by Yasser Latif Hamdani*
*The author is a barrister and the author of the book Jinnah A Life published by Pan Macmillan.
The creation of Pakistan was always going to be controversial, open to misinterpretation and misuse by many sections, both amongst the Muslims and amongst the Hindu majority in India. Jinnah and the Muslim League had posited the idea that Muslims were a nation instead of a minority in 1940 to bypass the inconvenience of being outvoted 3 to 1 in constitution making. The ultimate objective was to keep the union center as limited as possible and, even better, have a separate center for Muslim majority areas which could then enter into a confederation or treaty union with the rest of India. This was the concept of Pakistan in a nutshell. Instead, the British government and Indian National Congress imposed a moth-eaten Pakistan on Muslim League, based on the partition of Punjab and Bengal.
Pakistan as a country has often suffered because it has been said that it has never been a nation. The underlying assumption is that it was the flawed idea of Muslim nationalism based on religion that led to the creation of Pakistan. This is an incorrect understanding of history. What follows is neither the official Pakistan Studies’ account which emphasizes religion nor the Indian Nationalist point of view which refuses to recognise the merits in the case for Pakistan. The only major Indian leader who truly appreciated the case for Pakistan, at least to the extent of understanding it on an intellectual plane, was Dr. B R Ambedkar. His book “Pakistan or Partition of India” which is not necessarily a sympathetic account to either side should be compulsory reading for all Pakistanis and Indians.
First of all, claiming British India’s Muslims as a nation instead of a minority was necessitated by the political need of getting Muslims a share in governance of India. It was a consociational counterpoise to what was a very real fear of Hindu majoritarianism. British India was always a subcontinent inhabited by many elements brought together into one political unity through the fiat of British rule. The word India comes from Indus (which flows entirely in Pakistan) and India was a general name that dates back to Greek times in 5th Century BC. Like Greece, primordial India was a collection of kingdoms and states not under one rule. Therefore, the Muslim leadership felt that by positing the idea of independent and autonomous regions within the Indian milieu, they were not destroying any organic unity but reconstituting India into federations that could come together in a confederation—the necessity being that democracy without safeguards would have meant Hindu majority rule over Muslim minority. To make this point the term nation was adopted instead of community. That Muslims had been accepted as a separate entity dates back to the Minto-Morley reforms and was endorsed by the Congress in 1916. The very fact that Jinnah was called the Best Ambassador of Hindu Muslim Unity by leading Hindus implicitly recognised Hindus and Muslims as two major entities.
Secondly, it was not as simple as suggesting that Muslims were a separate nation by religion alone. The idea of Muslim nationalism was based on culture, history, language, script, names and antagonistic heroes and villains. This meant that accordingly, Muslims were not just a nation with respect to Hindus but also with respect to Muslims beyond India. Therefore, the claim was never that all Muslims everywhere are a nation. The key element of this nationalism was the particular Persianate culture of Indo-Muslim experience in the subcontinent distinct even from the Iranian culture. This was the nationalism of the mind, no less valid than any linguistic nationalism, though inherent within the idea of Muslim Nationalism was a specific linguistic nationalism based on Urdu. This Muslim Nationalism was wholly consistent with the idea of Jahangir’s famous wine cup in so much as it did not reject what was on the face of it an affront to the strictures of Islamic jurisprudence. Within this idea of an imagined community were included those sections of Muslim society – like the Khojas and the like – who even had a personal law that was at odds with Muslim personal law. Indeed the law applicable to Jinnah’s own estate was Hindu personal law and not Muslim personal law. Therefore, this idea of Muslim nationalism cast a wide net. Most importantly though it was a nationalism of the mind not based in blood and soil. Therefore it was not etched in stone. The idea of Muslim Nationalism thus could shift to an even more inclusive nationalism such as the idea of a Pakistani nationalism encompassing all Pakistanis regardless of religion, caste or creed. This marks it different from the idea of Zionism and Hindu Nationalism. Zionism is based on blood and Jewish ancestry in addition to culture, language, etc. Indeed Hebrew was all but a dead language before Israel brought it back. Hindu Nationalism is tied to the land of India. It is not a religious nationalism simpliciter and its exclusivism stems from the fact that it views with suspicion Muslims and Christians as outsiders with their locus of worship outside India. So in that sense neither Hindu Nationalism nor Zionism break with the traditional blood and soil nationalism.
The Founder of Pakistan repeatedly said that Pakistan shall not be a theocratic state to be run by priests with a divine mission. In the last All India Muslim League’s convention in Karachi in December 1947, he explained that in his view Islam did not stand for an ecclesiastical state. He also refused to be the president of the Pakistan Muslim League that was a successor to AIML, stating that he could not, as the de facto Head of State, also lead an avowedly communal organization. It is said that he wanted to transform the League into a national body in Pakistan as it no longer made sense to have a Muslim League in a country that was overwhelmingly Muslim majority. Meanwhile, he wanted the Muslims in India to unite under the flag of Indian Union Muslim League to protect and fight for the rights of the Muslim minority. For once his will did not carry the day as far as Pakistan was concerned. Ultimately, he was forced to tell an interviewer that the time for such a move had not yet come but that the decision to have a purely Muslim organisation was not irrevocable and would be revisited when enough progress had been made. However, the critical point here is the distinction between a majoritarian group nationalism and a minority group nationalism. This is what separates the minority Muslim nationalism of 1930s and 1940s from the majoritarian Hindu nationalism we’ve seen in India, just as Black nationalism in the US can never be equated to White nationalism that plagues it. A minority nationalism is about survival and a majority nationalism is about subjugation.
The problem with blood and soil nationalism is that it is etched in stone because it is inherently racist and xenophobic, in addition to being primordial and tribal. I do not mean this in a religious sense at all but we see this in the competing blood based race based nationalisms within Pakistan. It is strangely out of place in the modern world where the race boundaries are breaking down quickly and consistently. In comparison, the intellectual Muslim Nationalism that led to the creation of Pakistan lost its own rationale once Pakistan was created. Those who say that the so called Two Nation Theory was buried in the Bay of Bengal in 1971 are off the mark. That was the breakdown of the power sharing arrangement between East and West. The idea of Muslim Nationalism became defunct at independence in 1947. What replaced it was the idea of a Pakistani nation and Pakistani citizenship. Hence Jinnah’s 11 August speech said that in due course of time Hindus will cease to be Hindus and Muslims will cease to be Muslims in a political sense as citizens of one state. While Pakistan has been troubled by the question of religion in the constitution, the idea of a Pakistani includes all citizens of Pakistan and the Citizenship Act of 1951 makes no distinction between any person on the basis of faith. Pakistan might be an Islamic Republic but the idea of being a Pakistani is entirely secular and it too is the nationalism of the mind that comes from the idea of citizenship.
The problem is that those who came after Jinnah could not make that distinction between the two. Instead of heeding the advice in 11 August speech and allowing the distinctions of majority and minority to vanish over time, Pakistan has insisted on letting them become ossified into non-negotiable positions. In the process Pakistan has become a theocracy on all counts. Apologists for theocracy in Pakistan say that Pakistan is not a theocracy because parliament is sovereign. The truth is that the fi line of the Pakistani constitution states: Sovereignty of the entire Universe belongs to Allah alone. So that is the deity clause of our constitution. However this alone does not make Pakistan a theocracy. After all Republic of Ireland has a similar clause and the statement “One Nation under God” exists in the US pledge of allegiance as well. The Objectives’ Resolution undertakes to enable Muslims to live according to Quran and Sunnah. Here the word is enable not enforce–a critical diff So it is true that the Objectives’ Resolution – while a communal and majoritarian document does not make Pakistan a theocracy in a legal and constitutional sense. Therefore, the 1956 and 1962 Constitutions cannot be said to be theocratic constitutions simpliciter. There were Islamic provisions in deference to the Muslim majority and Muslim cultural life but they by and large did not seek to impose religion. The office of the president was reserved for Muslims alone and that was the beginning of real constitutional discrimination in Pakistan against the minorities. Nevertheless, the office of the Prime Minister, in whom was vested executive authority under the 1956 Constitution, was open to any citizen of any faith. Significantly , neither constitution had a state religion, because the consensus was that a state could not have a religion.
The 1973 Constitution provided for a state religion and also went further than the 1956 Constitution by closing the door on minorities vis a vis the office of Prime Minister. The repugnancy clause i.e. Article 227 made all legislation subject to injunctions of Islam. The freedom of expression clause had the glory of Islam exception. It was a thoroughly discriminatory and theocratic constitution from the beginning but the introduction of the Federal Shariat Court and provisions added by General Zia ul Haq’s military regime made it an outright theocracy.
So it is about time we admit that we are a theocracy run by priests with a divine mission and it would seem that a great majority of Pakistanis want it that way. Minorities of Pakistan are second class citizens and at least one minority has no rights at all in the country. On a legal plane, in Zaheeruddin v State 1993 SCMR 1718, the Supreme Court abolished religious freedom in Pakistan in 1993. Priests with a divine mission sit in the Council of Islamic Ideology and the Federal Shariat Court, constantly vetoing any progressive legislation in the country. If they would have their way—and they soon might—they might even abolish the Muslim Family Ordinance 1961 which gives women certain rights.
Instead of religion being the personal faith of an individual, it is entirely the business of the state in Pakistan, indeed its only business.
There was a reason why Jinnah never used the term Riyasat-e- Medina. It was not on account of his much vaunted indifference to religion. On the contrary, it was because Jinnah understood – as many amongst Muslims have – that Riyasat-e-Medina worked because of the divinely guided Prophet (PBUH). Any attempt to replicate it by lesser mortals would lead to papacy and that Islam does not allow. It is correct that Islam does not stand for an ecclesiastical state like the Vatican City. It stands to reason then that Islam stands for a secular state run by secular people where religious freedom is allowed and the principle of La-Ikrah-Fid-Deen – there is no compulsion in religion- finds fullest expression – a level playing field for everyone to convince the other of their point of view.
Other than the 11 August speech where Jinnah clearly and unambiguously buried the two nation theory to the extent of citizenship when he said that “in course of time Hindus will cease to be Hindus and Muslims will cease to be Muslims, not in a religious sense, but as citizens of one state.” He also poignantly declared that had it not been for such divisions India would have been a free country a long time ago. After saying that in his estimate the idea of a United India would have never worked, he went on to say that only time will tell if this view is correct or not. The burden that Pakistan bears is the weight of history. Only if Pakistan could eradicate the religious difference between its citizens, could it then have been justified in the eyes of history. As things stand, the answer to Jinnah’s question is no. Pakistan has failed to live to any expectations he might have had. This bears repeating. Nevertheless, the 11 August speech had already laid the foundation of territorial Pakistani nationalism which was reaffirmed by the Citizenship Act of 1951 which adopted Jus Soli, ie. soil nationhood, as the basis for Pakistan.
Let us also disabuse ourselves of the notion that Islam demands of us a theocratic order. The history of Islamic civilization is replete with examples of not just toleration but acceptance of other creeds. Islam does not ask for discrimination against others. Nor is the idea of an “Islamic Republic” an article of faith in Islam. Muslim political entities in history have by and large ignored religious questions. This is why Islamic law was not even codified till the idea gained popularity in the latter half of the 20th Century. Implicit within the theology of Islam is the idea of choice. No worldly authority can dictate to an individual how to live their private life or hold a religious belief and it is this fundamental principle that is accepted by Islam. Had this not been the case the Muslim world would not have produced thinkers and scientists like Avicenna and Rhazes, both of whom, by the way, were at best openly agnostic if not atheists. Yet, despite this they were tolerated and even respected within the Muslim milieu. The same is true of Ibn-al-Haytham (the father of optics) and Al-Khawarzami (the father of Algebra). These irreligious scientists and mathematicians together formed the Islamic golden age in which Muslims were known for science. Had the Muslim political entities in which they operated been theocracies, they would have been put to death but they were not. There was no idea of “inquisition” in this Islamic golden age. Indeed the very first inquisition in the Muslim world took place in Pakistan in 1974. We as a country have this dubious distinction of introducing a new innovation that hitherto was only associated with medieval Catholic and Protestant Churches; later to be abandoned by Christianity during the age of reason. In his paper “The Transformation of the Sharia from Jurists’ Law to Statutory Law in the contemporary Muslim world”, Aharon Layish outlines how Sharia was originally ‘jurists’ law” i.e., law created by independent legal experts. He points out that Ibn-al-Muqaffa, the Secretary of State of the Abbasid Caliphate, suggested to Caliph Al-Mansur that the latter enact through an administrative decree a “comprehensive codification out of different doctrines of main schools with a view to bringing about uniformity in law”.
This did not materialise. He then quotes J. Schacht’s introduction to Islamic Law as saying that “orthodox Islam refused to be drawn into too close a connexion with the state”. Therefore, the codification of Islamic law in earnest begins in the 19th century with Mejelle, the Ottoman Civil Code based on Hanafi school. As Muslim majority states won independence from colonial rule, many of them did codify Sharia or make them part of their Constitution as a source of law.
Indeed, Rashid Rida has criticized the Ulama of Al Azhar for not standing up to formal codification in Egypt which to him has meant not just a damage to ulama’s economic status and reputation but also the loss of Islamic character of the very state that seeks to codify Sharia in this manner. This has meant a loss of the independence that ulama traditionally have maintained with respect to the state and its interference in matters of Sharia. Essentially building on this idea, Sudanese scholar and lawyer Dr. Abdullahi Ahmed An Na’im’s book, ‘Islam and the Secular State’, opens up with this bombshell of a statement: “In order to be a Muslim by conviction and free choice, which is the only way one can be a Muslim, I need a secular state.” He defines secular state as follows: “By a secular state I mean one that is neutral regarding religious doctrine, one that does not claim or pretend to enforce Sharia—the religious law of Islam—simply because compliance with Sharia cannot be coerced by fear of state institutions or faked to appease their officials.” An Na’im argues that striving for a secular state is a religious imperative for every Muslim. His idea of secularism is not the French idea of secularism or even what he — I suspect — would call the Turkish model that Kemal Ataturk introduced. He seems to believe in the absolute neutrality of the state. An Na’im considers the very idea of an Islamic state as fallacious and a non-starter. Indeed, he seems to suggest that such an idea itself is predicated on the European Model of Nation State and positive law, which is wholly inconsistent with Islamic traditions.
It stands to reason that all our anxieties about safeguarding Islam in Pakistan do not find sanction in the classical Islamic doctrine. Our penchant for legislation in the name of Islam and fusion of religion and state is the result of a deep-seated insecurity which does no one any good. It does not serve any real cause of Islam. All it has done is retard the progress of this country and will continue to do so for the foreseeable future. Pakistan itself was created to safeguard the economic and political rights of the Muslim majority areas in the subcontinent, which feared marginalization by a Hindu dominated center. Its rationale was never to create a bigoted theocracy that persecutes minorities in the name of religion and nor was it to create a backward priest ridden state that would thwart the progress of its citizens, overwhelming majority of whom are Muslims. Indeed the theocratisation of Pakistan defeats the very rationale of Pakistan i.e. the economic uplift of what was a backward community fearing marginalization. Instead, we have only achieved the marginalization of minorities in Pakistan by relegating them to second, third and even fourth-class citizens.
Pakistan shed its dominion status on 23 March 1956 and became a republic by promulgating the fi republican constitution. Under this constitution, Pakistan was declared an Islamic Republic, as it is today, but when it came to the role of Islam in state, the 1956 Constitution was considerably diff from the 1973 Constitution. There was obviously the fact that the office of the Prime Minister was open to all citizens of Pakistan with only the office of the President being reserved for Muslims.
Apologists for the blatantly theocratic nature of the 1973 Constitution dismiss this by saying that the 1956 Constitution vested all executive authority in the president and therefore the 1973 Constitution did not make a change by closing the door on religious minorities vis a vis the Prime Minister. This is an erroneous view. The language used in 1956 Constitution was similar to the Indian Constitution. The president had to operate on advice and that was the case in the two odd years of operation of the constitution before President Iskandar Mirza mounted a coup against the same constitution by abrogating it (something he was not empowered to do). It was patently obvious when Iskandar Mirza’s favourite prime minister Muhammad Ali lost the vote of no-confidence and H S Suhrawardy, the leader of the Awami League, formed the government. Suhrawardy was a powerful Prime Minister and not a dud.
There are other very important aspects of the 1956 Constitution versus 1973 Constitution that are overlooked. The 1956 Constitution did not have a state religion because it was reckoned that states don’t have state religions, individuals do. The word Islamic appears on two occasions in the document, once in the preamble (which was the Objectives’ Resolution) where it states: “Whereas the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, declared that Pakistan would be a democratic State based on Islamic principles of social justice” and the second when it states in Article 1: “Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan, and is hereinafter referred to as Pakistan.” Interestingly the statement that the founder of Pakistan declared that Pakistan would be a democratic state based on Islamic principles of social justice was not in the Objectives’ Resolution as it was annexed in 1984 to the Constitution.
This point has not been highlighted by any scholar of Pakistan’s constitutional history, even though it was significant enough for both the 1973 Constituent Assembly to change its location within the preamble and for General Zia in 1984 to erase this reference to Jinnah altogether in the substantive form. So this reference exists as an afterthought in the preamble with the words “faithful to” as opposed to “whereas”. It is high time constitutional scholars addressed this disparity between the original Objectives’ Resolution and how it occurs under our constitution today both as preamble and substantive part.
There are three other major differences between the two constitutions that are jarring. The oaths of office under the 1956 Constitution were devoid of religious content. Even the President of Pakistan, who had to be Muslim, did not have an oath affirming or swearing that he was a Muslim. The oaths were completely secular and there was no reference to God or deity in line with Jinnah’s famous amendment taking out reference to God. There was a provision that allowed an office holder to either affirm or swear. Jinnah had changed the word “swear” to “affirm” in the original oaths of office. The significance of that change is obvious to lawyers. Strikingly, none of the oaths of office had any reference to any Islamic Ideology. Many members of the constituent assembly that framed the 1956 Constitution had been part of the Pakistan Movement. It seems that they were not aware of the Islamic ideology that the 1973 Constitution so vehemently makes part of the oaths of office.
The 1956 Constitution, like the 1973 Constitution, had a repugnancy clause i.e., no laws could be made repugnant to Islamic injunctions. The final arbiter however was the legislature as it seemingly was under the original 1973 Constitution which, after the Zia regime, introduced the Federal Shariat Court to sit in judgment over the legislature’s wisdom on Islamic injunctions. Under the 1956 Constitution there was to be an advisory organisation for Islamic research, the expenses of which were to be defrayed through a special tax to be imposed on Muslims and not Non-Muslims. Under the 1973 Constitution, the Council of Islamic Ideology has assumed permanence and its expenses are borne by all citizens of Pakistan, Muslims and non-Muslims alike.
The most extraordinary difference is the fundamental right of freedom of speech and expression i.e. Article 8 of the 1956 Constitution and Article 19 of the 1973 Constitution. There is no exception on the basis of glory of Islam under 1956 Constitution. That novelty was introduced by the 1973 Constitution. A law such as 295 B or C or 298 B or C could not have been legally sustained under the 1956 Constitution.
The 1956 Constitution, framed close to the founding of Pakistan, balanced the needs of a modern democratic state cognizant of its Non- Muslim minorities with those of its Muslim majority in a rather elegant way. The 1973 Constitution instrumentalised Muslim majoritarian tendencies and turned Pakistan into a theocracy. Too much water has passed under the bridge to reverse the theocratic nature of the state we live in but it is important to remember that there were other ways of going about balancing state and religion.
Nevertheless both constitutions create distinctions on the basis of religion. It has trickled down to every day life. For example, every religious minority in Pakistan does not merely need to list his or her religion on the NIC application form but also give a declaration i.e., he or she is not a Muslim. However, the matter is not merely psychological. It means that Muslims are somehow the natural real citizens and proprietors of this country and Hindus, Sikhs, Christians, Hindus and so on and so forth are merely squatters. This is some what akin to Andrew Jackson’s policy with regard to Cherokee Indians. Just like the Cherokee Indians, Hindus and religious minorities have lived here for millennia. Yet, they are being treated like strangers in their own home.
There are judges who have tried to interpret the current Constitution to curtail the exclusive claims of those who would like to see Pakistan transformed into a theocracy. Chief Justice of Islamabad Athar Minallah’s 8 page judgment in the Aurat March case is a significant decision when it comes to the interpretation of Islamic provisions of the Pakistani Constitution, not just when it comes to women but, in general, with respect to the expansive interpretation of Islamic injunctions to allow for maximum human rights. The petitioners relied on the clause of the Objectives Resolution which states “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.” Here the important part the petitioners missed out was the word used is “enabled” not “enforced”. The former gives an element of choice to Muslims of Pakistan whether or not to order their lives in accordance with Quran and Sunnah. This is in line with the Quranic injunction “There is no compulsion in religion” (Al Baqarah 256) as well as Article 20 of the Constitution. Contained within this principle explicitly is the idea of religious liberty both to be religious and not religious. Mindful of this basic document, the 1956 Constitution of the Islamic Republic of Pakistan did not have a religious oath even for the President, who under that Constitution had to be a Muslim. The requirement thus was not of personal belief or practice of faith but rather Muslims as a class in a state that culturally and politically defined itself as an Islamic Republic. Obviously the 1973 Constitution added a religious oath for President and Prime Minister and this was further amended after 1974 and during General Zia’s military rule. Nevertheless, the principle is broader than merely oaths. While the Islamic Republic has a special obligation to provide its Muslim citizens with ample opportunity to practise their faith according to their own sectarian affiliation, this is to be balanced with a similar positive obligation to allow minorities to practise and profess their faiths and develop their cultures freely. I delved at length on the use of the word “freely” in a previous article. Needless to say that the use of the word “freely” establishes the idea of absolute religious freedom for religious minorities in Pakistan, an idea that is sadly conspicuous by its absence in Pakistan. Similarly, as mentioned above, the word “enabled” bestows upon every Muslim an element of choice which cannot and should not be undermined. Petitioners also invoked a principle of policy but principle of policy under the Constitution is not justiciable because such principles are subject to availability of funds and as such the Islamic way of life also uses the word “enable” and not “enforce”. To pass this legal hurdle, the petitioners relied on the word “ideology of Pakistan” relying on Section 123-A of the Pakistan Penal Code. Section 123-A is a badly drafted law, which was aimed at preserving the colonial regime before 1947. The honourable Chief Justice of Islamabad High Court had, in the case of Islamabad protesters, already observed that Section 123-A is irreconcilable with a modern democratic state. The words “ideology of Pakistan” do not directly appear in the text of the Constitution except as part of the oaths that are administered. Therefore, there is no real consensus on what it means. Besides, any reference to Penal Code makes it a criminal matter subject to a criminal court and therefore not enforceable under the constitutional jurisdiction of the High Court. It would appear that not much thought had gone into the petition that was hastily drafted to create unnecessary hurdles for the Aurat March to go through.
Justice Minallah’s judgment is keeping in line with the thinking of two foremost legal minds in Pakistan’s history, Sir Zafrullah Khan and Justice A.R. Cornelius. The former wrote a tract called Islam and Human Rights and showed how his contributions to the UN Declaration of Human Rights were inspired by Islam and how the idea of universal human rights is to be reconciled with Islamic injunctions. Justice A R Cornelius, himself a Christian, saw Islamic ideas of justice as complimentary and interpreted Islam as a liberation theology for Pakistani jurisprudence.
