On the rights of religious minorities in the Case Law
The case law in Pakistan presents diverse trends with regard to protecting the rights of minority communities. Before the 1980s, the case law was mostly about issues related to personal or family laws, whereas afterwards, the focus shifted on collective or community concerns. It seems that minorities increasingly approached courts seeking protection of their socio-economic interests and their civil and political rights after the 1980s.
The secession of East Pakistan came as a marker of increased structural and systemic challenges for minorities. In addition, apparently two factors influenced minorities’ choice for seeking legal remedies. First, the introduction of the 1972 policy of nationalisation of educational institutions impacted the Christian, Parsi and Ahmadi communities in particular. With the surrendering of their educational institutions, these communities lost their social vibrancy and relevance to a large extent.
Second, the Islamisation of the education and political systems during the 1970s and 1980s posed new questions for the wellbeing of the minorities. Legal remedies were therefore sought for protecting their rights and freedoms. The remedies provided to various litigants varied from weak to moderate and regressive to progressive judgments.
Some of the judgments have shaped the overall discourse on rights and a pathway to where we are. We shall discuss a few milestones in this article.
Nationalisation of educational institutions
In 1987, a division bench of the Supreme Court of Pakistan passed an important judgment regarding church properties in The Christian Educational Endowment Trust, Lahore vs Deputy Commissioner Lahore and others (1987 SCMR 1189) on an appeal against a judgment of the Lahore High Court ((WP No.3387 of 1981)) of 1982 which had allowed part of the property belonging to the plaintiff to be used for purposes not related to the objectives of the Trust i.e. supporting education at Forman Christian College, Lahore. The judgment stated:
“Merely because the privately managed schools, along with their assets were to vest in the Government, under the terms of para 5 of Martial Law Regulation 118 it did not imply that Government had become the owner in relation to the buildings wherein schools or colleges were being run. The intention of MLR 118 manifestly was only to take over the management of the institutions and not to confiscate the property in which the privately managed school was being run.”
At that time the courts were seized with several complaints of trespasses by the administration in the Punjab or facilitation thereof by private individuals in misappropriating communal properties. Therefore, the courts must have realised that the state apparatus was showing disrespect to the communal properties. The church-managed properties were being grabbed through corrupt practices.
In a similar case in Roman Catholic Church vs Government of Punjab and others (1999 CLC 1389), the Lahore High Court repeated the above ruling (1987 SCMR 1197).
The abovementioned judgments paved the way for the eventual denationalisation nevertheless the policy was resisted in the Punjab. Eventually, about 73 percent church-run schools in Sindh and 44 percent in the Punjab were denationalised by 2020. Importantly, while the federal government adopted a policy to this effect in 1984, the progress on denationalisation remained difficult in the Punjab, while the Khyber Pakhtunkhwa government took over the Edwards College, Peshawar, in 2019, in violation of the denationalisation policy (Kamran and Jacob, Lessons from Nationalisation of Education Policy 1972, 2020).
Successive governments over the decades showed ineptitude with regard to providing quality education in general and denationalisation in particular. The Church organisations were not the only affected party or the beneficiaries of the change of policy. In fact, the entire country paid a heavy price for the nationalisation policy in the declining standard of education after 1972. Consequently, the pockets of quality education exist mainly in the private sector.
An apartheid-style electoral system remained in effect for 22 years (1979 -2001). It stipulated voting along religious identity so that voters elected members from their faith communities.
1. The writ petition patronised by Bishop John Joseph since 1987 regarding the delimitation of constituencies for the minority seats under the separate electorate system remained pending in the Supreme Court of Pakistan. This application became redundant in 2002 as the separate electoral system was changed to proportional representation for minorities.
2. In a petition related to General Elections 1993, the members of Awami Workers (Socialist) Party, filed nomination applications in two provincial constituencies (one each in Lahore and Karachi) that were supposedly reserved for Muslims. The move was spearheaded by renowned jurist Abid Hassan Minto. The petition pointed out that since Article 106 of the constitution did not impose any restriction on the candidature of non-Muslim citizens, Christian candidates of his party (Chaudhry Naeem Shakir and Saleem Khokhar), should be allowed to contest election on general seats.[
Initially, the Supreme Court allowed the submission of the nomination papers however on the insistence of the Election Commission of Pakistan, the respondent, the court declined the petition on the ground that such an allowance on two seats will render the entire election process questionable (Jacob, The News, 15 Oct. 2017).
The petition was an important legal action that exposed the imbedded discrimination though the case never made it to law journals.
In 1988 and 1989, a bench headed by Justice Muhammad Afzal Zullah, then chief justice of Pakistan, conducted proceedings in relation to bonded labour at brick kilns in Bhai Pheru (later named Phool Nagar) and issued a historic verdict. Justice Zullah treated a telegram sent to him as an application attracting the invocation of public interest litigation under Article 184 (3) of the constitution. The telegram sent on behalf of labourers stated:
“Chief Justice Supreme Court of Pakistan, We plead for protection and bread for our family. We are brick kiln bonded labourers. We have been set at liberty through the Court. And now three amongst us have been abducted by our owners. Our children and women are living in danger. We have filed complaint. No action taken. We are hiding like animals without protection or food. We are afraid and hungry. Please help us. We can be contacted through counsel, Asma Jahangir. Our state can be inspected. We want to live like human beings. The law gives no protection to us. Darshan Masih (Rehmatay) and 20 companions with women and children Main Market Gulberg, Lahore.” (PLD 1990 Supreme Court 513).
Although the petition made no reference to the religious identity of the plaintiffs (Christian), it is well known that a large number of victims of bonded labour practiced in various sectors and parts of the country belong to the minority religious communities. Therefore, the verdict in this case was a moment of jubilation for bonded labourers across the country.
The verdict sought to abolish the enslavement tactics such as advances (peshgi) offered to the brick kiln labourers, violation of labour laws, mistreatment and illegal detentions on part of the brick kiln owners. Moreover, given the systemic nature of violations, the verdict assigned responsibilities to different stakeholders. The office of Advocate General was assigned the oversight of bondage in labour, the Bar Council was asked to provide legal aid and journalists to report such cases in collaboration. The police were instructed to exercise restraint and investigate properly when complaints were brought against labourers.
(To be continued)
The writer is a researcher in human rights, public policy and law and a