Pakistan claims that it is an Islamic republic. As a homeland for the Muslims, the nationality of the majority of its inhabitants is founded on Islam, their common spiritual aspiration, rather than on commonness of race, language and territory. As an Islamic state, ideologically, it is neither national nor territorial nor fully sovereign. But in reality it conforms to the well-established norms of International Law applicable to modern nation-states and is for all purposes a national, territorial and sovereign state.
The distance between ideology and reality is the main cause behind Pakistan’s quest for identity. Islam, as a religion, has no place for priesthood, therefore Islam has never been a theocracy. However Islam has a specific number of religious obligations for its adherents and a code of temporal (civil and criminal) laws which the state is expected to implement for its Muslim citizens. In this background, the crucial question requiring answer by the generation of modern Muslims in Pakistan is: What is an Islamic state? Has it ever been established or is it only an aspiration?
The Quran and Sunnah, the main sources of Islamic law, do not lay down any specific form of political order of an Islamic state. After the Prophetic era, particularly in the course of establishment of the early Caliphate, politico-religious groupings led to a sectarian split within the Muslims. Three out of the four Caliphs were assassinated, and the struggle for power engendered by ancient tribal rivalries pushed the Muslims to the brink of a destructive civil war. As a result the “republican” political order was replaced by an absolutely autocratic hereditary/dynastic monarchy which lasted for the rest of the history of Islam. Most of the works on Islamic constitutional theory were compiled during the existence of such monarchies. Therefore, the jurists who wrote them are unanimous in upholding monarchy as the model of the state in Islam.
The Muslim jurists have always emphasized the superiority of the Islamic state over any other model of state, on the grounds that a state administered under man made laws catered for the happiness of its citizens only in this world. Whereas an “Islamic” state, they claimed, was founded on revealed law, and therefore, its object was to realize the two fold concept of happiness to work for the happiness of Muslims in this world and to prepare them to achieve happiness in the next. The Muslims constructed a vast empire and were the architects of a magnificent civilization. But unfortunately, the progress of Islam as a conquering faith led to the “repaganization” of their political ideals, and the Muslims lost sight of some of the most important democratic and economic potentialities of their faith.
To find out how the political ideals of Muslims were “repaganized”, a critical analysis of the development of Muslim political thought in the light of Islamic history is necessary. The exercise is being conducted in this chapter under four different titles: the Prophetic Model, the Republican Caliphate, subversion of the Political Message, and the opinions of jurists, moralists and philosophers.
THE PROPHETIC MODEL
The Quran is silent about the form of government or political order which an Islamic state should take, but is concerned mainly with the implementation of Islamic law. In the person of the Holy Prophet, as Imam or Head of the new state of Medina, were combined the roles of legislator (mujtahid), statesman, administrator, judge, and military commander. He also led the congregational prayers and was the supreme authority in matters connected with religion and revealed law. His position was exceptional and unique as he operated in different capacities.
By combining the Muhajirin (Emigrants) from Mecca with the Ansar (Helpers) of Medina into a Community of Faith (Ummah/Milla), he laid down the principle of “Muslim nationality” which emphasized a common spiritual aspiration rather than the commonness of race, language and territory. Since the new Community of Faith was expected to lead its individual and collective life according to the Shariah (legal code), it endeavoured to establish a civil society of its own. Within a brief period of time this new community developed into the form of a state in Medina. The founding of a state for the Muslims was also a practical necessity as God commanded in the Quran that the Muslims must render obedience to God and the Holy Prophet, and to those among them who exercise authority (sura 4: verse 59). The state authority could further employ or delegate powers to even non Muslims, who must be obeyed. The mode of life which a Muslim is commanded by the Quran to follow can only be followed if he is a member of a politically and economically free society. In this context, the Muslims are expected to establish a state of their own, wherever it is possible to create a viable state. The same principle can also be deduced from the Sunnah (practice) of the Holy Prophet, who migrated from his ancestral home, Mecca, to found a civil society and state in Medina.
Although the Holy Prophet was the ultimate authority in political and military affairs, and as the Messenger of God was not obliged to consult others, he consulted his Companions in all matters, except for those matters relating to Revelation. The Quran guided him to consult his Companions in all affairs, but that once he had taken a decision, he should put his trust in God (sura 3: verse 159). The command to the Holy Prophet emphasized the significance of “consultation” (shura) in managing the affairs of the state. The Holy Prophet did not need anyone’s advice, however, in his personal capacity, he usually accepted the advice of others and did not impose his own decision. In sura 42: verse 38 it is laid down that the Muslims should conduct their affairs by mutual consultation. The verse describes the nature of the Muslim community, which is expected to conduct all its worldly affairs by mutual consultation. The Holy Prophet said: “Difference of opinion in my community is (the manifestation of Divine) Mercy”; and: “My community would never agree on an error”.
While interpreting the verses pertaining to Shura (consultation), should the designated body be viewed as a consultative body or merely as an advisory body? The Holy Prophet always consulted his “Sahaba”, eminent members of the Muslim community, in matters of state, as his advisors. Subsequently this practice was followed by the four Rightly Guided Caliphs. Consequently the principle is deduced that a person in authority must consult others, but is not bound by the advice received and can overrule it.
The state founded in Medina included the valley of Yathrib which had, besides Muslim, Jewish, Christian, and pagan populations. In order to preserve its independence it was necessary to maintain equality among all the citizens of the state so that they could help one another in defending their common territory. Consequently, the Holy Prophet, in consultation with the other communities, promulgated the Mithaq i Medina (Covenant of Medina), the first written constitution of the world which was based on the Quranic injunction that there is no compelling in the matter of religion (sura 2: verse 256).
This document contains forty seven articles. The first part, consisting of twenty three articles, deals with the mutual relations, including rights and duties of Muslims. These articles united the Meccan Emigrants with the Helpers from Medina in a fraternal bond of Faith. The second part of the document, consisting of twenty four articles, deals with the relations of Muslims with the Jews and other non Muslim inhabitants of the new state confirming to them the freedom of their religion as well as their possessions, and enumerates their duties and rights. This part of the document joined non Muslims together with the Muslim Ummah, implying that since the nation hood of Muslims is founded on a common spiritual aspiration, their unity with non Muslim minorities in the state is based on patriotic and human considerations, and the defence of a common territory. Described as a “single community”, the Muslims and non Muslims are to help one another against common enemies, as stated in the document: “among them there exists sincere friendship, honourable dealing and no treachery”. They are also expected to contribute or bear expenses equally so long as the war continues, and they are to collectively defend the valley of Yathrib which is described as: “sacred for the people of this document”. It is also stated that whenever, among the people of this alliance, there occurs any serious dispute or quarrel: “it is to be referred to God and to Muhammad, the Messenger of God (God bless and preserve him). God is the most scrupulous and truest Fulfiller of what is contained in this document”.
The Holy Prophet had founded a “federal” state as the non Muslim tribes governed themselves in accordance with their own laws just as Muslims came under their Shariah laws; and they were politically and religiously fully autonomous in their own regions. It was only in accordance with the mutually agreed terms of Mithaq i Medina that they were united with the Muslims as one people. As a document, the Mithaq i Medina had no religious significance but was merely a social contract which could be broken if any participating tribe violated its terms. Nevertheless it was an attempt on the part of the Holy Prophet to establish a pluralistic society – a multi-religious, multi-cultural and multi-legal state.
As Head of the state, the Holy Prophet was indeed concerned with the formation and maintenance of unity in the Muslim community, and its governance in accordance with Islamic law. Since the principles of law had already been laid down by God in the Quran, the Holy Prophet, as the chief executive authority, interpreted those laws and implemented them. He established the principle that in legislation, Head of State has to be a Mujtahid (one who interprets law) and not a Muqallid (one who follows others’ interpretations). This principle is derived from the Quranic verse that to those who exert, to them God shows his paths (sura 29: verse 69).
This principle is further supported by a Tradition of the Holy Prophet. At the appointment of Muadh ibn i Jabal as the governor of Yemen, the Holy Prophet asked him how he would decide cases in his court. Muadh replied: “I will judge matters according to the Book of God”. The Holy Prophet then asked him, “But if the Book of God does not contain anything to guide you?” He replied, “Then I will act in accordance with the precedents of the Prophet of God”. “But if the precedents also fail?” “Then I will exert to form my own opinion”.
From this Tradition one inference can be drawn: the worldly affairs (Muamalaat), as against the religious obligations (Ibadaat), are bound to change. Consequently situations will arise where the Quran and the Sunnah would not provide sufficient guidance, then Muslims would be expected to find their own solutions through interpretation of Islamic law, and then implement it to satisfy the requirements of their times. In other words, through Ijtihad a mechanism is provided to make the Shariah dynamic and to enable it to keep up with the community’s needs. Indeed the community is expected to develop the Shariah. Moreover the Judiciary (Qada) is to be separated from the Executive. According to the Quranic injunction in sura 4: verse 59 if a dispute arises between the citizens and the state, the matter is to be referred to the Judiciary for adjudication in accordance with the Quran and precedents of the Holy Prophet. The judgment of the court is binding for the disputing parties.
The Holy Prophet emphasized the importance of Ijtihad for the continuous development of the Quranic rules of law. At that stage Ijtihad was adopted as a procedure, where there existed a difference of opinion or an ambiguity which required a definitive interpretation. In cases where the meanings of the Quranic rule of law were clear, but the contemporary conditions so demanded, the Holy Prophet had approved of holding the Quranic rule in abeyance (Ta‘wiq). This is an exercise of power which may be termed as a “sovereign act” of the Imam (Head of State).
A further example of a “sovereign act” was the drafting of the Treaty of al Hudaybiya, which was made between the Holy Prophet as Head of State of Medina, and Suhayl bin Amr, the representative of the pagans of Mecca. The treaty provided for non aggression of a period of ten years between the Muslims and the Quraysh. The manner in which the treaty was drafted is interesting. According to reputable historical sources, the Holy Prophet asked Ali to write the introductory sentence of the treaty as follows: “In the name of Allah, the Beneficent, the Merciful”. However, Suhayl bin Amr objected to this, asserting that the Quraysh would not approve of the words “the Beneficent, the Merciful”, and that the treaty should commence with the pagan invocation: “In Thy name, O Lord”. Thereupon the Holy Prophet directed Ali to write the words as desired by him. Then the Holy Prophet directed Ali to write: “This is the treaty which Muhammad, the Messenger of God made with Suhayl bin Amr….”. But Suhayl bin Amr interrupted again and asked Ali to withhold his pen. He addressed the Holy Prophet thus: “If we had accepted you as the Messenger of God, there would have been no war between us. Therefore, let only your name and parentage be written”. Under the direction of the Holy Prophet, and despite the protests of Abu Bakr, Umar and Ali, Ali then reluctantly added: “This is the treaty which Muhammad bin Abdullah made with Suhayl bin Amr”.
This style of treaty making reflects the political sagacity, far sightedness and pragmatic approach of the Holy Prophet as a statesman. According to Montgomery Watt, such approach was motivated by the supreme importance of the Holy Prophet’s belief “in the message of the Quran, his belief in the future of Islam as a religious and political system, and his unflinching devotion to the task to which, as he believed, God had called him”.
By temporarily forsaking his designation as the designated Prophet of God, he exercised his “sovereign act” as the Head of State. This discretionary act was in the interest of the state or the community, and was neither repugnant to, nor in conflict with, the sovereignty of God or supremacy of His Law.
The traditional Fiqh (Islamic jurisprudence) acknowledges the Head of State’s power as legislator to hold in abeyance or suspend (Ta‘wiq) a Quranic rule of law, or to restrict (Tahdid) or to expand (Tawsih) its application if the conditions so demanded or the interests of the state or the community so required. In order to avoid the rigour of a Shariah law, particularly in some civil transactions, the jurists also evolved remedies called “devices” (heela). The Head of State’s exercise of “sovereign act” is distinct from Ijtihad, which is also his prerogative.
The state in Islam acknowledges the overall sovereignty of God and supremacy of God’s Law, but as far as its interpretation and implementation are concerned, the Imam’s power as legislator cannot be doubted when his act is sovereign. In addition, he exercises his power of discretion by accepting/advancing a specific interpretation with due regard to the interests of the state and the community in a particular set of circumstances. A wider interpretation of the Quranic doctrine of “necessity” (Izteraar) is also available to the legislator whereunder what is forbidden (haram) becomes lawful (halal). The advancement of the theory during 661 that the Caliphate and Prophethood must not be permitted to remain within the same family established another principle: that spirituality is not relevant to the administration of the state. If the elimination of spirituality had led to the emergence of a “power” state (mulk) in Islam, it was argued by the Sunni jurists that it did not matter for a “Mulk” was as competent an authority to enforce the Shariah as the “Khilafat”.
Finally, the Holy Prophet’s Sermons on Mount Arafat (Khutabat ul Wida) delivered during the Pilgrimage of Farewell (10th Hijrah) must be considered as having established an extremely important constitutional principle which illustrated the human rights from the Islamic viewpoint. For the first time in the history of mankind the Quranic injunctions enumerated some of the human rights which were guaranteed by the Holy Prophet. Thus life and property were made inviolable, drawing of riba (usury) on money loaned was prohibited, vendetta as practiced in pagan days was to be discarded, no Arab was to have any superiority over a non Arab, except that based on piety; Muslims were to consider themselves as brethren, and it was not lawful for a Muslim to take anything from the belongings of his brother, except that which he gave willingly, and the rights of the spouses were protected.
The foundations for the Secretariat of the Imam were laid by the Holy Prophet himself. Scribes were appointed who drew up the state documents, and the Holy Prophet’s seal conferred legitimacy to all official documents.
Some of the important constitutional principles that can be derived from the Sunnah (practice) of the Holy Prophet are that:
(1) The ultimate sovereignty vests in God, and the supremacy of His Law must be acknowledged.
(2) The nationality of the Muslims is founded on a common spiritual aspiration. The commonness of race, language and territory is a secondary consideration.
(3) Since the Muslims are expected to be governed under the Shariah in all spiritual and temporal matters, and can only render obedience to the rulers from those among them, they must aspire to establish a state of their own, wherever it is possible to create a viable state.
(4) The non Muslim citizens of the state (not of conquered territories who were considered as “protected people”) are to be free in their religion and possessions. Their national unity with the Muslims is based on practical considerations as well as on sincere friendship, honourable dealing, and mutual respect.
(5) The Muslims and non Muslims, being a single community, are jointly/collectively expected to defend the territories of the state, and to bear expenses for the same.
(6) To frame and apply a written constitution for the state and to strictly adhere to its terms is a Sunnah (practice) of the Holy Prophet.
(7) The grant of a constitution is not the task of a single individual but a collective act of the representatives of the federating communities, who are voluntary signatories to such social contract. The constitution, not being sacrosanct, has no spiritual or religious significance but is essentially a contract.
(8) Through the peaceful co existence of different religions, races and communities, the ideal of human unity (al Ummah tul Wahida) is to be realized.
(9) The importance of “consultation” (shura) in conducting the worldly affairs of the state must be emphasized.
(10) In interpreting the Shariah and in its implementation, the chief executive of the state is expected to act as a “Mujtahid” rather than a “Muqallid”. The “Ijtihad” by the law maker is a continuing and unending process.
(11) The Executive is to execute and enforce the Shariah as interpreted by the chief executive authority. While making laws the chief executive authority is expected to have a pragmatic approach, to act with political sagacity, and far sightedness in order to protect the interests of the state and its citizens.
(12) Human rights, as enumerated in the Quran and the Sunnah (practice) of the Holy Prophet, have to be guaranteed and enforced in the state.
(13) The taxes imposed through Islamic welfare laws must be meticulously collected by the state officials and allocated to the citizens under the supervision of the state.
(14) The Judiciary (Qada) is to be separated from the Executive so that its independence from the Executive is ensured.
(15) The Muslims are obligated to obey God and the Holy Prophet, and then render obedience to those who command authority from among them so that order is maintained in the state.
Under the Holy Prophet’s leadership the City State of Medina has always been considered a paradigm of Islamic state, which he had founded. This state was unique in the history of Muslims and was never repeated. Philosophically, it was the paradigm of a perfect state where the Ruler was in direct communion with God. The Holy Prophet was Head of State in the tradition of the earlier Semitic prophet kings mentioned in the Quran. But although the foundations of the state had been laid and it was headed by the Prophet Imam, the state itself was developing and was endeavouring to realize the objectives for which it had been created. In other words, the state in Islam is “becoming” and is not a finished product. The community is expected to develop under a legal order, the broad principles of which are laid down in the Quran and Sunnah. This development is to follow a continuous process of “Ijtihad”. As for the political order, after the death of the Holy Prophet, the community was free to adopt any dispensation which suited its requirements.
By: Dr Javid Iqbal