Constitutionally biased?

Let me begin with a generalisation that I think is defensible on 9 days out of 10: all nations are imagined communities and require the promotion and, indeed, privileging of certain assumptions over others. Certain truths have to be imagined while certain facts have to be ignored. A moralistic approach is perhaps inevitable in this process; minds brilliant and dim have to be convinced of the same cause. As a recent book points out, when it comes to adopting what people see as morally right positions, IQ can be largely irrelevant. Maybe all of us, at one point or another, go skinny dipping in the sea of nationalistic fervour. At the same time, in ways that we may never apply to ourselves we critique others drowning in this sea. But strive for perspective we must.
23rd of March, 1940 saw a resolution that was pregnant with possibility. As a natural corollary, ambiguity was a close friend of the argument advanced — and there is nothing inherently wrong with ambiguity when nations set future goals. But many of the questions presented by life are a matter of degree. Certain ambiguities can be lived with while others could assume a haunting existence like ghosts. And you may not have to believe in either till you are actually haunted by them.
Pakistan’s journey from inception till now has many ironies. A minority religious community achieved a separate homeland but the state subsequently lost the minority perspective. Our Constituent Assembly celebrated announcing draft constitutional provisions aimed at dealing with untouchability but had no qualms closing off the highest office in the land for its religious minorities. The argument that faith, rather than civic sense and competence, determines fitness for the highest office was one of the earliest contradictions by the state to the argument advanced for the creation of Pakistan. That persists today.
Many while discussing the subject of Pakistan’s early direction point to Mr Jinnah’s “secular vision” for Pakistan. It is important to be cognisant of important distinctions here. Mr Jinnah’s personal lifestyle can hardly be a guide in this matter. Since when did we unquestioningly assume that a leader’s personal lifestyle would be reflected in the public policies that he adopts or favours? Therefore any argument pointing to his personal lifestyle is hardly the clincher.
Now, what about his famous speech on 11th August, 1947 where he declared that a person’s religion had nothing to do with the business of the state? Considering the occasion, yes, you could argue that his speech represented a road-map. But why did he then tell the Karachi Bar Association in January, 1948 that Sharia would form the basis of Pakistan’s Constitution and that Pakistan would be an Islamic State? We can’t dismiss this tension. Why would a man who had just led a successful struggle and must have been aware of the tension between competing visions for the new state say one thing in August, 1947 and then another in January, 1948? He must have known that the time for ambiguities was gone.
My point is that deifying the founding fathers’ vision or seeking all the answers in that vision is useful only up to a point — presuming you want to be rational and relevant. For you might and often will disagree with what the founding generation wanted. It is called living in a different time. The founding fathers catered to pressures posed by politics of their age, the perceived majoritarian pressures and, yes, they did contradict themselves. Engaging in a fight over this kind of “originalism” is hardly going to lead to an answer that we claim as authoritative. More importantly, we need to stop looking to the past for solutions to our present problems.
An argument for a pluralistic Pakistan in which religious minorities are equal citizens of the state should not have to be supported by claiming that that is what Mr Jinnah wanted. That raises the dangerous possibility that subsequent generations in any country have to remain faithful to the necessarily ambiguous vision of the founders. Our religious minorities deserve equal treatment as citizens because we believe in a state and a constitution that aims to stand the test of time. Constitutions represent the aspirations of majorities but they are also supposed to guard against “the tyranny of the majority”. To the extent that our constitution discriminates on the basis of religion, it remains a dangerously imperfect experiment. It will improve not because of what Mr Jinnah did or did not say, but when you and I take it upon ourselves to challenge the reductionist discourse perpetrated in the name of the glory of Islam or the national interest. That is the harder and more exciting battle of ideas — rather than debating what Mr Jinnah meant.
Protecting the fundamental rights of the weakest and most vulnerable among us is incumbent upon all those who want to see a republic that values basic rights. Of course social and economic injustices affect Muslims too but consider this: even if the justice system worked perfectly, the religious minorities would still suffer because the law simply does not recognise them as equals. Their persecution and prosecution is enshrined in the law of the land. The practice of the law of the land of course adds to the tragedy; whether it is the issue of (among others) forced conversions or systematic targeting of Ahmadis.
There might be many imagined aspects of nationhood but the consequences of nationhood are real. Our children and their children will live with those. Nationhood also necessitates a conversation between all constituent parts. The argument that I am making may not win but I have no intention of backing down from it. We must remain involved in this conversation and further the case of religious minorities. Equal citizenship, protected by law, must be ensured as a fundamental right of every Pakistani. By compromising on this, we compromise on everything that we claim as a legitimate basis for Pakistan.

The writer is a Barrister and an Advocate of the High Courts. He is currently pursuing his LL.M in the US and can be reached at [email protected] or on Twitter @wordoflaw