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Home Critical Analysis/Archives ERROR AT THE APEX
The Error Multiplied
The Majority in Zaheer-ud-Din relied heavily on the American Supreme Court and cited some dubiously relevant cases from American jurisdiction. The American cases referred to in Zaheer-ud-Din were not cited by either party and constituted nobody’s brief. The court canvassed these propositions suo moto, with the observation that:
“We have referred to the above view from such countries, which claim to be the secular and liberal and not religious or fundamentalists.” [01]
And approving the judgment of the Lahore High Court observed:
“we highly appreciate that the learned judge relied, in this respect, on precedents from the jurisdiction, which are either secular or claim to be the champions of human rights.” [02]
The history of religious persecution and religious freedom in America and Pakistan have many parallels and Pakistani Courts may justifiably draw on the American experience. The American law is that religious practice may be regulated on the grounds of secular regulations and clear and present danger. The expression adopted in some judgments is neutral purpose’. Law restricting or regulating some religious practice may be validated if the purpose of the law is neutral and secular and touches upon the religious practice only incidentally. No law can be validated if the purpose of law is to curtail religious freedom.
If the Learned Judge found it necessary to satisfy the world conscience and refer to foreign jurisdiction on the subject, then it was preeminently essential to consider the case law in depth. Any such effort however is sadly lacking. Out of the 6 cases cited from the American jurisdiction 2 cases are more than 100 years old while other 2 are as old as 50 years. No effort was made to discover how concepts have been refined, elucidated and enriched during the last 100 years. The latest cases on the subject of religious freedom from American jurisdiction were not examined at all. The secretarial assistance received by the Pakistan Supreme Court on the American case law appears to be very poor indeed. The cases have been cited out of context and have been misapplied.
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