The vote of no-confidence of March 2022 has created a pressing need to study, understand and create awareness at wider scale about the constitution of Pakistan. This article is an endeavour in that direction. However, the focus at present is the Preamble of Constitution of Pakistan.
The preamble is an introduction that paves the way for the constitution by communicating what the framers intended, the history behind its framing and the purpose of document in terms of nation’s core principles and values. A vast majority of countries have preambles to their constitutions while others have introductory articles that can be considered as preambles. The US constitution has a short preamble of fifty-two words – but they have great effect on the constitutions of several other countries.
The Preamble of the Constitution of Pakistan is the Objectives Resolution of 1949 that intrinsically builds a relationship between state/politics and religion. The inclusion of Objective Resolutions in all constitutions as Preamble and eventually becoming part of the Constitution in Article 2A in 1985 via the Eighth Amendment demonstrates either a lack of considerate efforts on the behalf of framers to put in or a national consensus on the question of relationship between state and religion. The framer of 1973 constitution, in the aftermath of 1971 debacle, had to address political agitation and turbulence in provinces of NWFP and Baluchistan. These two provinces were demanding the revival of old customs associated with Islamic history, such as veil for women, cutting of hands of thieves, etc. Therefore, it was thought prudent to keep the Objectives Resolution as a Preamble, like the previous two constitutions. As a result, the Preamble, as it stands, owns the difficult relation between religion and politics. With reference to religion, the Preamble further applies a compulsion of faith by allowing the observance of “the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam” and enabling Muslims “to order their lives” according to Islamic teachings.
The Preamble specifies source(s) of sovereignty. The phrases like “We, the people of […]” or “We, the multinational people of […]” in preambles tend to give state a neutral status to which majority of population can identify; whereas, the phrases such as “Hungarian Nation”, “the Polish Nation”, set their emphasis upon a particular national group. The Preamble of Pakistan’s constitution states that “the sovereignty over the entire universe belongs to Almighty Allah alone, and the authority to be exercised by the people of Pakistan within the limits prescribed by Him is a sacred trust.” The phraseology could indicate delegated sovereignty to “the people of Pakistan” that is likely to complicate the exercise of “sovereignty as responsibility.” This, nonetheless, needs more clarification in the preamble framework of the constitution.
Besides identifying a source of sovereignty, the Preamble declares the nature of the state, that is a federation with democratic political system run by “the chosen representatives of the people” for Pakistan. However, the nature of democracy is not prescribed in the Preamble. The Preamble further prescribes that “it is the will of the people of Pakistan to establish an order” and it is this part that is still controversial. The “will of the people” is comfortably dovetailed with parliamentary democracy whereas a handful of members of parliament cannot be seen or considered as a reflection of the “will of the people”. One way to make the “will of people” more pronounced is to create forums constitutional conventions, in line with deliberative democracy, where citizens listen to each other with respect, understand each other’s opinions, seek progressive development of minds and create an informed democratic culture.
Moreover, the preamble is a source of narratives for the State. The phrases such as “sacrifices, historical struggles […]” (Constitution of Afghanistan), “proud and aware our history” (Constitution of Albania), “injustices of our past […]” (Constitution of South Africa) help citizens to shape common identity with roots in history, heritage and traditions. The Preamble of Constitution of Pakistan recognises “the sacrifices made by the people in the cause of Pakistan,” which sets a historical narrative for the people of Pakistan. The Preamble also mentions the “Founder of Pakistan, Quaid-i-Azam Mohammad Ali Jinnah” indicating the framers’ tribute to his struggles. The Constituent Assembly of India had rejected to include any reference to the Father of the Nation, Mahatma Gandhi and God.
The supreme goals – which are another common feature – articulated in the Preamble of constitution of Pakistan, include provision of “guaranteed fundamental rights” and “independence of the judiciary.” We have yet to see the achievement of these goals both in letter and spirit. Moreover, the promises made in the Preamble regarding rights of minorities have so far fallen short of being fulfilled. The Preamble prescribes steps/measures to be taken for “the minorities freely to profess and practise their religions and develop their cultures.” The word “freely” was omitted when the Objectives Resolution was incorporated into the Article 2A, which was reinserted under the 18th Amendment. Moreover, in the phrase “legitimate interests of minorities,” the term “legitimate” is hard to operationalise, hence is subject to different interpretations. One can argue that the Sections 298B and 298C of the Pakistan Penal Code of 1860 that criminalise “the very act of publicly discussing or practicing the Ahmadi faith” are a result of this vague phraseology.
Overall, the provision of fundamental rights to minorities/non-Muslims and relation between state/politics and religions are tied to the unsettled legal status of the Preamble, or rather, of the Objectives Resolution. The constitutional jurisprudence of the Supreme Court declared the first paragraph of the Preamble as a grundnorm. However, the Elections Act case highlighted the idea of religious morality based on Islamic principles enshrined in the Objective Resolution, giving the text a general scheme of the Constitution. Comparatively, in the US, the Supreme Court did use reference to the language of preamble in early years, but never gave the Preamble any legal weight. Likewise in India, judgements declared the Preamble to be not a part of the constitution.
If we ought to become a constitutional democracy we should study and debate our constitution at very early stages of development of civic sense. This would iron out all the confusion and answer our concerns. It’s about making a document operational.