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Tuesday, July 26, 2016

Islamic State 12: Legal Status and Rights of the Non-Muslim Pakistanis

We have sufficiently explained and fairly detailed the nature and basis of the difference between ahl al-‘anwah and the mu‘āhid non-Muslims in the Islamic sharī‘ah. Without a proper understanding of this important issue, it would not be possible to gather a correct picture of the rights and obligations of the non-Muslim citizens. Now we turn our attention to the question of the legal status of the non-Muslims living in Pakistan. Will they be considered ahl al-‘anwah or the mu‘āhid? A concrete answer to these questions will set us at clarity regarding the rights and obligations of the non-Muslim population of Pakistan.
There is no reason to believe that the non-Muslim population of Pakistan can be considered ahl al-‘anwah. They have never fought the forces of God and his Messenger nor have they been fought with and subjugated by the national military forces. They have become Pakistani citizens as a result of the partition of the Colonial India. It is a known fact that the partition was an agreed upon matter among the leaders of both the parties, Muslims and non-Muslim of India. No war or military operation was involved. Therefore, the mere fact that the non-Muslims of Pakistan were included as the citizens of the country through a tacit pact between the two parties makes it impossible for any to consider them ahl al-‘anwah. They are but the mu‘āhid kind of non-Muslims living in the Islamic State. Although this fact alone is enough to prove that they are the mu‘āhid in nature but we have some other facts which if considered render it absolutely clear that they are not ahl al-‘anwah and should be treated as mu‘āhid. They are as follows:
1. Right from the birth of Pakistan all the responsible leaders of the country have repeatedly been assuring them that they are a minority and will be treated not only justly but with generosity.
2. The newly born state was run according to the Indian act 1935 which defines them as minority with definite rights and obligations.
3. The new constitutional assembly formed to prepare the national constitution to replace the Indian act 1935 comprises of both Muslim and non-Muslim members. The non-Muslim members, by virtue of their being members of the assembly and representatives of the minorities, enjoy rights equal to that of the Muslims.[1]
All the above mentioned facts prove that the non-Muslim minorities of the state themselves have decided to live as the nationals of this state. They have not been subjected to live here. The leaders and rulers of Pakistan too have accepted to treat them as a minority. Now, if, ours were a secular state their promised status would have been interpreted according to the common usage of the word ‘minority’ and their rights and duties would have been mentioned in the constitution of Pakistan. But since, the Muslims of the Indian subcontinent have struggled for the partition and creation of Pakistan only in order that they can guard the future generations against the onslaught of secularism, it was clear to the non-Muslims who agreed to live in the new Islamic Sate as a minority that the state they were going to live in would be an ideological state run according to the principles of Islam. This forces us to consider the question how it will be possible for us to honestly and fully honour the promises made with minorities in the Islamic political system. We believe that the answer to this question is that in the Islamic political system such kind of non-Muslims as living in Pakistan is considered mu‘āhid dhimmīs. Their rights and duties and status in the state should be determined by the rights and duties of the mu‘āhid dhimmīs in the sharī‘ah.
It is not the scope of this discussion to determine their rights in precision. This issue is absolutely political in nature and should be resolved by the representatives of the Muslim majority and the non-Muslim minorities in the constitutional assembly. Then whatever rights the non-Muslims are awarded within the confines of the sharī‘ah will be considered guaranteed and protected by the Almighty and his Messenger. The government will not be allowed to disregard any such right in any way unless the minorities fail to discharge any corresponding duty. However, we believe that a brief discussion on what possible rights can be guaranteed to the non-Muslims will be helpful to those who are pondering over the issue in the assembly. The following points are thus offered which it is hoped will provide the authorities useful help in determining principles to be observed while discussing the rights of the non-Muslims.


If the non-Muslim minorities of Pakistan feel it humiliating to be subjected to the payment of kharāj they can be exempted from this tax. Like Muslims, they can thus be subjected to other kinds of taxes on all types of produce. Any distinctive form of taxation can also be agreed upon by both the parties. However, any other option adopted must not be prohibited by the sharī‘ahand it must not result in loss of the national treasury. [2]


If the minorities object to the jizyah tax or feel uncomfortable with the mere name of jizyah they can be made to pay the tax necessary for the national defence with any other name. If they agree to directly serve in the defence forces they can be exempted from any tax of the kind of jizyahwhich is paid against the exemption from military services. However, while considering this last option, the state authorities have to determine how the minorities win their confidence. If the minorities have provided a concrete proof of loyalty with the state, they can be allowed to work in the national defence. There is nothing wrong with such an arrangement. However, they cannot be given key posts which involve policy making where they can influence the Islamic principles governing the laws of war in Islam.
Some people may doubt the tenability of this view. We, therefore, elaborate upon it further. Though some of the jurists do not consider it allowable to the rulers to let the non-Muslims fight alongside the Muslim in jihād yet some others view that in the beginning it was prohibited but later on it was allowed. This view has been attributed to Imām Shāfi‘ī. Ahl Bayt, Imām Abū Ḥanīfah and his followers. They hold that there is nothing wrong in taking help from the disbelievers and the wrong doers in jihād provided they submit to the authority of the head. These scholars have based their view on various prophetic traditions and events in the early Islam which cannot be recounted here for fear of lengthiness.
Some other scholars believe that when the commander of the believers have enough Muslim soldiers to implement the law among the people he is waging war on, he may use military help from non-Muslims in this campaign. This is agreed upon by all that when the non-Muslims render military or any other defence related service they will not be subjected to the payment of jizyah. The treaties enacted with the non-Muslims of Dahstān Jurjān contained the following important term:

If any among you will participate in defence and military advance he will be forgiven the jizyah.[3]

When the prince of Al-Bāb or Bāb al-Abwāb Shahr Barāz heard about the Muslims’ advance towards his city he wrote to the Muslim commander ‘Abd al-Raḥmān b. Rabī‘ah:

I am in front of your severe enemies, and other different nations. I am not an ally of Qabaj and Armanun. Now when you have overpowered my county and my nation I am one among you. My strength is your strength and my tax and my help is reserved for you. It is my duty to acquiesce to your will. Considering these things you should not humiliate us by imposing jizyah on us and weaken us for your own enemy.[4]

The commander of the Muslim army accepted this offer from Shahr Barāz with a little variation. He responded by saying that those among the subject of the prince would participate in military campaigns would be forgiven jizyah. He sent Surāqah b. Mālik to the capital seeking affirmation from the Caliph. The Caliph approved of this decision of his commander and was greatly pleased.


The non-Muslim minorities in Pakistan can be awarded complete religious freedom. They can be guaranteed that the religious freedom they have been previously enjoying living in the cities and villages of the areas now coming under Pakistan will be secured. They will only be subjected to restrictions imposed on all other citizens (including Muslims) of Pakistan.


In this sphere too they can be guaranteed protection of all rights they enjoyed previously.


These include right to form view and express them, to propagate their religion, to criticize the authorities and to hold procession and congregations. The non-Muslims can be awarded all rights the other citizens of Pakistan (including Muslims) enjoy moderated by the national law.


It is a known fact that in the Islamic State the right to legislate independently goes to none other than God. The state will implement the laws already legislated by God and his Messenger. However, there are issues where there is no law or clear guidance available from the Almighty Allah and his Messenger. Those with profound knowledge of the sharī‘ah of God are required to ponder over such issues, consider the circumstances and the benefit of the nation and suggest the best possible view conforming to the will of God. Obviously non-Muslims cannot be of any help in this regard. Their participation in this process is not a meaningful exercise. There are, however, issues relating to common good and administrative affairs where the government will take help from the non-Muslims just as it seeks counsel from the Muslims. The non-Muslims can even be given equal participation in legislation on these matters. Moreover the non-Muslims can be awarded right to form an assembly comprising their representatives who can be entrusted the duty to administer their cultural and religious institutions and legislate their personal laws.


Except for the key posts, which involve policy making or which can affect the policy making process or require their holders to have firm knowledge of Islam, non-Muslims can be appointed in all departments of the administration. Thus except for the key posts, the nature of which has been explained above, the only criterion of selection should comprise ability, loyalty, honesty and performance. No discrimination between followers of different religions can be shown.


The state can guarantee the non-Muslims that their disabled persons will be provided financial security through grants from the bayt al-māl. The state will be responsible to provide employment to the unemployed among them.
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[1] This chapter was written in 1950 when the first constitution of Pakistan was being formulated. However, the status of the non-Muslim members of the assembly is the same in the present constitution.
[2] This and other related assertions have already been substantiated in this book. This renders it redundant to repeat them here.
[3] Haykal, al-Fārūq ‘Umar, 2: 42.
[4] Ibid., 2: 43.