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Accountability, Parliament, and Ijtihad

By:
S. M. Zafar
Document type:
Articles and Essays

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    Accountability, Parliament, and Ijtihad

    S. M. Zafar

    Commentary

    Pakistan was created in 1947 as a Muslim homeland for South Asians, but its founders disagreed whether the new nation should be organized democratically or theocratically, with secular government or Islamic government, Western civil laws or Islamic shari‘a law. 1 Leonard Binder, Religion and Politics in Pakistan (Berkeley: University of California Press, 1963); Mumtaz Ahmad, “Pakistan,” in John L. Esposito, editor, The Oxford Encyclopedia of the Modern Islamic World (New York: Oxford University Press, 1995), volume 3, pp. 289–293. The debate over these issues was initially settled in favor of the secularists, but the succeeding decades did not dampen the controversy. By 1980, when the following selection was published, the secularist position was largely out of favor, and the military regime was set to impose shari‘a law—hence the importance of this work by S. M. Zafar (Pakistan, born 1930). As secretary-general of the defunct Muslim League (Pagara Group), Zafar enjoyed Islamic credentials; as a lawyer and head of the Pakistan Human Rights Organization, Zafar was keenly interested in ensuring the rule of civil law. Zafar argues in this excerpt that an elected parliament is both grounded in Islamic precedent and necessary for holding the government accountable in the modern world. 2 Ishtiaq Ahmed, The Concept of an Islamic State: An Analysis of the Ideological Controversy in Pakistan (London: Frances Pinter, 1987), pp. 36, 150–162.

    In the title of this chapter I have combined three topics because there is a very close and deep relation between the three. In Islamic teachings, distinction is commonly made between matters of religion (‘ibadat) and worldly matters (mu‘amalat).

    “Religious matters” connote the relation between humankind and God, and “worldly matters” connote the relation between humans and [other humans]. Religious matters are generally bilateral; as an analogy, the shortest distance between two points is a straight line. Thus religion brings humankind closer to God. Through religion, humans realize the existence of the authority of God.

    In Islam, the details and shape of religious matters are determined. If they are presented properly with complete morals, then it is to be hoped that in society, there will be a majority of people who will be familiar with God's divinity and authority, and it is hoped that this sort of people, to please God, will try to fulfill His every command.

    With respect to religion, the responsibility of the government is to manage and arrange its institutions related to religious matters, that is, the mosques, Halal Consideration Committee [to evaluate permissible Islamic practices], hajj [pilgrimage] policy, the respect of Ramadan [the month of dawn-to-dusk fasting], and so on. But if the government doesn’t do even this much, then all persons must still perform their religious duties. And we all know that several respected scholars, even while living in non-Muslim communities, still fulfilled their religious duties. And they reached a high level of spiritual attainment.

    But worldly matters are different from religious matters. This is not a bilateral relationship. Rather, on one side, it is a relation among people, and on the other side, it includes the authority of the rules determined by God. In worldly matters, a person's responsibility is not as it is in religion. Rather, on the contrary, in worldly matters, responsibility often falls on more than one person, or on a group. In other words, this relation isn’t represented as one line, but rather as a triangle, rectangle, or other various geometric figures. With respect to the laws pertaining to worldly matters, Islam in some places gives full details, and in other places describes them only in brief. And for the application of these laws according to a specific situation, the necessity [of knowing] the specific details always arises. And when the situation itself changes, then of course the specifics of the situation also change. That is, just as when dots are put in various places, new triangles, rectangles, polygons are continually formed, so worldly matters can be construed in multiple forms.

    However, one single thing must definitely be remembered: that with respect to worldly matters, one dot is fixed: the commands of God, described in the form of a law.

    By way of example, take one small business regulation. There is a command that one must give the correct measurement of goods being sold. This rule has taken on the form of a triangle. Now if goods-sellers don’t give the correct measurement then they act against God's command, and they earn God's displeasure. They are responsible on the Day of Judgment. But the issue doesn’t end here. The rule is not enforced in action. Goods-buyers are also involved in this matter, and it is their right to receive the correct amount of goods. Even though sellers are answerable to God, [the buyers] don’t receive any benefits, and therefore, they have the right to ask in return that the existing God-given government authority should assist them in this matter, and this government should save them from the person who sells them short. And when the government, having acknowledged their rights, makes a law which can save buyers from dishonest sellers, or can punish them, then the triangle becomes complete. Otherwise, a gap is left.

    Let's extend this example and see that if the government announces that the weights for measuring goods will be issued with the government's official stamp, then instead of three, four dots appear on the field. The goods buyer, the seller, the government official who issues the correctly calibrated, government stamped weights, and then this command [of God] that goods must be weighed properly. If these dots are connected to one another, then instead of a triangle, then a square or rectangle is formed. At this time, with respect to the government official who is appointed to work on the weights, the law must be made that at the time of the issuance of the weights, [the official] shouldn’t do anyone a favor or shortchange anybody. For example, the Electricity Act is a law under which the people who connect electrical meters must follow the special instructions issued, and those who don’t follow this are criminal.

    We will now extend this example even further. If the government announces that [the business of] manufacturing the weights and stamping them shall be given to a particular company, and the weights issued by this company will be provided by government workers and officials to the shop owners, then a new point appears. Now if we connect all of these dots together, then this time a pentagon is formed. And there will be a separate law made regarding this company. Thus we see that just as new details come before us, it is necessary to make new laws.

    These laws are not given in the Qur'an or in hadith [traditions of the Prophet], nor could they be given. Then who will make them? One lone ministry of law itself cannot make so many regulations relating to society's hundreds and thousands of divisions. And no matter how wise and devout an emperor or sultan is, he can’t keep an eye on all aspects of society. For this work, such an institution is necessary whose members have some connection with worldly matters and in which, after thorough debate, the process of making laws is established—not only so that in this institution every point of view and every school of thought and ideas has the opportunity to be completely and freely expressed, but also so that if the majority within this institution cannot make just laws, then the public can hold this institution accountable, and having removed its members, can install new members in their place. Parliament is the only such institution which can fulfill the above conditions, necessities and demands.

    In all of Pakistan's constitutions, legislative work has been handed over to the Assembly or Parliament. In the present 1973 Constitution too, this capacity has been given to Parliament alone. Moreover, this Constitution was made by a Constitutional Assembly, which was a truly representative institution. When Governor-General Malik Ghulam Muhammad dissolved the Constitutional Assembly in 1954, then a decision of the Supreme Court compelled him to establish a new Constitutional Assembly. Therefore the new Constitutional Assembly was elected and in 1955 it made a Constitution. Likewise, the 1973 Constitution was also made by an officially elected Assembly and was ratified.

    Now [we shall] study the various clauses of this constitution. Among them most are such that in order to categorize them, one cannot refer to Qur'an or hadith. For example, in the 1956 Constitution, the federal structure that was created and the way balance was brought about between East and West Pakistan was the result of the particular conditions of Pakistan. To seek precedent for this from the time of the [first] four caliphs or to seek justification in the Qur'an and hadith is useless and impossible. Moreover, we cannot find any precedent in the history of Islam for making rules related to the way the budget should be presented in Parliament, which issues can be debated but not voted upon, if the budget cannot be ratified what effect would this have on the government, and all of the other items and articles [in the Constitution] designed to control the government's right to impose taxes and bring into debate its wrong policies.

    The rule that the government can impose a tax on the people only after having had the [tax] law ratified in the representative assembly of the people was accepted 200 years ago and now it has been proven that without representation whatever revenue the government collects would not be a tax, but rather a penalty or fine.

    In Pakistan, where there are several reasons for the bad tradition of avoiding taxes, there is also another reason: that Pakistan most of the time has not had a representative government. With respect to zakat [religiously mandated contributions], the question arises whether the government itself can collect zakat from the public or not. On this point, Islamic scholars have different opinions.

    In our opinion, however, money like zakat also cannot be collected from the people and its correct expenditure cannot be made until the people's representative assembly approves the corresponding law. And for every revenue that a government must collect from any person because the government wants to spend it for a particular collective purpose, that person has the right to hold the government accountable. Once Hazrat [his excellency] ‘Umar Farooq [‘Umar ibn al-Khattab, second caliph, 634–644] was asked how his garment was made so long when the fabric he had obtained in the spoils of war were insufficient. Hazrat ‘Umar Farooq answered that he had his garment made by adding his son's share. And because of this answer, the questioner had his objection satisfied.

    But today, in a country which has a population of more than 70 million, how many questions can every citizen who enters the mosque ask of the responsible person [at the mosque], when that citizen won’t know the answer to 99 percent of the questions and will have in turn to ask the secretary of the relevant department, who will not be praying at the mosque. To solve this problem, the present Assembly is arranged so as to reserve a one-week period to answer such questions, during which time the people can call the government and its employees to account. In that period, a detailed system of asking questions is determined, [taking into account] which question is connected with which day and with which department. And permission is also given during this period to ask further questions about previous questions.

    In the laws of Islam, the most prominent is the law of accountability. No [school of] Islamic jurisprudence denies that Muslim government is liable to accountability and impeachment. All government agents, judges, and civil servants are accountable for their own actions. [There is the] concept of the Day of Judgment, according to which all people will have to give a complete account of all of their good and bad actions. Its application is not only to religious matters, but to worldly matters as well, and due to the immediacy of worldly matters, this rule also applies to the government.

    The Prophet, peace be upon him, says, “Watch out, among you every person is a leader and every person is responsible for their own people, and the greatest leader of the Muslims, who governs all, is also answerable to the people.” And Hazrat ‘Umar says, “If even one goat's kid is lost on the banks of the Euphrates River, then I am afraid that God will question me about it.” Not only God will question us, but as has been said before, worldly matters are not only between God and people, and [the questioning] must be thorough between people and people also. Consequently, the people should also question the government; parliament is the best means for this, and the thorough interrogation of the government can only be done by a representative assembly.

    In addition to the necessity of making general rules and being accountable, there is a very clear necessity of an Assembly in matters of ijtihad [Islamic interpretation]. First of all, we don’t accept that the gate of ijtihad is closed forever. Who closed it? Why was it closed? And how long will it remain closed? These are the kind of questions for which history doesn’t have any clear answer. If the purpose of ijtihad is the application of wisdom and learning, then to say that ijtihad is no more, is a negation of Islam. Admittedly, we understand that in the name of ijtihad permission cannot be given for changing Islam's teachings and its rules. This is the reason that at the end of the 8th century hijri [late fourteenth century A.D.] and especially at the beginning of the 9th century hijri [early fifteenth century A.D.], Islamic theoreticians became worried that an attempt was being made to change the basic worldly matters of Islam through ijtihad and that this should be stopped somehow. To preserve the community from this kind of ijtihad, these Islamic theoreticians curtailed even their own rights, and prevented themselves and others from practicing ijtihad. Moreover, that time was a period of decline in Islamic history. Therefore, for the benefit of the community, the consensus was reached that ijtihad should be left alone for the time being. But it is true that this attempt is in no way synonymous with permanently closing the gate of ijtihad. Now this is a period of Islamic revival, and it is very necessary that attention should be given to ijtihad. In this connection, we all know about the contribution from ‘Allama [Muhammad] Iqbal [Indian philosopher, 1877–1938; see chapter 27]. He called the decision of the Turkish Assembly ijtihad and he himself participated in ijtihad [to decide] that the burden of the caliphate could be shouldered by a single assembly.

    We admit that the conditions of ijtihad are very severe and that Islamic jurisprudence makes it very difficult. The conditions that religious scholars have established for ijtihad are as follows:

    1. In addition to the knowledge of Qur'an, a person should be familiar with literature also. He should have complete knowledge of the text of the Qur'an; he should know when every verse was revealed and what the circumstances of its revelation were; he should be well acquainted with the literal meaning of every word in the Qur'an; and besides this, he should know what connotations are hidden within these words.

    2. He should have memorized the entire Qur'an.

    3. He should have complete mastery of the science of hadith and command of at least 3000 major hadiths.

    4. He must be very devout and pious.

    5. He must be completely familiar with the science of Islamic jurisprudence (that is, with all five branches of fiqh).

    In addition to these conditions, Imam [Abu Hamid Muhammad] Ghazzali [1058–1111] and Imam [Fakhr al-Din] Razi [1149–1209] placed strongest emphasis on the intellectual ability of those who practice ijtihad. Of course, in fulfilling the aforementioned conditions, their knowledge increases. Thus it is clear that the conditions of ijtihad are very difficult.

    Today, for any citizen to fulfill these conditions is especially difficult, because now, in addition to the aforementioned knowledge, it is also important that the person who practices ijtihad should be familiar with the needs of the current period, and he should know the rules of economics and be familiar with the rules of atomic energy. In addition, he should have complete mastery over problems of sociology and psychology.

    These days, one cannot find people who can retain an encyclopedic range of knowledge in their memories. In fact, in every field of knowledge, so much advancement has occurred that it is completely impossible for one person, spending his entire life acquiring knowledge of Qur'an and hadith, to be able to obtain familiarity with and knowledge of other fields. Likewise, the scientist, doctor, or economist is busy in his own field, obtaining mastery and knowledge. Will that person be able to achieve sufficient status in the knowledge of Qur'an and hadith which would give him the right to perform ijtihad? Under these conditions, if there is no institution in which all fields can be combined, then Muslim society will have to survive on guesswork for new laws. But the answers to all of the questions raised by the needs of the present period cannot be answered through guesswork. Therefore, only an Assembly where the religious scholars sit down with the other representatives of the public and hold thorough debate on every issue can make the laws.

    Ziauddin Sardar, a research scholar at Shah ‘Abdul ‘Aziz University in Jiddah [Saudi Arabia], wrote a book entitled The Future of Muslim Civilization 3 [English-language edition published in 1987 in London by Mansell.—Editor] ; in this book, he has made a very important point on the subject of ijtihad. “I reached the conclusion that ijtihad on an individual basis is impossible. However, if the work of ijtihad is handed over to an institution in which there is the opportunity to bring together all fields of knowledge, then ijtihad will be possible and easy.”

    This is the only reason that the Islamic scholars of Pakistan have supported a parliamentary system. In 1950 and 1951 the religious scholars [‘ulama’] of Pakistan collectively supported the [proposal] that the elected assembly be allowed to pass legislation. When Pakistan's draft constitution was being prepared in 1955, the whole ‘ulama’ of Pakistan analyzed [the constitution] on only one point: whether anything in it was against Islam. They presented some recommendations, including one that national elections should be held very soon. However, nobody from that institution rejected the Assembly as a lawmaking body. Likewise, in the popular revolution of 1977, the political parties in favor of a religious approach took part vigorously and strongly pushed for elections. Thus it is correct to say that the people of Pakistan and the ‘ulama’ think alike that through election, permanent institutions should be established; that the national government should also be established through elections; that if somehow the government becomes less acceptable, then it can be removed and a new government should be elected.

    Quaid-i-Azam [Great Leader] Muhammad Ali Jinnah [1876–1948, the founder of Pakistan] thought differently. Instead, he wanted to make Pakistan a modern democratic state [as distinct from an Islamic state]. Now in Pakistan, in the name of Islam, this experiment is under way, and for this reason it is important that we should decide about the government system with complete faith and security, so there won’t be any lack of practical support.

    In Pakistan, democracy has not failed. Rather, since the desire for democracy is now in [the people's] hearts and minds, we can conclude that the powers who oppose democracy and want to stop its progress have failed. But in this situation, we again are standing at the crossroads of democracy and monarchy.

    The sort of temperaments that have an inclination toward dictatorship consider parliament their rival and generally view a parliament that has a certain degree of autonomy troublesome for them. [Adolf] Hitler [German Nazi leader, 1889–1945] called parliament a club of idle dreamers. [Benito] Mussolini [Italian fascist leader, 1883–1945] thought of parliament as nothing more than a forum for his own speeches. In Pakistan too, political tensions, quarrels, and disputes have continued to arise regarding the authority of the president and prime minister vis-àvis the Assembly. It was due to these quarrels that [Pakistani Governor-General] Malik Ghulam Muhammad [1895–1956] dissolved the Constitutional Assembly [in 1954] when a legal document was introduced into this Assembly weakening the powers of the president.

    In the 1973 Constitution, there was a specific clause added to the law which weakened the authority of the Assembly and increased the authority of the prime minister, making the latter very powerful. Thus it is clear that parliament plays an important role in limiting the increase in the powers of the current ruler and making him adhere to one [system of] law and keeping the president and prime minister within decided limits. How can this institution be rejected on the grounds that it is un-Islamic? In short, to call un-Islamic the institution which provides a means of accountability and a means of collective ijtihad and which can stand in the way of dictatorship is very unjust to Islam and presents Islam incorrectly. The result of this line of reasoning is that Muslims are frightened of accountability and avoid ijtihad, and Muslims think that a kingdom, monarchy, and even dictatorship are valid styles of Islamic government, even though they are not.

    On the contrary, accountability, ijtihad, and democracy are Islam's true foundation, by means of which Islam establishes a just and equitable society. And as long as the human intellect cannot create any institution better than parliament, there should be no problem in adopting this institution. Moreover, as the great Andalusian Muslim scholar Abu Ishaq Shatibi [died 1388] said, once we distinguish between religious matters (‘ibadat) and local custom (‘adat), every society should adopt only those religious practices which are determined solely by Islam. As for worldly matters, which fall under the category of ‘adat, there is a concession that traditional ways and customs can be adopted on the condition that they should not conflict with the rules of Islam.

    We think that parliament is a logical necessity and mandatory for accountability and ijtihad. There is no substitute for this institution in the contemporary era. If we don’t adopt it, there are only two prospects before us. One is this, that as under the communist system, ultimate permanent power will be given to a political party like the Communist Party, and this would be the only party or group in the nation which is responsible for writing the Constitution and laws and applying them. In this situation, no matter what decision the leaders make, obedience becomes compulsory, and freedom of thought and of ideas disappears.

    The second prospect is that a single ‘ulama’ council is set up which can perform the work of legislation, relying for the most part on conjecture and occasionally resorting to ijtihad. But this is an extremely dangerous prospect, because in such a situation lie the origins of popishness. Furthermore, [grounds for] confrontation between the people and the ‘ulama’ are generated. ‘Allama Iqbal was strongly opposed to this proposal and he wrote that to give special authority to one group of the ‘ulama’ is a grave error. Instead, Hazrat ‘Allama [Iqbal] presented the counter-proposal that the ‘ulama’ should be in Parliament as representatives of the people, so long as laws are made in an Assembly where the debate allows total freedom of opinion.

    Thus the best and most perfect way is this: the ‘ulama’ should retain its connection with the people, and [its members] should be sufficiently popular on the strength of their knowledge and wisdom and the power of their character and nature, that they will be voted into the elected Assembly.

    Notes:

    1. Leonard Binder, Religion and Politics in Pakistan (Berkeley: University of California Press, 1963); Mumtaz Ahmad, “Pakistan,” in John L. Esposito, editor, The Oxford Encyclopedia of the Modern Islamic World (New York: Oxford University Press, 1995), volume 3, pp. 289–293.

    3. [English-language edition published in 1987 in London by Mansell.—Editor]

    2. Ishtiaq Ahmed, The Concept of an Islamic State: An Analysis of the Ideological Controversy in Pakistan (London: Frances Pinter, 1987), pp. 36, 150–162.

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