AN engagement with the Constitution of Pakistan is like being in love. It is never without anxiety. There is always a lingering concern. The fear of failure is constant. And if the forever falls apart, one never stops thinking of the what-ifs: what if a moment had been seized, a hesitation overcome, a turn avoided and a road taken? The momentary may have become permanent. The bleak, sublime. A life awry may have found a happy course. Yet, we are where we are. Yet again, we cannot stop wishing that it was different. Better.

It began well. In a little over seven years, one man, by the force of his personality, imposed his will on the politics of India, succeeded in creating a country and securing independence. It was a quick and unexpected happy ending. That in any event is the official story. Let us stick with that.

Like many such quick and happy endings, the troubles began almost immediately after. Many of these were foreseeable and measures perhaps could have been initiated to address them. But like in all such matters, those consumed by the pursuit of the ideal had little time for the mundane. There was perhaps also the realisation that sorting out the prosaic may unravel the poetry. And then there was the possibility that the inevitability of partition may force enough concessions, out of those opposed, to make it unnecessary. Whatever the reason, the attention to detail which the tedium of life thereafter inevitably entailed did not detain them.

That the very issues which made him seek partition would dog the state of Pakistan could not have been unobvious to the astute lawyer that Mohammad Ali Jinnah was. The genesis of his disagreement with Congress leaders, though eventually wrapped in a religious slogan to give it popular traction, was constitutional — not religious. He opposed the Nehru Report because it advised scrapping of separate electorates, encouraged vesting residuary powers with the Centre, favoured weaker provinces, and opposed weightage for minorities. He proposed a federal constitutional framework with a weak centre, residual legislative powers for the provinces and constitutional guarantees for the fundamental rights of minorities.

The state has progressively given way to right-wing obscurantists in a desperate bid to retain control. Makhdoom Ali Khan stresses that what was needed instead was an accommodation with regional nationalist forces.

The Fourteen Points articulated by Jinnah made constitutional demands. Half the points conspicuously made no reference to religion at all. The remaining half were also more constitutional than communal. Some of these had a religious tinge, no doubt. There were none, however, which could not be accommodated within a secular, federal, constitutional framework.

It was to rally his people and, provoked by challenges to his authority to speak for the Muslim community, that Jinnah later started moving away from this constitutional position. He began to argue that communal harmony could not be produced by a constitution or secured by courts. At the same time, it was no secret that the maximalist religious position was negotiable if minimum constitutional guarantees were provided.

As late as the arrival of the Cabinet Mission in 1946, he was prepared to trade the demand of a separate homeland for entrenched constitutional safeguards in a federation with a weak centre. When constitutional accord became impossible, the constitutional grounds were downplayed. Communal disharmony and religious antipathy were played up and partition along religious lines was justified.

With Pakistan, it should have been the end of the story of discord. It was not. It should have not come as a surprise that the nationalists in Pakistan would make constitutional demands for their provinces similar to those that Jinnah had made for the Muslim community and the protection of its language, culture and identity.

The Muslim League had not given much thought to post-partition constitutional issues. There was no blueprint of a constitutional design. The Government of India Act, 1935, with some changes had to serve the purpose. It was inadequate to accommodate nationalist concerns.

The immense popularity of Jinnah was not enough to contain nationalist sentiment even during the one year that he survived. With him gone, disagreements became more acute. The insistence of Jinnah to be the sole spokesman for all the Muslims of India was essential for the success of the Pakistan movement. His dynamism was magnified by the lack of qualities in the team around him. Now this lack of qualities became a serious liability. There was no one who could speak with similar authority.

The difficult task of nation-building fell in the hands of largely second-tier politicians. Some of them had no constituency in Pakistan. Their increasing reliance on the state services to push their agendas brought them into politics. These uninspired politicians and their bureaucratic surrogates were not up to the task of transforming a political movement into a functioning political party, translating ideals into structures of the state and creating a nation out of linguistically and culturally heterogeneous and geographically distanced nationalities.

Here was a country where the population of the Eastern wing outnumbered that of all four provinces in the West. The capital of the country, the seat of the Supreme Court, the principal civil secretariat, the General Headquarters, the centres of economic power and the elites who dominated these state apparatus and commercial enterprises were all in the less populous Western wing. The judiciary, the civil service, the armed forces had been a part of the colonial administration of control.

These difficulties and complexities raised enough issues to perplex the most acute constitutionalists. A broad national perspective was required to negotiate serious conflicts on the distribution of powers and the details of constitutional structure. The form of democratic government, the nature and extent of franchise, the character of the constitution, the division of legislative, executive and judicial authority and the safeguards for numerical minorities and economically and culturally disadvantaged people had to be worked out with a delicate touch.

The ruling elite chose just the opposite. In January 1949, the Public and Representative Office Disqualification Act (Proda) was introduced to disqualify troublesome politicians. To lend credibility to the process, judges were put in charge. It did not work. Instead, the public perception that these judicial orders served political ends tarnished the judicial image. An unending process of judicial embroilment in politics began. The Elected Bodies Disqualification Order (Ebdo) of General Ayub Khan followed suit.

The refusal to pursue politics of tolerating dissent and reaching accord through accommodation has its roots in the early days after independence. One of its many consequences is that political questions that are best resolved politically continue to dog the courts. These range from the dismissal of the Constituent Assembly in 1954, to the necessity of four military coups, dissolutions of parliament, declarations of emergency, the authority of the prime minister to bypass the Constitution and the validity of votes cast in the National Assembly on issues of critical importance.

Sir Ivor Jennings described the series of lengthy constitutional and legal disputes, which followed the 1954 dissolution of the Constituent Assembly by Governor-General Ghulam Mohammad, as “of interest not only to Pakistan but to any student of the fundamental principles of constitutional law”. That remains the case. These interesting questions are also deeply divisive.

Also requiring resolution was the relationship of state and religion. Whatever may have been the populist motivations of the elite, the people had been made to march to the beat of a religious drum. They could not simply be told that, with independence, the slogan had lost relevance. It did not have to be the defining theme of the constitution, but if a theocracy was to be avoided, a balance had to be found.

The solution of the post-Jinnah leadership was to elevate the slogan of the movement as an answer to complex constitutional questions. All nationalist, linguistic and cultural differences were to be subsumed in an Islamic state. In less than a year after Jinnah’s death and within two months of Proda, Prime Minister Liaquat Ali Khan had the Objectives Resolution tabled in the Constituent Assembly. There was no prior attempt to educate the public or to elicit public opinion. The prime minister left no doubt what it was intended to achieve.

The object was to “convert Pakistan into a laboratory where we could experiment upon the principles of Islam”. These provided a “panacea for the many diseases which have crept into the life of humanity today”. Democracy, freedom, tolerance and social justice were all embodied in the Quran and Sunnah. He also made no secret that he “advocated the suppression of provincial feelings”.

The fears of the minority, that the majority was proceeding to set up a theocracy where political debate would be stifled and minorities marginalised, were rejected. In Islam, he stated, the “question of theocracy simply does not arise”. He saw no difficulty in a “non-Muslim being the “head of an administration under a constitutional government”.

This set the tone. Religion occupied a central place in constitution-making. It also provided a convenient handle to reject nationalist sentiment. Being a Muslim meant being a member of one nation. The need for accommodation disappeared. The patriotic and religious credentials of those who made a demand for more authority for the provinces and a weaker centre were questioned. That this is exactly what Jinnah had sought before independence received no consideration.

The constitutional debates were protracted; the problems intractable. With the assassination of Liaquat and the appointment of Ghulam Mohammad as governor-general, a decline in the popularity of Muslim League and ascendance of bureaucracy in the affairs of the state, nationalist sentiment became even more difficult to contain.

The election results of 1954 in East Pakistan removed all doubts about the unpopularity of the League. The framing of the first Constitution in 1956 offered some hope for a return to democratic norms. Within a span of a little more than two years, the country saw four prime ministers.

The military coup of Gen Ayub Khan in 1958 brought a semblance of order. The deep fissures within the country were papered over. Neither the coup nor the constitution which followed did anything to address the issues that were tugging at the seams. The 1962 Constitution did away with direct elections and parliamentary form of government. It did not even seek to deal with the serious constitutional afflictions of the country.

The secular pretensions of Ayub Khan were put to an early test. It did not take him long to capitulate to the demand of the religious right. His constitution was suitably trimmed. Islam inserted. Once again, the moderate and enlightened principles of Islam were extolled. Once again, the interpretation of these principles was left to its most obscurantist followers. The old practice perfected by the British and continued after independence was perpetuated. To combat nationalist forces, the administration sought allies in religious leaders.

In 1970 and 1971, attempts to negate the popular mandate of the Awami League led to civil war. A common religion had not prevented the Arab revolt against the Turks in the first quarter of the 20th century. In its third quarter, the adhesive of Islam was not enough to keep the Bengalis glued to Pakistan. Nothing has been learnt from that experience. And, like in the past, religion is still proving insufficient to restrain nationalists demanding greater autonomy.

The hubris of the ruling elite that it can, by giving a minor concession, manipulate the orthodox has had significant consequences. As these concessions piled up, the constitutional scheme was slowly but fundamentally altered. The Objectives Resolution was inserted as a Preamble of every constitution. Liaquat’s interpretation of the resolution and his argument that a non-Muslim can be the head of the administration and a theocracy could not be established had no place in this scheme. All laws had to be vetted by a Council of Islamic Ideology.

For a while, the courts resisted the argument that the Objectives Resolution be regarded as the grundnorm of the Constitution and treated as its substantial part. All such pockets of resistance were swept away by the brutal dictatorship of Gen Ziaul Haq. The Objectives Resolution was made a substantive part of the Constitution and religious constitutional courts manned by ulema were established with authority to strike down any law they regarded as un-Islamic.

Proda and Ebdo were no longer necessary. A new model was found. A host of nebulous qualifications was now inserted in the name of Islam to oust troublemakers. They lay dormant for a while, but that was only a matter of time. In recent years, they have been repeatedly used to disqualify politicians for life and to oust a prime minister.

Islam, which was to be a source of guidance and moderation for democratic practices, now dominates the Constitution. All political debate on some of the most contentious issues of the day is stifled on religious grounds. Even filing an appeal to the Supreme Court against a decision of the Federal Shariat Court on a vital issue affecting the entire economic system is regarded as an act of sacrilege. Bhupindra Kumar Datta, of the opposition, speaking on the Objectives Resolution, had warned in 1949: “You bring in religion … you open the door again for resentment of criticism”.

For three quarters of a century, the ruling elite has ignored the progressive voices in the country. The old alliances forged by colonial administrators with ultra-conservative ulema have been further strengthened. Nationalist and progressive concerns ignored. The rulers, whoever they may be — from the first prime minister to the present, from Ghulam Mohammad to Gen Pervaiz Musharraf — have believed that by pandering to the religious right while retaining the levers of political control, they can marginalise the forces of change. By making religion the dominant constitutional theme, they can stifle criticism. They thought, in their hubris, that they can also simultaneously manipulate the ulema. The converse has proved true. Instead of being able to successfully outmanoeuvre the conservatives, they have ended up being outmanoeuvred by them.

Political, legal and constitutional control has been ceded to the religious right. It has reduced the space for a tolerant politics and neutral constitutional processes. The politicians who expatiated about clearing the constitution of military encroachments through the 18th and 19th Amendments could not even repeal the wide-ranging incursions of Zia in the name of Islamisation.

Writing about constitutional development in Pakistan almost 60 years ago, G.W. Chowdhury, an otherwise astute observer of the constitutional landscape, wrote: “The issue between state and religion, although a dominating theme until 1954, is no longer a very active issue in Pakistani politics. By 1956, it was losing its momentum and by the 1960s, it had become an academic exercise”. He was wrong. We have seen worse. All that anyone in doubt needs to do is to only glance at the newspapers of the last couple of months.

He was right, however, that Pakistan is “a laboratory for constitutional experiments”. One may add: failed constitutional experiments, which we continue to repeat with similar results. After 75 years, it is perhaps time to experiment anew. A little attention to regional demands, some accommodation with nationalist forces, a bit of respect for provincial autonomy and a distancing from the obscurantists may yet produce the elusive commonwealth that we have so far denied to ourselves.

The writer is a former Attorney-General of Pakistan and is a distinguished lawyer.