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 From 19th century onwards the terms of democracy shifted to representative democracy i.e. Parliament. According to John Stuart Mills, "This was the grand discovery of modern times in which the solution of all difficulties, both speculative and practical was to be found." According to Iqbal the power for making laws and keeping these updated through "Ijma" and "Ijthad" vests with the modern Parliament.
At a time when the State was emancipating itself from politics based on religion, a separate homeland was being demanded for Muslims of India which seemed paradoxical. But its meaning depended on who was projecting which views.
Quaid-e-Azam was aware that within one State Muslim minority will not be able to pursue freely according to the rules of economic competition and free exchange. Although he was fighting for a nation having the Muslim faith, he never opted for a theocratic State. Therefore, he was not offending the concepts of a modern State as it developed after the 16th Century. The London Times in its obituary on the death of the Quaid observed: "Mr. Jinnah.....In the face of difficulties which might have overwhelmed him, it was given to him to fulfill the hope foreshadowed in the inspired vision of the great Iqbal by creating for the Muslims of India a homeland where the old glory of Islam could grow afresh into a modern state, worthy of its place in the community of nations."
The Quaid was conscious of the expected distortions under the pretext of the two nation theory, therefore, on August 11, 1947 in his address to the Constituent Assembly of Pakistan he declared: "You are free; you are free to go to your temples, you are free to go to your mosques or to any other place or worship in this State of Pakistan.... We are starting with this fundamental principle that we are all citizens and equal citizens of one State."
I feel that while making such a statement, the Quaid was inspired by Surah An-Nas (114) of the Holy Quran, "Allah is the Lord and protector of the people." Pakistan, therefore, was to emerge as a State providing protection in the name of the Almighty Allah to all its citizens on the basis of equality where no one was to exploit another. Pakistan civilization was to rescue the Muslims from the abyss of stagnation, degeneration, bondage, and decadence. I think the Quaid in this connection was also conscious of verses 62 and 256 of Surah Al-Baqara. The term Islamic Republic of Pakistan has to be, therefore, interpreted and construed in the light of the sayings of Quaid and not otherwise.
Because of conceptual confusion which was created, the Pakistan Ideology had been swinging between the rhetoric "Asia is red" to "Nizam-i-Mustafa." The latter rhetoric was used to perpetuate an illegitimate, un-democratic, Presidential rule in the name of Islamisation. The idea of Amir-ul-Momineen was also projected to distort the Ideology of Pakistan for personal rule. Therefore, in our quest for parliamentary democracy we have to protect the true Ideology of our State otherwise the ideological dangers shall always confront and weaken the State. The positive thing is that the 1973 Constitution choreographed by Shaheed Bhutto remained dear to the people who rejected the blighted abbreviations. A time had now come for its restoration close to the original shape - parliamentary democracy.
The idea behind the 18th Amendment came from the Charter of Democracy with Shaheed Benazir Bhutto as one of its signatories. The preamble to the 18th Amendment shows the intention to correct the existing distortions in our basic law.
The 18th Amendment provides right to information, right to education, redressal for under representation of any class or area in the Service of Pakistan. It prescribes a procedure for the induction of superior Courts Judges and thus removes one-upmanship in this connection. Opponents of this change desire to challenge it before the Supreme Court on the ground that it aims at changing the basic structure of the Constitution. Articles 177 and 193 of the Constitution (before amendment) provided a procedure for appointment of Judges in superior Judiciary. The change introduces the concept of appointment through a Judicial Commission and a Parliamentary Committee. Some people feel that the appointment should be left entirely to the collegium of Judges, which means the recruitment of Judges by their own colleagues unlike the system of many countries including UK and USA. The indications are that the procedural part of the recruitment may continue to be not only a subject matter of controversy and debate but of a clash between the institutions. This may have serious ramifications if a restraint is not shown by the different pillars.
The curative amendment of Article 6 attempts at blocking the subversion of the Constitution. The change in Article 17(4) of the Constitution relating to elections within political parties is another subject of serious criticism. However, the Political Parties Act does cover the subject.
The abolition of the concurrent list ensures autonomy to the Provinces. However, this may be a tricky subject. There is already criticism on this change mainly on the ground that the Provinces were neither competent nor prepared to accept the responsibility. A transition period is provided for the change which may not be enough. But time will tell whether the decision was a correct one. The provisions relating to Federal Shariat Court have been kept intact whereas the functions of the Federal Shariat Court can be performed by the High Courts. A unique Court system is always healthy and maintains harmony in the Judicial Branch of the Government.
The 18th Amendment removes the dispensations of the dictators from the Constitution and reflects the national resolve to proceed on path of genuine parliamentary democracy. But this will only be possible if democracy is allowed to function un-hindered and all the stakeholders faithfully adhered to its norms.
Hazara is angry over the issue of a new nomenclature for NWFP. Unfortunately this issue has brought to fore-front the regional demands for separate provinces. This is a dangerous trend calling for a correct political approach so that these issues do not escalate and become insurmountable. Because of the passage of the 18th Amendment the new name is now a fait accompli. But the anguish of Hazara has to be addressed with sympathy.
The 18th Amendment is not a complete panacea for our problems or the political polity. In fact it may give rise to plural controversies and regional issues. The coming days will, therefore, be both interesting and distressful. Anyhow the 18th Amendment is not an end to the bumpy road to genuine parliamentary democracy based on the principle of three-way division of power but a positive progression enroute to the destination - supremacy of the Parliament under the Constitution and the establishment of the rule of law. The President and the Parliament deserve praise on this epoch making achievement.
Ali Nawaz Chowhan is a former International Judge of the United Nations at The Hague, Permanent Judge of the Lahore High Court and is presently Co-Chairman of the UNESCO Appeal (Judicial) Board in France.
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