By Yasser Latif Hamdani
November 03, 2014
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.
Last week, I did not raise the question of whether Islamic law could apply to non-Muslims and, in my opinion, the spirit of the constitution nor Islamic jurisprudence allows it. Here I argue that Islamic law under the Pakistani constitution can apply to only those Muslims who opt into it and that too in strict accordance with their own school of thought. Now, while on the face of it this may seem impractical an idea, it is already happening with respect to zakat and ushr. Under the law, as it stands now, you can legally declare through an affidavit that, according to your belief, which may be Sunni or Shia, the compulsory zakat deduction does not apply to you and therefore you are exempt. It follows logically therefore that it should be possible for a Muslim to differ on the state’s interpretation of Islam as a matter of conscience legally.
As a member of the Viceroy’s Council, Jinnah, the founding father of this country, had argued in favour of the bill to allow members of different communities to marry each other without compulsorily renouncing their links with their parent community. When a law member of the council objected on the grounds that this would be un-Islamic, Jinnah opined that as a matter of policy the legislature had the right to overrule religious and customary laws where necessary or where it is a matter of public policy. His eloquent speech is part of the record and can be found on page 369 of the Collected Works of Quaid-e-Azam Mohammad Ali Jinnah, Volume I, published by the National Institute of Pakistan Studies, Quaid-e-Azam University.
Jinnah asked: “May I ask the honourable member, is this the first time in the history of the legislation of this country that this council has been called upon to override the Musalman Law or modify it to suit the times? This council has overridden and modified the Musalman Law in many respects.” He went on to state the various occasions in which the council had abrogated Islamic law before declaring, “This is an entirely optional character of legislation and it is not at all compulsory that every Muhammadan shall marry a non-Muhammadan or that every Hindu shall marry a non-Hindu. Therefore, if there is fairly a large class of enlightened, educated, advanced Indians, be they Hindus, Muhammadans or Parsis, and if they wish to adopt a system of marriage, which is more in accord with the modern civilisation and ideas of modern times, more in accord with modern sentiments, why should that class be denied justice?” He went on to state a few opinions in the speech that may well have attracted the epithet of ‘blasphemer’ in today’s Pakistan. Salmaan Taseer was assassinated for much less.
Nevertheless, this was a lifelong position of the Quaid-e-Azam. Contrary to the myth drummed into our heads through Pakistan Studies, Jinnah had no real religious objection to his daughter’s marriage to a Parsi turned Christian, but a practical one. It would have meant his daughter could no longer identify as a Muslim under the law and that would put him, as the president of the Muslim League, in an embarrassing position. It was for this reason and more that Jinnah remained a supporter of the inter-communal marriage bill till the end. The idea was to leave the decision to the individual without necessarily impugning his or her self-identification as a Muslim or Hindu or what have you.
If you strengthen the individual’s sense as an individual with rights and obligations and enable the individual to live according to his rights, many of the problems we face in Pakistan will wither away.
Yasser Latif Hamdani is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality.