A little learning

Columnist

A little learning

   By Ardeshir Cowasjee

   Sunday, 11 Jul, 2010

Zulfikar Ali Bhutto brought in seven amendments, three concerned with ‘fixing’ the judiciary to his liking, two with furthering the cause of preventative detention, and one transforming a community of the majority into a minority, i.e. shaving it of its rights. — File Photo.

It is said to be a dangerous thing. And we in this Islamic Republic know better than many that it indeed is. However, having said that it is always good to pick up bits of knowledge along the way and learn — and we need never stop learning.

A.G. Noorani, political analyst, advocate of the Supreme Court of India, writes for this newspaper. His column of July 3 dealt with the doctrine of the ‘basic structure of a constitution’ and how this cannot be changed by amendments. It was relevant to our constitution and the present matter in the Supreme Court of Pakistan dealing with the issue of the 18th Amendment to the 1973 constitution, during the hearings of which our learned justices referred to its ‘basic structure’ but did not define it.

To some, the basic structure is embodied in the fundamental rights guaranteed by a constitution, to others it is the form of government — parliamentary or presidential. What was the basic structure of the 1973 constitution when it was promulgated?

Well, if it was the fundamental rights (Articles 8 to 28), then the basic structure was changed within four hours of its promulgation on Aug 14, 1973 when a presidential order declared that the state of emergency imposed in 1971 would continue for an unspecified period and that 10 of the guaranteed fundamental rights stood non-justiciable, i.e. suspended. So decreed Zulfikar Ali Bhutto, maker and promulgator, and his president had no qualms in signing the order. (Fundamental rights were twice suspended subsequently, by Ziaul Haq and Pervez Musharraf.)

Bhutto brought in seven amendments, three concerned with ‘fixing’ the judiciary to his liking, two with furthering the cause of preventative detention, and one transforming a community of the majority into a minority, i.e. shaving it of its rights.

From this we must assume that our ‘basic structure’ is not fundamental rights. So what is it? Well, come 1985 and Ziaul Haq brought in his Eighth Amendment which totally changed the form of government from parliamentary to quasi presidential, and introduced into the constitution matters of religion — his own unique brand of religion — which impinged on 59 articles and sub-articles of the constitution, thus debasing its tenor and spirit.

He made the Objectives Resolution an annex to and substantive part of the constitution, thus further betraying the desire and objective of the founder-maker of the country, Mohammad Ali Jinnah, who had unequivocally instructed his constituent assembly that “You may belong to any religion, or caste, or creed — that has nothing to do with the business of the state.”

Would one not say that any basic structure was thus completely undone?

Now, this present government, with much trumpeting, has introduced the 18th Amendment which it declares falsely has ‘restored’ the original 1973 constitution. One must ask the legislators, and also our honourable Supreme Court justices, how this has possibly been achieved when the constitution remains littered with the religious aspects of the Eighth Amendment? Is parliament not misleading the nation, is it not collectively conniving in an untruth?

In his column, Mr Noorani told us that the author of ‘the basic structure’ doctrine was Prof Dietrich Conrad who headed the law department of the South Asia Institute of the University of Heidelberg from its founding in 1963 to his retirement in 1997 (he died in 2001). According to Mr Noorani, he “single-handedly inspired a revolution in constitutional law,” namely the ‘basic structure’ limitation on powers to amend constitutions.

Indian lawyers took note of the doctrine in 1965 and it was laid down by the Supreme Court in the Kesavananda Bharati case in 1973. Courts in Pakistan have wavered in their position on the question and fallen shy of expressing an opinion (can someone tell me otherwise?). According to Conrad “there are, beyond the wording of particular provisions, systematic principles underlying and connecting the provisions of the constitution … [which] give coherence to the constitution and make it an organic whole.”

As to the 1973 constitution, or more precisely the 1985 constitution which is what we toil under today, what is it that gives it coherence and makes it an organic whole? Can any man answer this? Abdul Hafeez Pirzada can certainly answer on behalf of what was the 1973 constitution, and my old friend, the Jadoogar of Jeddah, Sharifuddin Pirzada, could undoubtedly enlighten us on the 1985 version. We need them to speak up. The cause of anxiety about the 18th Amendment is clear — it is how it affects our judiciary.Whilst Conrad was examining the emergency provisions of the Indian constitution and their use he correctly asserted that emergency powers were never intended to be used to improve the economy of a country. Provisions for the imposition of a state of emergency, in any part of a country, were unsound and its use would lead to the generation of a feeling of alienation among the people of that part of the country.

On the concept of the rule of law, Conrad had it that this could not be attained unless the judicial machinery was reformed to provide expeditious and effective remedies against the violation of laws. He also stressed that the right to basic necessities of life be judicially enforced, and that the existence of different personal laws be re-examined in the light of the right to equality under the constitution.

The 18th Amendment has not only irritated the judicial appointments issue, it has also done little to ensure the right to equality for the country’s citizens.

arfc@cyber.net.pk

©2010 DAWN Media Group. All rights reserved

URL: www.dawn.com/wps/wcm/connect/dawn-content-l...-little-learning-170-hh-05

In our beginning is our end

Columnist

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In our beginning is our end

   By Ardeshir Cowasjee

   Sunday, 20 Jun, 2010

Whatever progress we have made in Pakistan’s 63 years of life has been on the negative side, writes Ardeshir Cowasjee. — Photo by Reuters

We must read to remember. The early days of Pakistan were far from halcyon, though those of us who lived through them look back with some nostalgia. Whatever progress we have made in this country’s 63 years of life has been, as it turns out, on the negative side.

Where have we progressed in leaps and bounds? Well, in the scale of wholesale corruption, political and administrative ineptitude, and bigotry and intolerance and their accompanying violence — they were all there at the beginning which was in itself violent.

Perhaps the presence of founder-maker Mohammad Ali Jinnah for the first year of Pakistan’s life kept things somewhat in check, though his loyal lieutenants did take advantage of his state of health. His exhortations of Aug 11, 1947 to his constituent assembly were in vain.

All that he laid down — tolerance, equality of citizenship, the shunning of corruption, nepotism and jobbery, and above all that law and order was the first priority of any government — was all lost. It was never digested, the quality of manpower saw to that.

Having dipped into an OUP 2010 publication, The Culture of Power and Governance of Pakistan 1947-2008 by Ilhan Niazi, it has sadly dawned upon me how misplaced was the early enthusiasm for the new country and the belief that the words and teachings of Jinnah would prevail.

In January 1949, governor of the Punjab Francis Mudie sent a note to Prime Minister Liaquat Ali Khan complaining that Punjab Chief Minister Mamdot was one up on the centre and even Jinnah “every time that they have intervened and the feeling is growing that the centre is powerless even when the government is hopelessly corrupt and the administration paralysed … no questions of policy are even contemplated”.

The services were demoralised, ministers were interfering in the administration, “becoming more and more rapacious”. Land grabbing was the fashion from the start — the Punjab chief minister was described as “lazy, inefficient and a liar”, his main interest being the acquisition of evacuee land out of which he and his family and followers had all done splendidly.

The same applied to many other politicians and administrators whose main focus was the abandoned evacuee properties — buildings and land.

In March that same year, the ulema, who even in those days wielded far more influence than they should have done and were mainly comprised of groups that had opposed the creation of Pakistan, scored a famous victory.

The Muslim League, led by Liaquat Ali Khan, turned its back on Jinnah and his avowal to the world that Pakistan was not to be a theocratic state led by priests with a divine mission, and pushed through the constituent assembly the Objectives Resolution which put paid to any hope of freedom of worship, of the fundamental principle that all citizens are equal and above all of Jinnah’s promise to his people: “You may belong to any religion or caste or creed — that has nothing to do with the business of the state.”

In 1952, Interior Secretary G. Ahmed sent to Prime Minister Khwaja Nazimuddin a note on the internal situation. He reported a loss of public confidence in the weak and far from competent government. The country was on the downgrade, provincial and political disharmony was on the increase, and there was an undercurrent of restlessness.

The cause: the mindset of the politicians and their medieval attitude towards the acquisition and exercise of power — politicians at all levels used and abused the state as a personal estate, and were adept at playing games with the religious fundamentalists for short-term political benefit.

Well, all of the above is an apt description of what has transpired each year of Pakistan’s life — the generals had not by 1952 reared their heads, but the accusation against the politicians has also applied equally and fairly since 1956 to the generals of our army and to vast numbers of corrupt and venal administrators who have been willing tools in the hands of whatever masters they have served in servile manner.

Come 1953, and the ulema flaunted their powers. In January they issued an ultimatum to Prime Minister Nazimuddin that unless he declared the Ahmadis to be a non-Muslim minority and sacked all Ahmadis in key state posts they would resort to ‘direct action’. This they did in March, the prime minister having ignored them.

Widespread disturbances, killings and rioting broke out in Punjab leading to the imposition of a local martial law. In 1954 Justices M. Munir and M.R. Kayani presented their report on the disturbances in which they famously declared that, after having heard various members of the ulema, it was impossible to define a Pakistani Muslim.

Their final sentence to the report is one of the saddest truest comments ever made on this country: “But if democracy means the subordination of law and order to political ends — then Allah knoweth best and we end the report.”

Were any lessons learnt? No. In 1974, Prime Minister Zulfikar Ali Bhutto, bowing, it is said to external and internal pressures excommunicated an entire community, declaring the Ahmadis a minority. Ziaul Haq in 1984 declared the Ahmadis to be non-Muslims and into the Pakistan Penal Code inserted sections 298-B and 298-C prohibiting them from referring to their place of worship as a masjid, from referring to the call to prayer as the azan, from ‘posing’ as a Muslim, or from referring to their faith as Islam. The punishment was a fine and up to three years imprisonment.

And so, on to May 28 2010. Where do we go from there?

arfc@cyber.net .pk

©2010 DAWN Media Group. All rights reserved

URL: www.dawn.com/wps/wcm/connect/dawn-c...ur-beginning-is-our-end-060

Smokers’ Corner: Whiplash

Columnist

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Smokers’ Corner: Whiplash

   By Nadeem F. Paracha

   Sunday, 13 Jun, 2010

Jinnah’s death in 1948 reduced his Muslim League (from being a dynamic organisation of visionary action) to a rag-tag group of self-serving politicians. It became a pale reflection of its pre-independence past. Gone too was the party’s ability to bring into policy Jinnah’s modernist Muslim vision.

A consensus across various academic and intellectual circles now states that violent entities such as the Pakistani Taliban and assorted sectarian organisations are the pitfalls of policies pursued by the state through its intelligence agencies to safeguard Pakistan’s ‘strategic’ and ideological interests.

The supposed ideology was constructed by the ruling establishment many years after the painful birth of this country. It has since been used by the state apparatus, political parties and media men to justify the patronisation and formation of brutal reactive outfits and groups. But whose ideology is it anyway? Pakistan seemed to have had a simple answer till about 1956. This answer, it seems, did not suit the political and economic interests of the early Pakistani ruling elite.

Till about the late 1960s it was normal to suggest that Pakistan was carved as a country for Muslims of the subcontinent who were largely seen (by Jinnah and his comrades in the Muslim League), as a distinct cultural set of Indians whose political, economic and cultural distinctiveness might have been compromised in a post-colonial ‘Hindu-dominated’ setup. As Jinnah went about explaining his vision of Pakistan, there was no doubt whatsoever in the historical validity of the notion that he imagined the new country as a cultural haven for Muslims of the subcontinent where the state and politics would remain separate.

The state was to be driven by modern democracy that incorporated the egalitarian concepts of Islam such as charity, equality and interfaith tolerance. According to Professor Aysha Jalal, Jinnah’s view of Islamic activism in the subcontinent was akin to his understanding it as a phenomenon that ‘derided the false and dangerous religious frenzy which had confused Indian politics and the zealots who were harming the national cause.’

However, Jinnah’s death in 1948 reduced his Muslim League (from being a dynamic organisation of visionary action) to a rag-tag group of self-serving politicians. It became a pale reflection of its pre-independence past. Gone too was the party’s ability to bring into policy Jinnah’s modernist Muslim vision. The idea got increasingly muddled and shouted down by the once anti-Pakistan Islamic forces, who now started flexing their muscles in the face of a disintegrating Muslim League, and the erosion of the ideal that its leader stood for.

The Jamat-i-Islami (JI) went on a rampage in 1953 in Lahore, hungrily overseeing the country’s first major anti-Ahmadi riots. Of course, by now the famous speech by Jinnah in which he underlined the idea of religious freedom in the new country was conveniently forgotten as the ruling elite grappled confusingly with the crises of its own creation. Eventually, it capitulated to the demands of the handful of vocal Islamist leaders by officially declaring the country an ‘Islamic Republic’. It was classic ostrich behaviour; the sort a number of Pakistani leaders continue to demonstrate whenever faced with the question of Pakistan and its relationship to political Islam.

Misunderstanding Islamist activism as mere emotionalism, the ruling elite gave the Islamists a bone to play with, without bothering to explain to the rest of the people exactly what an Islamic republic really meant in the Pakistani context — a country buzzing with a number of ethnicities, minority religions and distinct Muslim sects. A democratic order should have been a natural answer to the state’s crisis. But for Islamists, democracy meant the emergence of ethnic and religious plurality that would encourage secular politics and further undermine the notion of the new-found Islam-centric Pakistani nationhood.

Many years and follies later, and in the midst of unprecedented violence being perpetrated in the name of Islam, Pakistanis today stand more confused and flabbergasted than ever before. The seeds of ideological schizophrenia that the 1956 constitution sowed followed by the disastrous doings of the Gen Ziaul Haq dictatorship in the 1980s. These have now grown into a wicked tree that only bears delusions and denials as fruit.

As Islamic parties and reactionary journalists continue to use the flimsy historical narrative of Pakistan’s Islamic republicism, consciously burying the harrowing truth behind the chaos the so-called’ Islamic ideology of Pakistan’ has managed to create, whole new generations grow up lapping up this synthetic narrative. While it has continued to alienate not only the religious minorities — Muslim and non-Muslim — it has also stoked intolerance among the very vocal and assertive, puritan Muslims.

A recent example is the way many puritan Islamic groups have reacted to the conservative Nawaz Sharif’s statement sympathising with the plight of the Ahmadis. Also, one of Pakistan’s outstanding, moderate Islamic scholars, Javed Ahmed Ghamdi, has had to fly out of the country into a self-imposed exile. According to an executive producer at a popular Urdu-language TV channel, Ghamdi was facing a number of threats from certain puritan and violent Islamic groups.

His sin? He stood out as a mainstream Sunni Muslim scholar who banked on reason and an interpretive take on the Quran, eschewing the myopic literalism of the puritan groups that espouse a violent, political view of Islam.

©2010 DAWN Media Group. All rights reserved

URL: www.dawn.com/wps/wcm/connect/dawn-content...-whiplash-360-hh-05