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Home Critical Analysis/Archives ERROR AT THE APEX
To The Intelligence of a Future Day
A dissent in the court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day.
Charles Evas Hughs CJ
In Zaheer-ud-Din and others Vs The State the Supreme Court of Pakistan decided a set of eight appeals involving denial of human right of religious freedom guaranteed under Article 20 of the Constitution of Pakistan. The judgment validates Anti-Islamic Activities of Qadiani group, Lahori group and Ahmadis (Prohibition and Punishment) Ordinance 1984 and thereby not only sanctions curtailment of religious practices of Ahmadis but also by a devious interpretation converts their day to day religious practices into a crime [1] and even in some cases a Capital offence punishable with death. The judgment constitutes an interpretive invasion of Constitutional guarantee, and religious freedom, which is already in serious jeopardy in Pakistan, has become further vulnerable to erosion.
In more than one way the decision is a departure from established Constitutional principles and has many ominous implications. The judgment is in fact more pernicious for what has been left unsaid leaving dangerous openings for the future deleterious influences on freedom of conscience and on the Pakistani society as a whole.
The Supreme Court of Pakistan sits at the apex of Pakistan judiciary and when it decides a case it decides it finally between the parties. A rule of law laid down by the Supreme Court is binding on all other courts of Pakistan. Though the Supreme Court decides a case finally it may not necessarily always decide it correctly. Zaheer ud Din sets up a dangerous precedent for all minorities and constitutes an alarming signal to all lovers of human rights. On the legal and Constitutional issues involved in the case the court itself was divided. “A dissent in the court of last resort, is an appeal to the brooding spirit of law; to the intelligence of a future day.“ [2] Very often Judges allow their dissent to go unpublished because they see no point in waging the particular battle in a given case. A recorded dissent, however, indicates that the cleavage is vital enough to pass the issue on to the future. In Zaheer ud Din the dissenting opinion was the leading opinion. The judgment of the Supreme Court therefore needs to be closely examined for the legal and Constitutional questions decided in the case. This is an attempt to examine the Supreme Court judgment in Zaheer ud Din with a view to bring out the real issues for future and further examination by the scholarly juristic opinion.
The present work has been undertaken to provide the whole background in which the controversy came before the Supreme Court. The basic issues and the question at the heart of the controversy have been spelt out. The background of various cases has been provided. Constitutional issues involved in the case in the background of Pakistani case law, have been discussed, the question of religious freedom and such basic issues as the concept and nature of fundamental rights and the permissible limitations that can be imposed under the international standards, have been examined. The question of permissible limitations is referable to the opening clause of Article 20 of the Constitution of Pakistan, which says that the freedom shall be “subject to law, public order and morality.” The interpretation of words “subject to law” was one of the main questions, which needed interpretation. Another question on which the opinion in Zaheer ud Din is divided is the question of overriding effect of “Islamic provisions”. All these questions have been dealt with. The Supreme Court of Pakistan also relied on a good number of American cases. Those cases have been examined and discussed in the light of the well-known principles of American jurisprudence, such as secular regulation, interest weighing and neutral purpose, adopted by the American Supreme Court.
The majority opinion in Zaheer ud Din is deeply locked up in religious controversy and polemics, which was strictly speaking not relevant. Unfortunately, the court did not verify the facts; and accepted what was produced before the court presumably in the “post argument” [3] stage. Vicious hostile propaganda literature has found its way in the judgment of the court. When such matter is passed through the medium of a court judgment it carries with it a measure of credibility, not otherwise attached to controversial religious propaganda literature. This aspect of the judgment has rendered the judgment open to a serious jurisdictional question. The sociopolitical argument has also been examined. The argument based on religious polemics has been left out from consideration in this work. That is more appropriately a subject for an independent treatment. The effects of the judgment and further trends and developments have been examined and finally the conclusions have been recorded.
It is the author’s view that majority opinion in Zaheer ud Din is a deviation from established law in Pakistan; is in conflict with and falls short of international juridical standards on evaluation of guarantees pertaining to human rights.
It is hoped that this work may provide an interesting and thought-provoking study for lawyers and judges in Pakistan as also for those interested in the study of Human Rights and Islamization trends throughout the world. It is ‘an appeal to the brooding spirit of law, to the intelligence of a future day’.
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