Islamabad, June 24, 2014 (PPI-OT): What is tolerance? What is this value or principle or attitude which the Constitution of the Islamic Republic of Pakistan pledges to promote in society in its very Preamble? Why is this considered to be one of the prime virtues in almost all the major religions of the world? These are some of the questions which began answer when we assemble here to talk about tolerance.
Tolerance may be defined as an objective or a compassionate attitude towards opinions, religion, race or nationality of others. In legal parlance it is capacity to respect the rights of others. Antithesis of tolerance is intolerance.
Intolerance is a global phenomenon which has assumed a lethal dimension on account of the modern tools to disseminate and spread the hate speech. In its efforts to combat this menace, the United Nations through its agency UNESCO approved the famous Declaration of Principles of Tolerance in 1995 which has defined tolerance as:
“Tolerance is respect, acceptance and appreciation of the rich diversity of our world’s cultures, our form of expression and ways of being human. It is fostered by knowledge, openness, communication, and freedom of thought, conscience and belief. Tolerance is harmony in difference. And to be practiced, it requires, just and impartial legislation, law enforcement and judicial and administrative process.”
Judiciary’s role is primarily to adjudicate, what could be its role in the promotion of tolerance? One may ask. Justice and tolerance are two values which complement each other. The function of judiciary is to establish peace through resolution of disputes, differences and competing claims and the virtue of tolerance embodies a similar spirit i.e. to live together with mutual respect and in case of a dispute, to resolve it through just and peaceful settlement.
More importantly one of the seminal functions of judiciary in any society is to interpret the laws and the Constitution. The Constitution of a country embodies the rights guaranteed to the people and the goals which a nation wishes to pursue. It is the judiciary which has to interpret and enforce the Constitution so that the values and principles enshrined therein are realized.
It is the judiciary which gives meaning to these rights and ensures that those are enjoyed by the people. For instance, the provision of fundamental right of equality before law is underpinned by the principle that the right which one claims for oneself should be extended and recognized for the other. That is the essence of tolerance.
It would be pertinent here to mention that Pakistan was carved out of the Sub-continent for the special care and protection of its Muslim minority. The founder of the nation Quaid-i-Azam Mohammad Ali Jinnah did not want to deprive the minorities in the State of Pakistan of equal rights. That is why in his first speech to the Constituent Assembly in 1948 he said,
“You are free; you are free to go to your temples. You are free to go to your mosques or to any other place of worship in this State of Pakistan. You may belong to any religion or caste or creed–that has nothing to do with the business of the State.”
This message is partly reflected in the very Preamble of the Constitution of Islamic Republic of Pakistan which envisions a State, “wherein the principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall fully observed.”
“True democracy is not just statistical democracy […] but communal democracy in which majority decision is legitimate only if it is a majority within a community of equals. This means not only that everyone must be allowed to participate in politics as an equal through the vote […] but that political decision must treat everyone equal with legal concern and respect, that each individual person must be guaranteed fundamental civil and political rights which no combination of other citizens can take away, no matter how numerous they are or how much they despise his or her race or morals or way of life.” Thus democracy without fundamental rights and the rule of law to ensure their enjoyment will be more akin to a mobocracy.”
The Constitution lays down an elaborate list of fundamental rights of all faiths and denominations which in essence enshrine the doctrine of dispensation of justice and other rights equally to all irrespective of their caste, creed, colour or sect. Those provisions are:-
Art 20: Freedom to profess religion and to manage religious institutions: Subject to law, public order and morality,—-
(a) every citizen shall have the right to profess, practise and propagate his religion; and
(b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.
Art 22: Safeguards as to educational institutions in respect of religion, etc: (1) No person attending any educational institution shall be required to receive religious instruction, or take part in any religious ceremony, or attend religious worship, if such instruction, ceremony or worship relates to a religion other than his own.
Art 25: Equality of Citizens:
(1) All citizens are equal before law and are entitled to equal protection of law.
(2) There shall be no discrimination on the basis of sex.
(3) Nothing in this Article shall prevent the State from making any special provision for the protection of women and children.
Art 28: Preservation of language, script and culture,– Subject to Article 251 any section of citizens having a distinct language, script or culture shall have the right to preserve and promote the same and subject to law, establish institutions for that purposes.
Art 33: Parochial and other similar prejudices to be discouraged.–The State shall discourage parochial, racial, tribal, sectarian and provincial prejudices among the citizens.
Art 36: Protection of minorities.–The State shall safeguards the legitimate rights and interests of minorities, including their due representation in the Federal and Provincial services.
Art 38: Promotion of social and economic wellbeing of the people.–The State shall–
(a) secure the wellbeing of the people, irrespective of sex, caste, creed or race, by raising their standard of living, by preventing the concentration of wealth and means of protection and distribution in the hands of a few to the detriment of general interest and by ensuring equitable adjustment of rights between employers and employees, and landlords and tenants.
A careful reading of Article 20 of the Constitution would suggest that it guarantees the rights of the community as well as the rights of the individual (Article 20(a) against those from his own or other religious communities—the ultimate goal being the eradication of religious intolerance in the society. In a recent judgment on minority rights, speaking for the Court, I said:-
25. Islam does not compel people of other faiths to convert. It has given them complete freedom to retain their own faith and not to be forced to embrace Islam. This freedom is documented in both the Holy Quran and the Prophetic teachings known as Sunnah. ALLAH addresses the Prophet Muhammad (PBUH) in the Quran:
“If it had been your Lord’s will, they would all have believed all of who are on earth! Will you then compel humankind, against their will, to believe?”
“Let there be no compulsion in religion; truth stands clear from error: whoever rejects false gods and believes in God has grasped the most trustworthy hand-hold that never breaks. And God hears and knows all things.”
26. Not only does Islam give the freedom of religious freedom to non-Muslims, its tolerant law extends to the preservation of their places of worship. ALLAH says in the Quran:
“(They are) those who have been evicted from their homes without right — – only because they say, `Our Lord is God.’ And was it not that God checks the people, some by means of others, there would have been demolished monasteries, churches, synagogues, and mosques in which the name of God is much mentioned (praised). And God will surely support those who support Him (meaning His cause). Indeed, God is Powerful and Exalted in Might.”
The primary function of any Court is to dispense justice. In this sacred exercise, the Bench and the Bar have common goals to pursue. Dispensation of justice leads to peace, harmony and concord. Whereas injustices in any form or shape (political, economic or social) is a threat to tolerance.
The constitution- makers empowered the Supreme Court of Pakistan to render “complete justice” (Article 187) to ensure that injustice in any form is attended to and undone by the Court. If an individual is aggrieved of violation of the afore-referred rights, he can approach the High Court (under Article 199 of the Constitution) and if the violation raises a question of public importance before the Supreme Court (under Article 184(3) of the Constitution), the Court is mandated to provide relief.
In Commissioner of Income Tax v. Eli Lilly Pakistan, the Supreme Court held that:-
“It is the duty and obligation of the State on account of the various provisions of the Constitution to provide the atmosphere based on honesty by providing equal protection of law. Every citizen must be treated equally, dignity of human being life should be maintained, and liberty of life and honour must be guaranteed as envisaged in the Articles 9, 14 and 25 of the Constitution.”
Tolerance is a positive trait denoting a humane interaction among humans. As aptly remarked by Professor William Re (a Professor at Howard) “Tolerance is not just agreeing with one another or remaining indifferent in the face of injustice but rather showing respect for the essential humanity in every citizen.”.
This “essential humanity” has been a casualty in the name of faith, creed, colour or ethnicity. It has led to violence and terror. In 1526 the Bishop of London was tried on charges of terrorism as he wanted to blow up the Parliament House because Protestants had won majority in the Parliament. In his final play Henry VIII, Shakespeare has his Archbishop predict, “the future Elizabeth will rule by a mixture of peace, plenty, love and a just measure of terror.”
Societies and nations have learnt to tame intolerance through education, counselling and appropriate laws and their effective enforcement. But the efforts in this regard should start from home, from school, from college and from university. Tolerance through education will succeed only if the effort is at all age groups, at every place and institution in society.
Today the world has shrunk. We are living in a world of globalized interdependence but alas nations are still afflicted with societal conflicts leading to violence. In this scenario a neutral institution like judiciary enjoying peoples’ trust in its independence can play a role by effective enforcement of the Constitution and the law.
It is the law that liberates an individual, a society or a nation from pride or prejudice, be it of colour, creed, faith or ethnicity. The judiciary through enforcement of such laws and verdicts can promote values of trust and tolerance and thereby affect the human behaviour patterns and as rightly remarked by Martin Luther King Jr.,
“Morality cannot be legislated but behaviour can be regulated. Judicial decrees may not change the heart, but they can restrain the heartless.”
The Courts need to be sensitive with regard to their onerous responsibility in actualizing the constitutional values in letter and spirit. In the Minority Rights’ case (supra) I said:-
“The Supreme Court, being the apex court in a liberal democracy, is mandated to protect and defend the Constitution which embodies the fundamental rights of its citizens. Thus, while deciding cases entailing inter-faith or intra-faith conflicts, the Courts should keep in view the fact that there are some in every faith who seek to interpret religion in myopic terms. In evangelistic exuberance, they tend to forget that the message of all faiths is common and for the benefit of the entire humanity.”
As Voltaire aptly stated in his `Treatise on Tolerance’ (1763): “O different worshippers of a peaceful God! If you have a cruel heart, if, while you adore the whose whole law consists of these few words, “Love God and your neighbour,” you have burdened that pure and holy law with false and unintelligible disputes, if you have lighted the flames of discord sometimes for a new word, and sometimes for a single letter of the alphabet; if you have attached eternal punishment to the omission of a few words, or of certain ceremonies which other people cannot comprehend, I must say to you with tears of compassion for mankind:
“Transport yourselves with me to the day on which all men will be judged and on which God will do unto each according to his works.”
The spirit of pluralism is reflected in the Holy Quran which constantly points out that Muhammad (PBUH) had not come to cancel the older religions, to contradict their Prophets or to start a new faith. To the contrary, his message is the same as that of Abraham, Moses, David, Solomon or Jesus.
The cherished goal of creating a more pluralistic society where fundamental rights are respected would continue to elude unless we realize that we are living in a world of globalized interdependence, a world of interconnectivity, of cyber space, of shrunken distances, of cross border migration, and a world of rapidly changing cultural identities. We are all members of one race of humans with common challenges, and we cannot confront these challenges without forging a common alliance.
This paradigm shift in the world around us can be achieved on the international and domestic levels only by discouraging sectarian, racial and ethnic politics which are violative of shared values and fundamental rights, and by the strict compliance with these values and rights. Each individual and each institution in the State has to play its role. The function of the courts is to enforce laws and to ensure that everyone lives by the values enshrined in the Constitution.
For more information, contact:
Shahid Hussain Kamboyo
Public Relations Officer
Supreme Court of Pakistan
Tel: +92 51 9204184, 9220581
Fax: +92 51 9213452
The post The role of judiciary in promotion of a culture of tolerance by Mr. Justice Tasadduq Hussain Jillani appeared first on AsiaNet-Pakistan.