Constitution et nos droits



Les remparts


The importance that is now being given so pronouncedly to the economic problems of nations and states around the world is greater than ever before. I have used the phrase “so pronouncedly” because the economic aspect of life has always been of great importance to mankind, and as such has always attracted the attention of individuals, groups, communities, and countries across the globe. However, what has focused this attention today is the arrival of specialised institutions and more and more books with high-sounding jargon and terms dedicated to Economics as a discipline, accompanied by a growing complexity in the processes of production and supply, as well as access to the basic amenities of life. Because of this, so much debate, dialogue and scholarly research is being carried out today on economic issues that every other issue of human life has now been relegated to the background. Strangely enough, however, the phenomenon that has become the focus of attention all over the world is becoming more and more complicated and enigmatic, rather than getting resolved or better understood. The common man has become so overawed by the high-sounding jargon and terminologies of this social science and the scholarly hair-splitting by economic wizards that he seems to lose all hope of any prospect of improving his lot, in the same way that a patient thinks his condition is hopeless on hearing some quaint Latin synonym for his disease from the physician’s mouth. Nevertheless, when viewed in a more simple and natural way, shorn of its technical trappings and academic bombasts, the economic issue becomes easier to understand and, without much difficulty, we can discover the merits and demerits of various measures that have been taken by the world to resolve it. There then remains no difficulty in finding out the correct and more natural approach to the solution of this issue.



Le château


The words “Divine Law” have been attributed to -Jurisprudence- because the content of religious law, structured by Muslims jurists, deals with that specific behaviour which is necessary in the light of revelation. In other words people learn from the Law how to participate in the religious rituals as well as how to order personal and collective lives. Life is to be shaped in response to what God has said and required. Problems arose very early; Muslims found themselves, within one hundred years of the death of the Prophet, rulers and administrators of vast territories that had formerly been under Sassanian Persian or Byzantine Christian administration. Muslims believed that they owed their success to God’s gracious Revelation of His nature and purposes to them. They saw themselves as required to respond to this divine mercy by elaborating and implementing a way of life that would be acceptable to God.

But how?

The phrase religious-legal encompasses the efforts made both to insure the integrity of personal religious life by upholding the VIRTUES of sincerity and humility, and to develop judicial and other structures that would facilitate the implementation of social JUSTICE. Jurists and administrators had to decide all manner of practical matters with little to guide them save their knowledge of the Quran, the example of the Prophet and his early Companions, existing administrative practices, and reason. The problems were compounded in the early days by the relative lack of Islamic precedents and by the physical difficulties of knowing what other Muslims were doing in the vast territories that made up the Muslim world.

Some rationalist and fundamentalist debates in the modern period focus on the question of whether, and in what sense, reason had been used in this early period to decide how to implement revelation. One recent study of the methodology of the early phases of Islamic legal thinking has emphasized that the use of reason had been essential in the first instance. Fazlur Rahman has explained how the theoretical ideal of the Prophet’s example originally functioned:

“We have said that the early Islamic literature strongly suggests that the Prophet was not a pan-legist. For one thing, it can be concluded a priori that the Prophet, who was, until his death, engaged in a grim moral and political struggle against the Meccans and the Arabs and in organising his community-state, could hardly have found time to lay down rules for minutiae of life. Indeed, the Muslim community went about its normal business settling disputes by themselves in the light of common sense and on the basis of their light of common sense and on the basis of their customs which, after certain modifications, were left intact by the Prophet. It was only in cases that became especially acute that the Prophet was called upon to decide and in certain cases the Quran had to intervene. Mostly such cases were of an ad hoc manner. Thus, these cases could be taken as normative prophetic examples and quasi-precedents but not strictly and literally. That the Prophetic سنّة was a general umbrella-concept rather than filled with an absolutely specific content flows directly, at a theoretical level, from the fact that the Tradition is a behavioural term: since no two cases, in practice, are ever exactly identical in their situational setting-moral, psychological and material Tradition, must, of necessity, allow of interpretation and adaptation. But quite apart from this theoretical analysis, there is abundant historical evidence to show that this was actually the case. The necessary instrument whereby the Prophetic model was progressively developed into a definite and specific code of human behaviour by the early generations of Muslims was responsible free-thought activity. But with all its wealth, the product of this activity became rather chaotic”.

As a result of this chaos, the notion of Tradition came to have the meaning of agreed practice, rather than exemplary precedent. This change of meaning came about through the process of –Consensus- established by the scholar-jurists.

Fazlur Rahman has commented on an aphorism from the second Islamic century:

“The Tradition decides upon the Quran; the Quran does not decide the Tradition; what the aphorism means is that the Community, under the direction of the spirit (not the absolute letter) in which the Prophet acted in a given historical situation, shall authoritatively interpret and assign meaning to Revelation”.

In terms of principles of jurisprudence, the tendency to restrict or to eliminate individual judgement came later. The jurist Shafi is credited with having formalised the principles of jurisprudence which served as the basis for the Law throughout the medieval period. He stated as his primary principle the maxim that justice is nothing but obedience to law.

Fazlur Rahman considers this development to have been unfortunate for the long-range development of the community in his comments regarding consensus:

“It is clear that Shafi’s notion of Consensus was radically different from that of the early schools; his idea of Consensus was that of a formal and a total one; he demanded an agreement which left no room for disagreement. He was undoubtedly responding to the exigencies of the time and was but a monumental representative of a trend that had long set in, working towards equilibrium and uniformity. Consensus, instead of being a process and something forward-looking came to be something static and backward looking. It is that which, instead of having to be accomplished, is already accomplished in the past. Shafi’s genius provided a mechanism that gave stability to our medieval socio-religious fabric but at the cost, in the long run, of creativity and originality”.

Thus within the discipline of religious-legal thinking, the emphasis after Shafi came to be on upholding an agreed-upon pattern as authoritative. This process meant that a particular interpretation of revelation was accorded priority over reason. The jurists themselves did not give much thought or attention to the basic question of whether the right and the good could be known by reason. They left these theoretical problems to theology.



La tour


Because the Islamic Revolution was a distant goal, the Jamat did not need to act, but it did have to create the exact circumstances that would bring about revolution. Because this could take many years to materialise, the Jamat in the meantime had the task of preventing other systems of government from taking root too firmly. This feat was to be accomplished through political activism, which is why the Jamat found itself moving from ideology to pragmatic politics. Political activism, although initially only a tactic to safeguard the prospects of the Islamic state, eventually became an end in itself. In later years, Mawdudi became even more convinced of the sagacity of this strategy: governments and constitutions had come and gone in the meantime and had proved capable of permanently institutionalising the Pakistan state. The Jamat had helped thwart any effort at consolidating power by any one of them. Mawdudi and his party outlasted all of their “anti-Islamic” rivals, from Liaqat Ali Khan to Chaudhri Ghulam Muhammad to General Ayub Khan and, finally, to Zulfiqar Ali Bhutto. The Jamat remained on course, and Pakistan moved steadily in the direction of its aims. Before Mawdudi died in 1979, he could see tangible evidence that Pakistan was moving toward Islamicity without cataclysmic revolution. In 1991, the Jamat’s vice-president Abdul Ghafur Ahmad, declared that with the advent of democracy and the rise to power of the Islami Jumhuri Ittihad (Islamic Democratic Alliance), revolution was no longer a necessity and, by implication, no longer an aim.

Following the creation of Pakistan, Mawdudi forced the party, at the cost of dissensions and defections, to accept the legitimacy of the state. As pragmatic political considerations began to replace revolutionary idealism, the Jamat began to look like a controlled and responsible party, aiming to form a government and rule the country. In 1957, when he outlined the Jamat’s new policy, Mawdudi drove the last nail into the coffin of revolution by declaring that,

“transforming the political system can be done only through constitutional means: elections; transformation of the political order through unconstitutional means is forbidden by Law”.

Not long after that, the Jamat’s student organisation, the Islami Jamiat Tulabah (Islamic Student Association) declared that it did not wish to adopt the methods of the Muslim Brotherhood of Egypt, who at the time were engaged in a violent campaign against Gamal Abdel Nasser.

Mawdudi did not waver from this stand, even when Ayub Khan pushed his party toward more and more radical options. Ayub Khan did away with the electoral process to which the Jamat had committed itself and systematically harassed the Jamat itself, first by pushing the party out of politics and later by moving to eliminate it altogether. The government regarded the Jamat as a subversive organisation and followed policies that were likely to push it in that direction, but Mawdudi stayed his ground and kept the Jamat in the mainstream of Pakistani politics:

“I am in principle opposed to all unlawful, unconstitutional and underground activities. I did not come to this opinion out of consideration of any expediency or in response to any challenge. My opinion is rather the product of contemplation and studying. Support for the law is the basic tenet of a civilised society; covert activity is a greater menace to society than the one it seeks to remove”.

Elsewhere he insisted:

“Whatever I have done, I have always done it openly within the boundaries of the law and existing Constitution, so much that I have never violated even those laws which I have fought hard to oppose. I have tried to challenge them through lawful and constitutional means and never adopted the path of violence”.

“Creating a chaotic situation”, argued Mawdudi, would only make it possible for “forces inimical to the interests of Islam (i.e., the Left) (to) find an opportunity to capture power”.

When in the late 1960s Ayub Khan’s regime collapsed as a result of socio-economic and political unrest, the support for leftist forces grew. Still, Mawdudi continued to adhere to his earlier conclusions, and he did not allow the Jamat to be provoked into clandestine activities when the People’s Party government clamped down on its activities in 1972. In the five years that followed, a Jamat member of the National Assembly, Nazir Ahmad, was assassinated, and Mian Tufayl Muhammad (the leader of the Jamat) and a number of other Jamat leaders and pro-Jamat activitst were jailed, and, for the first time, seriously abused. Even then, Mawdudi urged the Jamat not to waver from its commitment to the constitutional process.

Mawdudi was unable to control the Jamat completely, and its activists were eventually provoked by the People’s Party to set in motion a chain of violence that damaged the party’s moral standing. Mawdudi was gravely concerned about this turn of events and moved swiftly to prevent it from influencing the party’s doctrinal position. In his eyes, the Jamat was merely defending itself against government brutality and had not changed its mind about violence. To his last days, Mawdudi continued to advocate the use of peaceful means in the pursuit of an Islamic state just as the Jamat, and especially its student WING, the Jamiat, steered in new directions and became increasingly involved in acts of violence.

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