September 4, 2024: Pakistan’s religio-political groups want nothing short of absolute power. For the last 65 years, despite an enabling environment, their electoral support has not increased. Yet, they have gained influence over Pakistan’s political and social environment, through the patronage of the military and the judiciary.
The strategy of these groups is to infiltrate every sphere of civil life and spread fear – through the threat of religious sanctions. The most recent case of Mubarak Sani proves just that while laying bare the credentials of the current so-called hybrid democratic government.
In a dangerous precedent the Supreme Court has handed over its own authority as the final arbiter of justice into the hands of religious clerics in an application brought by the state itself. Regrettably, the Pakistan Muslim League-Nawaz (PML-N) government seems to have learnt no lessons from the past, and is once again beseeching the court to bend laws and procedures for political opportunism.
As with previous misadventures, it is likely that this precedent will come to haunt not just religious minorities but anyone who seeks protection from an independent judiciary, including the ruling party.
In February 2024, a two-member bench of the Supreme Court acquitted Mubarak Sani, an Ahmadi by faith who was accused of violating the Punjab Holy Quran (Printing and Recording) Amendment Act 2021 by distributing a proscribed book. The court noted that the offence was committed before it was criminalized, and that Sani had served over 13 months in prison while the maximum imprisonment for the offence was six months.
The decision led to a campaign against the Chief Justice of the Supreme Court. A review petition filed by the Punjab government and several religious parties followed it. The apex court partially accepted the petitions and observed that Ahmadis are already proscribed from holding themselves out as Muslims but have the right to practice their religion in privacy. This was not enough for the Punjab government.
Having exhausted all possible legal remedies, the Punjab government filed a criminal miscellaneous application (CMA) in liaison with religious parties to expunge certain material paragraphs from its judgment – which stated that Ahmadis had the right to practice and preach their religion in the privacy of their own homes and religious institutions.
The Sani case is important because it is unprecedented that once a final judgment has been made and a review petition entertained, the Supreme Court would entertain a further review of a judgment by way of a CMA and by just hearing the applicants and not the defendant. It erodes rules on jurisdiction, due process and the finality of judgments. This is not lost on anyone, including the attorney general, whose reason for insisting upon a second review was the important of the court to hear religious scholars, since it was a religious matter.
If the state or religious parties can pressurise the judiciary to amend a final decision of the apex court not once but twice, it sets a dangerous precedent. Appeals in themselves should be few and far between because the trial courts should be able to perform their job properly. A review petition after two appeals should be even rarer. An application to amend a judgment that is delivered after accepting a review petition is simply unconstitutional. It is the certainty and finality of the justice system that differentiates the rule of law from the rule of the jungle.
The poor quality and inconsistency of judicial decisions leading to a high volume of appeals, repeated flouting of procedure and backlog of cases makes the Pakistani justice system one of the worst in the world. In 2023 Pakistan ranked 130th across 142 countries in the World Justice Protect (WJP) Rule of Law Index. Take the example of capital punishments; 78 percent of those convicted to be hanged are acquitted, their sentences commuted, or petitions reviewed on appeal. On average a convicted person spends 11 years on death row even though they are innocent.
Now, if the Supreme Court sets a precedent of reviewing its decisions not once but twice in sensitive matters, then a person who is sentenced to be hanged may justifiably argue that a human life is also a sensitive and religious matter requiring the apex court to review its decision multiple times. Surely, in an eerie reminder of the suo motto days, the apex court has opened a new floodgate.
Second, it exposes the values of the ruling government, which has displayed little regard for the principles of democracy and judicial independence except when it finds itself on the receiving end. It has repeatedly blown holes in Pakistan’s jurisprudence to appease religious groups or the military establishment. This case is another gaping hole.
On the one hand the government wishes to borrow funds from International Monetary Fund (IMF), hold on to a GSP plus status and encourage exports – all of which are dependent on upholding human rights. On the other hand, it is fans religious bigotry, persecution of minorities, and undermines the very structure of our legal system.
In a country where 97 percent of the population is Muslim and where non-Muslims are some of the poorest and most vulnerable communities, it is concerning that the state is only troubled by the so-called hurt sentiments of the majority. In the case of the judiciary there is talk of quick disposal of cases and launching of modern IT systems yet the poor quality of judicial decisions, little regard to procedure and absurd jurisprudence are not addressed. It is impossible to stem litigation and dispose of cases where judges themselves are not following procedure and making inconsistent decisions.
Finally, the decision of the court to expunge certain paragraphs from the Sani judgment is concerning for the rights of religious minorities to practice their faith in the privacy of their own home. There is ample evidence that the current law is already being misused to settle scores, harass people and gain economic advantage. The state is well aware of this but continues to politicise divisions to placate certain quarters. From 1948 till 1985, just 11 cases of blasphemy were recorded in the country and three killings. However, from 1986 onwards, after General Ziaul Haq introduced the death sentence for blasphemy, data provided by human rights organisations show that 86 people have been killed for allegedly committing blasphemy and at least 1,855 individuals have been charged.
Significantly, nearly half of those charged are non-Muslims, even though they constitute only three percent of the population.
We are now one step further. Today, non-Muslims will fear vigilante and state monitoring while they are in the privacy of their own homes, congregations or religious institutions.
*The author is advocate of the High Courts in Pakistan and a Solicitor of the Senior Courts in England & Wales
Source- voicepk.net
