The First Martial Law

The new constitution, in its much watered down formulations, recognized Islamic principles, a presidential form of government which lacked the necessary checks and balances and a federal structure which formally provided for a maximum degree of provincial autonomy in the legislative sphere. The federal structure was offset by the unitary character of organization of the executive authority insofar as the President was to appoint provincial governors who would, in turn, form the provincial cabinets without being responsible to the provincial legislatures. The provincial governments, consequently, would be directly responsible to the president of Pakistan. There were no fundamental rights but were added later through a constitutional amendment.

The Ayub's system was neither presidential nor federal, nor representative either in form or in substance. In fact, what it did was to provide for an authoritarian political system which could be geared to the process of economic development and militarization of the political system in the wake of Pakistan's military alliances with the West within the framework of the Central Treaty Organization (CENTO) and the Southeast Asian Treaty Organization (SEATO).

The word "Islamic" was omitted from the name of the state in the new constitution. [A martial law ordinance had earlier declared that the Islamic Republic of Pakistan will be known as Pakistan.] There was reference in the directive principles to Quran and Sunnah and the Islamic way of life but the responsibility of giving effect to laws made in pursuance of such principles was that of the organ of the state and nobody could question the organ's discretion. There was to be an Advisory Council of Islamic Ideology but it consisted of lawyers and administrators and the Ulemaof liberal views, one of them being the blind Hashim from East Pakistan who was quite modern in his views. He also set up Islamic Research Institute of which Fazal-ur-Rehman, a modernist, was the President. [2] However, the conservative element in the indirectly-elected National Assembly began to clamor for restoration of the Islamic features of the 1956 constitution. Ayub could not resist the demand and they had to be restored in 1963 through constitutional amendments.

The provision in the new constitution that no law should be repugnant to Islam was not enforceable in a court of law, while article 198 of the 1956 constitution dealing with the same subject was enforceable in a law court. There was no provision in the new constitution to bring the legal code of the country in conformity with the laws of Islam. It was, however, ensured through the first amendment that "all existing laws shall be brought in conformity with the Holy Quran and Sunnah." Further, while in the original constitution of 1962 it was simply provided that "no law shall be repugnant to Islam," it was elaborated with the additional words: "No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah." The amendment restored the footnote of Article 198 of the 1956 constitution stating that the expression Quran and Sunnah shall mean the Quran and Sunnah as interpreted by the sect concerned. Like 1956 constitution Ayub Khan's constitution did not make Islam the State religion of Pakistan.

Ayub Khan was against using Islam as a cliché in politics but at the same time he was well aware of the dangers of abandoning Islam as a state policy. In his autobiography Friends Not Masters, while discussing the role of religion in Pakistan's politics, he said: "Any attempt at interpreting the tenets of Islam and adapting the laws to conform to the requirements of the time is a signal for the Ulema to raise the slogan of heresy."[3]

However, like the former Law Minister, A.K.Brohi [4] Ayub believed that the Quran does not present a constitution for an Islamic state. He said: "The Holy Quran contained the principles of guidance but did not prescribe a detailed constitution for running a country. The example of the Holy Prophet in organizing an Islamic State was, of course, available. After the Holy Prophet, the four caliphs organized and administered the State according to their understanding of Islamic principles. Each one of them had applied the principles of Islam and the teachings of the Holy Prophet in accordance with their circumstances. No specific pattern of government or even of the election of the Head of Government had been established. The conclusion was inescapable that Islam had not prescribed any particular pattern of government but had left it to the community to evolve its own pattern to suit its circumstances, provided that the principles of the Quran and the Sunnah were observed."[5]

Arguing that the burden of thinking about the interpretation of the Islamic principles must rest on the community, Ayub Khan says: " In all this, I was guided by my understanding of the institution of ijma (consensus) provided in Islam. According to one school of thought ijma represents the agreement, in a matter requiring opinion or decision, of the mujthahids, people who, by virtue of their knowledge of Islam, have a right to form their own judgment. Another school of thought interprets ijma to form as the opinion of the majority of all Muslims. There is yet another view that the right to formulate independent judgment on matters affecting the life of the people rests in the Legislative and not in any body of scholars."[6]

In this view Ayub Khan was probably influenced by Dr Mohammad Iqbal who argues: "The growth of republican spirit, and the gradual formation of legislative assemblies in Muslim lands constitutes a great step in advance. The transfer of the power of ijtehad from individual representatives of school to a Muslim legislative assembly which, in view of growth of opposing sects, is the only possible form ijma can take in modern times."[7] Iqbal also holds that on a question of legal interpretation, even the unanimous decision of the Companions of the Prophet would not inescapably bind later generations.[8]

Continuing his argument on ijma, Ayub Khan writes: " I did not want to prejudge the issue and therefore in the constitutional arrangement I left it to the representatives of the people to decide how they would like to form their judgment in matters relating to the Quran and the Sunnah. I thought it necessary to provide an Advisory Council of Islamic Ideology backed by an Islamic Research Institute to assist the Legislature in framing laws based on the concepts of Islam. The Council was to have as members not only those persons who possessed a knowledge of Islam but also those who understood the economic, political, legal and administrative problems of the country so that the requirements of Islam and the requirements of the time and circumstances could be harmonized."[9]

Realizing that Ulema would not be satisfied with this arrangement, he said: "They claimed the exclusive right to interpret and decide matters pertaining to Islam. While they maintained this claim they refrained from producing any detailed constitutional document, knowing that such an attempt would only expose their internal differences. Their demand was that the government should agree to adopt an Islamic Constitution, leaving it to the Ulema to decide whether any law or measure was Islamic or not."[10]

Elaborating on Ulema's demand for an Islamic Constitution, Ayub Khan went on to say: Since no one had defined the fundamental elements of an Islamic Constitution, no constitution could be called Islamic unless it received the blessings of all Ulema. The only way of having an Islamic Constitution was to hand over the country to the Ulema and beseech them, 'lead kindly light.' This is precisely what the Ulema wanted. A constitution could be regarded as Islamic only if it were drafted by the Ulema and conceded them the authority to judge and govern the people. This was a position which neither the people nor I was prepared to accept."[11]

Ayub Khan's liberal interpretation of Islam reflected in his constitution. The Constitution Commission appointed by him in 1960 recommended that "we should set up an International Muslim Commission to advise us as to how our laws could be made to conform to the injunctions of the Holy Quran and the Sunnah. I doubted whether a Commission of this kind would serve any useful purpose. I sounded some Heads of State at the time but they showed no enthusiasm for the idea. It was obvious that we would have to address ourselves to our problems and work out our own solutions." [12] The Constitution Commission also pointed out that "the bringing of the laws into conformity with the Quran and Sunnah does not by itself make a good Muslim."[13]

Ayub Khan's skepticism about the role of Ulema in politics culminated in outlawing the most organized and vocal religious group in the country, Jamat-i-Islami, in 1963. His government saw the activities of this religious party incompatible with the security of the state. All the government servants and military personnel were asked to file an affidavit declaring that they do not belong to Jamat-i-Islami.

Before the promulgation of the constitution, Ayub Khan introduced the Muslim Family Laws through an Ordinance on March 2, 1961 under which unmitigated polygamy was abolished, consent of the current wife was made mandatory for a second marriage, brakes were placed on the practice of instant divorce where men pronounced it irrevocably by pronouncing talaq thrice in one go. The Arbitration Councils set up under the law in the urban and rural areas were to deal with cases of (a) grant of sanction to a person to contract a second marriage during the subsistence of a marriage; (b) reconciliation of a dispute between a husband and a wife; (c) grant maintenance to the wife and children.

All Muslim marriages were to be compulsorily registered with registrars to be appointed by union councils, one in each ward. The registrars were also empowered to perform marriages. For such services they were to be paid substantial fees. The offices of registrars were filled by Imams and Khatibs. A sum of Rs. 5 crore annually went into the pockets of these religious leaders as a result of the fees prescribed by the ordinance. When Jamat-i-Islami launched an agitation against this "un-Islamic" Law, religious leaders either supported the President or kept aloof from the movement.[14]

President Ayub promulgated the West Pakistan Waqf Properties Ordinance, 1961 on October 23, 1961 under which the government took over huge and valuable properties of Muslim trusts. Enormous funds recovered from the Waqf properties, which previously went into private pockets, were now at the disposal of the government. Some of these funds were spent on the salaries of the Imams and Khatibs of important mosques. The President was able thus to get further support from these religious leaders who were already indebted to him for being provided with jobs under the Family Laws Ordinance, 1961.[15]

Ayub Khan's liberal interpretation of the Islamic principles antagonized Ulema who opposed his Family Law Ordinance to regulate Islamic personal law in a modern Islamic society. His attempts to popularize the family planning program was declared un-Islamic by orthodox mullahs who quoted verses from the Holy Quran to plead that the use of contraceptives was prohibited in Islam. Although the 1968-69 political agitation against Ayub's regime was mainly directed against the system of indirect elections, but during the demonstrations, the conservative section of population was easily aroused to turn against Ayub Khan to protest his "anti-Islamic" policies. During Ayub Khan's talks with the political leaders on 10th March, 1969, in Rawalpindi, leader of Jamiat-e-Ulema-e-Pakistan, Mufti Mahmood, objected to the Muslim Family Laws Ordinance and demanded that the 22 points agreed by Ulema in 1951 should be implemented in order to make Pakistan a true Islamic state.

Despite Ulema's vehement opposition to the Family Laws Ordinance, the role of Islam in politics remained eclipsed during the Ayub era. However, in 1967, he faced the wrath of Ulema on two other religious issues. The first was a controversy over the sighting of the crescent of Shawwal when the religious leaders gave public-heeded fatwas against celebrating Eid-al-Fitr according to the decision of the government-sponsored central moon-sighting committee. The religious leaders claimed that the people of Pakistan follow them on religious issues and do not have any confidence in the government in this sphere.

Another issue was the book "Islam" written by Dr. Fazal-ur-Rehman, the Chairman of the Islamic Research Institute.There was a mass protest by the Ulema against the book. The author was forced to resign his job as Ayub's government decided to avoid confrontation with the religious lobby. The campaign against the liberal interpretation of Islam by Dr. Fazal [16] was seen as the second mass agitation the country had witnessed after the 1953 anti-Qadiani movement.