VIEW: Basic structure myth —Yasser Latif Hamdani - Monday, October 25, 2010

Souce : http://www.dailytimes.com.pk/default.asp?page=2010\10\25\story_25-10-2010_pg3_5

Jinnah, however, is no longer relevant to Pakistan. Instead, one hears that Pakistan’s constitution, mangled, theocratic and moth-eaten after decades of military rule, has a basic structure that consists of independence of the judiciary, federalism, democracy and the Islamic provisions

Thank heavens the apex court in our country has shied away from answering the question of basic structure and binding, as it were, the dreams and aspirations of the future generations of this great state of ours to what is essentially a hackneyed idea.

Does the Pakistani constitution have a basic structure? Could the general will of a people be suspended cryogenically in a period of our choice? The founding father of this nation at least answered this question with an emphatic no when he vetoed a resolution by some Muslim League quarters to commit Pakistan to an Islamic polity. He sternly told them that this would amount to “censure” on every Leaguer and that the people of Pakistan alone would decide what their constitution would be.

Jinnah, I am told however, is no longer relevant to Pakistan. Instead, one hears that Pakistan’s constitution, mangled, theocratic and moth-eaten after decades of military rule, has a basic structure that consists of independence of the judiciary, federalism, democracy and the Islamic provisions. It is also contended that Article 2A is the basic structure of the Pakistani constitution. Article 2A makes the Objectives Resolution a substantive part of the constitution. The irony that it was introduced in contravention to all known principles of constitutional norms by a military dictator is entirely missed. It is the theocratic implication of 2A and the Islamic provisions that cause most alarm.

The basic structure arises essentially from a confusion of the Westminster parliamentary model and our eagerness to codify a constitution. Did Pakistan even need a written constitution? Should the state, that meant several things to several people, not have allowed an unwritten constitution with some basic documents to shape the conscience of the elected representatives of the people of Pakistan?

This is precisely why the only two other countries that follow this oddity are also from the subcontinent, though even their use is generally positive as opposed to the proponents of this idea in Pakistan. Bangladesh, for example, used the basic structure to oust the changes made to the constitution by military dictators. In Pakistan, it is argued that an Article introduced by a military dictator contains the basic structure. What is more is that it is downright undemocratic and in violation of the basic principles on which Pakistan was founded. Did those who want to impose a basic structure seek the consensus of Pakistan’s minorities for example, both religious and ethnic? The constitution of 1973 was, at best, a compromise document and not the absolute expression of the will of the people of Pakistan for all times to come. However, if it constitutes a firm position, parliament should not have the right to amend the constitution, and all amendments hitherto since 1973 should be declared void.

Consider the stock argument against secularism in Pakistan: the people of Pakistan do not want a separation of church and state and therefore Pakistan must be an Islamic state. It is a bad argument on many counts, not the least of which is that if Pakistanis do not want a strict separation of church and state, they do not want the church to dominate the state either. Most importantly, however, it does not quite follow that the people of Pakistan may have decided by majority rule to whom sovereignty over the entire universe belongs, yet they cannot by majority rule un-vest such vesting. Therefore, when the honourable Lord Chief Justice (CJ) of the Supreme Court (SC) of Pakistan rhetorically asked about the SC’s responsibility in case parliament declared Pakistan a secular state, people were naturally concerned. Surely, a parliament that can be trusted to decide who is a Muslim and who is not — usually a divine prerogative — cannot be stopped or limited. Or is it the position of the SC of Pakistan that the people of Pakistan have a wavering loyalty to Islam? That too would open a Pandora’s box for everyone concerned.

The imposition of the basic structure in Pakistan means that we should drop even the pretence of a constitutional democracy and become a full-fledged theocracy in the tradition of Iran with our own ‘Velayat-e-faqih’ (Islamic government) with the CJ of Pakistan enjoying the position of the grand rahbar and Ayatollah. I am sure the honourable CJ of the SC has no such ambitions. History will credit him for having saved democracy in Pakistan if he resists those who want him to become the grand mufti of Pakistan. One hopes that the democratic government of Mr Gilani will meet him halfway after the landmark decision on Thursday.

As for the basic structure theory, Pakistan’s constitution should have no basic structure save one basic principle and that is that Pakistan will treat all its citizens equally and without discrimination. Beyond that, no one has the right to bind our future generations to the ideas of today and yesterday. The constitution of Pakistan should always be what the people of Pakistan decide, as many times as they want to decide it.

The writer is a lawyer. He also blogs at http://pakteahouse.wordpress.com and can be reached at yasser.hamdani@gmail.com