Original Articles

Are they free to go to their temples? -by Saria Benazir

Pakistan was envisioned as a progressive, democratic and tolerant society, which, while retaining a Muslim majority, would give equal rights to its non-Muslim citizens. Without calling it a secular state, Jinnah and his modernist Muslim colleagues believed that Pakistan would improve its people’s socio economic conditions, and that people of all faiths and practices would continue to live as equal citizens. On 11 August 1947, in his often quoted speech to the first Constituent Assembly of Pakistan, Jinnah said:

‘… You are free; you are free to go to your temples, you are free to go to your mosques or to any other places of worship in the State of Pakistan. You may belong to any religion or caste or creed – that has nothing to do with the business of the State … We are starting with this fundamental principle: that we are all citizens and equal citizens of one State. Now, I think we should keep that in front of us as our ideal and you will find that in course of time Hindus would cease to be Hindus and Muslims would cease to be Muslims, not so in the religious sense because that is the personal faith of each individual, but in the political sense as citizens of the state.’

This is considered to be the charter of Pakistan and summation of Jinnah’s views on the role of religion and the state. Many of his colleagues shared his vision, unlike several Muslim religio-political parties in India who felt that the idea of Pakistan was an anathema because secular and ‘Westernized’ Muslims were fielding it.

Pakistan’s shift from a Jinnahist to a more Jihadi (Islamic fundamentalist) course has nothing inevitable about it, as most of its people still believe in tolerance and coexistence and would like to revert to the original dream. Since 1947, the acrimonious Indo-Pakistani relationship has seriously affected inter-community relationships. While Muslim anger was directed against Hindus in Pakistan, in India, Muslims have been perceived as scapegoats by Hindu fundamentalists. In this exclusionary process of nationalism(s), other communities have been deeply affected; including Christians in both countries, and Ahmadis and Shias in Pakistan. Yet the concept of majoritarianism is fallacious, as both Islam and Hinduism are not monolithic. In Pakistan, the growing emphasis on ‘Muslim-ness’ has not only caused justifiable concern among non-Muslims, but the intra-Muslim ideological divides have also become more apparent, finding ‘enemies from within’.

From its inception, Pakistan inherited a strong bias for administration over governance and political development. The civil bureaucracy, emboldened by its unilateralist hold, co-opted the military within the first few years of Pakistan’s existence. This elite’s contempt for politicians and constitutional primacy knew no bounds. In the colonial tradition, it offered noisy politicians a subordinate role or suppression. The dented political culture was further damaged by the frequent military takeovers. Article 2 of the Constitution states: ‘Islam shall be the state religion of Pakistan …’ and Article 2-A stipulates: “wherein the principles of democracy, freedom, equality, tolerance and social justice, as enunciated by Islam, shall be fully observed’. In addition, Article 227 ordains that no law repugnant to Islamic injunctions can be enforced in Pakistan, Article 41 (2) states that the head of the state will be a Muslim, and Article 91 (3) stipulates that the Prime Minister shall also be a Muslim believing in the finality of the Prophethood. However, Article 22 (1) ensures freedom in the religious institutions by not requiring any individual: ‘to receive religious instruction, take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own’. Article 33 makes the state responsible for safeguarding the legitimate rights and interests of minorities, including their representation in the national and provincial civil services, although the procedures are not clear. Article 36 further promises the protection of minorities, whereas Article 40 highlights the need to strengthen the relationship with the Muslim world and the promotion of international peace. But, the highest offices of the land being constitutionally closed to minorities suggests a second- class citizenship for them. Such a measure, as originally stipulated in the Objectives Resolution, further institutionalized their inequality.

The sweeping legislation, introduced by Zia and further incorporated into the Constitution through the Eighth Amendment – without the proper procedures as laid down in the Constitution – changed the entire spectrum of policies and attitudes towards minorities and women. Zia’s own religiosity, his effort to woo religious parties like the JI and JUI, and his strategy to counter the revolutionary impact from neighbouring Iran all underwrote his amendments. Operating as the chief martial law administrator by virtue of his being chief of the army staff, his assumption of the presidency, the execution of Zulfikar Ali Bhutto in April 1979, and the Soviet invasion of Afghanistan in
1979, all allowed him to acquire maximum powers. For the first time, a military-clerical nexus was installed in Pakistan. Zia favoured Sunnis over Shias and scripturalists over the syncretists. Thus, the introduction of ushr, zakat and other Islamic taxes caused considerable uproar from Shia groups, eventually leading to an official concession to them. Zia harshly suppressed political parties like the PPP and other pro-democracy clusters, and tried to consolidate his own loyalists within the religio-political elements, offering himself as their head. He posed as the Amir ul Momineen (leader of the faithful), with the help of a pliant media controlled by his generals. Zia set about redirecting the ideological direction of Pakistan. For example, while laying down the foundation of the Islamic courts, he introduced Chapter 3A on Sharia courts. Article 203 (D), states:
‘The court may, [either of its own accord or] on the petition of a citizen of Pakistan or the Federal Government or a Provincial Government, examine and decide the question whether or not any law or provision of law is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and Sunnah of the Holy Prophet, hereinafter referred to as the Injunctions of Islam.’

The Zia regime’s various amendments and additions to the Penal Code resulted in severe socio-legal discrimination against minorities. The stringent rules meant to counter blasphemy against the Qur’an and the Prophet has established a unilateral system in which any male Muslim can institute litigation against an individual on allegation of blasphemy. (This law prohibited women and minorities from initiating blasphemy cases.) The Zia law of evidence (Qanoon-i-Shihadah) – equating the evidence of two women or two non-Muslims to that of a single male Muslim – further disempowers non-Muslims and women, while making it easier for Muslim men to pursue legal proceedings against the accused party. The original Blasphemy Laws were designed by the British and introduced in 1885 to outlaw the inflaming of religious hatred. These laws became part of the Pakistan Penal Code as
Section 295 and, in its original incarnation, it had noted: ‘Whoever destroys, damages or defiles any place of worship, or any object held sacred by any class of persons with the intention of thereby insulting the religion of any class of persons or with the knowledge that that class of persons is likely to consider such destruction, damage or defilement as an insult to their religion, shall be punished with imprisonment of either description for a term which may extend to two years, or with a fine, or with both.’
In 1927, when communal riots occurred in India, another clause was promulgated under the title Section 295–A. Accordingly:
‘Whoever, with deliberate and malicious intention of outraging the religious feelings of any class of the citizens […] by words, either spoken or written, or by visible representations, insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to two years, or with a fine, or with both.’
There were no further amendments or additions in the British era and subsequently Pakistan, until Zia added two new clauses – B and C – to Section 295. Clause B was added via Ordinance 1 of 1982 and stated: Whoever willfully defiles, damages or desecrates a copy of the Holy Qur’an or any extract thereof or uses it in any derogatory manner or for any unlawful purpose shall be punishable with imprisonment for life.’
Again, Zia was trying to appease the Islamicists. The Penal Code Section 295–C was rushed through via the Criminal Law (Amendment) Act III of 1986, and stipulated: ‘Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall also be liable to a fine ’. The regimes’ sense of insecurity and partisan use of Islam have increased the strains on pluralism. Pakistanis, in general, have never sought separate electorates, yet Zia chose to divide Pakistanis into Muslim and non-Muslim voters. His Hudood Ordinance and the law of evidence had already critically disempowered minorities and women. Such legal discrimination on the basis of gender and religion was further consolidated through the introduction of constitutional amendments and exclusionary clauses in the Penal Code. These established the segregationist regime of separate electorates for minorities. An amendment (Clause 4A) was added into Article 51 of the Constitution stipulating that there be ‘separate electorates’.

In other words, non-Muslims would have their own constituencies and separate representatives. Despite living side by side with Muslims, they would not share the same voting rights and constituencies. Their constituency may be shared with people they have never met or who live hundreds of miles away. Similarly, their representative may be a total stranger to them. Moreover, the Muslim representatives, even if they live in the same town, would have no concern for them.
Before these critical amendments, elections to local, provincial and national bodies were held on the basis of joint electorates and common representation, and minorities were not discriminated against. There were reserved seats for minorities and for women, which further guaranteed participation in national politics, but the law on separate electorates changed all this. The separate electorates system was implemented in the party-less elections conducted by Zia in 1985 – although in 1983, local elections had been held using separate constituencies.(Interestingly, in his own referendum in 1984 to seek the presidency for five years, Zia used joint electorates as it served his own interests.)

The second administration of Shaheed Mohtarmah Benazir Bhutto (1993–6), despite its support for joint electorates, could not take any action. Fakharuddin Ibrahimji, Bhutto’s Attorney General and a former senior judge, re-affirmed support for the Jinnahist vision of equal citizenship and joint electorates, but found it to be a constitutional matter, which could be rectified only by the National Assembly. Bhutto’s supporters suggest that she could not annul the separate electorates and other discriminatory laws and amendments largely because she did not have an electoral majority, while the Muslim League never appeared interested in undoing Zia’s legacy. This was partly because Sharif and many of his colleagues had been the personal beneficiaries of Zia and his regime, and partly because the Muslim League has, for a long time, been a party of predominantly conservative interests representing the capitalists and landowners who have never supported an egalitarian system.

In addition, evangelical competition between Islam and Christianity is harmful. In recent years, Western policies in the Muslim world have been seen as inherently anti-Muslim and based on double standards. The tragic human sufferings in Afghanistan, Bosnia, Iraq and Palestine, and the denigration of Islam in some quarters following the attacks on the World Trade Center (September 2001), infuriated Muslims (and others). The bombing of a poor and war-ravaged country like Afghanistan, causing civilian deaths and massive human misery, only intensified the anger of some Muslims. The massacre of worshippers in Bahawalpur on 28 October 2001 and the grenade attacks on a church in Islamabad on 17 March 2002, followed by similar attacks in Murree and Taxila, were linked with the fury of some Muslims towards the West, with Pakistani Christians used as a scapegoat. Further, the frequent fissures and tensions in Indo-Pakistani relations add to anti-Hindu feeling in Pakistan, making the community feel increasingly insecure. Physical attacks, social stigmatization, psychological insecurity, forced conversions and continued institutional degradation characterize the position of religious minorities in Pakistan. Recent anti-Shia attacks also show a growing sectarian intolerance towards Muslim ‘minorities’.

It is unfair to suggest, however, that Pakistani society on the whole is intolerant and intent upon eliminating pluralism; a small number of militants exploit the politico-economic frustrations of the rest, and these gather momentum within a non-democratic system. The politics of disempowerment and international or regional geo-political factors further fuel this backlash. It is augmented by prevailing prejudices stemming from ignorance about other religious traditions and by stereotypes of Christians, Hindus, Kalasha, Shias and others. The religious bigots inflame hatred through the mosques and on the streets, against non-Muslim minorities as well as against (Shia) Ismailis, Twelvers and Zikris. Pakistan is currently undergoing a process of fragmentation and exclusion – a phenomenon that deserves deeper analysis since religious feuds may not in fact be religious, and may be rooted in other factors.

Pakistan’s insecure and non-representative ruling elite, while seeking legitimacy has used Islamic penal codes to establish discretionary punishments. These Hudood laws – however sanctioned under Sharia – have been imposed on society, and vulnerable minorities, women and Muslims have been falling victim. In the struggle against this malaise, the role of the various activist groups, human rights NGOs and think tanks representing the civil society of Pakistan takes centre stage. On the one hand, these groups try to restrain status unilateralism, while trying to create a greater awareness of the sanctity and inviolability of equal citizenship. At another crucial level, through documentation and active lobbying, they organize civic groups to play an effective role at the local level so as to safeguard the plural nature of Pakistani society. Such groups, many still in their infancy, emerged in the last decade or so and are struggling to survive. Annual reports like those of Amnesty International have raised these issues, but there is a need for Pakistani networks and pressure groups to investigate and document the human rights abuses of the underprivileged sections of society. These organizations face tough challenges and numerous pressures, but they have built up their credibility as effective channels of information and reform. However, the fundamentalist, official, societal pressures on these organizations and their personnel are immense.

The circumstances entail that independent commissions for racial, religious and gender equality, or similar institutions, should be set up, to receive and investigate complaints, to offer advice to victims of discrimination and to undertake awareness- raising activities to promote the principles of non-discrimination and understanding between different communities. These commissions should have regional offices to cover remote rural areas. Their work should be linked to building the capacity of the judiciary and other legal institutions, including through human rights training and anti-discrimination programmes. The authorities should undertake other measures to promote awareness of the value of diversity, minority rights, and the contribution of various communities to the culture and history of Pakistan, for example, by introducing new elements into school curricula. Funds must be made available to implement these measures which should be devised with the full and effective participation of representatives of minority groups and, for example, local inter-faith committees. The authorities should ensure that religious and other minorities can participate in all aspects of public life. They may consider a wide range of mechanisms for ensuring participation of minorities in decision-making including reserved seats in government and Parliament, consultative bodies on the national and local level covering matters of concern to minorities, and forms of cultural or territorial autonomy. The ban on non-Muslims for the posts of high offices should be removed. Laws and constitutional provisions, which demonstrably result in discrimination against minorities or women, such as the blasphemy, evidence and alcohol laws, the laws designating certain groups as non-Muslims, and the constitutional provisions regarding the compliance of law with Islamic injunctions, should be modified or revoked to ensure that the discrimination ceases. The affirmation of the finality of the Prophethood should be removed from passports and other official documents. Measures should be undertaken to ensure that minorities can participate in economic and public life without discrimination, including monitoring of recruitment practices and punitive measures against those found to be discriminating against minority applicants. Laws should be passed and enforced, to criminalize the display of signs by shops or other businesses indicating that members of particular minority communities are unwelcome. Pakistan should ensure that all laws, policy and practice comply with its obligations under the Convention on the Elimination of All Forms of Discrimination against Women, the International Convention on the Elimination of All Forms of Racial Discrimination, and the Convention on the Rights of the Child. It should take immediate steps to ratify and implement all of the remaining major human rights instruments, in particular the International Covenant on Civil and Political Rights, and the International Covenant on Economic, Social and Cultural Rights.

It should be remembered that minorities have always been resident in what is now Pakistan, like most other Pakistanis and, in some cases, were present before Islam was introduced to the region. They opted for Pakistan and in the process, Bahais, Christians, Hindus, Parsis, Sikhs and others, all experienced partition and suffering, along with the Muslim community. Minorities have stood by other citizens in defence of Pakistan, their homeland, yet have received only insecurity and deprivation from successive governments and certain elements of the majority community. All the way from the Objectives Resolution to more recent times, regimes have opportunistically pandered to a policy of segregation between Muslims and non-Muslims and, sadly, this segregation has become multi-dimensional.

About the author

Junaid Qaiser


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