ISLAMABAD: A Supreme Court judge pointed out the dangers of upholding sectarianism if the court were to interpret legal issues in light of the Constitution as it exists today, as opposed to its original form, which did not contain the word ‘sect’.

“Sectarianism is a curse,” said Justice Qazi Faez Isa, a member of the 17-judge full court of the Supreme Court headed by Chief Justice Nasir-ul-Mulk that is hearing challenges to the 18th and 21st amendment.

“If we [institutionalise] sectarianism, we will die at the hands of our own. This is what we have been witnessing in the Muslim world today as well,” Justice Isa deplored.

Take a look: SC judge says Constitution has concept of basic structure

The judge’s observations came against the backdrop of an explanation of Article 227 of the Constitution, added through the third amendment under Presidential Order 14 of 1980. The explanation suggested the application of the personal law of any Muslim sect to adherents of that faith, saying that the expression “Quran and Sunnah” will mean the Holy Quran and Sunnah as interpreted by that particular sect.

“If the government wants to abolish sectarianism, it would have to revert to the original Constitution,” Justice Isa emphasised.

Concurring with the observation, Justice Jawwad S. Khawaja recalled that the explanation of the word ‘sect’ was not part of the original 1973 constitution, but was added later by a military dictator, a reference to General Ziaul Haq.

The discussion began when, during the proceedings, Justice Ejaz Afzal shared his thoughts and equated the Objectives Resolution with the constitution’s preamble, which required Muslims to order their life in accordance with the principles of Islam, freedom, democracy and social justice. Justice Afzal also asked how the parliament could suspend the fundamental rights guaranteed by the Constitution through a constitutional amendment.

“You are talking about the Holy Quran and Sunnah, but here no two religious scholars will agree, but rather, will differ on the interpretation of Islamic provisions according to their own dogmas,” replied senior counsel Khalid Anwar, who represents the federal government.

In the last decade, a majority of Muslims were killed by Muslims and not by non-Muslims or on the basis of opposing theologies and/or religious beliefs, Mr Anwar said.

“Can the provisions of Article 2A, which makes the Objectives Resolution a substantive part of the Constitution, be deleted through a constitutional amendment,” Justice Saqib Nisar wondered.

“Why not,” was Mr Anwar’s counter question, who added that this change was introduced by a dictator.

Describing the 2000 Zafar Ali Shah case judgment as the single most shameful verdict in the history of Pakistan, Khalid Anwar regretted that the Supreme Court gifted a verdict to the military dictator when it allowed him to amend the Constitution without interfering with its basic structure, when this wasn’t even asked for by Sharifuddin Pirzada, who was defending the military government of Gen Pervez Musharraf at the time.

“This is a permanent stain on the Supreme Court, which should be rubbed out and deleted,” the counsel emphasised. He also regretted that the same judgment was then relied upon in subsequent judgments to reaffirm the salient features or basic structure theory.

At this, Justice Sheikh Azmat Saeed clarified that through the Zafar Ali Shah case, the court restrained the usurper from touching the salient features that even parliament cannot change.

But, Mr Anwar regretted, this had opened the door for future violations of the Constitution.

“Alas! We should have been careful while dealing with the Molvi Tameezuddin case, which brought disaster later,” Justice Nisar regretted, referring to the famous case where speaker of the National Assembly had challenged the dissolution of the assembly by then-Governor General Ghulam Mohammad in 1954. The federal court at the time, under Justice Mohammad Munir, had upheld the ouster of the assembly.

But Anwar deplored that the Zafar Ali Shah case was even worse than the Molvi Tameezuddin case.

If we accept that democracy is the only single feature of the Constitution, then what corrective mechanism will be left to the court if democracy was substituted with any other system through a constitutional amendment, Justice Khawaja wondered.

This prompted Mr Anwar to retort that the remedy will be available “in the streets”, recalling how even a popular leader like Zulfikar Ali Bhutto had to resign in the midst of widespread agitation.

“All remedies are not the responsibility of the Supreme Court. Let the people decide themselves,” he said.

Agreeing with this perspective, Justice Khosa observed that when the people defined the functions of each organ of the state such as the executive, legislature and the judiciary, they were also very clear in their minds that the judiciary had nothing to do with amending or striking down provisions of the Constitution.

Published in Dawn, May 21st, 2015

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