The Roots of Articles 62 & 63

Extracts from Husain Haqqani’s Article

Islamist Parties and Democracy
Source: Journal of Democracy, July 2008, Volume 19, Number 3

More substantively, however, the potential or actual force of the Islamist legacy is bound up with the question of the status of shari‘a. As has often been observed, the shari‘a understood as divine law and thus as the will of God stands in tension with any alternative understanding of legislation as deriving from human will, as expressed for instance via the decisions of elected legislators. But as a practical matter, of course, even the divine law requires human intermediation for its implementation, and this intermediation has taken various forms over the course of Muslim history.

In practice, the issue for contemporary democracy and especially liberal democracy will turn on whether an Islamist party and the state that it might govern can admit the legitimacy of some political and legal authority in addition to (and somehow combined with) the authority of Islamic law. From the point of view of liberal democracy, such a party and state would have to accept (if only tacitly) the principles of a private sphere and of individual rights—principles by which liberal democracy stands or falls. Such a sphere might permit—but would not require—the private adherence to Islamic law.

In terms of electoral politics, the issue might be stated as follows:

How do or will Islamist parties define the minimum qualifications of electors and candidates for office? Is every adult citizen a potential candidate for office and electoral participation? Or are the franchise and office to be restricted either to Muslims in general or, even more menacingly, only to those Muslims who conform to Islamist standards—that is to say, those who are “true Muslims” rather than “Muslim unbelievers” or “backsliders” or “neopagans.”

Mawdudi used the terms “Muslim by choice” and “Muslim by chance” to distinguish between the two categories. The latter is a category that has come to figure prominently in contemporary Islamist discourse. Jihadist groups have used it to justify the murder of other Muslims, especially Muslim rulers and their allies. Islamist parties might use it to legitimize the idea of refusing to give up power after they have won office through elections. Hence the fear that Islamism will lead to dictatorships of the pious modeled on communism’s dictatorships of the proletariat.

As mentioned above, Muslim political history shows some variability in the implementation of Islamic law. Indeed, the determination and implementation of Islamic law were often matters handled in the “private sphere” by clerics lacking political power. At least after the time of Muhammad and his immediate successors, Islamic jurisprudence developed largely at some distance from the rulers of the polity. This wasresponsible for the well-known fact that Islamic law comes in at least four major “schools” or variants. The adherence to Islamic law coexisted with the separate and de facto superior authority of Muslim political rulers and their various dynasties. Thus Muslim experience does not lack for a variety of political arrangements within which separate layers or spheres of law can be present at the same time. Indeed, such a variety exists today in the practices of various Muslim countries.

It is difficult to say, however, what bearing this might have on Islamists political practice, since the original Islamist impulse was to regard this variability, whether noted in the past or the present, as a sign that all was not well in the Muslim world. It is of course possible that Islamist parties might come to rethink this matter—initially perhaps as a matter of necessity in the face of countervailing political forces, and then more positively through the elaboration of a new political theory.But the latter has certainly not occurred yet, and the former has so far produced results that, as the case of the Egyptian Muslim Brotherhood shows, must be called ambiguous at best.

3 responses to “The Roots of Articles 62 & 63”

  1. It may be useful to read this article (excerpt) in the light of Iqbal’s lectures (“Reconstruction of religious…’) in which he supported the idea of a sovereign parliament with the authority to govern including the authority to reinterpret and enact the Quranic ideology.

  2. Is Article 227 indispensable?

    Thursday, January 28, 2010
    Naeem Sadiq

    If the Taliban were to come to power in Pakistan (which is what their struggle is all about), what would they do to the Constitution? The answer is: they would retain Article 227 and discard the rest of the Constitution. This single article of the Constitution would be sufficient for them to run the country. Their interpretation of this Article would be: “All laws to be brought in conformity with the injunctions of Islam – as perceived by the Taliban.”

    They could arguably use the article to make laws to kill a barber for a haircut, bomb a school if it was attended by females, gouge the eyes of those who watched television, lash people for wearing shorts and cut off hands for theft, and to slaughter those who differed with the Taliban’s brand of religion – all in the name of Islam. Thanks to Article 227, all this would be well within the ambit of law and the constitution. The Taliban could not have conceived a better, simpler and more accurate one-liner constitution.

    From types of governance to the nature of personal laws, nations, groups and individuals differ widely on what they consider to be in conformity with the injunctions of Islam. The constitution of Saudi Arabia (for some a role model for an Islamic state) calls for a monarchical system of government. It further requires that the monarchy be passed on to the sons of the founding king, Abd al-Aziz bin Abd al-Rahman al-Faysal al Sa’ud, and to their children’s children. Many scholars do not consider this prescription to be a recommended Islamic practice. Others will not agree with the constitution of Iran, another great Islamic country, that declares (in Article 12) Islam in accordance with the Jafariya school to be the official faith.

    On the other hand, Muslim Bangladesh on becoming an independent country in 1971 chose a secular constitution, and more recently has banned all religion-based parties from politicking on religious grounds.

    In the case of Article 227, Pakistan’s experience with it has added to the strife and polarisation of its citizens and society, rather than providing any benefits. It has been used by both civilian and military rulers to maintain their hold on power through appeasement of religious groups. In a fit of religious fervour, ours became the only parliament in the world to acquire the divine right to declare which Pakistani citizens were Muslim or otherwise. We must now nervously look to our parliament (often a gathering of people renowned for their questionable integrity) in case it decides which one of us is next to be removed from the pale of Islam.

    Gen Zia’s Zakat Ordinance deserves special mention here, as it is an object lesson in why not to engage in religious lawmaking. The 1980 ordinance was strongly resented by members of the Fiqh-e-Jafariya, who felt it was not in accordance with their own beliefs. Forced to concede, but also not wishing to lose face, the government responded in a grossly unethical manner. On the one hand, the Zakat Ordinance was amended to include a provision that enabled all recognised sects to seek exemption from compulsory deduction of Zakat. On the other, confidential administrative instructions were issued that declarations filed by Shia Muslims were to be accepted while similar declarations filed by Sunni Muslims were to be rejected. (Paragraph 11 of PLD 1991, Karachi 335, Sindh High Court.)

    There was hardly an individual who did not wish to seek exemption from compulsory Zakat deduction. Between 1980 and 1999 (when the Supreme Court upheld the Sindh High Court decision), millions of Muslims kept on providing fake affidavits of belonging to Fiqh-e-Jafariya, or simply withdrawing their money a day before the announced date for deduction of Zakat.

    Unfortunately, the cumbersome bureaucratic practices of the Zakat Ordinance continued to hassle and inconvenience ordinary citizens, who must fill the CZ50 Zakat affidavit and have it signed by a notary public and two witnesses. No one ever questions the science by which a witness verifies the sect of a person. Today, one must prove one’s faith by real or fake affidavits in order to prevent the government from making financial deductions in the name of religion.

    Zakat, like prayers, is a personal obligation. Turning it into a public law makes it come into direct conflict with Article 20 of the Constitution that provides every citizen the right to practice his or her own religion. It also violates Article 8 of the Constitution that declares any law to be void if it is inconsistent with fundamental rights.

    Why did Pakistan need to include Article 227 in its Constitution? Have the actions taken under the umbrella of Article 227 made Pakistani society better or worse? How well have we performed on matters of human rights, equality of citizens, security of individuals, violence against women or dignity of people? Are all these guarantees not already provided for by Articles 8 to 28 of the Constitution?

    How is it that scores of nations with no 227-like articles in their constitutions have done far better than Pakistan on the counts of human rights, equality and justice? Pakistan, on the other hand, has fallen prey to deep societal divisions and become vulnerable to the forces of extremism. In its effort to compete on the ideology market, Pakistan has to constantly (and unnecessarily) keep pace with the unmatchable standards of the clerics of Lal Masjid, the Fazlullahs of Imam Dheri and the Baitullahs of Waziristan.

    It is time for the state to formally and firmly give up provisions that empower it to legislate (almost always wrongly and in discriminatory manner) matters that are exclusive between an individual and the Lord. The ordinary people of Pakistan will continue to be just as good Muslims as they have always been. Do they really need to be further divided or exploited by Article 227 being invoked?

    The writer is a management systems consultant, with active interest in social and environmental issues. Email: