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AMEEN MASIH versus FEDERATION OF PAKISTAN

r Article 199 - Federal Laws (Amendment and Declaration) Ordinance (XXVII of 1981), Second Schedule - Items 7 (2) Sections 7 and 10 of the Discovery Act (Iowa of 1869) affect In relation to matters affecting the High Court Constitutional jurisdiction over minority rights and religious beliefs of minorities pertaining to family / personal law vis State law and personal law discrimination veness jurisdiction under the Federal Law Regarding the repeal of section 7 of the Divorce Act, 1869 Question before the Court (Revision and Announcement) Ordinance 1981; The basis for Christian divorce other than fornication was removed inter Christian cleric members Nazia, no divorce was allowed in the Bible except for fornication, and the seat of judicial inspection of unwanted termination was seated. Christians' personal / biblical law decisions and whether Bible law or Christian personal law are outside the jurisdiction of the High Court and any judicial interference by the High Court will directly contradict the religious sensitivity of Christians. ???? Under this constitutional jurisdiction, the Supreme Court had to decide matters according to constitution and law and there was no room for personal interest, belief, passion or inclination - biblical law or Christian personal law are not currently under discussion. This was a state law, the Federal Laws (Revision and Declaration) Ordinance, 1981, which was under consideration - Highly judicial review of constitutional fundamental values and fundamental rights of citizens with minorities under the Constitution. For any and all priests who judge against the High Court's Bible teaching There was no doubt. HC

P L D 2017 Lahore 610 

Before Syed Mansoor Ali Shah, C J

AMEEN MASIH—Petitioner 

versus

FEDERATION OF PAKISTAN and others—Respondents

Writ Petition No.623 of 2016, decided on 19th June, 2017.

(a) Constitution of Pakistan—

—Art. 199—Federal Laws (Revision and Declaration) Ordinance (XXVII of 1981), Item 7(2) of the Second Sched.—Divorce Act (IV of 1869) Ss. 7 & 10—Constitutional jurisdiction of High Court in relation to matters affecting minority rights and ecclesiastical beliefs of minorities vis-a-vis family /personal law—Distinctiveness of State law and personal law—Scope—Question before the High Court related to the Constitutionality of the repeal of S. 7 of the Divorce Act, 1869 via the Federal Laws (Revision and Declaration) Ordinance 1981; whereby grounds for Christian divorce, other than adultery, were abolished— Contention of members of the Christian Clergy was, inter alia, that divorce other than on the ground of adultery was not permitted in the Holy Bible and judicial examination of the impugned repeal amounted sitting in judgment over the personal/Biblical law of Christians and that Biblical law or Christian personal law fell outside the jurisdiction of High Court and any judicial interference in the same by the High Court would be a direct affront to the religious sensibilities of the Christians—Validity—High Court under its Constitutional jurisdiction was to adjudicate matters in accordance with the Constitution and the law and there was no room for personal interest, belief, passion or inclinations in the same—Biblical Law or Christian personal law was not under discussion in the present case and it was a State law, Federal Laws (Revision and Declaration) Ordinance, 1981 which was under review—High Court was only to judicially review the existing State law on the yardstick of Constitutional values and fundamental rights guaranteed to the minorities-cum-citizens under the Constitution and nothing else and apprehension of the clergy that High Court was deciding against teachings of the Holy Bible was unfounded —High Court observed that the present case was not about examining the canonical or Biblical law but about assessing the legality and Constitutionality of item 7(2) of the Second Schedule of Federal Laws (Revision and Declaration) Ordinance, 1981.[pp.622, 624] A, B, C &D

(b) Christian Personal Law—

—"Divorce"—Meaning of—Meaning of the term "divorce" in the context of Chirstian personal law—Two distinct types of divorces under Christian law—Scope—Term "divorce" as a verb meant "to separate" and the word "divorce" confined to its strict legal sense, meant legal dissolution of a lawful union for a cause arising after marriage— Divorces under Christian law were generally of two distinct types: Absolute divorce, or divorce "a vinculo matrimonii" was a judicial dissolution of the marriage ordered as a result of marital misconduct or other statutory cause arising after the marriage ceremony, whereas limited divorce, sometimes referred to as divorce "a mensa ei thoro," "divorce from bed and board," or legal separation was a change in status by which the parties were separated and were precluded from cohabitation, but actual marriage was not affected—Limited divorce was sometimes termed as judicial separation, which suspended the marriage relation and modified its duties and obligations, leaving the bond in full force. /p. 625] E

Corpus Juris Secondum, Volume 27A. p. 16 Thomson/West. Ed. 2008 rel.

(c) Christian Personal Law —

—-Dissolution of marriage under Christian personal law—Concept of "no fault" divorce and "irretrievable breakdown of marriage" in Christian personal law—Legislation to incorporate concept of "no fault" divorce in various jurisdictions—Liberalization and

emancipation of Christian Divorce Law across the world, particularly in Christian-mqjority countries—Statutory introduction of grounds other than adultery for dissolution of marriage/divorce—Right to human dignity and right to a happy family life as basis for liberalization of Christian divorce laws—Concept and various aspects of Christian divorce law in various jurisdictions, extensively examined. [pp. 625, 626, 627, 628, 632, 636]F, G, H,1,J,K&L

Corpus Juris Secondum, Volume 27A. p. 16 Thomson/West. Ed. 2008; John D. Cannell - Abolish Fault-Oriented Divorce in Ohio-As a service to society and to restore dignity to the domestic relations courts; The effect of divorce law on Divorce rates in Europe-Liberted Gonzalez. March 2006 (IZA DP No.2023) and Sovereign States and defendant territories - Chirstianity by Country; Law Commission of India, 15th Report (Law relating to marriage and divorce amongst Christian in India); Law Commission of India, 22nd Report (Chirstian marriage etc. Bill); Letter addressed to the Law Commission by Ms. Aud Sonia Reberts, New Delhi, dated 15th September, 1981; Aharon Barak -

Human Dignity-The Constitutional Value and the Constitutional Right -Cambridge 2015. Pp.292-293; Aharon Barak-The Judge in a Democracy. Princeton. P.86 and Nadeem Asghar Nadeem and others v. Province of the Punjab and others*2015 CLC 1509 rel.

(d) Constitution of Pakistan--

——Arts. 30(2) & 29—Principles of Policy under the Constitution— Constitutional responsibility with respect to Principles of Policy-—Bar under Art. 30(2) of the Constitution against calling into question the validity of an action or of a law on ground that the same was not in accordance with the Principles of Policy—Scope—Principles of Policy provided Constitutional aspirations, goals and mission statement for the State of Pakistan and it was a Constitutional obligation of the State and its organs and authorities to synchronize with and promote said Principles—Constitutional Principles of Policy nourished roots of democracy and helped actualize and fertilize Constitutional values and were a roadmap to democracy and for ensuring that the State remained on course to achieve social, economic and political justice—State or any authority may take time to achieve the said Constitutional aspirations due to the non-availability of resources but they could not at any stage or at any cost go against the Principles of Policy— Article 3(2) of the Constitution protected a law which was not in accordance with the Principles of Policy, that is, where the law had not yet fully actualized the Principles of Policy but did not protect a law that was inconsistent with the Principles of Policy, [p. 638] O

Minerva Mills Ltd. and others v. Union of India and others AIR 1980 SC 1789; Miss Farhat Jaleel and others v. Province of Sindh and others PLD 1990 Kar 342 and Shirin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295 rel.

(e) Constitution of Pakistan—

•—Art. 9—Fundamental rights—Right to life and liberty—Phrase "right to liberty ", meaning of—Right to liberty meant the state of being free within society from oppressive restrictions imposed by authority on one's behaviour, [p. 636] M

Oxford Dictionary of English rel.

(f) Divorce Act (IV of 1869)--

—Ss. 7 & 10—Federal Laws (Revision and Declaration) Ordinance (XXVII of §981), Item 7(2) of the Secpnd Sched.—United Kingdom Matrimonial Causes Act 1973, Section 1 of Part I of Chapter 18—

Constitution of Pakistan, Arts. 2A, 9, 14, 25, 20, 29, 36, 270A & 199—Christian personal law—Dissolution of marriage in Christian personal law—Grounds for dissolution of marriage other than adultery—Irretrievable breakdown of marriage /no-fault divorce— Constitutionality of the repeal of S. 7 of the Divorce Act, 1869 which provided Pakistani Christians grounds for divorce under the United Kingdom Matrimonial Causes Act 1973—Minority Rights—Safeguard of legitimate interest of religious minorities under the Constitution-Freedom of Religion—Scope—Petitioner, who was a Christian, impugned repeal of S. 7 of the Divorce Act, 1869, vide Federal Laws (Revision and Declaration) Ordinancef 1981—Contention of petitioner, inter alia, was that the repealed S. 7 of the Divorce Act, 1869 made available grounds for divorce under the United Kingdom Matrimonial Causes Act, 1973 , other than adultery, and the repeal of the same was unconstitutional—Validity—Impugned amendment (deletion of S.7 of the Divorce Act, 1869) was to be reviewed and examined on the touchstone of the minority rights under the Constitution available to the petitioner and minorities in Pakistan—There existed liberalization in the grounds of divorce all over the Christian world and the UK Matrimonial Causes Act, 1973 also provided for irretrievable breakdown of marriage, which freedom would have been automatically available to the Christian minority in Pakistan had S. 7 of the Divorce Act, 1869 been available on the statute book—Right to life and liberty were separate Fundamental Rights under the Constitution and impugned amendment limited the choice of a person to divorce and forced a person to lead an unhappy and an oppressive life unless he or she could prove charge of adultery against a spouse—Such limitation perpetuated a dead marriage and impaired quality of life and curtailed the liberty of a person by forcing him to live through an unhappy family life against his free choice—Impugned amendment by limiting grounds of divorce stunted growth and freedom of minority rights in Pakistan and deprived Christians from fashioning their divorce law with the same freedom, emancipation and liberation as Christians around the world—Limited grounds of divorce under the State divorce law when compared with the rights enjoyed by the Christians in the world, amounted to discriminating against the Christian minority in Pakistan and such gap and deprivation in State law, could best be abridged by extending the same rights enjoyed by Christians in majority countries to the Christians in Pakistan which could be easily achieved by restoring S.7 of the Divorce Act, 1869 as was the case prior to the impugned amendment/repeal—High Court observed that impugned amendment did not pass the test of minority rights and in particular the Fundamental Rights to life, liberty, dignity and non-discrimination and therefore Item 7(2) of the Second Schedule to Federal Laws (Revision and Declaration) Ordinance, 1981 was declared to be unconstitutional—

High Court held that S.7 of the Divorce Act, 1869 stood restored, in the manner it stood in the year 1981, making available to the Christians of Pakistan the relief based on the principles and rules of divorce under United Kingdom Matrimonial Causes Act, 1973 and that the term "subject to the provisions of the Act" used in S. 7 of the Divorce Act, 1869 was to be read down in order to make Ss.7 & 10 of the same work together and to make them Constitutionally compliant—Constitutional petition was allowed, accordingly, [pp. 636, 638, 639, 640] L, M, N, O, P, Q, R & S

Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139; Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61 and Mst. Nazir Yasin v. Yasin Farhat PLD 2000 Lah. 594 ref.

A Question of Faith-A Report on the Status of Religious Minorities in Pakistan. Jinnah Institute Research Report. 2011 p. 14; Minority Rights-International . Standards and Guidance for implementation-2010. UN Human Rights Office of the High Commissioner; Mumtaz Oad and 2 others v. Sindh Public Service Commisison through Secretary and 2 others 2015 CLC 1605; District Bar Association Rawalpindi and others v. Federation of Pakistan and others PLD 2015 SC 401; Suo Motu Case No.l of 2014 etc. PLD 2014 SC 699; Aharon Barak - Human Dignity-The Constitutional Value and the Constitutional Right - Cambridge 2015. Pp.292-293; Aharon Barak-The Judge in a Democracy. Princeton. P.86; Oxford Dictionary of English; Alleged Corruption in Rental Power Plants etc.: in the matter of 2012 SCMR 773; Wattan Party and others v. Federation of Pakistan and others PLD 2012 SC 292; All Pakistan Newspapers Society and others v. Federation of Pakistan and others PLD 2012 SC 1; Watan Party and another v. Federation of Pakistan and others PLD 2011 SC 997; Ms. Shehla Zia and others v. WAPDA PLD 1994 SC 693; The Employees of the Pakistan Law Commission, Islamabad v. Ministry of Works and 2 others 1994 SCMR 1548; Dr. Mehmood Nayyar Azam v. State of Chhattisgarh and others 2013 SCMR 66; Arshad Mehmood v. Commissioner/Delimitation Authority, Gujranwala and others PLD 2014 Lah. 221; Liaqat Ali Chughtai v. Federation of Pakistan through Secretary Railways and 6 others PLD 2013 Lah. 413; Raja Rab Nawaz v. Federation of Pakistan and others 2014 SCMR 101; N.-W.F.P. Public

Service Commission and others v. Muhammad Arif and others 2011 SCMR 848; Pakcom Limited and others v. Federation of Pakistan and others PLD 2011 SC 44; Pakistan International Airlines Corporation through Chairman and others v. Samina Masood and others PLD 2005 SC 831; Mst. Attiyya Bibi Khan and others v. Federation of Pakistan through Secretary of Education (Ministry of Education), Civil Secretariat, Islamabad and others 2001 SCMR 1161; I.A. Sharwani and others v. Government of Pakistan through Secretary, Finance Division, Islamabad and others 1991 SCMR 1041; Shrin Munir and others v. Government of Punjab through Secretary Health, Lahore and another PLD 1990 SC 295; Minerva Mills Ltd. and others v. Union of India and others AIR 1980 SC 1789; Miss Farhat Jaleel and others v. Province of Sindh and others PLD 1990 Kar. 342; Miss Benazir Bhutto v. Federation of Pakistan and another PLD 1988 SC 416; Federation of Pakistan and another v. Malik Ghulam Mustafa Khar PLD 1989 SC 26; Sindh High Court Bar Association through its Secretary and another v. Federation of Pakistan through Secretary, Ministry of Law and Justice, Islamabad and others PLD 2009 SC 879; Miss Asma Jilani v. The Government of the Punjab and another PLD 1972 SC 139; Wattan Party through President v. Federation of Pakistan through Cabinet Committee of Privatization, Islamabad and others PLD 2006 SC 697; Al-Jehad Trust through Raeesul Mujahideen Habib-ul-Wahab-ul-Khairi and others v. Federation of Pakistan and others PLD 1996 SC 324; Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan through Secretary and others PLD 2010 SC 61; Dr. Mobashir Hassan and others v. Federation of Pakistan and others PLD 2010 SC 265; Baz Muhammad Kakar v. Federation of Pakistan through Ministry of Law and Justice, Islamabad and others PLD 2012 SC 870; Mrs. Marie Palmer v. O.R.J. Palmer PLD 1963 (W.P.) Lah. 200; Messrs Chenone Stores Ltd. through Executive Director (Finance Accounts) v. Federal Board of Revenue through Chairman and 2 others 2012 PTD 1815 and Nadeem Asghar Nadeem and others v. Province of the Punjab and others 2015 CLC 1509 rel.

Sheraz Zaka for Petitioner.

Respondents by:

Nasar Ahmad and Muhammad Javed Kasuri, Deputy Attorney Generals for Pakistan.

Ms. Hina Hafeezullah Ishaq, Assistant Attorney General for Pakistan.

Rana Zafar Iqbal, Standing Counsel for Pakistsan.

Anwaar Hussain and Ahmad Hassan Khan, Additional Advocates General, Punjab assisted by Miss Rutaaba Gul for Respondent.

Ms. Uzma Rafique, Deputy District Attomey/Senior Law Officer of Respondent No.2.

Ijaz Farhat, President Christian Lawyers.

Kashif Alexander, Ch. Aneel Ashiq, Salvance Jacob, representing Christian Community.

Ms. Hina Jillani, amicus curiae.

Mian Zahid, Law Officer, HR & MA.

Ms. Fauzia Viqar, Chairperson, Punjab Commission on the Status of Women.

Ms. Shunila Ruth, MPA.

Ms. Marry Gill, MPA (Christian Community).

Kamran Michael, Senator/Federal Minister Human Rights Pakistan.

Khalil Tahir Sandhu, Minister for Human Rights and Minorities Affairs, Punjab.

Father Emanuel Yousaf Mani, Sr. Priest, St. Anthony Church,

Lahore.

Wilson John Gill, Bishop, Chairman/founder United Holiness Church Pakistan (Korea).

Rt. Rev. Sabstian Francis Shaw, Archbishop of Roman Catholic Church, Lahore.

Rt.Rev. Irfan Jamil, Bishop of Lahore* Church of Pakistan, Mall Road, Lahore.

*

Rev. Dr. Majid Abel, Moderate Presbyterian Church of Pakistan, Empress Road, Lahroe.

Bishop Azad Marshall, Co-Adjutor Bishop of Raiwind Diocese, Church of Pakistan and President, National Council of Churches in Pakistan.

Revd. Shahid P. Mehraj, Dean of Lahore Cathedral.

Johnson Bernard, Deputy Registrar, Lahore High Court, Lahore on Court's Call.

.... ..i

Asif Aqeel, Human Right Activist/Journalish.

Assisted by:

Qaisar Abbas and Mohsin Mumtaz, Civil Judges/Research Officers, Lahore High Court Research Centre (LHCRC) and Ali Uzair Bhandaril(law intern).

Dates of hearing: 20th, January, 20th April, 23rd May and 19th June, 2017.

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