Tayyab Mahmud


Pakistan's successive constitutions, which enumerate guaranteed fundamental rights and provide for the separation of state power and judicial review, contemplate judicial protection of vulnerable sections of society against unlawful executive and legislative actions. This Article focuses upon the remarkably divergent pronouncements of Pakistan's judiciary regarding the religious status and freedom of religion of one particular religious minority, the Ahmadis. The superior judiciary of Pakistan has visited the issue of religious freedom for the Ahmadis repeatedly since the establishment of the State, each time with a different result. The point of departure for this examination is furnished by the recent pronouncement of the Supreme Court of Pakistan ("Supreme Court" or "Court") in Zaheeruddin v. State,' wherein the Court decided that Ordinance XX of 1984 ("Ordinance XX" or "Ordinance"), which amended Pakistan's Penal Code to make the public practice by the Ahmadis of their religion a crime, does not violate freedom of religion as mandated by the Pakistan Constitution. This Article argues that Zaheeruddin is at an impermissible variance with the implied covenant of freedom of religion between religious minorities and the Founding Fathers of Pakistan, the foundational constitutional jurisprudence of the country, and the dictates of international human rights law. This Article is divided into four parts. Part I presents Zaheeruddin and identifies its main themes, holdings, and assumptions. Part II argues that there exists in Pakistan an implied covenant of religious freedom with religious minorities based upon the pronouncements of the Founding Fathers of the State. Part III examines the three phases of judicial practice regarding the freedom of religion of religious minorities. Part IV examines the evolution, scope, and domestic applicability of international freedom of religion norms. This Article ends by drawing some broader conclusions regarding judicial practice in post-colonial settings. First, the Article concludes that because of the instability of constitutional governance in these settings; the judicial branch is insufficiently insulated from political currents. The result is that dominant political forces and ideological constructs assert a determinative influence over judicial pronouncements. Second, judicial choices, constructions, and applications of sources of applicable norms are indeterminate and contingent. Consequently, doctrinal underpinnings of judicial pronouncements are inconsistent, unpredictable, and often arbitrary. Third, by demonstrating a willingness to accommodate dominant political forces at the expense of constitutional mandates, the judiciary becomes party to the erosion of its own independence and legitimacy. This sustained erosion renders the judiciary even less equipped to fulfill its assigned constitutional role to protect fundamental rights in general, and the rights of politically vulnerable minorities in particular.