CONSTITUTION AND THE FREEDOM OF RELIGION

CONSTITUTION AND THE FREEDOM OF RELIGION <!--[if gte mso 10]> CONSTITUTION AND THE FREEDOM OF RELIGION By Mr. Justice Tanzil-ur-Rehman, Judge, High Court of Sind The Constitution of Pakistan, 1973, like the two previous Constitutions of 1962 and 1956, guarantees the fundamental rights as enumerated in Part II of the Constitution. The powers to suspend the operation of Fundamental Rights, which have been conferred by Part II of the Constitution, as abovesaid, is exclusively dependent on the issue of a Proclamation of Emergency by the President of Pakistan under Article 233 of the Constitution requiring the security of Pakistan or any part of its territory. 2. It is, however, significant to note that the solemnity of one's right to profess and practice his religion stands excepted under Article 233 of the Constitution and it cannot be suspended even during a state of Emergency. Article 233 reads as under:‑ "233. Power to suspend Fundamental Rights during emergency period.--(1) Nothing contained in Articles 15, 16, 17, 18, 19 and 24 shall while a proclamation of Emergency is in force, restrict the power of the State as defined in Article 7 to make any law or to take any executive action which it would, but for the provisions of the said Articles, be competent to make or to take, but any law so made shall, to the extent of the incompetency, cease to have effect, and shall be deemed to have been repealed, at the time when the Proclamation is revoked or has ceased to be in force. (2) While a Proclamation of Emergency is in force, the President may by order, declare that the right to move any Court for the enforcement of such of the Fundamental Rights conferred by Chapter I of Part II as may be specified in the Order, and any proceeding in any Court which is for the enforcement, or involves the determination of any question as to the infringement, of any of the rights so specified, shall remain suspended for the period during which the Proclamation is in force, and any such Order may be made in respect of the whole or any part of Pakistan. (3) Every Order made under this Article shall, as soon as may be, be laid before a joint sitting for approval and the provisions of clauses (7) and (8) of Article 232 shall apply to such an Order as they apply to a Proclamation of Emergency." A bare reading of the above Article 233 (alongwith preceding Article 232) will reveal that while the Constitution gives powers to issue a Proclamation of Emergency, on account of war or internal disturbances, if the President is satisfied that a grave emergency exists in which the security of Pakistan or any part thereof is threatened by war and external aggression or by internal disturbances beyond the power of a Provincial Government to control (as provided in Article 232) it confers power on him to suspend the operation of a number of Articles viz. Articles 15, 16, 17, 18, 19 and 24, during the period of Emergency. These Articles relate to the freedom of movement, freedom of assembly, freedom of association, freedom of trade, business or profession, freedom of speech and protection of property rights but it does not include Article 20 which is concerned with the fundamental right of a citizen of Pakistan to profess and practice in accordance with his religion and faith, which reads as under:‑ "20. Freedom to profess religion and to manage religious institution.-- Subject to law, public order and morality. (a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions." What I mean to say is that even in a state of .Emergency when there is a threat of war or actual war the people of Pakistan cannot be deprived of their fundamental right to profess and practice in accordance with their religion. So, the freedom of religion has been kept at a higher pedestal than the other rights and it cannot be interfered with by a misguided Ruler or the Assembly even in the name of "State of Emergency". 3. Article 20, in its true perspective, if I may say so, has two aspects; one is the right to freedom of belief in a religion and the other is the right of freedom to act according to that belief in that religion, inasmuch as the said Article provides for guarantee (i) to profess and (ii) to practise according to one's religion or faith The first aspect as to profess is absolute.. The Holy Qur'an also says: (ﻻﺍﻜﺮﺍﻩﻔﻰﺍﻠﺪﻴﻥ) that there is no compulsion in the matter of religion (which one professes). The second aspect, i.e., to practise may, however, be regulated by law without compelling a citizen to adhere to or accept a belief in nature other than the one he holds. Let me elaborate it by giving an example. It is the fundamental right of every Muslim, for example, to perform prayers (Salat). It cannot be negatived, in any circumstance, by any law whatsoever. Even a curfew cannot be imposed in a locality during the timings of Juma prayers resulting in the restraining of the Muslims of the locality from performing their Juma prayer in the mosque (as Juma' prayer can only be performed in (ﻣﺴﺠﺪﺍﻠﺠﺎﻣﻊ) the Mosque where Juma' prayer is held) which will be a violation' of Article 20 of the Constitution and commandment of the Almighty Allah (See Darwesh M. Arbey v. Federation of Pakistan P L D 1980 Lah. 206 at page 285). But if a Muslim insists on performing his prayers on a road which may affect or disturb the traffic or, for that matter, to take out a procession which, according to the belief of a group of individuals, is religious in nature, the Legislature may regulate the performance of the Salat with regard to traffic rules or the taking out of procession by fixing its route. However, if the law, in its leaps and bounds, is multidimensional inasmuch as it affects the religious beliefs or regulates the act in a manner that it, in ultimate analysis, affects one's belief from where the question of Halal and Haram, valid and invalid, springs, it cannot, then, be said that the law merely regulates an act. That is why, it is not only the religious belief which is guaranteed by Article 20 of the Constitution, but the religious practice in accordance with that belief which is an essential consevence of it, has also been guaranteed. A law which is inconsistent with the fundamental rights remains ineffective. Fundamental right is, in fact, a check on the power of Legislature, and any enactment made in violation of that fundamental right is ab negative. When a fundamental right is in vogue, the Legislature has no power to enact any law in derogation: thereof. Such power is, no doubt, made available to Legislature under Articles 232 and 233 of the Constitution in a state of Emergency in the country but no sooner the emergency is lifted the enactment would be eclipsed. This power, too, as stated earlier, does not apply to the fundamental right of professing and practising one's religion according to his own belief and faith subject, of course, to law and morality. It, therefore, follows that if the Legislature by enacting a law either affects or tries to circumvent one's belief or the liberty to act according to that belief which is imbibed in his religion, it would prima facie, amount to denying the fundamental right to profess and practice, and to that extent the said law or any provision thereof may be declared as null and void by the Courts of Pakistan. 4. It may, however, be stated that the terms "law" and "morality" used in Article 20, now read with Article 2-A, cannot be interpreted in isolation, as purely technical terms. Law and Morality in Pakistan, have to be understood and interpreted in the context of law which is based on and has a sanction behind the Book of Allah and Sunnah of His Prophet Muhammad (s.a.w), Ijma, Consensus (of the jurists of the Ummah) and lastly the principle of Qiyas (analogical deduction); the first two being the primary sources and the other two being the secondary sources of Islamic Shariah. The term "morality" as used in Article 20 can, therefore, only means, in the present context, Islamic morality or the principles of morality which Islam advocates. Therefore, a law having no foundation or root in morality, as envisaged by Islam, will not be a proper guide for coming to correct understanding of the exact scope of the terms "law and morality" in the aforesaid Article. I may here refer to an inaugural address of a former Chief Justice of Pakistan, Mr. Justice A.R. Cornelius, one of the most eminent Judges that Pakistan has ever produced, delivered by him at the Second Law Conference at the S.M. Law College, Karachi on March 11, 1965 on "Law, Fundamental Rights and Religious Conscience". He stated that:‑ "In my personal philosophy, the force of religion in the shaping of the laws and their due implementation even in the secular field is paramount...We find that the legal processes at the highest level are conducted in the English language, that the fundamental rights themselves are borrowed from the foreign Constitutions and expressed in the English language and that practically all legal education is imparted in the English language. It is a development which is not in line with the requirements of our Constitution. Within our Constitution there is embodied also the great Objectives Resolution, representing a consensus of the best minds that were applied to this vital task in the period immediately following the grant of independence. In the Objectives Resolution, it is clearly laid down for the guidance of secular affairs of Pakistan, that they should be conducted in the way of democracy to ensure equality, tolerance and social justice according to the dictates of Islam. The Fundamental Rights themselves are the major commandments which can lead to the implementation of equality, tolerance and social justice in the democratic mode. The Judge who exponds a Fundamental Right of the Constitution is expected to draw inspiration from the high sources which are permanently inscribed in the words of the Holy Qur'an. Though the issues pertaining to the application of Fundamental Rights arise in the Courts every day in a large number of cases, yet very rarely the Court addresses itself to the question as to how this law should be understood with reference to the principles of Islam. (Law and Judiciary in Pakistan by Mr. Justice A.R. Cornelius, Lahore pages 63 and 66). Mr. Justice Muhammad Haleem, the present Chief Justice of Pakistan, in his leading and a most instructive judgment in Benazir Bhutto v. Federation of Pakistan P L D 1988 S C 416 discussing 'what is morality' has stated that:‑ "The Holy Qur'an itself is the guide for eliciting the meaning of the word 'morality'. In Ayat 151, Sura Al-Anam (VI), it is ordained: (Draw not near to shameful deeds that which be apparent and that which be concealed). This being the moral Code, every Muslim is enjoined to obey it. This verse is the touchstone of what is moral and what is immoral. Necessarily, morality is part and parcel of Islamic Ideology of Pakistan and included in the expression 'Integrity of Pakistan'. Therefore, not only individually but also collectively Muslims have to live with an exclusively moral framework as enjoined by the Holy Qur'an and the Sunnah. No civilised society can deny this standard of morality. The concept of democracy in our Constitution should, therefore, be regarded to be imbued with individual and collective morality as according to Islam (Holy Qur'an and Sunnah). It goes without saying that morality provides the basis for the society's spiritual values and in terms of democracy, freedom, equality, tolerance and social justice." Although the above observation has been made in the context of Article 17(2) of the Pakistan Constitution, 1973, it will remain a torch-bearer for any discussion of 'Morality' in relation to "Law and Religion" in Pakistan. ***