Saturday, September 1, 2012

18th Amendment and the Civil Rights of Pakistanis

 By Yasser Latif Hamdani
The Constitution (18th Amendment) Act, 2010 is the boldest attempt yet at restoring representative parliamentary democracy in Pakistan since General Zia ul Haq’s military regime altered the constitution fundamentally to tilt the balance of power in the favour of the President of the republic. The Zia regime also tampered with the constitution to further its own agenda of Islamisation which in turn meant substantial marginalization of minorities and women from the mainstream of the society. 18th Amendment has sought to rectify it by introducing key changes to the fundamental rights chapter. 

Restoration of the word “Freely” to the Objectives Resolution
General Zia ul Haq by a presidential order had made the Objectives Resolution substantive part of the constitution by inserting Article 2-A. However the word “freely” where it occurs with regards to minorities was omitted in the annex: Objectives Resolution to Article 2-A. The 18th Amendment restores it. 
Pre-18th Amendment
“Wherein adequate provision shall be made for the minorities to profess and practice their religions and develop their cultures;”
Post 18th Amendment
“Wherein adequate provision shall be made for the minorities to [freely] profess and practice their religions and develop their cultures;”
The legal impact of this amendment has so far not been given serious thought.  By making the right of minorities to practice their faith freely, the legislators have made religious freedom independent of the considerations of the majority’s faith or any other considerations in the grundnorm of the constitution’s ideology. This also means that any law that curtails the freedom of minorities to practice their faith freely or develop their cultures can be challenged on the basis of Article 2-A. This has particular significance for the Ahmadi community which was declared non-Muslim by the second constitutional amendment.
 Through Ordinance XX of 1984, their religious practices were outlawed in so far these resembled the Muslim modes of practice.  A constitutional challenge in form of Zaheeruddin v. the State[1] to Ordinance XX of 1984 failed because the fundamental right of the freedom of religion is qualified by considerations of public order and law. However with the restoration of the word freely in the Objectives Resolution as a substantive part of the constitution means that a challenge to the infamous Ordinance XX of 1984 now has better chances of success.  Zaheeruddin v. the State supra had all but abolished religious freedom in Pakistan or at best left it to mercy and whims of the majority.  Restoration of the word freely nullifies and repudiates the Supreme Court’s decision in Zaheeruddin v. the State.

Introduction of Due Process and Fair Trial in form of Article 10-A
10A. Right to fair trial.- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”
Through Article 10-A of the Constitution which is largely inspired by Article 6 of the European Convention on Human Rights,  the legislators have introduced two fundamental concepts i.e. of due process and fair trial. Interlinked as these are, due process has a much wider meaning than fair trial. The history of due process is rooted in the Magna Carta in English jurisprudence and, subsequently, in the American jurisprudence surrounding the 5th and 14th amendments to the US constitution. The 14th Amendment, for example, states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The US Supreme Court has interpreted the 14th Amendment as having created a constitutional natural law that would be available as a protection against the states and not just the federal government (which was the position under the 5th Amendment).
In other cases, the due process clause has been used as a kind of residuary clause that protects all implied and rational rights to liberty, including the right to privacy, which otherwise finds no constitutional basis.[2] Substantive due process has thus emerged as the surest safeguard against totalitarianism of the state. Rotunda and Novak state that “this substantive due process may protect certain fundamental rights or void arbitrary limitations on individual freedom of action.”[3] 
B.N.Rau, adviser to the Indian Constituent Assembly that was drafting the Constitution of India (“the Indian Constitution”), travelled to the U.S.A, where he met U.S. Supreme Court Justice Felix Frankfurter. The latter advised him against including the phrase ‘due process’ in the Indian Constitution, and hence, in 1949, the phrase was not included in the text of the Indian Constitution. Indian courts, however, repeatedly located ‘due process’ in Article 14 of the Indian Constitution instead. One could, without exaggeration, describe the Pakistani legal tradition as India-lite (with a flavour of Islam). The Constitutions of 1956, 1962, and 1973 all avoided the use of the term ‘due process’ in keeping with the Indian tradition. This then is a sea change in Pakistani rights jurisprudence. It bars therefore not just arbitrary actions or procedural irregularities but opens up any piece of law to a due process challenge, with fundamental rights being read in as part of those due process pillars that have to be taken into account.

Article 19-A: The right to access to information
19-A. Right to Information.—Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”
By incorporating the right to information, the framers of the 18th Amendment have opened up the business of the government to public scrutiny. However by making it subject to regulation and reasonable restrictions imposed by law, in theory, the framers have left open the door for a wide interpretation of the words “reasonable restriction”. Security considerations and regulation in the name of national interest may yet be able to trump this fundamental right. Therefore the right as it exists now is declaratory in nature and does not in any real terms introduce a new right. Nevertheless – and most hearteningly- a recent judgment by Justice Mansoor Ali Shah of the Lahore High Court concludes that the introduction of Article 19-A has broadened the scope of Public Interest Litigation in Pakistan and the traditional requirements of the aggrieved status of the petitioner have been amended:
“Right to information is another corrective tool which allows public access to the working and decision making of public authorities. It opens the working of public administration to public scrutiny. This necessitates transparent and structured exercise of discretion by the public functionaries.  Article 19-A empowers the civil society of this country to seek information from public institutions and hold them accountable.”[4]
The objections of locus standi in public interest litigation therefore have been made redundant by this provision.

Article 25-A: The right to education
Article 25-A. Right to education.—The state shall provide free and compulsory education to all children of the age five to sixteen in such manner as may be determined by law.”
The most important observation one can make about this fundamental right is that it is not limited to “citizens” but to children. This means that any child between the aforesaid ages – be that child a Pakistani citizen or not- is to be provided free and compulsory education by state in  a manner determined by law. This provision is pari materia to Indian Constitution’s Article 21-A- added to the Indian Constitution of 1950 through the 86th Amendment thereto in 2002 in order to shore up Article 45 which made the same objective a principle of policy- with the difference being that Indian Constitution limits it to children between ages six to fourteen while the Pakistani constitution now adds two years to this.
While this was recognized as a fundamental right in India and Pakistan only recently, the idea had been floated much earlier. Gopal Krishan Gokhale had pioneered the Elementary Education Bill. Mahomed Ali Jinnah, the founding father of Pakistan, while addressing the central Indian legislature in 1912 had spoken about the right to universal education. 
 In the debate on the said bill, Jinnah opened up by expressing his regrets that although there were certain of his colleagues who opposed the bill, it was paramount importance, and that even those opposing it were bound to admit the fact that it had the support of the great majority of their countrymen, Hindus and Muslims alike.  According to Jinnah the gradual extension of the system that had existed for 150 years - the voluntary system principle - was no answer. He reproached the British for their neglect of elementary education.  For the 150 years they had ruled, they had dealt with education at a 'jog trot pace' which, if continued, as Gokhale's figures conclusively proved, it would take a further 175 years in order to get all school-going age children to school and 600 years to get all the girls to school.  Jinnah believed that “it was proven time and again, for in no country has elementary education become universal without compulsion”.  He went on to state that “elementary education had nothing to do with the fact that India had many castes, many creeds and many languages, but provision had to be made for them.” The treasury benches insisted that there was no money. Jinnah's answer to them: "All I can say is this, find money! Find money!! Find money !!! I appeal to the president, not as president but as the finance minister. I say, find money. If you say you have not got enough money, discover and tap new sources....." He appealed to the British to remove the reproach justly levelled against their rule - the neglect of elementary education. "It is the duty of every civilized government to educate the masses, and if you have to face unpopularity, if you have to face a certain amount of danger, face it boldly in the name of duty ..... You will have the whole educated public with you in the struggle on the battlefield."  Others had opposed the bill on the ground that were the people to be given education, it would breed socialism and agitators who would organize strikes. According to Jinnah to equate education with sedition was preposterous. “Frank and independent criticism of the government was the duty of every member of the state and fair, free and independent criticisms of the acts of government could in no way constitute sedition. Was it in any way logical to say that a boy who could read and write would automatically become a political agitator?”  Jinnah reminded the council members. He asked them, where would they all be but for education?[5]
One can then say that Article 25-A in the Pakistani constitution is a fulfillment of the idealism with which the founder of Pakistan was imbued. The adoption of the right of education as a fundamental right is a revolutionary step, even if decades too late, in a transitional society mired with ignorance where rigid social immobility is the direct consequence of it. Even today, there are people in Pakistani society who have interests in keeping the people unlettered. Positive state action therefore is needed and now Article 25-A of the constitution empowers the citizenry to demand universal education as a matter of fundamental right enforceable in the constitutional jurisdiction of the High Courts of Pakistan.
Recommendations for future constitutional amendments
While recognizing the 18th Amendment as a milestone in civil rights of citizens of Pakistan, it is important to also state that there is much more to be done. In order to do away with ambiguities and to give full citizenship rights to all citizens of Pakistan regardless of their religious or cultural affiliations, some recommendations are as below:
  1. Article 2, the constitutional article providing a state religion, should be substituted with “Article 2. No State Religion. -- The state, being an artificial political construct and an expression of the temporal political will of the people, has no religion. Provided that the state shall ensure that freedom of religion is not abridged.”  The state, Islamic or otherwise, is not a natural person and is therefore unable to profess a faith. The legal fiction of a state religion is superfluous and has no place in statehood nor is it a mandate of an Islamic government. No Islamic state in history ever professed a state religion. Indeed Pakistan’s first two constitutions, both of which envisaged Pakistan an Islamic Republic, did not contain a reference to a state religion. To do is manifestly discriminatory against Non-Muslims and against the spirit of Islam. In other words Pakistan does not become any more or less Islamic by creating the legal fiction of a state religion. The keeper of Islamic conscience in Pakistan has to be the society which expresses its political will through the legislature.
  2. Article 2-B may be added making Jinnah’s 11th August speech a substantive part of the constitution. In this speech the founding father promised equality of citizenship and state’s neutrality towards the personal faith of an individual. He also promised a state which creates no bars for any citizens but treats every citizen equally on all counts. 
  3. In Article 19-A the words “subject to regulation and reasonable restrictions imposed by law” may be omitted. Information of public importance should be available to all citizens as they are the ultimate arbiters of national interest. “Regulation” and “reasonable restrictions” are too broad for any meaningful implementation of this fundamental right.
  4. In Article 41(2) the word “Muslim” may be omitted. The President of the republic is a purely constitutional office. In the presence of a parliamentary democratic system, the religion of the President of the Republic is immaterial and as such an unnecessary act of discrimination against Non-Muslim Pakistanis.
  5. In Article 91(3) the word “Muslim” may be omitted. This is necessary because the office of the Prime Minister, as the elected leader of the house should be open to all elected members of the parliament and this additional bar is not only discriminatory but is at the heart of it extremely undemocratic. Since all legislation has to take place through a parliament which consists of a Muslim majority, the Prime Minister’s religion cannot in any way prejudice the interests of Muslims in Pakistan.  
  6. Chapter 3-A i.e. Articles 203-A to 203-J may be omitted in entirety. The Federal Shariat Court, introduced by General Zia ul Haq, is an impediment to the ijtehad to be carried out by the National Assembly, every action of which is open to selective judicial review on the touchstone of personal interpretations of the Federal Shariat Court.
  7. Article 260(3) may be omitted in entirety since the distinction of Muslim and Non-Muslim ought to be erased in so far as the constitutional rights of citizens of Pakistan are concerned.
Consequently all oaths of offices may be suitably amended to make them inclusive to all Pakistanis regardless of their religious or

[1] 1993 SCMR 1718
[2] For more on this see Griswold vs. Connecticut, 381 US 479 (1965) and Roe vs. Wade, 410 US 113 (1973).
[3] Treatise on Constitutional Law: Substance and Procedure (the third edition) by Ronald D Rotunda and John E Novak, on page no 2 S17,
[4]  Ataullah Malik v. Federation of Pakistan PLD 2010 Lahore 605

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