Created as a Muslim-majority state in August 1947, Pakistan has struggled with the legal institutionalization of its religious identity. How should Pakistan, as a Muslim homeland, institutionalize the various strains of interpretation that shape Islamic law? And, in the democratic state Pakistan aspires to be, what is the role of an elected parliament in defining the substance of that law?
In many states wrestling with similar issues, such questions yielded intense debates about the precise wording of constitutional clauses defining the state’s religious identity or the degree to which Islamic law would serve as ‘a’ or ‘the’ source of law. But in Pakistan some of the most intense debates focused on the question of institutional primacy with respect to interpreting the requirements of Islamic law. Who defines Islamic law, and the institutional balance between the interpretive authority of the parliament, the executive, and the courts, was a key locus of debate. These debates are the focus of this chapter. In the following sections, I trace these debates through the three constitutional drafting and amendment processes (1956, 1962-3, 1973) that have characterized Pakistan’s constitutional history and discuss (a) the ways in which the pre-eminence of parliament in the delineation of Islamic law took shape and (b) how this pre-eminence was contested.
With reference to the classical period of Islamic law, it is common to stress a distinction between non-state muftis and state-based qazis.1 The former, associated with madrasa-based scholars (ulema), interpret Islamic law and issue opinions (fatwas) set apart from any specific powers of coercive enforcement. Qazis drew on the opinions of prominent muftis to produce judgments enforced by the state. During the classical period of Islamic law there was no state-based ‘legal monopoly’; the jurisprudence of prominent muftis was associated with different ‘schools’ of Sunni legal thought (Hanafi, Maliki, Hanbali, and Shafiʿi), each treated as a legitimate expression of Islamic law even as they competed with one another for adherents. Neither jurisprudence nor state policy, however, was seen as producing ‘new’ law; instead, muftis were thought to ‘interpret’ divinely inspired norms that were, in some sense, already believed to exist.
In South Asia (and, later, in the Ottoman Middle East), the encroachment of European power did not eliminate mufti-based forms of jurisprudence or fiqh. On the contrary, European officials simply combined the work of local muftis with imperial policy in ways that gradually sought to promote the legal autonomy of the state.2 Working with ‘advisory’ scholars after securing control over the Mughal courts in Bengal, for instance, British agents pressed for a more thoroughly centralized pattern of legal oversight: translating digests of fiqh to engage Islamic law more directly; combining various articulations of fiqh with European notions of ‘justice, equity, and good conscience’; promulgating statutes that superseded certain elements of fiqh; and so on. The history of Muslim law is filled with patterns of legal centralization in which private muftis and advisory qazis were superseded by state power. And, as I will explain, the history of constitutionalism in Pakistan is similar; here again the state has asserted its power to define the parameters of Islamic law.
Following in the footsteps of intellectuals like Amir Ali and Mohammad Iqbal, some argue that Islamic law is actually a work-in-progress fashioned by ‘a Muslim people’ through the deliberations of their political representatives—including their elected representatives in the context of an Islamic ‘republic’.3 Others oppose this effort to embrace what they see as the arrogance of legislative power.4 They stress the work of judicial qazis and executive caliphs vis-a-vis the direct enforcement of Qur’anic and Prophetic norms. The debate is familiar: Where do the terms of Islamic-law-in-practice actually come from? And, more specifically, are state-based Muslim legislators in a position to define that law in the context of an Islamic republic?
In Pakistan, constitutional debates have generally revolved around such questions.5 Muftis continue to issue private fatwas (subject to voluntary compliance). But, with respect to ‘enforceable’ laws, the most contentious debates typically revolve around ongoing efforts to combine prevailing forms of state centralization with parallel efforts to shore up the primacy of parliament. Religious traditionalists have sought to push back against the rise of parliament, insisting that Islamic law cannot be ‘made’ by ordinary Muslims. Military generals and superior court judges have also criticized parliamentary power, hoping to undercut the influence of Pakistan’s electorate. But, in the end, each of these efforts to restrict the power of parliament has faltered.
Questions regarding the role of parliament vis-à-vis the specification of what might be called ‘statutory shari‘a’ dominate contemporary debates regarding Islam and democracy in Pakistan. The pre-eminence of parliament was not a foregone conclusion when Pakistan was formed in 1947; it emerged over several years (including numerous periods of martial law during which the Constitution itself was held in abeyance). In fact the consolidation of parliamentary power vis-à-vis the delineation of Islamic law is still uncertain. But, as I will explain, the specification of a constitutional formula in which an enforceable Islamic law was entrusted to the work of an elected Muslim legislature must be seen as a defining feature of Pakistan’s constitutional history.
The Cast of Characters An appreciation for the constitutional status of Pakistan’s parliament vis-à-vis the delineation of Islamic law requires some familiarity with three broad sets of actors—each defined by its ideas about the treatment of Islamic law within the modern state.6
The first pertains to ‘traditionalist’ muftis affiliated with various schools of Islamic jurisprudence (see Figure 1: Group 1). This group is composed of madrasa-based ulema bound together by a firm commitment to the official autonomy of their fatwas. The irony, of course, lies in the fact that this commitment (favoring autonomy from the ‘corrupting’ influence of the state) is frequently tied to the work of political parties like the Jamiat-i Ulema-i Islam or JUI (Party of Islamic Ulema) and the Jamiat-i Ulema-i Pakistan or JUP (Party of Pakistani Ulema)—parties that criticize the reach of the state they seek to control.
The remaining two groups are less suspicious of the state. In fact, viewing the ulema as riven by endemic doctrinal rivalries, the remaining groups stress the ‘unifying’ work of the state while, at the same time, disagreeing about the reachof that state with respect to its legislative power (See Figure 1: Groups 2 and 3).
Group 2 combines an appreciation for the unifying work of the state with an appreciation for the ‘dynamism’ of shari‘a (emphasizing the value of ‘advisory’ qazis working alongside a state with unfettered legislative power). In Pakistan, this group includes progressive religious ideologues like Mohammad Iqbal, who combined an appreciation for the dynamic quality of Islam with an appreciation for the evolving work of an elected legislature, working alongside nationalist politicians like Mohammad Ali Jinnah. It also includes lay religious actors like Ghulam Ahmad Parwez and modernist religious philosophers like Fazlur Rahman working alongside dictators like General Mohammad Ayub Khan. Together, these figures formed a pragmatic religious-cum-political coalition bound together by their view that the historical evolution of Islamic law could be channeled through the creative potential of the state.7 Whereas nationalist figures like Jinnah and Iqbal focused on the dynamic legislative power of an unfettered parliament, however, Parwez, Rahman, and Ayub Khan stressed the unfettered power of the executive.
Figure 1. Who Defines Islamic Law in an Islamic Republic? Three Views
The third and final group is less convinced that Islamic law lends itself to a dynamic process of ‘legislation’. In fact Group 3 views the power of the state through lenses crafted by the famous Islamist ideologue Maulana Abu’l ala Maududi, stressing the unifying power of a shari‘a-focused state with severely circumscribed forms of legislative autonomy. Here, Islamic law is not generalized as mere ‘principles’ guiding an otherwise unfettered group of law-makers (Group 2). Nor is it buried beneath scholarly debates to the point of doctrinal suffocation (Group 1). On the contrary, Group 3 insists that, far from ‘defining’ shari‘a, the state merely ‘enforces’ it as a set of historically inflexible provisions. Legislation is, thus, broadly seen as anathema even as state-based legal enforcement is seen as completely indispensible.8
Since the formation of Pakistan in 1947 the traditionalists and the Islamists associated with Groups 1 and 3 have teamed up to oppose the ‘unfettered’ legislative power articulated by the nationalists in Group 2. Some of the most energetic battles, however, have unfolded within Group 2. Scholars like Charles Kennedy and Martin Lau, for instance, have noted that, in the ongoing tussle between Pakistan’s executive (including the army) and its parliament, appeals to the judiciary became so common that, ultimately, it was neither the executive nor parliament but the judiciary that actually ran the show (particularly with respect to the legal underpinnings of Pakistan’s ‘Islamic’ state). Linking specific institutional debates to Pakistan’s ideological underpinnings, however, I disagree with Kennedy and Lau. I maintain that, legally speaking, it was not the judiciary but Pakistan’s parliament (with its traditionalist, nationalist, and Islamist political parties) that emerged as ‘constitutionally’ supreme.9
What follows is an effort to recount this evolving pattern of supremacy in three parts. The first part begins with the independence of Pakistan (1947) and ends with the promulgation of Pakistan’s first constitution in 1956; the second part ends with the promulgation of Pakistan’s second constitution in 1962; the third ends with the Constitution of 1973. Typically, 1973 is regarded as the pinnacle of Pakistan’s twentieth-century constitutional history. However, with respect to Islamic law and the parameters of Pakistan’s Islamic state, I argue that the Constitution of 1962 (as amended in 1963) is more important.Before 1963 Pakistani traditionalists, nationalists, and Islamists battled to determine who would define the terms of Islamic law; after 1963 this debate was refined in ways that broadly favored an unfettered state dominated by Pakistani nationalists. Subsequent refinements were fiercely debated; but, after 1963, the institutional configuration of Pakistan’s approach to Islamic law was relatively stable. (The irony lay in the fact that this institutional configuration stressed the power of parliament even as the Constitution of 1962 was, itself, promulgated by a military dictator.) An understanding of this stability requires a fairly detailed historical under-standing of various ‘constitutional’ and ‘intervening’ legal-cum-political debates.
‘Constitutionalizing’ Islamic Law (1947-1962) Constitutional Debates (1947-52)
After the independence of Pakistan in 1947, the members of Pakistan’s Constituent Assembly—more than 70 percent of whom belonged to the ‘nationalist’ Pakistan Muslim League led by Governor-General Mohammad Ali Jinnah—were indirectly elected. They were indirectly elected, following the (colonial) election of 1946, by Provincial Assemblies in East Bengal and, more than 1000 miles away, in West Punjab, Balochistan, Sindh, and Pakistan’s Northwest Frontier Province.10
Building on the work of a group known as the Pakistan Educational Conference, chaired by Fazlur Rahman of East Bengal (which, in late 1947, endorsed an ‘Ideology of Pakistan’ devoted to the inculcation of Islamic values in a push to counter fears of encroaching ‘provincialism’), the Constituent Assembly began its work with a landmark resolution known as the Objectives Resolution in March 1949.11 This Resolution set Pakistani constitutionalism (and nationalism) apart from the secular language adopted by India while, at the same time, seeking to stress the cohesive potential of Islam:
Whereas sovereignty over the entire universe belongs to God almighty alone, and [whereas] 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, … this Constituent Assembly, representing the people of Pakistan, resolves to frame a Constitution for the sovereign independent state of Pakistan; wherein the state shall exercise its power and authority through the chosen representatives of the people; … [and wherein] Muslims shall be enabled to order their lives … in accordance with the teachings and requirements of Islam as set out in the Qur’an and the sunnah … etc.
Approved under Prime Minister Liaquat Ali Khan, who migrated to Pakistan from East Punjab after the Partition of India, as well as Jinnah’s successor, Governor-General Khwaja Nazimuddin (East Bengal), this resolution sought to balance the sovereignty of ‘God’ (in keeping with the rhetorical position adopted by many Islamists) with the sovereignty of the postcolonial ‘state’ (in keeping with the terms of nationalism). At the same time, however, it went out of its way to avoid any reference to classical Sunni jurisprudence or fiqh—clearly marginalizing the traditionalist ulema. The views of Groups 2 and 3, in other words, were recognized at the expense of those in Group 1.12
The Constituent Assembly went on to establish a twenty-five member Basic Principles Committee (BPC) dominated by members of the Muslim League, various sub-committees to address a federal distribution of power, and a special panel of religious experts known as the Talimat-e-Islamia (‘Teachings of Islam’) Board to examine the constitutional status of Islamic law.13 The first report of this Basic Principles Committee (1950), known as its ‘interim’ report, however, failed to satisfy two core constituencies, namely (a) the traditionalist ulema and (b) the residents of East Bengal.14 First, the report noted that the Objectives Resolution should be treated as ‘a non-binding directive principle of state policy’ (subordinated to binding commitments like the enforcement of fundamental rights). And, second, the BPC recommended Urdu as the national language as well as an upper house with equal representation for each province (clearly ignoring the fact that Pakistan’s demographic majority lived in Bengali-speaking East Bengal).
The ensuing dissent was so vigorous—particularly in East Bengal—that the Constituent Assembly was adjourned to revise its ‘interim’ report.15 Intervening Debates (1947-52)
Responding to the first BPC report, which had rejected the views of the Talimat-e-Islamia Board, 31 religious scholars representing both traditionalists (Group 1) and Islamists (Group 3) met in Karachi (1951) to re-articulate their demands.16 This meeting included Maulana Maududi and at least four members of the Talimat-e-Islamia Board, all of whom noted that, as a Muslim homeland, Pakistan should be tied to a clear Islamic ideology—insisting, for instance, with reference to 22 key points, that the Head of State should be a pious male Muslim advised by a Legislative Council regarding matters not already ‘settled’ by the terms of shari‘a and, above all, that a special committee of religious experts should ensure that any law passed by the Legislative Council would not contravene the Qur’an or the sunna as interpreted by the ‘schools’ prevailing amongst the ulema.17 In fact, claiming pride of place with reference to Pakistan’s Muslim identity, the traditionalists in Group 1 went on to insist that the role of the ulema should be enhanced via (a) ‘provision[s] for Islamic education in accordance with … the various … schools of … [traditionalist] thought’ and (b) ‘the administration of [Muslim law] by judges … belonging to th[ose] … schools’.18
Constitutional Debates (Revisited)
In 1952 the Basic Principles Committee re-convened to draft a ‘revised’ report, addressing (but also reframing) these traditionalist/Islamist suggestions.19 Led by Khwaja Nazimuddin—who resigned as Pakistan’s Governor-General to become Prime Minister following the assassination of Liaquat Ali Khan in 1951—this second report noted that Pakistan’s Head of State should be a Muslim while, at the same time, continuing to embrace the Objectives Resolution as a non-binding constitutional preamble. It also added greater specificity to the overall allocation of parliamentary seats, noting that Pakistan’s eastern and western wings should enjoy exactly equal numbers.20
Intervening Debates (Revisited)
Again, the pattern of dissent was two-fold. Western provinces like the Punjab, while appreciating the principle that Pakistan’s parliamentary seats should be divided equally between its eastern and western wings (notwithstanding East Pakistan’s overall majority), opposed the distribution of seats within West Pakistan. And, somewhat predictably, the so-called ‘religious’ lobby representing Groups 1 and 3 insisted that their specialist advice regarding the ‘Islamic’ status of state-based laws should be ‘binding’.
Prime Minister Nazimuddin responded to the concerns articulated by Groups 1 and 3 with a proposal that the Head of State should simply constitute an ‘advisory’ Board of Ulema to rule on the ‘repugnancy’ of individual laws (with the unanimous vote of this Board forcing impugned laws back to the legislature for amendment).21 But, eventually, the Constituent Assembly decided to reject this accommodation of Group 1, turning instead to a proposal in which declarations of repugnancy were to be made by the Supreme Court alone.22 A Constitution Deferred (I): Traditionalists and Islamists versus Nationalists (1952-56)
The frustration of ‘traditionalist’ and ‘Islamist’ scholars, having been denied any exclusive or binding authority over the Islamization of existing laws, was partially offset by the long-term prospect of securing greater control over the membership of Pakistan’s Supreme Court. Still, they deeply resented ongoing efforts to promote power-sharing amongst competing institutions (including the legislature) vis-à-vis the crucial issue of ‘repugnancy’. In fact they saw this push for the separation of powers as a deliberate effort to diminish their assumed supremacy vis-à-vis the articulation of Pakistan’s religious identity. And, beginning in 1952, extralegal methods were adopted to re-assert their ostensibly ‘religious’ demands.
In comments prepared for the second BPC meeting in 1952, Islamist ideologue Syed Abu’l ala Maududi argued that a religious group known as the Ahmediyya (whose recognition of a late-nineteenth century spiritual leader, Mirza Ghulam Ahmed, was seen by many as a denial of ‘the finality of prophethood in Islam’) should be relegated to a separate list of ‘non-Muslim’ legislative seats.23 And, shortly thereafter, he joined a small number of traditionalist parties like the JUI in a series of protests throughout the Punjab that rapidly spilled out onto the streets.24
Pakistan’s Governor-General Ghulam Mohammad (who took over as Governor-General when Khwaja Nazimuddin became Prime Minister in 1951) was appalled by this use of rioting as a form of constitutional pressure. And, in due course, the army was called in to restore a semblance of order. Prime Minister Nazimuddin went on to oust the Chief Minister of the Punjab for failing to prevent the riots; but, two weeks later, Governor-General Ghulam Mohammad dismissed Nazimuddin for his role in ousting the provincial Chief Minister—a step that Ghulam Mohammad believed only he was entitled to perform.
Constitutionally, the riots of 1952-53 were pivotal. First and foremost, they prompted a brief period of martial law, raising numerous questions about the power of parliament (Prime Minister Nazimuddin) and the executive (Governor-General Ghulam Mohammad) vis-à-vis one another. But, more importantly, with reference to the religious identity of Pakistan, they prompted an official inquiry that culminated in a report commonly known as The Munir Report authored by the Chief Justice of the Lahore High Court, Mohammad Munir, and his colleague, Justice Malik Rustom Kayani.25 This report argued that, whether or not parliament was supreme, the state as a whole should avoid declaring who was (or who was not) a Muslim: ‘It does not require much imagination’, Munir explained, ‘to judge the consequences’ of such a fratricidal process (in which each group seeking to control the religious identity of the state sought to define every other as an ‘apostate’).26 In fact, pushing back against Groups 1 and 3, Munir and Kayani insisted that any state-based enforcement of a zero-sum religious identity was categorically incompatible with public order. The terms of Islam, they noted, must be defined, neither by the totalitarian views of Maududi nor by rival ulema, but by an unfettered ‘national’ state committed to ongoing legislation within the constitutional parameters of intra-Muslim ‘non-establishment’.
Munir was not convinced that this national state should be dominated by parliament (particularly insofar as Pakistan’s elected representatives had shown themselves to be vulnerable to what might be described as religious fevers). In fact, within Group 2, it is important to stress that Munir’s own loyalties lay with the consolidation of a powerful ‘national’ executive.
A Constitution Deferred (II): Executive versus Parliamentary Primacy (1952-56)
Munir’s critique of the religious traditionalists and Islamists in Groups 1 and 3 clearly influenced the work of Pakistan’s Constituent Assembly, where, in the wake of these anti-Ahmediyya riots, any effort to enforce a static expression of Islamic law—as defined by the ulema or Maududi—was repeatedly set aside.27 In fact the intensity of the intra-Muslim competition unfolding between Groups 1 and 3 was often cited to overrule any agreement those groups might have stressed regarding the value of a ‘separate electorate’ for the Ahmediyya.
Within the nationalist camp, however, an overarching consensus regarding the distribution of power between the executive, the judiciary, and the legislature proved elusive. Some insisted that efforts to delineate the terms of Islamic law should remain in the hands of the legislature: ‘[I]n many respects the mutable part of the [shari‘a] requires considerable overhauling, and the immutable bases (e.g. the Qur’an) need a new interpretation’, wrote Education Minister I.H. Qureshi (echoing the views of Mohammad Iqbal), asking: ‘Who will do this work of … interpretation’? ‘It is obvious’ he noted, ‘that the only place where [such a] discussion can take place is the legislature, because, as the supreme representative of the people, the legislature alone can … [determine] what seems rational and proper out of a mass of … [‘traditionalist’] commentary putting forward different points of view’.28
Others, however, doubted the extent to which autonomous legislators could rise above populist forms of bigotry. ‘[W]e are prompted by something they call human conscience’, Justice Munir explained, pushing back against the legislature in favor of the executive, to ask ‘whether … the problem of law and order [should] not be divorced from [that] democratic bed-fellow called ministerial government which is so remorselessly haunted by … political nightmares’.29 Clearly, Munir maintained, the institutionalization of Islamic law was closely related to ‘law and order’ problems that should not be left to the legislature. As a question of public order, he argued, this issue should be left to the executive.
In the end, however, fearing the possibility of an ever-expanding executive, the Constituent Assembly sided with I.H. Qureshi, noting that any law deemed ‘repugnant’ to Islam (by the SupremeCourt) should be referred back to the legislature for amendment —although, having said this, the Assembly went on to ask whether this arrangement could be put into practice if, owing to the martial law regime imposed during the riots of 1953, the Constitution itself was still (technically speaking) suspended. Indeed, even as Justices Munir and Kayani were busy drafting their response to the riots in Lahore, the Constituent Assembly was stitching together a variety of amendments designed to rein in Pakistan’s executive.30 In particular, recalling the Governor-General’s dismissal of Prime Minister Nazimuddin, the Assembly sought to promulgate an amendment preventingthe executive from dissolving the legislature (full stop).31
These amendments were introduced for debate in September 1954. But, less than a month later, Governor-General Ghulam Mohammad dissolved the Constituent Assembly—a move quickly challenged by the President of the Assembly in a case known as Tamizuddin Khan v. Federation of Pakistan.32 Initially, the courts rejected the Governor-General’s position (that the Constituent Assembly’s amendments seeking to restrict his powers were not ‘law’ because they had not received his formal consent). But, in March 1955, the country’s highest court led by Mohammad Munir (recently elevated to the post of Federal Court Chief Justice) issued a judgment that accepted the arguments put forward by the Governor-General—a judgment that threw several laws already enacted by the Assembly (without the Governor-General’s consent because the Assembly saw itself as ‘sovereign’) into question.33
Fortunately, Munir was quick to appreciate the constitutional crisis resulting from his decision. And, in due course, he issued a countervailing opinion declaring that it was, in fact, the Assembly—as opposed to the Governor-General acting in a state of emergency—through which any constitutional provision must be drafted34
Shortly thereafter, forty members from each ‘half’ of Pakistan—distributed amongst the parties that had participated in provincial elections after 1946 (e.g. Punjab 1951, Bengal 1954, and so on)—came together as a Second Constituent Assembly to finalize Pakistan’s first constitution.35
Pakistan’s First Constitution: A False Start (1956)
Ratified in March 1956, Pakistan’s first constitution was notable for its emphasis on parliamentary primacy: a unicameral parliament consisting of 310 members equally divided between East and West Pakistan.36 The name of the country became ‘The Islamic Republic of Pakistan’ and the Objectives Resolution (1949) was incorporated as a non-binding constitutional preamble. More detailed religious provisions, including compulsory teaching of the Qur’an, were set forth in a series of non-enforceable articles known as the ‘Directive Principles of State Policy’. And, finally, the crucial issue of ‘repugnancy’ was taken up in Articles 197-198, where it was noted that, while the President was expected to appoint both an organization devoted to Islamic research and an ‘advisory’ commission to make recommendations for the Islamization of the law (while protecting both the Constitution itself and the sectarian diversity within Muslim personal law from this homogenizing ‘Islamization’ process), any final decision regarding repugnancy and its correction would be confined, not to the Supreme Court, but rather to the National Assembly.37
In practice, however, the President delayed any appointments to the advisory commission spelled out in Article 198. Most of his time, throughout 1956 and 1957, was spent keeping tabs on a rapid succession of Prime Ministers: Chaudhury Mohammad Ali (1955-56), Hussain Shaheed Suhrwawardy (1956-57), Ibrahim Ismail Chundrigar (October-December 1957), and Feroz Khan Noon (1957-58). Indeed, within less than three years, Pakistan’s new Constitution had been abrogated. In October 1958 the President (Iskander Mirza) dismissed Pakistan’s National Assembly and declared martial law before, just three weeks later, being sent into exile by his own Chief Martial Law Administrator, Mohammad Ayub Khan. Pakistan’s constitution favored a powerful parliament. But, throughout the mid-1950s, real power lay with Pakistan’s executive.