Introduction
The State of Pakistan is the end-result of a historical process which started with the first Muslim invasion of this subcontinent. Various factors, political, economic, social, cultural and religious, operated on and entered into the structure of the Muslim nation which emerged, in 1947, as a unique ideological State, comprising of two units separated by a thousand miles of hostile Indian territory. Its dominating inspiration, however, came from the religious consciousness of the Muslims of the subcontinent, which crystallised into an ardent longing for a terrestrial base for the working out of what was regarded as a Divine Plan of action in the socio-political sphere. Implementation of the Islamic values of life was declared to be the objective before the Founding Fathers of Pakistan by a formal Constitutional Instrument drawn up finally in 1956. The Constitution of 1956 was, however, superseded by the Martial Law regime in 1958, and, four years later, the Constitution of 1962 was promulgated by a Presidential Decree, under the protective umbrella of Martial Law. Whatever may have been the political overtones or undertones of that constitutional dispensation, it respected the ambition of the majority Muslim community to order their lives in accordance with the dictates of the Qur’an and the Sunnah, while ensuring cultural and religious autonomy and fundamental political equality to the non-Muslim minorities, like its predecessor in the constitutional field. Later political developments have own that instrument ‘again into the melting pot.
Though some political parties have sponsored schemes of a more equitable distribution of the means of production and wealth, under the undefined terminology of “Islamic Socialism,” none has denied the efficacy of the religious motivation in the life of the Muslim community and, except for a small group of extremists, even the leftist parties have professed anxiety for pressing into service the principles of Islamic social justice. The question, therefore, as to what sort of polity the fundamentals of Islam envisage is very much a live issue in the context of our present-day politics.
The non-Muslims resident in Pakistan, since its inception, were assured time and again by the Qa’id-i A’zam Muhammad ‘All jinnah, that they would have all the fundamental rights guaranteed to them, on a basis of equality with the members of the majority community and that they may even expect to receive generous rather than merely egalitarian treatment. These non-Muslims are neither dhimmis nor musta’mins in the technical sense of Muslim jurisprudence. Their position is assimilable to that of mu’ ahids-the beneficiaries of a binding pact. There is august precedent available in Muslim history for this kind of integrating equation for certain State purposes, subject to the different communities enjoying full liberty of conscience and autonomy of action in the religious field, with the overriding reservation that the Head of the State must belong to the numerically predominant community. The Prophet (on him be peace) had entered into such a pact with the Jewish and Christian tribes of Medina, after his migration from Mecca (the Hijrah). The Qa’id-i-A’zam was, therefore, essentially right in holding out an assurance of this character to those non-Muslims who owed unquestioning allegiance to the State of Pakistan.
With a mixed population such as we have in Pakistan, the problem of inter-communal harmony assumes importance. Freedom of conscience, the right to profess as well as propagate one’s own faith and to safeguard one’s religious institutions, consistently with law and morality, would be regarded as the inviolable right of every community in the modern world. The position of the proselyte, if he happens to belong to the majority community, would present a testing ground of good faith and fair play in inter-communal relations. Unfortunately our Fiqh Compendiums do not enter on an analytical study of this problem, in the light of the Qur’anic injunctions and authentic Sunnah, and no distinction apparently exists in the minds of the old jurists between apostasy simpliciter and apostasy combined with treason or severance of allegiance to the State. It is tacitly assumed that every apostate from Islam deserves the death penalty, not merely as a renegade from the true faith, but also as a muhariba-an active rebel. Such a doctrine could have far-reaching repercussions in the socio-political sphere and might invite retaliatory legislation from countries where the Muslims happen to be in a minority. Eventually such a legislative war might put an end to all missionary activity in support of Islam.
The image of Islam created by some of the non-Muslim Western scholars strikes a humble student of the Qur’an, like the present writer, to be a crude caricature of its liberal humanitarian teachings. Majid Khadduri’s appraisal of the Islamic Law on the subject of apostasy leads him to conclude that “both jurists and theologians agree that apostasy constitutes a violation of law, punishable both in this world and the next. Not only is the person denied salvation in the next world but he is liable to capital punishment by the State.” Samuel M. Zwemer, Christian missionary in Egypt, claims that there are so few converts from amongst Muslims to Christianity, in spite of prodigious missionary efforts, because the sword of Damocles is always hanging over their heads in the shape of the death sentence, if they commit apostasy. He quotes from Dr Andrew Watson’s History of the American Mission in Egypt (1854-94) an assertion that all seventy five converts to Christianity, from among Muslims, were subject to persecution “because the idea of personal liberty-freedom of conscience-has no place in Moslem Law, whether religious or civil.”3 Such distortions of the clear Qur’anic injunction of there being no compulsion in religion (La ikraha ji’d-Din) are, however, made possible (speaking with all respect) by uncritical generalisations of concrete decisions in our history, by our own scholars and juris consults. By and large, our orthodox Fuqaha’ (jurists) have taken the inelastic line that the punishment for apostasy in Islam is death. Echoes of this view are to be heard in the writings of some of our modern savants as well. Only two such instances may suffice to illustrate my point.
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