Daily Times

According to news reports, the Chief Justice of Pakistan Saqib Nisar while hearing a case recently emanating out of a custody matter seriously reprimanded Mr Feisal Naqvi for quoting Indian judgments in support of his arguments. He declared that Pakistan’s judgments had been drafted keeping in view Islamic injunctions and therefore no occasion for quoting foreign law arises. With all due respect to the honourable Chief Justice of Pakistan, this is a view that runs contrary to established legal tradition in Pakistan. Pakistan is a common law country and like all common law countries it relies heavily on case law from other common law jurisdiction especially India, which is the closest and most appropriate example.

This is why every law chamber of any repute carries in its library both the All India Reports and the All India Reports Manuals. Besides what are we to do with the hundreds of reported judgments of the founding father of the country who practised in the Bombay High Court mostly? What about All India Reports from Lahore High Court prior to the partition of Punjab and Bengal? Would Pakistan Law Digest judgments from Dhaka between 1947 and 1971 be considered local or foreign?

What about the English law reports dating back to the 16th century and court records even older? In any event this goes against the very idea of common law as it has developed especially in South Asia. What is strange is that it has never stopped Supreme Court from borrowing and using odious legal precedent from the US 140 years ago to uphold bigotry as constitutional.

I refer to of course the ratio of the judgment in Zaheeruddin versus the State 1993 SCMR 1718. This is a seminal Supreme Court case in Pakistani history which upholds Ordinance XX of 1984. In doing so it abolished religious freedom in Pakistan altogether. The case law that the Supreme Court relied on in its 2-1 judgment, quite ironically, was US case law under the free exercise clause of the First Amendment to the US. The main case that the honourable justices relied on was Reynolds versus United States, 98 US 145 (1878) (Reynolds’ case). Yes you read that right — the case is from 1878. Before getting into the meat of this case, it is important to look at the free exercise clause of the US Constitution.

It is about time we at least started being sincere about the Constitution, even in its present mutilated form, and applied it fairly so that no citizen is discriminated against

It reads: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’ By way of comparison here is the Article 20 of the Pakistani Constitution: ‘Subject to law, public order and morality – (a) every citizen shall have the right to profess, practise and propagate his religion.’ A few things that should be clear at the outset would be that the US First Amendment establishes both a separation of Church and State ie ‘no law respecting an establishment of religion’ as well as free exercise of religion ie ‘prohibiting the free exercise thereof’. Pakistan being an Islamic Republic under the 1973 Constitution does not follow the first part but in so far the right to religious freedom is concerned it has a more expansive approach. In addition to free exercise ie ‘profess and practise it allows a citizen to ‘propagate his religion’. Therefore at the outset that the First Amendment case law from the US does not have any bearing, let alone case law from the 19th century.

The Reynolds’ case dealt with the issue of polygamy. The law in question was the Morril Bigamy Act of 1862. This law itself had a very interesting history given that Abraham Lincoln who had signed it into law had nevertheless allowed Brigham Young, founder of Salt Lake City, the 2nd President of the Church of Latter Day Saints ie Mormons and the first Governor of Utah territory, a go ahead to ignore the law altogether in his exchange for his cooperation in the Civil War.

George Reynolds, a member of the Church of LDS, presented himself as a test case. He was married twice to Mary Ann Tudenham and Amelia Jane Schofield and furnished evidence to this effect to the US Attorney. The case made it to the US Supreme Court where the Court upheld his conviction by declaring that there was a distinction between religious belief and action and that the latter could validly be used to penalize certain actions. It rejected the religious duty argument based on this distinction. Polygamy therefore is unlawful in the US.

Now the question arises as to whether this legal view could have any bearing under Pakistani Constitution when speaking of religious freedom, especially of the Ahmadi community? Ordinance XX of 1984 makes it unlawful for Ahmadis to not only profess to be Muslims, but practise their faith and ultimately to propagate it, all constitutional rights afforded by the Pakistani constitution. The view, as per majority opinion, that a distinction exists between religious belief and action cannot be relevant to Pakistan with its Article 20.

It certainly becomes meaningless when we consider the minorities’ clause from the Objectives Resolution which is a substantive part of the Constitution under Article 2-A: ‘Wherein adequate provision shall be made for the minorities freely to profess and practise their religions and develop their cultures’. Developing cultures is not merely religious belief, it is religious action in this case. Ordinance XX of 1984 cannot be rationally, linguistically, constitutionally and legally sustained under the Pakistani law.

The question that the Chief Justice of Pakistan must address at some point is whether, given his antipathy to foreign case law, he would be willing to revisit the Zaheeruddin Case and declare it bad law? I do not think so. Much of what happens in Pakistan happens as a consequence of expediency. It is about time we at least started being honest to the Constitution, even in its present mutilated form, and applied it honestly and fairly so that no citizen is discriminated against.

The writer is a practicing lawyer and a Visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com, twitter @therealylh

Published in Daily Times, April 30^th 2018.