Af / Pak Headline — 05 March 2014
Pakistan 1973 Constitution is not Islamic

Kasim Javed

In light of the discernible defeat of the US in Afghanistan, the US has changed the style it is using to achieve its regional objectives in Central Asia from military occupation to diplomacy with its enemy. Earlier this week the federal government of Pakistan obtained a Fatwa declaring the constitution of Pakistan to be completely in accordance with Islam in order to pre-empt demands by the Taliban for the enforcement of Shariah[1]. “Our Constitution is a complete document. The presence of 22 clauses proposed by the then leading religious scholars in the 1973 Constitution make it a perfect Islamic document,” observed Rafi Usmani, President of Jamia Darul Uloom Karachi.

Albeit the declaration of an independent, secular nation by the founding father of Pakistan, the Muslims of Pakistan have yet to extricate the incompatibility of Secularism and Islam. Like in many parts of the Muslim World from Saudi Arabia to Indonesia, this has led to the need for sugar coating the constitution of Pakistan with Islamic notions so that the people are left deceived to think that constitution infact is an Islamic constitution. The constitution is then rhetorically approved by government favoured modernist scholars such as Tahir Ul-Qadri, who issue edicts to reassure the Muslims that the institutions by which they live are infact from Islam and the rules by which they live are indeed Islamic laws. However, amidst a rhetorical response to these claims, it is necessary to measure the constitution by Islam and evaluate the application of this constitution in reality.

The Oxford Dictionary defines a constitution as “a body of fundamental principles or established precedents according to which a state or other organization is acknowledged to be governed”[2]. An idiomatic sentence in a preamble alone doesn’t deem a constitution Islamic, rather all of the articles of the constitution must be characterised by the fact they are exclusively and purely Islamic opinions and thoughts. Just how the American constitution or the Magna Carta would be repealed if there was one article that juxtaposed sovereignty with a monarchy when all the constitution is infact based on a fundamental principle that sovereignty belongs to the people, an Islamic constitution would also be invalidated if an article contradicted the fundamental principle of Islam.

The fundamental principle of an Islamic constitution is that the Islamic Creed (Aqeedah) constitutes the foundations of the State. Nothing is permitted to exist in the government’s structure, accountability, or any other aspect connected with the government, that does not take the creed as its source. The creed is also the source for the State’s constitution and Shar’ai canons. Nothing connected to the constitution or canons, is permitted to exist unless it emanates from the Islamic Aqeedah. In order for an article to be Islamic therefore requires textual evidence from the legislative sources that are the Qur’an, Sunnah, Ijma as Sahaba and Qiyas. Moreover, the textual evidence must be conclusive in meaning (cannot be misinterpreted) and irrefutable in the reportage of the evidence, this is recognized as Qati Daleel. The authenticity of an Islamic constitution therefore must consistently be based on the fact that in every sense all of the articles are based upon nothing but the foundations and text of Islam according to Islamic Jurisprudence[3].

The constitution of Pakistan is erected on the foundations of British Secular Laws. The oppressive British rule was applied over India in the time of British Occupation and it was infact the British Parliament which had prepared the draft constitution for Pakistan under its independence Act in 1947. Pakistan did not prepare its first constitution until 1956, which was then modified to transfer the executive powers to a parliamentary structure.

The 1973 constitution was officiated by Zulfikar Ali Bhutto which reduced the President to a figurehead position with all central executive powers resting with an elected parliament. In an elected parliament laws are passed by a two-thirds majority in the assembly. This immediately deems the constitution invalid according to Islam since the laws of Islam are not ratified by a majority vote in an assembly, rather they are bound by the legislative sources of Islam and are not passed based on a number of votes from a group of people. The 1973 constitution is principally a secular constitution. The Laws do not require a Daleel and are ratified based on a majority vote in parliament not based on the legislative requirements of Islam. This is stated in the preamble of the constitution “Wherein the State shall exercise its powers and authority through the chosen representatives of the people”[4]

 

To further present the constitution as Islamic, some sections were introduced into the constitution which pay lip service to Islam such as the Objectives Resolution (Qararadad e Maqasid) in order to assert the constituent Islamic. This Article begins with “Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust” [5] However, the inclusion of this resolution has not changed the secular structure of the constitution, rather the same resolution surrenders sovereignty to the people and grants the legislative assembly of public representatives with the right to make laws without a daleel from Islam, “Wherein the State shall exercise its powers and authority through the chosen representatives of the people”. This resolution has effectively snatched the sovereignty from Allah SWT and practically granted it to the parliament.

There are a number of other contradictions in the constitution, for example the Objectives Resolution states “Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah” This clause implies that the although an individual Muslim can live by the rules of Islam if he chooses to, he is not obliged to follow the rules of Islam if he chooses not to. Non-Islamic channels can therefore exist as well as Islamic channels, so it is permissible for the presence of Non-Islamic Banks, Non-Islamic Schools, Non-Islamic Trade to exist. This contradicts the constitution of Islam which requires all Muslims to conduct their societal transactions and social affairs via Islamic based institutions exclusively.  A Dhimmi (Non-Muslim Citizen) has the right to settle his personal affairs such as marriage, inheritance e.t.c through Non-Islamic courts, however, Muslims are obliged to settle their affairs and conduct transactions in society according to Islamic based institutions alone.

The 1973 constitution in the 7th article of the Objectives Resolution provides autonomy to all state units, after determining geographical boundaries in Pakistan and unites them under a federation. This contradicts Islam since regional autonomy is prohibited. An Islamic constitution doesn’t allow union states to run autonomously, rather all state units are subject to central authority where Punjab is considered the same as Balochistan or the East of Pakistan (Bangladesh). The finance of all the regions will be the same, regardless of their Wilayah, but not in accordance with their revenues. If for instance, the revenues of a single wilayah were double its needs, the funds spent will be in accordance with the needs of the wilayah but not in accordance with its revenues. If another wilayah’s revenues fell short of its needs, this would not be taken into consideration, and funds will be spent to satisfy the wilayah’s needs from the general budget whether it raised enough revenues or not[6]. The 1973 constitution us a federal constitution and thus not an Islamic constitution.

A common misconception is that Islam precludes scientific inventions and technology and is considered unable to be implemented in the 21st century. Science and technology however are not associated to an ideology as they are universal thoughts that do not emanate from an ideology. The uses of science and technology are therefore allowed in Islam providing they are justified through a legal process called Ijtihaad in accordance to Islamic Jurisprudence. This claim therefore that the 1973 constitution is Islamic and there are areas which Islam does not provide rules for and therefore the parliament can derive laws is invalid. Any laws derived must be ratified via a daleel from the legislative sources of Islam regardless of the subject.

The results of the 1973 Constitution of Pakistan

  • Today Pakistan using its 1973 constitution and the use of parliaments who rule by their whims and desires has led to a preposterous debt which it owes to the IMF and takes the Western Capitalist model to run its affairs such as the privatisation of properties in Islam which are considered public like oil and gas.
  • The 1973 constitution has allowed for the ruling structure to be based on the British Judicial System which allows a Hindu to be a Chief Justice of an Islamic State even though this is prohibited in Islam.
  • The 1973 constitution has allowed for a penal code to be based on other than the hudood of Allah SWT where crime is taken lightly and the perpetrators of murder, rape, crime are excused with a slap on the wrist or through bribery.
  • 1973 constitution allows for a social system to allow for the marriage between two women and two men and the free-mixing of men and women fuelling social problems that emulate in the West such as fornication and adultery.
  • The 1973 constitution has allowed for a parliament to support an America backed war and given permission for it to use its intelligence, security and military to do its dirty work. The cases of Dr Aafia Sadique and Raymond Davis have shown that Pakistan has in reality granted the sovereignty not to even its people but have effectively submitted it to a foreign power.

As mentioned earlier an Islamic constitution is built upon a fundamental principle which take all legislation and systems of life from its creed and rejects all other creeds, systems and legislation.  Allah SWT says in the Qur’an “And whoever seeks a religion other than Islam, it will never be accepted of him [Surah Imran 3: 85]. Therefore granting permission to a parliament for deriving laws contradicts the fundamental principle of Islam where legislation cannot be taken from any source other than the Qur’an and Sunnah.

The 1973 constitution is not an Islamic constitution as it contradicts the requirements of Islam.

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