Right to profess religion subject to law, morality, apex court rules
• CJP-led bench accepts Punjab govt’s plea to revisit decision in Mubarak Sani case
• Order admits court’s departure from rules of review, in view of religious sensitivities
ISLAMABAD: The Supreme Court has accepted the Punjab government’s plea to revisit its Feb 6 order in the Mubarak Ahmad Sani case, and declared that the right to profess religion and religious freedom, as ensured by the Constitution, is subject to law, morality and public order.
A 27-page judgement was issued on Wednesday on a set of review petitions filed by the prosecutor general of Punjab and other individuals as well as organisations against the Mubarak Ahmad Sani case order that had kick-started a controversy and a malicious campaign against Chief Justice of Pakistan (CJP) Qazi Faez Isa.
The Feb 6 decision of the court had overturned the conviction of Mubarak Sani, who was accused of an offence under the Punjab Holy Quran (Printing and Recording) (Amendment) Act enforced in 2021. However, the FIR alleged that the petitioner had done this in 2019 when it was not an offence.
Consequently, the apex court set aside the impugned orders and ordered immediate release of the petitioner.
This led to what the government and the legal community termed a “malicious and slanderous campaign” against the chief justice, even prompting the Supreme Court to release a clarification.
The decision was subsequently challenged by the Punjab government on the grounds that the finding of the Feb 6 verdict in Paragraph 9 regarding Article 20 of the Constitution needed to be modified to the extent that the rights of the citizens as envisaged under the constitutional provision were not absolute and instead subject to law, public order and morality.
A three-judge bench comprising CJP Isa, Justice Irfan Saadat Khan and Justice Naeem Akhtar Afghan had reserved its decision on May 29.
During the hearing, the SC had sought assistance of religious institutions, namely the Council of Islamic Ideology (CII), Jamia Darul Uloom, Karachi; Jamia Imdadia, Faisalabad; Jamia Naeemia, Lahore; Jamia Muhammadia Ghousia, Bhera; Jamia Salafia, Faisalabad; Jamiatul Muntazir, Lahore; Jamia Urwat-ul-Wusqa, Lahore; Quran Academy, Lahore; and Al-Mawrid, Lahore etc.
Written in Urdu and punctuated with verses from the Holy Quran and sayings of the Holy Prophet (peace be upon him), the judgement also emphasised that complete faith in the finality of the Prophethood was the very foundation of Islam — a belief without which nobody can be called a Muslim.
Such belief has already been explained in different Ahadith and Quranic verses, especially in a verse from Surah Al-Ahzab, which says: “The Holy Prophet (PBUH) is the Messenger of Allah and the seal of the prophets. And Allah has perfect knowledge of all things.”
Departure from the rules
The decision explained that the scope of the review petition had always been very limited and the court usually never granted a right of audience, except to those who were not parties in the first round of hearing.
But a departure from the rules that govern the filing of the review petition was made by providing opportunity, not only to different religious institutions, but also patiently hearing arguments advanced by individuals in view of both “religious sensitivities” and the “constitutional aspect” involved in the issue, to remove any apprehensions of uncertainty or doubt.
The court made it clear that like ordinary citizens, obedience to the law and the Constitution was also mandatory and obligatory upon judges, who have taken oath at the time of their elevation to the highest office of judgeship to defend and preserve the Constitution while carrying out their duties of dispensing justice.
The verdict emphasised that no court in the country commanded the authority or the power to legislate, except for what had been provided in the Constitution or the law. This right is only vested in parliament by the Constitution, it explained.
‘Treat enemies with affability’
According to the SC decision, the Holy Quran is not just witness to the high probity and uprightness of the Holy Prophet (PBUH), but has also ordained Muslims to follow the example of his high moral character.
“Our Holy Prophet (PBUH) has been described by the Holy Quran as Rahmatul-lil-Alameen — a blessing, the showering of which was not limited to the Muslims alone, but even to adversaries, enemies and all beings.
The judgement emphasised that Islam commands that the followers of the Holy Prophet (PBUH) should treat even their enemies with affability and warmth.
The provincial government also argued that it was aggrieved by the judgement and sought review of the court findings since the conclusion were based on an erroneous assumption of material facts, a misreading of the records and without adverting to the points of law raised and agitated before the SC.
Those errors were manifest and apparent on the face of record, the review petition contended, adding that the same resulted in grave miscarriage of justice.
Published in Dawn, July 25th, 2024