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 fundamental rights protections for citizens, which has effectively disfigured the social contract between citizens and the state. The resignation letters are more instructive when read as part of a wider 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 situation?

Although we continue to revere Quaid-i-Azam Mohammad Ali Jinnah as the founder and great leader of Pakistan, we have conveniently ditched a critical feature of his thinking: his concept of Pakistan as a moral or dignified state with defining features of the rule of law, fairness, liberty of conscience and representative democracy. 

Jinnah’s speeches and letters set out the founding narrative and include ideals that address various aspects of state design, governance and foreign policy. Instead of a “living” source of inspiration, the Quaid has been consigned to history with the salutary portrait hanging in our hallowed corridors of power and drawing rooms.

What defines a dignified or moral state are the generally accepted moral standards and aspirations that both society and state commit to, which are usually contained in the constitution. On this, Jinnah held, “Islam and its idealism have taught us democracy. It has taught equality of man, justice, and fair play”.

The judiciary has had a vital role in institutionalising 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 foundational 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 lawgiver”. After granting near-unbridled powers to the legislature and executive, it has been very difficult for the judiciary to rein in governance within constitutional constraints.

Such judicial 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 state’s practices, policy and legal thinking.

Although the judiciary is constitutionally mandated to protect and interpret constitutional norms and values, it has now diverted the course of the state towards secular power-based statecraft. 

Not only has this jurisprudence eroded the moral basis of policy, legislation and interpretation, but it has also predisposed Pakistan towards authoritarianism. An “empowered” legislature and executive have variously encroached on the judiciary’s independence. The result: a grotesque performance of elite interests and power politics that exposes the state for what it has become: an oligarchy.

Against the backdrop of a fractured judiciary (by virtue of the 26th Amendment) and weak democratic norms, the recent amendments were passed without rigorous public scrutiny and without consensus on their expected moral and strategic advantages. According to the ICJ, “It is alarming [that] a constitutional amendment of great significance and public interest was passed in such a secretive manner and in less than 24 hours”.

The amendments were also passed while sidelining the founding narrative and two substantive tests that protect the moral content of the Constitution. One that laws inconsistent with or in derogation of fundamental rights are to be void (Article 8) and second that no law shall be enacted which is repugnant to the injunctions of Islam (Article 227).

Our rule of law is thus a fine mix of secular and Islamic protections, which has not been elaborated jurisprudentially, nor enforced by the judiciary to test and inform the design and quality of the constitutional order and governance.

Islamic scholar Mufti Taqi Usmani criticised the 27th Amendment, insisting that absolute or lifetime immunity from prosecution for any person is in violation of Islam and the Constitution (Article 25). The International Commission of Jurists have criticised both the 26th Amendment as a “blow to judicial independence” and the 27th Amendment as a “flagrant attack on the independence of the judiciary and the rule of law”.

Wider implications for the salient features of the constitution and system of governance also need to 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]s long as the amendment has the effect of correcting or improving the constitution and not of repealing or abrogating the constitution or any of its salient feature or substantively altering the same, it cannot be called into question”. 

Arguably, with the reconfiguration of judicial appointments, reduced powers of judicial review, transfers and postings, the establishment of a new superior court and related measures, salient features have been altered significantly and warrant rigorous examination.

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 observed that “they [the amendments] erode the judiciary’s capacity to independently and effectively function 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 judiciary’s ability to hold the executive accountable and protect the fundamental human rights of the people of Pakistan”. The change in the balance of power needs to be constitutionally justified.

This whole unfortunate constitutional amendment saga betrays the intellectual and moral bankruptcy of our institutions of governance — civil and military bureaucracies and the judiciary. Despite Jinnah insisting that looking after the poor is our “sacred duty”, public welfare is a low-ranking consideration: constitutional social and economic rights, set out in the Principles of Policy, are not even enforceable by the courts. 

Instead of a constitutional amendment to make such rights directly enforceable like the 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 appreciation of the constitution has hollowed out state institutions and society normatively.

Our institutions, intellectuals and constitutionalists have failed to elaborate and hold to Jinnah’s founding narrative and “[t]he great ideals of human progress, of social justice, of equality and of fraternity” to inform policy and legislation, guide future generations and ensure that we stay 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.

Consequently, and arguably, we are witnessing the resurgence of an executive state that Jinnah battled ferociously for much of his life. We need a new, clear jurisprudence to provide for a morally dignified state. Without rediscovering Jinnah intellectually and morally, we will never realise Jinnah’s Pakistan. Who can the citizens of Pakistan now trust?

The writer is a former secretary of the Law & Justice Commission of Pakistan.

Disclaimer: The viewpoints expressed in this piece are the writer’s own and don’t necessarily reflect Geo.tv’s editorial policy.

Originally published in The News