By Yasser Latif Hamdani
June 9, 2019
The US Supreme Court once ruled that the mixing of religion and government destroyed the government and degraded religion. Our experience in Pakistan confirms the wisdom of that ruling. The Faizabad Dharna and the protests around Aasia Bibi acquittal show just how destructive our propensity to mix religion with government has been. In the process we have done untold harm to the pristine reputation of the Islamic faith. Truth be told Pakistan must be a secular state for the sake of Islam itself. Repeatedly the instrumentalisation of the faith has brought it into disrepute. Surely we have done no service to Islam or its glory by our actions in this country.
The hackneyed response to the proposition that Pakistan must be a secular state is that it was created in the name of Islam. Let me state this unequivocally once again -it was not created in the name of Islam, not in any meaningful legal way. The answer to this usually is that the party founding Pakistan was called the Muslim League and the basis of Pakistan was the Two Nation Theory. Let us put aside Jinnah’s famous 11 August speech and stipulate hypothetically that Two Nation Theory is the basis of Pakistan. Is Two Nation Theory a theological restatement or is it a claim to nationhood on behalf of Muslims on purely secular and temporal criteria. This simplistic notion that this group entity called the Muslims of British India shared a common faith and that alone is what made them a nation according to the Two Nation Theory is historically inaccurate.
Pick up any key document of the so called Two Nation Theory – be it Rahmat Ali’s pamphlet, Zafrullah Khan’s memorandum or Jinnah’s famous 1940 address- and you will find that the case for Muslims being a nation was based on secular temporal criteria: names, language (Urdu), history, culture, diet etc. This is precisely why the so called Two Nation Theory did not suggest that say Muslims of Arabia or Turkey were the same nation as Muslims of the subcontinent. It is also why there was always an anxiety on Rahmat Ali’s part to seek a separate state for Bengali Muslims.
The debate on religion being culture and as such culture being informed by religion also having a secular purpose has been subject to considerable legal debate. That culture can be informed by religion and that such culture can have a secular purpose is recognised even by the US Supreme Court. In its judgment in the case reported as Lynch v. Donnelly, 465 U.S. 668 (1984), the US Supreme Court laid down the distinguishing feature which itself is called the Lemon test. So applying this test closer to home for example when deciding whether All India Muslim League was a secular party or a religious one, you have to look at the purpose of the party. The purpose of the party was to advance the temporal interests of the Muslims of British India. It therefore served a secular purpose.
The word “Islam” does not appear once in the Lahore Resolution. The purpose of the Lahore Resolution was to get the Muslim minority its due share in the governance of the subcontinent. This too was a secular purpose. At no point did anyone in the Muslim League postulate that it would be for an expressly religious purpose i.e. to establish a religious government. So Pakistan cannot be said to have been created in the name of Islam. It is merely a shibboleth nothing else.
Above and beyond this Jinnah gave the 11 August 1947 speech to the Constituent Assembly. This was not a repudiation of the Two Nation Theory but rather a statement that citizenship in Pakistan would not be based on Two Nation Theory. It was a legally binding promise made by the father of the nation to its citizens – Muslims and Non-Muslims- in perpetuity. Most importantly it was made to the Constituent Assembly and has its stand-alone constitutional value. At no point did Jinnah contradict his 11 August speech and certainly not in a speech at the Bar Association dinner on the occasion of Eid-Milad-un-Nabi. However even if he had done so, which he did not, that would be neither here nor there given that his solemn promise in the Constituent Assembly overrides everything else. The 11 August speech had been made in response to Kiran Shankar Roy’s speech in which he had asked Jinnah to make a clear statement as to whether or not Pakistan would be a secular democratic state. 11 August speech is a perfect encapsulation of a secular democratic state at par with the First Amendment to the US Constitution.
What is more is that the preamble to our current constitution makes a specific reference to Jinnah and preambles to any constitution can be used to give clarity to unexpressed rights and objectives. We can go on debating Jinnah, the Muslim League, the idea of Pakistan or partition but the fact is that the 11 August speech is a fact that stands in the way of those who want to make Pakistan an exclusivist theocratic state. It is a promise that has been betrayed over and over again. The problem is not necessarily with the Objectives’ Resolution either. After all US too claims to be one nation under God. The problem starts when you reserve offices of the state for Muslims alone. That is what makes Pakistan a theocratic state. Pakistan does much more than that.
Pakistan must be a secular state because by pretending to be an Islamic state and then purporting to legislate in the name of Islam, Pakistan has done more disservice to Islam than any other entity in history. The Imams and Faqihs who gave us the five Madhabs were extremely careful in distancing themselves from the temporal authority because they knew that if something as serious as Fiqh was allowed to become a victim of politics, there would be no independence left and religion would become an instrument for state power. This is why there was never any codification of Fiqh as law before the advent of European powers into Muslim heartlands. Even puritan Aurangzeb who had Fatawa-ul-Alamgiri compiled never made it state law. Genuine Muslim scholars were always wary of state influence. They had reached the same conclusion in the 9th and 10th centuries that US Supreme Court did in 20th Century- mixing religion and government degrades religion and destroys government. Pakistan therefore must be a secular state not just for the sake of its minorities but for Muslims and the future of Islam in its territories. It was Jinnah who had told Raja of Mahmudabad in clear terms that any attempt to create an Islamic state would lead to the very dissolution of the state in Pakistan. That is precisely what we see happening in Pakistan today.
Yasser Latif Hamdani is an Advocate of the High Courts of Pakistan and a member of the Honourable Society of Lincoln’s Inn in London