The Prime Minister of Pakistan, Muhammad Nawaz Sharif's constitution Fifteenth Amendment Bill will have served a good purpose if the universal opposition that has greeted it leads to a deep revulsion at such attempts at Islamisation. The people of Pakistan have been fed a steady diet of cynical legislation ever since the country was born.

It is none too easy to keep track of the many misadventures in the name of Islam ... As one of Pakistan's most perceptive columnists, Nasim Zehra, points out in a brilliant analysis of the Bill, "as a tool for political survival, the Shariah (Islamic Law) Bill's track record is not promising". It did not help either Z.A. Bhutto or Zia-ul-Haq to put off the day of reckoning.

There is more to it than that. If reflects vividly a certain crisis in Pakistan's identity which is yet to be resolved. That concerns Pakistan alone, in a sense. But, of wider concern is the attraction which the mirage of an Islamic state has for many Muslims. There is, in truth, no such thing as an Islamic state, Islam moulds man and, through him, the society in which he lives. It has no instruction manual for a state.

There is not one resolution of the Muslim League which endorsed the concept of an Islamic state for Pakistan. Its founder, Mohammed Ali Jinnah, expelled from his companionship a devoted followers and son of an old friend, Raja of Mahmudabad, no sooner he began to speak of an Islamic state. In his Presidential address to Pakistan's Constituent Assembly, on 11 August 1948, Jinnah threw his two-nation theory out of the window and spoke of"a nation of 400 millions souls" - Indians all. He approximated Hindu-Muslim differences to those within these communities themselves (" ... Punjabis, Shias, Sunnies and so on" and) and expressed the hope that "in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense ... but in the political sense as citizens of the State".

... A few months after his death, Prime Minister Liaquat Ali Khan moved the famous Objectives Resolution in the Constituent Assembly on 7 March, 1949. It envisaged a Pakistan in which "the Muslims shall be enabled to order their lives in the individual and collective spheres in accord with the teachings and requirements of Islam as set out in the Quran and the Sunnah" (Traditions of Prophet Muhammad). The retreat had begun.

Only his apologists would exonerate Jinnah of blame. Given the milieu and outlook for the times, a demand for a Muslim state lead inexorably to clamour for a Muslim state. Imperious men over-estimate their ability to mange the contradictions they create and have an engaging assurance of their immorality and infallibility ... Air Marshal Zafar Chaudhuri (said) Jung Magazine (10 July 1987), "the Pakistan ideology was invented after the birth of Pakistan".

The Constitution framed by the Constituent Assembly in 1956 set up the Islamic Republic of Pakistan. The Constitution which the modernist ... Bhutto was able to enact with national consensus in '973 declared in Article 2 that "Islam shall be the State religion of Pakistan". Two years later he turned on the Ahmadiyas ... in the name of Islam. On 2 March 1985 Zia went one better. he inserted a new Article 2A in the Constitution which declared the Objectives Resolution a "substantive part of the Constitution and shall have effect accordingly".

A distinguished German jurist, Dieter Conrad, an acknowledged authority on the constitutional laws of South Asia in an erudite paper on "Conflicting Legitimacies in Pakistan" ... pointed out the contradictions reflected in judicial rulings till as late as 1993. A modern federal Constitution based on a Bill of Rights, enforced by an independent judiciary, is studded with "Islamic Provisions" which make the task of the courts an unenviable one.

Makhdoom Ali Khan, one of Pakistan's leading lawyers and author of a commentary on its Constitution, said at a Seminar organised by the Human Rights Commission of Pakistan in January 1992 that "The rot didn't start with the 1973 Constitution. Nor did it start when we declared the Qadianis non-Muslims. It started when we demanded a State based on religion". Bhutto's successor, Zia, who usurped power through a military coup in July 1977, systematically used Islamisation to buttress his un-Islamic regime. In a press interview ... in June `1982, Zia had the gall to say "Muslims by nature - I know about Pakistani Muslims – demand authoritarian rule".

On 10 February 1979, Zia promulgated four Ordinances, referred to as the Hudood Ordinances. They were crafted to make significant revisions in Pakistan's criminal system avowedly to accord with Islamic precepts. Revisions were made in laws bearing on sex-related crimes and theft. Thus, Zia had amended the 1973 Constitution to confer on the High Courts power to strike down laws that "were repugnant to the injunctions of Islam as laid down in the Holy Quran and the Sunnah, of the Holy Prophet". In May 1980 this was replaced by the establishment of a parallel judiciary, the Federal Shariat Court. Its Judges did not enjoy security of tenure. Appeal against its decisions lay to the Supreme Court.

On 5 July 1988 the Shariat Appellate Bench of the Supreme Court struck down as void 40 Sections of the Penal Code. Having dismissed M.K. Junejo from the office of Prime Minister on 29 May 1988, Zia proceeded swiftly to promulgate on 15 June the Enforcement of Shariah Ordinance, it declared (Section 3) that "the Shariah shall be the supreme source of law in Pakistan and ground norm for making by the State and shall be enforced in the manner and as envisaged" in the Ordinance. The economy was to be Islamised and so was education. It was to be a prelude to the scrapping of the 1975 Constitution. Fate willed otherwise. On 17 August 1988 Zia was killed in an air crash. His successor Ghulam Ishaq Khan, promulgated the same Ordinance, with some revisions, on 15 October, 1988.

Earlier in 1986, Junejo government had sponsored the 9th Amendment to the Constitution which only Senate adopted. It declared the Shariah the supreme law of the land.

By now Islamisation was in full swing. Benazir Bhutto assumed office as Prime Minister in December 1988 ... She did not command a majority in the Senate which passed a Private Member's Enforcement of Shariah Bill of 1985, belatedly on May 1990 without any discussion or debate.

These Bills were subjected to a scathing critique in the respected Lahore daily "Nation" on 28 July 1990 by a former Justice Mohammad Yaqub Ali. He touched a core issue which far transcends legal moves for Islamisation. It concerns the revival of the faith by separating the lifeless from the vital, the ephemeral from the ending ...

Ghulam Ishaque Khan repeated the Zia ploy. He sacked  Benazir Bhutto as PM in 1990 and duly promulgated, on 6 September 1990, an Ordinance further to bring the criminal law in accord with the Shariah; as the Shariat Appellate Bench of the Supreme Court had directed. When in 1991 Nawaz Sharif became FM, he dumped the 1990 Bill, passed by the Senate to embarrass Benazir, and got the National Assembly to pass another Enforcement of Shariah Bill on 16 May 1991. It declared the Shariah to be "the supreme law of Pakistan", but within "the present political system". The Shariah was to be followed "if more than one interpretation (of the law) is possible". The Constitution was left untouched.

Meanwhile, the Federai Shariat Court had gone on a frolic of its own. it ruled against modern banking and struck down some progressive laws including one affecting employees' provident fund. In a country with a state religion, sovereignty vested, inescapably, in those who interpreted the Divine will.

Nawaz Sharif's 1998 Bill is far worse than this venture in 1991. It amends the Constitution by inserting a new Article 2B. In line with earlier Bills it declares the Quran and Sunnah to be "the supreme law of Pakistan". But it goes further in four respects. First, it obligates the Federal Government to enforce the Shariah to establish prayer and "to prescribe what is right and to forbid what is wrong" under the law. Interestingly, it also enjoins it "to eradicate corruption". Secondly, it empowers the government to "issue directives for the implementation" of these provisions, widely worded as they are. It can take "the necessary action against any State functionary for non-compliance of the said directives".  That includes Governors and Chief Ministers. Thirdly, Article 2B will have effect notwithstanding anything in the Constitution or judgment of the Court. Lastly, Parliament is empowered to amend the Constitution by a simple majority of those present and voting in order to remove "any impediment in the enforcement of any matter relating to Shariah and the injunctions of Islam".

Thus, the entire polity is turned upside down. The federal structure, the democratic parliamentary system, and the independent judiciary are all held to ransom ... In reading the Bill, the word "Government" should be replaced by the "Prime Minister". it is unlikely that he will get away with this monstrous Bill. The Law Minister, Khalid Anwar,  and of integrity, has made no secret of his disapproval.

That, however, is no reason for not examining the lure of the mirage of the Islamic State. Ironically, its foremost advocate was stoutly opposed to the establishment of Pakistan - Maulana Abul Ala Maududi. His book "Islamic Law and Constitution" (gives) a recipe for "theodemocracy", a form of theocracy. But what is the raison d'etre Islamic state? He holds: "The Quran not only lays down principles of morality and ethics, but also gives guidance in the political, social and economic fields. It prescribes punishment for certain crimes and enunciates principles of monetary and fiscal policy. These cannot be translated into practice unless there is a State to enforce them. And herein lies the necessity of an Islamic State.

It is intellectual blindness and moral bankruptcy ... that their concept of Islam has no relevance for Muslims in non- Muslim majority states. Islam to them is an instrument of state power, not a faith of enduring, universal relevance. Zia's concept of Islam was reflected in his Hudood Ordinances; Maududi's in his none too scrupulous politics.

... Fundamental Law of Pakistan (1958), a commentary on the 1956 Constitution, A.K. Brohi reiterated the view he had boldly expressed in 1952 in an article in Dawn - there is no such thing as an Islamic Constitution: "From the very nature of the case, Islam cannot be a "State Religion', for that would amount to narrowing its appeal and denying to it that universal character which is its decisive hall-mark. Besides, Islam is a religion of living human beings and cannot be extended to cover the cases of artificially created and contrived institutions like the State". In 1952, Brohi wrote: "Having regard to the accepted notion of what constitutional law is, it is not possible to derive from the text of the Quran any clear statement as to the actual content of constitution of any State".

But the most devastating refutation comes from Ibn Khaldun, acknowledged as one of the greatest historians of all time. "Some wrongly assume the Imamate to be the pillars of the faith. It is one of the general (public) interests. The people are delegated to take care of it. If it were one of the pillars of the faith, it would be something like prayer, and Muhammad would have appointed a representative, exactly as he appointed Abu Bakr to represent him at prayer".

Rummaging through ancient texts Pakistani advocates hit upon a work by a judge Abul Hasan Al-Mawardi who died in 1058. Entitled "Al-Ahkam as Sultaniyah" (Rule of Governance), it was subjected to devastating criticism by Prof. Qamaruddin Khan in a monograph entitled "Al-Mawardi's Theory of the State" published by Bazm-e-Iqbal Lahore. "The Quran has not defined any clear principle of state. The meaning and idea of the constitution, the clear conception of sovereignty, the principle of franchise, the detailed conception of human rights, and the regulations of state organisation are not given anywhere".

Al-Mawardi was ... not indifferent to the moods of men in power, readily took liberties which history and espoused the theory that a ruler can nominate his successor. Islam recognises the right to protest and also to rebellion. Its principles can form the corpus of liberation theology. The Quran repeatedly refers to oppression and the duty to resist it.

Truth

Prophet Muhammad said: "The highest form of jehad is to speak the truth in the face of an unjust ruler". He said also: "If any one of you cokes across an evil, he should try to stop it with his hand (using force); if he is not in a position to stop it with his hand, then he should try to stop it by means of his tongue (he should speak against it). If he is not even able to use his tongue, then he should at least condemn it in his heart. This is the weakest degree of faith.

Al-Mawardi played down the right to rebel. Prof. Qamaruddin Khan remarked, "Al-Mawardi's intention was not to expose the weakuess of the Abbasides but to hide it. It  may, however, be noted here that the idea of rebellion has always been most abhorrent to Muslim rulers throughout history, because after the regime of the Pious Caliphs, they have always denied the right of the people to participate in the affairs of the State".

But Muslim political thought for long remained "frozen  since the days of Al-Mawardi". Prof. Qamaruddin Khan's concluding remarks made decades ago are strikingly relevant. "even the recent upsurge of revivalism in the Muslim world has broken no ground. it goes on repeating the proposition of Al-Mawardi blindly. It has utterly failed to grasp the driving democratic force of ancient Islam. It has not realised in the least that the mission of the Holy Prophet Muhammad is for all climes and for all times.

The Quran and the Sunnah, therefore must be reinterpreted so as to solve the major problems of man in modern society. But to refuse to recognise these problems and to wish that the present-day world may direct its affairs according to dogmas and traditions which have no reality in fact and experience, is to expect too much of human forbearance".

This is as relevant for Muslims in India as for those in Pakistan ....                                              (Source: The Statesman, 5-6 October, 1998)