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The Islamic Constitutions Index & The Constitution Of Pakistan

While Newt Gingrich, the former Speaker of the House of Representatives and the Republican Party candidate in US Presidential Election 2012, observed that Shariah was a mortal threat to the survival of freedom in the United States, some academics have tried to take a more objective and serious look at Shariah. Two researchers have jointly published a research paper in which they have developed a new Islamic Constitutions Index (ICI); the instant article will briefly explore the research conducted by them and will examine the findings of the research vis-à-vis the Constitution of Pakistan.

The Islamic Constitutions Index (ICI)

In an article styled as ‘Measuring Constitutional Islamization: the Islamic Constitutions Index’, Ahmed I. Dawood and Moamen Gouda from the University of Chicago have proposed the Islamic Constitutions Index. The internet version of the article shows that it is divided into five parts. A synoptic look at its parts of the article will help better explore its gist.

Part one of the article is devoted to the relationship of constitutionalism and Islam; part two elaborates the framework of Shariah; part three explains the model Islamic Constitution (which was developed by the scholars of Al-Azhar University, Cairo, Egypt in 1977 and has been used as a template for the research); part four describes the methodological details of the empirical analysis, and part five records the conclusion of the research.

The authors have measured the use of technology of constitutionalism in the fifty-six member states of the Organization of Islamic Cooperation (OIC). They have done so by using a dataset based on the coding of in-force constitutions of these countries. Borrowing thirty Islamic clauses from the abovementioned model Islamic Constitution, they have prepared a template and similar constitutional provisions in the extant in-force constitutions of Muslim countries have been extrapolated to examine the ‘Islamicity’ in those constitutions. The general findings and important points are as under:

First, the Islamic Constitutions Index (ICI) will serve as a proxy for measuring prevalence of constitutionalism in Muslim countries.

Secondly, half of the OIC member states have common Islamic constitutional provisions.

Thirdly, the geography and the colonialism of the countries have some influence on their level of Islamicity.

Fourthly, the Islamicity of the constitutions analyzed, showed negative correlation with democracy, gender equality and political stability.

Fifthly, the authors have tried to discuss the Islamic constitutionalism in the backdrop of peace talks between Pakistan and Taliban, and constitution-making in Iraq and Afghanistan.

Constitution of Pakistan and the ICI

The Constitution of Pakistan 1973 has been analyzed in the research in detail. The following points were noted about Pakistan in the research:

First, the constitutional design of Pakistan, like many other Muslim countries, privileges religion in the Constitution by specifically declaring a state religion. Article 2 of the Constitution is instrumental here, which clearly states that Islam shall be the state religion. The implication of this declaration, however, is not fully explained in the research article.

Secondly, there is a ‘repugnancy clause’ in the Constitution of Pakistan. Article 227 of the Constitution enunciates that all existing laws of the country to be brought in conformity with the Holy Quran and Sunnah. The Article 203-B (which defined ‘law’ for the Federal Shariat Court) and Article 2 (which declared the Objectives Resolution to be substantial part of the Constitution) fortify the Islamic provisions of the Constitution.

Thirdly, the issue of sovereignty attracted debate in 1947 at the time of constitution-making in Pakistan. The debate has been settled insofar as Pakistan is concerned. The first recital of the Preamble of the Constitution states that the sovereignty over the entire universe belongs to Allah. Though to a layman, this may sound simplistic, the question about sovereignty over ‘state’ or ‘universe’ has not been fully settled universally in all the Muslim countries’ constitutions.

Fourthly, ‘Islam and — not Islam or — democracy’ is the rallying call in all the Muslim countries’ constitutions; Pakistan is no exception.

Fifthly, like many other Muslim countries, Pakistan’s Constitution provides for an advisory constitutional body on lawmaking over and above the parliamentary system. Article 228 provides for Islamic Council, in which scholars have been provided a constitutional advisory role. In case of Pakistan, Article 203-C provides even for an adjudicatory body (Federal Shariat Court) as well, parallel to the constitutional judiciary to examine the Islimicity of the laws.

Sixthly, Pakistan is ranked fourth on the rankings among fifty-six countries for the degree of Islamicity with a score of 16. Iran, Saudi Arabia and Maldives surpass Pakistan on the ICI.

Seventhly, there is a correlation between the Muslim population and the degree of Islamic provisions in the constitution of a Muslim country. The higher the Muslim population of a country, the higher the probability of Islamic provisions in its constitution: Pakistan is a pertinent example.

Finally, the thirty characteristic clauses on which the marking of scores have been done is very interesting vis-à-vis Pakistan. The thirty clauses have been framed into questions and have been divided into seven schematic parts. Brief discussion on each part is as under:

Part one contains General Characteristics and comprises fourteen constitutional clauses including the religion clause, the preamble clause, the unity with Ummah clause, the Jihad clause, the Islamic Calendar clause, Muslim head of the state clause, the Muslim citizen clause, the Muslim judges clause, the Islamic idiom oath clause, the Islamic morals clause, Islamic legal provisions special procedure clause, the Islamic advisory group clause, authority (or sovereignty) clause and the government’s accountability subject to Islam clause. In this part one, Pakistan has scored high as these are formal and black – lettered law issues.

The second part relates to Rights. Two clauses have been considered here: (a) the enjoyment of rights subject to Shariah requirements, and (b) the family priority clause with respect to women. In this part, Pakistan has been given zero score. It may be noted that the Constitution of Pakistan has a very elaborate scheme of Fundamental Rights (from Articles 8 to 28) coupled with implementation mechanism as contained in the powers of the High Courts and the Supreme Court of Pakistan (powers to issue writs under Article 199 and suo motu powers for enforcing Fundamental Rights under Article 184(3)). Likewise, the Principles of Policy (from Article 29 to 40) also elaborate on the guiding principles for the executive. There is mention of Islam in the Principles of Policy part of the Constitution, but it is not enforceable.

The third part relates to Executive and comprises three clauses. These clauses are formal as they allude to the religious duties of the head of the state or the government, the need for head of the state to have Islamic knowledge, and the Islamic pledge or Bai’ah clauses. Pakistan has scored one point in this part. The quantitative assessment of a qualitative characteristic is very difficult thing to do, this has been abundantly made clear in part two and three of the ICI.

The fourth part relates to Legislation. It comprises three clauses that include source of legislation, supremacy and repugnancy clauses. Pakistan has scored one mark in this category. The jurisprudence developed by the superior courts of Pakistan on this part need sophisticated analysis, and will reflect on the qualitative aspect of the legislative competence of a parliament in a Muslim country.

The fifth part is about the Judiciary. This part has three clauses: the application of Shariah, the qualification of possessing Islamic knowledge, and the compliance to Shariah. In Pakistan, the Council of Islamic Ideology and the Federal Shariat Court chapters were inserted (from Articles 203-A to 212). The ICI does not capture this aspect of the Constitution of Pakistan.

The sixth part is about the Economy. It has three clauses: the Islamic economy, the ban on interest, and the Alms (Sadaqat). Pakistan has scored one mark on three marks in this part. On implementation side, the ban on interest clause has not been enforced in Pakistan, but the country has scored one mark on the scorecard. Likewise, the Zakat has also been legislated upon through an Ordinance, but with feeble implementation. The Islamic banking, however, is in vogue.

The last part is about ‘Other’ issues and contains clauses on Islamic criminal penalties and Islamic religious education. On Islamic criminal penalties, the score as for Pakistan is zero. This is queer as it belies the attempts of Hudood Ordinance promulgated in 1979 and the Shariah law made applicable to the offences against person part of the Pakistan Penal Code. The research design becomes very questionable at this juncture, though limiting it to the letter of the Constitution makes it viable.

Concluding Remarks

The research on the Islamic Constitutions Index should not be treated as exhaustive. The authors have themselves exhorted others to research on the subject by stating that their research is trying to set research agenda for future research on the subject. The politics of Shariah, that is all-pervasive in the Muslim countries, should be designed around the subject. Unfortunately, the leaders in the Muslim World try to evoke emotions of their followers instead of their logic and curiosity on the Shariah subject. Clearly, there is much to be done. For example, Islamic banking is one area which has shown that Shariah can be developed into a modern legal system by providing the adjective law on the subject, and by academically challenging the existing legal structures. Likewise, counter-narratives can be offered about the ICI by vetting its methodology, which is based on black – lettered law and is designed against a ‘model’ constitution, which is not treated as such. Besides, there should be some way to fathom the jurisprudence being developed about Shariah in both the Common Law and Civil Law countries.

The author is an independent researcher and
has done his BCL from the University of Oxford.
kamranadil@yahoo.com

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