Constitution of Pakistan and Civil Rights

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Yasser Latif Hamdani[1]

The Constitution (18th Amendment) Act, 2010 is the boldest attempt yet at restoring representative parliamentary democracy in Pakistan since General Zia ul Haq’s military regime altered the constitution fundamentally to tilt the balance of power in the favour of the President of the republic. The Zia regime also tampered with the constitution to further its own agenda of Islamisation which in turn meant substantial marginalization of minorities and women from mainstream society. 18th Amendment has sought to rectify it by introducing key changes to the fundamental rights chapter.

Restoration of the word “Freely” to the Objectives Resolution

General Zia ul Haq, by a presidential order, had made the Objectives Resolution a substantive part of the constitution by inserting Article 2-A. However the word “freely” where it occurs with regard to minorities was omitted in the annex: Objectives Resolution to Article 2-A. The 18th Amendment restores it.

Pre-18th Amendment

“Wherein adequate provision shall be made for the minorities to profess and practice their religions and develop their cultures;”

Post 18th Amendment

“Wherein adequate provision shall be made for the minorities to [freely] profess and practice their religions and develop their cultures;”

The legal impact of this amendment has so far not been given serious thought.  By making the right of minorities to practice their faith freely, the legislators have made religious freedom independent of the considerations of the majority’s faith or any other considerations in the grundnorm of the constitution’s ideology. This also means that any law that curtails the freedom of minorities to practice their faith freely or develop their cultures can be challenged on the basis of Article 2-A. This has particular significance for the Ahmadi community which was declared non-Muslim by the second constitutional amendment.

Through Ordinance XX of 1984, their religious practices were outlawed in so far these resembled the Muslim modes of practice.  A constitutional challenge in the form of Zaheeruddin v. the State[i] to Ordinance XX of 1984 failed because the fundamental right of the freedom of religion is qualified by considerations of public order and law. However with the restoration of the word freely in the Objectives Resolution as a substantive part of the constitution means that a challenge to the infamous Ordinance XX of 1984 now has better chances of success.  Zaheeruddin v. the State supra had all but abolished religious freedom in Pakistan or at best left it to the mercy and whims of the majority.  Restoration of the word freely nullifies and repudiates the Supreme Court’s decision in Zaheeruddin v. the State.

Introduction of Due Process and Fair Trial in form of Article 10-A

10A. Right to fair trial.- For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.”

Through Article 10-A of the Constitution which is largely inspired by Article 6 of the European Convention on Human Rights,  the legislators have introduced two fundamental concepts i.e. of due process and fair trial. Interlinked as these are, due process has a much wider meaning than fair trial. The history of due process is rooted in the Magna Carta in English jurisprudence and, subsequently, in the American jurisprudence surrounding the 5th and 14th amendments to the US constitution. The 14th Amendment, for example, states: “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” The US Supreme Court has interpreted the 14th Amendment as having created a constitutional natural law that would be available as a protection against the states and not just the federal government (which was the position under the 5th Amendment).

In other cases, the due process clause has been used as a kind of residuary clause that protects all implied and rational rights to liberty, including the right to privacy, which otherwise finds no constitutional basis.[ii] Substantive due process has thus emerged as the surest safeguard against totalitarianism of the state. Rotunda and Novak state that “this substantive due process may protect certain fundamental rights or void arbitrary limitations on individual freedom of action.”[iii]

B.N.Rau, adviser to the Indian Constituent Assembly that was drafting the Constitution of India (“the Indian Constitution”), travelled to the U.S.A, where he met U.S. Supreme Court Justice Felix Frankfurter. The latter advised him against including the phrase ‘due process’ in the Indian Constitution, and hence, in 1949, the phrase was not included in the text of the Indian Constitution. Indian courts, however, repeatedly located ‘due process’ in Article 14 of the Indian Constitution instead. One could, without exaggeration, describe the Pakistani legal tradition as India-lite (with a flavour of Islam). The Constitutions of 1956, 1962, and 1973 all avoided the use of the term ‘due process’ in keeping with the Indian tradition. This then is a sea change in Pakistani rights jurisprudence. It bars therefore not just arbitrary actions or procedural irregularities but opens up any piece of law to a due process challenge, with fundamental rights being read in as part of those due process pillars that have to be taken into account.

It has other commercial implications as well with several statutes regulating commerce, banking and property rights coming under the microscope. Chief amongst these is the Financial Institutions (Recovery of Finances) Ordinance, 2001(“the FIO”). The FIO is a banking recovery law that was promulgated by the martial law regime of General Musharraf, which was saved by the Seventeenth Amendment to the Constitution. Briefly, it was Musharraf’s main financial guru  Shaukat Aziz, formerly of Citibank, who had pushed for a law that would enable the banking sector to recover outstanding debts speedily. The FIO requires the defendant to seek leave to defend a suit, which can be denied by the presiding judge on the basis of validly filed statements of accounts by a financial institution. It is therefore a banking-specific variant of Order XXXVII (Summary Procedure) of the Code of Civil Procedure, 1908 (“the CPC”), which Indian readers may be quite familiar with.

In several challenges before the Sindh and Lahore High Courts, petitioners have argued that Article 10-A creates a new fundamental right to fair trial and due process because of which the summary procedure under the FIO has become unconstitutional. The contention of the petitioners was that since the rights contained in Article 9 (such as the right to life) were limited to personal rights and not property rights, Article 10-A had introduced a new right.

In rebuttal, the lawyers representing the banks have argued the following:

a) Presumption of constitutionality attaches to each piece of legislation enacted by a legislature.

b) Article 10-A is a declaratory right introduced to acknowledge and recognise existing rights afforded to citizens and persons under the Constitution of Pakistan, especially under Articles 9 and25. For this proposition, advocates relied on the landmark Sharaf Faridi case.[iv]

c) ‘Due process’ has been recognised by precedent. [v]

d) In India, the right to a fair trial was located by the Supreme Court of India within Article 14 of the Indian Constitution (which is in pari materia with Article 25 of Pakistan’s Constitution) in the judgment of Dwarka Prasad Agarwal v. B.D. Agarwal[vi].

e) Article 9 is in pari materia with Article 21 of the Indian Constitution and judgments under Article 21 of the Indian Constitution have defined ‘due process’. Therefore Article 10-A is merely a declaratory insertion into the Constitution.

Further, relying on the Chenab Cement case[vii], the lawyers representing the banks urged that it was incorrect to say that Article 9 is limited to personal and not property rights. On the other hand, the reason for the inclusion of Article 10-A was that it was better to have an enumerated right to fair trial and due process than have it reside in the penumbra of Articles 49, and 25 of Pakistan’s Constitution.

The petitioners argued, relying on the judgments of the European Court of Human Rights in Dombo Beheer, Stran Greek Refineries v. Greece, and Ruiz Mateos v. Spain (Application no. 12952/87), that where oral evidence was not allowed and cross-examination was not undertaken, it would be a violation of Article 10-A’s principles of fair trial and due process since the principle of equality of arms was not respected.

Article 19-A: The right to have access to information

19-A. Right to Information.—Every citizen shall have the right to have access to information in all matters of public importance subject to regulation and reasonable restrictions imposed by law”

By incorporating the right to information, the framers of the 18th Amendment have opened up the business of the government to public scrutiny. However by making it subject to regulation and reasonable restrictions imposed by law, in theory, the framers have left open the door for a wide interpretation of the words “reasonable restriction”. Security considerations and regulation in the name of national interest may yet be able to trump this fundamental right. Therefore the right as it exists now is declaratory in nature and does not in any real terms introduce a new right. Nevertheless – and most hearteningly- a recent judgment by Justice Mansoor Ali Shah of the Lahore High Court concludes that the introduction of Article 19-A has broadened the scope of Public Interest Litigation in Pakistan and the traditional requirements of the aggrieved status of the petitioner have been amended:

“Right to information is another corrective tool which allows public access to the working and decision making of public authorities. It opens the working of public administration to public scrutiny. This necessitates transparent and structured exercise of discretion by the public functionaries.  Article 19-A empowers the civil society of this country to seek information from public institutions and hold them accountable.”[viii]

The objections of locus standi in public interest litigation therefore have been made redundant by this provision.

Article 25-A: The right to education

Article 25-A. Right to education.—The state shall provide free and compulsory education to all children of the age five to sixteen in such manner as may be determined by law.”

The most important observation one can make about this fundamental right is that it is not limited to “citizens” but to children. This means that any child between the aforesaid ages – be that child a Pakistani citizen or not- is to be provided free and compulsory education by state in  a manner determined by law. This provision is pari materia to Indian Constitution’s Article 21-A- added to the Indian Constitution of 1950 through the 86th Amendment thereto in 2002 in order to shore up Article 45 which made the same objective a principle of policy- with the difference being that Indian Constitution limits it to children between ages six to fourteen while the Pakistani constitution now adds two years to this.

While this was recognized as a fundamental right in India and Pakistan only recently, the idea had been floated much earlier. Gopal Krishan Gokhale had pioneered the Elementary Education Bill. Mohammed Ali Jinnah, the founding father of Pakistan, while addressing the central Indian legislature in 1912, had spoken about the right to universal education.

In the debate on the said bill, Jinnah opened up by expressing his regrets that although there were certain of his colleagues who opposed the bill, it was of paramount importance, and that even those opposing it were bound to admit the fact that it had the support of the great majority of their countrymen, Hindus and Muslims alike.  According to Jinnah the gradual extension of the system that had existed for 150 years – the voluntary system principle – was no answer. He reproached the British for their neglect of elementary education.  For the 150 years they had ruled, they had dealt with education at a ‘jog trot pace’ which, if continued, as Gokhale’s figures conclusively proved, it would take a further 175 years in order to get all school-going age children to school and 600 years to get all the girls to school.  Jinnah believed that “it was proven time and again, for in no country has elementary education become universal without compulsion”.  He went on to state that “elementary education had nothing to do with the fact that India had many castes, many creeds and many languages, but provision had to be made for them.” The treasury benches insisted that there was no money. Jinnah’s answer to them: “All I can say is this, find money! Find money!! Find money !!! I appeal to the president, not as president but as the finance minister. I say, find money. If you say you have not got enough money, discover and tap new sources…..” He appealed to the British to remove the reproach justly levelled against their rule – the neglect of elementary education. “It is the duty of every civilized government to educate the masses, and if you have to face unpopularity, if you have to face a certain amount of danger, face it boldly in the name of duty ….. You will have the whole educated public with you in the struggle on the battlefield.”  Others had opposed the bill on the ground that were the people to be given education, it would breed socialism and agitators who would organize strikes. According to Jinnah to equate education with sedition was preposterous. “Frank and independent criticism of the government was the duty of every member of the state and fair, free and independent criticisms of the acts of government could in no way constitute sedition. Was it in any way logical to say that a boy who could read and write would automatically become a political agitator?”  Jinnah reminded the council members. He asked them, “where would they all be but for education?”[ix]

One can then say that Article 25-A in the Pakistani constitution is a fulfillment of the idealism with which the founder of Pakistan was imbued. The adoption of the right of education as a fundamental right is a revolutionary step, even if decades too late, in a transitional society mired with ignorance where rigid social immobility is the direct consequence of it. Even today, there are people in Pakistani society who have interests in keeping the people unlettered. Positive state action therefore is needed and now Article 25-A of the constitution empowers the citizenry to demand universal education as a matter of fundamental right enforceable in the constitutional jurisdiction of the High Courts of Pakistan.

Flipside of 18th Amendment – i.e. 18th Amendment and Non-Muslims

Frederick Douglass once described democracy as a way to take turns. He was a one-man resistance to the tyranny of the majority and its confusion about democracy. It did not occur, however, to the framers of the 18th Amendment that this was also the principle on which Pakistan was founded, i.e. a permanent majority shall not, by sheer force of numbers, dominate and oppress a permanent minority.

It is also forgotten, conveniently, what Jinnah told the legislators in very clear terms: “Even now there are some states in existence where there are discriminations made and bars imposed against a particular class. Thank God, we are not starting in those days. We are starting in the days where there is no discrimination, no distinction between one community and another, no discrimination between one caste or creed and another. We are starting with this fundamental principle that we are all citizens and equal citizens of one state.”

Now consider the bars that have been put on people of every community other than Muslims in the country since Jinnah’s demise. When, in 1949, the Objectives Resolution was passed, Prime Minister Liaquat Ali Khan reassured the minorities that under the constitutional dispensation so envisaged, a non-Muslim may become the constitutional head of state. The constitution thus framed several years after Liaquat Ali Khan’s assassination, however, closed the door to the President House on non-Muslims forever and it has been like this since 1956. Still, the 1956 Constitution was perhaps the most cognisant of Pakistan’s multicultural character and, while paying its due respect to Islamic culture and civilisation, the constitution remained non-committal on a state religion and guaranteed complete equality. This is how Prince Aly Khan, Pakistan’s representative at the UN and the father of the current Agha Khan, described Pakistan’s unique status as an Islamic Republic and an inclusive democracy on May 27, 1958:

“Pakistan, with a personality of its own in the Muslim world, calls itself an Islamic Republic, in the sense that the overwhelming majority of its people, are of the Muslim faith and aspire to a social and political order based on justice and equality, in accordance with the spirit of the injunctions of Islam that I have quoted. The appellation ‘Islamic’, however, does not imply that Pakistan is a theocratic state, run by religious fanatics who seek to reduce the non-Muslim minorities in Pakistan to the status of inferior citizens. The relevant provision of our constitution, under which Pakistan became a democratic Republic on the 23rd of March 1956, lays down: ‘Section 5 (1): All citizens are equal before law and are entitled to equal protection of law’.

“The constitution further nullifies as void, any law, custom, or usage, which is inconsistent with the fundamental right to equality under the law, which is an enforceable right under an independent judiciary, the Supreme Court of Pakistan.

“This means that non-Muslims are guaranteed equality with Muslims under the laws of Pakistan.

“While it is true that the president of Pakistan must be a Muslim, he is, in fact, the symbol of the state, and the executive powers are vested almost exclusively in the prime minister and his cabinet. Pakistan is not unique in basing its political institutions on fundamental religious concepts. For example, a number of European nations, such as Sweden, Norway, Denmark, Ireland, Greece and the UK restrict the office of the head of state to those who profess the predominant religious beliefs of their countries.

“The leaders of the government of Pakistan are liberal and enlightened men, responsible to a freely elected parliament in accordance with the popular will. They function entirely within the framework of the constitution and laws of Pakistan. I am well aware that the people of the US are deeply committed to the doctrine of separation of church and state. We, in Pakistan do not have an established church as such. Basically, the fundamental values and virtues which you cherish and try to practice in the US, are virtually identical with those we believe in and try to practice in Pakistan.”

The 18th Amendment reintroduces in Article 91(3) the requirement for the prime minister of the country to be a Muslim. Pakistan’s slide down the slippery pole of religiosity is quite clear. Having been inflicted a moth-eaten Pakistan against his wishes, Jinnah had envisaged an egalitarian democratic state that would not distinguish between its citizens on the basis of faith. That vision was buried when his lieutenant, Liaquat Ali Khan, sought to create distinctions of majority and minority through the Objectives Resolution but Liaquat Ali Khan was quick to dispel any notion of barring any office to the non-Muslims in Pakistan. Against Liaquat’s advice, the framers of Pakistan’s constitution created exclusion at the very top but left democracy unfettered by the symbolism of the Islamic Republic. Against that better judgement, a left-leaning secular minded prime minister made Islam the state religion of Pakistan, persecuted a sectarian minority and closed the door on non-Muslims for premiership as well. Then an ‘Islamist’ dictator — in a bid to reduce the office of prime minister in stature — opened it to non-Muslims again.

As the prime minister gets back his rightful position in a parliamentary constitution, our latest liberal democrats have once again created exclusion, which is untenable in parliamentary democracy. A ‘democracy’ where the leader of the house is from a certain community is no democracy at all.

The constitution does not protect marginalized communities

The Islamic Republic of Pakistan signed the International Covenant on Civil and Political Rights (ICCPR) in 2008 and ratified it with reservations in 2010. In 2011, the Pakistan government, on instructions from Prime Minister Gilani, withdrew almost all of the reservations. Hence, since July 2011, Pakistan has ratified the ICCPR almost completely. This means that Pakistan has committed itself to upholding the civil rights and political rights of its citizens almost entirely. To get a full sense of the legal position, it is instructive to read an article by Qasim Rashid, a young Pakistani-American lawyer, in the Richmond Journal of Global Law and Business (vol.11/1), which lays down in some detail the history of the ICCPR, Pakistan’s ratification and subsequent lapses.

Without going into too much of the legal technicalities, I will attempt to provide an overview for the readers here on how Pakistan falls short, almost shamelessly for us as Pakistanis, of its commitments under this covenant vis-à-vis Ahmedis, Christians, Hindus and other minorities — forced or otherwise. In Article 18 of the ICCPR is the guaranteed freedom of thought, conscience and religion. The right to religion includes the freedom to adopt and profess in public or private, freedom of worship and unstinted and unfettered right to believe and manifest one’s religious beliefs accordingly. Article 19 goes further and says that everyone shall have the right to his or her opinions — without interference. Article 20 of the ICCPR forbids any advocacy of religious hatred.

All of the aforesaid have been placed in the non-Muslim category under Article 260 of the Constitution of Pakistan. For Christians, Hindus and other minorities, the factum of their status as non-Muslims is acceptable provided there is no discrimination.

Ahmedis, however, protest their forced categorisation as central to their faith is their belief that they are a Muslim community. Not content with declaring Ahmedis non-Muslims for the purposes of the law and constitution, Pakistani lawmakers in the 1980s also ratified Ordinance XX of 1984, which essentially outlaws Ahmedi modes of worship and religion by making it unlawful for this community to use what are known as Shair-e-Islam. The aforesaid Supreme Court judgment in 1993 (Zaheeruddin Vs State, 1993, SCMR 1718), upheld two to one the said law as constitutional and not in conflict with Article 20 of the Constitution that promises freedom of religion and the freedom to profess and propagate one’s religion. The Honourable Supreme Court resorted to using logic germane to intellectual property such as trademarks, etc, to justify this vile and inhuman law; a far cry from when Jinnah had said clearly that Ahmedis were Muslims if they profess to be Muslims. The question now is whether this law is sustainable after the ratification of ICCPR by Pakistan. The answer has to be an overwhelming no. The freedom to profess one’s religion is integral to the ICCPR and therefore any law that abridges that freedom is in violation of and in contradiction to Pakistan’s international commitment.

We saw a complete abdication of responsibility by our state when the police in Rawalpindi stopped Ahmedi worshippers from offering Eid prayers in their own place of worship. No suo motu notice is forthcoming on this issue by our otherwise super activist Chief Justice of Pakistan. Similarly, in passport application forms, officially sanctioned Muslim citizens are required to abuse and curse the Ahmedi religious beliefs, which amount to religious hatred sponsored by the state itself. Furthermore, Pakistan reintroduced joint electorates after a gap of about 24 years in 2002. This logically meant one electoral roll for every Pakistani regardless of his religious belief. Yet, in what was a sheer surrender to religious bigotry, the so-called enlightened and moderate regime of General Musharraf placed Ahmedi names on a supplemental ‘non-Muslim’ voting list. This discriminatory and bigoted move was done to disenfranchise Ahmedi voters, amounting to censure for holding their own religious beliefs. The existence of supplementary rolls is, therefore, also a clear violation of Pakistan’s commitment to safeguard the political rights of its citizens.

While Christians, Hindus, Sikhs and others are not subject to such open discrimination, their situation is only marginally better. In Sindh, Hindu women are being abducted and forcibly converted to Islam. Many Christians are suffering under the blasphemy law, a law which itself is in contradiction to the ICCPR. Churches, temples and other places of worship are routinely destroyed. In Pakistan, no one is free to go to their temples, mosques or any other place of worship other than the Sunni Muslim majority and even they go to their mosques under threat of terrorist attacks and violence. Even amongst the Sunni Muslims, the Barelvi sect faces ruin and destruction vis-à-vis the mazar and dargah. This is also leading to radicalisation within the Barelvi, who are now competing with the Deobandi and Ahle-Hadith in intolerance and bigotry.

To sum up, Pakistan is in complete and total violation of its international obligations vis-à-vis religious freedom, civil and political rights. The consequences can be severe and it is entirely possible that in the extreme, foreign governments might stop accepting or honouring Pakistani passports as a valid travel document. South Africa faced such international isolation and was forced to give up its bigoted racial policies. Pakistan has many more international enemies than South Africa did in the 1970s. Therefore, isolation along these lines will be disastrous for an already ailing economy. The upshot, of course, would be that Pakistan would be forced to undo the institutionalised discrimination in its legal system against non-Muslims but at what cost? Let us voluntarily rectify these problems instead of becoming the subject of international humiliation and ridicule.

Recommendations for future constitutional amendments

While recognizing the 18th Amendment as a milestone in the civil rights of the citizens of Pakistan, it is important to also state that there is much more to be done. In order to do away with ambiguities and to give full citizenship rights to all citizens of Pakistan regardless of their religious or cultural affiliations, some recommendations are as below:

  1. Article 2, the constitutional article providing a state religion, should be substituted with “Article 2. No State Religion. — The state, being an artificial political construct and an expression of the temporal political will of the people, has no religion. Provided that the state shall ensure that freedom of religion is not abridged.”  The state, Islamic or otherwise, is not a natural person and is therefore unable to profess a faith. The legal fiction of a state religion is superfluous and has no place in statehood nor is it a mandate of an Islamic government. No Islamic state in history ever professed a state religion. Indeed Pakistan’s first two constitutions, both of which envisaged Pakistan as an Islamic Republic, did not contain a reference to a state religion. To do this is discriminatory against Non-Muslims and against the spirit of Islam. In other words Pakistan does not become any more or less Islamic by creating the legal fiction of a state religion. The keeper of Islamic conscience in Pakistan has to be the society which expresses its political will through the legislature.
  2. Article 2-B may be added making Jinnah’s 11th August speech a substantive part of the constitution. In this speech the founding father promised equality of citizenship and state’s neutrality towards the personal faith of an individual. He also promised a state which creates no bars for any citizens but treats every citizen equally on all counts.
  3. In Article 19-A the words “subject to regulation and reasonable restrictions imposed by law” may be omitted. Information of public importance should be available to all citizens as they are the ultimate arbiters of national interest. “Regulation” and “reasonable restrictions” are too broad for any meaningful implementation of this fundamental right.
  4. In Article 41(2) the word “Muslim” may be omitted. The President of the republic is a purely constitutional office. In the presence of a parliamentary democratic system, the religion of the President of the Republic is immaterial and as such an unnecessary act of discrimination against Non-Muslim Pakistanis.
  5. In Article 91(3) the word “Muslim” may be omitted. This is necessary because the office of the Prime Minister, as the elected leader of the house should be open to all elected members of the parliament and this additional bar is not only discriminatory but is at the heart of it extremely undemocratic. Since all legislation has to take place through a parliament which consists of a Muslim majority, the Prime Minister’s religion cannot in any way prejudice the interests of Muslims in Pakistan.
  6. Chapter 3-A i.e. Articles 203-A to 203-J may be omitted in entirety. The Federal Shariat Court, introduced by General Zia ul Haq, is an impediment to the ijtehad to be carried out by the National Assembly, every action of which is open to selective judicial review on the touchstone of personal interpretations of the Federal Shariat Court.
  7. Article 260(3) may be omitted in entirety since the distinction of Muslim and Non-Muslim ought to be erased in so far as the constitutional rights of citizens of Pakistan are concerned.
  8. Consequently all oaths of offices may be suitably amended to make them inclusive to all Pakistanis regardless of their religious or cultural affiliations.

Can Pakistan’s constitution be secularized?
In view of the Constitution of 1973 and the many authoritative pronouncements of our judiciary regarding Pakistan’s status as an Islamic state, it is logical to question whether secularisation of Pakistan’s constitution and hence the state itself is possible. Opponents of a secular Pakistan claim that since the state itself was founded in the name of Islam, secularisation is antithetical to it. This post hoc view on the raison d’etre of Pakistan is inconsistent with the historical facts leading to the partition of India and should have been void ab initio. However, the enactment of the 1973 constitution has given it the cover of legal fiction, i.e. Islamic ideology, which is said to be the grundnorm of the state.

Secularisation and state secularism, however, are distinguishable. The former is an evolutionary process and the latter a constitutional expression of the state’s impartiality to all religious considerations. On a long timeline though, things cannot remain constant. Historical trends afford evidence of eventual acceptance of secularism in other religious states. It is very likely our posterity will also make a decisive break with ‘ideology’ and make Pakistan a normal democratic state sans hyphenation of any kind, because progress and the onward march of humanity is unstoppable. If Pakistan’s raison d’etre was the material progress of its people it shall be realised only when a paradigmatic shift — a Copernican revolution of sorts — is brought about in the discourse on religion’s role in Pakistan.


[1] Yasser Latif Hamdani is a practicing lawyer based in Lahore. He is also the author of the upcoming book “Jinnah; Myth and Reality”. He can be contacted at 0300 555 2232 or at yasser.hamdani@gmail.com.


[i] 1993 SCMR 1718

[ii] For more on this see Griswold vs. Connecticut381 US 479 (1965) and Roe vs. Wade410 US 113 (1973).

[iii] Treatise on Constitutional Law: Substance and Procedure (the third edition) by Ronald D Rotunda and John E Novak, on page no 2 S17,

[iv] PLD 1989 Karachi 404. Also see the Jamaat-e-Islami case, PLD 2000 SC 111.

[v] Manzoor Elahi Case, PLD 1975 SC 66 and theLiaqat Hussain Case, PLD 1999 SC 505 at page 652

[vi] (2003) 6 SCC 230 at pages 245 to 246

[vii] PLD 1996 Lah 672 at pages 684 to 685

[viii] Ataullah Malik v. Federation of Pakistan PLD 2010 Lahore 605

[ix] Enemy of ignorance http://archives.dawn.com/weekly/cowas/20011223.htm