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Supreme Court Of Pakistan Give Meaning To The Word ‘Freely’ In Article 2-A or Not?

By Yasser Latif Hamdani

February 24, 2020

The Objectives Resolution passed on 12 March 1949 was seen as a compromise between the secularists, modernist Muslims and the Islamists in the newly founded Pakistan. The document had also faced vociferous criticism from the minorities who feared that it was committing Pakistan to an exclusivist theocratic polity. To others it was an abject surrender to the will of the priestly class. All these criticisms are valid and time has proved the minority view on the Objectives Resolution right, especially since 1973. However to safeguard religious liberty in the country the framers put this very important clause in the document that is often overlooked: “Wherein adequate provision shall be made for the minorities freely to profess and practice their religions and develop their culture”. It contained the word “freely” to profess and practice religion as well as to develop their culture. Article 20 of the Constitution of 1973 went a step further and made the right to propagate one’s religion a fundamental right. Objectives Resolution was the preamble of all four Constitutions of Pakistan 1956, 1962, 1972 and 1973.

On 2 March 1985 the Presidential Order 14 added the Objectives Resolution as Article 2-A of the Constitution making it substantive part beyond merely a preamble. The intent behind this was to give constitutional cover to General Zia-ul-Haq’s Islamisation of Pakistan. Whoever the genius was behind this move cleverly omitted the word “freely” from the Constitution. They probably realised that to keep “freely” would mean that Ordinance XX of 1984, which took away the right of Ahmadis to profess, practise and propagate their religion or to call themselves Muslims and their places of worship mosques, would be unconstitutional. Accordingly in 1993, the Supreme Court in Zaheeruddin v State 1993 SCMR 1718 abolished religious freedom for Ahmadis and upheld Ordinance XX of 1984 as constitutional. Such a decision would not have been possible if the word “freely” existed in the appendix to Article 2A. Through the 18th Amendment in 2010, the word “freely” was inserted again into the appendix and General Zia’s decision to take it out was declared a “fraud” by the Supreme Court of Pakistan.

Since 1984 the Ahmadi community is denied the right to profess and practise their religion and to develop their culture freely. The apologists for this action say that the Constitution has declared them Non-Muslim under the 2nd Constitutional Amendment in 1974 and therefore the very exercise of their religion would be unconstitutional. This is an incorrect view. The Constitution declared Ahmadis Non-Muslim for the purposes of law and constitution. This means that under the 1973 Constitution they were barred from holding the office of the President and Prime Minister just like other minorities. Obviously this discrimination against religious minorities is a sad and odious one. So is the idea that the Constitution would take it upon itself to sit in judgment over the personal faith of a citizen. Nevertheless the Constitution does not require Ahmadis to stop professing themselves as Muslims. That would be completely unconscionable and in violation of the UN Human Rights Declaration.

However after the Ordinance XX of 1984 which added 298-C to the Pakistan Penal Code, Ahmadis have been subjected to precisely that denial. Not only is it a crime for them to call themselves Muslims but the practical application of the law has been that if they keep literature of their own faith, it is subject to forfeiture and can put them behind bars for three years along with fine. Their religious gatherings even in the town of Rabwah is banned. Their spiritual leader has not returned to Pakistan in 36 years because he would be immediately detained and possibly put to death.

Pakistan is not just exactly as priest ridden as India, in some respects it is far worse. So the question is whether the Supreme Court of Pakistan give meaning to the word “freely” in Article 2-A or not?

This is not only a denial of free profession, practice and propagation of faith, it is denial of any profession, practice or propagation of it. The fashionable statement to make is that they do not accept the Constitution and therefore are denied these rights. It is a ridiculous constitutional interpretation to suggest that disagreeing with any Article or provision of the Constitution is akin to its denial. The Constitution provides a procedure of amendment precisely because not everyone will agree to it. Thus the whole edifice of discrimination and denial of fundamental rights to Ahmadis is ultra vires the same Constitution, anti-Ahmadi priestly class and others rely on. I wonder how it is that the Supreme Court of Pakistan has been quiet on this issue. Why has the word “freely” been made redundant despite Supreme Court’s forthright position that its omission in 1985 was a “fraud” by the Zia regime?

The only answer to that question is that no one in our superior judiciary has courage, even those incredible judges who we know to be progressive and liberal, to undo what is a clear case of unconstitutional denial of religious liberty to a section of our society. The role of Supreme Court and indeed the High Courts must be to protect minorities against majoritarianism, especially the naked and fascist kind that prevails in this country. Last week an Ahmadi place of worship (since Ahmadis cannot call it a mosque under law) which had been with them for 84 years since before the founding of Pakistan was forcibly taken over in Kasur and handed over to the officially sanctioned Muslims.

A few days ago the Chief Justice of Islamabad High Court, one of the two most enlightened judges in the country today, had while hearing the bail petitions of the Islamabad protesters said “This is Pakistan not India” meaning that fundamental rights cannot be denied. Obviously Indians were taken aback and for that reason alone it was brilliant obiter dicta. What Pakistanis did not get however was that His Lordship had also stated as an ambition to ensure that Pakistan does better than its increasingly fascist neighbor. It is not just an aspiration but was the very raison d’etre of the creation of this country, i.e. we will make a more just, progressive and inclusive society free of the priest ridden society that Caste Hindu majority in India may create. In terms of Ahmadis most certainly, Pakistan has a law that makes that claim a very hollow one indeed. Pakistan is not just exactly as priest ridden as India, in some respects it is far worse. So the question is whether the Supreme Court of Pakistan give meaning to the word “freely” in Article 2-A or not? Fat jstitia ruat cælum is an established legal maxim which is translated as “let justice be done though the heavens fall.” A fearless and enlightened judge should be willing to reverse this persecution of Ahmadis, even if it leads to Dharnas, marches and violence. No argument of expediency should be allowed to stand in the way of justice.

Yasser Latif Hamdani is an Advocate of the High Courts of Pakistan

Original Headline: The word “freely” in Objectives Resolution

Source: The Daily Times