Religious liberty in Pakistan: Law, reality, and perception (a brief synopsis)

Brigham Young University Law Review, 2002 by Hassan, Farooq

I. INTRODUCTION1

In order to understand the current status of religious liberty in Pakistan, it is helpful to look at the major laws that bear on the issue. These laws include Pakistan's constitutional law as well as various statutory provisions of Pakistan's Penal Code. An analysis of these two sets of laws will enable one to fully realize whether religious liberty exists and, if so, the extent to which it is available in contemporary Pakistan.2 Prior to this analysis, a brief look at the background of Pakistan's legal system will be useful.

II. HISTORICAL FOUNDATION

A. Laws of the British Period

later implemented in other parts of the Empire and included codified forms of the common law of England in diverse fields such as criminal law, criminal procedure, and evidence.3

The codification of English common law in India was easy enough, but its implementation proved difficult as British jurists attempted to apply their own rules to an environment comprised of many diverse faiths. The challenge was to give equal and uniform treatment to respective religious laws. With no available precedent from England, this change required innovation.

As such, the religious doctrines of different faiths found statutory recognition and enforcement for the adherents of the relevant faiths in matters of personal law under the newly formed laws. Distinct laws governing activities such as marriage, divorce, adoption, trusts, and religious customs were made available to the followers of different religious faiths in accordance with their respective faith. Thus, Christian personal laws only applied to Christians, and the Muslim or Hindu personal laws only applied to followers of those religions.4 This type of system was necessary since British India had millions of followers of every major religion.

B. Pakistani Independence and Constitutional Foundations

I. Pakistan gains independence

In the spring of 1940, in Lahore, Mohammad Ali Jinnah introduced a resolution for the division of British India.6 After two decades of failed attempts by Jinnah to unite the Hindu and Muslim communities, the "Lahore Resolution" finally called for a separate Muslim state.7 The independent state of Pakistan was the result. On August 14, 1947, Jinnah was sworn in as Pakistan's first governor-- general, and, though seventy years old and suffering from tuberculosis, Jinnah zealously began creating an infrastructure for the new country.8

Though Pakistan was created specifically for Muslims, Jinnah continued to proclaim tolerance for all religions.9 This pluralistic sentiment became canonized in the 1949 "Objectives Resolution," which was created to provide guidance to the drafters of Pakistan's first constitution.10 It states, in part:

The guidance of the Objectives Resolution was followed by the constitutional drafters, and in 1956, the first Pakistani Constitution came into being.

2. Religious freedom under the 1956 and 1962 Constitutions

The preamble to the 1956 Constitution included the tenets set forth in the Objectives Resolution seven years earlier. The preamble asserted that Pakistan was "based on Islamic principles of social justice,"12 guaranteed Muslim life "in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah,"13 and prohibited any laws "repugnant" to Islam as set forth in the Quran and Sunnah.14 The preamble also provided that "adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures."15 These general principles were then broken out into specific religious rights in Article 18 of the Constitution.16

The amendment reinstated the repugnancy clause and added an additional phrase stating, "[N]o law shall be repugnant to the teachings and requirements of Islam as set out in the Holy Quran and Sunnah, and all existing laws shall be brought into conformity therewith."20 This additional phrase introduced a way to enforce the repugnancy clause and was the first of many steps taken by Islamists to Islamicize Pakistan.21

III. CONSTITUTIONAL RELIGIOUS FREEDOM IN PAKISTAN

The foundation for Pakistan's current Constitution was created in 1973. After a second period of martial law, a civil war, and the separation of Bangladesh from Pakistan, the 1973 Constitution was implemented as part of a new civilian government.22

A. The 1973 Constitution

The 1973 Constitution reflects the steady influence Islamists have had on the legal and political spheres in Pakistan.23 It was the first constitution to formally establish Islam as the state religion in Pakistan.24 The 1973 Constitution also retained the retroactive clause of the 1962 Constitution requiring "all existing laws [to] be brought into conformity with the Injunctions of Islam" and created the Council of Islamic Ideology to enforce implementation of the clause.25 Articles 2, 20, and 31 of the 1973 Constitution also discuss aspects of religious freedom.

comprehensively adopt the Islamic way of life for Muslims.27 The provisions of this Chapter are not binding on the courts but provide guidelines for policy-oriented decisions of all state functionaries.28