This April marks the 50th anniversary of the ratification of the Constitution of 1973, which despite two military coups is hailed as the great white hope for the country. The problem with the 1973 Constitution is that envisages an outright Islamist theocracy, rendering the fundamental rights chapter of the constitution worse than useless. This is a key issue because this feature of the Pakistani constitution has made progress impossible in the country.
The role of Islam was debated vociferously in the early days after independence. Since Pakistan was the culmination of a Muslim nationalist movement led by Muslim modernists, the founders of the country sought to justify their liberal democratic vision for the country with invocation of Islam.
Even Jinnah, whose vision for Pakistan was decidedly secular, claimed that a democratic state that treated every citizen equally regardless of religion was in essence a true Muslim state and that democracy and equality were key Islamic principles. He emphatically declared in December 1947 that Islam did not envisage an ecclesiastical state. Jinnah envisaged a state where sovereignty would rest with the constituent assembly and it was this reason that he very consciously kept religion out of law making throughout the 13 months he was at the helm of affairs, while at the same time appealing to Muslim solidarity as a positive virtue to be utilized for nation building.
Significantly whenever he referred to Islam, he was careful in pointing out that Pakistan would not be a theocracy to be run by priests with a divine mission. Jinnah also took the extraordinary step of removing references to God from the oaths of office in the new state indicating that religious faith would not be a qualifier to hold the highest offices in the land.
Most of Jinnah’s successors and political followers were Muslim modernists but with the Objectives Resolution in 1949, they made key concessions to the religious reactionaries by vesting sovereignty in a deity and limiting the exercise of this sovereignty by the people (who were supposed to legislate within the limits prescribed by Islam), assuming perhaps naively and despite repeated warnings by Pakistan’s Hindu legislators that it would be they, the Muslim modernists, who would be the arbiters of Islamic interpretation in Pakistan.
Additionally the resolution committed the state to the duty of enabling Muslims to live according to Quran and Sunnah though at the same time it sought to alleviate concerns of religious minorities by promising them the right to freely develop their cultures and profess and practise their faiths. Prime Minister Liaquat Ali Khan’s speech on the occasion specifically promised that the head of an Islamic state under the Resolution could be a Non-Muslim and that all citizens of Pakistan, whatever their faith, would be equal citizens. This paradoxical promise was never fulfilled.
Pakistan became an Islamic Republic on 23 March 1956. The Constitution of 1956 was relatively less theocratic than the 1973 Constitution. It did not have a state religion. While the head of the state, i.e. the President of the Republic, had to be a Muslim (though strangely not subject to any oath whatsoever), the Prime Minister could be any citizen of Pakistan of whatever religious persuasion. Significantly the key fundamental right of freedom of speech and expression was not subject to any claw backs in the name of religion.
While the West Pakistani elite pressed forth with instrumentalisation of religion as means of promoting unity between the two wings of the country, the East Pakistanis or Bengalis, including both Hindus and Muslim stalwarts of the Pakistan Movement like Suhrawardy, were vociferous in their opposition to such use or misuse of religion. This opposition operated as a necessary check on the decidedly Islamist ambitions of theocrats like Chaudhry Muhammad Ali, who nonetheless managed to build in the repugnancy clause into the Constitution which held that no law could be repugnant to Islam. This was a compromise keeping with the Objectives Resolution, which had spoken of “limits” of sovereignty. Continuation of the 1956 Constitution may well have resolved the problems and contradictions inherent in it.
However it was abrogated after the 1958 coup. The 1962 Constitution – framed by the military regime- originally dropped the prefix “Islamic” from the name, while retaining the Islamic features of the 1956 constitution including the requirement that the head of state had to be a Muslim. The name Islamic Republic was restored through the first amendment. The 1962 Constitution also envisaged a body of religious scholars that would review the country’s laws and make recommendations to the parliament on how Islamise the country. The Ayub regime did however attempt to populate this body with modernist Muslim scholars like Dr Fazlur Rahman Malik– later the famous Harvard scholar- but that attempt proved to be myopic. An iteration of this body under the 1973 Constitution – the Council of Islamic Ideology- stands at the vanguard of the religious reaction in the country today.
With the exit of East Pakistan along with its large Hindu population took away the imperative to maintain some semblance of state neutrality towards faith. The 1973 Constitution was drafted in the context of a predominantly Muslim majority nation.
Arguably safeguards could be built for the less than 5 percent Non-Muslim minorities in Pakistan but the insecurity of the Muslim legislators was amply on display when they reserved the office of both president and prime minister for Muslims. The superfluous state religion clause was added and the fundamental right to freedom of speech and expression was subject to glory of Islam. In 1974 the state declared Ahmadis Non-Muslims and thus laid the precedent for state’s interference into personal faith of individual citizens. The threshold had been crossed and Pakistan had become a constitutional theocracy. Later this somewhat kinder and gentler theocracy was replaced by a vicious one under General Zia ul Haq’s military dictatorship which imposed a narrow-minded bigoted interpretation of the faith on Pakistan’s populace.
With a Non-Muslim population of less than 4 percent, inclusive of the forcibly excommunicated Ahmadi community, the majority now considers the theocratic nature of their state fait accompli. However the existence of a theocracy is most damaging to the Muslim majority itself. The Constitution of 1973 has turned Muslim against Muslim, Shia against Sunni, Deobandi against Barelvi and so on and so forth. The excommunication of Ahmadis was just the beginning. Pakistan’s harsh blasphemy laws- focus of global condemnation and entirely irreconcilable with Pakistan’s international obligations- have targeted more Muslims than anyone else. Out of 2120 persons accused of blasphemy from 1987 to 2022, as many as 1022 are Muslims.
Of the remaining 1098, for the tiny Ahmadi community (formerly Muslims themselves) the number stands at 718 and for Christians the number is 279. New changes to the offences against religion chapter of the Pakistan Penal Code has upped the ante for Shias and Shiite practice of tabarra is criminalized with sentences of up to 10 years imprisonment as punishment.
The 1973 Constitution being a theocratic constitution proceeds on the flawed premise that every citizen of Pakistan belongs to a faith group, whether Muslim or otherwise. It also assumes that Muslims by the virtue of being born in Muslim households are wedded to doctrine and ideology of Islam. The idea that there could be cultural Muslims who are otherwise atheists or agnostics is wholly foreign to Pakistan’s theocratic superstructure of Islamic ideology driven constitutional scheme. This cognitive dissonance of this scheme is deafening when one considers that as many as 1022 Muslims were accused of blasphemy against the holiest of Islam.
Could there be Muslims who blaspheme against Islam? If so what does being Muslim even mean. The constitutional definition of a Muslim in the Constitution then becomes jarring. Could there be such a thing as an atheist Muslim or a Kafir Muslim? Who amongst the Muslims can live up to the religious test of what it means to be a Muslim? This issue is likely to raise its head in the Tyrian Jade White case about former Prime Minister Imran Khan’s love child. The Constitution under Article 62(1)e makes it obligatory for a Muslim legislator to “abstain from major sins” and 62(1)d says that a person who violates “Islamic injunctions” is not qualified to become a member of the Majlis e Shura or the Parliament. Will Imran Khan be disqualified from holding public office on these grounds?
And what of those “Muslims” who while Muslims by birth do not wish to be Muslim or associate with any religious group. Are they condemned to a secret life where they pretend to be Muslims in public? What about those Pakistanis who do not wish to be part of any religion? The Constitution is silent on their rights. If they are to be recognised as a minority will they be allowed to freely develop their culture i.e. atheistic, agnostic or non-religious culture? Will the Courts of the Islamic Republic strike down the Transgender law for being ultra vires the Islamic provisions of the Constitution? Whether the pious of Pakistan like it or not, LGTBQ rights are part and parcel of international law. How long does Pakistan plan on criminalizing homosexuality on the basis of religion? Clearly any de-criminalisation or recognition of homosexuality as a legitimate life choice would violate the constitution’s repugnancy clause. Will Pakistan continue to swim against the tide and to what effect? Will Pakistan leave the United Nations in protest? The march of humanity cannot be thwarted. You can only be left behind and the world will leave us behind.
The Constitution of 1973 with its Islamic provisions is wholly unsuitable for the very modern 21st century challenges and legal questions. It is anachronistic for a modern nation state in the 21st century to remain wedded to such a constitution. Sooner or later Pakistan would have to radically amend its Islamic provisions. The solution to Pakistan’s ills lies in going back to Jinnah’s 11 August speech i.e. a citizen’s religion should not be the business of the state. Religion is a matter between man and God and no state should be allowed to infringe that sacred space. The sooner Pakistan realizes this, the easier it will be for the country to finally make an entry into the 21st century.
The role of Islam was debated vociferously in the early days after independence. Since Pakistan was the culmination of a Muslim nationalist movement led by Muslim modernists, the founders of the country sought to justify their liberal democratic vision for the country with invocation of Islam.
Even Jinnah, whose vision for Pakistan was decidedly secular, claimed that a democratic state that treated every citizen equally regardless of religion was in essence a true Muslim state and that democracy and equality were key Islamic principles. He emphatically declared in December 1947 that Islam did not envisage an ecclesiastical state. Jinnah envisaged a state where sovereignty would rest with the constituent assembly and it was this reason that he very consciously kept religion out of law making throughout the 13 months he was at the helm of affairs, while at the same time appealing to Muslim solidarity as a positive virtue to be utilized for nation building.
Significantly whenever he referred to Islam, he was careful in pointing out that Pakistan would not be a theocracy to be run by priests with a divine mission. Jinnah also took the extraordinary step of removing references to God from the oaths of office in the new state indicating that religious faith would not be a qualifier to hold the highest offices in the land.
Most of Jinnah’s successors and political followers were Muslim modernists but with the Objectives Resolution in 1949, they made key concessions to the religious reactionaries by vesting sovereignty in a deity and limiting the exercise of this sovereignty by the people (who were supposed to legislate within the limits prescribed by Islam), assuming perhaps naively and despite repeated warnings by Pakistan’s Hindu legislators that it would be they, the Muslim modernists, who would be the arbiters of Islamic interpretation in Pakistan.
Additionally the resolution committed the state to the duty of enabling Muslims to live according to Quran and Sunnah though at the same time it sought to alleviate concerns of religious minorities by promising them the right to freely develop their cultures and profess and practise their faiths. Prime Minister Liaquat Ali Khan’s speech on the occasion specifically promised that the head of an Islamic state under the Resolution could be a Non-Muslim and that all citizens of Pakistan, whatever their faith, would be equal citizens. This paradoxical promise was never fulfilled.
Pakistan became an Islamic Republic on 23 March 1956. The Constitution of 1956 was relatively less theocratic than the 1973 Constitution. It did not have a state religion. While the head of the state, i.e. the President of the Republic, had to be a Muslim (though strangely not subject to any oath whatsoever), the Prime Minister could be any citizen of Pakistan of whatever religious persuasion. Significantly the key fundamental right of freedom of speech and expression was not subject to any claw backs in the name of religion.
While the West Pakistani elite pressed forth with instrumentalisation of religion as means of promoting unity between the two wings of the country, the East Pakistanis or Bengalis, including both Hindus and Muslim stalwarts of the Pakistan Movement like Suhrawardy, were vociferous in their opposition to such use or misuse of religion. This opposition operated as a necessary check on the decidedly Islamist ambitions of theocrats like Chaudhry Muhammad Ali, who nonetheless managed to build in the repugnancy clause into the Constitution which held that no law could be repugnant to Islam. This was a compromise keeping with the Objectives Resolution, which had spoken of “limits” of sovereignty. Continuation of the 1956 Constitution may well have resolved the problems and contradictions inherent in it.
However it was abrogated after the 1958 coup. The 1962 Constitution – framed by the military regime- originally dropped the prefix “Islamic” from the name, while retaining the Islamic features of the 1956 constitution including the requirement that the head of state had to be a Muslim. The name Islamic Republic was restored through the first amendment. The 1962 Constitution also envisaged a body of religious scholars that would review the country’s laws and make recommendations to the parliament on how Islamise the country. The Ayub regime did however attempt to populate this body with modernist Muslim scholars like Dr Fazlur Rahman Malik– later the famous Harvard scholar- but that attempt proved to be myopic. An iteration of this body under the 1973 Constitution – the Council of Islamic Ideology- stands at the vanguard of the religious reaction in the country today.
With the exit of East Pakistan along with its large Hindu population took away the imperative to maintain some semblance of state neutrality towards faith. The 1973 Constitution was drafted in the context of a predominantly Muslim majority nation.
Arguably safeguards could be built for the less than 5 percent Non-Muslim minorities in Pakistan but the insecurity of the Muslim legislators was amply on display when they reserved the office of both president and prime minister for Muslims. The superfluous state religion clause was added and the fundamental right to freedom of speech and expression was subject to glory of Islam. In 1974 the state declared Ahmadis Non-Muslims and thus laid the precedent for state’s interference into personal faith of individual citizens. The threshold had been crossed and Pakistan had become a constitutional theocracy. Later this somewhat kinder and gentler theocracy was replaced by a vicious one under General Zia ul Haq’s military dictatorship which imposed a narrow-minded bigoted interpretation of the faith on Pakistan’s populace.
With a Non-Muslim population of less than 4 percent, inclusive of the forcibly excommunicated Ahmadi community, the majority now considers the theocratic nature of their state fait accompli. However the existence of a theocracy is most damaging to the Muslim majority itself. The Constitution of 1973 has turned Muslim against Muslim, Shia against Sunni, Deobandi against Barelvi and so on and so forth. The excommunication of Ahmadis was just the beginning. Pakistan’s harsh blasphemy laws- focus of global condemnation and entirely irreconcilable with Pakistan’s international obligations- have targeted more Muslims than anyone else. Out of 2120 persons accused of blasphemy from 1987 to 2022, as many as 1022 are Muslims.
Of the remaining 1098, for the tiny Ahmadi community (formerly Muslims themselves) the number stands at 718 and for Christians the number is 279. New changes to the offences against religion chapter of the Pakistan Penal Code has upped the ante for Shias and Shiite practice of tabarra is criminalized with sentences of up to 10 years imprisonment as punishment.
The 1973 Constitution being a theocratic constitution proceeds on the flawed premise that every citizen of Pakistan belongs to a faith group, whether Muslim or otherwise. It also assumes that Muslims by the virtue of being born in Muslim households are wedded to doctrine and ideology of Islam. The idea that there could be cultural Muslims who are otherwise atheists or agnostics is wholly foreign to Pakistan’s theocratic superstructure of Islamic ideology driven constitutional scheme. This cognitive dissonance of this scheme is deafening when one considers that as many as 1022 Muslims were accused of blasphemy against the holiest of Islam.
Could there be Muslims who blaspheme against Islam? If so what does being Muslim even mean. The constitutional definition of a Muslim in the Constitution then becomes jarring. Could there be such a thing as an atheist Muslim or a Kafir Muslim? Who amongst the Muslims can live up to the religious test of what it means to be a Muslim? This issue is likely to raise its head in the Tyrian Jade White case about former Prime Minister Imran Khan’s love child. The Constitution under Article 62(1)e makes it obligatory for a Muslim legislator to “abstain from major sins” and 62(1)d says that a person who violates “Islamic injunctions” is not qualified to become a member of the Majlis e Shura or the Parliament. Will Imran Khan be disqualified from holding public office on these grounds?
And what of those “Muslims” who while Muslims by birth do not wish to be Muslim or associate with any religious group. Are they condemned to a secret life where they pretend to be Muslims in public? What about those Pakistanis who do not wish to be part of any religion? The Constitution is silent on their rights. If they are to be recognised as a minority will they be allowed to freely develop their culture i.e. atheistic, agnostic or non-religious culture? Will the Courts of the Islamic Republic strike down the Transgender law for being ultra vires the Islamic provisions of the Constitution? Whether the pious of Pakistan like it or not, LGTBQ rights are part and parcel of international law. How long does Pakistan plan on criminalizing homosexuality on the basis of religion? Clearly any de-criminalisation or recognition of homosexuality as a legitimate life choice would violate the constitution’s repugnancy clause. Will Pakistan continue to swim against the tide and to what effect? Will Pakistan leave the United Nations in protest? The march of humanity cannot be thwarted. You can only be left behind and the world will leave us behind.
The Constitution of 1973 with its Islamic provisions is wholly unsuitable for the very modern 21st century challenges and legal questions. It is anachronistic for a modern nation state in the 21st century to remain wedded to such a constitution. Sooner or later Pakistan would have to radically amend its Islamic provisions. The solution to Pakistan’s ills lies in going back to Jinnah’s 11 August speech i.e. a citizen’s religion should not be the business of the state. Religion is a matter between man and God and no state should be allowed to infringe that sacred space. The sooner Pakistan realizes this, the easier it will be for the country to finally make an entry into the 21st century.