بِسْمِ اللَّهِ الرَّحْمَٰنِ الرَّحِيمِ

In the Name of God, Most Merciful and Compassionate,
and (with) prayers and blessings on Muḥammad and his family.

Contents

• 1  Objectives
• 2  The President and the Executive
• 3  The Legislature and its Functions
• 4  Zakāt
• 5  Taxes
• 6  Elections
• 7  The Judicial System
• 8  Human Rights and Fundamental Rights

Preamble

The parliamentary system, embedded in the British model, has collapsed in this country. The British people waged a prolonged struggle for their rights and brought their parliament to a position of supremacy. For the people in Pakistan it is an alien system. The people do not understand it nor are they concerned with the conventions and traditions imported from Britain, as these too are alien. The parliamentarians themselves do not understand this system. The glaring evidence of this ignorance is that our senior parliamentarians continue to claim that “parliament is supreme,” least realizing that where there is a written constitution there is a hierarchy of texts, and it is the constitution that is supreme. They also do not understand that Britain has no constitution. In addition to this, our parliamentarians have lost their authority, both moral and legal, to govern this country and to make laws for it. If this system is continued in the present form, it will threaten the well-being of the citizens and the very existence of the nation. A new social contract is needed; a social contract that is closer to the soul of this nation. This blog proposes one such system.

1  Objectives

1. To propose a constitutional model that is closer to the Islamic spirit, history, legal traditions, and cultural background.¹
2. To propose a system of justice that relies on earlier Islamic legal norms and also makes use of all modern institutions.
3. To propose a system of public finance that relies more on the Islamic pillar of zakat and builds financial structures that are modern, just and efficient.

2  The President and the Executive

• The people will elect a President² for 7 years.³ He will be at least 40 years of age,⁴ and will be a Muslim male.⁵
• He can serve for one term alone and cannot be elected again ever. He may be impeached for breach of the trust reposed in him. None of his close relatives will be eligible for being elected President in the term immediately following his term,⁶ nor will the President induct any of his close relatives into the executive.
• The President shall have full and unhindered executive powers. He will appoint the Chief Justices and the Heads of all major Agencies and Public Sector organisations. He will appoint the chiefs of the Armed Forces. Appointments of Chief Justices, judges of the Supreme Court, heads of agencies and public sector organisations are to be confirmed by the legislature.⁷
• He will have the power to issue ordinances when the legislature is not in session, but an ordinance so issued will be valid for 3 months and will not be renewed.⁸
• He will choose his own cabinet and will have the authority to choose anyone, other than a close relative, as a minister.⁹
• Each officer of the executive must be acquainted with the Islamic methodology of maqāṣid al-sharī‘ah, which should be reflected in the administrative decisions where necessary.¹⁰

3  The Legislature and its Functions

• The lower and upper houses will consist of directly elected representatives. Both houses will be elected for a period of 5 years. Their election will have nothing to do with the election of the President.¹¹
• The lower house will make all laws. It will approve all taxes and sanction the annual budget. It will have special committees for holding hearings where confirmation of appointments made by the President is required. It will have monitoring committees for the work of ministers and the executive.
• The upper house will provide guidance to the lower house from the Islamic perspective and other technical perspectives by sending back bills to the lower house with comments where necessary. The upper house will monitor the work of the public sector organizations.
• Except for the finance bill, every bill must be introduced by a member of the lower house.¹² Each bill must be accompanied by a research report on the issues incorporated in the bill, for which purpose the member may seek the help of private legislative bureaus.¹³
• No development or other such funds are ever to be provided to the members of the lower or the upper house.
• The committee to which a bill is referred must invite witnesses to testify about the legislation, inviting written comments from those who cannot be invited to testify.
• The Constitution of the country will be amended by two-thirds majority of both houses and the amendment to be effective must be ratified by a simple majority of each provincial legislature.
• Members of the lower house will preferably have knowledge of the Islamic methodology of maqāṣid al-sharī‘ah, but such knowledge will be necessary for members of the upper house.¹⁴

4  Zakāt

• The Nisāb of Zakāt is to be based on gold and not silver, as far as the beneficiary is concerned, so that up to 7.5 tolas can be given to a poor individual in one year. The nisāb for payments on other items, including fiat money, should also be based on gold and not silver. If someone has silver, he should pay for the silver on the basis of 52 tolas, but not for other things. Zakāt will be given freely to anyone who asks for it. Beneficiary liars, when discovered, will be awarded 10 years RI. Compulsory zakāt returns will be filed with the FBR.¹⁵ Assessee liars to be awarded 5 years RI. Zakāt officials embezzling zakāt funds are to be awarded 14 years RI. Where zakāt is paid by an individual directly to a beneficiary, verified supporting documents are to be attached with the return.¹⁶
• All persons will be liable for zakat. The term “person” will include legal persons.¹⁷
• Assets will include: gold and silver (2.5 %); rental income (2.5 %); business assets (2.5%); produce of land (10 & 5%); minerals including petroleum (20% when extracted).¹⁸
• No sect exempt from payment of zakat; individuals may choose not to be beneficiaries.¹⁹ Ibn sabil means displaced person or refugee or stranded alien. Those under debt may mean all those who owe debts to schools, universities, hospitals, lending institutions (provided interest free by the government for the purpose).²⁰ “In the way of Allah” means veteran soldiers.
• Detailed opinions according to Hanafi law are available for all statements made here.²¹

5  Taxes

• All data provided for zakāt will form the basis of taxation. A person who pays zakāt will also be liable for taxes, that is, income tax.²²
• All taxes will first be approved by the lower house of the Majlis-e-Shoora, announced publicly, and only then included in the taxation system. The President is not to issue Ordinances for levying taxes.²³
• Income-tax: Income tax is never to exceed 5% for individuals and 10% for companies. It is preferable if it is less.²⁴
• Sales-tax: Sales-tax is never to exceed 4% on any item. There is to be no sales tax on grains, flour, vegetables, and fruit.²⁵
• All income-tax returns are to be filed with Zakāt returns.²⁶
• All other levies like transfer fee, gift tax, wealth-tax, if imposed, are not to exceed one-half percent of the total value.
• The Federal Divisible Pool is to be divided equally among the provinces so that large provinces are forced to divide themselves into two or more, if they wish to benefit from this award. The Federation may prevent excessive division, just as it may prevent the creation of tehsils and districts.

The data made available for purposes of zakāt and taxes will be used for accountability where necessary, that is, accumulation of wealth beyond declared means.²⁷

6  Elections

• The President is to be elected by the entire vote of the public eligible for voting. Everyone who is 18 or above will be eligible to vote. The President must be a declared Muslim. No other qualification is required, but he must not have been convicted by a court of law for moral turpitude.²⁸
• Every member of the legislature must be 25 years old or more, and must not have been convicted by a court of law for moral turpitude.
• Every tehsil²⁹ shall have one member for the lower house, and every district shall have one member for the upper house.³⁰ Population of the tehsil or of the district is not to be taken into account.³¹ The Federation may limit the number of tehsils and districts according to a criterion set by the legislature.
• 20% of the tehsils in each province will be reserved for the direct election of women candidates every term. A system of rotation will be adopted with the women seats moving to the next 20% in the next term.³²
• Elections to the legislature will be held every 5 years on a day that is fixed once and for all (like a Wednesday of the second week of a particular month).³³
• Individuals can be elected to the houses for a maximum of three terms, irrespective of the House to which they are elected.³⁴

7  The Judicial System

• A civil judge cum judicial magistrate, to be called the Ilaqa Qazi, will be housed next to each thana/police station. The jurisdiction of this Ilaqa Qazi will extend to the jurisdiction of the thana, while pecuniary jurisdiction will be the same as that of an existing civil judge. The Ilaqa Qazi will try all criminal cases including murder. The process at this court will be inquisitorial and not adversarial, and the judge will record all complaints in his own hand based on a petition by the citizen or based on a police report. All criminal investigations will be undertaken with the help of the attached thana, and the Qazi will also monitor the police station. All cases will be decided within a period of three months. No lawyers will be required to appear in this court. The Ilaqa Qazi will be a judicial officer of 5 years standing who has worked as an assistant to the Ilaqa Qazi or worked at other courts after his selection for the judicial service.³⁵
• Appeals from the court of the Ilaqa Qadi will lie to the District Court and from there to the Divisional Court and finally to the High Court of the Province.³⁶ The proceedings at these appellate courts will be adversarial and lawyers trained in the methodology of the maqāṣid al-sharī‘ah will play their full role.³⁷
• The Supreme Court will hear constitutional cases including those of human rights. It will also hear matters concerning intra-provincial issues. The Federal Shariat Court and the Council of Islamic Ideology are to be abolished and the Supreme Court as well as the High Courts will decide all Islamic issues. Those judges who feel they cannot decide such cases, under the new model in Islamic Pakistan, must resign their position.³⁸
• All judges, in order to be eligible for any judicial office, must be thoroughly trained in the Islamic methodology of the maqāṣid al-sharī‘ah.³⁹

8  Human Rights and Fundamental Rights

• All rights granted by Allah through His noble Shari‘ah will be treated as fundamental rights by the Constitution, and all of these rights, without exception, will be justiciable through the courts. The courts must refine the statement of these rights through their decisions and elaborate the reasonable restrictions that have been placed on these laws by the Shari‘ah.
• All human rights upheld by the United Nations and ratified by Pakistan will be treated as the law of the land insofar as they do not oppose the general principles and provisions of the Shari‘ah. The conflict if any will be resolved by the courts keeping in view their compatibility with the Shari‘ah. To the extent that they are found compatible, these rights will be justiciable through the courts.
• To maintain flexibility, the rights contemplated in the two paragraphs above will not be stated in written form in any official document other than the decisions of courts.

A book prepared for explaining all these proposals is in the final editing stages and will be released soon. In the meantime, comments and proposals are welcome and if found reasonable may be incorporated in the report.

1

The Urdu word siyāsat, which is translated as politics, has come to be associated with politcal manipulation and manouvering. A person treated as a good politician, in the public perception, is often one who is full of deception, craftiness, is unpredictable and untrustworthy. The word is derived from the Arabic word siyāsah, which is usually translated as “strategy,” “administration,” in particular “administration of justice.” Siyāsah shar‘iyyah is “just administration,” which may be equated with “good governance.”

2

The parliamentary form of government is based on a long and relentless struggle waged by the commons in England against the monarchs. It ultimately came to rest on the supremacy of the parliament. This antagonism is not suited to an Islamic country, especially one where there is a written constitution; it is the Islamic constitution, insofar as it represents the sharī‘ah, that is supreme. The parliamentary form has been a total failure in Pakistan, and it may even be the cause of the martial law regimes that have marred the political scene in Pakistan.

3

The American president is usually elected for two terms. Pakistan cannot afford expensive elections. Seven years are likely to give stability to the system and provide an opportunity to a dedicated individual to make a significant contribution to the national interest.

4

This is the age of majority in the Qur’ān.

5

The head of state of Islamic Pakistan must be a Muslim. There are legal reasons for why a head of the Muslim community cannot be a female.

6

These stipulations are designed to prevent the creation of a dynasty by a politician. A person who chooses to become President must give preference to Pakistan and the Muslim Ummah over his own children.

7

If the President is to be effective, he must be given maximum authority, however, some checks and balances must be introduced so that he does not plant his own stooges as heads of all important institutions. The appointments of the chiefs of amrmed forces too may be subject to confirmation by special committees of the legislature, if this is deemed proper by the people.

8

See the section on taxation with respect to the issuing of ordinances for new taxes.

9

This will make the President highly effective and will ensure a complete separation between the legislature and the effective. The practice of appointing ministers from the members of the parliament, under the parliamentary form, is deadly for the theory of separation of powers.

10

An independent text will soon be made available for instruction in this methodology. It is a methodology that was designed by the earlier jurists for common use. It can be employed effectively and equally by jurists as well as non-jurists. It is to be used by all officials who are expected to adjudicate and resolve disputes. The methodology is free of sectarian or school bias and is accepted by all.

11

The task of the legislature is law-making and that is what they should focus on.

12

This provision is expected to force legislators to undertake research on important issues. Their performance as legislators will be tested through this provision.

13

The institution called PIPS is to be privatised.

14

A person making laws must be aware of this methodology, more than any other person in the country.

15

All those who have paid zakāt on their own must file a return with the FBR and prove that they have.

16

The Islamic system of social justice depends upon the system of zakāt. Without it a society cannot be called Islamic. The system must be implemented with great determination, conviction and dedication.

17

Corporations and companies will be liable to zakāt. ‘Ushr on produce of the land must be implemented at once; no other agricultural tax is necessary. A ruling on agricultural tax and ‘ushr may be downloaded from nyazee.org or SSRN.

18

For all these details, see Shari‘ah Bill of Rights by this author. The text can be downloaded from nyazee.org and SSRN. This text is especially important for the ruling on minerals including petroleum.

19

Those who claim that they are not allowed to take zakāt may not do so, however, this does not exempt them from the payment of zakāt; they are liable like everyone else.

20

The funds collected under the system proposed here will meet all the health, education and social security needs of all citizens as well as of aliens found in the country. There will be no strain on the annual budget for these avenues of expenditure.

21

The rulings given by the Ḥanafī jurists and recorded by this author on rental income, business assets as well as corporations may be downloaded from nyazee.org as well as SSRN.

22

The implementation of the system of zakāt, a religious duty, will lead to the full documentation of the economy. All union councils, all banks, and the SECP must send basic data of property, cash balances and shareholdings to the FBR to support the system of zakāt as well as that of taxation.

23

See the power of the President to issue ordinances.

24

The documentation of the economy, through zakāt, will lead to revenues that are at least ten times more than the current revenues, even at these rates.

25

This is indirect taxation that hurts the poor. It should not exceed 4%.

26

FBR is to tally these returns with the data provided by the Union Councils, Banks and the SECP.

27

Here we may reproduce two reports recorded in one of the most important books of traditions, compiled much before al-Bukhārī’s famous compilation. This was Abū ‘Ubayd’s, Kitāb al-Amwāl. These were decisions taken by ‘Umar (R):
(666) He said: ‘Abd Allāh ibn Ṣāliḥ related to us from al-Layth ibn Sa‘d from Yaḥyā ibn Sa‘īd that when ‘Amr ibn al-Ṣa‘iq saw that the wealth of the collectors was on the increase he considered this objectionable and conveyed this to ‘Umar in the form of verse. These have been recorded by ‘Abd Allāh ibn Ṣāliḥ in his tradition. He said: ‘Umar sent for his collectors, among whom were Sa‘d and Abū Hurayra, and took away half their wealth”. [The editor of the text says: He took away one-half of their wealth. ‘Umar (God be pleased with him) applied a very strict standard of accountability for his officials.]
(667) He said: Mu‘ādh related to us from Ibn ‘Awn from Ibn Sīrīn, who said: “When Abū Hurayra returned from Bahrain ‘Umar said to him, ‘O enemy of God and of His Book, you have stolen God’s wealth’. He replied, ‘I am neither the enemy of God nor of His Book. In fact, I am the enemy of those who oppose them. I have not stolen God’s wealth’. He said, ‘How then have you accumulated ten thousand dirhams’. He said, ‘My horses were breeding, my stipends were reaching me, and so were my shares’. ‘Umar, however, took all this away. [The editor of the text says: Notice that he did not affirm the veracity of Abū Hurayra even after he had claimed that this was wealth that had grown over time in his possession. He considered injustice being done to Abū Hurayra better than the violation of a right of the Muslims collectively.] Abū Hurayra said, “When I offered the morning prayer, I prayed for the forgiveness of the Amīr al-Mu’minīn”.
Note: If Abū Hurayrah (R), whose status is determined by the number of traditions narrated by him, for he was the devoted servant of the Prophet (pbuh), has to face such strict accountability, then who else can claim exemption.

28

Constitutional Articles beyond this condition of a court conviction are not needed. The rest should be left to the Muslim voters.

29

Division into Union Councils, Tehsils, Districts are Divisions are Pakistan specific. Each Muslim country will its own divisions.

30

The creation of new tehsils and districts should be approved by the Malis-i-Shura.

31

Population as a basis for representation is not needed in an Islamic system. The opinions of all eligible voters within a district or a tehsil must converge on the candidate of their liking. In other words, the condition of representation must be met at the local level; there is no need for it to be met at the national level where all tehsils and districts must be represented.

32

This provision of affirmative action for women may be dropped once they have been fully absorbed in the political system, as in many developed countries. Nevertheless, even through this system they must contest elections and not be given seats for other considerations.

33

This should be automatic and the people should know beforehand when elections will be held. Further, there is no need of interim governments for holding elections.

34

Three terms are expected to give them considerable experience as lawmakers and this will benefit the country.

35

This is based upon the Islamic system that delivers justice at the doorstep. There is, therefore, no scope for the adversarial system, at least at this level. With a limited number of people falling within the domain of one Ilaqa Qazi, there will be no backlog of cases.

36

This provision is designed to prevent the Supreme Court from being bogged down with ordinary litigation. The divisional courts and the high courts must deal with all such problems.

37

Expertise in this methodology must be a basic condition for becoming a lawyer or a judge.

38

Non-Muslim judges may also be permitted to judge according to the methodology of the maqāṣid.

39

This includes non-Muslim judges.