SHORTLY before his seven-month term as the chief justice of Pakistan came to an end, Justice Tassadduq Hussain Jillani authored a landmark judgement concerning the rights of religious minorities. The judgement, delivered on June 19, 2014, was issued in a case taken up by the Supreme Court suo motu, after the bombing of a church in Peshawar in 2013 that killed over 100 people. Respect for the rule of law, the Constitution, and Pakistan’s international human rights obligations require that the government promptly take steps to implement the judgement in letter and spirit.
Persecution of religious minorities, by state and non-state actors, is among the most serious human rights abuses faced by people in Pakistan today. The Human Rights Commission of Pakistan (HRCP) reported that 687 people were killed in sectarian violence in more than 200 attacks in 2013. In a recent report, Human Rights Watch documented 52 killings of Shia pilgrims in 2014. And just last month, the UN special rapporteur on freedom of religion and belief, Mr Heiner Bielefeldt, expressed concern at attacks against the Ahmadi community and urged Pakistan to guarantee the right to freedom of religion or belief.
These figures paint a grim picture, which is vividly highlighted and strongly condemned in the Supreme Court judgement. But what makes it one of the most important rulings in Pakistan’s recent human rights jurisprudence is the enhancement of the scope of freedom of religion, using international human rights law, and a set of clear and binding directions to the government to remedy the persecution of religious minorities in Pakistan.
The judgement of June 19 clarifies and expands the scope of Article 20.
While the Supreme Court has expanded its human rights jurisdiction under Article 184(3) greatly in recent years, rulings that examine and clarify the contours of fundamental rights in the Constitution in light of Pakistan’s current social realities and international law obligations are still surprisingly few and far between. Under the leadership of former chief justice Iftikhar Chaudhry, for example, the Supreme Court often decided cases on the basis of short orders, containing little or no legal reasoning, rather than in detailed judgements based on a legal interpretation of fundamental rights.
In contrast, the judgement of June 19 clarifies and expands the scope of Article 20 of the Constitution, which guarantees the right to freedom of religion. The court explains that religion cannot be defined in rigid terms, and holds that freedom of religion must also include freedom of conscience, thought, expression, belief and faith. The court elaborates that these freedoms have both an individual and a community aspect, and on the basis of this interpretation, holds that each citizen of Pakistan is free to exercise the right to profess, practise or propagate his or her religious views, even against the prevailing or dominant views of his or her own religious denomination or sect.
These are very powerful pronouncements, which could be used to challenge previous rulings on the rights of minorities such as the Supreme Court’s judgement in the Zaheerudin v. the State (1993) case, which is difficult to reconcile with the Court’s current reading of Article 20, that freedom of religion and conscience means that a majority religious denomination cannot impose its religious will on minority groups.
A welcome aspect of the Supreme Court’s judgement is also its interpretation of provisions of the Constitution relating to freedom of religion in light of international human rights law and standards. The Supreme Court notes that these standards “serve as moral checks and efforts are continually being made to incorporate these rights into domestic law”.
Determining that the scope of freedom of religion in Article 20 of the Constitution includes freedom of conscience and belief, the court’s judgement cites Article 18 of the International Covenant on Civil and Political Rights and the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, which set out the more broadly worded guarantee of the right to freedom of thought, conscience and religion.
The Supreme Court’s emphasis on incorporating international human rights law and standards into domestic law through judicial pronouncements is a welcome move, and one hopes it lays to rest voices within the legal community in Pakistan which dismiss international human rights as irrelevant Western constructs.
Another strength of the judgement is that it lays down a set of clear and binding directions. This is a rarity in recent Pakistani jurisprudence, where lofty ideals are often followed by weak orders, greatly reducing the impact of judgements.
Many of the court’s directions echo recommendations that the HRCP and other human rights groups have been making for many years. They include: setting up a task force for promoting religious tolerance; ensuring school curriculum promotes religious harmony; constituting a national council for the protection of minorities to frame policy recommendations for safeguarding and protecting rights of religious minorities; constituting a special police force to protect places of worship of religious minorities; ensuring that action, including registration of criminal cases, is promptly taken to bring perpetrators who violate rights of religious minorities to justice; and assigning a bench of the Supreme Court to oversee implementation of the judgement and entertain complaints related to violation of human rights of minorities in the country.
It would be naïve to expect that one judgement of the Supreme Court alone will be sufficient to remedy and redress persecution faced by religious minorities in Pakistan, which has roots in a complicated and checkered history. However, the government’s implementation of the court’s ruling, in consultation with and with the aid of civil society, will certainly be a significant move forward in the practical realisation of the right to freedom of thought, belief and religion.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, July 14th, 2014