ONE of the refreshing features of the minority judgments in the Supreme Court verdict on challenges to the 18th and 21st amendments is the recognition of the role that dissent can play in the development of constitutional and judicial norms in Pakistan.

While discussing the changes made in the Objectives Resolution before its adoption as the preamble to the Constitution of 1973, Justice Jawwad S. Khawaja has paid a tribute to Prof Raj Kumar Chakravarty, whose attempt to put the people higher than the state failed in 1949 and succeeded in 1973. (Chakravarty was a member of the Pakistan National Congress party which was largely based in East Pakistan.)

The Objectives Resolution of 1949 had talked of Allah Almighty having delegated His authority to the state. Chakravarty suggested that the delegate of God’s authority should be the people and not the state.

Justice Khawaja has quoted Chakravarty as arguing: “First come people and then the state… a state is formed by the people, guided by the people and controlled by the people.” The professor took exception to the text of the Objectives Resolution as it meant that “once a state comes into existence it becomes all-in-all; it is supreme, quite supreme over the people…” He argued that the state had to be responsive to the public opinion and to the public demand but the resolution implied that the state need not meet these criteria.

In Pakistan it is common to denounce the slightest dissent from a state policy as treason.

Justice Khawaja concludes that though Chakravarty’s words were not heeded in 1949, the authors of the 1973 Constitution accepted his point of view and declared that God had delegated His authority to the people and also asserted that a new order was being established by the will of the people. Thus, in Justice Khawaja’s view the “Preamble can, in its existing form, be seen as the embodiment of the nation’s social contract in outline”.

The argument of the learned judge — now retired — should lead to a discussion on quite a few points. How will Chakravarty’s romantic view of the state be reconciled with the basic reality that the state is a mechanism for coercing the masses into yielding to the dictates of a privileged class even when it pays lip service to the idea of the people being higher than the state? But for a people who are worried about the state becoming more and more tyrannical, Chakravarty’s plea is like an elixir of life.

However, at the moment we are concerned with the fact that it is not impossible in Pakistan to accept a dissenting view quite some time after its rejection. Chakravarty’s argument places him by the side of the MNA, K. Dutta, who had pleaded against the adoption of the Objectives Resolution by warning the assembly of the possible rise of a ruler who might justify his regime as divinely ordained. And the prophecy came true.

Justice Khawaja has also hailed retired Justice Cornelius for his views in the note of dissent in the Maulvi Tamizuddin Khan case. But this conforms to the public verdict in favour of Cornelius soon after the infamous majority decision was announced.

In the same case, Justice Saqib Nisar has praised the dissenting SC judges of 1999. Referring to Zafar Ali Shah v Pervez Musharraf, he has said: “…the question before the court was about the validity of the military takeover, which was upheld on the basis of the discredited doctrine of state necessity which admittedly carries no credibility whatsoever at present [emphasis added]. However, amazingly, after upholding the validity of military takeover — which is all that the case was about — this court went on to confer power (which it did not enjoy itself) on the Army Chief to single-handedly and unilaterally carry out constitutional amendments…The Bench hearing this case consisted of twelve judges (headed by Irshad Hasan Khan, CJ, and included Iftikhar Muhammad Chaudhry, J (as he then was). All twelve judges had taken an oath under a PCO. The five senior judges who had declined to take the oath had resigned and left judicial office earlier to their everlasting credit — they had kept the honour of the institution alive.”

While it is good that the defiance by the five magnificent judges (including the CJ) of a military dictator has been hailed in an SC judgment, one is reminded of the case of Nusrat Bhutto v the Chief of Army Staff. Nusrat Bhutto’s petition was dismissed for lack of jurisdiction and, amazingly enough, relief was granted to the defendant — he was given the power to amend the Constitution. While in the Zafar Ali case this extraordinary power was granted to Gen Musharraf out of respect for his objectives, in the Nusrat Bhutto case the court had faced Gen Ziaul Haq’s threat that he could find a new CJP.

Dissent, ranging from a minor difference of opinion to presentation of alternatives to formulations determined by conventional wisdom, plays an important part in the evolution of people’s thought. After all, respect for dissent only means acceptance of the possibility that the traditional way of looking at things could do wrong.

The West gained a lot by rehabilitating Socrates and Galileo after punishing them for dissent. On the other hand, the Muslims drove Ibn Rushd and Ibn Arabi into the wilderness and ended up by closing the door to ijtihad. In Pakistan it is common to denounce the slightest dissent from a state policy as treason and any call to reinterpret Islam as unforgivable heresy. Intolerance of dissent in our country has taken the form of murderous violence against minority sects and even denial of the sacrifice of the supreme standard bearer of dissent — Imam Husain.

Those who respect dissent can find a way out of any crisis caused by bondage to tradition. That is the essence of Iqbal’s plea for reconstruction of religious thought. Thus, let the streams of dissent flow unobstructed.

Published in Dawn, September 10th, 2015

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