The constitution of a country sets a broad framework in which to make laws, rules and regulations to organise the life of the people, at both the collective and the individual levels. The tone of a constitution defines how a country views its past, determines its present and envisions its future.

In Pakistan’s case, the constitution introduced on August 14, 1973 – and amended on many occasions afterwards – sees the country as born out of an Islamic separatist ideology. It defines the present state of society as a community of the faithful and envisions a religious state for the future where religious laws override everything else.

Many critics have pointed out that this constitutional framework is neither truly democratic, because it denies many rights to non-Muslim Pakistanis, nor is it genuinely federal since it sees religion as the glue for national unity among diverse ethnic and linguistic groups who have a history of conflict among each other.

To reflect on these issues, the Herald invited Asad Jamal, a Lahore High Court lawyer, legal researcher and human rights activist, and Maryam Shahid Khan, a Lahore-based educator and an independent expert on constitution, law and politics.

Left to right: Asad Jamal and Maryam Shahid Khan

Q: A constitution is a country’s set of guiding principles. How detailed or specific should these principles be and how does the level of detail affect the subsequent lawmaking process?

Maryam Shahid Khan: This is a fundamental question that is often implicit in debates about constitutionalism but is seldom addressed directly. In historical terms, the earliest constitutions, such as the constitution of the United States, are fairly simple and bare documents.

However, there is a rich constitutional jurisprudence that has emerged from them over time. Much depends on the interpretative focus and the overall political and social norms of a society. Post-colonial countries have much more detailed constitutions and seek to define, in elaborate terms, principles of policy and fundamental rights, as well as the structure of government. India’s constitution, if I am not wrong, is one of the longest in the world. But that is not a panacea for constitutional roadblocks.

What we really need to focus on is developing “constitutional” norms which are ultimately a function of the way we view and structure politics.

The bodies that will ultimately interpret and apply the constitution are the legislature, the executive and the judiciary. What are the broader incentives and systemic forces and norms that dictate the strategic and principled reading of a constitutional text by these bodies? Ultimately, I think, this is the real question.

Asad Jamal: If a constitution is supposed to provide ‘guiding principles’ then these should be framed in a language which makes them practicable. I think, more than providing guiding principles, a constitution is supposed to provide a framework for the institutions of the state.

Simultaneously, a constitution is also supposed to reflect the common vision of the polity.

Now, the length of a constitution is immaterial so far as these fundamental roles are concerned. It seems to me that the Indian constitution’s size would not have mattered if it were to provide a flexible framework. But then one may criticise it for providing an excessively centralised institutional framework which a student of constitutions may find questionable in today’s world.

So far as the vision of the polity is concerned, Pakistan’s constitution – as it reads today – seems to reflect the frame of mind of the movement for the creation of Pakistan and is ideology-ridden.

There are too many ideological details in the constitution which have made it an impracticable document. The constitution makes a workable criminal law framework next to impossible. I would say a constitution should be short on ideology and long on adaptability.

Q: Are the provisions of a country’s constitution meant to reflect the views of the majority of its people? If so, what if these views go against fundamental human rights?

Khan: A constitution’s objective is not to reinforce the majority viewpoint. Constitutionalism, by its very definition, means a broad-based consensual understanding of rights, liabilities and structural relations between the state and its citizens.

If a constitution exclusively reflects a majority’s viewpoint, then it is simply a majoritarian reinforcement of its hegemony over minority views.

Fundamental rights, in principle, are meant to protect – and, at times, actively promote – the rights and views of the minorities. This is why the constitution-making process is so important. It must be able to bring together multiple and diverse views and enshrine them as equally legitimate.

A constitution would be unviable if it protects views which directly affront this pluralistic idea of constitutionalism.

Jamal: A just constitution cannot be discriminatory but that is exactly the case with our Constitution. The Islamic nature of the state as prescribed in Pakistan’s constitution puts a ‘majority’ on a higher pedestal of citizenship.

A constitution is supposed to play two important roles, as has been pointed out by Hanna Lerner an expert of constitutional law and others.

The first role is institutional and the second is foundational. The former includes the setting up of legal and political structures for state institutions including legal checks on the powers of these institutions, as well as procedures for legislation — that is to say, constitutions create and define rules according to which a state works.

In democratic societies, constitutions must also enjoy legitimacy — they should be accepted by the very people in whose name they are created. Constitutions must also express the common vision of the polity. This is the foundational function of the constitution. Any constitution falling short on these two roles could be problematic.

Then President Iskander Mirza declares martial law on October 7, 1958, abrogating the Constitution

Q: Many amendments have been made to the 1973 Constitution. Which among these do you view as improvements and which have hindered the progress of the country as a federal republic?

Jamal: Broadly speaking, even though the 18th Amendment is the best thing to have happened to the Constitution, it still has many flaws.

There is a list of questionable changes such as the 2nd Amendment and all the amendments during General Ziaul Haq’s period. On the whole, the Constitution remains a terribly problematic document.

There are question marks on the way legal and political structures of state institutions – including legal checks on the powers of such institutions – are prescribed. For example, a question that no one ever seems to ask is why the Senate is not given any power for financial legislation?

Khan: I agree that the 18th Constitutional Amendment is, generally speaking, a positive accomplishment. What it was trying to achieve was tremendous — a cross-party consensus on constitutional contentions at a time when civilian politics had entered the scene after a decade of military rule.

What’s problematic about the Constitution] are issues related to religious and ethnic minorities, the notion of an Islamic state and the redundancy and complication of a parallel Shariat court structure.

The persistence of a centralised apex court within a federalised political structure, particularly in the context of a Supreme Court with institutionalised powers of paternalism over the political process, presidential powers of ordinance-making and the paucity of parliamentary legislation are other flaws in the Constitution.

Q: The Constitution of Pakistan is criticised by some for not being truly democratic since it denies many rights to non-Muslim Pakistanis. What amendments are required to change this?

Jamal:Our constitution guarantees religious freedom but simultaneously, through the Second Amendment, we paved the way for discrimination and religious intolerance towards Ahmadis.

The Constitution says that a non-Muslim cannot be elected prime minister and/or president. Why do we need to have such a provision? Are we afraid of the minorities or are we scared of ourselves?

Khan: There are certain things in the Constitution – like the definition of a Muslim and the deligitimisation of the Ahmadis – that must be overturned. But, in order to bring these changes about, there will have to be a broader consensus across political parties both on the question of minorities and also on the question of what we mean by an ‘Islamic state’.

Just pushing through a constitutional amendment (which in itself seems like an insurmountable task at the moment) will not resolve these issues. The judiciary may continue interpreting minority rights according to the pre-amendment jurisprudence, as has happened before.

There is no shortcut available to changing the normative framework of a society through politics. A constitutional amendment is a significant symbolic gesture, but it is not enough.

Q: Can the Constitution of Pakistan be secularised? Should it be secularised?

Khan: I believe that there is no room in a multinational society such as Pakistan for a dominant religious ideology that dictates through laws and legal structures on the pretext that the country came into being on the basis of that religious ideology or that the majority favours its overarching use in regulating the entire population’s existence.

In my mind, the question is: Do we want constitutionalism or majoritarianism? The two are not reconcilable. An ‘Islamic State’ in a ‘constitutional’ framework is an oxymoron but that does not mean that we have a ‘secular’ constitution in the sense of French secularism, for instance. It does not mean the state bans head scarves or other symbols in the public sphere of religious beliefs and practices.

It means keeping the political sphere open for political competition and debate. The state should not have the power to intervene in people’s lives on the basis of religion because that intervention then becomes religious discrimination.

Jamal: In order to answer this question we need to honestly ask ourselves: Has an overly religious constitution helped us or created problems for the state and the society? I think our experience has amply shown that the constitution has to be a worldly document.

Q: What is the status of regions such as Gilgit-Baltistan and the Federally Administered Tribal Areas (Fata) under the Constitution of Pakistan?

Jamal: Structurally speaking, our Constitution gives a lesser status to ‘smaller’ provinces and is discriminatory toward regions such as Fata and Gilgit-Baltistan. The federal government runs these regions as it pleases.

Khan: Gilgit-Baltistan, in principle, has been given a provincial status but I don’t believe that has been operationalised in terms of political participation in national politics. As for Fata, some legal reform is in the pipeline but it does not seem to be a priority. Now with the North Waziristan operation in full swing, it is unlikely that Fata’s status will change any time soon.

Q: What steps can be taken towards reforming the Constitution?

Khan: One major issue that does not receive sufficient attention in discussions on constitutionalism is the question of tax structures and how they are linked to foreign aid and indebtedness. It is absolutely fundamental that we as a nation address this issue as one that impinges deeply on the relationship between state and society.

Taxation goes to the very root of our consent to be part of a civil society. If we continue to have unconscionable tax structures that are structured only under pressure from international financial institutions, then the governing elite will never have the right incentives to ‘uphold’ the constitution.

Jamal: The Constitution needs to do away with many existing powers given to the federal government and parliament which allow interference in provincial and regional domains. We also need to rethink institutional checks and balances. Currently, there are no effective checks on the executive.

We need to also think about what role and status that the provinces other than Punjab enjoy, in the current scheme which allows Punjab to easily dominate. The Senate needs to be given more effective powers especially in matters of the federation.

This is an indicative, not an exhaustive, list. On the other hand, we need to get rid of institutions like the Federal Shariat Court, Shariat benches and the Council of Islamic Ideology as well as all the constitutional provisions which are discriminatory toward any community, group of people or even an individual. The list goes on.

Rabia Ahmed: Why do we need a constitution at all? England doesn’t have one and its laws and governance are constantly improving.

Khan: The traditional ‘unwritten’ British constitution is quite peculiar and stands out among all other historical examples of constitutionalism. Ironically, Britain is the birthplace of the notion of “constitutionalism”.

The British constitutional system took root in an environment which was fairly homogeneous. Today’s states are a lot more multinational and heterogeneous.

Salman Mirza: Would you agree that the issue is not rewriting the constitution but upholding it?

Khan: Constitutional change is inevitable and also highly symbolic given our political history of extra-constitutional takeovers of power. At the same time, I wholeheartedly agree that unless the constitution is elevated to a set of norms, or the rules of the game as some scholars call them, that are accepted and respected by the people and institutions as legitimate, the constitutional document itself is just that — a document. So, both processes – rewriting and upholding – need to go hand in hand.

Jamal: As pointed out earlier, any constitution which discriminates against ethnic, religious and other minorities cannot suffice. We do need to change it. I am not suggesting that it must be changed overnight. That is not possible because ours is a deeply divided society but we need to discuss and debate the problems. Perhaps, we can incrementally improve the Constitution and make it more acceptable for everyone in the country.