Religious Liberty in Pakistan: Law, Reality, and Perception (a Brief Synopsis)
Hassan, Farooq, Brigham Young University Law Review
In order to understand the current status of religious liberty in Pakistan, it is helpful to look at the major laws that bear on the issue. These laws include Pakistan's constitutional law as well as various statutory provisions of Pakistan's Penal Code. An analysis of these two sets of laws will enable one to fully realize whether religious liberty exists and, if so, the extent to which it is available in contemporary Pakistan.2 Prior to this analysis, a brief look at the background of Pakistan's legal system will be useful.
II. HISTORICAL FOUNDATION
A. Laws of the British Period
Many countries of the present day Commonwealth, including Pakistan, inherited the corpus juris of statutory rules and jurisprudence devised and enforced by the British during the last quarter of the nineteenth century. Initially created for India, these laws were
later implemented in other parts of the Empire and included codified forms of the common law of England in diverse fields such as criminal law, criminal procedure, and evidence.3
The codification of English common law in India was easy enough, but its implementation proved difficult as British jurists attempted to apply their own rules to an environment comprised of many diverse faiths. The challenge was to give equal and uniform treatment to respective religious laws. With no available precedent from England, this change required innovation.
As such, the religious doctrines of different faiths found statutory recognition and enforcement for the adherents of the relevant faiths in matters of personal law under the newly formed laws. Distinct laws governing activities such as marriage, divorce, adoption, trusts, and religious customs were made available to the followers of different religious faiths in accordance with their respective faith. Thus, Christian personal laws only applied to Christians, and the Muslim or Hindu personal laws only applied to followers of those religions.4 This type of system was necessary since British India had millions of followers of every major religion.
During British rule, the constitutional law of India did not directly deal with freedom of religion, as the provincial (or state) laws were devised to reach this result. However, the Indian Penal law, codified and enforced by federal law, did contain several provisions on this subject. Pakistan has kept these Indian Penal laws largely intact since it gained independence in 1947. These laws are contained in Chapter XV of Pakistan's Penal Code.5
B. Pakistani Independence and Constitutional Foundations
I. Pakistan gains independence
In the spring of 1940, in Lahore, Mohammad Ali Jinnah introduced a resolution for the division of British India.6 After two decades of failed attempts by Jinnah to unite the Hindu and Muslim communities, the "Lahore Resolution" finally called for a separate Muslim state.7 The independent state of Pakistan was the result. On August 14, 1947, Jinnah was sworn in as Pakistan's first governor-- general, and, though seventy years old and suffering from tuberculosis, Jinnah zealously began creating an infrastructure for the new country.8
Though Pakistan was created specifically for Muslims, Jinnah continued to proclaim tolerance for all religions.9 This pluralistic sentiment became canonized in the 1949 "Objectives Resolution," which was created to provide guidance to the drafters of Pakistan's first constitution.10 It states, in part:
Muslims shall be enabled to order their lives in the individual and collective spheres in accord with the teachings and requirements of Islam as set out in the Holy Quran (sic) and Sunna; ... [and] adequate provision shall be made for the minorities freely to profess and practise their religion's (sic) and develop their cultures . …