Q short note on constitutional law?
Q what do you mean by constitution?
Q define state and its element or write down the constitution/legal system and its main parts.
Constitutional law: The body of laws which determine and regulates the powers and functions of the various organs or departments of the state, the relations between the governor and the governed and their rights is called the constitutional law. it is that body of rules which determine the constitution of the state, that is to say, the essential and fundamental portions of states organization. The organization of modern Islamic states is of vast complexity, but it is usually divisible into two distinct parts:
- The first consisting of essential, fundamental or basal elements called the constitution of the state
- The second consisting of secondary elements, that is details of state structure and state action. It has no generic title.
Islamic constitution: constitution is the set of articles for the whole nation to act upon. Islamic constitution is based on the treaty of madina. In urdu we use the term meesaq-e-madina. It is treated as the first written Islamic constitution. There were only two articles related to the authority of prophet (P.B.U.H)
- Prophet (P.B.U.H) will be the leader of the army
- Prophet will set off the dispute between the tribes of any dispute arises
The history behind this agreement started when Hazrat Muhammad signed an agreement with banu Qurayza. This agreement is called meesaq e madina
Dr. hameedulla lived in france most of his life, who define the articles of Islamic constitution about 30 of them out of 36. These articles includes rights according to which every tribe had a right to live according to their wishes, custom, morals and establish trade and political relations.
Death is the punishment of that person who threatens the constitution of the country. In British law king cannot do wrong it has given immunity because he is considered as divine law of the land but in Islamic treaty every dispute solved in the shadow of treaty. In Islamic system all the principles prevailing were not totally ignored but were refine and accepted in islam. These principle becomes the part of Islamic cosntitution.
Qazi shurah was a judge during the period of Hazrat Umar (R.A) who was not sahabi but the tabaen ( followers). Islam believes in competency and not superiority but the 18th amendment in the constitution of Islamic republic of Pakistan talks about seniority which is not according to the Islamic legal sytem.
Main parts of the constitution/pillars of the state: the legal system of a country to run the government depends upon the constitution of the country. A constitution is generally comprise with duties and functions of three pillars of state namely;
- Legislative: the chief function of every legislature is to make law. it passes new laws or amends or repeals old ones, when they become obsolete or when so required.
Principle function of legislation: Article 227 of the Islamic republic of Pakistan constitution mention two things ; one thing is that all law which are against the islam would be converted into Islamic law and secondly that no law shall be made against Islam.
- Executive: the executive includes all official of the state from the highest to the lowest, from the president down to a policeman or a patwari, who execute or enforce laws and administer the country. In islam the responsibility of the administration rests with imam, the executive head but for the convenience of administration, he may delegate his power to different person as in ministers. He is bound by law and by decrees and orders of the court like any other citizen. He is the trustee or custodian of public property such as revenues and in no sense its owner.
- Judiciary: its the last organ of the state and its duty is to interpret the law. the function of it is to apply existing laws to the cases or legal disputes brought before the courts for settlement. In Islam no one can be appointed Qazi unless he possess the qualification of a witness that is to say, unless he is a muslim, free and major. A qazi is appointed for a particular time or with jurisdiction over a particular area. Among the quasi judicial duties the qazi is empowered and required to supervise the management and administration of waqfs so far as it may be necessary for the preservation of the trust property and their application to the objects of the grant.
State: . A state is a community of people, occupying a definite territory , organized under a government, which is supreme over al person and association within its territory and independent of all foreign control or power The concept of state in the Muhammadan system is of a common wealth of all the muslims living as one community under the guidance and direction of a supreme executive head called the imam or the caliph.
Elements/ingredients of state: there are four elements of states:
- Sovereignty: It means the supreme, original and unlimited power exercised over all persons and associations within the boundaries of the state, independent of every outside power. The state alone is the sovereign association.
- Population: the state is an association of men living together. We cannot, conceive of a state without a population. It is said that the population should be so much as would be sufficient to perform all the needs of culture, arts, civilized life, etc.
- Land or area: it is the physical basis of state. When people live together on a particular territory, they develop community of interests and patriotism, which are necessary elements of statehood.
- Government: a people without a government are a mere assemblage of human beings and not a politically organized community. Government is the machinery or agency through which the will of the state is formulated and expresses. The state plans and acts through the government.
The concept of the state in islam : An Islamic state is understood on the basis of this integrative principle of Islam. Following are them:
- Sovereignty of Allah
- Khilafat
- Government by consultation
- Obedience of the awulal amr or the ruler
- Equality of all mankind
- Order well and punish wrong
- Payment of zakat
