One June 19, 2014, a landmark verdict was delivered by the then Chief Justice of Pakistan, Justice Tassaduq Hussain Jillani, to protect non-Muslims’ rights in the country. Sometimes just one action or judgement — right or wrong — can affect our entire personal or professional lives.
For example Justices M. Munir, Moulvi Mushtaque, Anwarul Haq, Naseem Hasan Shah, Sajjad Ali Shah, Seeduz Zaman, Irshad Hasan Khan, Iftikhar Chaudhary, Hameed Dogar, all fall in the category of outstanding judges with illustrious careers behind them. But just one or two landmark verdicts changed their reputation for all times to come.
Justice Jillani secured his commendable status in the judicial history of Pakistan by his verdict for minorities in 2014. In his short tenure of just seven months, this one suo-moto action after the deadly bomb attack on a church in Peshawar, led to the verdict that was hailed both nationally and internationally. To mark the fifth anniversary of this judgment, on June 19, 2019, Peter Jacob and his Centre for Social Justice organised a conference in Islamabad. On this occasion a compliance analysis report written by Peter Jacob was also shared with the participants.
Peter Jacob is a tireless activist for human rights and an indefatigable fighter for minorities’ protection. His report presents a sorry picture of the compliance status of 2014 verdict. In his foreword to the report, I. A. Rehman, former general secretary of the Human Rights Commission of Pakistan (HRCP), reminds us that the Supreme Court had suggested a framework for the protection of the minorities’ right. The SC had also recommended the formation of a national council to oversee the interest of the minorities. “Had these recommendations been accepted, the minorities would have found a forum to agitate their problems and hopes of progress towards removal of their grievances would have risen.”
Rehman also talks about another critical recommendation for the creation of a three-member bench in the Supreme Court for monitoring implementation of the court’s recommendations and to receive minorities’ complaints. Though, during the past five years, Chief Justices Nasirul Mulk and Saqib Nisar “did chastise the various branches of administration for dragging their feet, of late this matter has failed to receive from the court the attention it deserves.” Peter Jacob in his report presents a thorough and thought-provoking analysis of the status of compliance of the SC verdict.
We have seen in the past that when an SC verdict is delivered, the concerned authorities have to implement it, failing which a contempt of court order is issued and those responsible for non-compliance punished. For example, when Chief Justice Iftikhar Chaudhary ordered the then prime minister, Yousuf Raza Gilani, to write a letter to the concerned authorities in Switzerland to reopen cases against the then president, Asif Ali Zardari, the PM did not comply. The Supreme Court was outraged and went so far as to remove an elected prime minister from his position.
But this fury is shown only in selected cases mostly involving politicians and not involving civil and military bureaucracy. Had the 2014 verdict been implemented in letter and spirit, it would have changed the entire gamut of minorities’ rights. Chief Justice Jillani — to his complete satisfaction — had tried to remove all impediments in the way of compliance of the seven orders passed. He had incorporated another in the judgment to provide for a mechanism of mandatory follow-up hearings by a Supreme Court Bench. By doing this, the good Chief Justice had tried to enable members of minority communities to seek compliance of the orders without involving high expenditures.
The SC order maintained that it shall open a separate file to be placed before a three-member bench to ensure that the judgement was given effect and the said bench might also entertain complaints and petitions relatable to violation of fundamental rights of minorities in the country. Having done this, the SC also directed the federal and provincial governments to fulfil their responsibilities and assigned some new tasks. None of the governments appealed against the orders and they also did not seek any clarification from the SC regarding the details of the orders, meaning it was all clear to everyone concerned.
Despite this apparent clarity, the compliance level of the verdict is pretty low even after the lapse of five years. This timely study by Peter Jacob rightly attributes this lack of compliance to implementation gaps such as poor statecraft about minorities, institutional hiccups, and lethargy or ineptitude in the implementers or respondents. The study points out that on a systemic level there are vested interests benefiting from lack of good governance and absence of rule of law. Such elements interfered with the progress on specific directives contained in the judgement.
Another hindering factor is the absence of a statutory oversight body for protection and promotion of minority rights, such as National Minorities Council or Commission. Another issue is the still-pending legislation on personal laws of minorities concerning amendments to Christian marriages and divorce laws. Similarly, there are gaps in the administrative system; such as there should have been a task force for social and religious tolerance, and reforms in education system. Security for the places of worship for minorities is another issue, whereas the menace of forced marriages and conversions is still there.
The Centre for Social Justice has been striving to highlight the problems minorities are facing in Pakistan. It submitted an application to the SC in 2015 and presented an earlier analysis of compliance in 2016. Such advocacy plays a vital role in any society and in a country such as Pakistan it becomes even more important. In addition other civil society organisations (CSOs) have also been approaching courts to get some tangible outcomes but as of today, the progress has not been substantial. Though, the former chief justice, Saqib Nisar, facilitated the formation of the Shoaib Suddle Commission, it has held only one meeting in almost a year, and that was in January 2019.
There appear to be many institutional aspects of the failure in implementation of the 2014 judgement. As the study highlights, there are major challenges in public policy and attitudes which need to be tackled if we are to prevent an ultimate failure of this judgement. The federal and provincial governments should identify the elements blocking the progress towards realisation of rights of all citizens, particularly marginalised segments of society. Many CSOs have been at the forefront to support governments in fulfilling their responsibilities to protect and promote full human rights.
Our governments and state institutions need to change their hostile posture towards civil society. The CSOs are there to work in tandem with the government to make Pakistan a civilised society, and prevent its further fall into the abyss of intolerance and obscurantism. Civilized societies are the ones that ensure accountability not only for real or perceived financial corruption, they also make collective efforts to ensure all citizens’ equal rights and access to civil liberties. If we keep depriving our minorities of their rightful political representation and social justice, we ourselves may end up as a marginalised country in the world community.