Shariat Bill of Pakistan
By Waheed Rizvi
(Translated from Urdu by New Age Islam)
23 January, 2015
Every Pakistani knows it well that in his lectures delivered before the establishment of Pakistan, Jinnah would stress on the fact that Pakistan would not be allowed to become a theocratic state. Therefore, in his lecture delivered in Muslim University in 1938 he had said, “Muslim League has rid the Muslims of conservative elements, the elements which are generally called Maulana or Maulvi.” (Muslim League convention, dated 11 April 1947. Elaborating on it he had further said, “You should understand it well as to what objectives we have fought for. Remember that our objective was not a theocracy. We do not want a theocratic state.”
Later as Governor General he had said in his address in February 1948, “No theocracy will be at work in Pakistan where the government will be handed over to religious leadership to fulfill the divine mission in their own right.”
We should keep the fact in mind that this was the view or idea of Iqbal and of Sir Syed before him. And Jinnah was only following those elders. He assured that the constitution of Pakistan would be Quranic. On this basis, the four prominent groups of the so called ulema of India, namely Jamat Islamic, Majlis-e-Ahrar Islam, Deobandi and Barelvi had opposed the creation of Pakistan. And it so happened that as soon as Pakistan came into being, all the ulema, Maulanas and Maulvis of these four groups migrated to Pakistan. Many of the Ulema, Maulanas and Maulvis were already residing in these regions. Jinnah passed away one year and a few months after the creation of Pakistan. After his death, Pakistan became a political cauldron. Ulema and Maulvis had a field day. Leave aside making Pakistan an Islamic state, these Maulanas and Maulvis laid the foundation of Ajami Islam here.
For the last many years, implementation of Islam is being demanded in Pakistan. Even a referendum was also done on this during the Martial Law period. This gives the impression from the legal point of view that Islam has not been implemented here and so all these efforts are being made towards this. If Islam has not been implemented and efforts are being made towards it, the question arises: In what state is the country and the nation, although, constitutionally the country has been declared Islamic. In 1951, 31 ulema of various sects had framed a formula through which no law of the country could be in violation of the Book and Sunnah. After a long period, Maulana Maududi said that no law can be passed on the basis of the Book and Sunnah which can be acceptable to all the sects because every sect has serious differences in relation to Sunnah, jurisprudence and other small issues. He even termed the Hanafi jurisprudence as a rigid scripture.
Before this period of democracy, an ordinance had also been issued which is also in the form of personal laws in vogue since ages. As all the personal laws give everyone the freedom to follow his own religion and sect and all the issues of the sect are resolved in the light of the jurisprudence, traditions and beliefs of that particular sect, the current Shariat Bill which the state has passed has the same features and nature. Not that this bill is a deviation from the ideas of Jinnah and Iqbal but also in violation of Quran and Sunnah. The source of the former Shariat ordinance and the current Shariat Bill is the jurisprudences of various beliefs whereas in Islam, the source of Shariah cannot be any other source than the Quran.
About the jurisprudences, Iqbal had said that despite their universality, the jurisprudence is the collection of individual views and interpretations. It would be wrong to consider them final and decisive. The principles of the Deen had been revealed to the prophet pbuh by God and they are present in the Quran. There is no other source than Quran for them and there cannot be any question of change and modification in them. The procedures and methods of following the principles of Deen had not been fixed. God had enjoined on the prophet pbuh to consult his companions for this purpose (3:159) obviously, the issues that are decided in mutual consultation cannot be eternal and unchangeable. The holy prophet pbuh had also decided on those issues after consultations with his companions. About the group of believers after the prophet pbuh the Quran says “Their issues are decided after mutual consultations” (42:38). This process continued during the caliphates of rightly guided caliphs. This created the notion that the decisions taken during the life of the prophet pbuh and the rightly guided caliphs are unchangeable and eternal. Imam Malik and Imam Shafi strengthened this belief. However, the laws and principles on the implementation of Islam can only be formulated through mutual consultation collectively and not individually. After the creation of differences in Islam the so-called Ulema of each sect carried out the act of legislation like a legislative body and certified the beliefs and faith of his own sect as true. In the light of the Quranic injunction, this was in clear violation of Quranic principle. During the sultanates, the laws of different sects that were the product of individual efforts were compiled in the form of jurisprudence which consists of personal laws. They have nothing to do with the laws of the country. That’s why personal laws, jurisprudence and the laws of the country are different entities and the followers of different sects have the freedom to follow their own personal laws. In such a government, the personal laws are in the custody of the religious leadership whereas the implementation of the public laws is the responsibility of the government. Such a government is called a secular government. Moreover, there are also differences on the issue of Hadiths and Sunnah among different sects. So far as Hadith and Sunnah are concerned, Iqbal and Shah Waliullah agree on the issue that the guidelines and instructions the holy prophet pbuh had issued for the implementation of the Quranic injunctions in his own life was in the light of the nature, habits and customs of the Arab people of that era. Therefore, they cannot be implemented in Toto in non-Arab societies in changed atmosphere and circumstances because the habits, nature and lifestyle of the desert people are different from the nature, habits and customs of people of agricultural countries.
The modern period is very much different from the age of the Salaf in terms of politics, society and economy. The intellectual and academic level of the people of the modern age is very high and developed in comparison to that of the people of the primitive era. This age demands modernism. The word of God is guide for people till eternity. Therefore, Shariat should be chalked out in the light of the changes and requirements of the modern age. This Ijtihad is very necessary and this is the will of God. The knowledge of the so-called traditional ulema is limited to physical traditions and non-Arab sciences. Their own jurisprudence is in confrontation with the Shariat of Quran. This traditional and communal and sectarian Shariat has nothing to do with the real Islam and the Deen revealed by God. The objective of the implementation of Islam is to remove sects and differences, not nurturing and sustaining sects and groups. Therefore God says that when you develop faith in God, hold on to the rope of God (the laws of God) tightly and we should not disintegrate creating sects. We should be united. Islam is nothing if it is not a unified whole. God has proclaimed a life marred by differences as shirk. In Surah Al An’am verse 159 God says to the Prophet Pbuh, “People created differences in their Deen and became divided in groups. You have no business with those people. God will deal with them.” The current Shariat Bill is the product of the same differences which are un Islamic in the light of the enjoinment of God.
God says, “Those who do not govern according to the enjoinments of Quran are Kafirs. “ (5:44) and clearly says that “God does not make partners in his sovereignty.”(18:36)
In other words, the laws of God cannot be mixed with manmade laws. This is in violation of the unity of God. God has made this clear in the verse, “Say God is one.” (112:1). No one can be a partner in his sovereignty. Therefore, no man made laws can be incorporated in laws of God. In other words, a government which is based on manmade laws cannot be called a divine government. God has stated this very clearly.
“No one even the prophet has the right to ask people to obey him and not to God” (3:79)
If someone says this, he will commit Shirk? Therefore, Tauhid is in the obedience of God alone and setting up partners with him is Shirk. The prophet pbuh also ensured that people obeyed to God, not his instructions because it would be akin to shirk.
God does not accept any partner in his sovereignty. So God considers those who frame the principles and laws of Shariat as his partners. About them, God says, “Have they set up partners with God so that they formulate the laws of Shariat though God has not permitted anyone to do this?”(42:21) Here ulema and Mashaikh are hinted at. God says about such people “They have set up ulema and jurists the partners with God.”((9:31)
It should be noted how the ulema and so called jurists have included the laws formulated by them into the laws of God. God has clearly said that the laws of God can neither be changed nor modified. Despite this, some of the changes in the laws of God by jurists that have been made are being presented below:
Laws of God
|
Man Made Laws
|
P punishment for adulterer man And woman 100 lashes
|
Punishment for unmarried man and woman
is indeed 100 lashes but punishment for married man and woman is stoning.
|
The dying person can leave a will in favour of any person. This is the
Instruction of God and binding on
Believers.(2:180)
|
Will can only be made about only a third of property, that too not in favour of inheritors.
|
Punishment for deliberate murder is death.
|
Blood money can be taken in deliberate murder
|
Blood money for man and woman
Is equal(2:178)
|
Blood money of woman is half of that of man
|
There is no difference in man and
woman in terms of witness. In financial cases, the witness of two women
Is equal to that of one man.
|
In criminal cases, the witness of women can never be taken
|
Orphan grandson has a right to inherit
the property of grandfather.
|
Orphaned grandson will be deprived.
|
With the compilation of jurisprudence, a group called muftis came into existence. They issue fatwas on every issue of life. They are inferred from jurisprudence, traditions and Hadiths. They have nothing to do with Quranic principles and values. Nevertheless, these fatwas are considered Islamic Shariat. The question is: Who appoints them? What position and justification they enjoy in an Islamic society and country.
A great stress has been laid on these muftis in the Shariat Bill passed by the Senate. All the scholars graduating in jurisprudence and the science of fatwas from madrasas have been defined as muftis. According to this Bill, the President of the country will have authority to appoint all such graduates as judges of courts and muftis in consultation with the chief justice. The position of all such muftis will be at par with the deputy attorney general of the country. Every mufti will have the duty to advise and give suggestions to the central and state governments on religious issues which require an interpretation of the jurisprudence of the particular sect, traditions etc. It has also been stressed in the Shariat Bill that the government should make arrangements for the inclusion of the education of jurisprudence and fatwas in schools, colleges and universities. It should be noted here that by jurisprudence, the jurisprudence of the sultanate era is meant which has been compiled by individual ulema and Mashaikh and which according to Iqbal and Shah Waliullah are personal views and interpretations of ulema that are not final and eternal.
In the light of the facts presented above, if such a Shariat Bill has nothing to do with Quran and the word of God, it cannot be considered Islamic under any circumstances. How can it be called Islamic? On this basis, Iqbal and Jinnah insisted that the law of an Islamic state cannot be based on any other source than the Quran.
Source: Saut ul Haque, Karachi, November 2014
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