The struggle for a just order and protection of the marginalised hinges on the guiding documents and ideals evolved by the nations
Khel Das, a minority member of the National Assembly representing the Pakistan Muslim League-Nawaz, is evidently irked by the religious discrimination in the political system and social spheres. He has moved a resolution to replace the term “minority” with “non-Muslim” in the constitution of Pakistan. Das deserves praise for bringing attention to embedded religious discrimination in the constitution. However, his prescription merits a thorough examination.
MNA Das argues that the term, minority, is already marginalised in the constitution. It has been used only four times whilst the latter (non-Muslim) has been used 16 times. This assertion, however, contradicts the logic of the motion. If the vocabulary being used was considered a key driver behind the persistent religious discrimination, then the more frequently used term “non-Muslim” in the constitutional text should be responsible for it rather than the less-used term “minority”. Moreover, if the common usage is different from the constitution’s vocabulary, there must be a reason behind it. Therefore, his proposal needs an in-depth assessment of the language as well as its effects.
Despite its democratic credential, the constitution is replete with explicit and implicit discrimination on the basis of religion or belief. This discrimination plays out in five different ways to institute a disparity of rights, often referred to as “second-class citizenship”.
The constitutional provisos in Article 19 and the 10 different oaths prescribed for the highest state offices assume that religious minorities do not exist in Pakistan. Article 19 makes the exercise of freedom of speech conditional to the exaltation of the majority religion, the state has been empowered to impose restrictions “in the interest of the glory of Islam”.
In the same vein, the oaths for the elected officeholders - prime Minister, speaker and deputy speaker, chairman and deputy chairman of Senate, federal and state ministers, chief ministers and governors, including the minority members of the national and provincial parliaments - given in the 3rd Schedule of the constitution, make it obligatory for them to strive “to preserve the Islamic Ideology”. Hence, the assumption here is that any other religious ideology is non-existent or unacceptable.
The second type of discrimination relies on imposition and classification of the populace on the basis of religion or belief. Chapter 5 of the constitution on the “interpretations” manifests this discrimination in Article 260 (3), which restricts the religious freedoms by imposition of one or the other identity. This proviso defines who is a Muslim or a non-Muslim. Apart from its operationalisation against the Ahmadi community, Article 260 (3) acknowledges only eight minority religions; Christian, Hindu, Sikh, Buddhist or Parsi, Qadiani Group or the Lahori Group “who call themselves ‘Ahmadis’” or a Bahai, and a person belonging to any of the Scheduled Castes.
Obviously, limiting the number of recognised religions restricts the scope of religious freedom. For instance, other belief communities living in Pakistan here, such as Kailashas, atheists, Jews, etc, get discounted by this restriction. A large number of people face difficulties when they want to acquire their national documents such as national identity cards passports, and their population is not properly reflected in the national data such as the national census following this proviso.
Assigning a group identity based on religion to the people of countless religious persuasions is illogical and, essentially, an impossible task due to the inquisitive nature of human beings. Sectarian and extremist views are but a natural product of the suffocation created by this sheer disregard for religious freedom.
Constitutions around the world ought to be futuristic. Therefore, one cannot limit the scope of the law by shutting doors to new faiths. This narrow view of religion(s) has created uncalled for conflicts in blatant abuse of religion and divisions in the social order.
Moreover, assigning a group identity based on religion to the people of countless religious persuasions is illogical and, essentially, an impossible task due to the inquisitive nature of human beings. Sectarian and extremist views are but a natural product of the suffocation created by this sheer disregard for religious freedom.
Reading through the constitution of Indonesia and Bangladesh can be instructive. Those, too, mention a few religions but do not make the mistake of defining any religion. Therefore, those serve the objective of democratic governance better, though keeping religion as a private matter of the citizens would have been the best approach.
Article 2A of the constitution of the People’s Republic of Bangladesh is far more inclusive direct and futuristic, for example, than its Pakistani parallel. It states, “The state religion of the Republic is Islam, but the State shall ensure equal status and equal right in the practice of the Hindu, Buddhist, Christian and other religions.” Article 2 of the constitution of Pakistan stops after stating that “Islam shall be the State religion of Pakistan.”
Similarly, Article 31 of the constitution of Pakistan makes the teaching of Islamiat and Arabic compulsory for Muslim students at educational institutions. It fails to give an alternative to the students belonging to religions that are defined as non-Muslim in Article 260 (3), hence the assumption of non-existence. It certainly appears to be a willful blunder rather than a careless omission.
The third type of discrimination is exemplified in Articles 41 (2) and 203-E (4), which derogates citizen’s equality in the following language, “A person shall not be qualified for election as president unless he is a Muslim”. This type may be called exclusion by way of explicit reservation or preference on the basis of (majority) religion. The “only Muslim” approach is also used in Article 203-E (4), which bars a non-Muslim lawyer to represent in the Federal Shariat Court though its decisions are binding on all citizens irrespective of religious affiliations.
Articles 91 (3), while detailing the manner of election of the prime minister, states, “proceed to elect, without debate, one of its Muslim members to be the prime minister”. The language causally outlays the arrangement as a given or normal. This is an implicit exclusion of religious minorities and the fourth form of discrimination embedded in the constitution.
Alluding to the protection of minorities, Article 36 presents the fifth type of religious discrimination, “the State shall safeguard the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services.” Punctuating the rights with the term legitimate is not bona fide language. This is alien to the vocabulary of rights. It is no surprise that this weak or faulty language has brought us to where we stand as a nation. It suggests the application of the constitution at sweat will. Therefore, it has not helped the objective of the protection of rights of minorities’ equality of right. It has also failed us in the objective of the rule of law. An unfair and biased law fails predictably to win the empathy of the people even if it echoes favours or privileges for a section of the society.
The struggle for a just order and protection of the marginalised hinges on the guiding documents and ideals evolved by the nations. It is evident from the discussion above that different terminologies have been employed to institute discrimination and exclusion of people from the ambit of their rights.
Therefore, the motion brought forth by the respected parliamentarian is not only technically flawed, but it is also a dangerous proposal. Its success may be politically appealing, but it will change nothing in substance. On the other hand, its success will create an impression that something has been tried. It is untenable because the internationally used term “minority” explains a material fact, whereas the term “non-Muslim” is a negative attribution, explaining what someone is not. It is also exclusionary in nature. The negative repercussions linked with the term non-Muslim are likely to surprise us all in a short span because it will reinforce the religious divide and biases existing in the system.
The motion has been referred to a standing committee and vehemently welcomed by the Federal Ministry of Law. In the wake of ongoing political upheavals, the future of the current parliament is uncertain. One cannot predict the composition of the parliament that will take up this matter. However, one can say with certitude that the day the parliament of Pakistan will succeed in removing biases and discriminations discussed above, will be the day the constitution will become a strong document of great deliverance, capable of guiding this nation to its destiny in a democratic dispensation and enjoyment of rights by all, equally and progressively.