When measured up to Jinnah’s speeches and statements in the Indian central legislature as well as Pakistan’s constituent assembly, the 1973 Constitution appears to be fundamentally bad.
In a few days the nation will once again pretend to pay homage to Quaid-e-Azam Mohammad Ali Jinnah on his birthday, which falls on Christmas Day. There will be a change of guard at his mausoleum. Politicians and functionaries of the state will go lay floral wreaths on his grave. It happens every year. Every year it reeks of hypocrisy. Pakistan of today is the precise opposite of what Jinnah stood for and what Jinnah wanted for it on almost every count.
Any honest student of Jinnah’s politics from 1906 to 1948 will tell you that there is no greater anti-Jinnah document, completely and totally in contradiction to what Jinnah stood for, than the Constitution of the Islamic Republic of Pakistan, 1973. It is not that hard to determine the truth behind this claim I make here. Every speech and every legislative instrument Jinnah was involved in right from the time he joined the Congress Party in 1906, when became a representative on the viceroy’s council in 1910 and later on as a member of the Indian central legislature, is all part of record in both parliamentary and legislative records in both India and Pakistan. This record shows Jinnah to be an astute liberal democrat committed to the principles of modern democracy and equality of citizenship for all Indians regardless of their religion, caste or creed. It also shows that Jinnah’s famous August 11 speech was not a one-off ‘aberration’ but was a restatement of a lifelong commitment to human rights and freedom.
When measured up to Jinnah’s speeches and statements in the Indian central legislature as well as Pakistan’s constituent assembly, the 1973 Constitution appears to be fundamentally bad. By barring the offices of president and prime minister of the republic to non-Muslim Pakistanis, it creates precisely those bars that Jinnah had warned against. Such a situation was unacceptable to Jinnah in 1947 but it is even more inconceivable and out of place in the 21st century. What if such a provision disqualified Muslims in the US? We condemn hatemongers like Ben Carson and Donald Trump but do we have it in ourselves to condemn this institutionalised bigotry in our own Constitution?
The 1973 Constitution was amended in 1974 to declare an entire sect as being outside Islam, this sect being the Ahmedis. From 1937 to 1944, the pro-Congress Majlis-e-Ahrar-ul-Islam and other religious groups constantly pressurised Jinnah to declare Ahmedis as non-Muslims and throw them out of the Muslim League. Jinnah not only wisely resisted the pressure but also declared any such move as nothing less than a conspiracy to divide Muslims along sectarian lines. For this he was abused and attacked as Kafir-e-Azam but he did not give in on principle. He refused to declare Ahmedis non-Muslims, arguing that he was no one to declare anyone who professes to be a Muslim to be a non-Muslim. Tragically, the state that calls him its founding father is today the only state in the world that not only has taken upon itself to define who is a not a Muslim but which forces its officially sanctioned Muslim citizens to sign off on a declaration that they consider Ahmedis non-Muslims. It is a matter of absolute shame that we have to sign off on statements like that in this day and age. But if only that was the case. In Pakistan, Ahmedis have been arrested for the ‘crime’ of reading the Quran and for saying salaam. The law of the land actively encourages bigotry and fanaticism, and condones persecution.
The 1973 Constitution also privileges a group of unelected ulema (clergy) to sit in judgment over laws passed by the National Assembly (NA), albeit in an advisory role. This institution is called the Council of Islamic Ideology (CII). Jinnah said, in February 1948, that “Pakistan will not be a theocracy to be run by priests with a divine mission.” Yet that is precisely what the CII is: a body that ensures Pakistan is a theocracy run by priests with a divine mission. There is absolutely no occasion for the existence of such an odious, anti-modern and reactionary body in any modern nation state. But then we are neither modern nor a nation state. Maulana Sherani, the current chief of the CII, recently announced that CII would soon be discussing whether Ahmedis are non-Muslims or whether they are apostates meaning whereby whether they can be tolerated or whether they should be killed off.
In the past, the ‘esteemed’ body also declared that girls under the age of 16 could be married off. In doing so they declared the Child Marriages Restraint Act 1929 as being un-Islamic. The irony here is that Jinnah was one of the strongest supporters of that law when it was passed in the Indian legislature. It was during the course of this debate in September 1929 that Jinnah said: “If my constituency is so backward as to disapprove of a measure like this then I say the clearest duty on my part would be to say to my constituency, ‘you had better ask somebody else to represent you’.” Then we come to the blasphemy law. When Section 295-A to the Indian Penal Code (now the Pakistan Penal Code) was being passed in 1927, Jinnah made it clear that bona fide academic criticisms of religion would be protected. Little did he know that Pakistan would actually go on to enact 295-B and 295-C in the same law, which have become readily available tools for silencing any academic debate over religion in Pakistan.
I have just scraped the tip of the iceberg. To detail every instance of where Pakistan has acted against Jinnah’s ideas would require an entire book. Why then do we insist on inflicting on him the epithet of “founding father of Pakistan”? The Pakistan he founded ceased to exist the day the majority of Pakistan walked out and formed Bangladesh. This new Pakistan’s founding fathers are Zulfikar Ali Bhutto, Maulana Maududi, Mufti Mahmood and General Ziaul Haq. This motley crew has forever damned Pakistan to hell. Of course, there is no doubt in my mind that after Pakistan has been humiliated enough internationally for its morally untenable practices, it will have to revert to the sort of state Jinnah wanted but that is still far off in the future. Perhaps some of us will live long enough to see that day.