Naeem Shakir

The development of multiethnic societies has increased the importance of freedom of religion, and the concept of freedom of conscience has helped in redefining religion. Religion does not have to be theist or dependent on a god. Any sincere belief in ethical qualities is religious because such qualities as truth, love and beauty are sacred, and the advancement of any such belief is the advancement of religion.

Justice Clark of the U.S. Supreme Court in United States vs. Seager in 1965 observed: 'A sincere and meaningful belief, which occupies in the life of its possessor a place parallel to that filled by the God of those admittedly qualifying for exemption on the grounds of religion, comes within the statutory definition.'

Thirty-five years later while addressing the Millennium World Peace Summit on Aug. 29, 2000, U.N. Secretary-General Kofi Anan said the fundamental right to freedom of religion encompasses 'the right to worship; to establish and maintain places of worship; to write, publish and teach; to celebrate holidays; to choose their own religious leader; and to communicate to others at home and abroad.' He called on governments to uphold these freedoms and added: 'Where governments and authorities fail to protect these freedoms, it is at once an affront and a menace.'

The concept of freedom, liberty and human rights have with the passage of time developed with human civilisation. The United Nations, of course, facilitated this process of development and provided a forum to think and decide together as people belonging to different religions, creeds, cultures and races to evolve a treatise to live together in the pluralistic societies of today. This development of thought and learning has set standard legislation internationally for governments to follow and practice. Any violation of these rights becomes a concern for the world community; but if these rights are usurped at the state level in basic documents, like the Constitution and statute law, then the situation becomes grave for the community and poses a serious threat to the members of the global village as well.

Therefore, religious freedom has to be examined on a broader canvas. Apart from freedom to profess and propagate religion and freedom to manage religious affairs and institutions, such subjects as religion and social tolerance, religion and politics and religion and economics are equally important. The dominance of a particular religion in a State or a social structure will eventually entail complications in different fields of life. Freedom of religion must not exist for one and be restricted and limited for another because freedom for one is freedom for another in equal measure.

Although the extent of religious freedom may be measured by the State's basic document, the Constitution, the exercise and enjoyment of such a right is however dependent on the socio-political philosophy and the socio-cultural environment that exists in that state. In the case of Pakistan, there has been tremendous drift downwards in the context of religious freedom. Its founders were rather more clear about providing religious freedom to the country's citizens in 1947 when the new nation of Pakistan emerged as a result of the partition of India and the exit of the British colonialists from the Indian sub-continent. Muhammad Ali Jinnah, the father of the nation and the Qaid-e-Azam, while giving his presidential address to the Constituent Assembly of Pakistan in Karachi on Aug. 11, 1947, said:

'[Y]ou are free to go to your temples; you are free to go to mosques or any other place of worship in this state of Pakistan. You may belong to any religion or caste or creed; that has nothing to do with the business of the State.'

The situation, however, changed soon after his sad demise on Sept. 11, 1948. The infant nation fell prey to the palace intrigues and hobnobbing of the politicians with the establishment. The vested interests took refuge in religion and used religious parlance in the socio-political field. A radical change was introduced in the socio-political corpus through the Objectives Resolution passed by the Constituent Assembly of Pakistan on March 12, 1949, which provided an Islamic base to the new nation. This was a departure from the stand taken earlier by the country's founders.

More than half a century has passed since then. During this period, massive change has occurred in its socio-political life. It is now a nation ridden with sectarian conflicts and is suffering from an identity crises. There has never been a true democratic order in the country. Half of its national life has been under military rule, and the military junta is once again ruling the country. Corruption and intrigues for power are rampant. Its economy is in a deep crisis with its foreign debt amounting to US billion, and the internal debt is no less. Moreover, since May 1998, it has become a nuclear power. It exploded six nuclear bombs to make such a dangerous declaration, threatening peace in the region in the process. In addition, it spends 80 percent of its budget on defence and debt servicing. Its literacy rate is hardly 30 percent whereas its population growth rate is 3 percent.

In order to examine the fundamental rights of the country's citizens, including religious freedom, a brief reference to the three Constitutions framed and enforced in 1956, 1962 and 1973 is necessary. The first two Constitutions were abrogated by the martial law regimes whereas the 1973 Constitution was held in abeyance by Gen. Zia ul-Haq, the military dictator who captured power by overthrowing an elected government on July 5, 1977. After four interim and four elected governments from 1988 to 1999, the country is again under military rule since Oct. 12, 1999, headed by Gen. Pervaiz Musharaf.

Article 18 of the 1956 Constitution provided the right of religious freedom:

'Subject to law, public order and morality,

(a) every citizen shall have the right to profess, practice and propagate his religion, and

(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.'

Article 10 of the 1962 Constitution and Article 20 of the 1973 Constitution also guarantee this right in the same language. The import of the words used in all three

Constitutions embraces two concepts: freedom to believe and freedom to act. The phrase 'subject to law, public order or morality' has often been subjected to sectarian affiliations, and non-Muslim citizens have been denied their right of religious freedom, either defeating justice by inordinately delayed court decisions or by the supremacy of the Shariah of Islam. Meanwhile, the executive authorities are mostly influenced by the militant religious zealots who have played havoc with society.

Article 2 of the 1973 Constitution postulates that 'Islam shall be the state religion of Pakistan.' Such a basic constitutional change could only happen by the year 1973 when the religious lobby had grown strong enough to exert such pressure. This demonstrates the influence of the religious forces on state institutions. The 1973 Constitution was framed and enforced during the government of Zulfiqar Ali Bhutto whose election manifesto was based on Islamic socialism.

It was during this time that the policy of appeasement toward the religious lobby was made the basis of state policy. Z. A. Bhutto proclaimed Ahmadies out of the pale of Islam by declaring them to be non-Muslims through the Constitution (Second Amendment) Act of 1974. This amendment has had serious implications for this religious group as they were later persecuted at the state level through legislation, which caused ridicule and humiliation to their creed and leader. While Z. A. Bhutto was loosening the political ground, he, in order to please the religious lobby, declared Sunday as a working day and Friday as a holiday, and he ordered the prohibition of liquor. However, these supposedly Islamic steps could not help him hold the seat of power as his government was overthrown by a military coup headed by Gen. Zia ul-Haq in 1977.

This process of change accelerated during the martial law period from 1977 to 1987 of Gen. Zia, who took upon himself to Islamise the society. The Objectives Resolution, which had served as a preamble to the Constitutions of 1956, 1962 and 1973, was made a substantive part of the Constitution by the incorporation of Article 2-A and was placed as an annexure to this article. While serving as a preamble, the sixth paragraph of the Objectives Resolution read as follows:

'An adequate provision shall be made for the minorities freely to profess and practice their religion and develop their culture.'

However, the word freely was deleted from the text when it was placed as an annexure to Article 2-A. It was deliberately a malafide act on the part of the military ruler to delete this important word freely, which later had serious repercussions in the socio-political structure. It introduced an element of religious extremism, and the sectarian legislation made thereafter promoted religious discrimination against the country's minorities. In order to gain religious support for his government, Gen. Zia collaborated with the religious fundamentalists. Thus, the religious fundamentalists, who never were voted into the national or state assemblies, were brought to the corridors of power through administrative measures.

The religious parties, like Jamaat-i-Islami, operating in the field of politics were encouraged by the military government. They kept embarrassing each government and the various political forces by exercising influence by playing the religious card. Meanwhile, religious extremist organisations, like Sipahe Sahaba, sharpened the sectarian divide. These groups introduced violence, killing members of other groups in the name of religion. Its members openly marched in public displaying lethal weapons and overawed their opponents in particular and the public in general. There was the implied patronage of the government for the armed militancy of these religious extremists. It was during this time that armed militant groups, like Daawat ul Irshad, emerged to carry out a 'jihad' in Afghanistan and later in Kashmir. Similar religious groups sprung up like mushrooms that spread a culture of violence and hate. The religious minorities were not alone in their fear of these groups, for even the Muslims felt scared and insecure at the hands of these zealots masquerading in the name of religion and jihad.

In the process of Islamisation that Gen. Zia initiated, a number of pieces of sectarian legislation were promulgated.

First of all, his Islamic version of criminal law was introduced into the Pakistan Penal Code by providing Islamic punishment in the form of Hudood Laws. The Offences against Property (Enforcement of Hudood) Ordinance of 1979 related to theft cases. The word hadd used in Islamic criminal laws meant 'punishment ordained by the holy Qur'an or Sunnah.' The punishment for theft liable to hadd for the person committing the offence of theft for the first time is amputation of his right hand from the joint of the wrist; and if such a person commits the offence a second time, he shall be punished with amputation of his left foot up to the ankle. The proof of theft liable to hadd requires the evidence of 'at least two Muslim adult male witnesses who are supposed to be truthful persons who abstain from major sins.' Section 25 of this ordinance provides that the presiding officer of the court shall be a Muslim.

The second ordinance was called the Offence of Zina (Enforcement of Hudood) Ordinance of 1979. Zina was defined thus: 'A man and a woman are said to commit zina if they wilfully have sexual intercourse without being validly married to each other.' The punishment of this offence is stoning to death in a public place or 100 lashes of a whip in a public place. The proof of zina shall require the evidence of at least four Muslim adult male witnesses about whom the court is satisfied that they are truthful and abstain from major sins and have witnessed the act of penetration. Once again, the presiding officer of the court shall be a Muslim. Both of these ordinances, however, are applicable to non-Muslims as well.

The next law initiated by Gen. Zia was the Prohibition (Enforcement of Hadd) Order of 1979, which prohibited the use of liquor. Christians may use liquor for religious ceremonies by obtaining liquor permits issued by the government. The punishment for the use, manufacture, bottling, possession and transportation of liquor under this law includes life imprisonment or not less than imprisonment for two years along with whippingÐnot exceeding 30 lashesÐand the offender shall also be liable to a fine. The evidence of 'at least two Muslim adult male witnesses' who lead life according to the injunctions of Islam is required to prove this offence.

In addition to these laws and their effects on non-Muslims, the testimony of non-Muslim citizens has been rendered secondary to that of a Muslim as it is adjudged and measured in terms of the principles laid down in the Qur'an and Sunnah under the new Evidence Act with an Islamic nameÐthe Qanoon -e- Shahadat of 1984.

Furthermore, a supraconstitutional enactmentÐthe Enforcement of Shariah Act of 1991Ðwas promulgated. Section 3 of the act declares that 'the Shariah, that is to say, the injunctions of Islam as laid down in the Holy Qur'an and Sunnah, shall be the supreme law of Pakistan.' However, Section 4 of the act states that laws shall be interpreted in the light of the Shariah. This act makes it obligatory for the State to undertake the Islamisation of education (Section 7), the Islamisation of the economy (Section 8), the Islamisation of the mass media (Section 9) and the Islamisation of the judicial system (Section 14).

Although Section 1(4) of the act says that personal laws, religious freedom, traditions, customs and the way of life of non-Muslims shall not be affected, the practical position belies this statuary assurance. When every field of life shall be tuned according to the injunctions laid down in the Qur'an and Sunnah, how on earth is it possible for minorities to practice their personal laws, enjoy religious freedom and lead their own way of life? Thus, there has been a serious invasion against the personal laws of non-Muslims because the laws are interpreted according to the injunctions of Islam.

I may state that ours is a feudal society. The abduction of non-Muslim women is a common feature. The Muslim abductor forcibly takes away a married Christian or Hindu woman and, in order to avoid the rigors of the penal law, converts the abductee to Islam and undergoes the procedure of Islamic marriage with her. The whole exercise is undertaken in such a mechanical manner that a sheer mockery is made of the law. Since the Shariah has become the supreme law, and the statute law has to be interpreted according to the injunctions of Islam, her earlier marriage under the Christian Marriage Act practically stands dissolved ipso facto. Why? Because she has supposedly embraced Islam and she, being a Muslim, is prohibited from marrying a non-Muslim. As the Shariah has to prevail, the institution of Christian marriage is rendered a fragile thing, and the personal law of non-Muslim citizens becomes meaningless.

Moreover, the Federal Shariat Court has been constituted, which has set up a parallel judicial system in the country. This court works as a court of appeal for criminal cases tried under Shariah law. Under Article 203-D of the Constitution, the Federal Shariat Court has been empowered to strike down any statute law which may be deemed repugnant to the injunctions of Islam. As a result, it has dealt a serious blow to the supremacy of Parliament.

There are also other implications. A practising lawyer, who is not a Muslim, faces discrimination and is deprived of their fundamental right to pursue their profession under Article 18 of the Constitution; for under the rules of the Federal Shariat Court, they cannot appear and practice if they are a non-Muslim lawyer. On the other hand, Islamic criminal law is applicable to them.

A stunning blow causing serious damage to the socio-political status of non-Muslim citizens was administered through amendments to the electoral laws and the country's Constitution whereby an apartheid mode of separate electorates was imposed on the nation in general and non-Muslim citizens in particular. The electoral lists have now been separated into Muslim and non-Muslim voters. Both cannot vote for each other during elections as electoral constituencies have been separated on sectarian lines into five religious groupsÐone for Muslims and the other four for non-Muslim citizens. The so-called 'representation' of minorities under separate electorates has thus further divided them on sectarian lines. There has never been any legislative move by the minority politicians to better the lives of their electorate as their votes are pawned with the ruling party for personal gain. This apartheid mode of separate electorates has thrown the non-Muslim citizens of Pakistan out of the mainstream of national life. They are now second-class citizens. They no longer take part in the business of the State. The right to vote stands classified on religious lines, and citizens are deprived of their ability to fully enjoy the right of adult franchise. They thus stand marginalised.

The law on blasphemy also belongs to the era when the country was under the military rule of Gen. Zia. The offences relating to religion have been given in Sections 295, 295-A, 295-B, 295-C, 296, 297, 298, 298-A, 298-B and 298-C of the Pakistan Penal Code. Section 295-B, for example, makes it an offence to defile, damage and desecrate the Holy Qur'an, a crime which is punishable with life imprisonment. Section 295-C prescribes a mandatory death penalty for anyone found to have by words, either spoken or written, or by visible representation or by any imputation, innuendo or insinuation, directly or indirectly, defiled the sacred name of the Holy Prophet Muhammad. It neither defines the terms used, such as 'defilement,' nor looks into the criminal intent of the alleged offender. This law has been frequently and ruthlessly abused for religious persecution and for settling personal scores. Christians and Ahmadies have been the most hard-hit victims of this law. It has consistently been urged by human rights organisations that laws which criminalise the profession and practice of religion must be brought to an end.

As a matter of fact, the State's basic document, i.e., the Constitution, does not recognise non-Muslims as full citizens because only Muslim citizens qualify for public offices of the State. A few glaring examples are mentioned below. Article 41, for instance, relates to the office of the president:

'(1) There shall be a president of Pakistan who shall be the head of state and shall represent the unity of the republic.

'(2) A person shall not be qualified for election as president unless he is a Muslim of not less than 45 years of age and is qualified to be elected as a member of the National Assembly.'

The oath of office for president under Article 42 and for prime minister under Article 91(4) is:

'I, _____, do solemnly swear that I am a Muslim and believe in the unity and oneness of Almighty Allah, the Books of Allah, the Holy Qur'an being the last of them, the Prophethood of Muhammad (peace be upon him) as last of the Prophets and that there can be no Prophet after him, the day of judgement and all the requirements and teachings of the Holy Qur'an and Sunnah.'

Meanwhile, the text for the oath of office of a federal minister or minister of state under Article 92(2), for speaker of the National Assembly or chairman of the Senate under Articles 53(2) and 61, for deputy speaker of the National Assembly or deputy chairman of the Senate under Articles 53(2) and 61, for members of the National Assembly or members of the Senate under Article 65, for the governor of provinces under Article 102, for chief minister or provincial minister under Articles 131(4) and 132(2), for speaker of a provincial assembly under Articles 3(2) and 127, for deputy speaker of a provincial assembly under Articles 53(2) and 127 and for members of a provincial assembly under Articles 6S and 127 is:

'That I will strive to preserve the Islamic ideology which is the basis for the creation of Pakistan.'

These constitutional provisions do not allow a non-Muslim citizen of Pakistan to hold these public offices of the State.

The legislative measures introduced to Islamise the society leave no room for non-Muslims to freely profess and practice their religion. Sectarian legislation based on the supremacy of one particular religion has promoted a culture of religious intolerance. Religion has played a vital role in human development; but wherever and whenever it has been used for purposes opposed to its inherent spirit of peace, brotherhood and social justice, it has not only lost its relevance in the process of social development, but its image has been also tarnished in the minds of those who are subjected to oppressive measures adopted in the name of religion.

Whenever the government displays unnecessary fervour for its policies in the religious field for the mere appeasement of the clerics, it whips up hostility against progressive forces, women and particularly the religious minorities. In 1997, Prime Minister Nawaz Sharif himself lobbied for support for the 15th Constitutional Bill, commonly known as the Shariah Bill. The National Assembly members belonging to the Pakistan Muslim League (PML), without a word of debate on the subject, passed the bill under party mandate. The ousted prime minister, however, could not manage passage of the bill in the Senate. It was the same year in 1997 that Shanti Nagar, a Christian village in southern Punjab Province, was set ablaze with sentiments of hate and hostility by Muslim zealots who ravaged it by throwing fire bombs and torching churches, holy books, schools, hostels and clinics run by different denominations of Christians. This tragic attack with such religious frenzy still haunts the people there, and the government has failed to build up confidence among them.

The instances of socio-religious violence, hate and discrimination to which the members of religious minorities are subjected across the country are innumerable. The religious extremists are playing havoc in society, which is engulfed by a wild wave of sectarianism. Religious fundamentalism has grown beyond proportions. Muslim clerics are demanding the complete imposition of the Shariah in Pakistan. The minorities feel insecure as the Islamic fundamentalists are being promoted and jihadi forces are being patronised.

The present military rulers since their arrival in October 1999 have talked much about good governance and accountability. They have even organised a convention on human rights at the government level in Islamabad, declaring an agenda to defend and promote the marginalised sections of society. Since then, however, they have made a number of retreats in favour of the religious extremists. Their somersaults on the issues of the blasphemy law and joint electorates are flagrant violations of the commitments they made with the local and world community. This is sheer ad hocism and opportunism. Thus, the policy of appeasement toward the religious clerics is also being adopted by the current military regime. This policy has gradually drifted society toward the brink of the abyss.

The situation is too grave to be ignored. The government's conduct as a silent spectator provides implied patronage to theocratic elements. This approach fans orthodoxy, obscurantism, retrogression, socio-religious intolerance and armed violence in the name of religion. This atmosphere of violence and hate is suffocating the lives of the people.

The religious minorities are an integral part of the people of Pakistan. The present unjust, undemocratic and anti-people system can be turned into a tolerant, civilised and democratic society only if its people become through their struggle a dominant political force. However, a few recommendations are made below for adopting measures to better the situation.

(1) Although it is the political will of the people of Pakistan to redefine the ideological frontiers of the State, however, the internationally acknowledged principles of legislation should be observed to maintain a civil society, ensuring fundamental rights to the citizens of the federation belonging to different religions, races, languages and cultures.

(2) Discriminatory legislation violating the religious, social, political, economic and cultural rights of minorities should be repealed.

(3) The apartheid mode of separate electorates, which has thrown the religious minorities out of the mainstream of national life and has rendered them second-class citizens, should be immediately abolished.

(4) The blasphemy law, which casts the net wide open to rope in anyone for religious persecution or for settling personal scores, should be revoked.

(5) The print and electronic media should be fully utilised to educate the people about how to build a strong civil society.

(6) The so-called jihadi forces that are spreading hate and violence should be immediately disarmed and banned.

(7) Elements of the educational curriculum that distort history and encourage hate and religious extremism should be purged, for they promote a culture of violence.