It must be stated without any fear that Pakistan has done Islam no favours by pretending to legislate in its name. The countless laws that are said to be Islamic in this country are farthest from the spirit of the great religion
Pakistan’s Constitution of 1973 is both woefully inadequate and unnecessarily cumbersome for the governance of a modern democracy in the 21st century. It is too burdened by contradictory objectives, which include on the one hand the idea that Pakistan is an Islamic Republic and on the other that it is a modern democratic state based on the notion of fundamental rights of citizens. If there was ever a lesson in how fusing religion with the state is a disastrous idea, it is to be learnt from the practical realities that flow from trying to work an unsustainable premise that the state can be a theocracy and a democracy at the same time.
There are some stock myths that we have internalised about the 1973 Constitution, foremost of which is that it represents some sort of national consensus. It does not. It was drafted by the residue of elected representatives left behind after the separation of Bangladesh, which it must be remembered was the majority of the country at the time of the elections of 1970. Shocked by the catastrophic events of 1971, the legislators acted like a herd of sheep. There was hardly any discussion on some of those key elements of the constitution that are taken for granted. There was no discussion on why Pakistan should be an Islamic Republic. There was no discussion on the pros and cons of having a state religion. It did not occur to these legislators that closing the office of president and Prime Minister (PM) to non-Muslims would be a discriminatory measure that would forever damn the minorities in the country to second-class citizenship. Institutions like the Council of Islamic Ideology (CII) were foisted on the nation without any debate. The little discussion that happened took place around the nature of federalism but even there a concurrent list ensured that Pakistan would for all practical purposes be a centralised state run from Islamabad instead of a true federation. How could such a document, drafted on the whims of Mr Zulfikar Ali Bhutto and vetted by Maulana Abu Ala Maududi, represent a national consensus? When or how was the opinion of religious minorities elicited? Who represented the Christians or Hindus in this national consensus? Were they not citizens of the country or did their voice as minorities not count a state that ostensibly had been founded on the principle that permanent cultural majorities should not dominate permanent cultural minorities by sheer numbers alone? Minorities in Pakistan have never agreed and will never agree to top down discrimination imposed on them by the state.
A real national consensus could have only been achieved by a truly representative constituent assembly formed on the basis of proportional representation of all communities, minorities and ethnicities. The basic premise for constitution making should have been consensus and not majority vote. This consensus would have required a frank and open discussion on how the various communities and people living in the country imagined Pakistan to be and how they would want to interact with the state. There would be some irreducible minimums that would have to be accepted, most importantly the principle that the citizens of Pakistan, regardless of their religion or background, are equal citizens. That alone can be the cornerstone of a true democracy. It would mean that any citizen of Pakistan, no matter what his/her religious belief, would be able to aspire for the highest elected office in the land. As for the other ideological components of the state, they would have to be debated and hammered out after a true exercise of the mind by legislators.
It is almost 2016 now and we need a new constitution, a constitution that recognises Pakistan’s diversity and that accepts the principle that the state need not be encumbered by contradictory religious objectives. It should recognise that loyalty to the state is not subject to the personal religious beliefs of a citizen but rather the citizen’s willingness to live by a fair and just compact with the state. More importantly, such a constitution should not allow any priests with a divine mission to rule the roost. It would mean doing away with such archaic and medieval institutions as the CII and the Federal Sharia Court (FSC), the contradictory and often embarrassing opinions of which bodies have brought the great faith of Islam into disrepute both nationally and internationally.
It must be stated without any fear that Pakistan has done Islam no favours by pretending to legislate in its name. The countless laws that are said to be Islamic in this country are farthest from the spirit of the great religion. The so-called Islamic laws in Pakistan have been put on the statute books as an eyewash for the masses, who are readily sold pretensions of piety instead of the real thing. A truly Islamic Pakistan, in my humble opinion, would not be an Islamic Republic but a progressive democratic state that works to uplift the lives of its citizens, especially the poorest and the most marginalised sections of society. A truly Islamic Pakistan would not be bothered with the personal religious observances of citizens but rather with honesty, integrity and justice in its governance and state of affairs. Pakistan in 2015, therefore, needs a new, I daresay, secular constitution that embodies human solidarity and equality rather than any hypocritical lip service to religion.
The writer is a lawyer based in Lahore and the author of the book Mr Jinnah: Myth and Reality. He can be contacted via twitter @therealylh and through his email address firstname.lastname@example.org