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The Objectives’ Resolution passed in 1949 by Pakistan’s Constituent Assembly was supposed to be a compromise document between the “secularists” and the “theocrats”.  In hindsight we know how well that idea turned out.  Nevertheless there were parts of the Objectives’ Resolution designed to safeguard minorities and their rights as citizens of Pakistan.  In particular the profession and practice of faith by religious minorities was guaranteed: “Wherein adequate provision shall be made for the minorities to freely profess and practice their religions and develop their cultures.”The Objectives Resolution was made the preamble of all three constitutions of Pakistan in 1956, 1962 and 1973. A preamble is not the substantive part of the constitution and therefore can only seen as a general guideline and not a binding provision. General Zia ulHaq’s regime took care of that when it made the Objectives Resolution a substantive part through Article 2-A of the Constitution in 1984. This was subsequently ratified by the 1985 Parliament in form of the 8

The Objectives Resolution was made the preamble of all three constitutions of Pakistan in 1956, 1962 and 1973. A preamble is not the substantive part of the constitution and therefore can only seen as a general guideline and not a binding provision. General Zia ulHaq’s regime took care of that when it made the Objectives Resolution a substantive part through Article 2-A of the Constitution in 1984. This was subsequently ratified by the 1985 Parliament in form of the 8^th Amendment to the Constitution.  General Zia’s legal advisors wanted to give the dictator’s Islamization a constitutional basis. However they were mindful of the fact that Objectives Resolution also contained the aforementioned provision about minorities freely professing and practicing their faith. Very cleverly they omitted the word “freely” from the text that was annexed with Article 2-A.

The immediate need for this fraud by way of omission was that in 1984 the Zia regime also promulgated the Ordinance XX of 1984 titled “Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance”. To recount Ahmadis as a community had been declared Non-Muslim for the purposes of law and constitution in 1974 through the 2^nd Amendment.  If Ahmadis are a minority then they were to be given the right to freely profess and practise their faith. Therefore the Ordinance XX of 1984 would have been in direct contravention to Article 2-A of the Constitution if the word “freely” were retained. The constitutionality of Ordinance XX of 1984 was affirmed by the Supreme Court to 2-1 in Zaheeruddin v State 1993 SCMR 1718.  This is because the word “freely” had been omitted from 2-A.  Article 20 of the Constitution of Pakistan gave the right to religious freedom subject to law, public order and morality.  Ordinance XX of 1984 was deemed to fall in those exceptions.

In 2010, through 18^th Amendment the Parliament of Pakistan restored the word “freely” to Article 2-A (credit must be given to Pakistan People’s Party and its allies).  It was long overdue and perhaps too little too late.  The cancer of religious extremism and exclusion had already spread deep into the body politic of Pakistan by then. Nevertheless the reintroduction of the word freely means that a fresh challenge to Ordinance XX of 1984 is now theoretically possible.  Even a High Court can technically re-examine the law in light of Article 2-A and the conclusion would be very clear. Ordinance XX of 1984, which imprisons Ahmadis for such simple acts as saying salam and calling their places of worship “mosque” or reading the Quran or publishing literature for their own community, is a clear and unconscionable violation of Article 2-A of the Constitution. Ahmadis, being a recognised minority under Article 260 of the Constitution, have according to the Constitution of Pakistan the absolute right to freely practise, profess and propagate their faith without hindrance. However this right is continuously denied to them by the state and society. 80 year old book sellers are rotting away in prison in Pakistan for the crime of publishing Ahmadi religious literature.  While hate literature against Ahmadis is not proscribed but literature that merely outlines Ahmadi religious beliefs is banned by law.  It is constitutionally and legally unsustainable but in Pakistan those admirable constitutional principles are conspicuous by their absence on the ground.

The reintroduction of the word “freely” could have potentially positive consequences for all religious minorities, if it were actually taken note of by our superior judiciary. Consider the prima facie unconstitutional decision by Islamabad High Court on 13 February 2017 to ban St. Valentine’s Day celebrations on grounds that it was against Islamic values.  St Valentine’s Day is part of Christian culture.  Christians are part of Pakistan’s minorities who are given the right to freely “develop their cultures”.   How then can a constitutional High Court in Pakistan proscribe the celebration of St. Valentine’s Day in Pakistan on grounds that it is against Islamic values when the Constitution specifically protects minorities and their cultures?  Unfortunately the honourable single judge in that case seems to not have bothered to read the constitution at all.

The problem with Pakistan is that there is a complete lack of justice and fair play on part of our conservatives in judiciary and the media.  In the US for example you had erudite conservatives like Justice Scalia or now Justice Gorsuch, highly educated and therefore informed constitutional jurists despite their conservative leanings. In Pakistan sadly we have judges who haven’t bothered to pick up the Constitution they claim to be implementing in their courts. Is it any wonder that some of them have pending references for corruption against them?  Can no one call out hypocrisy when a judge gets teary eyed for the sake of the glory of Islam but has corruption allegations against him? Does Islam allow personal enrichment through illegal means? The answer is an overwhelming NO! But I digress. Coming back to the issue of minorities, one needs to echo the

But I digress. Coming back to the issue of minorities, one needs to echo the

remarkable statement of the Prime Minister of Pakistan, Mian Muhammad Nawaz Sharif, himself a lawyer by training, that Pakistan belongs to all Pakistanis and that he is not the Prime Minister of just Muslims but all Pakistanis of all religions and creeds.  Not since Mr. Jinnah’s 11 August 1947 has a popular Pakistani leader spoken as clearly on equal rights as our current Prime Minister.  I hope he follows his words with deeds and orders his law officers to relentlessly pursue the cause of equality and religious freedom through the courts in Pakistan and the right of Pakistan’s oppressed religious minorities to freely propagate, profess and practise their faiths and develop their cultures.

The writer is a practising lawyer. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh