“You are free to go to your temples, you are free to go to your mosques or, to any other places of worship in this state of Pakistan. You may belong to any religion or caste or creed–that has got nothing to do with the business of the State…. We are all starting with this fundamental principle that we are citizens and equal citizens of one State…. Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not in the religious sense, because that is the personal faith of each individual, but in the political sense as citizens of the State.”
Jinnah’s death in September of 1948 meant that his secularist perspective lost its most dynamic proponent. The issues involved in defining the character of the new State proved so contentious that Pakistan did not get its first constitution until 1956, which established Pakistan as an “Islamic Republic”. This Constitution of 1956 was abrogated on 7th of October, 1958 and Martial law was imposed; and when, on 8th of June, 1962, Field Marshal Muhammad Ayub Khan, the Chief Martial Law Administrator, enforced his self-made Constitution, the word ‘Islamic’ from its name was omitted. It was only named as “Republic of Pakistan”. The 1962 Constitution established several Islamic institutions but gave them no real legislative power. Further, two portions of the 1956 preamble were notably missing from the 1962 version:
- The repugnancy clause and
- any references to ‘Quran’ and ‘Sunnah’.
Shortly thereafter, however, when the first session of the National Assembly was convened at Dacca, on the move of the well-known member of Jamaat-e-Islami of the then East Pakistan, Barrister Akhtaruddin, the word ‘Islamic’ was added before the word “Republic of Pakistan” and so by the first “Constitution Amendment Act, 1963”, Pakistan was again named as “Islamic Republic of Pakistan”. Since then, the name of this State continues to be “the Islamic Republic of Pakistan”. The amendment even reinstated the repugnancy clause and added an additional phrase stating:
“No law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah, and all existing laws shall be brought into conformity therewith”.
The 1973 Constitution was the first constitution to formally establish Islam as the State religion in Pakistan. The 1973 Constitution also retained the retroactive clause of the 1962 Constitution requiring “all existing laws to be brought into conformity with the injunctions of Islam” and created the Council of Islamic Ideology to enforce implementation of the clause.
As often seen with States declaring a State Religion, we see a slight bias towards Moral Principles of the State Religion for example, Article 37 (h) casts a duty on the State to prevent the consumption of alcoholic liquor other than for medical, and, in case of non-Muslims, religious purpose. Article 40 provides for strengthening bonds with Muslims and promotion of international peace reflecting the Islamic philosophy that all Muslims and Muslim nations of the world are one and must stand united.
The Constitution under Chapter 2 (Article 29 to Article 40) lays down certain principles of policy of the State, such as Article 31 which provides that steps shall be taken to enable the Muslims of Pakistan, individually and collectively, to order their lives in accordance with the fundamental principles and basic concepts of Islam, according to the Holy Qur’an and Sunnah. The provisions of this Chapter like Directive Principles in the Indian Constitution are not binding on the Courts but provide guidelines for policy-oriented decisions of all State functionaries. It is to be noted that under this Article the framers manifested their intention to ensure that “Muslims” follow their religion diligently and that State must help them in doing so; no intention to force Islamic way of life on non – Muslims is manifested. Article 20 of the 1973 Constitution contains the following major provision on religious freedom: “Subject to law, public order and morality,–
(a) every citizen shall have the right to profess, practice and propagate his religion; and
(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions”.
Article 227 in PART IX requires that all existing laws must be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah (Injunctions of Islam) and no law repugnant to such Injunctions must be enacted. Immediately though it is stated that:
“Nothing in this Part shall affect the personal laws of non- Muslim citizens or their status as citizens”.
This provision however does not suffice to prove that Muslim dictates are not being forced upon the non Muslim citizens. It is necessary for any nation to have a strong and independent judiciary in order to develop a check and balance system for the Executive. This element is however absent in Pakistan. It is because of the weakened judicial machinery that Articles of secular potential enshrined in the Constitution are not effectively implemented.
The judicial system established by the 1973 Constitution has been effectively weakened by the creation of a separate Federal Shariat Court mandated to strike down any law deemed repugnant to the injunctions of Islam. The decisions of the Shariat Court are binding upon the High Courts and cannot be over-ridden by Parliament. Moreover, Presidential powers compromise the independence of High Court judges and of the Supreme Court judges nominated to the Shariat Court.
At the economic level, Musharraf’s government moved towards Islamization of the banking system. In July 2003, the State Bank of Pakistan issued guidelines for the introduction of Islamic banking. These guidelines required ‘stand alone branches for Islamic banking’ or separate counters in existing branches, and separate books of account to be maintained for Islamic banking transactions.
Article 51(4A) of the Constitution was amended in 1985 so as to bar non-Muslims from voting in elections to the general seats of the National Assembly. After the amendment, non-Muslims could only vote for non-Muslim candidates contesting on reserved seats for the religious minorities. The same however came to an end with the repeal of Article 51(4A) by Chief Executive Order No. 24 of 2002. A few other Articles too must be looked into in order to understand the position of political rights in the country. The preliminary condition to recognition of such rights is however a stable political system which is missing in Pakistan. Frequent military coups and drafting of new Constitutions has led to centralization of power and has failed to respond to the needs of its extremely diverse population. This has led to a sense of marginalization and deprivation, sub- national and ethnic conflicts and separatist tendencies among various disenfranchised groups and regions. In such a scenario where Fundamentalists are known to have a strong hold on any government that comes in power and where rulers find it necessary to bow down to their demands in varying degrees in order to legitimize their usurpation of power, and where Judges fear persecution when they take a liberal view of laws like Section 295C of Penal Code, equal voting rights alone can not guarantee political power to religious minorities which is essential for secularism to exist.
Under Section 295 C an offender may be punished with death or lifetime imprisonment if it is proved that he used derogatory language toward or regarding the Holy Prophet Muhammad. Critics of this section focus on the severe quantum of punishment. They argue that capital punishment is not commensurate with the “violation” involved. On the other hand, proponents argue that the purpose of the penal law is to preserve public order by mandating retribution for any act that grievously injures the religious feelings of a large class or community. Those in that class or community, it is argued, should be saved from gross injury perceived to occur by such outrageous actions. In a number of cases involving the Ahmadis, the courts have held that Section 295C must be narrowly construed and its consequences strictly applied. However, in these same cases, the minimum punishment available has actually been given.
Pakistan’s Constitution though declares Islam as the State religion and prohibits a Non Muslim from being elected as the President, has the potential to lead the country towards becoming a Secular State. However frequent coups and repealed constitutions force us to accept the bitter fact that in Pakistan it is the ideology of and capacity to sustain him/her self in face of severe pressure from Fundamentalists that decides Secularism’s fate in this country where Secularism has never had the chance to truly develop. Thus it can be easily said that fate of Secularism in Pakistan is not written by Constitution, Law or Judiciary but by individuals in power.
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