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On paper, religious minorities in Pakistan enjoy many protections in both national and international law. From freedom of worship to the right to equality and non-discrimination, many principles are enshrined in the Constitution and other legislation – yet in practice continue to be denied to these communities. Furthermore, certain laws in Pakistan, such as its blasphemy legislation and the ‘anti-Ahmadi’ amendments to the Constitution in 1974, have adversely affected minorities and their rights. This section provides an overview of the legal context in Pakistan and the particular issues facing the country’s religious minorities.
To better understand the nature of violations of the rights of religious minorities in Pakistan, this section outlines the international standards and best practices regarding freedom of religion or belief, and how they relate to the legal framework in place in Pakistan.
At the international level, freedom of religion or belief is recognized in multiple declarations and treaties. Most prominently, Article 18 of the Universal Declaration of Human Rights recognizes freedom of religion or belief, as does Article 18 of the International Covenant on Civil and Political Rights (ICCPR, 1966). The latter states that:
‘Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.’
It further stipulates that ‘[n]o one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice’, and that state parties to the ICCPR must have ‘respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions’. At the same time, the ICCPR imposes some limited conditions on the freedom to manifest one’s religious beliefs, namely those that are ‘prescribed by the law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others’ (Article 18, paragraph 3).
The United Nations (UN) Human Rights Council (HRC) further elaborated the right to freedom of thought, conscience, and religion with the introduction of General Comment 22 to Article 18 of the ICCPR in 1992. Notably, it specifies that Article 18 applies to ‘theistic, non-theistic and atheistic beliefs, as well as the right not to profess any religion or belief’, noting that ‘the terms of religion are to be broadly construed’. General Comment 22 also provides greater clarity regarding the distinction between the freedom of thought, conscience, religion or belief – which is to be protected unconditionally – from the freedom to manifest religion or belief – which is subject to certain limitations, further specifying when these are permissible. Relevant to the case of Pakistan, it also stipulates that ‘[t]he fact that a religion is recognized as a State religion … shall not result in any impairment of the enjoyment of any rights under the Covenant, including Articles 18 and 27, nor in any discrimination against adherents of other religions or non-believers’.
Other key articles of the ICCPR related to freedom of religion or belief include Articles 27 and 20(2). Although the standards regarding religious freedom do not exclusively apply to religious minorities, they are often disproportionately the target of violations perpetrated by state and non-state actors. Article 27 of the ICCPR is the main legally binding provision on minorities in human rights law, stating that ‘[i]n those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language’. Article 20(2) of the ICCPR, on the other hand, deals with hate speech: ‘Any advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.’
In addition to these treaties, the most comprehensive non-binding statement made on the right to religious freedom and belief is the Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief. Introduced in 1981, this Declaration defines specific rights, including with regard to children, freedom of religion, and education (Article 5), as well as manifestations of religion or belief (Article 6).
As outlined by the Special Rapporteur on freedom of religion or belief – the mandate of which began in 1986 – common examples of violations against religious minorities which constitute violations of religious freedom on the part of state and non-state actors include ‘disproportionate bureaucratic restrictions, denial of appropriate legal status positions needed to build up or uphold a religious infrastructure, systematic discrimination and partial exclusion from important sectors of society, discriminatory rules within family laws, and indoctrination of children from minorities in public schools.’ Other violations include threats and acts of violence, desecration and vandalism of places of worship, confiscation of property from a community, banning or disruption of religious ceremonies, criminal sanctions, as well as public manifestations stoking intolerance against religious minorities.
Finally, while the South Asian Association for Regional Cooperation (SAARC) has not implemented an internationally recognized minority rights framework and does not deal directly with minority rights or fundamental religious freedoms, other regional guidelines can provide helpful examples of best practice when it comes to religious freedom. These reflect the standards detailed in the ICCPR and corresponding General Comments put forth by the HRC. Minority rights and religious freedom activists in South Asia have been pushing for similar guidelines to be promulgated at the regional level by SAARC, which, while promoting international standards, would also reflect contextually specific factors pertaining to freedom of religion or belief in the region.
Pakistan has signed many of the international declarations and treaties which form the basis of the international framework for the freedom of religion or belief. As a party to the Universal Declaration on Human Rights, as well as treaty bodies such as the ICCPR, which it ratified in 2010, Pakistan has certain obligations to uphold the right to freedom of religion or belief and give effect to the rights enshrined by these treaties. Some other key treaties that Pakistan has ratified – with certain reservations – and which are relevant to freedom of religion or belief to varying degrees include the International Covenant on Economic, Social, and Cultural Rights (ICESCR, ratified in 2008), the International Convention on the Elimination of Racial Discrimination (ICERD, ratified in 1966), the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW, ratified 1966), the Convention on the Rights of the Child (CRC, ratified 1990), and the International Labour Organization Discrimination (Employment and Occupation) Convention 1958 (ILO 111).
A significant gap remains between ratification and implementation at the domestic level, however. Pakistan follows a dualist system with regard to international treaties, and therefore those that have been ratified still require incorporation into domestic law. Failure on the part of the government of Pakistan to comprehensively bring domestic legislation in line with international treaties has led to the frequent violation of the latter. Nevertheless, there are constitutional provisions in place to uphold the freedom of religion or belief, as well as rights of minorities.
While in the Pakistani Constitution several references are made to ‘minorities’, no clear definition for this term is set out, resulting in ambiguity regarding what constitutes a ‘minority’. However, ‘minority’ in the Pakistani context is commonly understood to refer to religious minorities specifically, thereby limiting the constitutionally recognized minority groups to those such as Hindus, Christians and Sikhs. This has implications for ‘internal minorities’ such as Shi’a who, while Muslim, are a sectarian minority, as well as for ethnic, linguistic and national minorities who are not clearly constitutionally recognized as such. Particularly vulnerable are those groups, such as Hazara Shi’a, who face intersectional discrimination on account of their ethnicity and religious identity, but also those who face caste discrimination, all of which fall outside of the commonly accepted definition of ‘minority’ in Pakistan.
This narrow understanding of ‘minorities’ has been reflected, for example, in Pakistan’s engagement with treaty bodies such as the Committee on the Elimination of Racial Discrimination (CERD), as well as certain provisions within the Constitution which refer to ‘minorities’ in general, with a focus that is squarely on religious minorities (including Articles 20, 21 and 22). Detailed in Table 1 are constitutional provisions which work to uphold freedom of religion or belief and the rights of minorities in Pakistan, many of which are from Chapter 1 of the Constitution, centred on fundamental rights.
Table 1: Constitutional provisions related to freedom of religion or belief and minority rights
|Article 36||The state shall safeguard the legitimate rights and interests of minorities, including their due representation in the federal and provincial services.|
|Article 20||Freedom to profess religion and to manage religious institutions
Subject to law, public order and morality:
|Article 21||Safeguard against taxation for purposes of any particular religion
No person shall be compelled to pay any special tax the proceeds of which are to be spent on the propagation or maintenance of any religion other than his own.
|Article 22||Safeguards as to educational institutions in respect of religion, etc.
(1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.
(2) In respect of any religious institution, there shall be no discrimination against any community in the granting of exemption or concession in relation to taxation.
(3) Subject to law:
(a) no religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination; and
(b) no citizen shall be denied admission to any educational institution receiving aid from public revenues on the ground only of race, religion, caste or place of birth.
(4) Nothing in this Article shall prevent any public authority from making provision for the advancement of any socially or educationally backward class of citizens.
|Article 25||Equality of citizens
(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the state from making any special provision for the protection of women and children.
|Article 26||Non-discrimination in respect of access to public places
(1) In respect of access to places of public entertainment or resort not intended for religious purposes only, there shall be no discrimination against any citizen on the ground only of race, religion, caste, sex, residence or place of birth.
(2) Nothing in clause (1) shall prevent the state from making any special provision for women and children.
|Article 27(1)||Safeguard against discrimination in services
(1) No citizen otherwise qualified for appointment in the service of Pakistan shall be discriminated against in respect of any such appointment on the ground only of race, religion, caste, sex, residence or place of birth …
There are therefore certain constitutional provisions in place to uphold freedom of religion or belief in Pakistan. At the same time, there are aspects of the Constitution as well as legislation more broadly which contradict Pakistan’s international commitments to upholding religious freedom and the rights of minorities. For example, while the Constitution of Pakistan guarantees the equality of all citizens before the law in Article 25, and safeguards against discrimination in the ‘service of Pakistan’ in Article 27, the participation of religious minorities in Pakistan’s political arena is restricted by Articles 41(2) and 91(3). The latter two articles of the Constitution bar non-Muslims from holding the two most influential positions in government – those of president and prime minister. As detailed in General Comment 22 of the ICCPR:
‘[t]he fact that a religion is recognized as a State religion or that it is established as official or traditional or that its followers comprise the majority population, shall not result in any impairment of the enjoyment of the rights under the Covenant, including articles 18 and 27, nor in any discrimination against adherents of other religions or non-believers.’
This includes eligibility for government service. Such restrictions in Pakistan’s Constitution therefore constitute violations of freedom of religion and – while there are quotas in place to advance the political representation of minorities – reflect the lack of effective political participation of religious minorities in the country.
Furthermore, aspects of the Constitution specifically discriminate against Ahmadis. In 1974, the Second Amendment to the Constitution was passed, declaring Ahmadis a non-Muslim minority, in contradiction to their self-identity. Contributing to further legal discrimination against Ahmadis was the introduction of Ordinance XX in 1984 as part of the programme of ‘Islamization’ under Zia-ul-Haq. This amended Pakistan’s Penal Code (PPC) through the introduction of sections 298-B and 298-C, detailed in Table 2. The impact of this legislation has been to effectively criminalize the practice of the Ahmadi faith, in turn affecting many other areas of their lives, such as political participation. In order to complete voter registration, for example, Ahmadis are required to declare themselves non-Muslims, which in practice curtails their voting rights.
Discrimination on the basis of religion is also evident in the content and application of Pakistan’s well-known blasphemy laws. Owing to various factors, including a low threshold for evidence required for prosecution, as well as weak safeguards and lack of effective penalties to deter its abuse, this legislation has frequently been invoked. While the greatest number of those accused are Muslims, a disproportionate number of religious minorities, as well as social activists and critics, have been subject to dubious blasphemy allegations. Examination of specific cases reveals that accusations of blasphemy have often been linked to personal disputes, and are influenced by political and economic factors. While blasphemy laws are not uncommon in other countries, those in Pakistan have been widely criticized on account of their substance and implementation, as well as their role within a wider climate of impunity and intolerance that has at times erupted into vigilante violence, often targeted at religious minorities.
Table 2: Pakistan’s blasphemy and anti-Ahmadi laws
|295-B||‘Defiling, etc., of copy of the Holy Qur’an’||Only one penalty – life term|
|295-C||Whoever ‘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 fine’||Mandatory death penalty|
|298-A||‘Use of derogatory remarks, etc., in respect of holy personages’||Three-year prison term or fine, or both|
|298-B||‘Misuse of epithets, descriptions and titles, etc., reserved for certain holy personages or places’||Three-year prison term and fine|
|298-C||An Ahmadi ‘calling himself a Muslim or … propagating his faith’||Three-year prison term and fine|
As described above, even where there are provisions to promote and protect the rights of religious minorities, implementation remains a key challenge. This is also the case for issues such as hate speech, which, while outlawed as a criminal offence in section 153-A of the PPC, continues to a significant degree against Pakistan’s religious minorities. In this regard, a recent development with the potential to promote a more inclusive political structure is the 18th Amendment to the Constitution, passed in 2010. The amendment has seen minority rights issues devolved to the provincial level, and has helped to facilitate some specific pro-minority legislation in certain provinces. This includes a 2013 law in Sindh centred on protecting communal properties belonging to religious minorities, as well as the Hindu Marriage Bill, passed in the same province in 2016. While this, along with other recent positive developments – including a landmark Supreme Court Decision in June 2014 directing the government to take various measures to protect the rights of religious minorities, as well as the establishment of a National Commission on Human Rights in 2015 – are important developments, serious violations persist.