Pakistan's Constitution Conundrum

Published on 21/02/14

Recent talks between the Pakistani government and the Tehreek-e-Taliban Pakistan (TTP) have ignited a discussion regarding the Islamic legitimacy of the country's constitution. The TTP's claim at the start of the talks that the constitution is not Islamic and the government's assertion of the opposite have spawned debate in talk shows and in livings rooms throughout Pakistan this topic has been dissected.

The present discussion is framed within the context of bringing an end to the violence plaguing Pakistan since the United States arrived in the region post-9/11, and the topic is of interest not just to the parties involved in the talks but to those who have a genuine concern for the Islamic nature of the country.

The chief defense of the constitution's Islamic credentials is that it cites Islam as the state religion and has provisioned for the Federal Shariat Court (FSC) to examine whether all laws are in accordance with Islam.

This logic implicitly assumes that the process of developing laws within the democratic framework as afforded by the constitution is nearly identical to that of extracting laws from Islamic texts in the process of jurisprudence, with a little something on top to "Islamicize" the democratic process. Yet the reality of both procedures produces stark contrasts.

In a democratic process, elected lawmakers come together to develop laws as they see fit. There are no constraints as to what they can legislate for, with only a majority of some sort required to pass any particular law. There is no requirement for the legislators to have previous legal experience, nor that they be experts on the subject matter at hand, though technical advice can be sought if required.

In Islam, many matters are clearly defined as being legal or illegal, such as the consumption of alcohol, adultery and interest-based transactions. In areas where definitive rulings do not exist or new realities are encountered, a legal expert is required to extract a ruling from Islamic texts. If the legal expert does not possess technical expertise in understanding a particular subject matter, then he or she is allowed to call upon the help of specialists to apprise them of the reality - for example, a doctor to explain the technical aspects of human-cloning. This process is known as Ijtihad.

In a situation where a numerous legal experts have extracted an array of opinions on the same matter, based upon either a variation of their understanding of the technical reality or use of different principles in accessing non-definitive Islamic texts, it is then up to the ruler of the state to adopt one opinion for it to become the sole reference point in law.

A problem therefore is apparent in the Pakistani law-making process: legislative chambers that are filled with individuals unqualified to extract laws from Islamic sources from a jurisprudential perspective are enacting laws for the country to follow simply according their own limited knowledge and experience rather than turning to divinely revealed guidance.

Further, the powers of the executive are ill-defined between the president and the prime minister, while according to Islam these should be vested in a single ruler and thus enable him to adopt laws extracted according to Islamic texts. This is crucial, as under the current democratic system even if both legislative chambers of the National Assembly and Senate were filled with qualified jurists, the mechanism to enact an extracted legal opinion into law would be missing, leading to confusion and potential conflict.

Additionally, political parties enact laws upon the basis of populism, pragmatism and imitation of the West rather than looking to Islam for solutions. The political context of law-making cannot be ignored, as laws are made by the corrupt to serve their own personal interests, without the restrictions that divine Islamic texts would impose, as well as to serve the economic, military and political agenda of foreign colonial powers.

This political backdrop, combined with conceptual deficiencies within the constitution, has created a secular state in Pakistan that goes against the beliefs of the people and their desire to live by Islam. A cursory look at some key areas of governance reveal how different Pakistan is to what an Islamic state should be.

The Economy

Whether it is banks that serve the individual or businesses with loans, political parties that promise micro-finance schemes for the poor or the government that borrows from home or abroad, interest is a key component of all major financial transactions. Yet the Islamic prohibition of interest is clear:

Those who consume interest cannot stand [on the Day of Resurrection] except as one stands who is being beaten by Satan into insanity. That is because they say, "Trade is [just] like interest." But Allah has permitted trade and has forbidden interest. So whoever has received an admonition from his Lord and desists may have what is past, and his affair rests with Allah. But whoever returns to [dealing in interest or usury] - those are the companions of the Fire; they will abide eternally therein. TMQ 2:275

At the behest of foreign lenders such as the International Monetary Fund and World Bank and as a result indoctrination in capitalist economic theory, governments of all political hues have set upon a program of privatization for decades in areas such as energy, telecoms and other key infrastructure. In a hadith narrated by Imam Ahmed and Ibn Maja, Muhammad (saw) states, "The Muslims are partners in three, water, pastures and fire."

While private ownership is permitted in Islam public resources such as mines, energy utilities and infrastructure are to be owned by the state to enable the people to benefit, rather than the private sector to profiteer. The result of pursuing this policy under various governments has led not only to rising prices in all areas of the energy sector but shortages due to the greedy pursuit of higher profits.

Foreign Policy

Pakistan's alliance with the United States post 9/11 is an example of policy making devoid of Islamic guidance. Pakistan has not only harmed itself economically and militarily as a result, but it has facilitated the killing of tens of thousands of Muslims civilians on both sides of the Af-Pak border. Muhammad (saw) said as narrated in Sahih Bukhari:

A Muslim is a brother of another Muslim, so he should not oppress him, nor should he hand him over to an oppressor. Whoever fulfilled the needs of his brother, Allah will fulfill his needs; whoever brought his (Muslim) brother out of a discomfort, Allah will bring him out of the discomforts of the Day of Resurrection, and whoever screened a Muslim, Allah will screen him on the Day of Resurrection.

The provision of bases and supply lines to America, the tacit approval of drone strikes and the conduction of campaigns by the Pakistan military all stand as contradictions to this guidance.

The Legal System

The legal system is based upon British common law. Regardless of some incorporation of Hudood, it is inconceivable that justice as an Islamic concept could be established within Pakistan when the judiciary judge according to other than that what Allah has revealed:

And judge, [O Muhammad], between them by what Allah has revealed and do not follow their inclinations and beware of them, lest they tempt you away from some of what Allah has revealed to you. And if they turn away - then know that Allah only intends to afflict them with some of their [own] sins. And indeed, many among the people are defiantly disobedient. TMQ 5:49

Pakistan is being ruled on a non-Islamic basis, backed by an Islamically deficient constitution. The laws and policies that are created as a result of this situation benefit the corrupt elite and foreign powers immensely, as it leaves the people and resources of the country open to exploitation and abuse.

The fact that stakeholders in the existing system benefit from such a set-up and are attracted to it due to the potential to profiteer means that change cannot be expected to occur from within, no matter how long the masses wait.

This situation has arisen over a period of decades under the rule of various parties and military dictators. It stands as the greatest negation of the argument of gradually implementing change by working within the existing system; almost 70 years after its creation Pakistan not only remains un-Islamic as a state but is hurtling further in the direction of liberalism and decay. Surely the requirement of the times is to bring comprehensive and swift change to the political set up?

The Islamic nature of Pakistan is not the preserve of any one group or organization, nor is it restricted to certain political issues. It is related to the belief of people from all walks of life. It is therefore incumbent upon all to engage in the discussion of how meaningful change can be enacted to enable Pakistan to be a true Islamic State.

Muhammad Asim

Twitter: @AsimWriter

Published on 21st February 2014 on Asia Times Online as
Pakistan's constitution conundrum

The toppling of Morsi is a blow for Secularism

“Any customer can have a car painted any color that he wants so long as it is black" – Henry Ford

The ouster of Mohamed Morsi as President of Egypt in a coup d’état by the military will reverberate not only across the political landscape of the ancient land but that of the entire Muslim world. Morsi, whilst viewed globally as a barely acceptable face of political Islam, represented but a segment of a wider movement in the Muslim world calling for the implementation of Shariah law by the State.

Numerous polls have shown overwhelming support amongst the global Muslim populace for making Shariah the official law of the land. The latest of such research is that of the Washington based Pew Research organisation entitled ‘The World’s Muslims; Religion, Politics and Society’ which was released on April 30, 2013. The poll found that in 25 of the countries surveyed the majority of Muslims supported Shariah being the law of the land. Notable findings were Iraq (91%), Malaysia (86%), Niger (86%), Pakistan (84%), Morocco (83%), Bangladesh (82%), Egypt (74%), Jordan (71%) and Nigeria (71%). What is intriguing about these findings is not just the level of such support but the amount of diversity amongst the respondents gives pause for thought; whether one finds themselves in Africa, the Middle East, South or South East Asia, they would find a consistent political ambition amongst the people.

So why has Morsi been rejected in Egypt? To the uninitiated a bearded man from a party, whose name drips with Islamic symbolism born in the nationalistic aftermath that followed the collapse of the Ottoman Caliphate, which for many years adopted the slogan ‘Islam is the solution’ would be the realisation of anyone who desires Shariah law.

On a superficial level the Morsi government failed to address the economic malaise faced by Egypt leading to mass discontent. Yet there is also a deeper answer hiding in plain sight; the Muslim Brotherhood had not only forsaken Islamic politics decades ago but became the champion of democratisation, predicated on secular thought, across the Muslim world. Its actions subsequent to the demise of Hosni Mubarak epitomise its wandering political compass, which have compounded Egypt’s woes.

Early on in the revolution it was quick to distance itself from championing the mass movement, which many interpreted as a sign that it was projecting a moderated stance to the global media lest Western states decided to intervene against it. This was designed as much for the consumption of world as it was for the military, the real power behind the Egyptian throne.

Appropriate noises were made about wanting a civil state rather than an Islamic one which led the Brotherhood being allowed to contest the elections as the Freedom and Justice Party. Many supporters ignored this call due to a mixture of viewing it as political subterfuge and holding the idea that an Islamic state could be achieved from within a secular democratic setup by gradual implementation of Islamic principles. Once in power, rather than using this success at the ballot box as a mandate for political change, the Brotherhood ended up continuing many of the key policies and ideological direction of the Mubarak era.

Economically it was unable to address the issue of resource distribution, with the military and Mubarak era governments controlling up to 40% of the economy. As these elites moved wealth out of the country, the Egyptian Pound plummeted leading to a widening trade deficit as Egypt attempted to service its energy and food imports using a weakened currency. Out of ideas, Morsi turned to the IMF for interest based loans. All of these policies were born of the crucible of economic liberalism, with no Islamic economic policies such as the introduction of a bi-metallic backed currency, the abolition of natural resource monopolies or the shifting of the tax burden from income and consumption to capital and produce in sight.

In terms of foreign policy the army ensured that Egypt continued to support the goals of its benefactor, America, rather than reflect public sentiment in Egypt. This lead to the reaffirmation of the Camp David accords, blocking the tunnels to Gaza and mostly silence on the issue of the Syrian revolution. This ran counter to the expected dropping of national borders to unify with other Muslim countries to create a wider Islamic union and the removal of Western supported dictators in the Arab world by supplying political/military support to other revolutions in the region.

Despite unending compromise on practically every major issue to placate Western states abroad and secularists at home, the Brotherhood was still ejected from power. This will leave many supporters of not just the Brotherhood directly but the politics of gradualism and participation in a democratic process with much to think about. If democracy cannot tolerate the will of the people if it happens to be Islamic, then is it truly just a mechanism for representing popular opinion or is it a system unable to function without the values of secular liberalism being implemented? Is it really the political equivalent of Henry Ford’s choice of colour?

The ramifications of the answer to this question would be important not just to the fate of Egyptian politics but to that of the entire Muslim world. The Muslim Brotherhood has inspired many movements in the Muslim world which have espoused political participation in democracy rather than an attempt at radical change to establish an Islamic State. If the Brotherhood can be tossed aside, despite decades of work and masses of support on its home turf, how can such a system hold any hope for meaningful change?

Lessons learned from Egypt would suggest that any real change requires the backing of the armed forces rather than a conflict with them or a simple change of face on the political front. Further, it would seem that regardless of how much political Islam compromises it would never be perceived as sufficient by secular segments of society, so why try at all?

The coming months and years could see the biggest drop in adoption democracy amongst the proponents of Shariah law across the Muslim world. Ironically, this would have been precipitated by a coup backed by secularists and implicitly by Western powers to rid one country of any influence of political Islam.

Muhammad Asim

Twitter: @AsimWriter

Published on 8th July 2013 in The Nation (Pakistan) as Morsi’s toppling: a blow for secularism

Who will be the Caliph?

The question is asked often when mentioning the establishment of the Caliphate. Sometimes it is asked out of genuine interest, in others it is asked more in terms of cynical criticism. The fact that those who push for secular democracy would be embarrassed to offer an answer of Zardari, Nawaz, Gilani and so on if asked who would be your secular leader is an irony lost on many of these kinds of questioners.

If one thinks about the question, the incorrect to expect and give is the name of an individual. The reality is the question is incorrect as the matter really being enquired about is how political unity will be achieved between various factions made up of differing races, provinces, Islamic schools of thought and so on. The incorrect question is asked as a result of living under a secular political system which places huge emphasis on the individual personality of a leader rather than the policies by which he would rule by.

Pakistani politics is characterised by cults of personality. Come election time, there are no policies to distinguish any candidate or party from the next. Indeed it is a rare event that anyone comes up with a coherent policy on any one issue, let alone a manifesto worthy of the name. People are left to choose based upon criteria such whether candidate in question offers any personal benefit to them. Whilst this ranges from bags of flour and other foodstuffs for the poor to huge kickbacks and corruption deals for the rich, the principle is the same across society.

Each leader builds their cult on the politics of division rather than unity. There is the Sindhi party, the Karachi/Muhajar party, the Punjab party, the Pathan party and so on. As soon as one leader dies the people are tuned to look towards the next cult to follow. Who is whose son/brother/nephew/uncle is more important than meritocracy. This same thinking is applied when mentioning the Caliphate as an alternative to current failing secular democratic system

What needs to be understood is that those calling for the Caliphate are not working to put one individual in power under a new title. If the objective were this shallow then instead of trying to establish a alternative political system those working for the Caliphate would simply set up a political party to take part in the existing political system. Yet this is not the case; it doesn’t matter who comes to power in the existing system as he will be able to do nothing for Pakistan.

The current system thrives on corruption and rewards it in a systematic manner. The NRO, which so brazenly and unashamedly allowed criminals to run for high office, and powers like Presidential pardons are examples of this. This is a fault of the system and not an individual as these laws are processed and implemented by the system in what is deemed a perfectly acceptable and legal manner. In the name of political expediency rule of law can, crucially, be legally suspended.

The process of getting to power is one where only the corrupt and the mega rich can take part in. The process of staying in power is a story of subservience to America and the West and pushing out the feeding trough to all those that help keep you in power domestically.

The Caliphate does away with this on a systematic level. Contrary to the claims of those who oppose the Caliphate, the Caliph need to not be an angelic figure in order to rule. The Caliph is kept on the straight path by a system of checks balances, comprising of defined limited executive powers and an active judiciary that monitors his actions.

The Caliph is unable to pardon those convicted of crimes, as he is not above the law, nor does he have the ability to legislates laws that suit his desires or political needs. The Majlis al Shura also only serves as a consultative body for the Caliph, representing the people, and it too does not have the power to issue pardons or enact laws.

The Caliph also does not have immunity from prosecution like current rulers do whilst in office, which may be rather unappealing for the likes of Rehman Malik and Zardari for obvious reasons. This in itself should also highlight the issue that the Caliphate is not to be a utopian state populated by angels who would do no wrong. Rather the strength of the State would lie in being able to keep such individuals from doing damage to the State and holding them to account, rather than rewarding and protecting them like the existing secular system of Pakistan does.

Another issues related to the question of who will be Caliph is the attempt to show that no matter who is picked, he will belong to one school of thought. This would mean people from other schools of thought will never obey a Caliph who is not from their own, leading to divisions and conflict.

Differences in understanding of legal texts and evidences are a natural and expected occurrence. It is not something that should be feared or thought of as a weakness. It is unthinkable that in any free thinking society and political system there the entire population would view every single matter in the same way. It is human to differ and a healthy political environment can only exist if people are free to express their differences in their understanding of Islam. What can lead to problems if there is no meaningful outlet for these differences and further no mechanism for society and State to adopt an opinion amongst many in order to move forward on an issue. In the secular system of Pakistan, there is no such management system which leads to frustration.

In the Caliphate, the Caliph is the sole authority that has right to adopt laws and from Shariah all others are obliged to obey. This is the practical mechanism by which all political differences are solved. This is something that no matter what laws a secular system establishes or who comes in to power, can replicate. It is irrational to expect people from various schools of thought to have to obey the edicts of a secular leader, whose leadership is based upon ignoring God’s laws and ruling by other than Islam, whilst Islamically it the right of the Caliph in his capacity as Imam of the society and State to settle disputes and differences. This is a tried and tested system which dealt with differences for centuries, settling disputes amongst heavy weight figure as Abu Bakar as Sadiq and Umar Ibn al Khatab.

An ancillary issue related to this point are instances of clerics engaging in violence against one another on the basis of their supposed differences. These clashes are in fact political differences being masked under the pretext of religious variance. This is actually a reflection of those who happen to posses beards engaging in the same kind of secular politics of division and violence as their non-bearded counterparts; the only difference is that the domain of these individuals are local mosques and villages instead of the Parliament and the Senate. This situation exists due to the absence of the rule of law in country which has been the result of implementing secularism and the resulting lack of legitimacy such as system brings.

The Caliphate relies upon the strength of various checks and balances of the system and operates within the confines of the Shariah. This enshrines rule of law and justice in society, something which secularism in Pakistan has failed to do. Whilst those who work for the re-establishment of the Caliphate would naturally be expected to have a leader in mind, who it is is of less importance for the public than the issue of what he would rule by.

It may be that this individual dies or for some other reason is no longer able to become Caliph. Should this mean that the effort to re-establish the Caliphate should cease? Clearly not, as the work to re-establish the Caliphate is a work to re-establish a system, not to bring an individual to power.

This is something that many find quite hard to fathom after decades of being subjected to a secular system which, whether in the guise of a dictatorship or democracy, has spectacularly failed to bring any semblance of the rule of law or justice to the country. This has produced mentality where a miraculous ‘chosen one’ is awaited so that he may come to lead Pakistan out of the spiralling abyss of corruption and backwardness that it finds itself in

When the correct system is in place, the country will become stable and this will result in prosperity and progress. Clearly only the Caliphate by implementing the Shariah can produce these results. The discussion should therefore focus on the solutions the Shariah and the Caliphate can provide to solve Pakistan’s raft of problems concerning areas of foreign policy, economy, judiciary, energy and so on which the secular system has not only be unable to solve but has created and exacerbated.

Muhammad Asim.

Twitter: @AsimWriter

The author is a freelance columnist.