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Home Critical Analysis/Archives ERROR AT THE APEX
Comments & Reviews

Fakhruddin G Ebrahim & Company

“This is perhaps the first occasion when a judgment of the Supreme Court of Pakistan has been analyzed in depth and its limitations exposed in language, which is both lucid and respectful, I had the privilege to representing the appellants in this case and I am still aghast that laws that sanction religious persecution continue to remain on our statute books. This book must be read by all who love freedom of religion and basic human rights.”
Fakhruddin G Ebrahim
Barrister at Law
(Former Judge of the Supreme Court of Pakistan)
K.M.A. Samdani
L.L.M. (Yale)
Advocate, Supreme Court
Critical appreciation of the Supreme Court judgments is the need of the day but, unfortunately, the order of the day is to accept them as the last word. The Supreme Court is final but not infallible. As long as the human beings are not free from error, no intellectual opinion can ever be the last word.
The judges of the Supreme Court also need to know where they sometimes go wrong so that they may correct themselves for the future, and the law may progress. Progressive interpretation of law is the essence of a living society. A society, whose judiciary does not permit this, stagnates. Such a fate must, at all cost, be avoided.
This book is a refreshing example of a healthy and balanced criticism. One may or may not agree with the author. It is a different matter. There is a clear difference between appreciating a point of view and agreeing with it. All of us need to learn this and learn it well.
I hope the members of the bar and the teachers of law will make it a tradition to publish fair comments on important judgments of the Supreme Court.
Antonio R. Gualtieri
Professor of religion (retired)
Carleton University. Ottawa. Canada
Written by a lawyer seeking legal redress for his clients, this book quite naturally emphasizes case law and legal theory. It has, however, wider ramifications in the fields of political theory and comparative religion.
Anyone familiar with the persecution of the Ahmadi Muslim community under the government and courts of Pakistan, would have been better equipped to understand the events of September 11, 2001.
The historical record discloses that within most religions there resides a contradictory worm of totalitarian absoluteness that will riot tolerate dissent. When this religious authoritarianism is wedded to the mechanisms of state power, the result is an assault on the human, civil and religious rights of dissenting minorities.
To follow Mujeeb-ur-Rehman's dauntless progress through the law courts of Pakistan is to see this conflict exemplified in the struggle of the Ahmadis to affirm their self-identity as Muslims in the face of draconian legislation inspired by religious inquisitors under the pretext of protecting orthodox Islam.
Harvey Savage
Barrister & Solicitor
Formerly faculty at Dalhousie University and University of Toronto
There is a symmetry in the intelligently written text by Mujeeb-Ur-Rehman, lead attorney who pleaded Zaheerud Din vs. the State before the Supreme Court of Pakistan. Both at the beginning and at the conclusion of his assessment, Mr. Rehman refers to his appeal to a future generation which will hopefully take action on the dissenting opinion in the case and implement the clear constitutional guarantees for Ahmadies and other religious minorities of their freedom of public religious worship. As such, Mr. Rehman’s reference to Chief Justice Hughes, that “A dissent in the court of last resort is an appeal to the brooding spirit of law, to the intelligence of a future day”, and his return to this reference at the conclusion of his text, frames its central issue: How independent can the judiciary ever be when there is no effective division between church and state?
This is an important book. On one level, it is a plea for the restoration of fundamental freedoms in a society where these have been abridged and violated by a succession of governments who have been doing so at the behest of religious extremists. And even worse, whose legislative enactments have permitted and sanctioned untold human rights violations on the basis of religious differences. On another level, like the canary in the mine pointing to the dangers lurking inside, Mr. Rehman’s analysis exposes the danger lurking for the minorities of a country when a politically motivated court joins forces with a legally flawed constitution.
The majority opinion in the Supreme Court of Pakistan exposes an old trick when a court bent on dodging the ‘fundamental freedoms’ bullet, devises artificial arguments to support its conservative opinion. This is well-illustrated in Mr. Rehman’s exposition of the manner in which the majority opinion invoked legal artifice to argue that Islamic principles and practices can be denied to Ahmadies on the analogy of trademark law. After extensively quoting from this ‘strained’ analysis, the author comments as follows: ” Trademark law does not apply to deeply held religious epithets and practices. Faith and religion, worship and devotional acts are sublime and spiritual and are so personal between God and man, that no mundane, physical or commercial give and take or sale and purchase is conceivable…….It is an absurdity to apply trademark law to religion.”
We in the West can draw scarce comfort from this sharp critique of a judiciary which uses verbal subterfuge and inappropriate analogies to avoid making a resounding endorsement of constitutional supremacy in the face of clear denial of basic freedoms. Judicial evolution in both Canada and the United States bear out similar concerns about the comfort freedom seekers may take from a court of last resort.
Witness the following comment on the early U.S. Supreme Court made by the distinguished journalist Richard Kruger in his excellent analysis in the text Simple Justice of the struggle of the Afro-Americans in the United States for equal rights in the century just ended:
“Perhaps the (United States) Supreme Court has won such vast hegemony precisely because Americans believe that its nine life-membership Justices are beyond the rough-and-tumble of everyday politics. In this, they would be mistaken, for any close reading of the Court’s history reveals its constant intimacy with the political process, though usually one or two removes from the killing ground. Or perhaps Americans retain a latent admiration, as has often been suggested, for the trappings of monarch — witness their fondness for political dynasties — and thus the cloistered proceedings and ceremonial bearings of the Justices fill a subconscious hunger. Or perhaps Americans simply wish to think that the Court, as the Court’s arbiter of last resort, is composed of men both wise and incorruptible in a world where men possessing abundant deposits of either quality are rare”.
This is not to imply that the American courts have been unwise, corruptible and simply doing the bidding of the political masters who have appointed them. But the important lesson is that Courts are not immune from applying overly restrictive interpretations of legislation, even of a constitutional guarantee, reflecting a certain political majority will or dominant economic interest. Thus, the United States Supreme Court has evolved from interpreting the Fourteenth Amendment of the U.S Constitution and its “due process” guarantees from the early days of equating due process to economic interests against equal access of minorities to the U.S. laws to its later days of interpreting due process more expansively to recognize equal access to the laws on the parts of minorities. The desegregation movement in the United States is testament to that, premised upon application of the equal protection clause of the Fourteenth Amendment to a guarantee of equal access to the education system of the United States to Afro-Americans (then called Negroes).
But it is the Canadian experience, and the interplay between the Supreme Court of Canada and the legislators seeking to abridge religious freedoms, which has more to say to the current state of religious minority freedom in Pakistan. The basis for this stems from a series of laws and the Court’s interpretations of them in Canada in the 1940s and 1950s. They were laws being sought to severely restrict the religious freedom of Jehovah’s Witnesses in Canada. Like the Ahmadies in Pakistan, one of the main foundations of the religious belief of the Jehovah’s Witnesses is the obligation to proselytize. In terms of a conflict with state mores, this translates into a right and freedom to practice the tenets of their religion in an open and public way.
The Witnesses were seen as a threat both to the federal government of Canada and to the province of Quebec, where the dominance of the Catholic Church was for many decades pre-eminent. A series of repressive laws passed by both levels of government, the War Measures Act on the federal level and various provincial by-laws passed in Quebec at the provincial level, not only prevented the Witnesses from preaching and carrying out their religious practices. They also resulted in numerous arrests and criminal and by-law charges as Witnesses were charged with a variety of offences such as violating the Lord’s Day Act, disturbing the peace, peddling without a license, and even with sedition. Many were convicted; some were fined, and some were imprisoned. Many also appealed their convictions.
Ultimately, the Supreme Court of Canada rescued them and in the process made some strong pronouncements about freedom of worship. In one of the leading cases to make it to the Supreme Court, Mr. Justice Ivan Rand spoke eloquently for the Court:
”….freedom of speech, religion and the inviolability of the person, are original freedoms which are at once the necessary attributes and modes of self-expression of human beings and the primary conditions of their community life within a legal order.”
It is very important to stress that this decision upholding religious liberty was made in the 1950s, an era well before either the Canadian Bill of Rights or the Canadian Charter of Rights and Freedoms, which latter document has entrenched as a fundamental freedom “freedom of conscious and religion.” The fact that such a powerful judicial endorsement of religious freedom could be made even in the absence of a constitutional document entrenching it only underscores Mr. Rehman’s plea for a brave judiciary to step in and proclaim an obvious freedom.
Mr. Rehman raises a riveting question which resonates past the end of his analysis: Should not the presumption be against the validity of any statute abridging religious freedom? The mere fact that the right of religious freedom is referred to in virtually every democratic constitution in the world, including the Universal Declaration of Human Rights, clearly confirms that it is a natural law, and as such beyond the power of any legislator or Court to abridge or curtail in the name of whatever excuse it seeks to provide (in the case of the Pakistan government and Court majority the “excuse” would appear to be the overriding claims of Islamic law and the vague words of the constitutional amendment, ‘subject to law’). In his view and in the view of leading international constitutional law scholars, the right of free religious worship is a non-derogable right.
That the majority decision in Zaheer-ud-Din is transparently a political decision seeking to mirror the state’s wish for Islamic law to override conflicting fundamental rights is clear. The author’s analysis how Mr. Justice Abdul Qadeer even contradicted his earlier positions on the effect of Article 2A of the Constitution in order to justify the position that he took, is as discouraging as it is insightful. One would like to think that perhaps if the constitution had a better and tougher amending formula its guarantees would not have been so vulnerable to flawed judicial analysis seeking to perpetuate the will of the government which in turn seeks to please the wishes of religious fundamentalists over fundamental rights of minorities.
But this wishful thinking is ultimately vacuous. The real issue is the powerful grip of the majority religion, and particularly by the mullahs, on the government of the day. Mr. Rehman puts it very succinctly near the end of his text: “At times it appears that in Pakistan state and clergy have merged their authority and none is available against the other to restore a balance in the society. As it is, the state seems to be using its political authority and apparatus to enforce change of theology by law.”
We in the west can only wish his brave and intelligent advocacy well. In Canada, we had but a glimpse of this pernicious situation when an attempt was made to silence the Jehovah’s Witnesses. But now that moment has passed. Church and state are thankfully separate entities. We have a Charter of Rights and Freedoms which is very difficult for the government of the day to amend. But we too have had our brave canaries to arrive at this point. And without doubt, Mr. Rehman serves excellently such a function today in Pakistan.
Harvey Savage
Barrister & Solicitor
Formerly faculty at Dalhousie University and University of Toronto
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Toronto, Ontario M5G 1E6
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