This past week has been great for our neighbouring country, India and a terrible one for us. The Indian Supreme Court (ISC) struck down the colonial Section 377 of the Indian Penal Code by arguing that there was no presumption of constitutionality for it. The ISC chose to read into Articles 14, 15 and 21 i.e. equality before law, non-discrimination and right to life, the right to sexual orientation. I know that this is deeply offensive to many religious groups, but that is not the point. The basic point is that law does not follow either morality or any religious code. At least it should not. Had the ISC been swayed by what are known as Originalist or Textualist theories of constitutional interpretation, there would never have been any progress. Even in the US, late Associate Justice Antonin Scalia tried on several occasions to turn back the clock by using these odious theories designed to limit progress. In the case of the Indian Constitution, if the original intent of 1949 Constituent Assembly was taken into account or if simple text was looked at, it would be hard to come to this decision. The ISC, however, expanded the meaning of fundamental rights and that is how it should be, because the march of humanity cannot be thwarted.
Though Indians today would not like to admit it, but this idea of expansion of liberty within law in accordance with the times was argued on numerous occasions by none other than Mohammed Ali Jinnah, the dynamo Bombay Barrister.Most notably, he also fought for his good friend Benjamin Guy Horniman, who, as a sympathiser of the Indian National Congress, was being targeted by the British bureaucracy and their cronies for allegedly having homosexual relations. It was Jinnah who had been one of the earliest supporters of the idea of an ISC, which would guard the personal freedoms and civil liberties of all Indians. On September 6, 2018, the ISC finally finished what he started 100 years ago. Jinnah would be proud of the ISC today.
Forget any progress on issues such as personal freedom of marriage or sexual orientation, Pakistan has been in reverse gear for at least 44 years now
The tragedy of course is that the country he ended up creating — perhaps to his own discredit given where it is today –is nowhere close to the liberal and progressive idealism that he had so staunchly displayed as a lawyer and a legislator. Forget any progress on issues such as personal freedom of marriage or sexual orientation, Pakistan has been in reverse gear for at least 44 years now. We are insistent on denying religious freedom to our citizens. Ahmadis, who Jinnah had promised equal rights and the right to self identify on several occasions and whose rights as a Muslim sect he had valiantly defended against the religious right’s onslaught, were declared Non-Muslim by the Second Amendment to the Constitution in 1974, unanimously by an assembly that boasted of supposedly secular and liberal people as Zulfikar Ali Bhutto and Wali Khan, the Prime Minister and the Leader of the Opposition respectively. It seems that these gentlemen did not bother for a single minute to consider Jinnah’s views on equality of citizenship, religious freedom and on Ahmadis themselves. Jinnah was for them a picture on the wall, any display of respect to which was really just mocking hypocrisy.
If that was not enough, another Ordinance was promulgated by the military dictator Zia-ul-Haq in 1984, which outlawed the basic religious freedoms of Ahmadis altogether in complete contravention to Article 20 of the Constitution. In 1993, the Supreme Court of Pakistan (SCP), misusing a 120-year-old judgment of the US Supreme Court on polygamy under 1st Amendment of the US Constitution, upheld this utterly unconstitutional law as constitutional.
The Second Amendment to the Constitution, a strange theological exercise for a legislature as it was, nevertheless had declared Ahmadis Non-Muslims for the purposes of law and constitution. It did not, however, purport to stop the community from the free exercise of their faith. Last week, when the PTI government first announced and then withdrew the name of Princeton Economist Dr Atif Mian as a member of its Economic Advisory Council, a number of PTI supporters claimed that it was because he did not accept the Constitution of Pakistan. This is because like every other Ahmadi, Dr Atif Mian considers himself a Muslim. Amongst the geniuses who came up with this ridiculous excuse was Ali Muhammad Khan, who claims that he is a lawyer. It seems that these gentlemen do not understand what obedience to the constitution means. It means that you will not try to upend the constitution by illegal means. Disagreeing with constitutional provisions is not illegal or unconstitutional. This is why there is a process for Constitutional Amendment given in the same Constitution of 1973.
Every time you amend the Constitution, you are actually disagreeing with some part of it. For example, it is perfectly constitutional to disagree with the 2nd Amendment. It is perfectly constitutional to espouse the idea that one day Pakistanis will have the collective wisdom to undo it. Every Ahmadi I know is obedient to the Constitution of Pakistan. The Constitution of Pakistan does not require an Ahmadi to accept that he or she is a Non-Muslim. It states that for the purposes of the Constitution, Ahmadis are Non-Muslim, which means that an Ahmadi cannot hold the office of the President or Prime Minister. The right of an Ahmadi to claim to be a Muslim however is protected by Article 20, the Supreme Court judgment notwithstanding. This is how constitutions work.
This idea that we as the majority will give Ahmadis their rights as citizens only if they accept that they are Non-Muslims is a ridiculous proposition. On the contrary, if Ahmadis even accede to this demand, the next demand by the religious right will be to declare them Murtad or apostate. After that, they will demand the death penalty for all apostates. This is already in the works. If the current government is not removed from office through constitutional means, we might see this happen sooner rather than later. After all, now we have a President who actually thinks the Taliban were right in blowing up co-educational schools.
We live in perilous times. The sooner we can muster up a constitutional and democratic challenge to this government the better. Otherwise we are sliding fast into majoritarian tyranny and fascism under Prime Minister Imran Khan. Let us not become another Nazi Germany for god’s sake.
The writer is practicing lawyer and was a visiting Fellow at Harvard Law School in Cambridge MA, USA. He blogs at http://globallegalforum.blogspot.com and his twitter handle is @therealylh
Published in Daily Times, September 10th 2018.