THERE has been considerable discussion about the 'basic structure' of the constitution as the Supreme Court of Pakistan hears challenges to the 18th constitutional amendment. The debate has focused particularly on the mode of judges' appointments and whether changes to that process alter the basic structure of the constitution.
The petitions currently before the Supreme Court appear to be seeking to apply the 'basic structure' argument to limit parliament's capacity to effect constitutional change. While the merits and demerits of the Supreme Court's position on the matter remain sub judice, the precise mode of appointment of judges is a minor matter compared to some other concerns.
While the court occupies itself thus, its worst fears already stand realised. The basic structure of the constitution was fundamentally altered in 1985 by a non-political parliament under the tutelage of military ruler General Ziaul Haq. This change has not been addressed in the 18th Amendment nor has it been addressed by Pakistan's now independent Supreme Court.
A critical part of Zia's Islamisation exercise was that the 1949 Objectives Resolution, until then only the preamble to the constitution, be included in the text of the constitution as an operative portion through the insertion of Article 2A. The 'Revival of the Constitution Order, 1985', which was later provided cover by the 8th Amendment, achieved precisely that.
The Objectives Resolution was adopted on March 12, 1949 by the Constituent Assembly of Pakistan and was proposed by Prime Minister Liaquat Ali Khan. It was neither an act of parliament nor law in any shape or form. Rather, it was meant to be a statement of aspiration, a set of guiding principles that was to inform constitution-making in the new state. Neither the resolution's framers nor the parliament that unanimously adopted the 1973 Constitution ever intended the resolution to be law. Until Zia's illegal tampering with the constitution, the Objectives Resolution was viewed as a major symbolic element of the constitution but remained legally marginal. Legally, a preamble cannot be regarded as law but is used as a tool of interpretation.
Today the Constitution of Pakistan possesses the unusual element of incorporating the same text twice at different places. The Objectives Resolution forms the preamble and reappears verbatim in an annexe incorporated in the operative part of the constitution by way of Article 2A. This arrangement betrays, as does indeed the text of the resolution itself, the deep division in the conception of the nature of the Pakistani state — a division which has remained unresolved from the formation of the state to date.
The 1949 Objectives Resolution was a document of compromise, described in constitutional doctrine as a dilatory compromise formula. Justice Munir, the former Chief Justice of the Supreme Court of Pakistan and co-author of the renowned Munir Report, was the most scathing of all “it has been freely admitted that this Resolution, though grandiloquent in words, phrases and clauses is nothing but a hoax”.
An opening proclaiming Allah's sovereignty over the universe is followed by an outline of the essential features of the proposed constitution. These principles allude to a federal parliamentary system, with guarantees of fundamental rights, protection of minorities and the independence of the judiciary. There are, however, two Islamic provisions. First, the principles of democracy, equality and so on are qualified “as enunciated by Islam”. Second, there is the 'enabling clause' which ostensibly provides an opportunity for Muslims to develop their culture according to their conscience while non-Muslims are protected by guarantees for their corresponding rights.
This has, unsurprisingly, led to legal mayhem because of the qualification that Allah's sovereignty as delegated to the people of Pakistan is to be exercised “within the limits prescribed by Him”. What are these limits and who determines and interprets them? Zia certainly seemed clear the 'limits' in his view were to be determined by those who believed in his interpretation of Islam and may or may not include democracy as conventionally understood.
Laws which are inconsistent with universal fundamental rights have to be struck down. However, under Article 2A, laws have also to be invalidated in case of contradiction with the injunctions of Islam as arbitrarily decided by judges on an ad hoc basis. The consequence has been ongoing chaos and confusion in the legal and political culture of Pakistan since Zia. Frequently, “the limits prescribed by Him” and “as enunciated by Islam” have been used to enforce archaic readings of the Sharia and to justify a host of controversial Ziaist laws including the Hudood, Qisas and Diyat and blasphemy laws. Indeed, the insertion of Article 2A served precisely that purpose for Zia by providing a shield against the effect on his Islamic ordinances of fundamental rights enforceable under the revived constitution. On June 5, Chief Justice Iftikhar Chaudhry lauded parliament for undoing Zia's deletion of the word “freely” from the text of the resolution in the 18th Amendment and referred to the 1985 parliament's failure to notice this change as “criminal negligence”. Once again, the text reads “Wherein adequate provision shall be made for the minorities to freely profess and practice their religions and develop their cultures;” as was intended by the framers of the 1949 Objectives Resolution.
While parliament's effort to restore the original wording of the Objectives Resolution is welcome, the principal piece of Ziaist mischief has been left unaddressed. In order for fundamental rights to reign supreme within Pakistani law, it is absolutely essential that Article 2A be repealed and the Objectives Resolution be restored to its rightful place as a guiding principle in the preamble rather than operative law under Article 2A.
The fact is that the very nature of the text of the Objectives Resolution stands in the way of treating it as enforceable law in and of itself in any capacity. To do so actually distorts the basic structure of the constitution by allowing for abusive laws promulgated in the name of Islam and the consequent curtailment of fundamental rights. As has been evident in the last 25 years, it also facilitates an inexorable slide towards a sectarian state. Until such time as the legal quagmire spawned by this misuse of the Objectives Resolution is addressed, Pakistan's courts will find it difficult to end the legal discrimination it engenders.
The writer is a South Asia analyst for the New York-based Human Rights Watch.