3) Essentials of an Islamic State

        a.) Since the basis of Islamic law is the principle of inerrancy of revelation and of the Holy Prophet, the law to be found in the Qur'an and the sunna is above all man-made laws, and in case of confliot between the two, the latter, irrespective of its nature, must yield to the former. Thus, provided there be a. rule in the Qur'an or the sunna on a matter which according to our conceptions falls within the region of Constitutional Law or International Law, the rule must be given effect to unless that rule itself permits a departure from it.

Thus no distinction exists in Islamic law between Constitutonal Law and other law, the whole law to be found in the Qur'an and the sunna being a part of the law of the land for Muslim subjects of the State. Similarly if there be a rule in the Qur'an or the sunna relating to the State's relations with other States, or to the relations of Muslim subjects of the State with other States or the subjects of those States, the rule will have the same superiority of sanction as any other law to be found in the Qur'an or the sunna.

Therefore if Pakistan is, or is intended to be converted into, an Islamic State in the true sense of the word, its Constitution must contain the following five provisions: --

(1) that all laws to be found in the Qur'an or the sunna shall be deemed to be a part of the law of the land for Muslims and shall be enforced accordingly;

(2) that unless the Constitution itself is framed by ijma' i-ummat, namely, by the agreement of the ulama and mujtahids of acknowledged status, any provision in the Constitution which is repugnant to the Qur'an or sunna shall to the extent of the repugnancy be void;

(3) that unless the existing laws of Pakistan are adapted by ijma'-i-ummat of the kind mentioned above, any provision in the existing law which is contrary to the Qur'an or sunna shall to the extent of the repugnancy be void;

(4) that any provision in any future law which is repugnant to Qur'an or sunna shall be void;

(5) that no rule of International Law and no provision in any convention or treaty to which Pakistan is a party, which is contrary to the Qur'an or the sunna, shall be binding on any Muslim in Pakistan.
 

        a) That the form of Government in Pakistan, if that form is to comply with the principles of Islam, will not be democratic is conceded by the ulama. We have have already explained the doctrine of sovereignty of the Qur'an and the sunna. The Objectives Resolution rightly recognised this position when it decided that all sovereignty rests with God Almighty alone. But the authors of that Resolution misused the words 'sovereign' and 'democracy' when they decided that the Constitution to be framed was for "a sovereign State in which principles of democracy as enunciated by Islam shall be fully observed."

It may be that in the context in which they were used, these words could not be misunderstood by those who are well versed in Islamic principles; but both these words were borrowed from western political philosophy, and in that sense they were both wrongly used in the Resolution. When it is said that a country is sovereign, the implication is that its people or any other group of persons in it are entitled to conduct the affairs of that country in any way they like, and untrammelled by any considerations except those of expediency and policy. An Islamic State, however, cannot in this sense be sovereign, because it will not be competent to abrogate, repeal, or do away with any law in the Qur'an or the sunna. Absolute restriction on the legislative power of a State is a restriction on the sovereignty of the people of that State, and if the origin of this restriction lies elsewhere than in the will of the people, then to the extent of that restriction the sovereignty of the State and its people is necessarily taken away. In an Islamic State, sovereignty, in its essentially juristic sense, can only rest with Allah.

In the same way, democracy means the rule of the demos, namely, the people, directly by them as in ancient Greece and Rome, or indirectly through chosen representatives as in modern democracies. If the power of the people in the framing of the Constitution or in the framing of the laws or in the sphere of executive action is subject to certain immutable rules, it cannot be said that they can pass any law that they like, or, in the exercise of executive functious, do whatever they like. Indeed if the legislature in an Islamic State is a surt of ijma', the masses are expressly disqualified from taking part in it because ijma'-i-ummat in Islamic jurisprudence is restricted to ulama and mujtahids of acknowledged status, and does not at all extend, as in democracy, to the populace.

5) Other incidents of an Islamic State, according to the ulama

        a.) In the precerling pages we have attempted to state as clearly as we could the principles on which a religious State must be built if it is to be called an Islamic State. We now proceed to state some incidents of such a State, with particular reference to the ulamas' conception of it.
 

On to: *6) Legislature and Legislation*