AN ISLAMIC STATE

[ EXTRACT FROM : REPORT of THE COURT OF INQUIRY constituted under PUNJAB ACT II OF 1954 to enquire into the PUNJAB DISTURBANCES OF 1953 Lahore. By Justice Munir ]

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It has been repeatedly said before us that implicit in the demand for Pakistan was the demand for an Islamic State. Some speeches of important leaders who were striving for Pakistan undoubtedly lend themselves to this construction. These leaders while referring to an Islamic State or to a State governed by Islamic laws perhaps had in their minds the pattern of a legal structure based on or mixed up with Islamic dogma, personal law, ethics and institutions. No one who has given serious thought to the introduction of a religious State in Pakistan has failed to notice the tremendous difficulties with which any such scheme must be confronted. Even Dr. Muhammad Iqbal, who must be considered to be the first thinker who conceived of the possibility of a consolidated North Western Indian Muslim State, in the course of his presidential address to the Muslim League in 1930 said: Nor should the Hindus fear that the creation of autonomous Muslim States will mean the introduction of a kind of religious rule in such States. The principle that each group is entitled to free development on its own lines is not inspired by any feeling of narrow communalism. When we come to deal with the question of responsibility we shall have the occasion to point out that the most important of the parties who are now clamouring for the enforcement of the three demands on religious grounds were all against the idea of an Islamic State. Even Maulana Abul Ala Maudoodi of Jamaat-i-Islami was of the view that the form of Government in the new Muslim State, if it ever came into existence, could only be secular. Before the Partition, the first public picture of Pakistan that the Quaid-i-Azam gave to the world was in the course of an interview in New Delhi with Mr. Doon Campbell, Reuters Correspondent. The Quaid-i-Azam said that the new State would be a modern democratic State, with sovereignty resting in the people and the members of the new nation having equal rights of citizenship regardless of their religion, caste or creed. When Pakistan formally appeared on the map, the Quaid-i-Azam in his memorable speech of 11th August 1947 to the Constituent Assembly of Pakistan, while stating the principle on which the new State was to be founded, said: All the same, in this division it was impossible to avoid the question of minorities being in one Dominion or the other. Now that was unavoidable. There is no other solution. Now what shall we do? Now, if we want to make this great State of Pakistan happy and prosperous we should wholly and solely concentrate on the well-being of the people, and specially of the masses and the poor. If you will work in co-operation, forgetting the past, burying the hatchet, you are bound to succeed. If you change your past and work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste or creed, is first, second and last a citizen of this State with equal rights, privileges and obligations., there will be no end to the progress you will make. I cannot emphasise it too much. We should begin to work in that spirit and in course of time all these angularities of the majority and minority communitiesthe Hindu community and the Muslim community because even as regards Muslims you have Pathana, Punjabis, Shias, Sunnis and so on and among the Hindus you have Brahmins, Vashnavas,

Khatris, also Bengalis, Madrasis and so onwill vanish. Indeed if you ask me this has been the biggest hindrance in the way of India to attain its freedom and independence and but for this we would have been free peoples long long ago. No power can hold another nation, and specially a nation of 400 million souls in subjection; nobody could have conquered you, and even if it had happened, nobody could have continued its hold on you for any length of time but for this (Applause). Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other places of worship in this State of Pakistan. You may belong to any religion or caste or creed that has nothing to do with the business of the State (Hear, hear). As you know, history shows that in England conditions sometime ago were much worse than those prevailing in India today. The Roman Catholics and the Protestants persecuted each other. Even now there are some States in existence where there are discriminations made and bars imposed against a particular class. Thank God we are not starting in those days. We are starting in the days when there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one State (Loud applause). The people of England in course of time had to face the realities of the situation and had to discharge the responsibilities and burdens placed upon them by the Government of their country and they went through that fire step by step. Today you might say with justice that Roman Catholics and Protestants do not exist: what exists now is that every man is a citizen, an equal citizen, of Great Britain and they are all members of the nation. Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State. The Quaid-i-Azam was the founder of Pakistan and the occasion on which he thus spoke was the first landmark in the history of Pakistan. The speech was intended both for his own people including non-Muslims and the world, and its object was to define as clearly as possible the ideal to the attainment of which the new State was to devote all its energies. There are repeated references in this speech to the bitterness of the past and an appeal to forget and change the past and to bury the hatchet. The future subject of the State is to be a citizen with equal rights, privileges and obligations, irrespective of colour, caste, creed or community. The word nation is used more than once and religion is stated to have nothing to do with the business of the State and to be merely a matter of personal faith for the individual. We asked the ulama whether this conception of a State was acceptable to them and everyone of them replied in an unhesitating negative, including the Ahrar and erstwhile Congressites with whom before the Partition this conception was almost a part of their faith. If Maulana Amin Ahsan Islahis evidence correctly represents the view of Jamaat-i-Islami, a State based on this idea is the creature of the devil, and he is confirmed in this by several writings of his chief, Maulana Abul Ala Maudoodi, the founder of the jamaat. None of the ulama can tolerate a State which is based on nationalism and all that it implies; with them millat and all that it connotes can alone be the determining factor in State activity. The Quaid-i-Azams conception of a modern national State, it is alleged, became obsolete with the passing of the Objectives Resolution on 12th March 1949; but it has been freely admitted that this Resolution, though grandiloquent in words, phrases and clauses, is nothing but a hoax and that not only does it not contain even a semblance of

the embryo of an Islamic State but its provisions, particularly those relating to fundamental rights, are directly opposed to the principles of an Islamic State. FOUNDATIONS OF ISLAMIC STATE What is then the Islamic State of which everybody talks but nobody thinks ? Before we seek to discover an answer to this question, we must have a clear conception of the scope and function of the State. The ulama were divided in their opinions when they were asked to cite some precedent of an Islamic State in Muslim history. Thus, though Hafiz Kifayat Husain, the Shia divine, held out as his ideal the form of Government during the Holy Prophets time, Maulana Daud Ghaznavi also included in his precedent the days of the Islamic Republic, of Umar bin Abdul Aziz, Salah-ud-Din Ayyubi of Damascus, Sultan Mahmud of Ghazni, Muhammad Tughlaq and Aurangzeb and the present regime in Saudi Arabia. Most of them, however, relied on the form of Government during the Islamic Republic from 632 to 661 A. D., a period of less than thirty years, though some of them also added the very short period of Umar bin Abdul Aziz. Maulana Abdul Haamid Badayuni stated that the details of the ideal State would be worked out by the ulama while Master Taj-ud-Din Ansaris confused notion of an Islamic State may be gathered from the following portion of his interrogation : Q.Were you also in the Khilafat movement ? A.Yes. Q.When did the Khilafat movement stop in India ? A.In 1923. This was after the Turks had declared their country to be a secular State. Q.If you are told that the Khilafat movement continued long after the Turks had abolished Khilafat, will that be correct? A.As far as I remember, the Khilafat movement finished with the abolition of the Khilafat by the Turks. Q.You are reported to have been a member of the Khilafat movement and having made speeches. Is it correct ? A.It could not be correct. Q.Was the Congress interested in Khilafat ? A. Yes. Q.Was Khilafat with you a matter of religious conviction or just a political movement ? A. It was purely a religious movement. Q. Did the Khilafat movement have the support of Mr. Gandhi ? A.Yes. Q. What was the object of the Khilafat movement ? A. The Britisher was injuring the Khilafat institution in Turkey and the Musalman was aggrieved by this attitude of the Britisher. Q. Was not the object of the movement to resuscitate the Khilafat among the Musalmans ? A.No. Q. Is Khilafat with you a necessary part of Muslim form of Government ? A.Yes. Q. Are you, therefore, in favour of having a Khilafat in Pakistan ? A.Yes. Q. Can there be more than one Khalifa of the Muslims ? A. No. Q. Will the Khalifa of Pakistan be the Khalifa of all the Muslims of the world ? A. He should be but cannot be. Throughout the three thousand years over which political thought extends, and such thought in its early stages cannot be separated from religion, two questions have invariably presented themselves for consideration :

(1) what are the precise functions of the State ? and (2) who shall control the State ? If the true scope of the activities of the State is the welfare, temporal or spiritual or both of the individual, then the first question directly gives rise to the bigger question : What is the object of human life and the ultimate destiny of man ? On this, widely divergent views have prevailed, not at different times but at one and the same time. The pygmies of equatorial West Africa still believe that their God Komba has sent them into the forest to hunt and dance and sing. The Epicureans meant very much the same when they said that the object of human life is to drink and eat and be merry, for death denies such pleasures. The utilitarians base their institutions on the assumption that the object of human life is to experience pleasant sensations of mind and body, irrespective of what is to come hereafter. The Stoics believed in curbing and reducing all physical desires, and Diogenes found a tub good enough to live in. German philosophers think that the individual lives for the State and that therefore the object of life is service of the State in all that it might decide to undertake and achieve. Ancient Hindu philosophers believed in the logic of the fist with its natural consequence, the law of natural selection and the struggle for survival. The Semitic theory of State, whether Jewish, Christian or Islamic, has always held that the object of human life is to prepare ourselves for the next life and that, therefore, prayer and good works are the only object of life. Greek philosophers beginning with Socrates thought that the object of human life was to engage in philosophical meditation with a view to discovering the great truths that lie in nature and that the business of the others is to feed the philosophers engaged in that undertaking. Islam emphasises the doctrine that life in this world is not the only life given to man but that eternal life begins after the present existence comes to an end, and that the status of a human being in the next world will depend upon his beliefs and actions in this world. As the present life is not an end in itself but merely a means to an end, not only the individual but also the State, as opposed to the secular theory which bases all political and economic institutions on a disregard of their consequences on the next life, should strive for human conduct which ensures for a person better status in the next world. According to this theory Islam is the religion which seeks to attain that object. Therefore the question immediately arises : What is Islam and who is a momin or a Muslim ? We put this question to the ulama and we shall presently refer to their answers to this question. But we cannot refrain from saying here that it was a matter of infinite regret to us that the ulama whose first duty should be to have settled views on this subject, were hopelessly disagreed among themselves. Apart from how these learned divines have expressed themselves, we conceive of Islam as a system that covers, as every systematic religion must, the following five topics : (1) the dogma, namely, the essentials of belief ; (2) the cult, namely, religious rites and observances which a person must perform ; (3) ethics, i. e. rules of moral conduct ; (4) institutions, social, economic and political ; and (5) law proper. The essential basis of the rules on all these subjects is revelation and not reason, though both may coincide. This coincidence, however, is accidental because human reasoning may be faulty and ultimate reason is known only to God, Who sends His message to humanity through His chosen messengers for the direction and guidance of the people. One must, therefore, accept the dogma, observe the cult, follow the ethics, obey the law and establish institutions which God has revealed, though their reason may not be apparentnay even if they be opposed to human reason. Since an error by God is an impossibility, anything that God has revealed, whether its subject be something occult or preternatural, history, finance, law, worship or something which according to human thought admits of scientific treatment as for instance, birth of man, evolution, cosmology, or astronomy, has got to be accepted as absolute truth. The test of reason is not the acid

test and a denial of this amounts to a denial of the supreme wisdom and designs of Allahit is kufr. Now God has revealed Himself from time to time to His favoured people of whom our Holy Prophet was the last. That revelation is contained in the Quran and covers the five topics mentioned above. The true business of a person who believes in Islam is therefore to understand, believe in and act upon that revelation. The people whom God chooses as medium for the transmission of His messages are rasuls (messengers) or nabis (prophets). Since every action or saying of a prophet is, in the case of our own Holy Prophet it certainly was, prompted by Allah, it has the same degree of inerrancy as the formal revelation itself, because prophets are masum, incapable of doing or saying something which is opposed to Divine wishes. These sayings and actions are sunna having the same infallibility as the Quran. The record of this sunna is hadith which is to be found in several books which were compiled by Muslim scholars after long, laborious and careful research extending over several generations. The word hadith means a record of actions or sayings of the Prophet and his companions. At first the sahaba. i. e. people who had lived in the society of the Prophet, were the best authority for a knowledge of the sunna. Later people had to be content with the communications of the tabiun, i. e. successors, people of the first generation after the Holy Prophet who had received their information from the sahaba, and then in the following generations with the accounts of the so-called successors of the successors (tabiul-tabiun), i.e. people of the second generation after the Holy Prophet, who had concerted with the successors. Marfu is a tradition which contains a statement about the Prophet ; mawquf, a tradition that refers only to the sayings or doings of the sahaba ; and maqtu a tradition which does not at most go further back than the first generation after the Holy Prophet and deals only with sayings or doings of tabiun. In some of the ahadith the actual word of God is to be found. Any such tradition is designated Hadith-i-Qudsi or Ilahi as distinguished from an ordinary Hadith-i-Nabvi. A very large portion of sayings ascribed to the Prophet deals with the ahkam (legal professions), religious obligations, halal and haram (what is allowed and forbidden), with ritual purity, laws regarding food and criminal and civil law. Further they deal with dogma, retribution at the Last Judgment, hell and paradise, angels, creation, revelations, the earlier prophets. Many traditions also contain edifying sayings and moral teachings by the Holy Prophet. The importance of ahadith was realised from the very beginning and they were not only committed to memory but in some cases were reduced to writing. The work of compilation of hadith began in the third century after the Hijra and the Sihah Sitta were all compiled in that century. These are the musannifs of (1) Al-Bukhari, died 256/870, (2) Muslim, died 261/875, (3) Abu Dawud, died 275/888, (4) Al-Tirmizi, died 279/892, (5) All Nasai, died 303/915, and (6) Ibn-i-Maja, died 273/886. According to modern laws of evidence, including our own, the ahadith are inadmissible evidence of sunna because each of them contains several links of hearsay, but as authority on law they are admissible proprio vigore. The merit of these collections lies not so much in the fact that (as is often wrongly stated) their authors decided for the first time which of the numerous traditions in circulation were genuine and which false but rather in the fact that they brought together everything that was recognised as genuine in orthodox circles in those days. The Shias judge hadith from their own stand-point and only consider such traditions reliable as are based on the authority of Ali and his adherents. They have, therefore, their own works on the subject and hold the following five works in

particularly high esteem (1) Al-Kafi of Muhammad b. Yaqub Al-Kulini, died 328/939, (2) Man La Yastahdiruhuul-Fakih of Muhammad b. Ali b. Babuya Al-Kummi, died 381/991, (3) Tahdib Al-Ahkam, (4) Al-Istibsar Fi-Makhtalafa Fihil-Akhbar (extract from the preceding) of Muhammad Altusi, died 459/1067, and (5) Nahj Al-Balagha (alleged sayings of Ali) of Ali b. Tahir Al-Sharif AlMurtaza, died 436/1044 (or of his brother Radi Al-Din Al-Baghdadi.) After the ritual, the dogma and the most important political and social institutions had taken definite shape in the second and third centuries, there arose a certain communis opinio regarding the reliability of most transmitters of tradition and the value of their statement. The main principles of doctrine had already been established in the writings of Malik b. Anas, Al-Shafii and other scholars regarded as authoritative in different circles and mainly on the authority of traditional sayings of the Holy Prophet. In the long run no one dared to doubt the truth of these traditions and this almost conclusive presumption of truth has since continued to be attached to the ahadith compiled in the Sihah Sitta. We have so far arrived at this result that any rule on any subject that may be derived from the Quran or the sunna of the Holy Prophet is binding on every Musalman. But since the only evidence of sunna is the hadith, the words sunna and hadith have become mixed up with, and indistinguishable from, each other with the result that the expression Quran and hadith is not infrequently employed where the intention is to refer to Quran and sunna. At this stage another principle, equally basic, comes into operation, and that is that Islam is the final religion revealed by God, complete and exhaustive in all respects, and that God will not abrogate, detract from or add to this religion (din) any more than He will send a fresh messenger. The din having been perfected (Akmalto lakum dinokum, Sura V, verse 3), there remains no need for any new code repealing, modifying or amplifying the original code; nor for any fresh messenger or message. In this sense, therefore, prophethood ceased with the Holy Prophet and revelation stopped for ever. This is the doctrine of the cessation of wahi-i-nubuwwat. If the proposition that Muslim dogma, ethics and institutions, etc., are all based on the doctrine of inerrancy, whether such inerrancy lies in the Quran, the sunna, ijma or ijtihad-i-mutlaq, is fully comprehended, the various deductions that follow from it will be easily understandable. As the ultimate test of truth, whether the matter be one of a ritual or political or social or economic nature, is revelation and revelation has to be gathered from the Quran, and the sunna carries almost the same degree of inerrancy as revelation and the only evidence of sunna is hadith, the first duty of those who desire to establish an Islamic State will be to discover the precise rule applicable to the existing circumstances whether that rule is to be found in the Quran or hadith. Obviously the persons most suited for the purpose would be those who have made the Quran and hadith their lifelong study, namely, among the Sunnies, the ulama, and among the Shias, the mujtahids who are the spokesmen of the hidden Imam, the ruler de jure divino. The function of these divines would be to engage themselves in discovering rules applicable to particular situations and they will be engaged in a task similar to that in which Greek philosophers were engaged, with only this difference that whereas the latter thought that all truth lay in nature which had merely to be discovered by individual effort, the ulama and the mujtahids will have to get at the truth that lies in the holy Book and the books of hadith. The ulama Board which was recommended by the Basic Principles Committee was a logical recognition of this principle, and the true objection against that Board should indeed have been that the Board was too inadequate a mechanism to implement the principle which had brought that body into existence. Ijma means concurrence of the mujtahids of the people, i.e., of those who have a right, in virtue of knowledge, to form a judgment of their own, after the death of the Holy

Prophet. The authority of ijma rests on the principle of a divine protection against error and is founded on a basal tradition of the Holy Prophet, My people will never agree in error, reported in Ibn Maja, By this procedure points which had been in dispute were fixed, and when fixed, they became an essential part of the faith and disbelief in them an act of unbelief (kufr). The essential point to remember about ijma is that it represents the agreement of the mujtahids and that the agreement of the masses is especially excluded. Thus ijma has not only fixed unsettled points but has changed settled doctrines of the greatest importance. The distinction between ijma and ijtihad is that whereas the former is collective, the latter is individual. Ijtihad means the exerting of ones self to the utmost degree to form an opinion in a case or as to a rule of law. This is done by applying analogy to the Quran and the sunna. Ijtihad did not originally involve inerrancy, its result being always zann or fallible opinion. Only combined ijtihad led to ijma, and was inerrant. But this broad ijtihad soon passed into special ijtihad of those who had a peculiar right to form judgments. When later doctors looked back to the founding of the four legal schools, they assigned to their founders an ijtihad of the first rank (ijtihad-i-mutlaq). But from time to time individuals appeared who returned to the earliest meaning of ijtihad and claimed for themselves the right to form their own opinion from first principles. One of these was the Hanbalite Ibn Taimiya (died 728). Another was Suyuti (died 911) in whom the claim to ijtihad unites with one to be the mujaddid or renewer of religion in his century. At every time there must exist at least one mujtahid, was his contention, just as in every century there must come a mujaddid. In Shia Islam there are still absolute mujtahids because they are regarded as the spokesmen of the hidden Imam. Thus collective ijtihad leads to ijma, and the basis of ijma is divine protection against errorinerrancy.