GIORDANO Bruno was a celebrated Italian philosopher who faced trial from 1592 to 1600 on charges of holding opinions that went against the predominant Catholic belief. Unable to bow to archaic worldviews, he was eventually burned at the stake.
Interestingly, the names and means of censuring those put on trial may have changed in today’s world. But it is a fact that freedom of thought is still as distant a dream in many places as it was in the 16th century.
Pakistan’s Constitution gives every citizen the freedom of expression. At the other end, Article 260(3) classifies segments of society as ‘non-Muslims’.
In pursuance of Article 260(3), as it was then, Gen Ziaul Haq introduced Ordinance No. XX of 1984, restricting certain non-Muslim communities from posing as Muslims or using any epithet typically attributed to the Muslim faith.
No curbs should be put on an individual holding a certain opinion.
As per a majority Supreme Court decision in the Zaheeruddin case, the ordinance was held to be lawful. But in his dissenting note, justice Shafiur Rehman saw portions of it as violative of the rights of non-Muslims, and more importantly, dangerous consequences arising from its enforcement.
Justice Rehman appeared concerned that enforcement may result in the state attempting to read its citizens’ minds, and in doing so, possibly punishing them for harbouring views contrary to the established narrative. It was perhaps in light of this that in his dissenting note he held that if culpability in any offence required an inquiry into the inner recesses of the mind and one’s beliefs and opinions, then such legislation would inevitably violate fundamental rights.
Implicit in his reasoning was the notion that although freedom of expression is subject to reasonable restrictions, the latter may not be placed on one’s ability to hold a certain opinion.
The concerns of justice Rehman were legitimate. In fact, they had already been set in motion much prior to the judgement in question. In order to obtain a passport, the state had introduced a requirement, existing to date, that every Muslim must sign a declaration contained in the passport application forms unequivocally adjudging certain members of society to be non-Muslims.
This declaration, as well as its contents, has been challenged before the Supreme Court. The court, in considering the matter, shall necessarily be taking into account various aspects of the issue.
One aspect pertains to the impact of the declaration on the freedom of thought as guaranteed to every citizen. Interestingly, the predicament in signing the declaration has never really been in acknowledging the existence of a certain legal position in law. After all, the declaration simply reiterates, whether rightly or wrongly, the definition of a Muslim and non-Muslim as contained in the Constitution.
The problem, in fact, lies in its attempt to curtail any dissension that could result in opposition to the contents and utility of the law. The expression of a contrary opinion is irrelevant. Simply having it is what the declaration has an issue with. It does not aim to seek obedience to the law, but attempts to forcefully obtain our subjective approval for the religious classifications that it creates. In simple words, it attempts to reach into the recesses of our minds, censor our thoughts, and shepherd our opinions.
This unreasonableness may be better established by way of example. In the promulgation of the Protection of Pakistan Ordinance, 2013, every prudent resident acknowledged the sanctity of the law. However, this in no way disallowed the public from criticising the content of the law, or disagreeing with its utility. Therefore, some applauded it, others derided it as an infringement of fundamental rights. Nonetheless, the law remained in the field and was followed. If anything, the ability to criticise the contents of the legislation eventually allowed for useful modifications in the act that was formally enacted in 2014.
However, in relation to Article 260(3) and the ordinance, the declaration limits the ability of the citizens to critique, criticise, or discuss the contents of that law. In effect, the discussion is no longer about the infringement of religious liberty, but rather the ability of a citizen to freely think about the correctness of a subject matter independently of the viewpoint adopted by the state.
Essentially, the declaration symbolises the state’s resolve to not only restrict actions allegedly outraging Muslim sentiments, but also to restrain citizens from maintaining an independent viewpoint about existence of such laws. Such a resolve is not necessarily limited to any single legislation. However, it is crafted to stifle debate, to the extent that on a societal level, to borrow a quote from Voltaire, it has now become “dangerous to be right in matters on which the established authorities are wrong”.
The writer is an attorney-at-law.
Published in Dawn, October 12th, 2014