What is the common thread in the military operation against militants in Fata, the growing sectarian divide and violence in society and the persecution of minorities in Pakistan? The ‘right’ to impose one’s beliefs on others, or the right to religious freedom?
The answer to this issue divides, at times violently, people along political, inter- and intra-religious and sometimes, ethnic and social lines. Without doubt, it is one of the key existential questions facing Pakistan.
In 2008, Obama was elected as the first African American president of the US. But not too long ago — in the 1950s — America faced an equally imperative moral dilemma in the form of racial segregation and discrimination against the African Americans.
Religious freedom and protection of minority rights are now at the top of the Supreme Court’s agenda.
In 1954, the US Supreme Court, through a unanimous judgement in the ‘Brown vs Board of Education’ case, declared racial segregation unconstitutional. A problem that had divided America with violent social and political implications, that had seemed intractable and incapable of resolution, could now be rectified thanks to the dramatic, radical intervention of only nine judges.
In Pakistan, a case presided over by three Supreme Court judges and simply called ‘Suo Motu Case No.1/2014’ produced a 32-page judgement. Dated June 19, 2014 and authored by one of the gentlest of chief justices, Justice Tassaduq Hussain Jillani, it dropped a judicial bombshell comparable to the US Supreme Court judgement in the Brown case. This ruling, mistakenly labelled a judgement on religious minority rights, is actually on a much larger canvas dealing with the meaning of the fundamental right to belief or religious freedom for both Muslims and religious minorities.
The basis of this suo motu case was the Peshawar church bombing last September and threats to the Kalash tribes and the Ismailis of Chitral. But after dealing with 10 complaints regarding the violation of various minority rights, the Supreme Court dramatically widened its jurisprudential canvas.
Although the court acknowledges that various special rights are conferred on Muslims only, for instance, the president can only be a Muslim etc, insofar as the right to belief or religious freedom is concerned Article 20 of the Constitution neither uses the word ‘Muslim’ nor ‘non-Muslim’, neither ‘majority’ nor ‘minority’. Instead, it confers the right to belief on every citizen. In other words, Muslims don’t have a superior or special right to belief over non-Muslims. Rather, there is an ‘equal religious protection clause’ under Article 20 for all Pakistani citizens.
Secondly, “the right to profess and practise is conferred not only on religious communities but also on every citizen”. In other words, every citizen can exercise such a right to belief against the dominant religious views of his own community too.
Thirdly, within religious communities, sects have a right to belief against the views of their own co-religious denominations. Religious freedom for sects, not sectarian hatred, is a constitutional right.
Fourthly, the right to belief has “three distinct rights, ie right to profess, right to practice and right to propagate”. Therefore, if all citizens, Muslims and non-Muslims, have an equal right to profess, practise and propagate their faith, then no citizen, including a Muslim, can have a superior right to convert others or impose his beliefs.
This verdict relies on Islamic jurisprudence for its reasoning but additionally, it does two judicially creative things. Firstly, it tries to remove the amnesia of Muslims in Pakistan by reminding them that “the very genesis of our country is grounded in the protection of the religious rights of all, especially those of minorities”. This is indeed an embarrassing irony for Muslims in Pakistan.
Secondly, in a dramatic move and without legal precedence, the Supreme Court urges Pakistani Muslims to apologise to religious minorities by stating that it “requires strong moral courage for an individual or a nation to apologise for having wronged a community”. Moreover, the Supreme Court also reminds itself of its own judicial anthem ‘justice for all’, implicitly admitting that this vision (especially the right to religious freedom for all and protection of minority rights) remains unfulfilled.
The above declarations would have been historic in themselves but the court was on a confessional journey. It further acknowledges that “despite elaborate textual guarantees for minorities’ rights empirical realities reflect … a dismal state of affairs”. Therefore, the Supreme Court creates an institutional framework, consisting of seven directions, to implement these “elaborate textual guarantees”.
These seven directions can be divided into four categories. First, policy review by the creation of a task force to develop a strategy for religious tolerance. Second, social-cultural engineering by curricula development at school and college levels to promote a culture of religious and social tolerance and also appropriate steps to ensure hate speech is discouraged and punished. Third, formation of institutional structures like a national council for minority rights and a special police force to protect minority places of worship. Fourth, relief measures like the enforcement of relevant policy directives regarding quota reservations for minorities in all services and prompt action by law-enforcement agencies in all cases of violation of minority rights.
Left to an ineffective and scared government, these directives may remain unimplemented even if they look beautiful on paper. Therefore, the court has constituted a permanent three-member Supreme Court bench, to ensure implementation. This bench will also have the power to hear complaints regarding the violations of minority rights.
Although yet to be constituted, such a bench with the onerous task of enforcing the right to religious freedom, in such intolerant times, is quite unprecedented in Pakistan’s judicial history. Most importantly, religious freedom and protection of minority rights are now at the top of the court’s agenda.
Of course, there are jurisprudential problems in this judgement and some have argued that it doesn’t go far enough. But irrespective of its flaws, it does clear the confusion regarding the right to religious freedom and also extends the forum of the Supreme Court to an intimidated government and civil society for the possible construction of a more tolerant society.
The writer is a lawyer.
Published in Dawn, August 9th, 2014