Islamic Studies (Islamabad) 5:2 (1966)

SOME REFLECTIONS ON ISLAM AND

CONSTITUTION-MAKING IN
PAKISTAN : 1947-56
MAHFUZUL H U Q

In the process of constitution-making in Pakistan, three serious

attempts had been made to formulate the principles of an Islamic
State. The Government of Pakistan appointed, on the recommenda-
tions of the Basic Principles Committee, the Board of Ta'limiit-i-
I s l ~ m i ~ ato
h l advise on Islamic matters. The 'UlamB', on their part,
took the initiative in calling a convention in Karachi between
January 2 1and 24, 1951 and made s x n e unanimous recommendations
on the fundamental principles of an Islamic States2 Thirty-one
'Ulama' representing all schools of Islamic thought in Pakistan
attended the convention. The third attempt was made by the
Jama'at-i-Islami.3 I t is important to note that the recornmendations
of the Board of Ta'limat-i-Isliimiyah were in general agreement with
the views held by the ' U l a m ~ 'and the Jamii'at-i-Islami. But these
recommendations created a great problem for the western-educated
League leaders who could neither accept them unaltered nor reject
them at the cost of alienating public support. Since the Board as
well as the 'Ulama' and the Jamasat advanced almost identical
arguments in support of their contentions, the present study will be
confined to a discussion of the views expressed by the Board on the
one hand and by the League leaders on the other.
In following the constitutional debates closely, one is struck
by the way the politicians quibbled with the issues and kept the
controversy alive for a long time. Interesting also is the fact that
real problems were scrupulously avoided and artificial issues were
over-emphasized by the politicians in order t o divert public attention.
The zeal with which the Islamic State issue was debated stands in
marked contrast with the absence of any serious attempt for socio-
economic reconstruction of the society. The debate reflected two
contrary currents ; one represented by the western-educated League
leaders and the other represented by the orthodox 'Ulams'. It was
a difficult task for both the groups to come to an agreed formula.
One leaned more to secular democracy than t o religious foundation
of the state, the other towards the golden days of the Caliphs. The

© Dr Muhammad Hamidullah Library, IIU, Islamabad. http://iri.iiu.edu.pk/

210 MAHFUZUL HUQ
conflict resulted in a great confusion in the attempt to define the
basic principles of an Islamic State. The problem was to frame a
constitution which would be as much Islamic as to please the 'Ulama'
and the religious-minded illiterate masses and also as much modern
and democratic as t o satisfy the westem-educated and the non-
Muslim.
Broadly speaking, the controversy over the nature of Islamic
State arose on four constitutional issues : (a) whether the headship
of the state should be reserved for a Muslim. (b) whether Islam
prefers parliamentary or presidential form of government. (c) how
and when Islamic Law should be introduced in the country and
(d) whether joint electorate is compatible with Islam.
There is no denying the fact that implicit in the demand for
Pakistan was an image of an independent Islamic State for the
Muslims of the subcontinent. Though the League leaders never
spelled out in clear terms what would be the nature and form of the
State of Pakistan. nevertheless, off and on, they made the assertion
that Pakistan would be a state where the Muslims will be in a
position to fashion their lives according to the teachings of Islam.
In a letter t o the Pir of Manki a a r i f , the Quaid-i-Azam wrote in
November. 1945 :
It is needless to emphasize that the Constituent Assembly
which would be predominantly Muslim in its composition
would be able to enact laws for the Muslims, not inconsistent
with the Shariat Laws and the Muslims will no longer be obliged
to abide by the un-Islamic laws4.
After the establishment of Pakistan, he reassured the people
that the constitution of Pakistan "will be a democratic type, embody-
ing the essential principles of Islam." But he was equally emphatic
in declaring that Pakistan would not be a theocracy "to be ruled by
priests with a divine mission." Because, he said, "We have many
non-Muslims, Hindus. Christians and Parsis, but they are all
Pakistanis. They will enjoy same rights and privileges as any other
citizens and will play their rightful part in the af€airs of Pakistan
(italics mine)."5Liaquat Ali Khan, the first Prime Minister, expressed
the same views in the Constituent Assembly while moving the
Objectives Resolution. H e reminded the members that "Pakistan
was founded because the Muslims of this subcontinent wanted to
build up their lives in accordance with the teachings and traditions
of Islarn."6 The Resolution marks the first attempt by the Pakistani
 ISLAM A N D CONSTITUTION-MAKING IN PAKISTAN 211

leaders to lay down the Islamic foundation of the state. One can
find in the Resolution a clear departure from the preambles of secular-
democratic constitutions of modern times. Almost all sections of
the Muslims hailed it but the Hindu minorities were unhappy.
The Objectives Resolution began as follows :
Whereas Sovereignty over the entire universe belongs to
God Almighty alone and the authority which H e has delegated
to the State of Pakistan through its people for being exercised
within the limit prescribed by Him is a sacred trust.'
This was criticized by the Hindu members on the ground that
in a democratic state the people are the ultimate sovereign and
their powers are unlimited : but this clause unnecessarily put a limit
to the sovereign powers of the people and also mixed religion with
politics.
The second clause, which was also opposed on similar grounds,
read :
Wherein the principles of democracy, freedom, equality,
tolerance and social justice. as enunciated by Islam, shall be
fully observed.
B. K. Dutta told the Assembly that the minorities would resent
it for generations because under the clause "as enunciated by Islam"
they were condemned for ever to an inferior status. It also prevented
Pakistan, he pointed out, for all the time to come, "from growing
up into a country of a well-knit homogeneous p e ~ p l e . " ~Dutta
expressed the fear that there might be many variations in the
interpretations of the Islamic provisions to the detriment of the
interests of minorities?
Some speakers from the Congress party wanted to amend the
"enabling clause" which provided that
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 Holy Qur'an and
the Sunnah.
This was opposed on the general ground that the state should
not undertake religious duties and that the provision aimed at
elevating Islam to the State-religion which would, in that case,
adversely affect the interests of other religious communities. The
minorities also demanded that similar provisions be made to enable
other religious communities to order their lives individually and
colIectively. according to their re1igions.l0
212 MAHFUZUL HUQ

The leader of the Congress party, Sris Chandra Chattopadhyaya,

pointed out that the Quaid-i-Azam's declaration of August 11, 1947
in the Assembly was a clear indication that Pakistan would be based
on the "eternal principles of equality and democracy" and that the
minorities considered that declaration as a guarantee against the
imposition of an Islamic state on them. On behalf of the Muslim
League and government. Sardar Abdur Rab Nishtar answered most
of the arguments put forward by the Hindu members. H e contended
that the criticisms emanated from a misunderstanding of the relevant
provisions by the Hindu members. Nishtar. dealing with the concept
of Divine Sovereignty, explained that firstly, it was a mere statement
of fact to say that Almighty is the Sovereign of the whole universe.
Secondly, it implied the principle of brotherhood of men all over
the world. He pointed out that the political sovereignty of the
people was not in any way limited by the provision. H e told the
House that much emphasis was placed on the terms like "the
people", "the right of the people", "the representatives of the
people", and "authority of the people" in the provisions of the
Objectives Resolution.ll
H e further contended that inclusion of the non-Muslims in the
II
enabling clause" would have been to their disadvantage. Because,
they would certainly not like the State-in fact, the majority
community -to interfere in their religions and regulate their religious
and cultural affairs.
In meeting the argument that the Objectives Resolution flouted
the assurances given t o the minorities by the Quaid-i-Azam, Nishtar
contended that the former had also given pledges t o the majority.
He claimed that demand for Pakistan was based on a particular
ideology and the Resolution was in accordance with the pledges
which both the League and the Quaid-i-Azam gave to the minority
as well as t o the majority.
These arguments and counter-arguments clearly reveal the
pattern of thinking of both the Hindu and Muslim communities in
Pakistan. Nevertheless, they fail to explain the real cause of appre-
hension in the minds of the minorities about an Islamic State. The
Objectives Resolution provided for equality of all citizens before
the law and freedom to profess and practise one's own religion and
develop one's own culture. It also guaranteed freedom of thought,
expression. worship and association. Hence, the real apprehension
was not due so much to the provisions of the resolution as to the
 prevailing opinion of one section of Muslim religious leaders who
did not see eye to eye with the western-educated Muslim intelli-
gentsia of the country and did not accept their interpretation of an
Islamic State.
A Congress member brought the matter to light when he
referred t o a schod of thought which, he pointed out. believed that
(1)Islam is not democratic, (2) non-Muslims are not entitled to any
voice in shaping the policy of the state and (3) non-Muslims can
live within the confines of the state only as "Zimmi [DhimmZ]".12
With the memory of massacre of minorities in both India and
Pakistan and because of the fact that religious groups had a strong
hold over the illiterate masses, the Hindu minority was apprehensive
of the future pattern of politics in the country if Islamic provisions
were to be interpreted by such a group. The Congress leader
concluded with despair that the resolution reflected neither the
views of the Quaid-i-Azam nor those of the Prime Minister but of
the 'Ulama' of the land. Posing a direct question t o Muslim
members, he asked whether a non-Muslim could be the head of the
administration of a Muslim state. The Prime Minister then assured
the minority members in a categorical statement that a non-Muslim
could hold such a position :
A non-Muslim can be the Head of the Administration under
a constitutional government with limited authority that is given
under the constitution of a state.13
Thus, the first opposition to the formulation of the future
constitution ended with an assurance from the Prime Minister and
the Muslim members that the establishment of an Islamic State in
Pakistan would be in no way detrimental to the interests of non-
Muslims and their enjoyment of equal civic rights. Since the
Objectives Resolution enunciated only the basic principles on which
the future constitution of the country would be based, the minority
members had no reason t o think that they had lost their battle for
equal rights.
The next phase of the controversy on Islamic State arose in
October 1953, when the second report of the Basic Principles
Committee came up for discussion in the Assembly. The Hindu
members were very critical of the Islamic provisions recommended
by the Committee. They strongly opposed the provision that the
Head of the State should be a Muslim. The Hindu members of
the committee and Begum Shah NaWaz (Muslim League) had
2i4 MAHFUZUL H U Q

already dissented on this provision. Now i t came under the heaviest

fire from the Opposition benches. I t was contended that the said
provision would lower the status of the non-Muslims t o second-
class citizens. I t was also argued14 that the provision was con-
tradictory to the fundamental rights already adopted by the
Assembly which provided that every duly qualified citizen was
eligible to appointment in the service of the state irrespective of
religion, race, caste, sex, descent and birth. In this connection B. C.
Nandy (Congress) reminded the Assembly of the assurance given
by Liaquat Ali Khan in 1949.
Nishtar in supporting this reservation contended that Pakistan
was an ideological state and the Head of such a State should be a
symbol of that ideology. But this argument failed to satisfy even
some of the Muslim members. They argued that since the same
objective could be achieved without this reservation, the provision
was unnecessary. In a country like Pakistan there was hardly any
chance that anyone other than a representative of the 86 per cent
of the population could be elected t o this position. To answer
these arguments, Nishtar said that there were certain functions
which the Head of the State had to perform, such as, leading Jum'ah
prayers, which a non-Muslim could not do.15 But i t may be pointed
out that none of the Heads of the State of Pakistan, including the
Quaid-i-Azam, ever played such a religious role.
There is hardly any doubt that these provisions were accepted on
the insistence of the Board of Ta'limat-i-Isl~miyah. Since the Board
consisted of the best available Islamic scholars of the subcontinent
and its recommendations represented the only consistent and
serious exposition of the basic principles of an Islamic State ever
made under the auspices of the Government of Pakistan, the
recommendations merit one's serious consideration. The Board
was appointed to advise on matters arising out of the Objectives
Resolution and on such matters (obviously relating t o Islamic
principles) as might be referred t o it by various sub-committees.
Reputed Islamic scholars like Mawlana Sayyid Sulaymiin Nadwi,
Mufti Muhammad Safi'. Prof. Abdul K&liq. Mufti Ja'far Husayn
(representing a i ' a h sect), Mawlana Muhammad Zafar Ahmad
Ansari and Dr. M. Hamidullah a t that time teaching at Sorbonne
and the author of Muslim Conduct o f State, were members of the
Board. Mawlana S a b b i r Ahmad 'Uthmiini and Mawlana Akram
Khan were already on the Basic Principles Committee as members.
 ISLAM AND CONSTITUTION-MAKING I N PAKISTAN 215

The Board had prolonged discussions on the qualifications of

the Head of an Islamic State. It was of the view that since an
Islamic State is an ideological state, it must be headed by such a
person who believes in, and conforms to, the fundamental principles
underlying that particular ideology. The Board argued that
It would look patently absurd if someone were to suggest
that the key posts of a Soviet should be open to those who
repudiate the very fundamental principles underlying that
ideology.'6
The Board further stated that the Head of the State must be
not only a Muslim but also a male and a man of erudite, learning
and virtuous in the terms of the SarS'ah.
Mawlanz a a b b i r Ahmad 'Uthmani, whose views were highly
valued by all sections of people. expressed the same opinion regard-
ing the headship of an Islamic State. During the discussion of the
Objectives Resolution he said :
The Islamic State means a state which is run on the exalted
and excellent principles of Islam. It is evident that a state
which is founded on some principles, be it religious or secular
(like the U.S.S.R.), can be run only by those who believe in
those principles. The services of such persons as do not sub-
scribe to those ideas may be utilized in the administrative
machinery of the state but they cannot be entrusted with the
responsibility of framing the general policy of the state or
dealing with matters vital to its safety and integrity."
This has since been considered as a fundamental principle of an
Islamic State. In both the Constitutions of 1956 and 1962,the
presidency has been reserved for a Muslim, a provision opposed
only by the Hindus and 'Awami Leaguers. The Convention of the
'Ulama' held in January, 1951 in Karachi also demanded the
reservation of presidency for a learned and pious Muslim.18 The
rightist groups not only appreciated this provision but the Jamgsat-i-
.
I s l h i went a step further to declare, " . . those who have no faith
in Islam are neither themselves eligible for the offices of the Chief
Executive or the membership of the parliament. nor is it in any
way reasonable for them to have any vote in the election for these
offices."19
Whatever may be the qualifications prescribed by Islam for the
Head of the State, the protagonists failed to evolve an effective
method which could guarantee the election of a pious and learned
216 MAHFUZUL HUQ

Head of the State. Moreover, it could be argued that any such

reservation in favour of the Muslims could be held incompati-
able with another provision of the constitution which guaranteed
every citizen fundamental rights, including "equality of status and
opportunity", 'Lequality before law" and above all, "political
justice.''
The next important matter on which the Board gave serious
thought was whether an Islamic State should have a parliamentary
or presidential form of government. In supporting presidential
system it mentioned that
Throughout the thirteen and a half centuries' long history
of Islam it has always been an individual and not a group of
persons who has held the reins of ultimate authority and has
been considered as accountable before the Millat and such
individual has always enjoyed effective power.20
However, the Board also opined that parliamentary system, as
such, may not be un-Islamic if "some inevitable circumstances
affecting the Millat necessitate the adoption" of such a system. But
since it is the principle of Islam that w h e v e r wields ultimate
authority must be a Muslim possessing the qualifications prescribed
for the Head of the State, under a parliamentary system the whole
body of men, without a single exception, who wield such power
16
must necessarily be Muslims" possessing the same qualifications as
those of the Head of the State.2l In other words. the President,
members of the cabinet and assemblies should all be learned and
pious Muslims if the form of government were t a be parliamentary.
The lawyer-politicians of Pakistan who did not hesitate to
accept the reservatim of presidency for a Muslim did, however,
ignore those recommendations of the B x r d which went to their
disadvantage. The Board was of the opinion that
The Head of an Islamic State is as much bound by the
Law of the country as any ordinary citizen, and any aggrieved
person has, or his heirs have, a right to seek redress from the
court against any wrong done to him by the Head of the State
in his personal capacity.
This is in conformity with the tradition and history of Islam, but
this was rejected in favour of the modem practice that the Head
of the State is immune from the jurisdiction of courts.
I t is doubtful whether the framers of the constitution were
sincere even in providing the above reservation. This provision lost
 ISLAM AND CONSTITUTION-MAKING IN PAKISTAN 217
much of its significance after the inclusion of Art. 36 (1) in the
1956 constitution which provided that in case of absence or illness
of the President, the Speaker of the National Assembly shall act as
the President. Since the speakership was under the constitution,
open to all communities this provision went totally against the spirit
and principle which the Board wanted to uphold.
Secondly, the Board wanted to reserve the post of the Head of
the State for a Muslim with a view to making him the real head
and not a titular one. But in the constitution of 1956 the ultimate
executive power lay with the Prime Minister and his Cabinet who
could be non-Muslims. In their zeal to convince the non-Muslims
that the reservation of presidency for a MusIim would not be
detrimental to their interests and that similar provisions exist in
other constitutions, a former Law Minister, Mr. A. K. Brohi, said :
It is a mistake to call him the Head of the State. H e is there
for niim ke wiiste. H e is there for ceremonial purposes. . ..
His position is that of a figurehead, as much and as little as
that of the King of England. H e has no power at
This exposes the motives of the politicians who were out t o satisfy
all groups and communities simuItaneousIy without caring for
consistency and in utter violation of the Islamic principles which
they pretended to uphold. They also rejected the Board's re-
commendations that the salary of the Head of the State should "in
no case exceed 40 times the emoluments of the lowest paid
government servant," and that in his oath he should "undertake t o
live up to the precepts of Islam both in his private as well as pubIic
affairs, and work whole-heartedly for the glory of Islam."23
Another important Islamic provision of the constitution was
that "no law shall be enacted which is repugnant to the injunction
of Islam as laid down in the Holy Q u r ' h and Sunnah" and that
"existing law shall be brought into conformity with such injunc-
tions." But the implementation of these provisions were put off
for at least six t o seven years, if not more. What is more, by
empowering the Assembly t o decide the Islamic character of the
laws, non-Muslims were given the charge of guarding the Islamic
basis of the state-a task which was earlier denied t o a non-Muslim
President. Nor could the leaders agree with the Board that the
final decision on the Islamic character of the Laws should be left t o
an 'UlamZ Board. T o the politicians, this suggestion smacked of
theocracy which they would never accept. The problem before
218 MAHFUZUL HUQ

them was to reconcile Islam with democracy and in trying t o do so

they incorporated ineffective Islamic provisions in the constitution.
One more political problem was mixed up with Islam. The
entire nation was engaged in a ceaseless debate whether joint or
separate electorates were Islamic. The Jams'at-i-Isl~mi, the Nizam-
i-Islam and the Muslim League opposed joint electorates (with
general territorial constituencies) on the ground that "it is a gross
and flagrant violation of the principles of Islam" and will "weaken
the Islamic consciousness of the millat and will inject alien ideas
into the minds of the rising generation.OZ4 The Hindu minorities.
on the other hand, demanded joint electorates and stated that
II
under separate electorates, the minorities will live under a perma-
nent sense of insecurity and inferiority as they will feel that they
live on sufferance."z5 In the East Bengal Minority Conference held
at Comilla in March, 1952 it was resolved that "separate representa-
tion on communal basis is anti-nation and antithesis of democracy
which is the essence of freedom."z6
W e find it difficult to accept the proposition that the Hindus
should not be trusted to vote together with the Muslims in the
lowest constituency when they were allowed to decide the Islamic
character of laws. to elect the Muslim President of the State, to
occupy the positions of the Prime Minister, the Speaker and even
the temporary President. If the Hindu participation in all these
important decision-making processes did not alter the Islamic fabric
of the state then, one wonders, how 12.9% h d u s (according t o
1951 census) could undermine the state only by voting together
with the Muslims.
The comparison between the U.S.S.R. and Pakistan as
ideological states is also fallacious. It is true that in the U.S.S.R.
none who does not subscribe to the ideology of the state is allowed
t o occupy any position. But the acceptance and rejection of
communist ideology is not conditioned by one's accidental birth as
in the case of Muslims and Hindus. The analogy is untenable also
because of the fact that Islam is spiritual and a matter of faith,
whereas communism is material, of human origin and is open to any
change decided upon by its adherents. Despite the scope of Ijmiiq
and Ijtihad in Islam, there is a prescribed limit which the Muslims
cannot overstep. In an Islamic State it is the Divine Law which is
the ultimate sovereign but in a communist country there is no
Divine limit on popular sovereignty.
 The most important aspect of the problem which waslost
sight of is that an ideological state cannot be established on mere
constitutional provisions. Suitable and appropriate socio-economic
conditions should be brought about for the establishment of an
ideological state. Unless the whole socio-economic fabric of the
state is reshaped to nourish and sustain the ideology, there is little
chance that it will take root in the political sphere. For this,
conscious and sustained efforts need to be made and a party
dedicated to the same objective is essential. In the absence of these
pre-requisites, n o ideology can find expression in the political or
social life of a nation.
In Pakistan, unfortunately, attempts were improperly directed.
Overemphasis on the theoretical basis of an Islamic State diverted
public attention from the practical implementation of the socio-
economic programmes of Islam. And in the absence of any concrete
improvement in the economic condition of the people and in the
face of moral degradation of the public leaders and their failure to
practise what they preached, the idea of an Islamic State remained
a political slogan. It was Islamic social justice based on both
political and economic equality and freedom of conscience that had
ushered a revolutionary change in early Muslim history. What the
Pakistani lawyer-politicians vainly and inconsistently tried was to
establish a theoretical foundation of an Islamic polity, but they
failed to translate the moral and economic principles of Islam into
action. There is much truth in an observation that the Munir
Report made :
(The Musalman) finds himself in a state of helplessness,
waiting for someone to come and help him out of this morass
of uncertainty and confusion. And he will go on waiting like
this without anything happening. Nothing but a bold re-
orientation of Islam to separate the vital from the lifeless can
preserve it as a world-idea and convert the Musalman into a
citizen of the present and the future world from the archaic
...
incongruity that he is today ."27
 NOTES
1. For the views of the Board of Ta'limHt-i-IslHmiyah. see Leonard Bindei.
Religion and Politics i n Pakistan, Berkeley. 1961.383-429.
2. Abul A'la Mawdiidi, Islamic Law and Constitution, Karachi. 1955, 355-959.
3. Ibid.
4. Quoted in the Constituent Assembly of Pakistan (hereafter C.A.P.) Debates
vol. V. (March 9,1949). p. 46.
5. Jamil-ud-Din Ahmad (ed.). Speeches and Writings of Jinnah, Lahore. 1964.
I1 : 463.
6. C.A.P. Debates, vol. V (March 7. 1949). p. 2.
7. For full text of the Objectives Resolution. see C.A.P. Debates, vol. V.
(March 7. 1949). pp. 1-2.
8. Ibid., vol. V , (March 9. 1949), p. 27.
9. Ibid.
10. P. H. Barman. in ibid.. p. 31.
11. For full text of Nishtar's speech see ibid., vol. V, (March 10. 1949).
pp. 55-6.
12. Ibid.. vol. V. (March 8. 1949). pp. 22-3. K. K. Dutta was referring to the
Jama'at-i-IslBmi.
13. Ibid.. vol. V . (March 12. 1949), p. 93.
14. Ibid.. p. 95.
15. Ibid.. vol. XV. (October 13. 1953). p. 127.
16. Ibid.. vol. X V . (October 26,1953).pp. 472-73.
17. Leonard Binder. op. cit.. 385.
18. C. A.P. Debates, vol. 11, (March 9. 1949).pp. 57-8.
19. Abul A'lB Mawdiidi. op. cit.. 355-59.
20. Abul A'la Mawdtidi, quoted by Syed Hassan Mahmud, A Nation i s Born.
Lahore. 1958,86.
21. Leonard Binder. op, cit., 427-28.
22. Ibid.. 429.
23. C. A. P. Debates. vol. XV. (October 23.1953). p. 369.
24. Abul A.12 Mawdtidi. W h i t e Paper on the Electorate Issue. Karachi. n.d.. 10-11.
25. Pakistan, Report o f the Committee on Fundamental Rights o f Citizensof Pakistan
and on Matters Relating to Minorities. Karachi. 1953. 6.
26. Quoted in C.A.P. Debates, vol. XV. (October 14. 1953). p. 173.
27. The Report of the Court of Inquiry. Punjab Disturbances o f 1953. Lahore,
1954.232.