When ruling elites are no longer willing to commit to constitutional values, we can no longer guarantee the constitutionally promised dignified life that Jinnah’s Pakistan promised.
The impact of the 26th and 27th Amendments has led to the resignation of two Supreme Court judges and one Lahore High Court judge who protested the erosion of the protection of fundamental rights of citizens, effectively tainting the social contract between the citizens and the state. The resignation letters are more instructive when read as part of a broader critique of government policy and the judiciary itself. Public debate is required to reverse a course that has left state and society institutionally and normatively adrift. But what has brought us to this sorry state?
While we continue to revere Quaid-i-Azam Mohammad Ali Jinnah as the founder and great leader of Pakistan, we have conveniently discarded a critical feature of his thought: his conception of Pakistan as a moral or dignified state with defining features of the rule of law, justice, freedom of conscience and representative democracy.
Jinnah’s speeches and letters outline the basic narrative and include ideals dealing with various aspects of state design, governance and foreign policy. Rather than a “living” source of inspiration, the Quaid has been consigned to history with the salutary portrait hanging in our hallowed corridors of power and living rooms.
What defines a dignified or moral state are the generally accepted moral standards and aspirations to which both society and the state commit themselves, and which are usually contained in the constitution. On this, Jinnah believed: “Islam and its idealism have taught us democracy. It has taught equality of men, justice and fair play”.
The judiciary has been instrumental in institutionalizing the separation between Pakistan as a mere fact and the state as a moral entity. In KB Ali v State (1975), the Supreme Court rejected “standards of reason or morality” as defining valid law. Although it was the basis for ensuring social cohesion, providing good governance and guaranteeing a dignified life for all, it held that valid law is whatever is commanded by “a competent legislature”. Having conferred almost unfettered powers on the legislature and the executive, it has been very difficult for the judiciary to rein in governance within constitutional constraints.
Such legal reasoning has reduced Jinnah to a historical figure whose task was completed by the administrative-legal recognition of a formal state – a historical fact. By doing this we have effectively removed Jinnah’s moral ideals from the practice, policy and legal thinking of the state.
Although the judiciary is constitutionally mandated to protect and interpret constitutional norms and values, it has now redirected the state’s course towards secular power-based statecraft.
Not only has this jurisprudence eroded the moral foundations of policy, legislation and interpretation, but it has also predisposed Pakistan to authoritarianism. An “empowered” legislative and executive branch has in various ways encroached on the independence of the judiciary. The result: a grotesque performance of elite interests and power politics that exposes the state for what it has become: an oligarchy.
Against the background of a divided judiciary (by virtue of the 26th Amendment) and weak democratic norms, recent changes were enacted without strict public scrutiny and without consensus on their expected moral and strategic benefits. According to the ICJ, this is alarming [that] a constitutional amendment of great importance and public interest was passed in such a secretive manner and in less than 24 hours”.
The amendments were also passed while setting aside the basic narrative and two substantive tests protecting the moral content of the Constitution. One, that laws inconsistent with or derogating from fundamental rights shall be void (Article 8), and second, that no law shall be passed which is repugnant to the injunctions of Islam (Article 227).
Thus, our rule of law is a fine blend of secular and Islamic protections that have not been jurisprudentially drafted or enforced by the judiciary to test and inform the design and quality of the constitutional order and governance.
Islamic scholar Mufti Taqi Usmani criticized the 27th Amendment, insisting that absolute or lifelong immunity from prosecution for any person is contrary to Islam and the Constitution (Article 25). The International Commission of Jurists has criticized both the 26th Amendment as a “blow to the independence of the judiciary” and the 27th Amendment as a “flagrant attack on the independence of the judiciary and the rule of law”.
Broader implications for the salient features of the constitution and the system of governance must also be examined through the basic structure (of the constitution) doctrine. In the 2015 Supreme Court case, District Bar Association Rawalpindi v. Federation of Pakistan, Justice Sheikh Azmat Saeed held, “[A]So long as the amendment has the effect of correcting or improving the Constitution and not repealing or abrogating the Constitution or any of its salient features or substantially altering it, it cannot be questioned.”
With the restructuring of judicial appointments, reduced powers of judicial review, transfers and postings, the creation of a new superior court and related measures, salient features have been significantly altered and warrant a thorough investigation.
While Jinnah insisted on justice and complete impartiality as a “guiding principle”, Pakistan ranked a low 129 (out of 142) on the World Justice Project’s Rule of Law Index 2024, reflecting further erosion of an impartial rule of law that ensures equality for all (Article 25).
Commenting on the 26th Amendment, the International Commission of Jurists (ICJ) noted the “extraordinary political influence” and noted that “the [the amendments] erode the ability of the judiciary to function independently and effectively as a check against excesses by other branches of the state and protect human rights”.
Referring to the 27th Amendment, the ICJ observed: “They will significantly impair the ability of the judiciary to hold the executive accountable and protect the fundamental human rights of the people of Pakistan”. The change in the balance of power must be constitutionally justified.
This whole unfortunate saga of constitutional amendment reveals the intellectual and moral bankruptcy of our institutions of government – civil and military bureaucracies and the judiciary. Despite Jinnah’s insistence that it is our “sacred duty” to look after the poor, public welfare is a low-ranking consideration: constitutional social and economic rights, enshrined in the principles of politics, cannot even be enforced by the courts.
Instead of a constitutional amendment to make such rights directly enforceable like fundamental rights, the 26th and 27th Amendments arguably erode what little we had of constitutional governance. What is lost in this Faustian bargain is public welfare and dignity – Jinnah’s Pakistan.
A superficial understanding of the constitution has eroded state institutions and society normatively.
Our institutions, intellectuals and constitutional scholars have failed to elaborate and stick to Jinnah’s basic narrative and “[t]the great ideals of human progress, of social justice, of equality and of fraternity” to inform policy and legislation, guide future generations and ensure we remain focused on the original mission.
Not only is this a gross disservice to the ordinary Pakistani who holds Jinnah’s promise dear, but it is also a disservice to Jinnah by not appreciating him in an appropriate intellectual-moral context.
Therefore, and without doubt, we are witnessing the resurgence of an executive state, which Jinnah fought fiercely for much of his life. We need a new, clear jurisprudence to ensure a morally worthy state. Without rediscovering Jinnah intellectually and morally, we will never realize Jinnah’s Pakistan. Who can the citizens of Pakistan now trust?
The author is a former secretary of the Law & Justice Commission of Pakistan.
Disclaimer: The views expressed in this piece are the author’s own and do not necessarily reflect Pakinomist.tv’s editorial policy.
Originally published in The News
