. As has been laid down by the highest authority-- the Prophet (p.b.u.h.) himself-- that it is due as long as he (the Amir) acts in accordance with the commands of Allah. The Prophet has said: "No obedience is due in sinful matters; behold obedience is due only in the way of righteousness (fi'I-ma ruf)" (Al-Bukhari and Muslim on the authority of Ibne Umar) Abu Bakar on his election as the Caliph said: "O, people, I have been made the Ruler amongst you, and I am not the best of you. So if I act rightly, help me, and if I am in error, correct me. Truth is a (sacred) trust, and falsehood is breach of trust. The weakest amongst you is strong in my eyes till I bring, with the help of God, to him what is his right, And the strongest amongst you is weak (in my eyes) till I take from him, with the help of God, what is due. O' people! never did, a people give up the efforts in the path of Allah but Allah made them subject to disgrace and never did obscenity become public in any people but Allah put them into tribulations. Obey me when I obey Allah and his Prophet (p.b.u.h.) and when I disobey Allah or His Prophet (p.b.u.h.) then I have no right to obedience from you. (Al-Muttaqi, Kanz al-Ummal-- Hyderabad 1954, Vol. V) CONDUCT OF AFFAIRS THROUGH CONSULTATION The Head of the State, however, is enjoined to run the affairs of the Islamic State through "consultation with the believers": "Their (the Believers) communal business (amr) is to be (transacted in) consultation among themselves" (Qur'an, XLII: 38) This nass injunction is of the utmost importance and constitutes the bedrock of all Islamic thought in relation to statecraft. This injunction requires all affairs of a communal nature to be decided through consultation with the believers to whom the rulers are accountable. The phrase "amruhum shura baynahum" makes the transaction of all political business dependent upon consultation. In modern times this would imply that all the affairs of the State must be conducted in consultation with a Legislative Assembly which is chosen by the community. JUST SOCIETY In an Islamic State the rulers are enjoined to deal with people with kindness and justice. Indeed, the principles of right, justice and equality are the hallmarks and foundations of the Islamic Social System. In Islam justice is the supreme goal and objective. Hence any path that leads to justice and fairness is something which accords with Islam and anything which negates justice and fairness is against Islam. Indeed the believers are enjoined to employ all means of establishing "all that is right" (al-maruf) and eliminating "all that is wrong" (al- munkar). The Quranic concept of justice guarantees harmonious and balanced opportunities of simultaneous development individually as well as collectively. To do justice and be just is the greatest teaching of Islam. In fact, justice is the foundation stone of the structure of an Islamic State. It is incumbent on a Muslim to deal with others with perfect justice. In Sura-e-Nisa of the Qur'an the Almighty commands: "And when you judge between men do justice." SUPREMACY OF LAW The Islamic concept of Justice envisages complete supremacy of law. No one can encroach upon the rights of another and even the humblest citizen can call into account the highest in the State. Indeed, the Quranic text itself envisages such a possibility. It is ordained in the Quran: "Obey God and obey the Messenger and those who are incharge of affairs among you. Should a dispute arise over something then refer it to God and to the Messenger" (4:58) The last part of this verse shows that in the event of a disagreement between them, matter falls to be decided in accordance with the law of God and the Sunnah of his Messenger. INDEPENDENT JUDICIARY AND RULE OF LAW Obviously, this command can be implemented only by a neutral body namely the judiciary and this body can implement this command with fairness only if it is totally independent having full powers to adjudicate between citizen and the State. An independent judiciary is, therefore, absolutely essential for the administration of justice in an Islamic State. An Islamic State furthermore must be a free society wherein its inhabitants are not subjected to any kind of oppression or tyranny. Here the Government must be a Government of laws wherein its inhabitants are subject to the laws of God and of God alone and of no one else. It is ordained: "The authority and control belong to Allah only. He hath commanded that ye serve none save Him. That is the right religion but most human beings understand not" (XII:40). NO EXPLOITATION When we say that an Islamic Society must be a just Society it also means that it must be free from all exploitation. The ideal of an Islamic Society is indeed that of a balanced community "wherein both the evils of poverty as well as the evils of riches" are done away with. The Holy Qur'an clearly states that all human beings have equal right to the means of sustenance found on earth, and that, consequently, the citizens of an Islamic State have equal right to the means of sustenance found in the State: "He (Allah) it is Who created for you (i.e. for the benefit of all of you), 0 mankind: all that is on the earth" (II: 29) However, the Qur'an calls upon believers to work hard and lays down that no man can have anything except by his labour: "That man can have nothing but what he strives for (through labour)" (LIII: 39) But at the same time holds out the assurance that God will reward man's labour, in full. Hence, it is the duty of an Islamic State to establish such an economic order wherein every citizen is fully rewarded for his labour; in other words to establish a just and equitable order. "And that his (Man's) effort will be seen; when he will be repaid for it with fullest payment" (LIII: 40, 41) An Islamic State, therefore, must arrange the affairs of the community in such a way that every individual, man and woman, shall be guaranteed a minimum of material well-being. This, of course, does not mean that the State should ensure easy and carefree living for its citizens; it only means that in an Islamic State there shall be no soul-grinding poverty side by side with unabashed affluence. It must strive to create a dynamic social order based on principles of justice, co-operation, brotherhood and self-sacrifice in the interest of the welfare of the community. It was for such a State that the Muslims of the Sub-Continent of India yearned and were ultimately able to achieve on 14th August, 1947, under the dynamic leadership of Quaid-i-Azam Muhammad Ali Jinnah. They named it as the Islamic Republic of Pakistan. ISLAMISATION OF LAWS They first important measure adopted by the Constituent Assembly of this new State of Pakistan was the "Objectives Resolution". This Resolution was passed on 12th March, 1949 and herein the founding fathers of this new State pledged to make it a society wherein its Muslim inhabitants would be enabled, individually and collectively, to order their lives in accordance with the teachings of Islam, as set out in the Holy Qur'an and Sunnah. The process of Islamisation of Laws now taking place in Pakistan thus is the fulfilment of this pledge. Since an Islamic State must strive to create a social order free from vices like fornication, theft, robbery, drinking, gambling, adultery, rape, unnatural offences etc. this obligation has been sought to be discharged by amending the existing Penal Code of Pakistan (which has been in force in the Sub-Continent since 1860) in such a way as to deter the commission of these offences. Accordingly, the quantum of punishment has been drastically enhanced and the mode of administering the punishment radically changed. All this has been done by promulgating some new statutes namely the "Prohibition (Enforcement of Hadd) Order, 1979, whereby the existing provisions in the Penal Code pertaining to intoxicants including alcoholic liquor, have been included in this new statute. Herein, the offences are classified in two categories namely offences liable to Hadd for which the standard of proof is very strict and where it is satisfied the punishment is very severe and offences liable to Ta'zir where the standard of proof, as provided for awarding the Hadd punishment is not forthcoming (or the offence, say of being drunk and disorderly is committed by a non-Muslim) and punishment comparatively lighter. So far as offences like theft, robbery etc. are concerned they will now to be dealt with by the "Offences against Property (Enforcement of Hudood) Ordinance, 1979. The main offences covered by this Ordinance are theft (sarqa) and robbery/dacoity (haraabah). Here too Hadd is imposable only if the proof of the offence as laid down in the Fiqah is forthcoming but otherwise the offence of theft will be liable to Ta'zir as already provided in the Pakistan Penal Code. To curb offences like Zina and adultery etc. in a more efficacious manner "The Offence of Zina (Enforcement of Hudood) Ordinance, 1979" has been enacted. It deals with the offences of fornication, adultery, rape, unnatural offence and certain other allied offences and the punishment of Hadd or Ta'zir is imposable on the same principles, as mentioned above. Allied to this Ordinance is the Ordinance entitled "Offence of Qazf (Enforcement of Hadd) Ordinance, 1979; Qazf means false imputation of Zina and this offence has also been made punishable by this Ordinance. This piece of legislation also deals with Tian i.e. the accusation of adultery made by a husband against his wife. This Ordinance in a way complements the "Offence of Zina (Enforcement of Hudood) Ordinance, 1979. COUNCIL OF ISLAMIC IDEOLOGY Earlier to the promulgation of the above Laws the Council of Islamic Ideology was established. This body was charged with the duty of examining the Jaws enacted during the British rule and thereafter to see whether any provision repugnant to the Injunctions of Islam existed therein. Accordingly, a large number of laws in force in Pakistan were examined and the Council made recommendations to amend several such laws which contained provisions repugnant to the Injunctions of Islam. It is on the basis of one such recommendation that the existing Evidence Act of 1872 was repealed in 1984 and replaced by the Qanoon-e-Shahadat (Order `X' of 1984) to make law of evidence entirely consistent with the Injunctions of Islam. FEDERAL SHARIAT COURT Another important step taken towards Islamization of laws in Pakistan has been the establishment of the Federal Shariat Court in 1980. The Court consists of eight Judges, five of whom are or have been Judges of the High Court and three Ulema Judges, well-versed in Islamic Law. This Court was conferred the jurisdiction of examining and deciding if any existing law or provision thereof was repugnant to the injunctions of Islam. In addition, it was empowered to hear appeals or revisions against the decisions rendered by Criminal Courts in relation to any law relating to the enforcement of Hudood. The decision of the Federal Shariat Court is binding on High Courts and on all Courts subordinate to a High Court but its decisions can be questioned before the Supreme Court of Pakistan (wherein a Shariat Appellate Bench consisting of 3 serving Judges of the Supreme Court and 2 Ulema Judges has similarly been constituted). The conferment of such a power of judicial review with a view to Islamising the existing laws has no parallel in judicial history. No such power was conferred on Courts during the Muslim Rule when Islamic Fiqah was the governing law. The essence of Shariah Laws was that they were prepared by Jurists of high calibre having deep knowledge of Shariah and their efforts were confined mainly to setting forth legal alternatives in given situations which were in confirmity with the Holy Qur'an and Sunnah of the Holy Prophet (p.b.u.h.) and when any situation arose in a dispute involving some such question their Fatwa was adopted and the decision of the case based thereon. Their Fatwas were accepted by the Rulers and the governed alike and their declarations of the law were enforced by the Courts without interference by the Rulers. But the present jurisdiction is altogether different. The Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court in Pakistan have been conferred the power to declare any law presently in force as ineffective in case it is found to violate an Injunction of the Qur'an or Sunnah. This power can be exercised both where a matter is brought before the Federal Shariat Court by a party or picked up by it suo motu. This indeed is a most awesome and far-reaching power and is without any parallel in the history of the Islamic world and indeed a very potent instrument for accomplishing the process of Islamisation of Laws within the shortest possible period and indeed this power has been availed of fully both by the Federal Shariat Court and the Shariat Appellate Bench of the Supreme Court for bringing about the Islamisation of existing Laws. In fact, as a result of the decision of these Courts a silent revolution has come about in the legal field. (a) Restrictions imposed by Customary Laws Invalid An important decision in this connection, which has affected a very large section of the population in the Punjab is the declaration that the Customary Law in the Punjab which imposed restrictions on the right of disposal of ancestral agricultural land is un-Islamic. Under the Customary Law of the Punjab the power of land-owners to dispose of ancestral properties was restricted as distinguished from self-acquired properties which they held as full owners and could dispose of without restrictions. The Court declared that Islam does not recognize any such distinction between ancestral and non-ancestral property and the distinction created in this connection by Customary Law was abhorrent to the Injunctions of Islam and could not, therefore, be upheld. (Federation of Pakistan v. Muhammad Ishaque PLD 1983 SC 273). (b) No Retirement without Show-Cause Notice Another important question, which came up before the Shariat Courts, was whether a civil servant who had completed 25 years of service qualifying for pension could be retired, in public interest, without issuance of show-cause notice, as provided for in the Civil Servants Act of 1873? It was held by the majority of the Shariat Appellate Bench of the Supreme Court that the provisions of the Civil Servants Act, 1973, which enabled the Government to retire civil servants after completing 25 years service qualifying for pension without issuance of a show-cause notice was unfair and against the Injunction of Islam as it ran counter to the concept of complete justice in Islam. It was pointed out that in the Qur'an and Sunnah great emphasis has been laid on doing undiluted justice and that Adl. Qist and Ihsan are the essential components of total and complete justice in Islam, according to which not only equal treatment between man and man is required but protection is also afforded against unfair treatment (Pakistan and others v. Public-at-Large PLD 1987 SC 304). (c) Punjab and N.-W.F.P. Pre-emption Acts inconsistent with Islamic Injunctions A large number of provisions of Punjab Pre-emption Act (I of 1913) and the North-West Frontier Province Pre-emption Act (XIV of 1960) have also been found by the Shariat Appellate Bench of the Supreme Court to be against the Injunctions of Islam as these provisions were based on the Customary Rules which were not consistent with the Islamic Injunctions. Thus, in a field where a great deal of litigation is conducted both in the Punjab and N.-W.F.P. Islamic Principles will now be the governing rule (Government of N.-W.F.P. v. Said Kamal Shah PLD 1986 SC 360). (d) Appeal against decisions of Court Martial I now come to a decision which will be of great interest to you all namely the decision in the case of Pakistan through Secretary, Ministry of Defence v. The General Public (PLD 1988 SC 8). The question involved in this case was whether the provisions of section 133 of the Army Act (XXXI of 1952), section 140 of the Pakistan Navy Ordinance (XXXV of 1961) and section 162 of the Pakistan Air Force Act (VI of 1953) which debarred persons sentenced by Court Martials from preferring appeals against its decisions were not contrary to the Injunctions of Islam? The Shariat Courts have held that these provisions are indeed against the Islamic Injunctions and, therefore, not valid. The Supreme Court observed that the bar to filing an appeal against the sentences passed by the Court Martial was not only against the concept of complete justice in Islam but also suffered from an inconsistency. It was noted that the authorities had conferred the right of appeal in Hudood cases and went on to observe that if discipline of the Forces was not affected by conferment of this right in such cases hardly any justification existed in the plea that this would be affected by conferment of right of appeal against conviction for other criminal offences. Accordingly, the provisions of section 133 of the Pakistan Army Act, section 162 of the Pakistan Air Force Act and section 140 of the Pakistan Navy Ordinance denying to an aggrieved person the right of appeal was found to be repugnant to the Injunctions of Islam and it was ordered that the necessary consequential amendments be carried out in these provisions to confer the right of appeal to such persons against the judgments of the Court Martial in cases other than those relating to the offences covered by Hudood Laws. (e) Freedom of the Press Another decision, which has advanced the cause of the liberty of Press and publications is the judgment rendered in the case of Federation of Pakistan and others v. Public-at-Large and others PLD 1988 SC 202. Herein the Shariat Appellate Bench declared the provisions of the West Pakistan Press and Publications Ordinance, 1963, to be against the Injunctions of the Qur'an and Sunnah. In this case, while declaring the restrictive provisions of this Ordinance to be un-Islamic it was observed that Islam favours every practical activity and holds in great esteem persons engaged in every kind of work and views with disfavour all those who burden others with their maintenance, because in an Islamic Polity every man should strive to maintain himself by the product of his own effort and labour. If, therefore, an individual for the purpose of earning his livelihood (Rizq-i-Halal) decides to start the business of printing newspapers or printing of books and in this connection applies to the authorities for permission to run a printing press, no undue and unreasonable interference or impediments should be placed on his desire to do so and the impediments existing in the Ordinance of 1963 in this regard were struck down. (f) Doctrine of caveat emptor an-Islamic The Shariat Appellate Bench has also ruled in Federation of Pakistan v. Public-at-Large (1988 SCMR 2041) that the doctrine of caveat emptor is not valid in Islam because in Islam the seller is under an obligation to himself disclose the defects that exist in his goods or in his property to the buyer even without being questioned specifically in regard thereto by the buyer. (g) Qisas and Diyat I would also like to bring to your attention another decision of far-reaching importance recently handed by the Supreme Court viz. Federation of Pakistan v. Gul Hasan Khan PLD 1989 SC 633. Herein, the existing provisions in the Pakistan Penal Code and Criminal Procedure Code in relation to the offences concerning "hurt" to body and compoundability of such offences contained in the Pakistan Penal Code have been found to be invalid, as they were not in conformity with the Islamic principles of Qisas and Diyat and a direction was issued to replace them with a law containing provisions which conformed to Islamic Injunctions on this point. As a result of this decision an Ordinance has been promulgated popularly called the `Qisas and Diyat Ordinance of 1991' which contains detailed previsions for dealing with cases of hurt to human body, including murder. As a result the Islamic punishments for murder and other offences committed against the human body will now be enforced by way of Qisas and where the aggrieved party is prepared to forgive the offender or to compound the offence by accepting compensation, this will be possible on payment of Diyat. The factual position today, therefore, is that practically all the laws in force in Pakistan have been brought in accord with the Islamic Injunctions. Undoubtedly, it has not yet been possible to abolish the un-Islamic Fiscal Laws, relating to interest, banking, insurance, etc. though Commissions have been set up to suggest ways and means of how this can best be done. However, apart therefrom, no other law in this country remains on the Statute Book which contain provisions which are inconsistent with the Injunctions of Islam. Accordingly, from the formal aspect, an Islamic Polity has been established. What remains is the will of its inhabitant to act with and conform their conduct to the Islamic precepts. This is easier said than done: But I believe that the Muslims of this Sub-Continent, who struggled so valiantly for creating an Islamic State, will also move ahead steadfastly and also succeed in establishing an Islamic Social Order in their Islamic State of Pakistan. ***