Judgment Analysis: Ameen Masih v Federation of Pakistan & Others

Judgment Analysis: Ameen Masih v Federation of Pakistan & Others

Title and Citation

Ameen Masih Versus Federation of Pakistan and others
(before Syed Mansoor Ali Shah, CJ)
Writ Petition No. 623 of 2016
Decided on 19^th June, 2017.
PLD 2017 Lahore 610.

Relevant Laws

1. UK Matrimonial Causes Act, 1973- Section 7
2. Divorce Act, 1869 –Section 10
3. Federal Laws (Revision and Declaration Ordinance) 1981(XXVII of 1981)
4. Constitution of Pakistan, 1973- Fundamental Rights
5. Universal Declaration of Human Rights (UDHR)
6. International Covenant on Civil and Political Rights (ICCPR)
7. Convention on the Elimination of Discrimination Against Women (CEDAW)
8. UN Minorities Declaration

Facts of the Case

• Petitioner was a Christian who wished to divorce his wife because his marriage had broken down irretrievably. He could not do so under the Divorce Act 1869 because doing so would mean alleging and proving that his wife had been guilty of adultery (Section 10 of the Act). He did not wish to do so, as it was not true, and wanted a divorce on the basis of the fact that he had an unhappy union.
• Petitioner wanted the repealed Section 7 of the UK Matrimonial Causes Act 1973 to be reviewed. Section 7 provided for grounds for divorce other than adultery, and was repealed in 1973 in the aftermath of General Zia’s regime that had been particularly oppressive to religious minorities. He claimed that the amendment was unconstitutional and violative of minority rights in Pakistan.
• Decision: Section 7 of the UK Matrimonial Causes Act 1973, providing for grounds for dissolution of marriage other than adultery, repealed in the aftermath of General Zia’s regime, was to be restored, enforceable in the country and made available to the Christians of Pakistan. The restored section was to be read harmoniously with Section 10 of the Divorce Act 1869.

Application of International Treaties and Treaty Bodies

Although the international treaties that Pakistan has ratified may not have binding status[1], parties of a case can still use international treaties to further their argument. Such treaties have also been used to make the argument in the Ameen Maseeh case in the following manner:

1. Universal Declaration of Human Rights (UDHR)

• On behalf of the Petitioners: Mr. Asif Aqeel, a human rights activist and journalist belonging to the Christian community, submitted that the prevailing legal position forbidding Christians to divorce on grounds other than adultery was in direct violation of the UDHR signed by the Government of Pakistan.
• Opinions of the court: The court quoted Article 1 of UDHR, ratified by Pakistan in 1948, “All human beings are born free and equal in dignity and rights.” The court indicated that it was within the international framework of human rights and indicators of equality and non-discrimination that a dialogue on the protection of minorities found its roots.

2. International Covenant on Civil and Political Rights (ICCPR)

• On behalf of the Petitioners: Mr. Asif Aqeel, a human rights activist and journalist belonging to the Christian community, submitted that the prevailing legal position forbidding Christians to divorce on grounds other than adultery was in direct violation of the ICCPR signed by the Government of Pakistan.
• Opinions of the court: The court quoted the article of ICCPR that obliged signatory countries to protect its ethnic, religious and linguistic minorities and help them preserve the characteristics which they wished to maintain and develop. The court was of the opinion that, as a signatory of the Convention, Pakistan was obliged to ensure that the inequalities to which such minorities were subjected to were corrected.

3. Convention on the Elimination of Discrimination Against Women (CEDAW)

• On behalf of the Petitioners: Ms. Hina Hafeezullah Ishaq, learned Assistant Attorney General for Pakistan submitted that Pakistan had ratified CEDAW, thus committing to end discrimination against women. She argued that no legislative relief was available for Christian women who wished to divorce their husbands on grounds other than adultery and that was a violation of women’s fundamental and constitutional rights.

4. United Nations Minorities Declaration

• Opinions of the Court: The court gave a brief history of the adoption of the United Nations Minorities Declaration by the United Nation’s General Assembly in 1992. It quoted the article of the ICCPR that obliged the signatory countries to protect its ethnic, religious and linguistic minorities and help them preserve the characteristics which they wished to maintain and develop. It further quoted the articles of the Declaration which included various linguistic, ethnic, cultural, religious, artistic, opportunistic, communal, traditional, historical, territorial and fundamental rights. The court said that the states signatory to the Declaration had to fulfill the obligations and commitments assumed under international treaties and the agreements to which they were party to.

5. Christian Personal Law – Internationally: Various examples of Christian personal law as legislated in countries other than Pakistan, were cited by the petitioners and supported by the court:

• On behalf of the Petitioners: Mr. Anwaar Hussain, Additional Advocate General, Punjab submitted that Christians all over the world could divorce their spouse on grounds other than adultery. He argued that ‘no-fault-divorce’ was introduced way back in the year 1918 in Russia. In the United Kingdom, the Matrimonial Causes Act 1973 conferred the right on a person to divorce his or her spouse on grounds other than adultery. Similarly, in the United States in 1969, the State of California first recognized ‘no-fault-divorce’. The Family Law Act 1975 in Australia and the Divorce Act 1968 in Canada were amended to set such a separation for one year with the requirement to prove fault by either spouse. In China, divorce could be granted if one party could present evidence of incompatibility.The learned law officer argued that if court declared the impugned repeal to be in violation of the Constitution of Pakistan, the restored section 7 could easily co-exist with Section 10 of the Act by applying the principle of harmonious construction/interpretation of statute[2].
• Ms. Marry Gill, MPA (representing the Christian community) supported the contention of the petitioner and submitted that the ‘no-fault-divorce’ had been introduced all over the world and should have also been available to the Christians of Pakistan.
• Opinions of the Court: In Christian majority countries, it was public policy to discourage divorce, as matrimonial relationships were considered sacred. However, it was also public policy to terminate dead marriages, where relations between husband and wife were such that the legitimate objects of matrimony had been utterly destroyed.

Analysis/Conclusion

• Judges seemed to be open to the notion of protecting the fundamental rights of religious minorities despite public policies, despite there being a history of the violation of minoruty rights in Pakistan and despite growing religious extremism.
• Previous precedents of giving international treaties a persuasive value were put aside and the obligation of states to follow signed treaties was emphasized by the judges.
• Arguments by petitioners reflected an international approach to the case; they brought up the treaties Pakistan was a signatory to and had an obligation to implement. Additionally, they gave examples of Christian personal law and rules for divorce from countries other than Pakistan to make their point.
• The judgment eventually resulted in the alternation of the law to give Christian minorities the right to divorce on grounds other than adultery. That had immense significance in the legal system and was reflective of the judiciary’s power in lawmaking.

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References:

[1] 1994 PLD SC 693. Mrs. Shehla Zia and others (Petitioners) versus WAPDA (Respondents). “International agreement: International agreement between the nations if signed by any country is always subject to ratification, but same can be enforced as a law only when legislation is made by the country through its legislature. Without framing a law in terms of the international agreement, the covenants of such agreement cannot be implemented as a law nor do they bind down any party. Such agreement, however, has a persuasive value and commands respect.”

[2] Principle of Harmonious Construction: The doctrine or the rule of harmonious construction is adopted when there is a conflict between two or more statues or between the parts or provisions of the statues. Every statute has been made for a purpose and specific intent as per law and it should be read as a whole and interpreted accordingly. Thus the provisions are so interpreted by the courts that the conflict between the two statues or its provisions is avoided and each of them is given effect.

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The complete judgment can be found at: http://sys.lhc.gov.pk/appjudgments/2017LHC2488.pdf

*Update: Sheraz Zaka appeared as lead counsel in this case: http://courtingthelaw.com/2017/07/17/commentary/judgment-on-christian-divorce-act/

 

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