The case for a new secular constitution for Pakistan

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Yasser Latif Hamdani*

*The author is a practicing lawyer based in Lahore. He is also author of the book: “Jinnah; Myth and Reality.” His email address is Yasser.hamdani@gmail.com

Events in India, the Dadri lynching, cow politics and now Shiv Sena’s offer of Indian Rs 100,000 to anyone who slaps Indian Muslim actor Aamir Khan have laid bare the shocking intolerance and discrimination that is rife in the world’s largest secular democracy. No doubt, it vindicates our decision to have Pakistan in the first place but while Pakistanis might be delighted in this belated exposure of Indian intolerance to the world, the fact remains that India is constitutionally a secular democracy.

All things considered equal, a secular democracy will and should still be considered better than a theocracy, which we Pakistanis must accept is what the Islamic Republic of Pakistan has been since 1974. It does not matter how many times our Prime Minister (PM) attends Diwali with the Hindus. It does not matter that our PM, Mian Nawaz Sharif, in his second avatar is an enlightened moderate and the PM of India, Mr Modi, is allegedly a Hindu fanatic (though his recent stop over at Lahore shows that he is not necessarily the fanatic we want him to be). The bottom line is that India does not discriminate constitutionally and legally on the basis of faith, at least not like Pakistan does. India could be an intolerant and bigoted society but as a State it does not legalise persecution. That places India in a category of civilized states and our legal persecution of minorities places us in the category of a medieval state.

Pakistan’s Constitution of 1973 is both woefully inadequate and unnecessarily cumbersome for the governance of a modern democracy in the 21st century. It is too burdened by contradictory objectives, which include on the one hand the idea that Pakistan is an Islamic Republic and on the other that it is a modern democratic state based on the notion of fundamental rights of citizens. If there was ever a lesson in how fusing religion with the State is a disastrous idea, it is to be learnt from the practical realities that flow from trying to work an unsustainable premise that the State can be a theocracy and a democracy at the same time.

There are some stock myths that we have internalised about the 1973 Constitution, foremost of which is that it represents some sort of national consensus. It does not. It was drafted by the residue of elected representatives left behind after the separation of Bangladesh, which it must be remembered was the majority of the country at the time of the elections of 1970. Shocked by the catastrophic events of 1971, the legislators acted like a herd of sheep. There was hardly any discussion on some of those key elements of the constitution that are taken for granted. There was no discussion on why Pakistan should be an Islamic Republic. There was no discussion on the pros and cons of having a State religion. It did not occur to these legislators that closing the office of President and Prime Minister (PM) to non-Muslims would be a discriminatory measure that would forever damn the minorities in the country to second-class citizenship. Institutions like the Council of Islamic Ideology (CII) were foisted on the nation without any debate. The little discussion that happened took place around the nature of federalism but even there a concurrent list ensured that Pakistan would for all practical purposes be a centralised State run from Islamabad instead of a true federation. How could such a document, drafted on the whims of Mr Zulfikar Ali Bhutto and vetted by Maulana Abu Ala Maududi, represent a national consensus? When or how was the opinion of religious minorities elicited? Who represented the Christians or Hindus in this national consensus? Were they not citizens of the country or did their voice as minorities not count in a State that ostensibly had been founded on the principle that permanent cultural majorities should not dominate permanent cultural minorities by sheer numbers alone? Minorities in Pakistan have never agreed and will never agree to top down discrimination imposed on them by the State.

A real national consensus could have only been achieved by a truly representative constituent assembly formed on the basis of proportional representation of all communities, minorities and ethnicities. The basic premise for constitution making should have been consensus and not majority vote. This consensus would have required a frank and open discussion on how the various communities and people living in the country imagined Pakistan to be and how they would want to interact with the State. There would be some irreducible minimums that would have to be accepted, most importantly the principle that the citizens of Pakistan, regardless of their religion or background, are equal citizens. That alone can be the cornerstone of a true democracy. It would mean that any citizen of Pakistan, no matter what his/her religious belief, would be able to aspire for the highest elected office in the land. As for the other ideological components of the State, they would have to be debated and hammered out after a true exercise of the mind by legislators.

It must be stated without any fear that Pakistan has done Islam no favours by pretending to legislate in its name. The countless laws that are said to be Islamic in this country are farthest from the spirit of the great religion. The so-called Islamic laws in Pakistan have been put on the statute books as an eyewash for the masses, who are readily sold pretensions of piety instead of the real thing. A truly Islamic Pakistan, in my humble opinion, would not be an Islamic Republic but a progressive democratic state that works to uplift the lives of its citizens, especially the poorest and the most marginalised sections of society. A truly Islamic Pakistan would not be bothered with the personal religious observances of citizens but rather with honesty, integrity and justice in its governance and state of affairs. Pakistan in 2016, therefore, needs a new, I daresay, secular constitution that embodies human solidarity and equality rather than any hypocritical lip service to religion.

It is a shame that Pakistan discriminates on the basis of religion, when its founding father, Mohammad Ali Jinnah, was the foremost advocate of civil liberties and religious freedom in his long and illustrious career as a legislator and a politician in undivided India. His entire being was an antithesis of the theocrat and I am not sure if he were alive today he would want to be associated with the sobriquet “Founder of Pakistan”. He certainly would not endorse a state of affairs where the offices of President and PM in the State are reserved for just one community. His entire legislative career was dedicated to speaking for the rights of minorities and marginalised groups, not just Muslims but the untouchables and Christians as well. Being a double minority himself, born an Ismaili Shia Muslim, Jinnah’s concern had always been to get a fair share for the minorities: religious, sectarian, caste or otherwise. He balked at the idea of majoritarian fascism and yet the State that calls him its Founding Father is precisely that.

Any honest student of Jinnah’s politics from 1906 to 1948 will tell you that there is no greater anti-Jinnah document, completely and totally in contradiction to what Jinnah stood for, than the Constitution of the Islamic Republic of Pakistan, 1973. It is not that hard to determine the truth behind this claim I make here. Every speech and every legislative instrument Jinnah was involved in right from the time he joined the Congress Party in 1906, when he became a representative on the Viceroy’s council in 1910 and later on as a member of the Indian central legislature, is all part of record in both parliamentary and legislative records in both India and Pakistan. This record shows Jinnah to be an astute liberal democrat committed to the principles of modern democracy and equality of citizenship for all Indians regardless of their religion, caste or creed. It also shows that Jinnah’s famous August 11 speech was not a one-off ‘aberration’ but was a restatement of a lifelong commitment to human rights and freedom.

When measured up to Jinnah’s speeches and statements in the Indian central legislature as well as Pakistan’s constituent assembly, the 1973 Constitution appears to be fundamentally flawed. The Constitution of Pakistan, 1973, indeed does not purport to be a secular constitution. Instead it has a more definite Islamic character than the Constitutions of 1956 and 1962, a reflection of the changed geography of Pakistan post-1971. The only truly secular constitution Pakistan had was the Government of India Act (GOAI), 1935, which was in force from partition to the promulgation of the Constitution of 1956. GOIA 1935, as adapted by Pakistan in 1947, had no State religion and no discrimination between Muslims and non-Muslims in terms of the high offices of the State. The 1956 Constitution declared Pakistan to be an Islamic Republic with a parliamentary democracy, but more or less was a secular constitution in its practical implementation. The 1962 Constitution initially declared Pakistan simply the “Republic of Pakistan” but that was changed through the first amendment to that constitution. Significantly, neither of these constitutions had a state religion but both constitutions reserved the office of the President for Muslims. A President under the 1956 Constitution was a figurehead and the office of Prime Minister was left open for all citizens without discrimination. The 1962 Constitution was a presidential constitution.

Bangladesh’s separation affected the debate around religion in Pakistan in three significant ways: it was a blow to Pakistan’s self-identification as a Muslim homeland, forcing it to seek its raison d’être not in the Two Nation Theory of the Muslim League but the Islamic ideology of those religious parties that had opposed the Muslim League during the Pakistan Movement. It stripped Pakistan of the bulk of its non-Muslim minorities. Finally, it elevated religious parties, particularly Mufti Mahmood and Maulana Maududi, to the status of a national opposition. Zulfikar Ali Bhutto and his PPP – as the government – were forced to coopt their agenda time and again during the next decade as a matter of expediency. The 1973 Constitution thus represented more the compromise between a larger religious opposition and the secular or mainstream parties in Pakistan than what was possible in a united Pakistan. By barring the offices of President and Prime Minister of the republic to non-Muslim Pakistanis, it creates precisely those bars that Jinnah had warned against. Such a situation was unacceptable to Jinnah in 1947 but it is even more inconceivable and out of place in the 21st century. What if such a provision disqualified Muslims in the US?

The 1973 Constitution was amended in 1974 to declare an entire sect as being outside Islam, this sect being the Ahmedis. It must be remembered that from 1937 to 1944, the pro-Congress Majlis-e-Ahrar-ul-Islam and other religious groups constantly pressurised Jinnah to declare Ahmedis as non-Muslims and throw them out of the Muslim League. Jinnah not only wisely resisted the pressure but also declared any such move as nothing less than a conspiracy to divide Muslims along sectarian lines. For this he was abused and attacked as Kafir-e-Azam but he did not give in on principle. He refused to declare Ahmedis non-Muslims, arguing that he was no one to declare anyone who professes to be a Muslim to be a non-Muslim. Tragically, the State that calls him its Founding Father is today the only State in the world that not only has taken upon itself to define who is a not a Muslim but which forces its officially sanctioned Muslim citizens to sign off on a declaration that they consider Ahmedis non-Muslims. It is a matter of absolute shame that we have to sign off on statements like that in this day and age. But if only that was the case. In Pakistan, Ahmedis have been arrested for the ‘crime’ of reading the Quran and for saying salaam. The law of the land actively encourages bigotry and fanaticism, and condones persecution.

The 1973 Constitution also privileges a group of unelected ulema (clergy) to sit in judgment over laws passed by the National Assembly (NA), albeit in an advisory role. This institution is called the Council of Islamic Ideology (CII). Jinnah said, in February 1948, that “Pakistan will not be a theocracy to be run by priests with a divine mission.” Yet that is precisely what the CII is: a body that ensures Pakistan is a theocracy run by priests with a divine mission. There is absolutely no occasion for the existence of such an odious, anti-modern and reactionary body in any modern nation state. CII, under the chairmanship of Maulana Sherani, has come up with some of the most reactionary pronouncements that have been the cause of major embarrassment for the country internationally.

The CII has stirred the hornet’s nest again by raising three extremely dangerous and potentially genocidal questions. These three questions are: 1. Are Ahmadis Non-Muslims or apostates? 2. Should Jizya be levied on Non-Muslims in Pakistan? 3. Which sects fall under the umbrella of Islamic ideology? I call these questions genocidal because of the implications that they carry. It goes without saying that Pakistan’s treatment of the Ahmadi community since 1974 and, in particular, since 1984 makes for a painful reading in persecution and marginalization. Now the CII proposes to discuss whether the community should be classified as apostates. Even the little freedom of belief, and there is very little of it mind you, that Ahmadis have under the Constitution is unacceptable to the CII. The next step it would seem is for CII to propose death penalty for apostasy. In other words the CII wants the entire Ahmadi community to be executed for their religious beliefs.

The second question is whether there should be Jizya or a poll tax on Non-Muslims for the crime of being Non-Muslims in the Islamic Republic. This militates against the express pronouncements of the Constitution of Pakistan that every citizen, regardless of religion, is an equal citizen with the right to freedom of religion. The members of the CII will do well to read Articles 4, 20 and 25 of the Constitution of the Islamic Republic of Pakistan. Already through contradictory legislation the State has ensured that this high minded of equality exists on paper. Now the CII proposes to strip whatever notional equality that Non-Muslims have by proposing a tax on religious beliefs. Instead of attempting to create an integrated Pakistani national identity, such ridiculous pronouncements would only serve to alienate millions of patriotic Pakistani citizens who have always stood by the country and contributed selflessly to its progress. The third question is nothing but a blatant sectarian attempt to sideline Shias from the CII. Shias form close to 20 percent of Pakistan’s Muslim population and will not take any attempt to cast aspersions on their faith lightly. Nor will they allow Pakistan to be converted into a Sunni state through the backdoor. Consequently any such discussion will only necessarily cause Shia Sunni strife in the country with potential for great violence and destruction of the social fiber of the country. Could the country afford such strife at a time when it is trying to fight the demon of religious extremism?

Here we must consider the question as to whether there should be a CII in the first place. The CII is a constitutional body under Articles 228-231 of the Constitution. What is often overlooked is Article 230(4) which operates as a sunset clause for the CII. The CII was never envisaged to be a permanent body by the framers of the Constitution. As Article 230(4) clarifies, the CII was to submit a final report within seven years of its original appointment, which was 90 days after the making of the Constitution. After the seven years the CII should have been logically disbanded. Yet the Constitution is silent on the fate of CII. It has been 42 years since the present Constitution was enacted and we still have to endure this body in the name of religion. Its continued existence means that Pakistani parliament and by necessary implication the people of Pakistan are still in need of clerical guidance on matters of faith. It is nothing less than a censure on every Pakistani in general and every Pakistani Muslim in particular. What is more is that it is a violation of the constitutional scheme which we have agreed to be governed by in this country.

The CII, which was envisaged as a temporary apolitical body, has also become a tool in the hands of politicians. Maulana Sherani was appointed the chairman of the CII as part of the deal between the previous Pakistan People’s Party government and the Jamiat-e-Ulema-Islam (F). It is a searing irony that the party of Maulana Fazlur Rahman, whose father Maulana Mufti Mahmood was amongst the trenchant opponents of the creation of Pakistan, is now presiding over the purported ideology of the nation.

In the past, the ‘esteemed’ body also declared that girls under the age of 16 could be married off. In doing so they declared the Child Marriages Restraint Act 1929 as being un-Islamic. The irony here is that Jinnah was one of the strongest supporters of that law when it was passed in the Indian legislature. It was during the course of this debate in September 1929 that Jinnah said: “If my constituency is so backward as to disapprove of a measure like this then I say the clearest duty on my part would be to say to my constituency, ‘you had better ask somebody else to represent you’.” Then we come to the blasphemy law. When Section 295-A to the Indian Penal Code (now the Pakistan Penal Code) was being passed in 1927, Jinnah made it clear that bona fide academic criticisms of religion would be protected. Little did he know that Pakistan would actually go on to enact 295-B and 295-C in the same law, which have become readily available tools for silencing any academic debate over religion in Pakistan.

Pakistan legalises persecution in a way no modern democracy does. I am not comparing Pakistan to Saudi Arabia and the Islamic Republic of Iran, which cannot be described as modern states let alone democracies. Saudi Arabia cannot and should not ever be an example for Pakistan. Similarly, Iran privileges a group of mullahs to ride over the legitimate will of the people. In contrast, Pakistan claims to be a democracy run by a constitution and governed by the rule of law. Yet, within this Constitution and this democracy, there are fundamental flaws. I have already mentioned the fact that a non-Muslim cannot be the President or the PM of Pakistan. Another grave flaw, a folly of the highest order, is Zulfikar Ali Bhutto’s original sin, the morally untenable, utterly inexcusable Second Amendment to the Constitution of Pakistan. No parliament has the right, no matter how sovereign, to determine the faith of an individual citizen. This is not the job of a parliament. The Second Amendment militates against that natural law. It is a crime that needs to be undone immediately. Need I remind the reader that we sign the same statement every time we get our passport? What if tomorrow the world began to refuse us entry because of this statement of intolerance we sign so flippantly? The state has bartered reason and sanity to appease a small section of our society that is incapable of understanding the very concept of religious freedom and difference of opinion. All of this is rooted in the Second Amendment and the Second Amendment is rooted in the fact that our Constitution privileges Muslims over non-Muslims.

The burning down of a factory owned by an Ahmedi family followed by the ransacking of an Ahmedi place of worship in Jhelum in 2015 once again showed how precarious the situation is for that community in Pakistan and how easily they can become victims of mob outrage and hatred, which has been cultivated slowly and steadily over the years. Against their will, they were cast out of the fold of Islam by the National Assembly (NA) in 1974. Since the mid-1980s, the rest of us have been forced to abuse them and the founder of their sect in order to get a passport as Muslims in Pakistan. It seems there is an organised campaign to target the community’s economic well-being by destroying their businesses, harassing their youth and ransacking their communal properties.

This did not happen overnight; it is a result of the State’s tolerance of hate speech against this particular community, and other sects and religions in general, which has become the norm since the late 1970s. The state has allowed hate mongers and bigots to flourish in small towns and qasbahs especially those in upper Punjab, lining the famous GT Road and on the Seraiki belt. These towns and qasbahs have now become hotbeds of extremism and religious and sectarian exclusivism.

Take, for example, Ishtiaq Ahmed, the popular detective storywriter, who passed away recently. Since the 1970s, Ishtiaq Ahmed has written over 800 novels in the Inspector Jamshaid, Inspector Kamran and Shoki Brothers series all of which contain messages — subliminal, implicit and explicit — against the Ahmedis, Shias, Christians and Jews. In his novels, these groups were portrayed as perpetually scheming against Islam (obviously Sunni Islam) and Pakistan. The irony that Pakistan’s founder was a Shia and its first foreign minister was an Ahmedi was completely lost on the late author. Or perhaps it was by design. In the two children’s magazines Ishtiaq Ahmed edited, numerous issues were dedicated to Ahrari leaders like Ataullah Shah Bokhari, Mazhar Ali Azhar and Shorish Kashmiri who were presented as the real heroes of Pakistan and Islam. These Ahrari leaders, for those who are not familiar with history, were the ones who had called Pakistan Kafiristan and Jinnah, Kafir-e-Azam.

Christians, in Ishtiaq Ahmed’s mind, were the perpetual enemies of Muslims, a misinterpretation of the Quranic verse about forbidding Muslims to take Christians and Jews as their friends. What is missing is the context for the Quran, in other places, encourages Muslims to look at Christians and Jews as ahlal kitaab or the people of the book, permitting even intermarriage with them. Ishtiaq Ahmed never bothered to explain to his young readers that the Christians and Jews being referred to were Christians and Jews the nascent Muslim community was in conflict with in the early period of Islam. He whitewashed over the fact that the holy Prophet (PBUH) had even opened up Masjid-e-Nabvi to Christian messengers or that the Mesaq-e-Medina or Medina Pact described Jews and Muslims as one ummah or community. Christian Warqah Bin Nofil’s contributions to the life of the holy Prophet (PBUH) form no part of this narrative. Islam’s exhortations of tolerance and acceptance of other creeds are dismissed by the likes of Ishtiaq Ahmed as mere expediency of the time. People like him are an Islamophobe’s dream come true.

For decades — right up till his death — Ishtiaq Ahmed was allowed willfully by the state to poison young minds with his hateful propaganda against minorities as well as against the state itself. In Wadi-e-Marjan, a novel Ishtiaq Ahmed wrote at the height of his popularity, the entire State is shown to be in the clutches of Ahmedis who have supposedly ensconced themselves in high places and are planning a takeover of the state. Behind the Ahmedis are supposed to be Jews and Christians plotting from afar to destroy Islam in Pakistan. It is this mindset that the nation is now at war against. It is this mindset that creates the support base for al Qaeda, the Taliban and more recently Islamic State (IS) or Daesh. Mark these words, dear reader, Pakistan will not win this war so long as hate material such as Ishtiaq Ahmed’s novels are allowed to circulate with impunity. Already, as many as two generations have been tainted with this mentality and it is this mentality that we see at work when certain sections of our society garland murderers of sitting governors.

Answers to our predicament are easy enough. Clamp down on hate speech and materials. Will the National Action Plan (NAP) be implemented in true letter and spirit or will it become a No Action Plan as many fear it has become? In the case of Ahmedis it must be recognised by the state that by bestowing upon them a minority status against their will, they are eligible for the treatment that minorities are promised by the Constitution in general and the Objectives Resolution in particular. Extra effort must be made to protect them from the onslaught of a hostile and radicalised majority that has developed an unsavoury bloodlust for them. The foremost responsibility of the State, as was repeatedly emphasized by the Father of the Nation, is to ensure that the life, liberty and property of every person living in this State of Pakistan is fully protected. Unless the state protects this community and other minorities against the fruits of its own actions, the State of Pakistan has no right to claim itself a civilised democracy and a responsible nation amongst the comity of nations. If the Prime Minister (PM) is serious about what he promised in his Diwali speech recently, one hopes that he will begin by taking real and stern measures to combat the proliferation of hate materials in society. Pakistan must ensure that the life and  liberty of each Pakistani, whether Muslim or non-Muslim, is equally protected and safeguarded by the state.

Ultimately, however, it is my considered opinion that the solution to Pakistan’s ills lies in harking back to Jinnah’s Pakistan. Pakistan was expressly based on the principle that no citizen would be discriminated against on the basis of religion, caste or creed. This Pakistan would not be a “theocratic state to be run by priests with a divine mission”. Jinnah detested the religious clergy and priests who wanted to impose their will on the people and they detested him equally. Today, however, some of those priests want to claim him as their own but no one can whitewash historical facts, try as they may. Pakistan would only honour itself by following the vision of the man it calls its founding father.

It is 2016 now and we need a new constitution, a constitution that recognises Pakistan’s diversity and that accepts the principle that the state need not be encumbered by contradictory religious objectives. It should recognise that loyalty to the state is not subject to the personal religious beliefs of a citizen but rather the citizen’s willingness to live by a fair and just compact with the state. More importantly, such a constitution should not allow any priests with a divine mission to rule the roost. It would mean doing away with such archaic and medieval institutions as the CII and the Federal Sharia Court (FSC), the contradictory and often embarrassing opinions of which bodies have brought the great faith of Islam into disrepute, both nationally and internationally.