By Yasser Latif Hamdani[*]
(The one tremendous failure of Pakistani democracy has been to give minorities in the country a palpable stake in the governance of their own country. This has led to the gradual alienation of Non-Muslim Pakistanis from the political and social narrative of the state. On the one hand this is a failure of the application of what is broadly termed as “liberal democracy” in Pakistan. On the other it is the institutional failure to recognize the inherent diversity of the land that is Pakistan. Through this article I will first make the case for a consociational democratic system, which I suggest was the most appropriate model for Pakistan and then I will attempt to discern whether the Constitution of Pakistan has a basic structure, and if it does, does it cater to the needs of minorities, and in particular forced minorities such as Ahmadis, in Pakistan. In doing so the important question of the role of Islam must be considered dispassionately to determine whether this pursuit of an Islamic ideological state does more good or harm to the cause of a plural and democratic Pakistan. – Author)
The first and foremost question is whether what we understand as “liberal democracy,” i.e. unfettered one man one vote, can deliver the goods in a multi-ethnic and multicultural society. The irreducible minimum for a modern nation state has to be constitutional and participatory governance where the maximum number of interests in a state are fully represented in the power structure. On this count, most so-called liberal democratic models fail. By this I mean any system that is blind to its internal diversity – whereby no other factors are taken into consideration when counting votes.
Take the US for example. The 114th Congress is considered the most diverse Congress in the history of that country. The percentage of Caucasian-Americans (not including Hispanics) is 62 percent. In the House of Representatives of US Congress, the percentage of Caucasian-Americans is 82 percent. The total percentage of Hispanics in the US is 18 percent. The percentage of their representatives in the US Congress is less than seven percent. African-Americans fare slightly better: 16 percent of the US population, they form approximately 10 percent of the lower house of US Congress. There have, however, been only nine African-American senators in the history of the US Senate. Smaller minorities like the Asians and Native-Americans are hardly represented in Congress. This sorry state is not limited to race or ethnicity. Christians as a group are 83 percent of the US population but have close to 92 percent of the seats. Now, consider the gender disparity. There are only 20 percent women in Congress. This against a population of 51 percent.
This is the situation in the bastion of liberal democracy — a country that has ideologically championed diversity, and rather successfully. In contrast, let us take India as an example. India is a hybrid model with special reservations for certain communities. The minority group that is adequately represented in the Lok Sabha is the Scheduled Castes or Dalits but their representation is based on the principle of reservation, a principle that proponents of liberal democracy denounce. Similarly, tribes such as the Adivasis have their own representation. Another group that gets definite representation is the Anglo-Indian group, which has directly elected seats. With a voice of their own, these groups play an important part in determining their future in the Indian state. Muslims as a group, however, are left out in the cold because they are left to fend for themselves on the principle of one man, one vote. Therefore, against an Indian-Muslim population of 15 percent, the total number of Muslim representatives in the current Lok Sabha is four percent, woefully divided along party lines.
Defenders of the principle of so-called liberal democracy would say that these considerations should not matter in a modern democracy. Ideally, these should not matter but we do not live in ideal situations. It is not by accident that 82 percent of US Congress is white. Surely, if these considerations did not matter, there would be times when such a number would drop to less than half. But it does not because these factors continue to a play a role despite the best of intentions. Once we accept that fact, it becomes easier to see why minorities should have at least proportional representation through reservation. This is the principle that is known as ‘consociationalism’. Some of the finest western democracies have followed this principle and have become successful. Perhaps the most appropriate example of this form of democracy is Netherlands. Netherlands was historically divided along Catholics, Protestants, Socialists and Liberals. The system of government, especially until 1967, ensured proportional representation to each group and then proceeded on the principle that decisions should be made through a consensus of all groups. It also works successfully in Belgium. In the Republic of Macedonia, it has managed – for two decades – to keep the peace between Macedonians and Albanians. A form of consociationalism has ensured that Canada continues to embrace both Anglo-Canadians and Francophone-Canadians under one federation. Consociationalism is akin to a federation of communities. It ensures that all interests in a nation state share equally in power and no one group dominates the other by sheer numbers.
Pakistan has its roots in this idea, the idea of power sharing amongst groups instead of domination by a majority group over a minority group. Tragically, however, since the Objectives Resolution, we have negated the very principle. Instead of building a consociational democracy that would ensure all interests were represented adequately in nation building, we have taken — especially since 1973 — the principle of liberal democracy to its extreme and converted it into an illiberal democracy. Sure, we have paid lip service to minority rights in Pakistan but, in reality, even the reserved constituencies granted to minorities are filled through the nomination of political parties elected through a majority vote. Non-Muslim minorities form approximately five percent of the population of Pakistan. Against this they have only three percent seats that, as mentioned earlier, are in any event not the true representative of the minorities. Giving non-Muslims slightly more than proportional seats will in no way hurt the majority but it will give a marginalised group a voice and a share in power. It is this principle of consociational democracy – if extended to other groups as well, such as women, the labour and peasantry – which can help build a fairer and more egalitarian Pakistan.
Pakistan’s constitutional history begins in earnest with the passage of the Objectives Resolution. What was the Objectives Resolution and is it the inalterable basic structure of the Pakistani constitution? The resolution reads:
“Whereas sovereignty over the entire universe belongs to Allah Almighty alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust; This Constituent Assembly representing the people of Pakistan resolves to frame a Constitution for the sovereign independent State of Pakistan; Wherein the State shall exercise its powers and authority through the chosen representatives of the people; Wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed; Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah; Wherein adequate provision shall be made for the minorities freely to profess and practice their religions and develop their cultures; Wherein the territories now included in or in accession with Pakistan and such other territories as may hereafter be included in or accede to Pakistan shall form a Federation wherein the units will be autonomous with such boundaries and limitations on their powers and authority as may be prescribed; Wherein shall be guaranteed fundamental rights including equality of status, of opportunity and before law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality; Wherein adequate provisions shall be made to safeguard the legitimate interests of minorities and backward and depressed classes; Wherein the independence of the Judiciary shall be fully secured; Wherein the integrity of the territories of the Federation, its independence and all its rights including its sovereign rights on land, sea and air shall be safeguarded; So that the people of Pakistan may prosper and attain their rightful and honored place amongst the nations of the World and make their full contribution towards international peace and progress and happiness of humanity.”
The Objectives Resolution is rightly criticized for its nod towards a theological ideal of the state but, in doing so, mention of certain salient points of the resolution are omitted. The first point that ought to be noted is that the state’s role in terms of religion is one of an enabler and not enforcer. This is an important distinction to make because the Objectives Resolution does not envisage an imposition of religion on citizens. Secondly, it speaks specifically of the “adequate provisions” for the minorities to freely practice their religion and develop their cultures. There is no proviso or qualifying clause in the Objectives Resolution. It is for this reason that when the Objectives Resolution was made a substantive part of the Constitution, through Article 2-A, General Zia had the word “freely” omitted. The present legal situation is that the word “freely” was restored through the 18th Amendment. Thirdly, the Objectives Resolution speaks of the safeguard of minorities’ legitimate interests, which could mean only economic and political interests. The Objectives Resolution thus envisages very much a consociational system of governance which would ensure active participation by minorities in national life, above and beyond their rights, including fundamental rights, as citizens and as people of Pakistan.
When, in 1949, the Objectives Resolution was passed, Prime Minister Liaquat Ali Khan reassured the minorities that under the constitutional dispensation so envisaged, a non-Muslim may become the constitutional head of state. The constitution thus framed several years after Liaquat Ali Khan’s assassination, however, closed the door to the President House on non-Muslims forever and it has been like this since 1956. Still, the 1956 Constitution was perhaps the most cognisant of Pakistan’s multicultural character and, while paying its due respect to the Islamic culture and civilisation, the constitution remained non-committal on a state religion and guaranteed complete equality. This is how Prince Aly Khan, Pakistan’s representative at the UN and the father of the current Agha Khan, described Pakistan’s unique status as an Islamic Republic and an inclusive democracy on May 27, 1958:
“Pakistan, with a personality of its own in the Muslim world, calls itself an Islamic Republic, in the sense that the overwhelming majority of its people, are of the Muslim faith and aspire to a social and political order based on justice and equality, in accordance with the spirit of the injunctions of Islam that I have quoted. The appellation ‘Islamic’, however, does not imply that Pakistan is a theocratic state, run by religious fanatics who seek to reduce the non-Muslim minorities in Pakistan to the status of inferior citizens. The relevant provision of our constitution, under which Pakistan became a democratic Republic on the 23rd of March 1956, lays down: ‘Section 5 (1): All citizens are equal before law and are entitled to equal protection of law’.
“The constitution further nullifies as void, any law, custom, or usage, which is inconsistent with the fundamental right to equality under the law, which is an enforceable right under an independent judiciary, the Supreme Court of Pakistan.
“This means that non-Muslims are guaranteed equality with Muslims under the laws of Pakistan.
“While it is true that the president of Pakistan must be a Muslim, he is, in fact, the symbol of the state, and the executive powers are vested almost exclusively in the prime minister and his cabinet. Pakistan is not unique in basing its political institutions on fundamental religious concepts. For example, a number of European nations, such as Sweden, Norway, Denmark, Ireland, Greece and the UK restrict the office of the head of state to those who profess the predominant religious beliefs of their countries.
“The leaders of the government of Pakistan are liberal and enlightened men, responsible to a freely elected parliament in accordance with the popular will. They function entirely within the framework of the constitution and laws of Pakistan. I am well aware that the people of the US are deeply committed to the doctrine of separation of church and state. We, in Pakistan do not have an established church as such. Basically, the fundamental values and virtues which you cherish and try to practice in the US, are virtually identical with those we believe in and try to practice in Pakistan.”
Pakistan’s slide down the slippery pole of religiosity is quite clear. Jinnah had envisaged an egalitarian democratic state that would not distinguish between its citizens on the basis of faith. That vision was buried when his lieutenant, Liaquat Ali Khan, sought to create distinctions of majority and minority through the Objectives Resolution but Liaquat Ali Khan was quick to dispel any notion of barring any office to the non-Muslims in Pakistan. Against Liaquat’s advice, the framers of Pakistan’s constitution created exclusion at the very top but left democracy unfettered by the symbolism of the Islamic Republic. In 1973 both the office of the President and Prime Minister was confined to Muslims only. This was a further deviation from the principle. General Zia inadvertently opened the door for Non-Muslims to become the Prime Minister, albeit through a lacuna in legislative drafting. The 18th Amendment – otherwise a progressive amendment closed that door again decisively.
The Constitution of Pakistan, 1973, does not purport to be a secular constitution. Indeed, 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.
Yet, while the 1973 Constitution purports to be an Islamic constitution with a state religion and offices of both the president and prime minister reserved for Muslims, it is not technically supposed to be a theocratic constitution for several reasons. Legislation is to be done by parliament that represents the general will of all citizens of Pakistan. The ultimate arbiters of what is Islamic or un-Islamic are the members of this parliament. Laws are to be interpreted by the Supreme Court (SC) and not some religious council. The Council of Islamic Ideology (CII) has an advisory role and not a legislative one. However, the most important reason why it is not supposed to be a theocratic constitution is because it seeks to enable Muslims to live according to Islam and not force them to live according to Islam. Unfortunately, very few lawyers, jurists and members of the religious clergy make that distinction. In practice, therefore, we have converted Pakistan into a theocracy.
This brings us to the question of what is, if any, the basic structure of the Pakistani constitution. Is it the Objectives Resolution? After the recent Supreme Court (SC) judgment on the 18th and 21st Amendments, the issue has been revisited. Does the Constitution of Pakistan have a basic structure? Should it have a basic structure? The issue revolves around Articles 239 (5) and 239 (6) that state: “(5) No amendment of the Constitution shall be called in question in any court on any ground whatsoever. (6) For the removal of doubt, it is hereby declared that there is no limitation whatsoever on the power of the Majlis-e-Shoora (parliament) to amend any of the provisions of the Constitution.”
Ironically, this idea that a constitutional amendment in Pakistan would not be called into question in any court was added through the Revival of the Constitution of 1973 Order, 1985 (president’s order no 14 of 1985), Article 2, item 48 with effect from March 2, 1985 and Constitution (Second Amendment) Order, 1985 (president’s order no 20 of 1985), Section 3 with effect from March 19, 1985. It was an addition by the military dictator General Ziaul Haq. His reasons must have been sinister for he wanted to change the very structure of the Constitution from a parliamentary form of government to a presidential form and to maul it beyond recognition. Yet it is this principle that is also championed by liberals and progressives for the obvious reason: so long as this principle is accepted, at a future date, it will be open to the people of Pakistan to choose a more secular form of government.
The eight judges’ opinion authored by Justice Shaikh Azmat Saeed has not gone so far as to declare a basic structure to the Constitution. Instead, they have used the term “salient features” of the Constitution and while they have not exhaustively defined “salient features”, the salient features they have relied on to keep the door open for the SC’s constitutional review seem to be parliamentary form of government, democracy and independence of judiciary. In essence, the largest number of judges in this full court has opined that if parliament seeks to undermine the parliamentary form of government, democratic principle or affect the independence of the judiciary, the judiciary would be well within its powers to intervene and strike such a constitutional amendment down. The honourable judges did not find the 18th and 21st Amendments as being in violation of the salient features. They also read into the law a requirement for the inclusion of the SC in judicial appointments as the key feature of the principle of independence of judiciary. One must disagree on this count for that would mean that the judiciary in, say a country like the US, is not independent because the judges there are chosen by the executive and confirmed by the legislature.
In contrast to Justice Saeed’s opinion, there was the opinion of CJ of Pakistan Nasirul Mulk, which was also signed by Justice Iqbal Hameedur Rahman. It held that the SC had no right of constitutional review whatsoever and that a constitutional amendment could not be called into question. Justice Saqib Nisar and Justice Asif Saeed Khosa took a similar dim view of the basic features or the Basic Structure Theory. The central plank of this opinion is that judicial appointees to the SC cannot overrule the collective wisdom of the elected representatives of the people of Pakistan in matters of constitution making. A future historian at a much later date will no doubt look back at this opinion and hold it to be an eternally correct one. Justice Nasirul Mulk, Justice Saqib Nisar, Justice Asif Saeed Khosa and Justice Iqbal Hameedur Rahman will go down in the history of this country as amongst its most enlightened voices of reason, who attempted to set the record straight but were unable to carry the consensus of the court. Yet this means great things for the future.
Even Justice Jawwad S Khawaja writing a dissenting opinion stated the following about the basic structure theory:
“With great respect to learned counsel who appeared for both sides, it should be stated that just like the doctrine of parliamentary sovereignty, the basic structure doctrine which took root in an alien soil under a distinctly different constitution, needs serious critical examination before being pressed into use in aid of Constitutional interpretation in Pakistan. There is need for deep examination of the rationale and specific historical background which underpins foreign doctrines. Any grafting of an alien concept onto our body politic otherwise, is as likely to be rejected as an alien organ transplanted in a human body.”
There were some judges, notably Justice Ejaz Afzal Khan, who attempted to find a place for Islam in the basic structure of the Constitution by seemingly arguing that the Pakistan Movement itself was about creating Islamic polity. Here one does not want to go into whether the contention is correct or not but one must point out that the Muslim League, the founding party of Pakistan, never passed any resolution committing Pakistan to an Islamic polity. When an attempt was made at the 1943 Delhi Session of the Muslim League to commit the future Constitution and state of Pakistan to be based on the Quran and Hukoomat-e-Illahiya, Quaid-e-Azam Mohammad Ali Jinnah ensured that the draft resolution would be vetoed, calling it a “censure” on every Leaguer. Jinnah argued that the “Constitution and the government will be what the people will decide”. Therefore, the attempt to find a firm commitment to Islamic polity in the Pakistan Movement is a red herring.
The basic structure/salient features debate is going to go on for a long time in Pakistani courts. In the opinion of this writer, broad contours of democracy may well be the salient feature that ought to be preserved. What is unacceptable, however, is to commit Pakistan irrevocably to any idea and to bind future generations to any ideology. At this point, Pakistan is a parliamentary form of republic with a blending of Islamic provisions but that may not be what our future generations choose to be. Future generations cannot be bound by the wisdom, or lack thereof, of today.
Other countries have devised rigid amendment procedures. For example it is not just the bill of rights but the whole of US constitution that cannot be amended without ratification i.e. a 3/4ths majority in both houses and then ratification 3/4th of all the states. However no constitutional amendment in the US can be called into question by the Supreme Court of the US. The amendment process in the US is hard precisely because of the importance of the constitutional provisions but technically a constitutional amendment can be passed in the US and once it is passed and ratified it cannot be challenged in a court of law.
Basic structure theory is as mentioned above something that emerged from India. What is the basic structure theory: If the Parliament of India passes a constitutional amendment that the Court deems to be against the basic structure i.e. the 22 items under the Indian constitution, then the Indian Supreme court may strike down the amendment. The 22 items are:
1.Supremacy of the Constitution
2.Rule of law
3.The principle of Separation of Powers
4.The objectives specified in the Preamble to the Constitution
6.Articles 32 and 226
9.The Sovereign, Democratic, Republican structure
10.Freedom and dignity of the individual
11.Unity and integrity of the Nation
12.The principle of equality, not every feature of equality, but the quintessence of equal justice;
13.The “essence” of other Fundamental Rights in Part III
14.The concept of social and economic justice — to build a Welfare State: Part IV in toto
15.The balance between Fundamental Rights and Directive Principles
16.The Parliamentary system of government
17.The principle of free and fair elections
18.Limitations upon the amending power conferred by Article 368
19.Independence of the Judiciary
20.Effective access to justice
21.Powers of the Supreme Court under Articles 32, 136, 141, 142
22.Legislation seeking to nullify the awards made in exercise of the judicial power of the State by Arbitration Tribunals constituted under an Act
The situation in Pakistan is not as yet clear. As things stand given the repugnancy clause, no law can be made which is repugnant to Quran and Sunnah under Pakistani constitution. However, what if the parliament was to – in theory- amend the constitution and take out all references to Quran and Sunnah? As things stand the Supreme Court has shied away from saying that it would be required to intervene if tomorrow the general will of the people declares Pakistan a secular state. Article 239(5) and 239(6) of the Constitution make it abundantly clear that parliament can amend the constitution as far as it likes.
So while it is elementary that when it comes to judicial review repugnancy is a consideration, the issue of constitutional review which is a wholly subcontinental creature (because courts in US or UK or the rest of the world have no such jurisdiction to undertake a constitutional review). So the issue is not whether, at this moment, the Quran is one of the sources of law and guidance but the whether a parliament can tomorrow amend the constitution to a point where it is no longer a source of law. The critics merely confuse the two points by insisting on the Objectives Resolution as basic structure. The long and short of it is that the Supreme Court of Pakistan has not held that it can quash a constitutional amendment on the basis of Objectives Resolution or its interpretation of Quran and Sunnah. To quote from the Chief Justice’s opinion in the aforesaid judgment (where he quotes late Abdul Hafeez Pirzada, the principal author of the Constitution):
“Preamble essentially is not an operative part of the Constitution. Preamble is a preamble which makes manifestation of intention on the part of Legislature. In the past some people have claimed the preamble which reflects the Objectives Resolution of the first Constituent Assembly of Pakistan of 1949 as the grundnorm making the crest of the Constitution subservient to the preamble. This is not the correct position. Preamble cannot be relied upon for the purposes of interpretation or enforcement of the Constitution where of the language of the Constitution is absolutely clear. This view was always the accepted view and only lately, in a case, the Supreme Court of Pakistan has reaffirmed this position that preamble is not a grundnorm. We have also got some cases in which judgment has been delivered by a superior court in Pakistan whereby it is said that by virtue of the preamble, Judges of the High Courts, without disrespect to them, derived some divine power under the preamble to supersede the constitution.”
Chief Justice Nasirul Mulk goes on to say:
“Preamble does not serve any purpose beyond this. It cannot be over-riding, it cannot be dominant, it cannot make Constitution subservient to the language and the preamble. It is not a supra-Constitutional document or instrument as has been stated in the past in a judgment which now we have reversed through a judgment of the Supreme Court.”
“Having held that neither the basic structure theory nor the Objectives Resolution of the Constitution can be made a ground to annul any amendment in the Constitution, the primary question remains whether the Court has jurisdiction at all to strike down an amendment on any ground whatsoever. In this respect reference may be made to Constitutional provision embodied in clause (2) of Article 175 read in conjunction with clause (5) of Article 239 of the Constitution.”
As for what is that bill of rights in Pakistan – at this time it is the fundamental rights chapter (Articles 8 to 28) but that too arguably is up for amendment. The Supreme Court might change its mind tomorrow but as things stand the three features (according to the majority opinion) that the Supreme Court holds to basis for constitutional review are:
- Parliamentary form
- Independence of judiciary.
Parking this discussion here for now, let us also consider what the minorities were asking in this case. Their demands were modest; they wanted 17 reserved National Assembly seats for non-Muslims and direct election for these seats. According to this formula, they also wanted 18 seats in Punjab and six seats in Khyber Pakhtunkhwa and five seats in the Senate, with one from the Islamabad capital territory to be added to the existing four. Presumably, the minorities also want election to the five Senate seats to be the exclusive preserve of non-Muslim legislators elected — not selected — on reserved seats in the provincial and national legislatures. The formula which was applied is five seats to 100 general seats, which is more or less consistent with the original scheme of the 1973 Constitution, which had 10 seats to 204 general constituencies. The basic principle for demanding secured minorities’ representation in the national legislature is also in keeping with the spirit of the 14 points that are said to be the cornerstone of Pakistan’s ideology. Finally, it is one of the fundamental premises of the Lahore Resolution, which states that “adequate, effective and mandatory safeguards should be specifically provided in the constitution for minorities in these units and in these regions for the protection of their religious, cultural, economic, political, administrative and other rights and interests in consultation with them.” Minorities’ demands were eminently sensible and, as a whole, good for Pakistan. Here one must praise Justice Jawwad S Khawaja, whose opinion otherwise one has reason to disagree with, for bringing up the issue of the elections to reserved minorities’ seats. Recommending a direct election to these seats, Justice Khawaja stated: “It would indeed be unfortunate if the minorities were to justifiably perceive the new arrangement as a cynical ploy or condescension on the part of the majority which does not take into account the legitimate interests of the minorities. It would be equally tragic if the minorities (despite the historic promises of the Quaid-e-Azam and every other leader) come to regard themselves, on account of the new Article 51 as second class citizens or the children of a lesser god, forever to remain subservient to the majority’s goodwill and unrepresented by their own chosen representatives.” He went on to hold: “For the foregoing reasons, I would agree with learned counsel for the petitioner Julius Salak that the aforesaid provisions are liable to be struck down. Parliament may substitute these provisions if it so chooses, by such provisions which recognize the high degree of importance given to minorities and to the principles of democracy as explained in Part-I of this opinion. Similar considerations would be relevant for Article 106 of the Constitution also which deals with reserved seats for minorities in provincial Assemblies.”
Unfortunately this view was not carried by the majority opinion which wholly misconceived the demand. Justice Saeed’s opinion read: “Through the 8th Constitutional Amendment separate electorate was introduced whereby the minorities could not vote for the Members of the Parliament elected from the General Seat who would be in overwhelming majority and would be an effective part of the Government or the Opposition. The direct relationship between the minority citizens and the Government was disconnected as the Members of the Cabinet and other influential members of the Parliament did not need minority votes in their respective Constituencies, hence, become insensitive to their needs. The minorities became separate but equal party to the Democratic Process. An electoral apartheid was put into place. Furthermore, the minority Constituencies became huge spreading over several Districts and in some cases the whole of Pakistan making them unmanageable and impossible for an effective election campaign without expending huge sums of money. It is in this perspective that the separate electorate system was abolished and the minorities incorporated into the mainstream of Pakistani representatives politics to their advantage. Obviously through a General Election the minorities may not find due representation in the Parliament, therefore, seats are reserved for them to be filled through proportional representation on party basis which is not undemocratic and is in vogue in several countries with a Parliamentary Form of Government. In terms of the provisions under question, the principle of one man one vote is not violated. Any member of the minorities can contest on any general seat of Parliament from any Constituency. There is a joint electorate. Minority Members of the Parliament are included in the Cabinet and form part of the power structure thereby not only serving their Country but also their communities. By no stretch of the imagination can it be said that the provisions of the Constitution, in this behalf offend against or compromise Democracy and/or the protection of rights of minorities. Can there be a more efficient mode for ensuring that the minorities are integrated into the political mainstream and the democratic process? Perhaps, but such mode would lie in the domain of the Parliament. As already noted, it is the Constitutionality of the Constitutional Amendment which can be examined by this Court but not its correctness or efficiency.”
Justice Saeed and the concurring justices failed to appreciate that the demand was never to abolish joint electorates which have ensured the mainstreaming of Non-Muslim Pakistanis. The demand was for a direct election on reserved seats so as to ascertain actual bona fide representatives of the minorities who would not sacrifice the interests of their community. Essentially what the minorities were after was a dual system whereby they could vote and contest in the general election and on top of that also elect their reserved seats separately. Given that minorities number no more than 5 percent of the population of Pakistan, this was hardly a demand that would offend or reduce the majority by any means.
That minorities are not given a fair share in this country is not a secret. Even when institutions like the Supreme Court act on this issue, they are unable to enforce their own orders. It has been a little over a year since the now famous minorities’ judgment (June 19 2014) was handed down by the Supreme Court of Pakistan under the guidance of Chief Justice Tassadaque Hussain Jillani, now retired. It is a judgment that on a legal plane establishes certain truths about Pakistan’s self-identification, which need to be underscored and which, unfortunately, have not been emphasised enough either by legal scholars or by human rights activists.
The Supreme Court says in paragraph 13 of the judgment: “By freedom of religion and belief is meant the right of a person to follow a doctrine or belief system which, in the view of those who profess it, provides spiritual satisfaction. However, it is impossible to define the term ‘religion’ in rigid terms. The freedom of religion must then be construed liberally to include freedom of conscience, thought, expression, belief and faith.” This extends the right of religious freedom as being a community right to an individual right. This distinction is very important and is repeatedly driven home by the judgment. Explaining this, the Supreme Court lays down in paragraph 16: “Article 20 must then be interpreted to guarantee the rights of the community as well as the right of the individual against those from his own or other religious communities — the ultimate goal being the eradication of religious intolerance in the society.”
In paragraph 17, the Supreme Court declares: “It is imperative that the right to freedom of religion be restored as an individual and indefeasible right.” In paragraph 15(e), the SC underscores that the right to religious freedom and the right to propagate one’s religion extends not just to Muslims but to minorities as well: “It is important to note that this propagation of religion has not been limited to Muslims having the right to propagate their religion but this right is equally conferred on non-Muslims to propagate their religion to their own community and to other communities.”
Explaining the constitutional background of freedom of religion and status of minorities, the Supreme Court harks back to the Pakistan Movement as essentially a movement for the rights of the Muslim minority in India and points out that these rights sought by the Muslim minority were not limited to Muslims but had been, through various resolutions of the All India Muslim League (AIML), extended to non-Muslim minorities. Thus, the judgment makes an important ideological contribution to the reframing of the history of the Pakistan Movement in terms of rights instead of religion. The Supreme Court states in paragraph nine of the judgment: “The protection of the freedom of religious belief and practice of all communities was indeed the predominant right asserted in several propositions and resolutions passed by the AIML. Despite the fact that members of the AIML were being strongly influenced by secular liberal thought, the ideology underlying the Pakistan Movement was the creation of a separate nation state for the protection of the interests of the Muslim minority in India. However, these freedoms were not limited to the protection of the Muslim minority but all religious minorities. One of the famous 14 points enumerated by Mohammad Ali Jinnah on proposed constitutional changes was that ‘full religious liberty, i.e. liberty of belief, worship and observance, propaganda, association and education shall be guaranteed to all communities’.”
How the Supreme Court identifies its role is also enlightening. It sees itself as the apex court of a liberal democracy. In paragraph 34, the judgment reads: “The Supreme Court, being the apex court in a liberal democracy, is mandated to protect and defend the Constitution, which embodies the fundamental rights of its citizens. Thus, while deciding cases entailing inter-faith or intra-faith conflicts, the Courts should keep in view the fact that there are some in every faith who seek to interpret religion in myopic terms.” It is clear that the Supreme Court views itself as the guardian of the values of a liberal democracy and not a myopic theocracy. The judgment imagines the Supreme Court as the vanguard of an enlightened Pakistan, the position of which in the world it is equally clear on. In paragraph 36 of the judgment, the Supreme Court says: “The cherished goal of creating a more pluralistic society where fundamental rights are respected would continue to elude us unless we realise that we are living in a world of globalised interdependence, a world of interconnectivity, of cyber space, of shrunken distances, of cross border migration and a world of rapidly changing cultural identities. We are all members of one race of humans with common challenges, and we cannot confront these challenges without forging a common alliance.” Here is a noble and progressive vision of what Pakistan in the 21st century aspires to: a Pakistan committed to human progress, human freedom and the creation of a harmonious and pluralistic society run in accordance with the highest possible standards of human conduct. After Jinnah’s August 11 speech and the Munir Report in the 1950s, this judgment is the third major document that promises an inclusive Pakistan of which freedom of religion — in the broadest sense — would be a cornerstone and where every citizen would be equal before the law and in the eyes of the state.
The implementation of this judgment has been poor to non-existent. There were specific directions given by the Supreme Court to the government. A task force for religious tolerance had to be established. No such task force has been established. The Supreme Court called for curricula reform. Dr Bernadette Louise Dean, an educationist doing precisely that, was driven out of the country. Hate speech had to be curbed but in reality hate speech is even more rampant in Pakistan against the minorities. A National Council of Minorities had to be constituted under the law to ensure practical realisation of minorities’ rights. No such council has been formed. A special police force had to be established for the sake of the protection of minorities and their places of worship. Surprise! No such police force has been established. The government, it seems, is unwilling or unable to comply with the most basic requirements of the judgment. Is it because rights of minorities — despite being on every party’s manifesto — is not sexy enough to matter? It is precisely for this reason that minorities ought to given the right to elect their own representatives through popular vote.
Then we must consider the special case of the forced minority. The issue of Ahmadis’ status has been subject of much debate starting well before partition. For the founding fathers at least the issue itself posed a divisive sectarian issue which was manufactured by Majlis-e-Ahrar-e-Islam and others to divide the Muslims in the Pakistan Movement. During a trip to Kashmir on 23 May 1944, Jinnah was asked a question as to who could be a member of the Muslim Conference – the Kashmir equivalent of the All India Muslim League. The questioner was concerned that Ahmadis were being allowed to join both the Muslim Conference and the All India Muslim League. Calling it a disturbing question, Jinnah sternly told the questioner that Muslim League was open to all Muslims and that raising such sectarian questions was detrimental to the interests of not just Muslims but all communities. He said: “I appeal to the Muslims of Jammu and Kashmir not to raise sectarian questions, but instead to unite on one platform under one banner. In this lies the welfare of the Muslims. In this way, not only can Muslims make political and social progress effectively, but so can other communities, and so also can the state of Kashmir as a whole”. When pressed further, he stated “What right have I to declare a person non-Muslim, when he claims to be a Muslim”.
30 years later Pakistan’s Parliament on 7 September 1974, ignoring this advice by the father of the nation, amended the Constitution of 1973 to declare that Ahmadis were, for the purposes of law and constitution, Non-Muslims. Did the Parliament have the power to do so is an academic question that vexes jurists. After all the 1973 Constitution, as passed by the Parliament, contained within it the express guarantee that Islamic provisions would be interpreted and applied in line with the beliefs of each school of thought. This was the basis of the national compact that was arrived at by a broad consensus. Let us assume however that the Parliament had the power to act as God and make a decision as to whether or not a person who calls himself a Muslim is a Muslim. Conversely today some of the biggest supporters of the idea that Islam is the basic structure of the Constitution, argue that the same Parliament has no right to undo what it did in 1974. The whole argument is absurd. If the Parliament could act as God then, presumably it should be able to act as God now. Why the double standard now? This is precisely the kind of logical absurdity that the infusion of religion into state can cause.
The decision to declare Ahmadis Non-Muslims was also accompanied by an express guarantee by the then Prime Minister, Zulfikar Ali Bhutto, that their fundamental rights would be fully protected as citizens of Pakistan including their right to worship freely. Subsequently, however, the state has enacted many laws that have done the exact opposite. The Ordinance XX of 1984, promulgated by General Zia ul Haq, and saved by the Parliament through the Eighth Amendment to Constitution, declares that Ahmadis can be jailed for three years for pretending to be Muslims. What does that mean? The law has been deliberately kept vague to allow for further absurdities. In a clear violation of Article 20 of the Constitution, which promises unfettered freedom to practise and propagate one’s religion, Ahmadis are not allowed to hold their religious gatherings. Consequently their annual religious gathering in Rabwah was discontinued in 1984 by force. Ahmadis are routinely jailed in Pakistan for the offence of saying “Assalamualaikum” which is central to their faith. However no such restriction applies on Hindus, Christians or Sikhs in Pakistan. One gentleman whose parents named him Muhammad Ali was jailed under this draconian law for writing his name outside his own house in Sargodha. The graves of Ahmadis are routinely desecrated by either overzealous constitutionally approved Muslims or by the state itself. Ahmadis’ places of worship (which cannot be called a mosque by law) are destroyed by the state so as to ensure that they look nothing like a Muslim mosque. As if this humiliation was not enough, the passport forms were amended in the 1980s whereby now every Muslim in Pakistan applying for a passport has to curse and abuse Ahmadis calling their founder an imposter and a fraud. We have all signed this statement and we are all equally guilty in the persecution of this community. These discriminatory laws were upheld by the Supreme Court 2-1 in Zaheeruddin v. the State 1993 SCMR 1718. The said judgment laid down the law that it was alright to impose such curbs on Ahmadis because their actions “offended” the Muslims. In an extraordinary feat of constitutional gymnastics as well as a rather odd foray into copyright law, the restrictions on Ahmadis were deemed to be perfectly in harmony with the Constitution and its Article 20. Privately almost all senior judges of the superior judiciary recognize that this was an atrocious judgment.
These restrictions are not without precedent of course. But to look for the precedent we have to either revisit the history of Nazi Germany which treated its Jewish population as subhuman or we have to hark back to 16th Century England, when similar restrictions were imposed on Catholics under King Henry the VIII, Edward and Queen Elizabeth I and on Protestants by Queen Mary. Are these really the precedents we want to follow? In doing so we have achieved nothing but to bring shame to both Pakistan and Islam. The world looks at us, rightly, as an intolerant and bigoted lot who are unwilling to accept diversity within our ranks. The enemies of Pakistan –not out of any love for the cause of humanity- point to the treatment of Ahmadis as another example of how utterly incorrigible we as a people are. As a Pakistani I have no answer to this. It is the antithesis of what Pakistan was envisaged to be by Jinnah. He certainly did not want a theocracy to be run by priests with a divine mission. Yet that is precisely what we are today. We have allowed priests and half baked religious scholars destroy that ideal. Here one must applaud the courage of Wajid Shamsul Hasan, son of Syed Shamsul Hasan a close confidant of the Quaid-e-Azam, for speaking the truth unwaveringly at the annual Ahmadi gathering in London. It is absolutely shameful the way the Punjab Assembly passed a resolution against him for doing so.
As a general rule, one is opposed to having 17 judicial appointees sitting in judgment over a constitutional amendment. This is based on the principle that each generation should be free to choose its poison. However there are a number of compelling arguments as to why future generations must be bound to a certain social contract. Perhaps the foremost amongst these arguments is the practical experience with the passage of the second amendment that declared Ahmadis outside the pale of Islam. It was completely contrary to the understanding that Islam’s role in the Constitution would be subject to each school of thought’s interpretation. Given the less than ideal situation in terms of application of the democratic ideal, perhaps an agreement on the salient features is precisely what the country needs. Salient features should include – in addition to the three features identified by the Supreme Court above- an explicit recognition that rights of minorities and their status as equal citizens cannot be undermined by the Constitutional amendment. Furthermore, the fundamental rights chapter should become a sacrosanct part of the constitution which should be put above the pail of constitutional amendment. The salient features should become a device to safeguard and not trample the rights of citizens generally and minorities in particular.
[*] 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.firstname.lastname@example.org