ANALYSIS: Restitution for minorities —Yasser Latif Hamdani

14/11/2011

Anti-incitement legislation that targets religious provocation against constitutionally declared non-Muslims should also be introduced as is the constitutional duty of the state under Article 2-A

At its zenith, which came during the period in the 16th century when Suleiman the Magnificent was ruling Turkey, the Ottoman imperial project stretched from Austria to Armenia and down to the Arabian Peninsula. Contrary to the post-hoc imagination of the 20th century Khilafatists, the great Muslim suzerainty over this great mass of land was for the most part secular.

As successors of the Romans and Byzantines, the Ottomans were great administrators and empire builders. Though nominally Sunni Muslims as Turks, the Sultan-Caliphs of this great dynasty were mindful of the fact that their empire was populated by people of different faiths and outlooks. During this period, more than any other in Islamic history, the idea of a jus gentium (law of nations) governing the relationship between Muslims and non-Muslims and Turks and non-Turks took root. The whole empire was organised around autonomous communities called millets.

Major millets of the Ottoman Empire were Greek Orthodox Christians, Armenian Christians, Catholics and Jews. All of these were granted substantial autonomy to legislate and regulate their own affairs. Their neighbourhoods, places of worship, schools, courts and other places were protected areas under the empire with ample opportunities to develop their cultures according to their own lights and markers. Later as modern institutions took roots, these millets were given a due constitutional role under the Tanzimat introduced by Midhat Pasha, the talented first minister of the Sultan in the 19th century.

The growing intolerance towards minorities, forced or otherwise, sectarian or religious, in Pakistan in recent times underscores on some level the need to revert to the Ottoman Millet System of religious pluralism. The constitution of 1973, flawed as it may be on several counts, does provide room for the institution of such a system. Under Article 2-A of the constitution, the Objectives Resolution, the text of which is provided in an annex to the constitution, reads: “Wherein adequate provision shall be made for the minorities to freely profess and practice their religions and develop their cultures.”

Article 20 (b) supra says: “Every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.” Article 22 (3) (a) states: “No religious community or denomination shall be prevented from providing religious instruction for pupils of that community or denomination in any educational institution maintained wholly by that community or denomination.” Article 36 states that the “state shall safeguard the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial Services”. As per Article 260(3)(b), the recognised minority communities at the moment are Christians, Hindus, Sikhs, Buddhists, Ahmedis, Bahais and scheduled castes.

A prototype of the Ottoman system was implemented as a matter of necessity when the superior courts of Pakistan ruled that the Muslim Family Law Ordinance of 1961 did not apply to the Ahmedi sect, which was — in an act of shameless opportunism by today’s ruling party in 1974 — declared non-Muslim. The Ahmedis therefore have their own system to enforce personal law that governs their community life. The establishment of personal law tribunals, a legal position that is compatible with both the English common law system and Islamic traditions, might be one way of empowering the minorities. Taking a leaf out of Ottoman history as well the civic developments in the west, it would be a very good idea declare the minorities’ neighbourhoods and places of worship protected zones, which could then be incorporated as legal entities or guarantee limited companies with the Securities and Exchange Commission of Pakistan, much the same way Polygamists amongst the Mormons do in the US. Having established body corporates, the area owned and operated by these body corporates would become private property, which would be inviolable by the majority communities. Without prejudice to their rights as equal citizens under the constitution, the minorities would thus be able to establish communal havens that would help them cope with an increasingly hostile majority. It would also help preserve some semblance of religious pluralism in a country that has witnessed mass exodus of non-Muslims in the past 30 years.

Similarly, anti-incitement legislation that targets religious provocation against constitutionally declared non-Muslims should also be introduced as is the constitutional duty of the state under Article 2-A aforesaid. The state needs to also establish special tribunals for the redressal of grievances by the minorities. These tribunals should be empowered to take cognizance of complaints of discrimination, incitement and denial of constitutional rights of the minorities as the citizens of Pakistan. Meanwhile there is also need to establish a mandatory obligation for political parties to give 10 percent of their tickets for general seats to non-Muslims, in addition to the 10 reserved National Assembly seats, which should be directly elected by a countrywide single constituency instead of being nominated by the political parties as at present. The former would ensure that minority candidates are not narrow in their approach but in tune with the sentiments of the majority. The latter would ensure that real minority representatives make it to the National Assembly.

All these measures would ensure that the Pakistani minorities are mainstreamed and adequately protected as equal citizens of Pakistan. Remember the minorities cannot be generous. The Muslim majority in this country has a great precedent in Ottoman history to show a generosity that is keeping with the finest traditions of the Islamic faith.

The writer is a lawyer based in Lahore. He is also a regular contributor to the Indian law website http://mylaw.net and blogs on http//globallegalforum.blogspot.com and http://pakteahouse.net. He can be reached at yasser.hamdani@gmail.com

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