SHORTLY before his
seven-month term as the chief justice of Pakistan came to an end, Justice
Tassadduq Hussain Jillani authored a landmark judgement concerning the rights
of religious minorities. The judgement, delivered on June 19, 2014, was issued
in a case taken up by the Supreme Court suo motu, after the bombing of a church
in Peshawar in 2013 that killed over 100 people. Respect for the rule of law,
the Constitution, and Pakistan’s international human rights obligations require
that the government promptly take steps to implement the judgement in letter
and spirit.
Persecution of religious minorities, by state and
non-state actors, is among the most serious human rights abuses faced by people
in Pakistan today. The Human Rights Commission of Pakistan (HRCP) reported that
687 people were killed in sectarian violence in more than 200 attacks in 2013.
In a recent report, Human Rights Watch documented 52 killings of Shia pilgrims
in 2014. And just last month, the UN special rapporteur on freedom of religion and
belief, Mr Heiner Bielefeldt, expressed concern at attacks against the Ahmadi
community and urged Pakistan to guarantee the right to freedom of religion or
belief.
These figures paint a grim picture, which is
vividly highlighted and strongly condemned in the Supreme Court judgement. But
what makes it one of the most important rulings in Pakistan’s recent human
rights jurisprudence is the enhancement of the scope of freedom of religion,
using international human rights law, and a set of clear and binding directions
to the government to remedy the persecution of religious minorities in
Pakistan.
The
judgement of June 19 clarifies and expands the scope of Article 20.
While
the Supreme Court has expanded its human rights jurisdiction under Article
184(3) greatly in recent years, rulings that examine and clarify the contours
of fundamental rights in the Constitution in light of Pakistan’s current social
realities and international law obligations are still surprisingly few and far
between. Under the leadership of former chief justice Iftikhar Chaudhry, for
example, the Supreme Court often decided cases on the basis of short orders,
containing little or no legal reasoning, rather than in detailed judgements
based on a legal interpretation of fundamental rights.
In contrast, the judgement of June 19 clarifies and
expands the scope of Article 20 of the Constitution, which guarantees the right
to freedom of religion. The court explains that religion cannot be defined in
rigid terms, and holds that freedom of religion must also include freedom of
conscience, thought, expression, belief and faith. The court elaborates that
these freedoms have both an individual and a community aspect, and on the basis
of this interpretation, holds that each citizen of Pakistan is free to exercise
the right to profess, practise or propagate his or her religious views, even against
the prevailing or dominant views of his or her own religious denomination or
sect.
These are very powerful pronouncements, which could
be used to challenge previous rulings on the rights of minorities such as the
Supreme Court’s judgement in the Zaheerudin v. the State (1993) case, which is
difficult to reconcile with the Court’s current reading of Article 20, that
freedom of religion and conscience means that a majority religious denomination
cannot impose its religious will on minority groups.
A welcome aspect of the Supreme Court’s judgement
is also its interpretation of provisions of the Constitution relating to
freedom of religion in light of international human rights law and standards.
The Supreme Court notes that these standards “serve as moral checks and efforts
are continually being made to incorporate these rights into domestic law”.
Determining that the scope of freedom of religion
in Article 20 of the Constitution includes freedom of conscience and belief,
the court’s judgement cites Article 18 of the International Covenant on Civil
and Political Rights and the Declaration on the Elimination of All Forms of
Intolerance and of Discrimination Based on Religion or Belief, which set out
the more broadly worded guarantee of the right to freedom of thought,
conscience and religion.
The Supreme Court’s emphasis on incorporating
international human rights law and standards into domestic law through judicial
pronouncements is a welcome move, and one hopes it lays to rest voices within
the legal community in Pakistan which dismiss international human rights as
irrelevant Western constructs.
Another strength of the judgement is that it lays
down a set of clear and binding directions. This is a rarity in recent
Pakistani jurisprudence, where lofty ideals are often followed by weak orders,
greatly reducing the impact of judgements.
Many of the court’s directions echo recommendations
that the HRCP and other human rights groups have been making for many years.
They include: setting up a task force for promoting religious tolerance;
ensuring school curriculum promotes religious harmony; constituting a national
council for the protection of minorities to frame policy recommendations for
safeguarding and protecting rights of religious minorities; constituting a special
police force to protect places of worship of religious minorities; ensuring
that action, including registration of criminal cases, is promptly taken to
bring perpetrators who violate rights of religious minorities to justice; and
assigning a bench of the Supreme Court to oversee implementation of the
judgement and entertain complaints related to violation of human rights of
minorities in the country.
It would be naïve to expect that one judgement of
the Supreme Court alone will be sufficient to remedy and redress persecution
faced by religious minorities in Pakistan, which has roots in a complicated and
checkered history. However, the government’s implementation of the court’s
ruling, in consultation with and with the aid of civil society, will certainly
be a significant move forward in the practical realisation of the right to
freedom of thought, belief and religion.
The writer is a legal adviser for the International
Commission of Jurists.
reema.omer@icj.org Twitter: reema_omer
Published in Dawn, July 14th, 2014 http://www.dawn.com/news/1118991
No comments:
Post a Comment