By Yasser Latif Hamdani
October 7, 2019
In April this year a minority member of the National Assembly tabled a bill for a constitutional amendment to allow religious minorities in Pakistan to become President or Prime Minister of this republic. It was summarily rejected by the Minister of Parliamentary Affairs on the ground that Pakistan is an Islamic Republic. Given Imran Khan’s shrill denunciations of India’s treatment of its minorities, the Indian media only recently picked it up and the news is doing rounds on the international media is a consequence. After any citizen of India can become the President or Prime Minister there. Not so with our Islamic Republic. By having this special qualification, Pakistan creates two distinct classes of citizens and the minorities are placed in the second class, though even those rights are denied to them.
Without going into whether or not Pakistan should be an Islamic Republic (and my view is that it should not be an Islamic Republic), let us proceed on the basis that Pakistan is constitutionally a federal, democratic and Islamic republic with the name “Islamic Republic of Pakistan”. The question is that even as an Islamic Republic is it fair to religious minorities to deny them the right to aspire to the highest offices in the land. The question is a purely legal and constitutional question and has nothing to do with religion. I am not even going to quote Mr. Jinnah’s 11 August speech, which we have buried in this country practically. Instead I shall refer to Prime Minister Liaquat Ali Khan’s express promise made on the day that the Objectives’ Resolution was passed. Responding to the objections of the minority representatives, the Prime Minister stated that “a Non-Muslim can be the head of government”, explaining that under a constitutional dispensation a head of administration is limited by the constitution. This is on record dated 12 March 1949 and a copy of this can be found on the National Assembly website under NA Debates section.
There are of course two offices that are in question here. The first is the office of the President of Pakistan, which is a ceremonial office, much like the British monarch, under parliamentary democracy and is the symbol of the federation. The second office is the office of the Prime Minister. Before 1956 the first office did not exist in Pakistan and the head of state was the British monarch. The British monarch was represented by the Governor General and that office could be held by any person of any religion. The 1956 Constitution which proclaimed Pakistan an Islamic Republic reserved only the office of the President for Muslims but left the office of the Prime Minister open to all citizens of Pakistan. The office of the Prime Minister was open to all citizens of Pakistan right up till 1973 though arguably the office of the Prime Minister did not exist from 1958-1969. From 1985 to 2010 there was ambiguity about the office of the Prime Minister of Pakistan because after the 8th Amendment a curious change in language meant that there was a technical possibility for a Non-Muslim to hold this office. However it was still subject to an oath that was designed for Muslims only. The 18th Amendment restored the 1973 language and therefore we returned to the position that only Muslims can hold the office of the President and the Prime Minister.
There is no constitutional responsibility of the President to lead prayers or to officiate religious ceremonies because the President is not the Ameer-ul-Momineen and we have stoutly resisted any such attempts to make an elected constitutional office into the office of a Caliph
The most common example cited by the apologists for this discrimination is that of United Kingdom where the British monarch has to be an Anglican. The analogy does not hold up. For one thing the elected office of the Prime Minister of United Kingdom is open to all British citizens regardless of their religion. Secondly the British monarch is the head of the Anglican Church which necessitates that requirement. The obvious corollary of this is that the British Monarch is not an elected official and United Kingdom is a constitutional monarchy.
Islam does not have a Church and the President of Pakistan is not a religious office in the sense that the President of Pakistan is not the Mufti-e-Azam of Pakistan. There is no constitutional responsibility of the President to lead prayers or to officiate religious ceremonies because the President is not the Ameer-ul-Momineen and we have stoutly resisted any such attempts to make an elected constitutional office into the office of a Caliph. Therefore there is no discernible reason why a Pakistani who is not a Muslim cannot be the head of state in the Islamic Republic of Pakistan. The Muslim bar on the office of Prime Minister is even more indefensible.
What it comes down to is this: According to Pakistani Constitution religious minorities in Pakistan cannot be as loyal to the country as Muslims. This is patently untrue. Even if the issue is loyalty to the undefined and ambiguous concept that we call Islamic ideology (which it must be stated was post hoc assumed to be rationale for Pakistan), then the most articulate exponent of the idea of Islamic legal and moral principles was none other than Justice Cornelius, a Christian. Still if religious minorities cannot be trusted, let that decision be of the people of Pakistan through each election and not mandated by a constitutional article. Who is to say that Cornelius or Rana Bhagwandas would not have been great presidents of Pakistan? Who is to say that a Non-Muslim cannot be a great Prime Minister of Pakistan? Let the people decide on a case to case basis in each election instead of a blanket ban.
As things stand religious minorities in Pakistan are not equal citizens. Imran Khan can accuse Narendra Modi of making Muslims and Christians in India second class citizens in practice but the truth is that Pakistan makes anyone who is not a Muslim a second class citizen by the force of constitution and law. Therefore all our claims sound very hollow on the global scene. There is no quid pro quo here. The minorities are not given a dual vote either nor are there any important constitutional positions reserved for them. How then can we say that Pakistan treats every citizen as equal? Let us at least learn to be honest for once.
Yasser Latif Hamdani is an Advocate of the High Courts of Pakistan
Original Headline: Minorities as President or Prime Minister
Source: The Daily Times