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A. The Emergence of Pakistan and Its Commitment to Religious Freedom

An often misguided assumption regarding the establishment of the Islamic Republic of Pakistan is that the country emerged solely out of the Hindu-Muslim divide of the late 1940s; that is, Hindus and Muslims could not live together peacefully, separatist movements emerged, and Pakistan sprung forth as an independent Muslim country. It may be more appropriate to understand the emergence of Pakistan as a product of trans-religious phenomena: political identity, empowerment, and constitutionalism. The leading Indian Muslims of the time, led by Mohammad Ali Jinnah, articulated the idea of Pakistan as a revolutionary political experiment necessary for the subsistence of Muslim citizens. An ardent democrat, Jinnah sought a separate Muslim state, founded on consensual and pluralistic grounds, as a model of welfare, community, and popular sovereignty. *10 He believed in the supremacy of the general will rather than of the religion of Islam per se.

Jinnah's involvement in the Muslim League Lahore, particularly the 1940 session, brought the concept of religious tolerance to the forefront of the Muslim secessionist movement. Jinnah and other concerned leaguers never felt that the political arrangement of major Muslim provinces in one single state would solve completely the struggle of Muslims and Hindus in South Asia, but they knew that Muslims in India could only gain independence by forming a sovereign and liberal Muslim state. The state they envisioned was the largest of its kind in the Muslim world at the time. *11

It was easy for many Muslims, however, to lose sight of Jinnah's ideals. The monolithic nature of the Indian Congress Party and British Raj, the brutal and devastating riots of 1947, and the increasingly bloody dispute in the Punjab pointed to violence as the most effective means to establish a separate Pakistan. *12 To many, absolute justice meant the establishment of a state protective of Muslims at the expense of Hindu separatists. Islamist language pervaded the provincial corridors of Hindu-Muslim India.

Jinnah did not see the founding of Pakistan as an historical aberration. His vision was based on the primacy of the people; it was a non-sectarian, non-denominational, and purely Islamic ethos. *13 He felt that in founding Pakistan he could elevate not only the status of South Asian Muslims in the world, but also the status of Islam itself. In spite of the force of Muslim separatists wielding militant Islam as their weapon, Jinnah gained tremendous public support among the Muslim masses. Within the Lahore League, he sought counsel from Muslims who subscribed to his point of view. *14

Three days before Pakistan's official founding, Jinnah, then president of the Constituent Assembly, spoke about the problems his people would face and the kind of cooperation necessary to alleviate them. He declared:

Thus, Jinnah pushed for the Muslims of Pakistan to disregard religious distinctions in politics. He reminded his audience, the Constituent Assembly, that Pakistan would assume independent statehood with the goal of creating a progressive Muslim state based on pure Islamic principles. His rhetoric was one of reconciliation, tolerance, and moderation.

The right to religious freedom was not only central to the struggle for the independent state of Pakistan in 1947; it was also an important part of a larger world-wide debate over human rights at that time. Indeed, as Muslims fought for an independent Pakistan, the U.N. General Assembly fought to construct a universal norm for protecting freedom of religion with the Universal Declaration of Human Rights (“UDHR”), passed in 1948. During a drafting session of the UDHR, representatives from Saudi Arabia and Pakistan quarreled as to whether freedom of conscience and freedom to change one's religion, as outlined in Articles 18 and 19 of the UDHR, were recognized under Islamic Law (or the Shari'a). The Saudi representative expressed his vehement opposition against the inferred right to change one's religion under Shari'a, calling the Articles a product of Western thinking. Muhammad Zafrullah Khan , the Pakistani representative to the session, Pakistan's first foreign minister, and an Ahmadi, hailed the adoption of the articles as an “epoch-making event” and considered them entirely consistent with Islam's emphatic denunciation of compulsion in religion. *16 Re-asserting Jinnah's ideals, Khan said the following to the General Assembly at the occasion of the adoption of Article 18 of the UDHR:

The colloquy was a window into Pakistan's deep and open commitment to the UDHR, in particular its provisions for freedom of religion and conscience.

Before partition, Muslims were themselves a religious minority in India and wanted the Constitution of India to include safeguards for their protection. As late as the months preceding partition, the All India Muslim League (“AIML”) negotiated with the Indian Congressional Party for constitutional protections for the large number of Muslims who would remain in Hindu majority areas in India post partition. In exchange, AIML was prepared to offer similar protections to non-Muslims who would remain in the territory of the new Pakistani state. *18 Continuing Jinnah's work of championing minority rights, Pakistan's founding documents reflect that the protection of religious minorities under a separate Muslim state was of prime significance. Pakistan's original 1956 constitution outlined in clear terms the right of each citizen to profess, practice, and propagate his religion (Article 20), to attend school freely without religious instruction (Article 22), to enjoy places of public entertainment without religious discrimination (Article 26), to qualify for appointment in the service of Pakistan without religious discrimination (Article 27), and to preserve and promote his own language, script, or culture without religious discrimination (Article 28). These provisions had their roots in Articles 1(3) and 55(c) of the U.N. Charter, *19 which emphasize non-discrimination on the basis of religion, and in Article 18 of the UDHR, *20 the language of which tracks Article 20 of Pakistan's constitution. *21

10	IFTIKHAR H. MALIK, ISLAM, NATIONALISM AND THE WEST: ISSUES OF IDENTITY IN PAKISTAN 110 (1999).
11	Id. at 111.
12	See AYESHA JALAL, THE SOLE SPOKESMAN: JINNAH, THE MUSLIM LEAGUE AND THE DEMAND FOR PAKISTAN 239-240 (1985).
13	Id. at 216.
14	He found one such person in Muhammad Zafrullah Khan: an Ahmadi, a prominent member of the Governor-General's Legislative Council, a justice of the Supreme Court of India, and a staunch proponent of reconciling political founding with fundamental Quranic teachings on governance and liberty. Khan was later knighted by the Queen of England.
15	Mohammad Ali Jinnah, Address at the Karachi Club (Aug. 11, 1947), available at http://www.pakistani.org/pakistan/legislation/constituent_address_11aug1947.html (last visited Feb. 11, 2003).
16	See Tayyab Mahmud, Freedom of Religion and Religious Minorities in Pakistan: A Study of Judicial Practice, 19 FORDHAM INT'L L.J. 4086 (1995); see also MARY ANN GLENDON, A WORLD MADE NEW: ELEANOR ROOSEVELT AND THE UNIVERSAL DECLARATION OF HUMAN RIGHTS 168 (2001).
17	Quoted in DAVID LITTLE ET AL., HUMAN RIGHTS AND THE CONFLICT OF CULTURES: WESTERN AND ISLAMIC PERSPECTIVES ON RELIGIOUS LIBERTY 37 (1988).
18	See Mahmud, supra note 16, at 52 - 53. One might even argue that the protection of religious minorities was itself the catalyst for partition.
19	See U.N. CHARTER art. 1, para. 3; U.N. CHARTER art. 55, para. c.
20	See Universal Declaration on Human Rights art. 18, G.A. RES. 217A (III), U.N. Doc.A/811 (1948), reprinted in SUPPLEMENT OF BASIC DOCUMENTS TO INTERNATIONAL LAW AND WORLD ORDER 377 (Burns H. Weston et al. eds., 3d ed. 1997) [hereinafter DOCUMENT SUPPLEMENT].
21	See PAK. CONST., art. 20. “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.”