October 25, 2020

Legal promises that remain unfulfilled for Pakistan’s minorities

Illustration by Aniqa Haider

“Work together in a spirit that every one of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what is his colour, caste, or creed, is first, second, and last a citizen of this State with equal rights, privileges, and obligations, there will be no end to the progress you will make…”

These were the words of advice the founder of Pakistan and its first Governor General, Muhammad Ali Jinnah gave to the First Constituent Assembly of Pakistan on August 11th 1947. It was the promise of these words which caused millions of people to march across the hastily drawn up border by Radcliffe and the British Empire, leaving their homes in India behind to become citizens of the young state of Pakistan. And more importantly, the same promise was also the reason why many people from non-Muslim minority communities in Pakistan chose not to leave this nascent young republic for India, hoping to be treated as equal citizens regardless of their faith. Alas, however, it has remained a promise largely unfulfilled.

In March 1949, just a few months after Muhammad Ali Jinnah passed away, the Prime Minister of Pakistan Liaquat Ali Khan betrayed that solemn promise and introduced the Objectives Resolution. Promoted as a ‘guiding document’ for the Constituent Assembly, it implicitly imposed Islam as a state religion on the country and made Pakistan into a theocratic state.

All the amendments proposed by non-Muslims to this resolution were rejected and the Objectives Resolution was passed by 29 members of the very same assembly which had heard the founder of the nation, a few years ago, warn them of committing the very same folly. This infamous resolution has sadly been retained in all three constitutions of Pakistan as a preamble and it has become a substantive part of the 1973 Constitution through the insertion of Article 2A in 1985.

In response to the criticism that passing such a resolution would lead to religious discrimination of minorities in Pakistan, Liaquat Ali Khan and his ilk always pointed to item no. 6 of the Objectives Resolution which guarantees the right for all minorities to freely progress and practice their religions and develop their cultures.

However, how well have we adhered to that principle?

In the 1950s this issue came to the forefront, when communal tensions in both Pakistan and India, between the Muslim and Hindu communities reached such a high point that it was feared it would lead to a second war between them. Each state criticized the other for not doing enough for the religious minorities it housed. It was at this point when the first Prime Ministers of both countries, Liaquat Ali Khan and Jawaharlal Nehru, met in Delhi and created a pact which is now remembered as the Liaquat-Nehru Pact.

It was also promised that forced conversions were not going to be recognised as legitimate by both states, especially in the light of communal tensions during the Partition.

As per this pact they promised to provide equal rights to all citizens in their country, which belonged to a minority religious community. This included the rights to hold public office and participate in public life. They also promised to make these rights enforceable, appointing minority commissions for areas in East and West Bengal and Assam, where communal tensions had reached dangerous levels.

It was also promised that forced conversions were not going to be recognised as legitimate by both states, especially in the light of communal tensions during the Partition. Lastly, this pact allowed refugees who had fled from their homes during Partition to come back and make adequate arrangements for disposal of their properties and to recover women who had been kidnapped during the Partition.

This pact was an aspirational document to be sure. That is sadly why it could hardly be enforced by either state. It is important to note however, that the Evacuee Trust Board of Pakistan, one of the first and longest lasting institutions dedicated to the rights of minorities in Pakistan, and entrusted to protect and preserve the properties of religious minorities left behind by the refugees during Partition, was actually created as per the promise made in Clause B(vi) of this pact.

When Pakistan promulgated the Constitution of Pakistan, 1973 learning from the lessons of the past, several important fundamental rights for religious minorities were expressly enshrined within it, finally honouring the agreement it made back in the 1950s. Apart from all fundamental rights being available to all persons or citizens, regardless of their religious faith or ethnicity, several of them were specifically drafted to empower religious minorities.

One major problem when it comes to enforceability of the above Constitutional rights is the bigotry and religious intolerance introduced in Pakistan from the 1970s to the 1990s.

Article 20 gave citizens the right to practice, profess and propagate religion. Article 21 banned religiously motivated discriminatory taxation. Article 22 ensured the schools in Pakistan would not compel children from minority communities to be taught the teachings of a religion they did not believe in while at the same time allowing minorities to open their own schools to teach religious instruction as they deemed fit to members of their own community. Lastly, no school receiving public funds was allowed to discriminate against the children of minority communities at the time of admission. Article 25 promised equality to all citizens, while Article 26 and Article 27 banned religious discrimination in public places and the services of Pakistan.

When read together, Part 1 of Chapter II of our Constitution provides minorities with full freedoms of equal citizenship. However, enforcement of these rights has been problematic. One major problem when it comes to enforceability of the above Constitutional rights is the bigotry and religious intolerance introduced in Pakistan from the 1970s to the 1990s.

A side effect of the ‘Jihad’ narrative used in Afghanistan to defeat the Soviets, this bigotry and religious intolerance had always been there and was slowly catching steam in Pakistan. It reached its zenith when Muhammad Zia-ul-Haq, Pakistan’s third and longest sitting military dictator, usurped power from the democratic government in 1979 and proceeded to change the electoral laws of Pakistan. His government made separate electorates for minorities, effectively finishing their right to be represented in parliament or to exercise any actual political power.

However, it would be unfair to lay the blame solely on Zia, as the democratic government before him in a bid to placate rioting religious bigots, amended the Constitution to make the Ahmadiyya community, who claim to be Muslims, a religious minority in Pakistan. They were declared non-Muslim in the eyes of the law. Zia however took this a step further by promulgating Ordinance XX, which makes it a criminal offence for a member of the Ahmadi community to practice his or her faith, since it is deemed to be substantially similar to the Islamic religion.

When this draconian ordinance was challenged and subsequently appealed, it was surprisingly upheld by the Supreme Court in the infamous Zaheerudin verdict. Similarly the infamous blasphemy laws of Pakistan, which have been used as a tool by the Muslim majority to subjugate members of other religions and sects have had serious impact on the expression of religious freedom by the members of the minority communities.

Since 2000, the situation seems to have improved, with the discriminatory electoral laws being repealed, and the Supreme Court of Pakistan passing a landmark judgement on the rights and freedoms of minorities in Pakistan in relation to religious expression and participation in public life in 2014. The Supreme Court, along with declaring these rights and freedoms, also directed the federal government to make a national minorities commission which can work towards improving the situation of religious minority communities in Pakistan.

In 2019, in another landmark moment for the rule of law, the Supreme Court acquitted and freed Asia Bibi, a Christian woman accused of blasphemy, despite massive protests by the religious right to have her executed.

One hopes that judgements such as the yet-to-be enforced 2018 judgement of the Islamabad High Court banning all religious minorities from constitutional posts and requiring faith affidavits from all persons in the service of Pakistan are left in the footnotes of our history books as they no longer represent us as a nation.

However, even today our elected representatives still either drag their feet or partake in the legal bigotry brought by Zia’s Islamization. Just in 2010, the Parliament of Pakistan voted a constitutional amendment which restricted the office of the Prime Minister of Pakistan, the highest executive office, to be only available to Muslim members. No minorities commission has been formed in the country either.

Where there is good news that trickles in day by day, such as the Sindh provincial government passing laws in favour of religious minorities ranging from progressive amendments in the Hindu marriage and divorce laws to the creation of a provincial minorities commission to making forced conversion a crime, there is however still a lot left to do. At the same time one hopes that judgements such as the yet-to-be enforced 2018 judgement of the Islamabad High Court banning all religious minorities from constitutional posts and requiring faith affidavits from all persons in the service of Pakistan are left in the footnotes of our history books as they no longer represent us as a nation.

We must now, hold fast to the promise of our founder and ensure that the right to profess, practice and propagate religion is provided to all citizens of Pakistan. Because it is within that solemn promise the future of our country lies.

Written by

The writer is a human rights lawyer working in Islamabad.

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