A nation of two sovereignties

I.A. Rehman | The Asian Age* | April 12, 2007

http://203.197.197.71/presentation/leftnavigation/opinion/op-ed/a-nation-of-two-sovereignties.aspx

Having sown the wild wind for many a long year, Pakistan
must now reap the whirlwind. Within yards of the avenue in the
capital where the concrete symbols of all the organs of the state
are guarded by large contingents of gendarmerie, some lathi-wielding
female students take the law into their hands, and announce their
assumption of authority to detain and punish the "sinners," and a
pathetic-looking state apparatus sues for forgiveness. This is
Pakistan after seven years of stability, economic progress, genuine
democracy, suppression of obscurantism and enlightened moderation!

No reference to the writ of the state is necessary because such
expressions can be used only for the misguided serfs inhabiting
certain parts of Baluchistan, Sindh and Frontier. They cannot be
used in the context of territories the state has been ceding to holy
warriors in the northern part of the country.

This article is about the evolution of the theory of two
sovereignties and its latest manifestation. This theory, in a
sentence, is that every Pakistani Muslim has a right and a duty to
bring his fellow-beings under a regime he thinks his belief
prescribes even if this involves a defiance of the state-made (that
is, man-made) laws and rules.

Quite a few scholars maintain, and not without some justification,
that the seeds of this theory lay in the very basis of the demand
for Pakistan. In support, some slogans raised during the 1945-46
elections are recalled — slogans that explained the idea of Pakistan
wholly in religious terms. Whether these slogans really reflected
the mind of the authors of the Pakistan idea or whether they were
raised only to secure votes in fiefs, such as in a large part of
Punjab, the undeniable fact is that for a fairly large section of
the population concerned these slogans embodied their ideal.

The first prominent politician to realise the danger in placing
total reliance on the religious card was none else than the Quaid-i-
Azam himself. Three days before the date set for the realisation of
his dream he decided to make a heroic break from the politics of the
past decades. The task after the establishment of the state of
Pakistan was to build a new nation on the basis of political,
economic and legal equality of all citizens regardless of their
belief which in any case was each citizen's private matter, he now
declared. At the same time, the religio-political elements that had
opposed the Muslim League and had been routed by it realised that
circumstances, especially the partition of provinces, offered them
an opportunity to hijack the ship of the infant state. Thus began a
race in which successive regimes have sworn fidelity to Jinnah and
served the mandarins opposed to him. A perfect suicide construct, as
some analysts say.

Those who bank on the Quaid's speech of August 11, 1947, ignore the
fact that a single address could not persuade the people to purge
their minds of ideas and arguments thrown up not only during the
communal confrontation in the subcontinent but which had been
fertilising in the Muslim mind across the globe for a much longer
period. The task of Pakistan-building defined by the Quaid on August
11, 1947, involved the establishment of a people's democracy, to use
a phrase first used by Mr Jinnah. The course chosen by the Quaid was
abandoned by the state soon after his death.

The Objectives Resolution of 1949 marked the beginning of the dual
sovereignty idea though the resolution did not say so explicitly.
The field was left open for the contenders for power to interpret
the meaning of the delegation of Allah's sovereign rights to the
State of Pakistan through the people, even after the opening
paragraph of the resolution had been amended by the authors of the
1973 Constitution. The 1956 Constitution made all laws subject to
two conditions — one, that no law that contravened the fundamental
rights could be valid and, secondly, no law repugnant to the Islamic
injunctions could be made and all existing laws that were repugnant
to Islam were to be harmonised with its injunctions.

The balance was however in favour of the Constitutional authority in
as much as the courts could strike down any law or practice that
contravened the fundamental rights, the laws attracting censure for
repugnancy to Islam were to be examined by a commission on whose
report the legislature was to take the corrective action. Under
subsequent Constitutions the task of testing the laws on the
touchstone of belief was assigned to the body now called the Council
of Islamic Ideology.

It was General Ziaul Haq who not only created a hierarchy of
religious courts but also gave them a Constitutional status and
placed them at par with courts established under the Constitution
earlier. The transition to the theory of two sovereignties was
complete. The general courts could strike down laws on the ground of
inconsistency with fundamental rights and the shariah courts could
do the same if they found any law inconsistent with the ruling
elite's belief, which might or might not be Islamic.

Indeed, the shariah courts were put on a higher level than the
general courts because they could not only strike down a law they
could also tell the legislature how a law was to be revised, a power
the older category of courts did not have.

Once the judicature had been reorganised to suit the theocratic
elements the battle for enforcement of a regime based on dogma
began. Gen. Zia introduced the 9th amendment but failed to get it
passed before he died. The Nawaz Sharif government drafted the 15th
amendment but it failed to get it adopted by Parliament before it
was overthrown. The task has now been assumed by the NWFP government
that has been trying through its Hasba Bills to control and regiment
the lives of the people, their culture and their thoughts.

During the latter half of the Eighties a new idea for enforcing amr-
bil-ma'aroof wa nahi-anil-munkir was introduced to Pakistan's
conservative lobby after the insertion of the blasphemy provision
into the Penal Code. According to the groups dominant in Pakistan,
apostasy is punishable with death and any Muslim is supposed to be
free to act as the prosecutor, the judge and the executioner
although no law permits this. This view was confirmed when a judge
reprimanded a person for only accusing a man of blasphemy and not
killing him.

The case of a non-Muslim does not fall in the category of apostasy
and yet it has been assumed that a Pakistani Muslim has a right to
execute a non-Muslim as well as a fellow Muslim by declaring him
guilty of blasphemy. The state has been guilty of criminal inaction
and silence over the actions taken by individuals under cover of
belief.

The government's failure to deal with defiance of law under the
cover of dogma led to the formation of private courts in Malakand
and FATA. It does not take ideas long to travel from Bajaur to
Islamabad, and matters have reached a point where the state's policy
of drift was bound to take them. A call has gone out that the state
has become dormant and since dogma is superior to law, every Muslim
has a right to punish the wayward and the unwary. A sizeable section
of the people believes the establishment derives political benefit
out of the extra-legal challenges to its authority launched by
religious militants. The regime is said to be using the existence
and apparent strength of the militants as an insurance on its
survival and, what is obviously more important, its continued
acceptability to the ultimate patrons and power brokers. If there is
any substance in this view it is clear that the country's future is
being jeopardised for the sake of a few.

Be that as it may, the government's resistance to the clerics'
designs on the state has been limited to some appeals to the
judiciary to bail it out or empty rhetoric about enlightened
moderation. All this is no more than an apology for surrender to
fanatics whose title to speak in the name of the people's belief is
extremely tenuous.

What the establishment has to realise is that religious militancy
and all other belief-related ills have sprouted in the vacuum caused
by the suppression of politics. A democratic polity is inconceivable
without democratic politics whereas Pakistan's rulers have been
telling the people to be content with a quasi-democratic façade
without any space for democratic politics. This is not to say that
without authoritarian rulers bigotry could not have raised its head.

Democratically constituted regimes also commit grave wrongs, but the
system offers possibilities of redress and reversal, whereas under
authoritarian regimes change comes through upheaval and often when
it is too late. And if the state allows only hate to be cultivated
in its lands nobody can expect anything other than a bitter harvest.

*By arrangement with Dawn





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