Chief Justice Athar Minallah’s8 page judgment on Aurat March is a significant decision when it comes to the interpretation of Islamic provisions of the Pakistani Constitution, not just when it comes to women but in general with respect to the expansive interpretation of Islamic injunctions to allow for maximum human rights. This is keeping in line with the thinking of two foremost legal minds in Pakistan’s history, Sir Zafrullah Khan and Justice A.R. Cornelius. The former wrote a tract called Islam and Human Rights and showed how his contributions to the UN Declaration of Human Rights were inspired by Islam and how the idea of universal human rights is to be reconciled with Islamic injunctions. Justice A R Cornelius, himself a Christian, saw Islamic ideas of justice as complimentary and interpreted Islam as a liberation theology for Pakistani jurisprudence. Neither men would have imagined what happened in Pakistan after 1973 but regardless the principle may be of some use to us in modern day Pakistan which is self avowedly an Islamic Republic subject legally and constitutionally to dictates of Quran and Sunnah.
Coming back to the judgment, it has been handed down in a petition by Imran Javed Aziz and seven others wherein the petitioners asked for regulation of the Aurat March by imposing reasonable restrictions. This itself is a misdirection because reasonable restrictions on freedom of expression, speech and press can only be imposed by the legislature and not through a judicial decision. The petitioners rely on the clause of the Objectives Resolution which states “Wherein the Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Quran and the Sunnah.” Here the important part the petitioners missed out was the word used is “enabled” not “enforced”. The former gives an element of choice to Muslims of Pakistan whether or not to order their lives in accordance with Quran and Sunnah. This is in line with the Quranic injunction “There is no compulsion in religion” (Al Baqarah 256) as well as Article 20 of the Constitution. Contained within this principle explicitly is the idea of religious liberty both to be religious and not religious. Mindful of this basic document the 1956 Constitution of the Islamic Republic of Pakistan did not have a religious oath even for the President who under that Constitution had to be a Muslim. The requirement thus was not of personal belief or practice of faith but rather Muslims as a class in a state that culturally and politically defined itself as an Islamic Republic.
The High Court saw no reason to interpret the slogans any differently and explicitly laid down the principle that explanations must be taken on their face value in good faith and not according to how the petitioners wanted interpret them according to their own agenda
Obviously the 1973 Constitution added a religious oath for President and Prime Minister and this was further amended after 1974 and during General Zia’s military rule. Nevertheless the principle is broader than merely oaths. While the Islamic Republic has a special obligation to provide its Muslim citizens with ample opportunity to practise their faith according to their own sectarian affiliation, this is to be balanced with a similar positive obligation to allow minorities to practise and profess their faiths and develop their cultures freely. I delved at length on the use of the word “freely” in my article of 24 February 2020. Needless to say that the use of the word “freely” establishes the idea of absolute religious freedom for religious minorities in Pakistan, an idea that is sadly conspicuous by its absence in Pakistan. Similarly as mentioned above the word “enabled” bestows upon every Muslim an element of choice which cannot and should not be undermined. Petitioners also invoked a principle of policy but principle of policy under the Constitution is not justiciable because such principles are subject to availability of funds and as such the Islamic way of life also uses the word “enable” and not “enforce”. To pass this legal hurdle, the petitioners relied on the word “ideology of Pakistan” relying on Section 123-A of the Pakistan Penal Code. Section 123-A is a badly drafted law which was aimed at preserving the colonial regime before 1947. The honourable Chief Justice of Islamabad High Court had in the case of Islamabad protesters already observed that Section 123-A is irreconcilable with a modern democratic state. The words “ideology of Pakistan” do not directly appear in the text of the Constitution except as part of the oaths that are administered. Therefore there is no real consensus on what it means. Besides any reference to Penal Code makes it a criminal matter subject to a criminal court and therefore not enforceable under the constitutional jurisdiction of the High Court. It would appear that not much thought had gone into the petition that was hastily drafted to create unnecessary hurdles for the Aurat March to go through.
The Islamabad High Court, however, found the entire petition non-justiciable and for good reasons as aforesaid. The Islamabad High Court also interpreted Islamic injunctions in its true spirit in my opinion by stating that the doctrine of Islam imposed positive obligations to ensure women’s rights. Most importantly however it left the interpretation of slogans to the participants of the march. The participants of the march had given a detailed explanation of the slogans approved and to be used by the march. The High Court saw no reason to interpret the slogans any differently and explicitly laid down the principle that explanations must be taken on their face value in good faith and not according to how the petitioners wanted interpret them according to their own agenda.
A bright new vista has opened up for human rights litigation in Pakistan as a consequence and it is hoped that misuse of Islam by certain sections in our society will be curtailed and not become the basis of denial of fundamental rights to our citizens. The Islamabad High Court judgment goes a long way in achieving this.
The writer is an Advocate of the High Courts of Pakistan