[Islam-Online- Politics]

To suggest that, in part or in whole, the solution to the problem of ethnic conflict should be sought in constitutionalism means presupposing that modern state institutions and the requirements of democracy require these to be situated within a system of law that is consistent with the society's traditions, norms, and practices. It may be objected that what is traditional, especially in non-European developing societies, does not lend itself to the idea associated with constitutional and democratic governments as found in developed societies of Western Europe and North America. While this objection may seem sound, a closer and more detailed examination will show that the practice of democracy can only be successful and sustainable in a society if it is consistent with the fundamental normative value of that society. It is beyond the scope of this paper, however, to deal with this subject at length. I simply state this proposition here to make the point that the idea of constitutionalism must be integrated in the study of developing societies in order to rediscover how it contributes to a conciliatory process of political participation and pluralism in a society that might fragment along ethnic lines.
In the writings of Carl Friedrich, constitutionalism as the major theme of political science found its widest and most useful expression. His major text defined one aspect of constitutionalism simply as "a refinement of ordinary government.18 The notion of refinement meant limiting the authority of those in power, or in control of the state, in favor of an individual's right to security of person and property. The process of refining ordinary government is, as he discussed at length, an evolutionary and a historical process. What is interesting and useful in his discussion for our purpose is the close connection he traced between the idea and development of constitutionalism in the West and Christianity.
Friedrich viewed the idea of constitutionalism as having universal validity. He recognized, consequently, the contradiction in his assertion that "modern constitutionalism is part of Christian culture.19 He explained, for instance in Transcendent Justice,20 that in pointing out the "cultural and ideational context of constitutionalism," he was showing how the evolution of Western constitutionalism was rooted in its religiocultural history without denying the universal validity of constitutionalism as a political idea. On the contrary, Friedrich's work hints at the problem of extending the experience of Western constitutionalism outside the West to non-European cultures. In other words, it may be restated without harming his argument that the practice of Western constitutionalism is not readily exportable, or, even if it is, that it must be asked whether such an export is desirable when the task for non-European societies is to work out the principles of constitutional authority within the context of their own culture.
The constitution, in the theory and practice of modern government, is the fundamental law of a state and is superior to all other institutions it creates. It is, as Wheare commented, "prior in time to the legislature, but even if it is not, it is logically prior.21 In its functional aspect, as Friedrich described, it legitimates authority even as it restricts the powers of that authority, be it executive or legislative.22 But a constitution is not merely a dry text describing the mechanics of government, of power sharing, and the rules of conflict settlement: It represents most importantly a society's core or center in the sense that Shils spoke about all societies possessing a core.23 And this aspect of a constitution being a society's core means that it reflects that society's essential values. In particular, it assumes those values that are religious and transcendent as the basis of the political order that will assure good government. It is only good government, as moral philosphers have claimed, that ultimately can demand obedience from people, especially those in the minority, over which it has authority. Here Wheare's notion of a constitution's moral authority reflects somewhat the larger theme of Friedrich's idea of constitutionalism. Wheare wrote:
The moral authority which a constitution claims and can claim is related very closely, therefore, to the structure of the community for which it purports to provide the foundations of law and order. It must embody forms of government in which a community believes; it must be adapted to their capacity for government. . . . The whole process of so drafting a Constitution that it provides the best government of which a community is capable must be based upon the social forces operating in the community.24
The constitutional debate surrounding the nature of the Pakistani state, whether it should be Islamic or not, touched upon fundamental questions. Islamic modernism is, as Gibb wrote, "primarily a function of Western liberalism.25 The largely unlettered Muslim masses were untouched by modern liberal values, and Islam in India at the populist level remained ritualistic, eclectic, and nonlegalistic. Modernists carefully crafted support for Pakistan by avoiding any particular exegesis of Islam. But once the state was established, debate with the ulama (Muslim scholars) on the finer points of Islamic law and jurisprudence could not be avoided. In this debate, modernists were at a disadvantage. Traditionalists, despite their orthodoxy and legalistic approach to Islam, were socially and culturally closer to the masses and on matters of religious interpretation were held in greater respect than were modernists. Moreover, without traditionalists galvanizing the Muslim masses behind Jinnah and the ML, modernists would have remained a small group of urban professionals, and their idea of Pakistan based on a "two nation theory" most likely would have ended as a footnote in the history of India's struggle for independence.26
The idea of a secular-oriented Muslim state was not relevant to the ulama and their supporters. In the traditional-orthodox view, a Muslim-majority state is legitimate when it is based on the laws of the Qur'an, the Shari'ah, and is governed according to the principles of Islam as described by the consensus of the classical jurists.27 Representing the ulama's views in the constituent assembly, Maulana Shabbir Ahmad Usmani stated: "The Islamic State means a State which is run on the exalted principles of Islam. . . . It can only be run by those who believe in those principles.28 The man who established himself as the most learned exponent of the meaning of Islamic state was Mawlana Mawdudi, the leader of the Jama'at-i-Islami. In Mawdudi's integralist view of Islam and state, Islam philosophically is the very antithesis of secular Western democracy. The philosophical foundation of Western democracy is the sovereignty of the people. . . . Law-making is their prerogative and legislation must correspond to the mood and temper of their opinion. Islam . . . altogether repudiates the philosophy of popular sovereignty and rears its polity on the foundation of the sovereignty of God and the vicegerency (Khilafat) of man.29
If we set aside the discussion here of the classical basis of Islamic jurisprudence that informed Mawdudi's constitutional thought and upon which he expanded during the course of his political activism, we will find that in his insistence on the "sovereignty of God" taking absolute precedence over any notion of popular sovereignty resided the idea of limiting the authority of those in power by a higher-and sacred-authority.30 In another section of The Islamic Law and Constitution, from which the above quote is taken, Mawdudi stated:
To say that such a state [i.e. Islamic] possesses absolute sovereignty (except with reference to other states of the world) would be a contradiction in terms. No doubt, an Islamic State is a sovereign state in the real sense of this term vis-a`-vis the other states of the world, but if it tries to assert its sovereignty vis-a`-vis the commands of God and His Messenger, this will amount to the clear negation of its Islamic character.31
The idea of limiting or restricting the powers of those in authority in contemporary independent Muslim-majority states is shared by most modern Islamic thinkers. Hasan Turabi, a political leader and theorist of the Sudanese National Islamic Front, has noted that the basic principle underlying an Islamic government is that it is limited. In his words: "The jurists and the sharia limit government.32 To limit the powers of those in control of the state means both to protect the society (i.e., the people) from the potential tyranny and injustice of those in power and to acknowledge that authority, in its limited sense as delegated by God, resides in the people. Authority is limited because legitimate authority is circumscribed by God. Turabi states: "Islam exists in society as a matter of norms and law" and "society is the primary institution in Islam, not the state.33 And according to Mawdudi, "authority is delegated to the Muslim community of the State as a whole and not to any particular individual or group"; hence, "government can be formed only with the consent of all the Muslims or their majority and can function and remain in power only as long as it enjoys their confidence.34 As these statements illustrate, Turabi and Mawdudi both reached a significant conclusion: Islamic constitution-alism is representative, limiting, and consensual.
For modernist leaders of the Pakistan Movement, Muslim identity as the basis of Muslim nationalism was less a matter of Islam as a legal system and more an issue of culture. In their liberal reconstruction of Islamic thought, following Muhammad Iqbal, they viewed the modern Western world of science and politics as fully compatible with Islam. A Muslim state based on republican principles and democratic representation, Iqbal wrote, is "thoroughly consistent with the spirit of Islam" and "a necessity in view of the new forces that are set free in the world of Islam.35 But such views, apart from appearing apologetic, lacked the vigor of a clearly elucidated philosophy combining Islamic jurisprudence with modern political theory and demonstrating how, in practice, a traditionalist view of an Islamic state could be reconciled with modern representative democracy and, moreover, how any such modernist reconciliation would differ substantially from the constitutional thinking of a Mawdudi. While such a system of political thought remains to be constructed, and it may only be arrived at through trial and error, what Muslim modernists offered in constitutional terms could not be reconciled with the sentiments that moved the Muslims of undivided India to partition a subcontinent.
Jinnah's secular views pointed toward a constitutional government based on the Westminster model, not much different from what was established in neighboring India, with perhaps sufficient wrinkles on the margins to give it a Muslim flavor. His death in September 1948 and the assassination of Liaquat Ali Khan, the first prime minister and Jinnah's closest deputy, in October 1951, were crippling to the constitution-making process. The contrast with the constitutional development in India is obvious, for Nehru, Azad, Patel, and other national leaders of the independence movement were able to steer the process of constitution making toward success in a remarkably short period. In India, a broad consensus on the secular nature of the state, parliamentary government, federalism, and social issues had evolved over a period going back to the Nehru Report of 1928.36 Such a consensus was missing in Pakistan, and it is doubtful whether Jinnah and Liaquat Ali Khan would have been able to construct a similar consensus even if they had lived longer. But their early demises jeopardized the process and left a political vacancy that could not be filled.
Before his untimely death, Liaquat Ali Khan presented the Objectives Resolution, a document that laid out the constitutional principles. It sought a middle ground between Jinnah's secular orientation and the modernists in the civil-military bureaucracy, and the ulama and their traditional- conservative supporters. It recognized the ulama's demand for acknowledging God as Sovereign without conceding the principle of parliamentary sovereignty, by pointing out that God's sovereignty was vested in the people through their elected representatives. The Objectives Resolution was subsequently adopted as a preamble to the constitutions of 1956, 1962, and 1973. As a document of compromise, its authors tried to make it reflect all shades of opinions, and thus what was left unstated was more important than what was stated.37 There was no mention of the Shari'ah as the basis of the constitution or of making the Qur'an the fundamental source of all laws. Silence on these critical issues meant, reassuringly to the modernists, that the legislative function of the state would not be circumscribed by the Shari'ah as interpreted by the ulama. For the traditionalists, this silence was a betrayal of the Pakistan Movement. As a preamble, the Objectives Resolution was a directive principle and not part of the constitution enforceable by the courts. The major Islamic provision in the constitution of 1956, retained in subsequent constitutions, was the article laying down the principle that no law repugnant to the Qur'an and the Sunnah (the tradition of the Prophet) would be enacted and that existing laws would be brought into conformity with Islamic injunctions. This was politically the maximum acceptable to modernists, a declaration of Islamic intent, while the state and its judicial institutions continued to function within the civil and criminal codes inherited from the British. The modernist compromise rested on a narrow political base and was vulnerable to the sentiments of the Muslim majority. For traditionalists, the goal remained to place the constitution within the framework of the Shari'ah with all of its attendant legislative and judicial implications.
Appeal to Islam by political leaders in a Muslim-majority country, predominantly traditional and conservative, is a necessary ritual to reassure the population that political rule (siyaµsah) is in broad conformity with the religious prescriptions of traditional-orthodox Muslims. The use of Islam to legitimize completely contradictory objectives has been common. In the constitutional debate within Pakistan, all parties, except such openly secular ones as the Awami League (AL) in pre-1971 East Pakistan, have sought to cast their position as Islamic. But the differences between modernists and traditionalists have remained wide, and only under the military regime of General Zia ul-Haq did the latter begin to gain ground over the former. Unlike the two previous military regimes, General Zia's regime declared openly its objective to accomplish the "Islamization" of the Pakistani state as proposed by the Jama'at-i-Islami. This was begun with amendments to the 1973 constitution that established the Islamic penal code, set up a federal Shari'ah court to oversee the Islamization of the judicial system and hear appeals from lower courts, and established an Islamic university to train students in Islamic law. The process of Islamization culminated with the promulgation of an ordinance by the president, General Zia ul-Haq, in June 1988 declaring the Shari'ah to be the fundamental law of the country.38 This ordinance was not ratified, however, before his death in August 1988.

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