The Constitution: Restricted Growth At 50

The Constitution: Restricted Growth At 50
Although constitutions are living documents, thus subject to improvements through interpretations and amendments, however, their sanctity in adherence is indisputable. Unfortunately, the constitution of Pakistan of 1973 (CoP) around 10 April 2023 that marks its 50th anniversary, is more a subject of controversies and manipulations of power.

Anyhow, celebrate we must-as a nation which braced rules without a constitution and imposition of state of emergencies a few times. The government has also set up a parliamentary committee that includes a minority members, Mr. Amir Navid Jewa, to celebrate the anniversary. This encouraged the author to underline the areas of improvements with regard to Parity and equality among citizens or non-discrimination on the basis of religion or belief.

As far as the concept of discrimination, the International Convention on the Elimination of all forms of Racial Discrimination (ICERD), in Article 1 (1), defines discrimination as “any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” Later, the above mentioned parameters were used in the Convention on the Elimination of All forms of Discrimination Against Women (CEDAW) treaty to define gender discrimination adding credence to their validity.

ICERD was adopted (in 1965) eight years before, while CEDAW (in 1979) four years after the CoP was adopted. Pakistan has signed and ratified both conventions, which implies that the drafters of the CoP and those who introduced amendment were aware of the foundational concept of nondiscrimination in the human rights framework enunciated the above mentioned international instrument.

It is also pertinent to ponder on the question whether CoP provides a strong foundation of a democratic and social order. Moreover, whether it enabled upholding human rights of the people. In fact, the original text as well as several of the 30 amendments made to CoP manifest several conceptual and technical shortcomings.

Remarkably, Article 20 provides that “subject to law, public order and morality, a) every citizen shall have the right to profess, practice and propagate his religion; and, b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.”  Hence, this articles is not restrictive and attaches no discriminatory conditions. One can question the quality of implementation, yet this article remains a testament of the promise made by the founder of the nation on 11th August 1947 in his famous speech, when he pronounced, “You are free to go to your Mosques, Temples and other places of worship. That has nothing to do with the business of the state”.

The CoP also discourages discrimination on the “grounds only of race, religion, caste, sex, residence or place of birth” in articles 26 and 27 with regards to access to public places and joining services. Some jurists consider the formulation to be inappropriate and use of the term “only”. Instead, using the term “either” would have served the purpose better. Moreover, Article 25 on equality before the law, fails to acknowledge the whole spectrum of discriminations, expect one on the basis of sex. Hence, the CoP does not provide or refer to a definition of discrimination, and it does not include different forms and manifestations of discrimination acknowledged in the international treaties. This is as far as the normative part of CoP.

In the operational part though, the CoP discriminates among its citizens on the basis of religion in several different ways, such as active restrictions, dilution of rights, a subtle preference to majority religion and the assumption that religious minorities do not exist. The first type of discrimination blatantly defies the equality of rights of the citizens, for instance, Article 41(2) uses a barring vocabulary “a person shall not be qualified for election as President unless he is a Muslim.” Hence the eligibility clause was used to impose a restriction. The assumption here is that people of faiths other than Muslims exist but are not eligible for high offices. So technically speaking, they would qualify if they became Muslim.

The effect of Article 91 (3), regarding the election of Prime Minister, is the same as the above article. This article inserted through the famous 18th constitutional amendment, excludes religious minorities not in eligibility clause but the election process for this office in a passing manner. It states “the National Assembly shall … proceed to elect without debate, one of its Muslim members to be the Prime Minister.”  Similarly, article 203 (E) holds non-Muslim lawyers ineligible in the Federal Shariat Court “who is a Muslim and has been enrolled as an advocate of a High Court … Supreme Court…” although the jurisdiction of the court includes all citizens irrespective of their faith background. This forms an active preference for the citizens of majority religion, and a discrimination against the non-Muslim, citizens.

The language in Article 36, the proviso devoted to rights of minorities, effectively dilutes the commitment of the state towards them by conditioning the safeguards to “the legitimate” rights and interests of minorities. This vocabulary does not enable implementation of rights; it rather leaves room for the implementing machinery to decide at sweat will, as to what are the legitimate rights. The CoP does not attach the prequalification of legitimacy with any other area of rights.

Articles 1 and 2 about naming Pakistan an Islamic republic and declaring Islam as a state religion is a majoritarian preference or supremacy but also demeaning the existence of the faith diversity. This assumption is reinforced in another crude form in the oath statement of elected offices which is provided in the second and third Schedule of the CoP.

All elected representatives including the minority members of national and provincial assemblies, senate, federal and state ministers, speakers of assemblies and chairman and deputies, are required to make solemn pledge “to preserve the Islamic Ideology which is the basis for the creation of Pakistan”. Thus, CoP requires all elected officials to be aware of, moreover, to strive to preserve the Islamic ideology.  At different times though, two eminent parliamentarians, late Maulana Mufti Mehmood and Makhdoom Amin Fahim pointed this out on the floor of National Assembly that the statement of the oath was not appropriate for minority members but nobody paid attention.

Furthermore, Article 31 makes it obligatory for the state to promote Islamic way of life and “to make the teaching of the Holy Quran and Islamiat compulsory, to encourage and facilitate the learning of Arabic language and to secure correct and exact printing and publishing of the Holy Quran”.

On the other hand, Article 22 (1) protects the rights of minorities in education, it states “No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.”

However, textbooks for languages, social studies and humanities, the curricula country routinely disregard Article 22(1). Visibly, the policy implementation accords importance to Article 31 but not Article 22 (1). Hence, the statutory preference given in Article 31 (policy principles) manifestly overrode the protection (fundamental right) given in article 22 (1) therefore the education system stands replete with layers of discrimination after the 1970s, including the recent controversy about awarding 20 extra marks for Hazif-e-Quran.

The notions of religion based supremacy was first enunciated in Objectives Resolution passed by the constituent on March 7 1949. This had a lasting effect on the quality and model of governance however, the resolution primarily created two types of citizens and laid the basis of religious-nationalism in Pakistan.

Importantly, the resolution was  passed after bulldozing the standpoint of members of religious minorities who contested the exclusive approach in the resolution that stated; 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 accord with the teaching and requirements of Islam as set out in the Holy Quran and the Sunnah;”

The speeches chronicled in the Constituent Assembly Debates particularly in Volume V demonstrate how vehemently non-Muslim members such as Bhupendra Kumar Dutta, Prem Har Barma and Chattopadyaya argued that the resolution should be inclusive and that imposing majoritarianism will have serious consequences. Chattopadyay had asserted “The state must respect all religions and, therefore, a state religion is a dangerous principle. Previous instances are sufficient to warn us as people were burnt alive in the name of religion. Therefore, sovereignty must reside with the people and not with anybody else”. Consequently, all ten non-Muslim members present in the Constituent Assembly voted against the resolution but the Muslim League ignored it and passed the resolution with the majority of (30) votes.

Historically, Pakistan was the only country in the region till 1949 that had a state religion but in 2023 Afghanistan, Iran and Maldives have adopted this character while Bangladesh has reduced this a bit. Moreover, the ideal of secular or inclusive polity in India and Sri Lanka is under tremendous pressure whilst the societal trends are being subdued by the religion based nationalism. The successive constitutions created a politics in Pakistan that impacted the whole region.

Although the Objectives Resolution passed in March 1949 recognized the existence of minorities stating “adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures”. Strangely though, General Zia Ul Haq omitted the term freely arbitrarily from the text when he made the Objective Resolution the Preamble of the CoP in 1985. The parliament restored the term in the preamble 25 years later whilst the 18th amendment.

The second amendment a world unique statutory discrimination was inserted in Article 260 (3) (a & b) in 1974, which provides definitions of a Muslim and eight categories of non-Muslims namely; Christian, Hindu, Sikh, Buddhist or Parsi, Ahmadis, Baha’i and the Scheduled Castes.

Though ostensibly it was aimed at excluding a specific faith community, this article instituted religious discrimination that led to several legal blunders such as discrimination in the electoral laws. Firstly, the constitution indulged in the impossible task of defining the religion of citizens, thereby limiting the freedom of religion to nine categories that all citizens were supposed to fit in their religious identity. Secondly, this created the division of recognized and unrecognized religious identities on one hand and the ensuing (mal) practices of favoured and unfavoured religious minorities on the other in the policy area.

Thirdly, this amendment provided legitimacy to exclusionary social processes that led to persecution of sectarian minorities. Moreover, the state apparatus became inclined to cherry pick amongst the Muslim sect which left the nation and society thoroughly divided.

As a guiding document for political, administrative, social orders as well as cultural and aesthetic existence of a nation, the constitution should be in good shape and health. So far, it has restricted the growth of polity and society. Therefore, removing multiple discriminations that CoP carries, is utterly crucial to restore its health. As a social contract the constitution should have no room for supremacy of a section of society, on whatsoever basis. It has landed the nation in failures and crises.

The 50th anniversary of the CoP brings an opportunity for soul searching and self-examination. The existing constitution has produced no more than a stunted growth of our systems. Whether they are embedded or naked, discriminations are bound to undermine rule of law and good governance as these are a violation of the basic postulate of justice that hinges on theoretical and operational equality of rights.

International best practices can help us develop a better constitutional framework based on egalitarian principles of dignity and equality of all human beings.

The author is a human rights expert, researcher and freelance columnist. He tweets @PeterJacobCSJ can be reached at: