Daily Times

Present Queen Elizabeth was the last monarch of Pakistan. Her reign as the Queen of Pakistan started on 2 June 1953 and ended on 23 March 1956. Pakistan shed its dominion status on that date and became a republic by promulgating the first republican constitution. Under this constitution Pakistan was declared an Islamic Republic, as it is today, but when it came to the role of Islam in state, the 1956 Constitution was considerably different from the 1973 Constitution. There was obviously the fact that the office of the Prime Minister was open to all citizens of Pakistan with only the office of the President being reserved for Muslims.

Apologists for the blatantly theocratic nature of the 1973 Constitution dismiss this by saying that 1956 Constitution vested all executive authority in the president and therefore the 1973 Constitution did not make a change by closing the door on religious minorities vis a vis the Prime Minister. This is an erroneous view. The language used in 1956 Constitution was similar to the Indian Constitution. The president had to operate on advice and that was the case in the two odd years of operation of the constitution before President Iskandar Mirza mounted a coup against the same constitution by abrogating it (something he was not empowered to do). It was patently obvious when Iskandar Mirza’sfavouriteprime minister Muhammad Alilost the vote of no-confidence and H S Suhrawardy, the leader of the Awami League, formed the government.

The most extraordinary difference is the fundamental right of freedom of speech and expression i.e. Article 8 of the 1956 Constitution and Article 19 of the 1973 Constitution

Suhrawardy was an exceptionally strong Prime Minister who ultimately had to resign after he lost the leadership of his own party due to his pro-US stand in international politics. While President Iskandar Mirza unconstitutionally meddled in party politics, the charge that 1956 Constitution was not sufficiently parliamentary is not borne by fact. Suhrawardy was possibly the finest Prime Minister Pakistan had and his departure laid the foundations of what came next in form of the coup against constitutional government. It was Iskandar Mirza’s antipathy towards the parliamentary nature of the 1956 Constitution that forced him to do away with the whole thing, laying the foundation for Ayub’s dictatorship.

There are other very important aspects of the 1956 Constitution versus 1973 Constitution that are overlooked. The 1956 Constitution did not have a state religion because it was reckoned that states don’t have state religions, individuals do. The word Islamic appears on two occasions in the document, once in the preamble (which was the Objectives’ Resolution) where it states: “Whereas the Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah, declared thatPakistan would be a democratic State based on Islamic principles of social justice” and the second when it states in Article 1: “Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan,and is hereinafter referred to as Pakistan.” Interestingly the statement that the founder Pakistan declared that Pakistan would be a democratic state based on Islamic principles of social justice was not in the Objectives’ Resolution as it was annexed in 1984 to the Constitution.

This point has not been highlighted by any scholar of Pakistan’s constitutional history even though it was significant enough for both 1973 Constituent Assembly to change its location within the preamble and for General Zia in 1984 to erase this reference to Jinnah altogether in the substantive form. So this reference exists as an afterthought in the preamble with the words “faithful to” as opposed to “whereas”. It is high time constitutional scholars addressed this disparity between the original Objectives’ Resolution and how it occurs under our constitution today both as preamble and substantive part.

There are three other major differences between the two constitutions that are jarring. The oaths of office under the 1956 Constitution were devoid of religious content. Even the President of Pakistan, who had to be Muslim, did not have an oath affirming or swearing that he was a Muslim. The oaths were completely secular and there was no reference to God or deity in line with Jinnah’s famous amendment taking out reference to God. There was a provision that allowed an office holder to either affirm or swear. As I wrote in my article “Jinnah’s oath”, Jinnah had changed the word “swear” to “affirm” in the original oaths of office. The significance of that change is obvious to lawyers. Strikingly none of the oaths of office had any reference to any Islamic Ideology. Many members of the constituent assembly that framed the 1956 Constitution had been part of the Pakistan Movement. It seems that they were not aware of the Islamic ideology that the 1973 Constitution so vehemently makes part of the oaths of office.

The 1956 Constitution like the 1973 Constitution had a repugnancy clause i.e. no laws could be made repugnant to Islamic injunctions. The final arbiter of this was the legislature as it seemingly was under the original 1973 Constitution which after the Zia regime introduced the Federal Shariat Court to sit in judgment over the legislature’s wisdom on Islamic injunctions. Under the 1956 Constitution was to be an advisory organisation for Islamic research the expenses of which were to be defrayed through a special tax to be imposed on Muslims and not Non-Muslims. Under the 1973 Constitution the Council of Islamic Ideology has assumed permanence and its expenses are borne by all citizens of Pakistan, Muslims and Non-Muslims alike.

The most extraordinary difference is the fundamental right of freedom of speech and expression i.e. Article 8 of the 1956 Constitution and Article 19 of the 1973 Constitution. There is no exception on the basis of glory of Islam under 1956 Constitution. That novelty was introduced by the 1973 Constitution. A law such as 295 B or C or 298 B or C could not have been legally sustained under the 1956 Constitution.

1956 Constitution, framed close to the founding of Pakistan, thus balanced the needs of a modern democratic state cognizant of its Non-Muslim minorities with those of its Muslim majority in a rather elegant way. The 1973 Constitution instrumentalised Muslim majoritarian tendencies and turned Pakistan into a theocracy. Too much water has passed under the bridge to reverse the theocratic nature of the state we live in but it is important to remember that there were other ways of going about balancing state and religion.

The writer is an Advocate of the High Courts of Pakistan