The Principles of Shura and Limits of Executive Power: Re-Evaluating Yahya Khan’s Regime Through Islamic Jurisprudence

Abstract

This study attempts to reconsider the constitutional and administrative governance of General Muhammad Agha Yahya Khan's regime (1969-1971) by Drawing on Islamic political jurisprudence (Siyasa Shar'iyyah) in light of the principle of Shura (consultation) and the legal limitations on the powers of the executive. In Islamic jurisprudence, executive power is limited and bounded by the concept of public interest (Masalah 'Ammah) and consultative constitutionalism. A descriptive, analytical and jurisprudential approach is used to critically analyse important legal instruments and executive decisions leading to the constitutional crisis of 1971, the most notable of which was the Legal Framework Order of 1970.

The analysis shows that the consolidation of the ultimate legislative veto power in the hands of the executive office and direct overriding of the elected representative assembly would stand in contradiction to Islamic legal maxims, such as Al-Tasarruf 'ala al-ra'iyyah manut bi al-maslahah (Governance over the subjects is contingent upon public interest). The paper argues that a consultative legitimacy, which was subordinated to autocratic executive authority, was a significant threat to state integrity and legal order. The results are significant implication for the accountability of the executive, the design of the constitution and the balance of power in contemporary Islamic governance.