Judicial activism has become a controversial word in Pakistan owing largely to the post lawyers’ movement era of Justice (retd) Iftikhar Chaudhary. However, in its true meaning and spirit, it has a long history of acting as a counter-majoritarian instrument, ensuring rule of law and equality.
Earlier this month, Chief Justice of the Lahore High Court, Justice Mansoor Ali Shah, issued a verdict on the matter of the Christian Divorce Act in Pakistan. He began the operative part of his judgement by saying, “This court is to adjudicate matters in accordance with the Constitution and the law and there is no room for personal interest, belief, passion and inclination.” This was a refreshing exception from sermonising and personal-preference- and ideologically-driven opinions that sadly have come too often from superior courts, particularly the Supreme Court in recent years.
The facts of the case were simple, a Christian man wanted to divorce his wife without making a nasty accusation of adultery. The Pakistani law as it stood allowed Christians to divorce on the grounds of adultery, change of religion and cruelty amongst a few others. Hence, ruling out the possibility of an amicable or even dignified end to a marriage. More significantly, it often leads to no exit from a physically and emotionally abusive marriage, in overwhelming number of cases for women trapped in such contractual obligations. Misogyny in Pakistan is not limited to a religion or a culture, and in this particular instance it was legitimised by the law. Not by any scriptural law but rather by an undemocratic and discriminatory amendment by Ziaul Haq, undertaken without any discussion with the Christian community.
The intention of Ziaul Haq was to keep the Christian divorce law stagnant by repealing section 7 of the Christian divorce act in 1981. Section 7 mandated that the Pakistani courts will act on the principle of English divorce courts, hence ensuring that our law evolves with the English law, particularly given that the Christian minority community in Pakistan might not have sufficient legislative voice. The LHC judgement traces the evolution of the law in Christian majority countries and demonstrates how almost all countries have a ‘no-fault’ divorce law i.e. a divorce on the grounds that the parties to the marriage feel that relationship is ‘irretrievably broken’.
The judgement has struck down the amendment made by Ziaul Haq in 1981 and restored section 7 of the Christian divorce act, hence making the ‘no fault’ divorce a ground for annulling a marriage. Responding to the argument that public policy should discourage divorce, the Chief Justice while agreeing in principle articulates the caveat, “it is the public policy to terminate dead marriages.” These are powerful, progressive and legally binding words from the court in a patriarchal, tribal society where there is immense pressure to perpetuate unhappy and exploitative unions to preserve imaginary notions of ‘honour’. The court interprets the right to life and liberty to include the right to choose a spouse and to opt out of a stifling marriage.
The impact of this judgement and the reasoning will influence and inform jurisprudence in Pakistan beyond the area of Christian matrimony. The court reminds the Pakistani government and Parliament of its obligations to safeguard the rights of religious minorities articulated in the Constitution as fundamental rights and principles of policy and Pakistan’s international law commitments such as the Universal Declaration of Human Rights (UDHR) and International Covenant on Civil and Political Rights (ICCPR).
The LHC judgement on the Christian Divorce Act opens the door for re-consideration — on the touchstone of constitutionalism, international human rights standards and inclusiveness — of all statutory amendments made by unelected military dictatorships
Article 20 of the Constitution, as a fundamental right, provides that every citizen shall have the right to profess, practice and propagate his religion. The principle of policy under Article 36 provides that the state shall safeguard legitimate rights and interest of minorities. Despite the binding nature of our commitments, the Pakistani courts have generally avoided relying on international human rights framework, alongside skirting over promises made in the principles of policy in the Constitution. The LHC judgement, alongside the June 19, 2014 judgement by the then Chief Justice Tassaduq Hussain Jilani, set down the framework for progressive, liberal and inclusive interpretation of Constitutional guarantees and international standards regarding rights and equal citizenship of religious minorities in Pakistan.
The LHC judgement also addresses the manner in which the Christian divorce act was amended by Ziaul Haq’s regime and says, “It is important to underline that historically the impugned amendment was introduced not through a democratic and participatory constitutional legislative process but was more of a surgical intrusion during the dark undemocratic period of our Constitutional history.” This opens the door to consider all statutory amendments made by unelected military dictatorships on the touchstone of constitutionalism, international human rights standards and inclusiveness.
It is dispiriting to note that the regressive amendment (like numerous other Zia amendments) did not receive the attention of successive governments and it took a judicial intervention to rectify the wrong. One of Pakistan’s finest judges, Justice Shah has demonstrated that activism based on constitutional principles, progressive and feminist thought and universal human rights is possible and of course, much needed. The judgement should lead to a national conversation on the rights of religious freedom, gender discrimination and mutilation of our laws by unelected despots.
The writer is a lawyer and the country representative for Human Rights Watch (HRW). The views expressed are his own
Published in Daily Times, June 30th, 2017.