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| India-Pakistan |
| Freedom of belief |
| 2014-08-09 |
| [DAWN] In Pakistain, 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 Moslems and religious minorities. The basis of this suo motu ...a legal term, from the Latin. Roughly translated it means I saw what you did, you bastard... case was the Beautiful Downtown Peshawar ...capital of Khyber Pakhtunkhwa (formerly known as the North-West Frontier Province), administrative and economic hub for the Federally Administered Tribal Areas of Pakistan. Peshawar is situated near the eastern end of the Khyber Pass, convenient to the Pak-Afghan border. Peshawar has evolved into one of Pakistan's most ethnically and linguistically diverse cities, which means lots of gunfire. 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 Moslems only, for instance, the president can only be a Moslem etc, insofar as the right to belief or religious freedom is concerned Article 20 of the Constitution neither uses the word ‘Moslem’ nor ‘non-Moslem’, neither ‘majority’ nor ‘minority’. Instead, it confers the right to belief on every citizen. In other words, Moslems don’t have a superior or special right to belief over non-Moslems. Rather, there is an ‘equal religious protection clause’ under Article 20 for all Pak 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, Moslems and non-Moslems, have an equal right to profess, practise and propagate their faith, then no citizen, including a Moslem, 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 Moslems in Pakistain 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 Moslems in Pakistain. Secondly, in a dramatic move and without legal precedence, the Supreme Court urges Pak Moslems 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 Pakistain’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. |
| Posted by:Fred |
| #1 My apologies for accidentally cutting off much of the article in an attempted p.49 last night. I've fixed it, though if Fred had any commentary, that's been lost. |
| Posted by: trailing wife 2014-08-09 09:55 |