Pakistan flag. PHOTO: AFP

Why Pakistan should take inspiration from the Irish constitution

The most stark similarities with the Irish constitution were the limitations placed on minorities

Usman Khan Yousafzai April 28, 2021

It is a little-known fact that the Pakistani Constitution and its constitutional history draw great inspiration from the 1922 and 1937 Irish Constitution, especially when it comes to the sections related to its religious nature and the rights of minorities.  This is not just true for Pakistan as India also took the same constitutional inspirations as us.

The Commonwealth of India Bill, introduced by Annie Besant in 1925, defined the people’s rights in terms that were almost identical to those defined in Dublin. The same provisions were also featured in the Nehru Report in 1929, as they were taken word to word from Besant’s bill.

 Pakistan also decided to adopt a state religion, much like Ireland. The religious nature of both the states, Ireland being Catholic and Pakistan Islamic, and both attributing sovereignty to God rather than the people was an important part of both the constitutions. The most stark similarities with the Irish constitution were the limitations placed on minorities. The right to freely practice for example is still‘subject to Public Order’ in Pakistan. Such added clauses definitely create many problems for the minorties living in Pakistan, out of which perhaps the harshest effects were felt by those from the Ahmadi faith.

Pakistan started to form a religious identity with the passing of the Objectives Resolution 1949, which contained several terms that highlighted the religiosity of the document upon which future constitutions would be tabled, including the theocratic 1973 Constitution of Pakistan.

Unfortunately, the trajectories of the two countries were not similar at all as Ireland underwent a constitutional evolution and took to task several provisions within its constitution that were seen as discriminatory or as an infringement on the fundamental rights held by the people. The Irish constitution not only defined the state religion but also ensured a special status for the Catholic church, punishments for Blasphemy and divorces were banned in line with the Church. The state of Ireland removed the religion heavy Articles 41.1.2 and 41.1.3 with the Fifth Amendment in 1972, which provided a religious outlook but added the following clause (Article 41.2.2);

“The state shall not endow any religion.”

In 1996, Ireland passed the 15th Amendment that removed all restrictions on passing laws that would favour divorce. Ireland also passed the 37th Amendment in 2018, removing the words blasphemy and blasphemous from their constitution altogether.

 While the nation that inspired most of our constitution underwent an evolution, Pakistan was unable to mimic the effort. It went from the 1956 constitution, put together with religious undertones to the 1973 Constitution which was religious and theocratic.

Perhaps the constitutional quagmire is the result of the Pakistani state never having seen a period where there was no external interference in legislative procedures. This interference, under the watchful eye of the military, utilised religious convictions to repeatedly meddle in state affairs and bring down powerful governments that could trigger the process for constitutional reforms.

The resurrection of religious parties under Yahya Khan as an attempt to break the power of both Zulfiqar Ali Bhutto and Mujibur Rehman is a prime example. In fact, Bhutto repeatedly struggled with religious parties from 1973 to 1977, culminating in a compromise which went on to become the Second Amendment.

Even Nawaz Sharif emerged as a strong candidate in the political field through the formation of the Islami-Jamhooriya-Ittihad party, which was solely created to oppose the socialist Pakistan Peoples Party. Benazir Bhutto also struggled to prove her religious credentials through her career, with many deliberating what sect of Islam the family was from.

The constitution and the country repeatedly went through phases of Islamisation, the effects of which can still be seen on Pakistan today. The recent protests by Tehreeke Labaik Pakistan are a harsh reminder of how much power can be wielded by using religion as a tool in this country. Such parties become formidable foes, as they have immense street power, with the potential to turn violent. More often than not the armed forces also take no action and those that do may come under scrutiny, as religion is a sensitive topic. In the end, it is easier to succumb to these rioters rather than undertake steps that amend the constitution to support the state.

It is fair to say that reversing the effects of the constitution of 1973 is not an easy task and does not take the mere replacement of problematic terms or amendments. But if the Irish can do it, maybe by following its example, so can we. The key is to remove articles that may infringe on the rights of people through clauses like the ones mentioned earlier, with those that actually offer true equality and protect fundamental rights but also retain their religious identity.

 Removing articles that infringe on the rights of minorities or those that encourage wrongful accusations and convictions is the first correct step in this direction. It is not that these articles are difficult to remove but the removal can only come about with an astute political will and unity among the country’s institutions.

It is becoming clearer by the day that Pakistan is falling into an abyss of religious extremism where the rights of minorities are neither offered nor protected and violence in the name of religion is becoming all too common. Blasphemy charges are now made based on personal vendettas with the religious clergy openly supporting those that take violent actions.

We have seen how large groups of people, ideologists, and even rights’ activists have been branded all sorts of things to force them to cease their actions. This is the result of the growing anarchy that is witnessed in a state where the constitution has been repeatedly trampled upon, yet never been reformed and the legislative section has been weakened beyond measure.

It is the need of the hour for Pakistan to once again take inspiration from the Ireland’s constitution and bring forth reforms that make Pakistan an Islamic Republic rather than the Islamist republic.

Usman Khan Yousafzai

The writer is a lawyer working at BRU Law Associates. He has authored “1963 Sino-Pak Treaty; A Legal study” and is currently writing on the Constitutional Governance of Azad Kashmir. He has a Masters Degree in History and enjoys dabbling into historical research. He can be reached at [email protected]

The views expressed by the writer and the reader comments do not necassarily reflect the views and policies of the Express Tribune.


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