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?