SC's responsibility?

[s90]

Dawn Editorial
Wednesday, 18 Aug, 2010.


Remarks made from the bench during the course of legal cases carry no legal weight. Nevertheless, the world over, such remarks give an insight into the thinking of judges.

On Monday, during the ongoing hearings on challenges to certain parts of the 18th Amendment, Chief Justice Iftikhar Chaudhry posed the question: “Should we accept if tomorrow parliament declares secularism, and not Islam, as the state polity?” That the question was asked in a rhetorical way was relatively clear: several judges indicated that such a move was even beyond contemplation. That is a troubling position.

Leave aside the remote possibility of secularism being constitutionally approved as the governing ethos of the Pakistani state. The question is really, should the Supreme Court appropriate for itself the responsibility of determining under what system the Pakistani people want to live, as expressed by their elected representatives? Is the SC the guardian of the document, the constitution, which enshrines how Pakistanis want to organise their state, vertically between state and society and horizontally between the institutions of the state, or is it an institution which determines how the state should be organised? The two are very different matters: the first places the SC as a referee, the second as a determinant of the structural design of the Pakistani state.

There is a further issue here: that of secularism itself. Demonised and distorted, the original meaning, and perhaps for reasonable people the only applicable meaning, of the term ‘secularism’ has been lost here in Pakistan. Secularism is not ladeeniat, it is not anti-religion, as has been the claim of religious conservatives since the 1960s. It is one thing for Islamic parties to make that deliberately false claim, quite another for it to have apparently gained traction in the highest court of the land. Secularism is a very specific and narrow concept: the separation of religion and the state. Rather than being anti-religion, secularism is religion neutral. Standing in the way of those claiming that secularism is anti-religion and even vaguely anti-Pakistan at some level is one giant: Mohammad Ali Jinnah. The speech that the Quaid made from the floor of the constituent assembly in 1947 was a clarion defence of secularism, notable both for the occasion and the powerful oratory. Unable to rebuff the straightforwardness of the words — ‘religion is not the business of the state’ — conservatives have resorted to watering it down or ignoring it altogether. Perhaps the SC should ponder this question: would a constitutional amendment passed on the basis of the Quaid’s speech be declared against the ‘basic structure’ of the constitution?

 

[Tayyab1796]

SC the beacon of hope in this unfortunate land .

 

[muse]

This radical has now said basically that it is he and his cabal tha tare supreme, not Majlis - What an absolutely incredible concluence of evengts and personalities: A 10% President, A son of a Pir Premier, A ruling political party consisting of feudals ruling in the name of the "Awam", A Majlis full of cheats with fake degrees, A cabal of radical judges in the Supreme Court, target killings as politcal sport, Islamist terrorists running the country's Tribal areas, Foreign supported insurrectionists in Balouchistan, Suicide bombers everywhere else --- What a mess -- and not a single institution in sight that can or is willing to stick it's neck out to stop this, accept Kiyani and the FAUJ.

Iy's really incredible just how resilient the Pakistani state has proven to be - it can't do much, but it just don't die, it just keeps hanging on.

 

[ice_man]

ok this is being blown out of proportions! i personally think what the SC meant was that you can't alter a 63 year old ideology of a nation by a simple WHIM of the parliament!

it was used as an example i presume! we need to cut some slack for the SC

a constant new thing amongst pakistanis is they have started to complain about anything and everything! SC is the only institution that is helping to keep some sort of check on the government (recall the LNG contract).

no one listen to orders passed by the SC not even the police! so please let's not open a new front as it is pakistan has taken on more than it can handle! to many wars on to many fronts!

 

[muse]

By all means defend the SC but why defend it by attacking Pakistanis? How smart is that? Majlis does not operate on a Whim, it is the voice of the people and the supreme law making body - the SC does not make law, it executes the law - Judges do not make law, they follow the law that Majlis makes. Isn't that so?

 

[Patriot]

Supreme Court should not mess with Executive or Parliament Branch.Parliament is the most supreme institution of Pakistan (At least in Parliamentary System we have).I don't see Supreme Court of foreign countries messing with Executive or other branches of government like this.If Supreme Court had not messed up Steel Mills Privatization it might have been making money today and we would have to incur so many losses there.

 

[AgNoStiC MuSliM]

Muse, I think the issue is not the SC or the justices, but the constitution itself.

It defines the State as the 'Islamic Republic', and points to 'Shariah' at several places etc. - with all of that religiosity inserted into the Constitution, the 'identity of the State' is pretty well defined as an 'Islamic State'.

My opinion on this is that there really is no need to focus on nomenclature (Islamic Republic vs Secular State) but rather focus on the reforming the actual laws as they pertain to equal rights for all regardless of gender, faith or ethnicity. There is plenty in Islam itself, and plenty that proponents of Islam spout about 'Islam promotes egalitarianism' (many of them hypocrites) that can be used to achieve the ideals of 'secularism' within the framework of an 'Islamic Republic'. Pushing the issue of 'secular state vs Islamic Republic' needlessly antagonizes the other side and polarizes opinion, and shifts the discourse onto the identity of the State, instead of reforming laws and the institutions responsible for implementing them, and improving the lives of ordinary Pakistanis.

At the end of the day it is the actual laws that are in place, and how well they are implemented that is important, and not the nature of the State itself, wouldn't you agree?

 

[PAFAce]

On Monday, during the ongoing hearings on challenges to certain parts of the 18th Amendment, Chief Justice Iftikhar Chaudhry posed the question: “Should we accept if tomorrow parliament declares secularism, and not Islam, as the state polity?” That the question was asked in a rhetorical way was relatively clear: several judges indicated that such a move was even beyond contemplation. That is a troubling position.

By asking this question, Mr. Chaudhary has only pointed out the fact that he has his hands on the nation's pulse, maybe more so than the Parliament itself. Nowhere has he suggested that it is up to him to decide which system of governance is best for the country. He merely pointed out that it would be considered a preposterous idea, and rightly so in my opinion, to consider secularism as a viable system for Pakistan, a country where 95% of the people identify themselves as Muslims.

I do not buy the argument that secularism is anti-Religion. Living in Canada, I've experienced the "religion-neutrality" of a secular society first hand. However, that in itself is the key difference. Pakistan does not have a secular society, our society is very much Islamic. To impose secularism in Pakistan would be to play with the fabric that makes up the country.

As I've said before, without the uniting umbrella of Islam, Pakistan is nothing more than different ethnicities struggling to stay together. The bonding glue, what keeps us together, even as Mohammad Ali Jinnah recognized, was and remains Islam. Therefore, to separate Islam from government would be to take away from the government the key to holding the country together. You could argue against this, but Pakistani Armed Forces themselves rely heavily on the Islamic identity to keep its shape and to maintain a war-footing, despite being a more-or-less religion-neutral institution in terms of operation.

At the end of the day it is the actual laws that are in place, and how well they are implemented that is important, and not the nature of the State itself, wouldn't you agree?

Indeed, that is what matters in practice. However, a state cannot go too long being confused regarding its own identity, which Pakistan is. The "Islamic State vs Secular State" debate is important the long run.

This may be a terribly cheezy quote, but as Mr. Miyagi said in the original Karate Kid: "Walk on road, hm? Walk left side, safe. Walk right side, safe. Walk middle, sooner or later, [squish]"