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The Blind Leap Of Faith

Small provinces and minorities fear that the amendment virtually arms the federal government to replace the Constitution with its fiat.

The Blind Leap Of Faith
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-0001-11-30T00:00:00+0553

BELIEF, like patriotism, being the last refuge of hard-pressed political adventurers, the clearest message given out by the authors of Pakistan's Constitution (Fifteenth Amendment) Bill is the government is in dire straits. The extent to which it has resolved to exploit the majority population's belief has no precedent even in Pakistan's history. What the proposed amendment seeks is the replacement of the Constitution with the will of the federal government, that is, with the word of the prime minister. All previous attempts at invoking religion to save political structures under threat had envisaged absolutism of a lower order.

The process began in 1949 when Liaquat Ali Khan brought forth the Objectives Resolution. He was under pressure from two sides. The provinces, especially Bengal, had started demanding their rights and the religious groups had woken up to the new state's vulnerability to the politics of religiosity. Instead of trying to accommodate the provinces within a fair federal system, Liaquat chose to appease the religious groups. He thus set a pattern almost all Pakistani rulers have followed without bothering to learn from the fate of their predecessors. The Resolution obliged the Constitution-makers to provide further accommodation to religious groups. By the time the 1956 Constitution was finalised, the state had committed itself to uphold the supremacy of the Quran and Sunnah as no law repugnant to them could be countenanced. All exercises in the so-called drive for Islamisation since then have concentrated on the mechanics of ensuring compliance with the injunctions of Islam. Till '80, when Gen Zia created the Federal Shariat Court, the right to determine what was in accordance with the injunctions of Islam rested with Parliament.

Meanwhile, the Zulfiqar Ali Bhutto government thrice invoked religion to bolster itself. First, he had Article 2 inscribed in the 1973 Constitution, whereby Islam was declared the state religion. Perhaps, in the tradition of Iqbal and Jinnah, he saw no contradiction between religion and democracy and even between religion and socialism. Secondly, in 1974 he obliged his new-found allies in the Islamic bloc by putting the Ahmadis outside the pale of Islam. The third instance of his resort to religion came in 1977 when he tried to take the wind out of the opposition PNA sails by enforcing measures roughly associated with an Islamic order. Each step made the state's democratic framework weaker and the theocratic factions stronger.

Gen Zia's need for religious props was greater than his predecessors'. He had overthrown a democratic order to which the majority was still loyal. He began by transferring the power to bring the laws in conformity with Islamic injunctions from Parliament to the Federal Shariat Court in 1980, and in 1985 made an amended version of the Objectives Resolution a substantive part of the Constitution vide a new Article (2-A). But even he realised the limits to his assaults on the state. He excluded the Constitution and any law relating to the procedure of any court or tribunal from the jurisdiction of the Shariat Court and failed to explicitly say Article 2 or 2-A would override the rest of the Constitution. His last Islamisation bid took the form of the 9th Amendment which put all except the Constitution within the jurisdiction of the Shariat Court. Junejo let the amendment bill lapse and paid with his dismissal.

The first Nawaz Sharif government rushed the Enforcement of Shariat Act through Parliament in 1991. Section 3(1) of this Act said: "The Shariat, that is to say, the injunctions of Islam as laid down in the Holy Quran and Sunnah, shall be the supreme law of Pakistan." But the following clause of this section saved "the present political system including the (Parliament) and provincial assemblies and the existing system of government" from interference by religious courts.

Thus viewed, the purpose of the new amendment bill becomes quite clear. The present bill has only two operative sections. The first one seeks to add Article 2-B to the Constitution. Its first clause is superfluous because by again declaring the Holy Quran and Sun-nah to be the supreme law of Pakistan it merely reaffirms what is already there in the Constitution. The second clause grants the authority to enforce Shariat, to prescribe what is right and to forbid what is wrong, to the federal government. The third clause transfers the power to prescribe a code of conduct from Parliament (as in the 1991 Act) to the federal government and extends the scope of the code to 'state functionaries' (who should include judges and statutory office-holders). The most significant clause is the fifth one, which declares that the new Article shall override "anything contained in the Constitution, any law or judgement of any Court". This virtually arms the federal government with the power to replace the Constitution with its fiat.

The second operative clause of the bill trivialises the procedure for amending the Constitution. Under the existing provisions an amendment may originate in either House of Parliament but must be supported by two-thirds of the total membership in each house. The new bill makes constitutional amendment simpler than anywhere else. All that the government is required to do is to declare an amendment necessary for removal of impediments to any directives regarding Islamisation. Such a bill will merely require a simple majority of members taking part in voting. If either House rejects an amendment, it will be possible to adopt it, by a simple majority, in a joint session. Naturally the bill has aroused the worst fears of the smaller provinces. They see in it a bid to eliminate the role of the Upper House as the protector of the rights of the federating units. Also opposed to the proposals, and for good reason, are the women and the minorities.

The government has advanced this proposal at a time when it has been deserted by nearly all of its allies. Many think the government is trying to cover up its failures on the political and economic fronts, or that, like Liaquat and Bhutto, it is trying to preempt the Taliban-like formations in the country. Whatever the case, the move has plunged Pakistan into its worst-ever crisis.

Indications are that the move may fail in the Senate. Pro-government spokesmen are talking of a referendum—perhaps a repeat of the trick Gen Zia had played when the people were asked whether they wanted Islamisation and an affirmative vote meant Zia's election as president. This time a referendum could be risky. Allegiance to religion may not persuade the provinces, to accept a return to a unitary form of government headed by an Amirul-Momineen with absolute powers. In the other event of the government climbing down too, much damage has been done. Those challenging the democratic state have been shown a path they are unlikely to abandon. One can already hear the roar of the tiger that has devoured many of its riders.

(The writer is a leading Pakistani journalist and human rights activist.)

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