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The Heart of The Matter
“There is a Constitution higher than any statute. There is a law higher than any Constitution, it is the law of the human conscience, and no man who is a man will defile and pollute his conscience at the bidding of any legisla-ture. Above all things, one should maintain his self-respect, and there is but one way to do that and that is to live in accordance with your highest ideal.” 1
- Robert G. Igersoll (P-9)
In the year 1984 Gen. Zia ul Haq, the Martial Law Dictator, in an attempt to seek legitimacy for his Martial Law Rule and with a desire to whip up fundamentalism, issued Ordinance XX whereby two new sections, 298-B and 298-C, were added to the Pakistan Penal Code. Prayer-call Azan was prohibited for Ahmadis; preaching and propagating their faith, calling their faith as Islam or posing themselves as Muslim were made punishable with three years imprisonment and unlimited fine. Certain words and epithets were also proscribed (The text of the Ordinance may be seen in Appendix-I). The Ordinance ex-facie, violated the religious freedom guaranteed under Article 20 of the Constitution which reads:
Subject to law, public order and morality,—
In the Constitution of Pakistan, the right of religious freedom guaranteed under Article 20 has been assigned a greater sanctity and has a higher dignity than the other fundamental rights. Article 20 of our Constitution cannot be suspended even under emergency declared under Article 232 of the Constitution. Rights guaranteed under article 20 are, therefore, non derogateable rights.
The controversy before the Supreme Court in Zaheer ud Din vs. The State related to fundamental right of religious freedom. All fundamental rights by their very nature and definition are considered to be limitations not only on the majority will but also on the state authority.
James Madison observed:
“Before any man can be considered as a member of civil society, he must be considered as a subject of the governor of the universe: And if a member of civil society, who entered into any subordinate association, must always do it with reservation of his duty to the General Authority; much more must every man who becomes a member of any civil society, do it with a saving of his allegiance to the Universal Sovereign. We maintain therefore that in matters of religion, no man’s right is abridged by the institution of civil society and that religion is wholly exempt from its cognizance.” 2
Conceptually, therefore, fundamental rights are the freedoms reserved in the initial social contract. The individuals do not surrender their relationship with God and the state is only entrusted and delegated the authority to regulate the secular and mundane affairs of the society. It is for this reason that religious freedom enjoys such a high status in every Constitution. The chapter relating to fundamental rights in any Constitution, is therefore a declaration that the citizens reserve unto themselves the subjects mentioned in the fundamental rights and the state undertakes not to interfere in those realms. In this view of the matter the fundamental rights must be regarded inviolable. In Fletcher vs Peck, Justice Johnson observed:
“I do not hesitate to declare that a state does not possess the power of revoking its own grants. But I do it, on a general principle, on the reason and nature of things; A principle that will impose laws even on the Deity.” 3
Seen as a part of the social contract, in the first place, religious freedom has not been surrendered to the state authority. In the alternate even if it be considered that fundamental rights are the grants of the state, the same cannot be revoked. The legislature has no right to take away those rights.
When legislature undertakes to restrict or over-ride religious beliefs, it runs head-on against a great affirmative principle expressly declared by Article 20 of the Constitution of Islamic Republic of Pakistan. It is a universally acknowledged principle that where legislative abridgement of fundamental right is asserted the court should be astute to examine the effect of the challenge of legislature.(9) Mere legislative preference or beliefs respecting matters of public convenience may well support regulation directed at other personal activities but insufficient to justify such as diminishes the exercise of rights so vital.’(10) The presumption should be against the validity of any Statute abridging the religious freedom.’ However, in deciding the case of Ahmadis, the majority opinion of the Supreme Court of Pakistan departed from these principles and validated such a law in Zaheer ud Din and others versus the State.
The Supreme Court judgment marks an alarmingly invasive interpretation of the Constitutional guarantee of religious freedom. As a result religious freedom has become vulnerable to serious erosion. This, then is the heart of the matter which we are about to examine with its full background in the pages to come.