The government’s talks with the Taliban were expected by all to come up against the Sharia, the Constitution and their places in the life of the country, but it is interesting to see that this issue has shown little significant advance since the abolition of the Caliphate in 1924 first made it relevant.

That abolition had resulted in the Khilafat Movement, and led to the demand for a separate homeland for the Muslims of the Subcontinent. The person first voicing that demand, in his 1930 Allahabad Address, Allama Iqbal, said a parliament could act as a substitute legislature. It is instructive that those who argue that there is no contradiction, as the Constitution provides not just laws must be in accordance with Islam but also the Council of Islamic Ideology mechanism to bring laws in conformity with Sharia, rely on Parliament to make laws. The Taliban have argued that the Sharia must be supreme. The Sharia consists of laws derived from the Quran and Sunnah, and the contradiction with the Constitution arises because the idea of Parliament legislating is seen as contradicting the concept of all laws being derived from the Quran and Sunnah. Those who derive the law are not supposed to legislate, but merely determine what the law is, and how the texts of the Quran and Sunnah apply to situations that arise. The orthodoxy is that the Almighty is Ash-Shaari, the Lawgiver, and Mankind is merely to derive the laws from His Book and the Sunnah of His Prophet. Thus, Parliament making laws is unacceptable to the orthodox.

Incidentally, the Taliban are thus aligned to Gen (retd) Pervez Musharraf, now on trial for high treason, who also did not accept the sanctity of the Constitution. It is perhaps unfair to blame Musharraf alone, for he is firmly in a military tradition of not accepting the sanctity of the Constitution.

However, it seems that the debate has been apparently sidetracked. Taliban opponents, if prodded, seem to object to Sharia because it does not offer sufficient protection to women or minorities. Supporters seem to have two main grievances: the existence of two syllabi, and the existence of interest in the banking system. It should not be lost sight of, that the Taliban may have acceded to the government demand, that they accept the legitimacy of the Constitution. However, their accepting does not solve matters, though it facilitates talks. Previous opponents of the Constitution have accepted it for political reasons, though they have given theological reasons.

One reason for this has been that an insistence on it has not been supported by the general mass. It has also meant being shut out of the political process. Though ulema have insisted they alone have the expertise needed for a life according to Islam, they need people at large to boycott elections to show their agreement, and if the ulema contest elections, they need the votes of all to impose their version of Sharia.

One of the signal developments in this debate was the 1949 Objectives Resolution, which shaped the Constitutions of the country, to the extent that the Preamble to the current Constitution is basically a paraphrase, while Ziaul Haq included it in the Constitution as Article 2A. The Objectives Resolution attempted to achieve a compromise on the Sharia issue, arguing that sovereignty belonged to the Almighty, and was to be exercised through the people’s elected representatives.

At the heart of the debate is the question of how Muslims are to retain their identity as Muslims while addressing the undeniable fact that they were overcome, and their lands conquered, while they were ruled by the Sharia. This has been the general experience of Muslims, with only the lands under Turkish rule retaining their independence, though even Turkey was under foreign occupation for some years after World War I, before the Caliphate was abolished. In India, the Muslim League, which had been founded to represent the Muslims, to provide a political platform other than Congress, which was taken over by caste Hindus soon after its founding, to make the demand for independence. The League based its demand for Pakistan on the language of the colonial rulers, that of nationalism, that of Muslims being a nation distinct from Hindus, and thus needing a homeland of their own, to be established in the Muslim-majority areas of the Subcontinent. This was an ideological innovation, for it added a new marker for nationhood, but it also upheld the principle of nationhood.

On the other hand, the refusal to accept the Constitution also rejects the idea of nationhood. The idea of Al-Qaeda is that much rooted in orthodoxy, that it does not accept national divisions. That justifies the idea of Arabs, Chechens, Chinese Turkestanis, Moros, even American Taliban, fighting and dying to rid Afghanistan of ‘foreign’ (or rather, ‘non-Muslim’) invaders.

One of the basic problems that defenders of the Constitution face is that nothing seems to be doing a very good job. One of the prime drivers behind the Pakistan Movement was that a better life than colonial rule offered. Independence was achieved, but life did not improve. Rather, it did not improve as much as it was thought it would. Also, at that time, while most of the colonies were still ruled by the mother countries, neo-colonialism has already developed, and the USA began to replace the UK. Pakistan went firmly into the American camp in the Cold War, moved from parliamentary democracy to Martial Law, all to no avail. The fruits of independence were not sufficient for the people. Neither the Bhutto-era socialist experiment, nor the religiosity of the Zia years brought enough change.

The doubt that democracy and independence have not delivered as they have promised, has been exploited by military rulers, but four episodes have shown that military rule does not provide a solution. People are thus turning to Islam, not out of any fanaticism, but because they want their problems solved in its light, and not as the religion of their ancestors, or out of any desire to return to a past when they were dominant. This desire to turn to Islam, or rather the solutions contained within the Islamic belief system, is because of the failure of what the Constitution represents, to meet the aspirations of the people. What it represents is the prevalent system, which is capitalist, and depends on the banking system, which in turn is based on interest.

A state has a constitution. That may be monarchic, democratic or Islamic. If it is written, it provides the details of the state, such as how many seats its legislature should have, or what are the relations between its constituent parts. Even if the present Constitution is jettisoned, some document would have to contain this information.

The readiness to engage in this debate should make it clear that the talks have only been made possible by a lot of killing. The Taliban have made it clear to others that the state can be obliged to talk. While the Taliban may concede the supremacy of the Constitution, that would not mean the end of the debate. It should also be clear to all that the debate is moving from the periphery to centrestage. It might well be the core of the debate, the next time it is discussed.

 The writer is a veteran journalist   and founding member as well as executive editor of The Nation.