Protection of the Rights of Minorities
- International Standards and Safeguards
Despite the lack of consensus on a single definition of minorities, there are various safeguards that have been put in place by international instruments for the protection of all classes of persons, without any discrimination. The UDHR forms the basis for the provision of fundamental rights to all individuals based on their inherent humanity and Article 1 of the UDHR states that, “All human beings are born free and equal in dignity and rights.” Furthermore, Article 2 lays down the principle of non-discrimination and prohibits any difference in treatment on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. The ICCPR further provides for State Parties to ensure protection of all rights without any distinction on the basis of race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.[1] Moreover, specific protections for religious, ethnic and linguistic minorities exists within Article 27 of the ICCPR and Article 30 of the CRC which states that such classes cannot be denied the right to enjoy and practice their own culture, profess their own religion and to use their own language.
Various other instruments such as the ICESCR within Article 2, CRC under Article 2, the CRPD under Article 3, CEDAW within Article 1 and 2 establish the principle of non-discrimination and require State Parties to legislate, or amend existing legislation to ensure the protection of the rights of all persons without any discrimination. Even though international law characterises minorities as belonging to a common culture, religion or language, this Section will focus on the rights of religious minorities in Pakistan, as discrimination on the basis of religion continues to be expressly prohibited within international law.
In international law then, providing specific protection to minority rights is directed towards ensuring the survival and continued development of the cultural, religious and social identity of the minorities concerned, thus enriching the fabric of society as a whole.[2] The right established is conceived as being both individual and collective and is an important recognition of the collective traditions and values in indigenous cultures.[3]
Much like the protection of the rights of women and persons with disabilities, the need to protect the rights of minorities is to be enforced within the Criminal Justice System as well to ensure the protections of those belonging to different religions.
- Constitutional Safeguards
The protection of minorities is a cornerstone of Pakistan’s ideology as a nation, created to allow the Muslims of the subcontinent the freedom of conscience to choose and practice their religion. Within the Constitution of Pakistan there are nine distinct provisions that deal with the matter of non-discrimination on the basis of religion and otherwise. However, these provide for general protections and specific protections within the Criminal Justice System will be discussed in the subsequent Section.
The provisions within the Constitution are as follows:
| PROTECTION OF MINORITIES WITHIN THE CONSTITUTION OF PAKISTAN | |
| Article 20 | Freedom to Profess Religion |
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This sets the groundwork for every citizen to profess their belief and manage religious institutions subject to limitations based on law, order and public morality. It provides that every citizen has the right to “practice, profess and propagate” his or her religion and to “establish, maintain and manage its religious institutions.”
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| Article 21 | Safeguard against Taxation for Purpose of any Particular Religion |
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Prohibits any imposition of tax based on religion that would be used for the maintenance of any religion but that of the taxpayer.
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| Article 22 | Safeguards as to Education Institutions in Respect of Religion etc. |
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States that no one attending an educational institution is required to receive education, instruction or to participate in any religious ceremony that is not their own. Additionally, no tax concession or exemption will be made to any particular religious institution. The Article also states that no religious group will be prevented from teaching pupils from their community and that no education institution receiving public funds shall discriminate students on the basis of caste, race, religion or place of birth.
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| Article 26 | Non-Discrimination in Respect of Access to Public Places |
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With respect to spaces not designated for religious worship, any and all public spaces cannot discriminate or deny access to admission on grounds of race, religion, caste. sex or place of birth.
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| Article 27 | Safeguard against Discrimination in Service |
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No citizen of Pakistan qualified for service in Pakistan will be discriminated against on the grounds of religion, caste, race, sex or place of birth. However, there is an allowance for special reserved seats designated for proportional representation and advancement of a depressed class of citizens.
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| Article 28 | Preservation of Language, Script and Culture |
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Every citizen and group of citizens has the right to preserve and promote their language, script and culture and establish institutions for the purpose of the same subject to the law.
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| Article 33 | Parochial and Other Similar Prejudices to be Discouraged |
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Article 33 of the Constitution included in the Principles of Policy casts an obligation on the State to discourage parochial, racial, tribal, sectarian and provincial prejudice.
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| Article 36 | Protection of Minorities |
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Article 36, also a Principe of Policy, points to the importance of protection of the legitimate rights of minorities and their due representation on the Federal and Provincial level.
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| Figure 6.6 – Constitutional Protections available to Minorities in Pakistan.
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- Domestic Law and Jurisprudence
1. Domestic Law
It is important to note that all domestic laws established for the protection of citizens (See Sections 2, 4, 5, 7 and 8 of this Guide) and for the regulation of arrest and detention as discussed in Section 3 of this Guide are to be applied to individuals belonging to religious minorities without any discrimination. However, specific laws effecting religious minorities have been discussed below:
- Offences Relating to Religion
The Pakistan Penal Code establishes offences to criminalise actions committed against religions other than Islam as well. Sec. 295 states that a person will be liable to punishment of up to two years or fine, or both if they destroy, damage or defile any place of worship or any object held sacred by any class of persons with the intention of insulting a religion or any class of persons or with knowledge that their actions are likely to insult another religion. Furthermore, Sec. 295-A stated that any person who deliberately and with malicious intent of outraging the religious feelings of a class of persons, by words written or spoken or m their conduct to insult a religion or the religious beliefs of a class will be liable for punishment of up to ten years, or fine or both. In addition to this, Sec. 296 aims to protect religious assembly and provides that if an individual voluntarily disturbs any assembly engaged in religious worship or any religious ceremonies then he may be liable to punishment for up to a year, or fine or both. Sec. 298 of the PPC also criminalises the used of words to deliberately wound religious feelings and states that, “Whoever, with the deliberate intention of wounding the religious feelings of any person, utters any word or makes any sound in the hearing of that person or makes any gesture in the sight of that person or places any object in the sight of that person, shall be punished with imprisonment of either description for a term which may extend to one year or with fine, or with both.”
- Laws against incitement
Whilst there is no domestic legislation prohibiting the propaganda of war, there are a considerable number of laws which prohibit incitement of National, Racial or Religious Hatred. The difficulty arises where these laws have the collateral effect of impinging upon freedom of expression.
Pakistan Penal Code 1860
Under Sec. 505(2) of the Pakistan Penal Code 1860, whoever makes, publishes or circulates any statement or report containing rumours or alarming news with the intent to create or promote on grounds (including religion), feelings of enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, is to be punished with imprisonment for a term which may extend to seven years and with a fine. The language used in the provision is overly broad and like blasphemy laws is prone to misuse to settle personal scores. However, its scope is tempered somewhat by the fact that under Sec. 196 of the Code of Criminal Procedure 1898 no court is to take cognizance of an offence punishable under Sec. 505 of the PPC 1860 unless the complaint is made by order of, or under authority from, the federal or provincial government or an officer empowered on their behalf.
Furthermore, under Sec. 153-A of the PPC 1860 anyone who ‘by words, either spoken or written, or by signs, or by visible representations or otherwise, promotes or incites or attempts to promote and incite disharmony, enmity, hatred or ill-will between different religious, racial, language or regional groups or castes or communities, on grounds of religion, race, place of both, residence, language, caste or community or any other ground whatsoever.’ This provision often goes with those that criminalise blasphemy (namely, Sec. 295 and 298), however, they can also collide. For instance, the provision should prevent other religious groups from hosting abusive rallies against religious minorities such as Ahmedis, however these groups often get away with hate speech under the provisions of Sec. 295-C which criminalizes blasphemy.
Anti-Terrorism Act 1997
Sec. 6(2)(f) of the Anti-Terrorism Act (1997) states that terrorism means an action that incites hatred and contempt on religious, sectarian or ethnic basis to stir up violence or cause internal disturbance. Sec. 8 of the Act also prohibits acts intended to or likely to stir up sectarian hatred through threatening, abusive or insulting words or behaviour, including the possession, display, publication and distribution of such material in recorded, visual image, or sound form.
- Blasphemy Laws
Pakistan Penal Code 1860
Pakistan’s blasphemy laws are found in Sec. 295 and 298 of the Pakistan Penal Code 1860 and consist of a variety of crimes including misusing religious epithets, defiling the Qur’an, deliberately outraging religious sentiment, and using derogatory remarks in respect to the Prophet Muhammad. Sec. 298-B and C further impose restrictions on the Ahmedi community from using Islamic titles and epithets and ‘posing’ as Muslims or referring to their religion as Islam. Some have argued for a more precise and clear formulation of the terms used in these sections to prevent misuse by unscrupulous elements in society.[4] They have argued that the provisions include broad and vague terms which are highly subjective and may breach the principle of legality. This requires the clear and precise formulation of terms prescribing unlawful conduct.
The blasphemy provisions of the PPC 1860 carry severe penalties, including the mandatory death penalty for Sec. 295-C (defaming the Prophet Muhammad) and long terms of imprisonment or fines. The alternate punishment of life imprisonment had existed for Sec. 295-C, however, the Federal Shariat Court ordered it be deleted in the Muhammad Ismail Qureshi[5] case, as repugnant to the injunctions of Islam. Pakistan has come under intense international criticism for these laws where it is stated that the laws criminalise the exercise of the right to freedom of expression and religion or belief and thus violate Pakistan’s international human rights obligations.
Code of Criminal Procedure 1898
In order to deter abuse of blasphemy laws, Sec. 211 of the Penal Code 1860 criminalises the intentional institution of criminal proceedings based on false charges for any offence. This risk of misuse has been tempered somewhat by Sec. 196 of the Code of Civil Procedure 1898 which states that no court is to take cognizance of any offence punishable under Sec. 295-A (deliberate and malicious acts intended to outrage religious feelings of any class by insulting its religion or religious belief) unless a complaint is made by, or under authority from, the Federal or Provincial Government. Unless prior permission is granted, a judge cannot take cognizance of a private complaint. Moreover, in Muhammad Sharif v. the State,[6] the Lahore High Court acknowledged that blasphemy cases were being filed to settle scores and directed that the Inspector General Punjab ensure that whenever a blasphemy case is registered, it must be entrusted for investigation to a team consisting of at least two gazetted officers who are preferable well-versed in Islamic laws. However, given the numbers of cases filed over the years it does not seem that this has had much effect.
2. Wide Application of Blasphemy Laws
According to HRCP’s State of Human Rights Report 2016, at least 1472 individuals have been accused under blasphemy laws between 1987 and 2016, out of which 730 were Muslims, 501 Ahmedis, 205 Christians and 26 Hindus. According to the 2017 US State Department Report on Religious Freedom, police registered new cases against at least 17 individuals under blasphemy laws during the year, compared with 18 new cases in 2016. Blasphemy complaints were issued to settle personal disputes against neighbours, peers, or business associates or to intimidate vulnerable persons rather than for the actual offense. Though the law requires a senior police official to investigate any blasphemy charge before a complaint can be filed, rarely is this procedure uniformly followed. Also, the police continued not to file charges against individuals who made false blasphemy accusations, and if charges were filed, courts most often acquitted those accused.[7]
However, a review of the jurisprudence developed by the Superior Judiciary shows that many instances of misuse have been corrected by the Courts. The Judiciary has been active in ensuring that the rights of minorities are protected and that special measures are taken to ensure their safety and well-being. This is manifested in the fact that since 1986 more than 4000 cases of blasphemy have been handled, however, not a single conviction has been upheld by the Superior Courts.[8]
3. Jurisprudence
Asia Bibi Case[9]
Asia was a Christian woman who had been sentenced to death for blasphemy under Sec. 295-C in 2010. The three-member bench acquitted her in a well-reasoned decision on the basis that the prosecution had failed to meet evidentiary requirements. The grounds for the decision were, inter alia, inconsistencies in witnesses’ testimonies, the late lodging of the FIR and the fact that the complaint was based on a personal quarrel over the issue of fetching water. It was held by the Supreme Court that while blasphemy is a serious offence, insulting the accused’s religion and religious sensibilities and mixing truth with falsehood in the name of the Holy Prophet is not short of blasphemy itself. The Judgment was concluded by the Chief Justice with a tradition of the Holy Prophet wherein it was stated that: “whoever is cruel and hard on a non-Muslim minority or curtails their rights or burdens them with more than they can bear, or takes anything from them against their free will; I (Prophet Muhammad) will complain against the person on the Day of Judgment.”
Wajeeh-ul-Hassan v. The State[10]
The accused was alleged to have written letters with blasphemous content and had made an extra-judicial confession. The Trial Court convicted the accused and sentenced him to death which was confirmed by the High Court as well. The Supreme Court had to deliberate upon whether the accused had authored the letters, and whether the extra-judicial confession was supported by the expert’s report or not. The Supreme Court recognised that the penalty of death was irreversible and warranted the highest degree of caution due to which one weak piece of evidence could not be used to corroborate another weak piece of evidence. Absconding alone could not be seen as proof of commission of a crime. The Supreme Court stated that all citizens were equal before the law regardless of religion and prosecution of a crime had to be based on positive proof of commission. Due to this, the conviction of the accused was set aside.
Malik Muhammad Mumtaz Qadri v. The State[11]
In this case, the accused contended that he did not deserve the death penalty as the deceased had allegedly committed blasphemy. The Supreme Court stated that religious upbringing of the accused should have taught him to distinguish between hearsay and fact and should have made him conscious of the fact that Allah Almighty has warned against believing hearsay and unverified information and distinguishing it from fact. The Court further stated that even though commission of blasphemy was abhorrent, a false allegation regarding such commission was equally abhorrent and detestable as the religion of Islam came down heavily upon commission of blasphemy but at the same time Islam was tough against those who level false allegations of a crime. Due to this, it is the duty of the State to ensure that no innocent person was compelled or constrained to face trial on the basis of false allegations levelled against them.
Suo Motu action against violence in Christian colony in Badami Bagh Area over alleged blasphemy[12]
The Supreme Court took suo motu action with regards to violence committed by a mob in a colony of religious minority where police officers had failed to stop such violence and the mob had set houses on fire. The Supreme Court stated that the actions of the police in failing to protect the residents of the colony was a violation of the Fundamental Rights of citizens as enshrined within the Constitution of Pakistan and an order was made for the appointment of a competent person on the vacant post of the Provincial Inspector General of Police to ensure the protection of the right to life and property of all citizens.
Suo Motu action regarding suicide bomb attack on the Church in Peshawar and regarding threats being given to Kalash tribe and Ismailies in Chitral[13]
In this case, the Supreme Court recognised the special status of minorities under the Constitution of Pakistan and stated that ‘the very genesis of Pakistan was grounded in the protection of religious rights for all, especially those of minorities.’ The Court observed the lack of awareness with regards to the protection of rights of minorities, and stated that the continued desecration of places of worship of minorities and their forced conversions coupled with the inaction on the part of law enforcement agencies was a violation of the Constitution. The court asserted that desecration of the places of worship of a religious minority under the Pakistan Penal Code and the State must ensure the enforcement of all protections for minorities as well.
[1] UNGA, “International Covenant on Civil and Political Rights,” 16th December 1966 999 UNTS 171 Article 2
[2] CCPR General Comment No. 23, Fiftieth Session, CCPR/C/21/Rev.1/Add.5, 08-04-1994
[3] Committee on the Rights of the Child, General Comment No. 11CRC/C/GC/11
[4] Saba Aziz, 16 Aug 2017. ‘Pakistan court seeks to amend blasphemy law’. Al-Jazeera Online. Available at: https://www.aljazeera.com/indepth/features/2017/08/pakistan-court-seeks-amend-blasphemy-law-170814120428595.html
[5] 1991 PLD 10
[6] 2008 YLR 387
[7] 1991 PLD 10
[8] No Execution under Blasphemy Law in Pakistan So Far’, (The News, 2018) available at: https://www.thenews.com.pk/print/388047-no-execution-under-blasphemy-law-in-pakistan-so-far
[9] 2019 PLD Supreme Court 64
[10] 2019 SCMR Supreme Court 1994
[11] 2016 PLD Supreme Court 17
[12] 2013 SCMR Supreme Court 918
[13] 2014 PLD Supreme Court 699