The attack on Paris casts a very large shadow over the world. A tragedy manufactured in the refinery of the entity known as ISIS. The prime ingredient that ISIS uses to create its disasters is pure religious intolerance, a horrifying creature possessing an inherent hydra like quality, a swipe at it only seems to produce more. A mere look at ISIS should allow any rational minded individual to realize that religious intolerance is an ingredient that poisons the very notion of human rights. Yet religious intolerance abounds at every level of the state of Pakistan. It has often been brewed in our legal system despite being forbidden by a constitutional principle: Article 20.
The guarantee of Article 20, freedom of religion, should be a reassuring principle for religious minorities all over Pakistan. However, just having something written in the Constitution is never enough to guarantee it. It is this view that makes debates surrounding constitutional provisions in Pakistan myopic. For a constitutional guarantee to actually mean something various strands have to combine to form the genetic helix for the realization of a fundamental right. The most obvious one that we always tend to focus on is the support given by the superior courts of Pakistan. But the most important strand is the mindset of the population of Pakistan.
Fundamental constitutional rights must be deeply felt with an almost, to borrow from Professor Hart, ‘critical reflective attitude’ leading towards an internalization towards their adherence. This attitude must be felt by the organs of government, as well as the people. In the absence of such an understanding, or in the prevalence of State apathy towards an intolerant mindset amongst the people, fundamental rights like Article 20 become mere embellishments of elaborate calligraphy on a piece of paper with little evidence of an actual impact in the lives of those whom they are supposed to protect.
For decades the superior courts of Pakistan refused to adhere to a proper pluralist understanding of Article 20. Of course the task was never going to be easy. Pakistan is different in the sense that the State itself is not neutral when it comes to religion. The Objective Resolution and Article 227 of the Constitution unite to give the Islamic faith an edge. To accommodate religious plurality via Article 20, and yet reconcile it with the primacy given to the Islamic faith, gives rise to the hard cases that so often make bad law.
Despite these constraints, one justice attempted to bring Article 20 to mean what it was supposed to mean: Justice Jillani. In the past the right had been consistently interpreted to favor the Islamic faith over all others, furthermore, it was interpreted to be restricted if it would infuriate the feelings of the majority religion and cause mob violence. Thus the Supreme Court gave rise to the ‘mob veto test’. What sort of a constitutional right, aimed at protecting religious minorities, has a test that gives the views of a radical mob primacy over the protection of the beliefs of others? Justice Jilanni discarded these views in his 2014 judgment. One of the most poignant statements he makes is that Article 20 makes no distinction between Muslim and non-Muslim, its purpose is to give equal protection to all religions, without favouring the Muslim faith or any sect within any religion whatsoever. The judgment also rejects that the limitations on Article 20 (law, public order and morality) are to be interpreted in such a way as to give primacy to the moral code of Islam.
The Hisba Bill judgment and Justice Jilani’s 2014 judgment point to the fact that the superior court is moving towards internalizing in its jurisprudence a true pluralistic interpretation of Article 20; but we still have a long way to go. Any legislation that seeks to restrict religious practices of minorities needs to be subjected to a deep proportionality analysis. One of the best tests that could be employed would be the ‘strict scrutiny’ test that the Supreme Court of the United State’s employs in First Amendment claims. This would require any government action seeking to restrict religious practice to satisfy two requirements: the government would have to show a ‘compelling interest’ for the action, and satisfy the court that the restriction is narrowly tailored. True religious freedom (at least in the legal dimension) may then be achieved.
However, as I have stated, this strand alone will achieve nothing. Too often, people in Pakistan cry out that we need another constitutional amendment, or a new law to protect religious minorities. Although such actions may be needed to some degree, the fact is, none of those things will matter as long as the majority of people in Pakistan view religious minorities with animosity. For so long, the government has turned a blind eye towards the persecution of members of the Shia sect, to say nothing about the even worse state of minorities who do not fall within the fold of Islam (and some which are not even allowed to). In the U.S. the 14th and 15th Amendments to the Constitution were supposed to put an end to the disenfranchisement of African Americans, yet the South succeeded in doing so for years through a combination of literacy tests, poll taxes and the like. Success was achieved through the coming together of various actors of the State to create a complex mechanism in the Voting Rights Act that would finish the practice. None of this could have been achieved if the majority of people in the U.S. were not willing to elect and be represented by people who were against racial discrimination, and, by the majority itself accepting it as something anathema to the constitution.
We must not suffer from a myopic understanding of the problem of religious intolerance. Article 20 can only flourish if we start looking not just at the legal system, but at the broader social and political context in which we live. This also requires the government to appreciate that it must change a deep rooted mindset, and the people of Pakistan to appreciate the dangers of religious intolerance. Let our debate move beyond cries for constitutional amendments, and towards cries for teaching tolerance and empathy to our people.
As Justice Learned Hand said, ‘Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it.’
The views expressed in this article are those of the author and do not necessarily represent the views of any organization with which he might be associated.