By: Sheraz Zaka
Recently the Lahore high court issued a judgement on forced religious conversion. A Christian girl, Muskan, 14, was a domestic worker in a family of Sargodha district. The girl’s parents were not allowed to meet her on the pretext that she had converted to Islam.
Subsequently her mother Nasira filed a habeas corpus petition for her recovery. Mr Justice Tariq Salim Sheikh appointed me as amicus curiae to seek opinion on the case. The judge, after thorough research, issued a 27-page judgement stating that a child below 15 is not sui juris; hence cannot change religion for legal purposes on his or her own volition as the child lacks intelligence to form an opinion on such an issue. Secondly the child is presumed to have the father’s religion until he or she becomes sui juris after turning 15. It was further stated that a child under 15 cannot be employed as a domestic worker keeping in vew the Punjab Domestic Workers Act 2019.
The judgement further stated that religious conversion is “the adoption of a set of beliefs identified with one particular religious denomination to the exclusion of others. Thus “religious conversion” would be described as the abandoning of adherence to one denomination and affiliating with another. This might be from one to another denomination within the same religion, for example, from Baptist to Catholic Christianity or from Shia to Sunni Islam.
“The freedom to religion lies at the heart of our democratic enterprise. Article 20 of the Constitution of 1973 sanctifies it as a fundamental right. The Objectives Resolution, which is not only the preamble of the Constitution but also forms part of its substantive provisions by virtue of Article 2A grants every citizen including minorities to profess and practice their religion freely and independently without undue interference by any other person belong to different religious denomination.”
The judgement by Mr Justice Sheikh relied upon a suo motu case SMC No.1 of 2014 in which the Supreme Court held that the freedom of religion must be construed liberally to include freedom of conscience, thought, expression, belief and faith. Freedom, individual autonomy and rationality characterize liberal democracies and the individual freedoms thus flowing from the freedom of religion must not be curtailed by attributing an interpretation of the right to religious belief and practice exclusively as a community-based freedom.
The freedom to religion is guaranteed to “every citizen” in the country irrespective of his age and whether he is a Muslim or non-Muslim. In that case, the Supreme Court explained:
“ Of all the Articles relating to the minorities’ rights, Article 20 is of prime significance. A close reading of this provision would indicate that the freedom to practice religion and manage religious institutions under this provision is multifaceted because:
(a) The right to religious conscience conferred under this Article does not make any distinction between majority and minority or Muslim and Non-Muslim. It is in the nature of an Equal Religious Protection Clause conferred on every citizen, every religious denomination and every sect thereof. This equal religious protection clause is in the same nature as the equal justice under the law and equal protection under the law clauses conferred under Articles 4 and 25. In other words, every absolute equality and there is no distinction among citizens, religious denominations and sects thereof, as far as the right to religious conscience, is concerned.
(b) The right to religious conscience is a fundamental right. It has not been subjected or subordinated to any other provision of the Constitution because it is only subject to law, public order and morality and not to any religious clauses of the Constitution. The very term law, public order and morality has been used in nonreligious terms as the notion of law or public order or morality is not reducible to the Islamic meanings of these terms. Therefore, Article 20 has a certain preeminence in the Constitution being only subject to the general restrictions of law, public order and morality, which three terms cannot be interpreted or used in such a restrictive way as to curtail the basic essence and meaning of the pre-eminent right to religious conscience.
(c) The right to profess and practice is conferred not only on religious communities but also on every citizen. What this means is that every citizen can exercise this right to profess, practice and propagate his religious views even against the prevailing or dominant views of its own religious denomination or sect. In other words, neither the majority religious denominations or sect nor the minority religious denomination or sect can impose its religious will on the citizen. Therefore, not only does it protect religious denominations and sects against each other but protects every citizen against the imposition of religious views by its own fellow co-believers. It needs to be mentioned here that every citizen would necessarily include both males and females (Article 263), which point needs emphasis considering the exclusion or subordination of women in relation to numerous forms of religious practices.”
Some countries, including India, Nepal, Myanmar and Bhutan, have enacted anti-conversion laws. The legislatures in Pakistan and Sri Lanka considered anti-conversion bills but did not pass them. In Pakistan Hindu Council v. Pakistan through Ministry of Law the Supreme Court observed that in Pakistan it was probably not required because Article 20 guarantees sufficient protection.
The judgement further stated that children have rights and liberties like adults but they are sometimes restricted because of their vulnerability. The human rights law also focuses on them, particularly in respect of religious freedom. For this reference may usefully be made to the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief (1981) and the Convention on the Rights of the Child (1989). So far as religious freedom is concerned, Article 5 of the said Declaration of 1981 recognizes (a) the right of the parents or legal guardians to bring up the child in their religion or belief; and (b) right of the child to education in religion or belief, in accordance with the wishes of the parents and the right not to be compelled to receive education against their wishes. This judgement would surely pave the way for development of jurisprudence in Pakistan regarding forced conversion, safeguarding the rights of minorities as well as forced labour.
The writer can be contacted at [email protected]
