As a young man in the late 1980s, I often visited a recluse by the name of Dr G.M. Mehkri, primarily to explore his terrific library. He once told me that he was part of a large group of intellectuals who were invited by Z.A. Bhutto to work out the country’s post-1971 ideological narrative.
One day in 1989, he wanted a friend of mine and I to discuss with him the 1973 constitution. He began the proceedings by saying that he couldn’t recognise it anymore. He told us that a lot of what had been discussed in the conference that the Bhutto regime organised had been incorporated in the constitution. But he then added that from 1974 onwards, so many amendments were made to the document that it had become “unrecognisable.”
Mehkri described the much-amended constitution as the “revenge of Islamic parties who were sidelined by voters, but appeased by Bhutto and Zia.” These weren’t the musings of a disgruntled and reclusive intellectual. Going through National Assembly Debates Volumes I and II— compilations of the early debates of the first post-1971 National Assembly — one can note that the constitution had a progressive intent.
These debates took place in the months leading up to the passing of the constitution in April 1973. In Volume II of the compilations, there is an interesting debate on what would be the role of Islam in the constitution. This debate took place in January 1973.
It kicks off with Shah Ahmad Noorani, chief of Jamiat Ulema-i-Pakistan (JUP), demanding that the constitution be made “entirely Islamic.” To this, Mahmood A. Farooqui of another Islamic party, the Jamaat-i-Islami (JI), responds by saying that it should be left to the Supreme Court to decide what was (or wasn’t) Islamic. Noorani then insisted that, “Pakistan was made in the name of Islam,” and the performing of Islamic rituals (in public institutions) should be made compulsory. S. Ahmad Rashid of the ruling party (the PPP) responded by saying: “Pakistan wasn’t created to implement Islamic rituals, but to implement an Islamic economy which was socialist.” After a vote, Noorani’s motion was defeated.
The next day, Rashid suggested that the term socialism be added to the constitution, to which his own party member Makhdoom Zaman moved that instead of socialism, the term “Islamic Socialism” be used (“as the basis of Pakistan’s economy”). JI’s Prof. Ghafoor disagreed and asked that just the word Islam would suffice, whereas dissident PPP man Ahmad Raza Kasuri suggested the term “Musawat-i-Muhammadi.”
JI members in the assembly insisted that “socialism was anti-Islam” and the government was trying to make the constitution socialist. Their sentiments were echoed by Maulana Ghaus of Jamiat-i-Ulema Islam (JUI), who said that though his party had supported PPP’s manifesto (in 1970), he could now “smell communism” in Rashid’s motion. PPP’s Kausar Niazi sarcastically asked as to how the Islamist parties had no problem accepting the term ‘Islamic Democracy,’ but were finding faults in the term ‘Islamic Socialism.’
The 1973 constitution is passed
After a long discussion, the four assembly members agreed to use the term Musawat-i-Muhammadi. The next day, members of Islamic parties in the assembly complained that the government was suggesting a time period of seven years after which all laws in Pakistan would become ‘Islamic.’ They protested that this was too long a period and there was no guarantee that the assembly (if dominated by secular parties) would even do so after seven years.
When the treasury benches refused to accept a time period less than seven years, the opposition walked out. When the opposition members returned, JUI’s Maulana Ghaus and another Islamist parliamentarian Maulana Abdul Hakeem, asked that apostasy, speaking against Islam, and preaching of any other faith other than Islam be made unlawful in the constitution. To this, PPP’s Khurshid Mir said that if they did that, then non-Muslim countries could react by enacting laws against the preaching of Islam in their countries. He said that the laws (against apostasy) being proposed by Ghaus and Hakeem could encourage violence by those who believe that someone else was not a ‘correct Muslim.’ The motion was rejected.
Abbas Mehmood of the PPP said that “there was no yardstick in Islam to measure one’s faith” and that the ulema cannot be given this task “because they are always hasty to declare a person a non-believer”
The opposition then asked that the teaching of Islamiat and Arabic be made constitutionally compulsory in schools. The suggestion of teaching of Arabic was accepted by the assembly. Later, Mian Manzoor and Shah Ahmad Noorani said that laws be enacted in the constitution against the “spread of obscenity” (on TV and in films), and against the sale, production and consumption of alcohol. They were supported in this by a PPP member, Begum Nasim Jehan.
However, a majority of members on the treasury benches did not support the motion after PPP’s Hafeez Pirzada said that the government was committed to curb all social ills and there was thus no need to enact any such provisions in the constitution. The motion was taken back.
The next day, JUI’s Maulana Haq and JUP’s Maulana Al Azari forwarded a resolution that a clause be added in the constitution demanding that the president/prime minister (and eventually all parliamentarians) be ‘pious.’ To this, the chief of PML-Qayyum, Abdul Qayyum Khan, said that “all the ulema in the parliament were not ulema anymore because they had become politicians.”
Abbas Mehmood of the PPP said that “there was no yardstick in Islam to measure one’s faith” and that the ulema cannot be given this task “because they are always hasty to declare a person a non-believer.”
It is interesting to note that a majority of these motions which were rejected in 1973 gradually became part of the constitution — mainly between 1974 and 1991. That’s why Dr. Mehkri would look at the constitution, shake his head and mumble, “I just can’t recognise this anymore.”
The 1973 constitution is widely seen as a successful compromise between different political perspectives in the country
The first draft of the 1973 constitution was rejected by the opposition parties. The 11th April 1973 issue of the New York Times quoted secular and Islamist opposition members bemoaning that the draft was “neither democratic nor Islamic nor federal nor parliamentary.” The Bhutto regime had to hold numerous rounds of negotiations with the opposition to get their consent. Once the opposition agreed to support the altered draft, it was passed in the National Assembly on the 19th of April 1973 and came into effect in August.
The consensus in the local media was that the constitution was a balanced document. It guaranteed democratic rights, had a progressive outlook, and “just the right amount of Islamic provisions.” Though in a June 1974 essay, the American sociologist JH. Korson agreed that the constitution “maintained a delicate balance between traditionalists and modernists,” he added that heavy compromises on fundamental religious rights in the country, and on the more secular-humanist provisions present in the first draft, had to be made to get the consent of the Islamic parties in the assemblies.
The National Assembly debates on the contents of the constitution (in this context) are reflective of this, with the then ‘socialist’ government and its allies trying to push in as many ‘progressive’ provisions in the document by pushing back the more radical provisions suggested by the Islamist parties and their allies. After convincing themselves that the ‘right amount’ of Islamic provisions were accepted, the treasury benches then went on to convince the opposition that a well-balanced constitution had come into being.
Noorani insisted that “Pakistan was made in the name of Islam,” and the performing of Islamic rituals (in public institutions) should be made compulsory. S. Ahmad Rashid of the ruling party (the PPP) responded by saying: “Pakistan wasn’t created to implement Islamic rituals, but to implement an Islamic economy which was socialist.” After a vote, Noorani’s motion was defeated
A majority of Pakistani political scholars and constitutional experts agreed. However, over the years, the number of those who, like Dr. Mehkri, began to view the constitution with suspicion, have increased. The view is that by compromising to allow certain ‘retrogressive’ provisions, a tradition was set to continue to add provisions that have muted the original progressive and balanced intent of the constitution. Some of the early ‘retrogressive’ provisions that critics point out are the declaration of having a state religion; that only a Muslim could run for and be elected as prime minister; and that all legislation was subject to ‘injunctions of Islam’ They inquire as to who in a multi-sectarian (and further sub-sectarian) society such as Pakistan is qualified to decide this.
Critics claim that these compromises opened the doors for reactionary additions, such as the 1974 Second Amendment that ousted the Ahmadiyya from the fold of Islam; and sections 62 and 63 which maintain that members of the parliament and senate can be disqualified on the basis of whether they had violated ‘Islamic injunctions’ or had adequate knowledge of Islamic teachings, and on how well they practice obligatory duties prescribed by Islam. Again, who decides this?
The critics also claim that the tradition of accepting narrower provisions has also influenced the introduction of controversial sections in the country’s penal code, such as the 1986 addition of the death penalty in the country’s blasphemy laws.
However, most experts maintain that the Islamic provisions present in the first form of the constitution were formulated in the context of established universal human rights.
But in the June 2020 issue of Pakistan Social Science Review, Ghulam Mustafa, Tooba Ahmad and Muhammad Arsla demonstrate that most of these provisions were never flexed the manner in which they should have. Instead, harsher provisions were introduced that not only pushed the constitution’s disposition further to the right, but they also encouraged acts of bigotry and religious violence.
If the 1973 constitution had a balanced and progressive intent, and is a vital document that guides and safeguards democracy in Pakistan, one wonders whether the compromises and controversial additions have transformed its progressive intent into a theocratic one – enacted to produce a ‘theo-democracy?’
