Articles and Commentaries |
October 1, 2018

Pakistan Constitution and Human Rights: Inherent Contradiction

The UN Secretary General, now on a visit to India, pontificates that India should take care of human rights in Kashmir. This shows that he is not well informed on the history of Kashmir issue or is under pressure from Pakistani and Islamic lobbies. The right thing for him to do was to visit Pakistan and go deep into the human rights situation in that country. Let us summarize it for his quick reading and understanding.

Universal Declaration of Human Rights of the United Nations is actually the Magna Carta of minority rights. It urges member States to institutionalize protection and promotion of human rights of its citizens without discrimination.

Pakistan is signatory to several international human rights treaties including the International Covenant on Civil and Political Rights (ICCPR) and it also adheres to the Universal Declaration of Human Rights (UDHR).  However, Pakistan has taken a reservation on most of these and made their observance subject to the injunction of Islam. That immensely limits the scope of the treaties

Article 18 of the UDHR guarantees the right to freedom of thought, religion and conscience to every human being. Under the international treaty and customary law, Pakistan is bound to enforce the right of freedom of religion and belief of its people, especially the minorities, who are equal citizens of Pakistan.

Sunni Muslim majority does not allow Ahmadiyah to call themselves Muslims. There is demand from Sunni orthodox segment to declare Shia, the largest sectarian minority in Pakistan as non-Muslims, and other religious minorities like Christians, Hindus, Ismailis and others are treated discriminatingly.

Pakistan is not a homogenous society. The current population of Pakistan is 192 million out of which the majority are Sunni Muslims.  The country is home to several religious minorities: Ahmadiyah, Ismailis, Bohras, Bahais, Buddhists, Christians, Hindus, Jains, Kalasha, Parsees and Sikhs. As per the last recorded census (1998), 2.7 million Christians, 1.8 million Hindus, 106,989 Buddhists, 30,000 Sikhs, and 25000 Parsees constitute the religious minorities in Pakistan. Shia’s comprise the largest religious minority in Pakistan but are persecuted the most after Ahmadiyah and Hindus.

The majority population of Sunnis comprises various schools of thought like Deobandi,  Barelvi,  Ahle Hadith, Maudoodi etc, and add to this Wahhabis and Salafis.  Broadly speaking there are four traditional theological streams viz.  HanafiMalikiShafi’iHanbali.

Pakistan was created in 1947 as a separate country for the Muslims of India but not for any particular majority or minority denomination among the Muslims. The Lahore Resolution of 1940, which provided the basis for the creation of independent State of Pakistan also spoke about safeguards for the rights of religious minorities.

Perhaps this spirit had prompted M.A. Jinnah to make his famous address to the Constituent Assembly on August 11, 1947. He said,

“You are free: you are free to go to your temples, you are free to go to your mosques or to any other places of worship in the State of Pakistan. You may belong to any religion, caste or creed – that has nothing to do with the business of the State… We are starting with this fundamental principle: that we are all 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 so in the religious sense because that is the personal faith of each individual, but in the political sense as a citizen of the State.”

This curious address of the founder of Pakistan carried in its womb the seed of unmitigated contradiction that has haunted Pakistan from the very day of its creation.

How could non-Muslims be equal citizens of a State that was created for the Muslims? How could all citizens of the newly carved State be equal when the State came into being on the basis of two-nation theory? Most of Pakistani ulema even today reject the concept of universal equality for all citizens of Pakistan. The underlying conviction was that Muslims are superior to all other communities and Pakistan was a Muslim.

Jinnah corrected himself in many of his subsequent speeches in which he referred to an “Islamic form of democracy” and thus emphasized the role of Islam in the state where he had hoped that religious minorities and women would enjoy equal rights.

The first indication that the nascent state of Pakistan will be tilting towards predominance of Islamism over western type of democratic dispensation came in the form of the Objectives Resolution, which the first Prime Minister Liaquat Ali Khan proposed to make the preamble of the new constitution. Under Ziau’l Haqq’s dictatorship it was incorporated in the Constitution.

While we deal with the narrative of Human Rights in Pakistan, we need to essentially focus on the Objectives Resolution of the Constitution of Pakistan. Human Rights activists need to pay more attention to this crucial part of Pakistani Constitution.

The preamble (as it was called then) reveals the intentions of the framers of constitution to make it an Islamic State. The bitter contradiction was whether Pakistan had to be an Islamic State as the Objectives Resolution envisaged or non-Islamic democratic State as per the 11 August address of the founder of Pakistan.

It has to be noted that Liaquat Ali Khan did not table the Objectives Resolution during the life time of Jinnah nor did he even once refer to the famous 11 August address of Jinnah. This reveals the dichotomy at the very outset.

When Pakistan Muslim League government started working on the details of the new Constitution, it faced considerable problems and demands. The most important and immediate was the demand to pronounce Pakistan an Islamic State. The groups of ulema in the Government, i.e. Maulana Shabbir Ahmad Usmani, the President of the Jamiatu’l-Ulama-i-Islam (JUI), Pir of Manki Sharif in the NWFP, Maulana Akram Khan, the President of the East Pakistan Provincial Muslim League, and outside the Government i.e. Jama’at-i-Islami (JI), constantly urged the Government to declare Pakistan an Islamic State and to base the future constitution on Islamic principles. Maulana Maududi, the Amir of JI presented following four points and demanded that the future constitution should be based on these principles: (i) that we Pakistanis believe in the supreme sovereignty of God and that the state will administer the country as His agent (ii) that the basic law of the land is the shariah which has come to us through our Prophet Muhammad (SAW) (iii) that all such existing laws as are contrary to the shariah be gradually repealed and no law contrary to the shariah shall be framed in the future; (iv) that the State, in exercising its powers, shall have no authority to transgress the limits imposed by Islam.

If we want to understand the source of violation of human rights in Pakistan, or to be precise, violation of the human and civil rights of the minorities of Pakistan, we shall have to take into account the entire gamut of great and historic debate which took place in the Pakistan Constituent Assembly in which the then Prime Minister, Liaqat Ali Khan tabled the Resolution.

The move was strongly supported by the Muslim League members  but the Hindu members from the then East Pakistan, though less in numbers  opposed it tooth and nail. The apprehensions to which they alluded have come true in letter and in spirit as we go through the Rights history of Pakistan. One should give credit to their vision and wisdom and one should note with special attention the warnings which they had issued about the fragility of the proposed Islamic State of Pakistan purely on political and social basis.

The draft Objectives Resolution contained 13 clauses. It is beyond the scope of this paper to deal at length with all the 13 clauses. Therefore for brevity sake, I take up for discussion only the first clause and proceed to explain its fragility. But before I do that, let me reproduce below Clause 1 of the Resolution. It says:

“‘Whereas sovereignty over the entire universe belongs to God Almighty alone, and the authority which He has delegated to the State of Pakistan through its people for being exercised within the limits prescribed by Him is a sacred trust.”

Opening the debate on this clause Bhupendra Kumar Datta, a member of PNC from East Pakistan, pointed out at this:  Relations between a state and its citizens have been the subjects of politics, and relations between man and God come within the sphere of religion. ‘Politics comes within the sphere of reason, while religion within that of faith. If religion and politics are intermingled then there is a risk of subjecting religion to criticism, which will rightly be presented as sacrilegious; and it would also cripple reason and curb criticism as far as the state policies are concerned.”  Datta also warned that this resolution was prone to be misused by a political adventurer who might find a justification for his ambitions in the clause that referred to the delegation of the Almighty’s authority to the state through its people. He could declare himself as Ruler of Pakistan appointed by his Maker.” He also pointed out another potentially dangerous implication that “the limits” prescribed by the Almighty would remain ‘subject to interpretations and liable to variations, liberal or rigid, from time to time by different authorities and specialists

Chandra Chattopadyaya, a member of PNC from East Pakistan, expressed the same fears that:  “All powers rest with the people and they exercise their power through the agency of the State. The State is merely their spokesman. The Resolution makes the State the sole authority received from God Almighty through the instrumentality of people. People have no power or authority. They are merely post-boxes according to this Resolution. The State will exercise authority within the limits prescribed by Him. What are those limits, who will interpret them? In case of difference who will interpret? One day a Louis XIV may come and say, “I am the state, appointed by the Almighty” and thus paving the way for the advent of Divine Right of Kings afresh. Instead of the State being the voice of the people, it has been made an adjunct of religion. People are the manifestations of God.

Raj Kumar Chakraverty, a member of the PNC from East Pakistan, moved another amendment in the same clause: He said the words “State of Pakistan through its people” should be substituted with the words “people of Pakistan”. He further elaborated that ‘a State is the organized will of the people. A State is formed by the people, guided by the people and controlled by the people.’

He also quoted the constitutions of the leading Muslim states of Iraq, Turkey, Egypt and Iran where the sovereignty resides in the people and all people are equal before God.  Another member Leonard Binder also commenting on the first paragraph said that the clause “acknowledged the sovereignty of God, recognized the authority of the people derived from their creator, and the vested authority delegated by the people in the Constituent Assembly for the purpose of making a constitution for the sovereign state of Pakistan’ thereby declared ‘God sovereign, the people sovereign, parliament sovereign, and the state sovereign in Pakistan’.[i]

Notwithstanding the prophetic remarks of a senior League Member Hamid Khan that the Resolution had sown the seeds of suspicion, alienation and distrusts among the minorities the resolution was passed by majority vote. He further asserted that it might have been ‘more prudent to accept some of the amendments proposed by the members representing the minorities in order to reach an understanding with them so that the Resolution could have been passed by consensus. Some of the proposed amendments were moderate and might have been adopted”.

Objectives Resolution was a definite retreat on the part of government and provided some grounds on which the religious forces of the country thrived and gained advantage over progressive forces. Later on, Bhutto’s further retreat to get the favour of religious elements enhanced the influence of religious forces in the country. This not only resulted in the increasing insecurities and anxieties of the minorities but inflamed the sectarian differences within the Muslim community itself.

The retreat of liberal and moderate forces in the Muslim community gave way to extremism. Today it has become a menace not only to Islam getting portrayed as fanatic religion but to the Muslim community also who has become a hostage to a minority group wanting to impose its version of Islam.

Secondly, the government’s policy of uniting people in the name of Islam failed because of its failure to comprehend the plural sensitivities of Pakistani society and to address the problems of the people for whom they had sacrificed and achieved a separate State. This created alienation among certain people and provinces of Pakistan which ultimately lead to the disintegration of Pakistan and separation of East Pakistan in 1971. This event proved that ideology alone cannot keep the people united. Justice and fair opportunity are a must to keep a plural society together and save it from disintegration.

(Prof. K.N. Pandita is the former Director of the Centre of Central Asian Studies, Kashmir University, Srinagar.)

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