Islam and Pakistan’s Political Culture

by Farhan Mujahid Chak

  sharply restricted by many of those amendments.

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  Initially, among the earlier amendments, they limited the guarantees for

  civil rights and independent courts, but also sharply heightened the institutional

  and political power of the prime minister. 99 Sadly, this has been a tendency until today – most politicians are unable to share power and devise ever more

  devious methods of concentrating power. Consequently, this has left little

  respect for the law. Sarmad Ali persuasively argues that this sad state of affairs

  began with Zulfiqar Bhutto.100 Using amendments, first to secure his own power base and then to placate rival ideologies, he was constantly walking a tight-rope between secular and traditionalist forces. For the traditionalists, he

  restricted the rights of a religious minority group called the Ahmadiyya and

  passed the Second Amendment, which declares them heretics.101 Contrarily, to conciliate secularist forces, he began the construction, in Karachi, of the

  biggest casino in Asia, with the assistance of a local land developer. 102 The building stands unfinished to this day – having finally become a shopping

  centre – as a monument to the failure of his government to maintain a

  coherent ideology with respect to the role of Islam and the state.

  People, civic society actors and non-governmental organizations were

  aware of the infringements on their rights, and they acted by filing numerous

  constitutional cases to challenge the validity of the amendments.103 As a matter of fact, six amendments were introduced between 8 May 1974 and 4 January

  1977, and a seventh on 16 May 1977. 104 Yet it was not until the Seventh Amendment had been implemented that the courts took a stand, since it

  restricted their ability to hear cases of military abuse during times of ‘civil

  unrest’.105 The Arbey case challenged the legality of the Seventh Amendment.106

  In its verdict, the Arbey case recognized that any interpretation of the law must

  abide by the Objectives Resolution and that this rule could not be altered. 107 In effect, the courts had decided that the government had gone too far and identified

  Islam, federalism and democracy as the essential features of the 1973 Constitu-

  tion. Thereafter, it concluded that if these features did not survive on account of

  an amendment, then such an amendment would be ultra vires.108 Yet, even with the courts cautioning Bhutto, he had no respect for constitutionalism. In

  May 1977, when elections were held in Pakistan, the first since 1970, Bhutto’s

  party, the People’s Party of Pakistan (PPP), fraudulently won. To everyone’s

  disbelief, the polls declared the PPP victorious, immediately setting off

  protests and claims of widespread rigging. Of course, evidence of fraud was

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  staggering. ‘All political parties in Pakistan joined together to form one party

  against the PPP. This nine-party alliance was undeniably going to win’. 109

  Hence, when it did not, grand protests astounded the country, and then on 5 July

  1977 the military, led by General Zia-ul-Haq, took over.

  This, though, led to a major problem, since the 1973 Constitution con-

  sidered usurpation an act of treason. In his defence, General Zia said that the

  constitution was in abeyance until fair elections could be held. The Supreme

  Court accepted that interpretation when they heard the constitutional case in

  the Nusrat Bhutto case.110 Nusrat Bhutto, the wife of Zulfiqar Ali Bhutto, filed a petition against General Zia and wanted serious sanctions to be taken

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  Islam and Pakistan’s Political Culture

  against him for treason. The court looked at the doctrine of necessity again

  and, thereby, justified the military takeover by General Zia via implied mandate.

  Then, once he had the approval of the judicial authorities, General Zia

  arrested Bhutto and had his bail application denied on account of accusations

  of murder. He was tried in a military tribunal, and the presiding judges ruled

  that the murder of the two politicians was the work of the Federal Security

  Force and that Bhutto had commanded the act. Bhutto faced a military court

  and was hanged. 111

  If Pakistan had been fortunate, with the hanging of Zulfiqar Bhutto con-

  stitutional amendments would have ended. But they only increased in fervour

  and intensity. The Chief of Army staff, General Muhammad Zia-ul-Haq,

  proclaimed Martial Law on 5 July 1977. His martial rule lasted until 1985

  and he continued to rule as president from 1985 to 1988. During this time, the

  1973 Constitution remained supreme, excluding certain parts held in abeyance

  out of necessity. The Supreme Court of Pakistan recognized the right of the Chief

  Martial Law Administrator – General Zia – to perform all such acts or legisla-

  tive measures, which included the power to amend the Constitution. By this

  verdict, General Zia was able to make a series of amendments, which changed

  the whole complexion of the 1973 Constitution. Khan, commenting on these

  amendments, says General Zia ‘could amend and alter the constitution at will

  and he kept making amendments to the constitution every now and then. In some

  cases, such amendments were made through the chief martial law administrator’s

  orders and others through presidential orders. It was after all his sweet will as

  to when, how, and in what manner, he made such amendments’.112

  General Zia, a traditionalist, was a proponent of Islam and vigorously

  appealed to religious sensibilities. His approach for aggressive Islamization

  began in 1979 with the promulgation of the ‘Hudood’ laws and continued

  until February 1985.113 Some of the key amendments General Zia initiated in his drive for Pakistan’s Islamization were top-heavy religious enforcement,

  and included empowering the Supreme Courts to declare any law un-Islamic

  if it was repugnant to the Islamic injunctions. In addition, Hudood laws were

  introduced on 9 February 1979 that prescribed ‘hadd’ punishments covering

  three areas: (1) alcohol: the consumption, manufacture, import, export,

  transport, bottling, selling or serving of any intoxicant; (2) cases of theft or

  robbery; and, (3) the offence of ‘adultery’. 114 These laws generated considerable Downloaded by [University of Connecticut] at 18:26 09 January 2017

  controversy among the secularists, who saw them as limiting their personal

  freedoms. Proponents, alternatively, argue that these laws are derivative of

  Islamic injunctions, and, resultantly, are permanent. Undoubtedly, these laws

  have been abused to embarrass political opponents, or even by police for

  blackmail. Recently, this ‘hadd’ law was used to falsely accuse an innocent

  Pakistani Christian of desecration of the Qur’an. 115 However, the courts threw out that case, and have generally been cautious in the application of

  these laws and ‘hadd’ punishments. Actually, despite more than twenty years

  of being introduced in the constitution, ‘no one has been stoned to death and

  no one’s hand or foot has been amputated’.116

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  Notwithstanding his intent, these amendments were enforcing respect for

  Islam, which cannot be coerced. Rather, law should prohibit hate speech,

  includin
g disregard of religious sensibilities. This protects the people’s sensitiv-

  ities concerning their faith. Instead, a sloppy and poorly thought-out ruling has

  become the bane of Pakistan, in direct contradiction of the Qur’anic restriction

  on compulsion in matters of faith. These constitutional amendments were

  motivated by a coercive traditionalist approach for managing dissent, which

  is simply browbeating. Following these amendments, in 1985 general elections

  were held on a non-party basis. That required the consequent National

  Assembly to make another significant revision – the Eighth Amendment to

  the 1973 Constitution.

  In 1985, Pakistan returned to a pseudo-democratic state, with General Zia

  discarding his military uniform to become President. To maintain authority over

  the civilian government, he passed the Eighth Amendment.117 This fundamentally altered the basic structure and essential features of the 1973 Constitution,

  bringing it in line with the military’s preferences. ‘It created a strong executive, a weak legislature, a docile judiciary, and it diminished provincial autonomy’.118 Also, this amendment prevented any laws enacted during the eight years of martial law from being challenged. In addition, the head of the state

  was no longer the Prime Minister, but the President, who had all the powers

  of dissolution. In effect, General Zia’s constitutional tampering was based on

  a praetorian tendency to concentrate power and he could now dissolve parlia-

  ment at will. Khan contends that ‘the balance that Zia struck between the

  powers of the prime minister and the president began to tell immediately on

  the new political system. Popular will had been flouted and national politics

  had changed from parliamentary democracy to military dictatorship’.119

  Maluka adds that General Zia ‘deliberately contrived constitutional devices

  in which he, as life-long president of the country, was above the parameters of

  the constitution and unaccountable to the people’.120 All in all, this reflects the typical traditionalist approach to the ‘foundational’ aspects of Islamic

  political culture – distrust of the average citizen and, therefore, a tendency to

  limit representative government. Comparatively, though, while Ayub Khan,

  Zulfiqar Bhutto and General Zia were ideologically poles apart, their dis-

  regard for the sanctity of the Constitution and the will of the people were

  strikingly similar. Then, suddenly, on 17 August 1988, President Zia was

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  killed, suspiciously, in a plane crash.

  With the death of President Zia, Benazir Bhutto would become Pakistan’s

  first female Prime Minister in 1988. However, she and the Pakistan People’s

  Party were unable to secure an ‘absolute majority in parliament, and therefore

  did not do any harm to the constitution of 1973’. 121 Even though the constitution was spared from amendments during her tenure, that situation would not

  last. During the second Nawaz Sharif government, currently in his third stint as

  Prime Minister, the Thirteenth Amendment was passed on 31 March 1997.122

  This amendment took away the president’s power to dissolve assemblies, and

  gave it to the prime minister. Subsequently, the Fourteenth Amendment was

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  Islam and Pakistan’s Political Culture

  passed, which banned members of parliament from crossing party lines.123

  Constitutional manipulation was commonplace and would continue unabated

  until October 1997, when the Supreme Court heard a petition on the validity of

  the Fourteenth Amendment.124 At that point, the then Prime Minister Nawaz Sharif claimed the judiciary was undermining parliamentary sovereignty.

  Responding, the judiciary charged Prime Minister Nawaz Sharif with contempt.

  Then, in one of the darkest days in Pakistan’s legal history, unruly political

  party members from the PML-N stormed the Supreme Court ransacking the

  sanctity of that office. Eventually, in a clear indication of suppression of

  judicial independence, both the Chief Justice of the Supreme Court and the

  President resigned. The situation in Pakistan concerning respect for the rule

  of law kept moving from bad to worse.

  Then the Fifteenth Amendment, associated with the ‘Shari’ah Bill’, approved

  on 28 August 1998, declared the Holy Quran and Sunnah as guiding principles

  for running government. However, that implication was already there in various

  forms in the constitution. Critics argue that Nawaz Sharif did this in order to

  appear a religious reviver. Sarmad surmises that under the banner of an Islamic

  system, Nawaz Sharif tried to get absolute powers. 125 This amendment was passed by the National Assembly but could not be passed in the Senate and

  has now become effectively dead. And, as if these ongoing constitutional

  crises were not enough, Pakistan was thrust into another disaster. The debacle

  of Kargil, which led to a brief war between nuclear rivals India and Pakistan,

  altered the political scenario once again. After the fallout of Kargil, General

  Musharraf, in 2001, organized a coup against Nawaz Sharif and sent him

  packing to Saudi Arabia. And, he, too, was no different to his predecessors in

  disregarding the sanctity of the Constitution. In fact, he ‘declared 29 amendments

  to the constitution. Included in the amendments were the President’s right to

  dismiss parliament and to expand his tenure in office by five years’. 126 Similar accusations, as always, resurfaced stating that the General wished to perpetuate

  dictatorship under the guise of democracy. In particular, the Seventeenth

  Amendment, which became effective in December 2003, gave the president

  the powers of dissolving the assemblies and the LFO was made part of the

  constitution, effectively reversing the Thirteenth Amendment.127

  Today, with the stupendous lawyers’ movement that returned Chief Justice

  Iftikhar to power, and the eventual passage of the Eighteenth, Nineteenth and

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  Twentieth Amendments, a beacon of hope shines in Pakistan. A sincere attempt

  is being made to restore parliamentary governance and ensure provincial

  autonomy. These amendments do the following: ‘first, it repealed Presidential

  powers to dissolve parliament; second, it laid out a clear process for installing

  a caretaker set-up in order to hold free and fair elections; and, third, it aims

  for free, fair and transparent elections through an independent Election

  Commission of Pakistan (ECP)’.128 In particular, the 20th Constitutional Amendment Bill 2012 has given the ECP sweeping powers to minimize the

  government’s role in the appointment and removal of its members. By doing

  so, it is attempting to anchor its independence.

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  Conclusion

  This chapter reveals that the origins, development and manipulation of Pakistan’s

  constitution reflect the ongoing ideological battle in Pakistan. It is not necessarily the text of the constitution that presents a problem but rather its manipulation

  by diverging ideological forces who have little regard for its sanctity. With rare

  exceptions, civil and military political leaders in Pakistan seem to be either

  unaware or indifferent to what constitutes the ‘fo
undational’ values which it

  would bode well to adhere to. Political expediency and opportunism, rather

  than commitment to cherished values, have become the norm. There are no

  mutually agreed rules of the political game, no acceptable framework from

  which to compromise and negotiate. Everyone plays for all or nothing. As a

  result, the Islamic political values that include accountability, trusting the will of the people and representative government are missing from the political arena.

  From a historical perspective, the formation of the Pakistan movement, the

  establishment of the country and the development of its constitution were based

  on the desire to create a model Islamic state. These initiatives were led by a

  political leadership that represented the revivalist approach to the ‘foundational’

  aspects of political culture in Muslim polities. Divergent ideological inter-

  pretations have proven incredibly difficult to reconcile. The traditionalists are

  ‘wedded to the expansion of Islamic law and Islamic practices in various

  spheres of Pakistani national life’. 129 The secularists ‘take a more restrictive view on the proper role of Islam in the State’.130 The military has been pulled between these polarities – for example, the secularist General Ayub Khan and

  the traditionalist General Zia. The revivalists – those who wish to re-evaluate the

  ‘foundational’ aspects of Islamic political culture in their contextual settings –

  have been few, leaving the political arena to the extremes. The analysis of the

  constitutional development in Pakistan aptly symbolizes this controversy.

  Malik contends that a major factor ‘that destroys efforts for a vibrant

  political culture and national unity and blocks the evolution of a civil society has been the dismal record of adhering to constitutional norms in the country’.131

  The previous sections in this chapter, outlining the numerous constitutional

  amendments, substantiate this allegation. Irrespective of whether the civilian

  or military leaderships subscribe to a traditionalist or secularist approach to the

  ‘foundational’ aspects of Islamic political culture, they all share a disregard for

  the sanctity of the Constitution. This is because ‘various constitutional