Chief Justice vs. Straw Man

According to its website, the Supreme Court is “the Court of ultimate appeal and therefore final arbiter of law and the Constitution. It exercises original, appellate and advisory jurisdiction. Its judgments/decisions are binding on all other courts in the country”. Considering the Supreme Court holds such authority, it is very troubling that Chief Justice Iftikhar Chaudhry and other judges that have made statements against the parliament using secularism as a threat. The issue at question is not secularism, but the 18th Amendment and appointment of judges. More broadly, the question is whether parliament is the proper body to make changes to the Constitution. But rather than answer these legitimate questions, the Chief Justice appears to be using straw men to scare the public.

Chief Justice Iftikhar Mohammad Chaudhry observed on Monday that the sovereignty of parliament did not mean it enjoyed unfettered powers to introduce any amendment to the Constitution and asked “should we accept if tomorrow parliament declares secularism, and not Islam, as the state polity”.

The CJ made the observation when Advocate Iftikhar Ahmed Mian, the counsel for the federal government, argued that parliament enjoyed unlimited powers, but later explained that the Constitution was based on Islam and that could not be altered.

“Can we afford to follow western parliaments which have decided in favour of gay marriages,” quipped Justice Khalilur Rehman Ramday, a member of the 17-judge full court hearing challenges to the 18th Amendment.

“Will it be called a rightful exercise of authority if tomorrow parliament amends Article 2 of the Constitution which states that Islam will be the state religion,” asked Justice Tariq Pervaz.

This is a truly sad day when our own justices resort to such blackmail tactics as accusing that the 18th Amendment will cause ‘gay marriage’ in Pakistan. This is not intellectual reason, it is using what is called a ‘straw man’ argument fallacy to hide the fact that they cannot refute the actual arguments.

According to the Internet Encyclopedia Wikipedia, “secularism is the concept that government or other entities should exist separately from religion and/or religious beliefs”. Does that sound so terrible?

Despite basically meaning that you respect other people’s religion. This should be uncontroversial, really. Even in Islamic teaching there is disagreement. But we are taught to respect those disagreements. To discuss them and to win people over with reason, or, if we find we are in the wrong, to change ourselves. Is this not why Surah 5:48 says,

Had GOD willed, He could have made you one congregation. But He thus puts you to the test through the revelations He has given each of you. You shall compete in righteousness.

According to Yasser Latif Hamdani, Quaid-e-Azam Muhammad Ali Jinnah was “the most secular statesman produced by the Muslim world”. This is a must-read post, by the way. Here’s part:

It is amazing that given the confusion created about the word “secular” in Pakistan by both the right and the left has so thoroughly disoriented the thought process of our intelligentisia, especially that which is christened by the state, that it has failed to capitalize on the fact that Pakistan’s founding father was not just unambiguously secular but was the most secular statesman in the history of the greater Muslim world, even more so than the great Kemal Ataturk, who is justifiably hailed as the father of secularism in the Muslim world. Even Kemal Ataturk through an amendment to the constitution of the Republic of Turkey in 1923 instituted Islam as the state religion [1], which remained in the constitution till 1928 when Ataturk had it removed. Jinnah never instituted a state religion and blocked every resolution or move whether in the Pakistani Constituent Assembly or the All India Muslim League Central Working Committee [2].

The knee jerk reaction to this statement by our intelligentsia is to quote the several statements where Jinnah appealed to Islamic principles, Islamic social justice, Islamic democracy etc. Pervez Hoodbhoy de-constructed this myth of Jinnah’s references to Islam very well in his piece “Jinnah and the Islamic State” wherein he proved quite convincingly that Jinnah’s references to Islam were ambiguous and certainly no indicator that he wanted an Islamic state per se. What Hoodbhoy didn’t do was go far enough and claim the obvious i.e. the absence of a religious state means a secular state. Instead Hoodbhoy made much of a fact that Jinnah did not use the word “secular” publicly atleast. This ofcourse makes no sense when one considers that the US Constitution does not mention the word secular but is the most secular constitution in the world.

What makes a constitution secular? The legal definition of a secular constitution is any constitution which does not have a state religion. Jinnah – for all his references to Islamic principles- never allowed for any expression of the same in any resolution or legislative act. One gentleman arguing with me on Jinnah’s secularism made a rather ironic and contradictory statement that the Government of India Act 1935 did not envisage an Islamic state so Jinnah’s decision to make a Hindu the first law minister of Pakistan did not constitute an indication of a secular state. Ofcourse this makes no sense. The GOIA 1935 did not have a state religion and therefore was a secular constitution. Yet Jinnah went on to describe the government constituted under the GOIA 1935 an “Islamic Democracy”. He was doing so because he knew – as Kemal Ataturk had known before him – that Islam is such a strong part of the Muslim mindset that any attempt at modernity or democracy that does not justify itself in Islamic terms is bound to fail.

I suspect that there’s more, also. Jinnah knew that just as the founders of the US were Christians, they each had different interpretations of their religion. Thomas Jefferson, the American founding father that is compared to Jinnah, even published a version of the Christian bible that removed the parts he believed were false additions.

But despite being a secular nation with a secular constitution, America is not irreligious by any means. Actually, studies find that Americans are very religious.

If the very justices that we rely on to give unbiased and well reasoned interpretations of the Constitution and other laws are resorting to this type of elementary fallacy in their arguments and trying to scare the public rather than address the real issues, how can we trust them to be fair and impartial on other matters?