Wednesday, September 7, 2011

1973 Constitution is theocratic in form and substance

Tinderbox - The Past and Future of Pakistan
By Yasser Latif Hamdani (courtesy Daily Times)

While there is no consensus on whether Pakistan was envisaged as an Islamic or a secular state, there is remarkable consensus that Pakistan was not meant by the founding fathers to be a theocracy. Indeed, most Pakistanis insist that Pakistan was not envisaged as and is not a theocratic state but as a modern Islamic democratic state.

Without getting into the Islam vs secularism debate, let us attempt to determine whether Pakistan, under its present constitution, is a theocracy or not. Theocracy is, to put it simply, the rule by divine sanction. In constitutional terms, a theocracy means a state which, to begin with, has a state religion. That is not enough, however, to make a theocracy. In addition to a state religion, a theocracy is a state where religion takes precedence over all else and where every action of the state is to be determined by religious divines. In other words, it is a state where people are not sovereign but, instead, God’s sovereignty is explicitly recognised. It is also a state that creates a bar to elected office against citizens based on their religious beliefs.

While the 1973 Constitution of Pakistan establishes religious freedom as a fundamental right, it fulfills all the criteria of a theocratic constitution. It vests sovereignty ultimately in God not just over Pakistan but the entire universe. It establishes Islam as the state religion without explaining what a state religion entails. Not only does it create an explicit bar against non-Muslim citizens of Pakistan holding the offices of president, prime minister and judges of the Federal Shariat Court (FSC), it establishes two bodies — one advisory and the other judicial — to ensure conformity with Islamic injunctions. The actual practical damage that this has done the country was apparent when the FSC imposed a particular school of thought of interpretation of Islam in the 1990s bringing the entire banking system to a complete halt. In an even more insidious use of religion, the Shariat Appellate Bench of the Supreme Court (SC) undid land reforms in Pakistan, thereby undoing the little progress effected by the government in curbing the menace of large feudal landholdings.

Similarly, by taking it upon itself to decide who is Muslim and who is not, the state appropriated a role that is unprecedented in Islamic history but is readily available in papal and Christian ecclesiastical history. It is a throwback to the England of King Henry the VIII whose reign saw religious persecution of Catholics and Jews or even earlier to Isabella and Ferdinand’s Spain, which carried out the Inquisition. In contrast, Islamic history affords no example of mass excommunication of an entire community. As far as the post-Zia theocratic state’s penchant for abusing a particular minority sect in the state’s passport and ID card forms, the closest precedent in Islamic history was that of Banu Ummaya’s ‘tabarra’ (obligation of disassociation) against the family of the Holy Prophet (PBUH).

Therefore, as an honest, if not reasonable, people, we ought to recognise that Pakistan today is a theocratic state in form and in substance and that in its current form the 1973 constitution envisages a theocratic state modelled not on any golden principles of Islam but two things, i.e. fanatical fervour that was the hallmark of Christian Europe before the age of enlightenment and the murderers and persecutors of Hussain (AS).

In February 1948, the founder of this nation said that Pakistan should not be a theocratic state to be run by priests with a divine mission. This has turned out to be wishful thinking. Pakistan has been run over and into the ground by the very same priests the Quaid-e-Azam warned against. Every part of our life is now regulated by edicts of poorly educated mindless zombies who sell religion for a living. Unless and until Pakistan decisively makes a break with this unholy clergy that cannot agree on even the definition of a Muslim and that continues to keep our people embroiled in needless debates, it will continue to fail itself. This country, said to have been created in the name of Islam (a claim more myth than fact), might be brought to an end in its name as well.

So what is that irreducible minimum that is required for a state to be non-theocratic? First of all, the opposite of a theocracy is a democracy. This means that the general will of the people ought to trump religious doctrines. If the general will of the people is to ban alcohol, then it should be so across the board for all citizens regardless of religion, caste or creed. If, on the other hand, the general will of the people is to de-criminalise homosexuality for example, then that too should be accepted. The underlying assumption is that a state of a 95 percent Muslim population will always make laws that do not clash with Islam. However, this assumption should not be imposed by the force of law. It is in this context one views with alarm the Supreme Court’s observation that it would not allow the National Assembly to declare Pakistan a secular republic if it so desired. In other words, this amounts to a censure on every Pakistani, a clipping of the wings as it were.

It is entirely possible for Pakistan to remain an Islamic Republic and yet escape the label of theocracy but, in order to do that, it will have to safeguard the right of the people of Pakistan to — if they so wished — abolish the Islamic Republic and replace it with a secular one. Secondly, while the state may continue to seek inspiration for Islam as the civic religion of the people of Pakistan, it cannot and should not bar any citizen of Pakistan from any constitutional office including the president and prime minister of Pakistan. These are the minimum criteria for qualifying as a non-theocratic state.

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