Islam and Pakistan’s Political Culture

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Islam and Pakistan’s Political Culture Page 26

by Farhan Mujahid Chak


  Khan’s government set a precedent in key growth areas and expanded the

  education levels of the whole country.67 Even a staunch critic like Mahmud recognized Khan’s accomplishments. ‘Nevertheless, the new order did enjoy

  political stability and high economic growth for a few years. This prompted

  commentators to hail Pakistan as a model of political and economic

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  Islam and Pakistan’s Political Culture

  development for newly independent states. But, that was not enough. Persistent

  demands for representation, fundamental rights, and democracy continued,

  erupting into a popular mass movement by fall of 1968’. 68 Added to this was the growing ‘traditionalist’ resentment at Ayub Khan for his secular lifestyle,

  making polygamy illegal and expanding women’s rights with respect to

  divorce.69 Resultantly, traditionalists capitalized on cementing his image as unrepresentative of the people’s values and rioting became widespread.

  In response to the ongoing protests, rather than negotiate, strong-arm tactics

  were employed to eradicate myopic politics. General Ayub had little time to

  waste on compromises and conversation, viewing partisan politics as Pakistan’s

  main evil. Even to this day, political parties are seen as unrepresentative of

  the people and operate as ‘families’, with little concern for the well-being of the

  masses.70 Nevertheless, banning them outright was surely not the solution.

  Through the Political Party Act, all political parties became illegal. In parti-

  cular, this authoritarian decision was directed at the traditionalists in the

  Jamaat-i-Islami, and resulted in the pivotal ‘Maudoodi case’.71 This tenacious legal edifice was unable to withstand the various constitutional cases that

  were filed against this act. By infringing on the freedom of association, the

  military overstepped its powers. In its verdict, the Supreme Court, presided over

  by Chief Justice Cornelius, declared the Political Party Act was a violation of

  appellant rights by unfairly curbing freedom of association. Interestingly,

  Justice Cornelius was the first Catholic to head the Supreme Court of Pakistan

  who protected the rights of a ‘traditionalist’ political party with the self-

  declared aims of limiting political power minorities could hold. Khan states

  that ‘this judgement is one of the most important ones in the constitutional

  law of Pakistan upholding the fundamental right of freedom of association. It

  gave protection to the political parties against the government that was using

  its power arbitrarily to ban them and stifle their activities’.72

  Following that judgement, the government’s ability to suppress rioting was

  limited. Powerful political protests, organized by the Jamaat-i-Islami, rocked

  the country, demanding ‘Islam’ – without specifying what that meant. Conflict

  between the traditionalists and the secularists was exacerbating political

  instability, with the former demanding the resignation of the secularist General

  Ayub Khan. This precarious situation was further inflamed by growing dis-

  satisfaction with the concentration of wealth in the hands of a few, rising

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  student protests, and political rallies that were culminating in harsh government

  repression.73 Collectively, this led to a total breakdown.

  By 1968, a total of 45 politicians had been incarcerated.74 And, as repression increased, so did opposition to Ayub Khan’s leadership, who had this

  to say:

  my system unfortunately broke down at the pyramid level. When the

  Provincial and Central Assemblies were formed and if they could run

  politics without the party system, it could have worked. But unfortunately

  it is not possible. I was perhaps trying to lay down rules for a game,

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  which is too old now to change its rules. But I wish to God they had

  listened to me.75

  Notwithstanding his sincerity, his inability to lead was a consequence of his

  distance from his people. And rather than blame partisan politics, ideology is

  a prime factor motivating each toward their agenda. By virtue of there being

  no agreeable, coherent ideology guiding the political parties, they clash. Finally,

  political parties, especially the Jamaat-i-Islami, cooperated with elements of

  the military to coerce Ayub Khan to relinquish power.

  The political vacuum that erupted with Ayub’s resignation created

  chaos throughout both wings of Pakistan. Of particular importance was the

  threatening political climate in East Pakistan. With the future uncertain, the

  traditionalists began fearing a communist takeover in East Pakistan and

  organized several processions to warn the population. ‘The leader of the

  Jamaat-i-Islami, Mawlana Maudoodi, said the “tongues of those who speak

  of communism will be torn out.” In response, Bhashani, a secularist Bengali,

  said, “the house of religious fanatics will be burned”’.76 Clearly, both the traditionalists and secularists were creating confusion and havoc throughout

  the country with antagonistic jingoism. At this point, the Army Chief General

  Yahya Khan was in power and immediately placed the country under martial

  law. He announced the abrogation of the constitution and dissolved the

  National Assembly.77 Soon thereafter, General Yahya Khan prepared for new elections.

  The 1970 Elections and the Rise of Zulfiqar Bhutto

  The 1970 elections were the first in Pakistan to be conducted on the basis of

  universal adult franchise, and were generally regarded as fair, free and with-

  out violence.78 The results of the election were indisputable. No party won significant representation outside their geographical origins and this state of

  affairs continues today. ‘In West Pakistan, the People’s Party of Pakistan led

  by Zulfiqar Ali Bhutto had won the majority with 81 seats. In East Pakistan,

  Mujibur Rahman of the Awami League had guaranteed all but one seat for a

  total of 151’.79 Clearly, the Awami League had the official mandate to form the next government, but the political and military leadership in West Pakistan

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  was unwilling to concede power. There was a continuous postponement of

  reconvening the National Assembly, which, eventually, led to constitutional

  breakdown. Here Mahmud places sole culpability on the army,80 while Newberg suggests that both the army and Bhutto were responsible. By the writ of

  the law, the Awami League and Mujibur Rahman should have controlled the

  central government, but neither Bhutto nor the military were willing to concede

  without a fight.81 Khan claims, persuasively, that Bhutto recognized the futility of Pakistan’s current geography and aspired to be the sole leader of West

  Pakistan.82 Jennings, too, argues that it is clear that Bhutto did not want to relinquish control of the country and his selfishness led to civil war.83

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  Following his electoral victory, Mujibur Rahman and the Awami League

  emphasized the infamous ‘Six Points’ – which aimed for maximum autonomy,

  a paramilitary force based in Dacca and a certain level of financial indepen-

  dence for East Pakistan.84 Tragically, these points,
many of which were legitimate, were dismissed outright by many political and military elites in West

  Pakistan. Comprehending the distinction between maintaining ‘togetherness’

  and enforcing ‘sameness’ was far from them. In their minds, there could be no

  compromise to the ‘unity’ of Pakistan. Consequently, the shuttle diplomacy

  initiated by General Yahya Khan was in vain, since the distrustful political

  atmosphere obviated conciliation. His attempt to convince Mujibur Rahman

  to adopt a conciliatory approach merely delayed the inevitable. It did not help

  matters that Zulfiqar Bhutto was becoming increasingly vocal about his fears

  of Pakistan splintering, especially if the Awami League was given power.

  Irresponsibly, he openly invited the military to intervene and protect the

  country’s territorial integrity. These perceptions were forcing the political and

  military establishment in West Pakistan to become increasingly intolerant of

  the Awami League leadership. Eventually, mass rioting became pervasive and,

  in response, the Army initiated a brutal crackdown. The ensuing civil war and

  the coordinated attack by the Indian army sealed Pakistan’s fate, thereby

  creating the new state of Bangladesh.

  By disenfranchising the people of East Pakistan, rejecting serious discussions

  with the representatives of the Awami League and using violence to impose

  order, the federation of Pakistan fractured. Founded as a homeland for

  diverse Muslims, with equal opportunity, Pakistan had become a battlefield of

  competing nationalities vying for power. The mutual mistrust and personal

  ambitions of the secularist, regional forces of Bhutto and Rahman spelled dis-

  aster for the country. It is for this reason, perhaps, that General Zia insisted,

  ‘take Islam out of Pakistan and make it a secular state; it would collapse’. 85

  Also, without a ‘coherent ideology’, mutually agreeable to all peoples in the

  federation of Pakistan, it was only a matter of time before the country would

  fracture into two sovereign states.86 This separation was a devastating event, draining the country both economically and morally. The constitutional issues

  were forever dramatically altered. For Bhutto, the new events catapulted him

  onto centre stage, since he was now the majority leader. Later, he became the

  Chief Martial Law Administrator and the President, and then quickly began

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  developing a new constitution with two primary concerns – protection of his

  political power and the role of Islam in the state.87 Note, that secularists and traditionalists were vigorously manipulating the role of Islam in the state. Yet

  prior to detailing Bhutto’s method of constitution making, another important

  constitutional development took place in the Asma Jilani case.

  The Asma Jilani case

  During the initial years of Bhutto’s governance of a truncated Pakistan, a

  constitutional case came to the forefront of the judiciary’s agenda – the Asma

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  Jilani case.88 Although heard in 1972, this case referred to General Ayub Khan’s action in 1969 when he transferred power to General Yahya Khan.

  Specifically, this case revoked the Dosso case, stating that any military seizure

  of power was illegal and treasonous. The court took a robust position in

  protecting Pakistan’s constitution by prescribing exemplary punishment for

  those who tried to supersede it. ‘That on account of his holding the coercive

  apparatus of the State, the people and the courts are silenced temporarily, but

  let it be laid down firmly that the order which the usurper imposes will

  remain illegal and courts will not recognize its rule and act upon them as de

  jure. As soon as the first opportunity arises, when the coercive apparatus falls

  from the hands of the usurper, he should be tried for high treason and

  suitably punished. This alone will serve as a deterrent to would be adven-

  turers’.89 However, with all the hoopla surrounding this case, it reneged on its principled position and legitimised Bhutto’s political leadership as an act of

  ‘implied mandate’.

  Having overturned the Dosso case, and confronted with limitations on the

  application of the ‘doctrine of necessity’, the court employed the doctrine of

  ‘implied mandate’ first enunciated by Hugo Grotius. According to Grotius,

  courts may validate certain necessary acts of a usurper done in the interest of

  preserving the state, because the lawful sovereign would also want these acts

  to be undertaken.90 The implied mandate placed limitations on military seizure of political power, mandating that elections be held, but was vague on

  a specific time frame. Clearly, the courts took a favourable attitude toward

  Bhutto’s government, following the war and secession of East Pakistan.

  Overall, then, the judgement was meaningless at it seemed to close the door

  to unlawful usurpation of power, then opened another under the guise of

  ‘implied mandate’.

  The constitution of 1973

  Following the judicial sanction of his authority, Bhutto quickly began the

  task of constitution making. In 1973 a constitution was formed, ‘with the

  consensus of all the political parties in the National Assembly. It contained

  280 articles divided into 12 parts and six schedules’.91 Paralleling the previous constitutions of 1956 and 1962, it provided for the ‘Fundamental Rights’ of

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  citizens. Moreover, it asserted that if any existing law, custom, or usage which

  had the force of law contravened any provision of those fundamental rights, it

  would be void … no authority in Pakistan … was competent to make any law,

  regulation, or any order which might be repugnant to any of its provisions.92

  And the judiciary was given power to enforce these fundamental rights and

  decide if a law was repugnant to any of these provisions.

  Specifically, two characteristics in the 1973 Constitution stand out as ideo-

  logical considerations: (1) Principles of Policy and (2) Islamic Provisions. 93

  Both sections were interrelated, but it is interesting to note the difficulties in

  negotiations during its formation. First, the Principles of Policy was made to

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  ensure ‘the responsibility of each organ and authority of the state and those

  performing functions under them to act in accordance with those princi-

  ples’.94 Again, those principles included that no law should be enacted which is repugnant to Islamic injunctions as laid down in the Holy Qur’an and the

  Prophetic sayings.95 Additionally, the State should endeavour to facilitate the learning of Arabic, to promote observance of Islamic moral standards, and to

  secure the proper organization of mosques and encourage international

  Muslim unity. Overall, it sought to stabilize society through an enlightened

  rendering of Islamic law – or a revivalist approach. For instance, the tradi-

  tionalists did not, initially, support the inclusion of full rights for women’s

  participation in public life. Yet, the constitution-makers decided that

  approach poorly reflected the Islamic message and disregarded those objec-

 
tions. Similarly, secularists did not endorse seeking legitimacy by referring to

  Islam. That stance, too, was unheeded by the constitution-makers, who

  revealed the necessity of rationalizing authority and legitimacy in Islamic

  values. Clearly, the Principles of Policy emanate from a revivalist ideological

  approach that attempts to contextualize the ‘foundational’ values of Islamic

  political culture.

  Second, the Islamic Provisions in the 1973 Constitution section reaffirmed

  Islam as the state religion of Pakistan, acknowledged diversity of religious

  thought and established the ‘Council of Islamic Ideology’ that would make

  recommendations to bring existing laws into conformity with Islamic injunctions.

  The Council was also to advise on those injunctions requiring legislation.

  This part of the constitution, along with the Principles of Policy section,

  aimed to securely anchor Pakistan between ideological extremes. In fact, it

  embodied the best possible arrangement to accommodate the various political

  parties, their demands, economic interests, and ideological manifestos … 96

  Specifically, it appeased the traditionalists by Article 2 that declares Islam the

  state religion. Simultaneously, it placated secularists with Article 15, which

  elevates freedom of speech and expression. By balancing these ideological

  extremes, this constitution addressed a key factor in political instability.

  However, its chronic manipulation by numerous amendments, and the inability

  of politicians to abide by its writ and spirit, exacerbated political tensions.

  The scourge of constitutional amendments

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  Prior to the inauguration of the 1973 Constitution, Bhutto attempted to abrogate

  it, and this would eventually become possible through a rendering of ‘implied

  mandate’. Specifically, Part I, Section 7 of the 1973 Constitution stated that any abrogation of the constitution was considered high treason. 97 Yet the writ of law was not enough to prohibit political opportunism. With the insertion

  of ‘implied mandate’, usurpation of power was possible. Actually, from that

  point until now there have been 20 constitutional amendments. 98 And the principles of accountability, pluralism and fundamental rights have all been

 

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