Stabbing the soul of Pakistan

[Salahuddin]

by Abid Ullah Jan

Some of us might feel relieved in October and may claim to have ousted the dictatorship, but in fact the sham referendum and the proposed constitutional re-writing under the label of “amendments” seek only to impose a new refurbished model of dictatorship with most of the same actors – further empowered and in total control. The new dictatorship may even be more cruel and total in its control than the present one.

All commentaries on the proposed constitutional amendments are right in their opinion from their specific perspectives. The military regime is also right in its contention that it wants a stable government and sustainable democracy. The question, however, should be about the ultimate, higher objective – the overall goal. Is “sustainable democracy” impossible without re-writing some of the basic clauses of the Constitution? Or the public is kept in dark about the overall goal?

The fact that we ignore is that rewriting constitution is part of the bigger game: the covert war on Islam under the banner of “war on terrorism” and the overt promotion of “war within Islam” by major American analysts and organisations. Must sound odd, but let us see how.

The first thing to keep in mind is that the Supreme Court of Pakistan authorised the military regime to “amend” the constitution, not rewrite it. A quick count of the proposed changes shows that 10 clauses are to be omitted; 29 articles would be changed and a total of 97 articles and sub-clauses would be substantially changed or omitted altogether. Amendment means a partial change; rectification of any error or omission to fulfil the natural evolutionary requirements by adding or deleting something in consonance with the basic structure and strategic system of a constitution. No change in deviation or clash with it can be treated as legitimate amendment. What we observe are must-make-violations, which have become necessary for transforming the Constitution into a potent weapon for the war on Islam.

Here we see a military regime, turning the Constitution upside down when even all parliaments, which come into being under a constitution, have only limited authority to amend the constitution. Even such elected bodies do not enjoy the right for its abrogation or metamorphosis as we are witnessing at the hands of army men at the top. It is no justification that the Supreme Court has granted permission for amending the Constitution; because the Court has also lost its credibility for the way it played its role since October 12, 1999 in almost all major decisions.

Let’s see how America comes into this affair. Remember the American threat of “not doing business as usual” in response to the October 12 coup in Pakistan. Remember Richard Boucher, US State Department spokesman, telling the world that General Musharraf's actions to dissolve the elected assemblies and to appoint himself president “severely undermine Pakistan's constitutional order”. (1) Compare these reactions with comments of the US analysts, government officials and think-tanks before and after Musharraf’s January 12 and July 12 speeches. A detail study shows that they knew what Musharraf is to tell the nation well in advance.

Musharraf tells us that military role in politics is essential and the next week we read headline news: “US supports Army role in civilian set up”.(2) The question is, why? The answer is: because the US wants imposition of a top-down form of modernisation, which is not possible unless delivered from the barrel of a gun. Daniel Pipes, a leading opinion-maker in policy formulation circles in Washington, sums up this approach in Elections Today: “Muslims must accept that the West has discovered ideas and methods that they must learn, adopt, and apply - that ignoring or rejecting them is a major mistake. Mustafa Kemal, the founder of modern Turkey, understood precisely this and imposed a top-down form of modernization in the 1920s and 1930s. He is the great exception, as is Turkey more broadly.” (3)

The morbid dread of “fundamentalists” taking power in Pakistan forces Washington to impose the Turkish model and entrust to the military the responsibility to act like a secular bulwark. Musharraf has proved himself to be “the great exception”. All he needed were Hosnie Mubarak kind of powers and a Turkish kind of constitution. If we look from the right perspective, it is the soul of our Constitution that is under attack. According to section 6 (iii) of the limiting clauses of Supreme Courts May 12, 2000 decision, “no amendment shall be made in the salient features of the Constitution, i.e. independence of judiciary, federalism, parliamentary form of government blended with Islamic provisions.” The following analysis shows how the regime violates these limits and how Islam is the main target without any direct reference to this intention.

The regime concedes under proposal 19(b) that its proposals “seek to change specific provisions of the parliamentary form”, which is the first violation of the limiting clause of the Supreme Court’s decision. The regime once more admits under 19(e), that the proposed “changes impact the parliamentary character of the system.” Admitting and still going against the Court’s decision shows that the regime is determined to impose these changes because it has to. Unfortunately, there is no legal way to take illegal actions. The regime makes a circuitous argument under 20(b) that there is “no universal formula of federalism,” therefore it may seek to “adjust specific provisions,” ignoring that our founding generation had agreed to a specific formula, a standard, and the Court’s decision warned the regime not to change it’s essence with the lame arguments, such as, “there is no “universal formula.”

After admitting that it is going against the Supreme Court’s decision, the regime starts stabbing the soul of Pakistan. It attacks the electorate with reduction in the voter age from 21 to 18 years and adoption of joint electorate. The seemingly naïve rewriting of these clauses means a lot. The inclusion of teens in elections means a high percentage of voters would now be madly attracted to glamourised secularisation and modernisation, thus reducing chances of anyone securing more votes with calls for enforcing Islamic clauses of the constitution or enforcement of “draconian” Sharia as the supreme law of the land. Moreover, we witnessed the misuse of this clause during the recently held referendum where college students were brought in to show an increased turn out.

Removal of the word “Muslim” from Article 51(1) of the Constitution means any number of non-Muslims, or Muslims like Salman Rushdie and Ibn Warraq (who prefers to be called “a former Muslim”), can not only be elected to different assemblies, but also hold position of the Prime Minister and Chief Ministers – a clear violation of the spirit of Objectives Resolution. The Preamble of the Constitution states, “sovereignty over the entire Universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust.” Would a non-Muslim Prime Minister care about the limits prescribed by Allah?

The preamble further states, “the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed.” Would a non-Muslim Premier or his fellow members in the elected bodies care about the principles enunciated by Islam?

The soul of the constitution requires the state to “enable” Muslims “to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and Sunnah.” How would a person, who does not believe in the “teachings and requirements of Islam as set out in Qur’an and Sunnah”, lead Muslims?” Article 2 of the constitution states that Islam shall be the State religion of Pakistan. Does Islam permit a non-Muslim to be the head of the “Islamic” state, or lead a majority of Muslims?

Questions in the preceding paragraphs are essential because Article 41(2) of the Constitution clearly states, “a person shall not be qualified for election as President unless he is a Muslim…” But there is no such restriction for the Prime Minister. Throwing out Objectives Resolution and associated Islamic provisions was not possible at this point in time. The regime has thus decided to introduce new provisions, that would not only render the rest ineffective but also pave the way for future valid objections for removal of any reference to Islam.

For instance, today we are approving joint electorate and consoling ourselves with the fact that non-Muslims are not in majority. Tomorrow we would be told, if a Muslim can become president in India, why can a Hindu not in Pakistan? Or if there is a constitutionally approved secular way for elections with no difference between Muslim and non-Muslim voters and candidates, why should there not be a secular law to equally deal with them? Why should there be any contradictions in the constitutions? With re-writing the Constitution, the regime is simply sowing seeds for a “war within Islam”.

The clause restricting entitlement of political parties securing less than ten percent of the total votes cast in the election on general seats to any reserved seat, or securing less than 5 per cent seats for any seat in Senate is also directed at religious parties, notorious for securing minimum percentages of votes. Reduction in voter’s age would further reduce chances to improve their image as underdogs in the election process. Now that the doors are being slammed on them, it must be a rude realisation for their useless participation in the elections thus far with unclear strategy to achieve what they want.

Introduction of new Clause (cc) in Article 62(1) about minimum educational qualification is also directed less at foreign graduates like Benazir and Nawaz Sharif and more at religious scholars and leaders. Most of them are thus rejected by default – no matter how well versed they may be in Arabic and Islamic education. Interestingly, none of the religious parties has raised the issue for some relaxation for those scholars who have spent their lives earning degrees in Islamic science without having a regular bachelor degree.

Reserving a high proportion of seats for women is also directed at increasing surface area of the soft target for the multi-focal attack on Islam. Interestingly, increase in women seats goes hand in hand with a decrease in the seats for Ulema at all levels. More than 70 per cent of our population lives in rural areas, where a recent study has revealed that women to men ratio at Primary, Middle and High levels of education is 1:4, 1:5 and 1:9 respectively. With such a low comparative literacy ratio, reserving 22 percent of seats for women is a folly in the name of development, because countries with much higher literacy rates have far less percentage of women seats.

In Japan, with a much more liberal culture and higher literacy rate than ours, between the years 1952 and 1980, the proportion of women in parliament averaged a mere 3 percent. Since 1980, however, when a proportional representation system was introduced in the Upper House, the number of candidates, as well as women elected increased significantly, but is still less than 6 per cent. At the Euro-parliamentary elections of 1989, out of 26 members, only one was a woman (4.5 per cent). In the local elections of 1986, out of 303 mayors, there were only six women (1.9 per cent); among 5,697 community presidents only 30 were women (0.52 per cent); in municipal councils, out of 4,999 councilors only 412 were women (8.24 per cent); in community councils, out of 40,402 only 812 were women (2 per cent); and out of 303 presidents of municipal council only 4 were women (1.6 per cent). (4)

Moreover, women representation in the British parliament has been notoriously low, less than 5 percent through the 1970s and only rising to 6.3 percent after the general election of 1987. At national level the 1990 figures of women in legislation as percentage of all elected officials in some leading countries are as follows: Canada 13.7%; Great Britain 6.3%; Greece 5.3%; India 5.8%; Japan 5.9%; Mexico 12%; Norway 35%; Poland 14.8%; Spain 7%; U.S. 5.4% and Uganda 14.4 per cent. The question is: why do any of these countries not reserve such a high percentage of seats for women, so that the rest of the world shall consider them "moderate" or to allow women to play a meaningful role in development? The only reason to force us into playing by such rules is to make it easy to inflame the “war within Islam” with women related issues as bones of contention.

All other re-writing proposals regarding checks and balances, appointment of Prime Minister, Governors and Chief Ministers and dissolution of assemblies, establishment of NSC etc., are directed at giving military a permanent role in politics. Musharraf argued in his July 12 speech that politicians repeatedly came to GHQ for consultation and mediation. This doesn’t mean that military shall be given a permanent constitutional role, because these politicians have made more visits to the American consulates and Washington than GHQ. Does it mean Washington will be given a permanent constitutional role in Pakistan? The only objective of forcing Pakistan into giving military a permanent role in civilian government is that as soon as American newspapers start the hue and cry about an elected Prime Minister, like Erbakan in Turkey, the military is constitutionally ready to remove any threat to secularisation.

The funniest of all proposals is the Amendment in Article 91(5) under which the National Assembly is expected to sign its own death warrant in case the Prime Minister desires to dissolve the assembly and the President either relieves him or asks the assembly to endorse the PM’s advice of its dissolution. Similarly the proposed “modifications” in article 58 (2) and 101(1) are simply to empower every President to the tune of Hosnie Mubarak. What a mockery of the claim to introduce checks. Who is there to check the President and what is going to balance his powers?

The sum and substance of the argument is that most of the proposals for re-writing the constitution are directed at neutralizing the Objectives Resolution and paving the way for all out secularisation of the country. In the Nusrat Bhutto case the Supreme Court determined the Objectives Resolution as basic law of the country and later the high courts also acknowledged this principled stand. Gradually all courts confirmed this principle, which ultimately formed part of the Constitution in the shape of a full bench judgment of the Supreme Court in the Achakzai case. Every one should thoroughly study this judgment, which says:

One thing is beyond dispute that in all the three Constitutions, Objectives Resolution is common and the same, which has been incorporated as preamble in all the three Constitutions including the Constitution of 1973...

The earlier and also May 12, 2000 decision of the Supreme Court settles in clear terms that any amendment (not re-writing) could only be done staying within these limits. Therefore all the religious and political forces in the country should remain cautious about it. They should try for a consensus at the national level on a package of constitutional amendments – if at all necessary at the hands of military regime – which is in consonance with the Objectives Resolutions and should unstintedly resist any amendment that paves way for centralization of powers for hurting the soul of Pakistan and diluting our religious identity in any form.

Concluded.
July 21, 2002

Notes.
(1) Andrew Demaria, CNN, June 21, 2001.
(2) The News, Front-page main headline, July 18, 2002.
(3) Daniel Pipes, Elections Today, (Spring 2002) [see: <http://www.danielpipes.org/article/433>, <http://www.ifes.org/research_comm/et_spring_02_low.pdf>]
(4) Jill M. Bystydzienski, Women Transforming Politics, Indiana University Press, 1992.

Also see: Constitutional Amendments: National Aims And Personal Whims at Jamaat.org to find out examples of how slight changes in words were refused by the Indian Supreme as damaging the structure of Indian Constitution.

Abid Ullah Jan is a columnist for The Statesman, The Nation, and the Pakistan Observer (Pakistan). He is also sub-editor for the Tribune International (Sydney, Australia), and is the Executive Director of the Integrated Regional Support Programme (IRSP). He can be reached at abidjan2@psh.paknet.com.pk



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