Bigoted brigade in play

Legal eye
The writer is a lawyer based in Islamabad.
Is there something unique about us as a people that whenever we stumble upon power we feel duty bound to abuse it? Growing up one saw the village maulvi demanding that the bridegroom recite the sixth kalma or a dua that was otherwise hard to remember as part of the nikah ceremony, often to the embarrassment of the groom and entertainment of his friends.
The approach of the maulvi to religious education and understanding has never been sublime. But the adoption of retrograde practices motivated by a fervour to whimsically enforce Article 62 of the constitution while determining eligibility of electoral candidates certainly falls within the realm of the ridiculous.
What is wrong with sub-clauses (d), (e), (f) and (g) of Article 62(1) is that these provisions are not amenable to objective or judicially manageable standards. The determination of whether a candidate “is of good character and is not commonly known as one who violates Islamic injunctions” can only be a subjective one, that has to vary from one person to the other.
Who will determine whether someone has “adequate knowledge of Islamic teachings and practises obligatory duties prescribed by Islam as well as abstains from major sins”? Will such determination rest on whether or not one can recite Dua-e-Qunoot?
How do you judge the adequacy of religious knowledge? Are we going to hold that anyone who doesn’t pray five times a day is ineligible to seek from people the mandate to represent them, prayer being an obligatory Islamic duty? How do you gauge someone’s righteousness? Will a truly righteous person preach or even vouch for his/her own virtue?
And what is the ideology of Pakistan? What does ‘Pakistan ka matlab kya, la ilaha illallah’ mean conceptually and how does it guide the relationship between citizens and state? Should Pakistan be an Islamic state that enforces religion upon its citizens or should it be a Muslim

country that enables and facilitates its citizens to practise their faith without fear?
Who will determine what the idea of Pakistan is or should be? Let us assume for a second that the original idea of Quaid-e-Azam was to create a theocracy where the mullah would shove his view of religion down the throats of fellow citizens. Scriptures don’t speak for themselves and all textual commandments – whether religious or legal – require interpretation. That brings into the picture human agency. With all our sects and genuine differences about the true meaning and spirit of religious texts, whose interpretation of religion should a theocratic state enforce?
And how does one understand Jinnah’s instruction to the Constituent Assembly on August 11, 1947, that “you may belong to any religion or cast or creed that has nothing to do with the business of the state”? Imagine if Jinnah was contesting elections in 2013, his August 11 speech could well have become a cause for his disqualification under Article 62(1)(g) for being offensive to the ideology of Pakistan.
One can point to one set of speeches and actions of Jinnah to argue that he never meant for the state to be in the business of enforcing religion. But another set of speeches can also be cited to contend that Pakistani was founded on the basis of religion.
The two arguments can also be reconciled. The idea of Pakistan was rooted in religion, as it was on the basis of religious identity that Muslims felt they would be a permanent minority in united India. And they would rather be in a separate state where they could practise their faith and traditions freely. But that still doesn’t mean that once a Muslim majority state was founded, the state was to take on the responsibility of making Pakistanis pious or better Muslims. Notwithstanding what the idea of Pakistan is or ought to be, what is clear is that this is a debatable matter, as is the meaning and import of clauses (d), (e), (f) and (g) of Article 62(1) of the constitution.
To argue that provisions of the constitution, including Articles 2A and select clauses of Articles 62 and 63, are unalterable for being written in stone and anyone opposed to them is against the ideology of Pakistan and thus ineligible to be a legislator would not just be a draconian interpretation of our constitution but also a regressive approach to constitutional interpretation.
A constitution is neither written for the present alone nor can it be interpreted in such manner that seeks to pander to transient populist emotions. It is a living document meant for time immemorial that must simultaneously provide for continuity and change.
At the risk of being labelled a threat to Pakistan’s ideology, there are a few things that need to be stated plainly. The state must have no business in imposing or enforcing religion and the state should have no religion of its own. The relationship between citizen and state, as determined by the constitution, must strike the right balance between inalienable rights of the individual and the collective rights of the society.
In a state that comprises 96 percent self-professed Muslims, there can be no threat to Islam except from the likes of the Taliban and their less violent but equally bigoted variants, who believe they have a right to judge the virtue, piety and faith of others.
Religion is a matter between individual and God and no one – state or mortal – can be granted a licence to make judgements reserved for the Hereafter. The state should facilitate the free practise of faith by citizens, but not tell them what their faith ought to be or how to practise it.
The state is an instrumentality run by humans. When you allow it to enforce religion, you in fact allow one set of people to enforce their subjective religious beliefs on others. That is against the fundamental right of a citizen to practise his religion guaranteed under Article 20 of the constitution.
Articles 62 and 63 need to be amended for they are incapable of being enforced except by allowing someone to make arbitrary and completely subjective judgements about faith and character of fellow citizens. The mischief of these articles has been limited so far as our superior courts have held that these provisions are not self-executory and that any disqualification must follow formal adjudication based on evidence. But Ayaz Amir’s disqualification suggests that reading down these provisions is insufficient.
Introduced in the first place to grant unbridled discretion to an unelected ruler to throw out undesirable candidates at whim, these absurd provisions will be open to abuse so long as they are part of the constitution.
Public representatives are trustees who exercise power delegated to them by people. As fiduciaries they ought to be subject to higher scrutiny to ensure that their record doesn’t question their ability to hold a position of trust. In this regard honest discharge of legal obligations (including payment of taxes etc) becomes relevant.
But the scrutiny must be limited to crimes under man-made laws and not sins in relation to God’s edicts. As a practical matter, the scrutinisers – returning officers or judges – neither have any proven faith-based credentials to qualify as master-scrutinisers nor can claim to possess any rational criterion to undertake the task.
Since Pakistan’s inception moderate Pakistanis have skirted the issue of desirable relationship between religion and state. What was initially nuisance of the bigoted brigades has now evolved into coerced consensus and even Muslims now live in the Islamic Republic in a state of fear unable to question or challenge the dogma perpetuated by the retrogressive mullah and his violent cousins.
One slip of the tongue and you can be declared a heretic liable to be killed. And while not legally self-effectuating these fatwas practically are, as Salmaan Taseer found out to his misfortune. Tolerating bigotry only perpetuates it. Those who believe the state has no business enforcing religion will have to stand up and say so loudly.
Email: sattar@post.harvard.edu