Daily Times

One of the things I realised very early on during my college days in the USA was the emphasis US places on the vision of the founding fathers of that country. At the historic New Brunswick campus of my alma mater in New Jersey, one would find plaques and stones with inscriptions of great historical events that took place there. For example on the College Avenue campus, there was a stone commemorating Alexander Hamilton’s attack across the Raritan river that flows next to the campus. It was an awakening that attracted me to finding out more about Pakistan’s founders and their vision, leading me to a discovery of Jinnah,in the historic Alexander Library, who I had till then known very little about other than the few basics I had learnt from Pakistan Studies.

For emphasizing his vision, I have routinely been mocked by certain sections of our own society. This is not the case in the US, where James Madison and Alexander Hamilton have routinely been invoked in the recent impeachment proceedings and the Senate trial of President Trump. From Nancy Pelosi to Adam Schiff, all Democrats have continuously referred to the founding fathers and what they meant when they wrote down the US Constitution, which was a remarkable document. Perhaps the greatest Constitutional scholar today is Noah Feldman of Harvard Law School, whose class on the First Amendment I was privileged to audit during my stint as a visiting fellow there. Amongst Noah Feldman’s best works is his book on James Madison. During this current impeachment trial, Feldman has made many appearances on the media as well as before the House Judiciary Committee where he has spoken in detail about the vision of James Madison, while explaining the scope and meaning of High Crimes and Misdemeanors as it occurs in Article 2 subsection 4 of the US Constitution. The reason I bring it up is because there is hardly any debate on these issues vis a vis Pakistan’s founding fathers, and yes there were more than one. It is true that very early on through the Objectives’ Resolution passed six months after Jinnah’s demise, most of the founding fathers broke away from Jinnah’s decidedly and unambiguous secular vision expressed in his only speech to the Constituent Assembly on 11 August 1947. However despite that their vision was inclusive and democratic.

Above and beyond this there may have been special safeguards for minorities with a sunset clause till the time that minorities would be fully integrated in the Pakistani nation and there were no more religious distinction

The men and women who followed Jinnah immediately after his demise were themselves of great substance. There was Sir Zafrullah Khan, an international jurist, first-rate barrister and one of the framers of the United Nations Human Rights Declaration. Zafrullah Khan’s famous memorandum had also formed the basis of Lahore Resolution of 1940. Then there was Hussain Shaheed Suhrawardy another great Barrister and seasoned politician with secular views. There was Jogindranath Mandal, the law minister and the first presiding officer of the legislature, who unfortunately had been forced out of Pakistan but was still essential in the first three years of the working of the Constituent Assembly. There was Mahmud Ali, a veteran of the Pakistan Movement and the founder of Pakistan’s only purely secular party called Ganatantri Dal.

Then there were women like Begum ShaistaIkramullah and Begum Jahanara Shahnawaz who had a progressive and secular ethos and who were feminists before the term became popular. On the other side of aisle there was Bacha Khan the great Pushtun leader and men like Kiran Shankar Roy. They disagreed with each other vehemently and the early Constituent Assembly debates found on National Assembly’s website make for great reading for those interested in the Constitutional and Parliamentary history of Pakistan.

It is a heritage that is little explored or debated. One of the reasons is that once this Constituent Assembly had framed a constitution in 1954, it was summarily packed off by the third Governor General Ghulam Muhammad and the constitution was shelved.

Since this constitution has never seen the light of day and remains classified, we have never had the kind of robust debate that one sees in the US or India over the nature of the constitution framed by that first generation of leaders. One can only guess what the Constitution would have looked like from the debates. It was likely a constitution that sought to reconcile a modern democratic state with Islam; hence it was probably not a secular constitution in letter. It likely followed the British model which gave a nod to certain religious character at the very top but still not theocratic.

Another thing that is certain that the office of the Prime Minister as the head of government would have been open to all citizens of Pakistan. Following the British example, the office of the head of state might have been limited to Muslims (though it is not certain if we go by Liaquat Ali Khan’s speech on 12 March 1949 which promises otherwise) but the power would have rested with the Prime Minister who as I have mentioned could have any citizen of Pakistan. It probably had a repugnancy clause, i.e. no legislation contrary to Quran or Sunnah, but there was probably no body equivalent to the Council of Islamic Ideology. Instead the elected Parliament of the people of Pakistan, including its religious minorities, were to decide of what was and was not in conformity with the spirit of Islam and the secular superior judiciary the ultimate arbiters.

Amongst fundamental rights, a guarantee would have been given for complete equality for all citizens as well as unfettered religious freedom. Above and beyond this there may have been special safeguards for minorities with a sunset clause till the time that minorities would be fully integrated in the Pakistani nation and there were no more religious distinctions. Fundamental rights such as freedoms of expression (without claw backs), association and religion would be safeguarded through the five writs, Mandamus, Quo Warranto, Prohibition, Certiorari and Habeas Corpus. This we know because these were added to Government of India Act 1935 in 1954 leading to the knee jerk by the third Governor General.

Most importantly there was probably no state religion – this we gather from the fact that the 1956 and 1962 constitutions did not have a state religion. A K Brohi’s treatise “The Fundamental Law of Pakistan” explains why a modern state could not have had a state religion. The key fundamental question would have been the East Pakistan and West Pakistan wings. Given that the Bogra formula and then the One Unit came after the 1954 dissolution, it is clear to me that the draft constitution would have been a federation of five provinces with a bicameral legislature, with the lower house having an East Pakistan majority and upper house having equal representation for all provinces thus giving West Pakistan a majority.

You can call this a non-theocratic constitution of a Muslim state or a kinder gentler theocracy than we have today. Either way it would have been infinitely better than the constitution today.

Well we shall never know unless some government does the principled thing and de-classify the draft constitution of 1954. Unlikely that the vested interests will ever allow it.

The writer is an Advocate of the High Courts of Pakistan