Islamabad Bar Association’s Decision To Seek Religious Oath Is Unconstitutional And Illegal

Yasser Laif Hamdani argues that Islamabad Bar Association’s notice seeking an affidavit from its members declaring their faith violates the constitution as it is a deliberate attempt to insult religious beliefs of the Ahmadi community.

The cabinet of the Islamabad Bar Association therefore is clearly guilty of doing this vis a vis Ahmadis. However as things stand there is no chance of them being prosecuted for what is clearly an offence under law. Really what moral high ground can we take against India if we allow such blatant bigotry to prevail?

Article 18 of the Constitution of Pakistan says in no uncertain terms:

 

“18      Freedom of trade, business or profession.

Subject to such qualifications, if any, as may be prescribed by law, every citizen shall have the right to enter upon any lawful profession or occupation, and to conduct any lawful trade or business:

Provided that nothing in this Article shall prevent:-

(a)       the regulation of any trade or profession by a licensing system; or

(b)       the regulation of trade, commerce or industry in the interest of free competition therein; or

(c)       the carrying on, by the Federal Government or a Provincial Government, or by a corporation controlled by any such Government, of any trade, business, industry or service, to the exclusion, complete or partial, of other persons.”

A citizen is any citizen of Pakistan regardless of religion or any other distinguishing feature.  The basic citizenship law is the Citizenship Act of 1951. We also have to look at Article 4 of the Constitution which states the following:

 

“ 4 Right of individuals to be dealt with in accordance with law, etc.

(1)       To enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan.

 

(2)       In particular :-

(a)       no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law;

(b)       no person shall be prevented from or be hindered in doing that which is not prohibited by law; and

(c)       no person shall be compelled to do that which the law does not require him to do.”

 

Obviously Pakistan having become an Islamic Republic in 1956 and then having adopted a state religion in 1973 does have certain religious tests but these are confined to five issues:

 

  1. The office of the President of Pakistan, required to be a Muslim under the Constitution.
  2. The office of the Prime Minister of Pakistan, also required to be a Muslim under the Constitution.
  3. The office of a judge of Federal Shariat Court is required to be a Muslim.
  4. The representation for minorities on reserved seats.
  5. The exemptions from Islamic injunctions for Non-Muslims under Article 62 of the Constitution.

Other than these clauses, there are to be no religious tests under the Constitution because there is no discernible need to create divisions in society on the basis of religion. However, once you have granted this official discrimination at the very top, it is obviously natural that it will flow through the society.

With this background we must look at the highly discriminatory and bigoted amendment to its memorandum by the Islamabad Bar Association.  Membership of the bar association is necessary for a law license. Hence if a lawyer was not ready to sign the declaration essentially abusing a community already declared Non-Muslim, his Article 18 rights would be infringed.  The language of the said oath is highly incendiary.  A Muslim member is required to declare that Mirza Ghulam Ahmad, the founder of the Ahmadi community, is an apostate, a liar and a hypocrite. Here it is important to consider here Section 295-A of the Pakistan Penal Code 1860 which states:

“Deliberate and malicious acts intended to outrage religious feelings of any class by insulting Its religion or religious beliefs: Whoever, with deliberate and malicious intention of outraging the ‘religious feelings of any class of the citizens of Pakistan, by words, either spoken or written, or by visible representations insults the religion or the religious beliefs of that class, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.”

The cabinet of the Islamabad Bar Association therefore is clearly guilty of doing this vis a vis Ahmadis. However as things stand there is no chance of them being prosecuted for what is clearly an offence under law. Really what moral high ground can we take against India if we allow such blatant bigotry to prevail?

Even the Islamabad Bar Council had told the IBA that such an action would not be sustainable under law, given that there is no bar on Non-Muslims practising law and that such a situation would create unnecessary division and controversy.  The gentlemen, if you can call them that, at the Islamabad Bar Association ignored that sage advice and went ahead anyway. The person behind this new spurious change is none other than the person who got his picture taken kissing Mumtaz Qadri in 2011.

Ultimately, this matter will have to be dealt with in the courts, but the very fact that we are discussing this in the 21st Century is in itself a shame.

That we target an already marginalized community in Pakistan shows how far we are willing to bring our own name in disrepute.  The Islamabad Bar Association could have done so many other worthwhile things, like freeing the encroached land in F-8 taken over by lawyers there. Of course such principled endeavours alienate the voters in bar elections and would never be attempted by the association.

Then they have the gall to speak about Islam.  Does Islam ask for persecution of minorities?  Does Islam allow encroachments on public and private land?  The answer is a resounding no. Do they care though? Sadly no.