Under PTI, a better law for Pakistan’s Christians – Prism

At the next session of the National Assembly, it is assumed that the Minister of Human Rights, Shireen Mazari, will present a proposed Marriage and Divorce Act of 2019 for adoption. If passed, this bill will repeal and replace the Christian Divorce Act of 1869 and the Christian Marriage Law of 1872.

After almost 150 years, the laws governing Christians in Pakistan could be revised. Christians may represent just five percent of Pakistan's population, but these two laws profoundly affected the lives of almost all four million strong Christians in the country, and it is time for them to be updated.

Case of Ameen Masih

The impetus for a change in the law began when at the end of 2016, a Christian named Ameen Masih approached the Lahore High Court for relief. His sentence was not related to any discrimination on the part of the majority community, or the lack of basic rights, or even a plea for protection against a law often misused. He approached the court to be able to divorce his wife without accusing her of adultery.

In his petition, Masih said that although his marriage had been broken, he did not want to claim that his wife had committed adultery to divorce. He prayed that Section 7 of the Christian Divorce Law be made available to him, which stipulated that the Indian courts that followed the position of the English divorce courts, under which the provisions of the Law on Marital Causes of England would apply of 1973, allowing him to divorce his wife due to the breakup of the marriage.

Section 7, however, had been omitted from the Act by the Ordinance of Federal Laws of 1981 under General Ziaul Haq, and since then the main grounds for divorce for Christian men remained very limited and largely implied an accusation. of adultery or conversion.

Therefore, the petitioner argued that such a situation was not only against fundamental rights, but also forced the petitioners to lie. Masih's petition highlighted critical issues related to the Christian Divorce Law and the Christian Marriage Law, those statutes of almost 150 years that had remained almost intact in Pakistan despite independence.

British and personal law

These two laws were the result of British legislation during the Raj. When the British arrived in India, they saw it as a set of different religious communities, ignoring other distinctions of caste, region, ethnicity.

As problematic as this arrangement was, it resulted in the notion of personal law in India. This meant that in "personal" matters (marriage, divorce, custody, inheritance) the religious law of a particular community would be followed, while in other matters customary law would prevail.

This was, of course, an important limitation for well-formulated codes such as Sharia, but in the absence of choosing the law of a certain wholesale religious community and imposing it on the rest of India, the British thought that this was the most appropriate way in which religious sensibilities could be relieved and also a common code designed for civil and criminal matters that are not within the scope of personal law.

Thus, in the following years, the British enacted several personal laws that governed different aspects for Parsis, Hindus, Muslims and also Christians. While these were religious pronouncements in a sense that they regulated matters according to religious principles, they were not religious laws per se.

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In other words, these laws did not erase the different emphases and interpretations of various sects within a religion, but created a general parameter within which the interpretation of the law could occur for members of a particular religious community. Then it was assumed that jurisprudence would further refine these provisions and also allow different interpretations between sects.

In terms of Christian personal law, the two main statutes introduced in India by the British were the Christian Divorce Law, 1869 and the Christian Marriage Law, 1872. Although Christians were still a very small number in the British Empire of the India at that time, its growing number through mass conversions, and the issue of irregularities, led to the enactment of these two laws.

Previously, English law applied directly to Christians in India. These new laws also largely followed British law at the time, but created a provision to make changes if desired locally. The law on marriage recognized the clergy of the Church of England, the Church of Scotland and the Catholic Church, while allowing other ministers and even lay people to apply for a license to solemnize marriages.

The law of divorce, again, reflected contemporary England and only allowed it in case of adultery, bigamy, rape, sodomy, bestiality or a combination of them with desertion. One section also allowed a divorce petition in case of conversion to another religion by a spouse, recognizing the local reality in India.

LHC 2017 Judgment

Returning to the case of Ameen Masih, Judge Mansoor Ali Shah, the then president of the Supreme Court of Lahore, declared in his trial that, since the 1981 law was under an undemocratic regime, and that consultations with the Christian churches were never held or leaders before their omission, the removal of Section 7 of the Christian Divorce Act of 1869 was unconstitutional.

Therefore, he allowed the petition and allowed Masih to divorce his wife based on British law, which allowed him under the unrecoverable breakdown of the provision of marriage.

More significantly, Judge Shah noted that while he had taken the views of the Christian churches on the matter, this law was a state, that is, a civil law regulating the affairs of a religious community. Therefore, it was by no means changing the biblical law (as some claimed) or forcing any church to accept divorce under its provisions.

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In fact, the Catholic Church does not recognize divorce at all, and neither this petition nor the entire Law of 1869 has forced her to accept the concept of divorce. Therefore, the purely religious law within the denominations was not affected at all by this trial and only the civil aspect was changing.

While Judge Shah's sentence eased the petitioner and facilitated the lives of many others, he raised an important point: how could Pakistan, as an independent country, allow another country's law to be respected with respect to personal law? of a certain community of its own citizens?

Christians in Pakistan are Pakistani citizens and almost 100{7be40b84a6a43fc4fae13304fce9a2695859798abfc41afd127b9f8b21c5f9c5} of them are of local origin. The small percentage of Anglo-Indians and Goans are also almost entirely Pakistani, so there is no reason for an extraterrestrial connection to their personal law.

Where there are still connections between churches in Pakistan and the United Kingdom, the fact that Pakistani Christians were governed by English divorce law was not only an affront to their Pakistani identity, but also violated their fundamental rights where they, as citizens, they must have their laws enacted by their own parliament.

A new law

Following the Masih case, the then government of the Pakistan-Nawaz Muslim League (PML-N) made serious attempts to make revisions.

Directed by Senator Kamran Michael, who was also a minister in the PML-N government, several rounds of consultations were held with Christians. These meetings began in earnest with a large consultation in Islamabad on August 10, 2016, where 38 people participated in the discussion. This was followed by another great discussion forum in Lahore on April 4, 2017, where 56 people participated.

Thereafter, due to the increasingly unstable government and impending elections, nothing concrete was achieved until the Pakistani government Tehreek-i-Insaf took office.

When the new human rights minister, Shireen Mazari, reached the helm of affairs, she seriously assumed the mantle of finally bringing the changes to light. She restarted the consultation process and, in a period of approximately one year, conducted several consultations with Christian leaders on the Law.

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Thus, in total, the Ministry of Human Rights held nine of these consultative meetings between 2016 and 2019 with members of the Christian community. In all these meetings, several questions were raised, many revisions were suggested, and several amendments to the two laws were noted.

Simultaneously, several church leaders and Christian civil society organizations also began conducting their own consultations. The National Commission for Justice and Peace (NCJP) formed in 1985 by the Catholic Episcopal Conference of Pakistan, the Church of Pakistan and the Presbyterian Church in Pakistan led the creation of a group of clergy and others, while organizations such as the Center for Social Justice and others they brought together civil society leaders and human rights defenders together with religious leaders.

Therefore, by the fall of 2019, it was clear that much work and thought had been devoted to the subject and that the Ministry of Human Rights prepared a new draft for the Christian Marriage and Divorce Act of 2019, taking into account the various rounds of inquiries and suggestions received from Christian leaders and activists throughout Pakistan.

Delicate process

While the consultation process was really commendable and the efforts of the Ministry of Human Rights and Minister Mazari were commendable, several problems also arose during the consultation process that exhibited its tense nature.

First, usually, an act of this kind is led by some members of parliament who come from a particular religious community, or represent it, or have great knowledge, academic or practical, in this regard.

In this case, parliamentary leadership fell primarily on the shoulders of Christian members of parliament who had been appointed to their seats by party leaders. Since these parliamentarians were never really elected and obtained their positions through a list of parties, from the beginning their legitimacy was questioned.

Although they were Christians by religious profession, this was their only representation claim. Almost all of them had no experience in social, educational or charitable work that made them stand out as natural leaders. Almost all of them had risen in the ranks of a party due to sponsorship rather than base support.

MNA Shunila Ruth herself pointed out this problem in a consultation and pointed out that the only way she can advocate for Christian (and minority) rights is when the community fully supports her. Such support and, therefore, representation still need to be worked on.

In addition, almost all of these Christian parliamentarians could not understand the nuances of both laws and could not clarify and emphasize the real nature of the old laws and the reasons behind the proposed changes. Of course, this has to do with the fact that there are only a handful of Christian members of the National Assembly or the Senate, so it would be unfair to expect them to understand the complexities of a law that is civil but religiously important.

Thoroughly: State of fear

Secondly, a major flaw in the process is that it is considered primarily a religious problem, so consultations have focused primarily on Christian religious leaders. While it is true that the law will deal primarily with people who profess the Christian faith, however, as explained above, and very clearly in Judge Shah's judgment, these laws are civil, not religious, laws.

Therefore, although consultations with Christian religious leaders are fine, depending on your acceptance of the proposed changes is not correct. This is because the proposed changes do not affect the particular law of the churches and neither should these leaders accept these changes.

For example, the Catholic Church, throughout the world and also in Pakistan, does not accept divorce. Therefore, he has never accepted the provisions of the Christian Divorce Act of 1869 and will not accept any version of it in the future. This is because Catholics throughout the world and in Pakistan are governed by the Canon Law of the Catholic Church. The same is true for most major churches, such as the Church of Pakistan and the Presbyterian Church, which have their own canon law that regulates such matters.

Furthermore, as has been evident, any attempt to reach a consensus among several Christian religious leaders about marriage and divorce is simply useless. This is because different denominations have very divergent views on the issues of marriage and divorce.

For example, the Catholic Church, as noted above, does not accept the concept of divorce under any circumstances. Instead, he uses the concept of annulment that, after due process, ends the marriage as if it never happened. On the subject of marriage, the Catholic Church sees it as a sacrament ordained by God, which can only be dissolved by death.

The Church of Pakistan, which largely follows the Church of England, also sees marriage as a sacrament, but allows divorce under certain circumstances. However, the Church of Pakistan does not allow a divorced to remarry while their previous spouse is still alive. Some Protestant churches also see marriage as an indissoluble covenant and only allow divorce on the basis of adultery. There are also divergent opinions about the new marriage.

In addition, although the Ministry of Human Rights wholeheartedly invited a very wide cross-section of the Christian community for consultation, the reality was that very few of the religious leaders had no real claim for representation, and even among those who They did, their numbers varied widely.

For example, the Catholic Church in Pakistan is the largest Christian church in the country, with more than 50{7be40b84a6a43fc4fae13304fce9a2695859798abfc41afd127b9f8b21c5f9c5} of the Christian population attached to it. They are followed by the Church of Pakistan, which claims another 25{7be40b84a6a43fc4fae13304fce9a2695859798abfc41afd127b9f8b21c5f9c5}, while the Presbyterian Church of Pakistan has another 10-15{7be40b84a6a43fc4fae13304fce9a2695859798abfc41afd127b9f8b21c5f9c5} of the country's Christian population. The rest of the 15-20pc of the Christian population extends over numerous, perhaps even thousands, of small denominations and churches in houses, which are almost impossible to count.

Therefore, bringing all these religious leaders together on the same platform and treating them in the same way cannot work, since they do not represent a group of proportional people and differ greatly in terms of numbers, organization and stability.

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Third, the participation of NGOs in the process is certainly welcome and essential, but there are serious limitations in their ability to help the process. This is due in large part to the fact that most of the NGOs that focus on Christians in Pakistan or are led by Christians, focus on human rights issues.

Almost all of these NGOs are ill-equipped to assist in the process of reviewing marriage and divorce laws. Very few of them have lawyers associated with them, and even very few legal experts understand the development of Christian marriage and divorce laws both in Pakistan and abroad.

Among the few who understand these issues are Jennifer Jivan, of the Center for Christian Studies in Rawalpindi, Joseph Francis, of the Legal Assistance and Liquidation Center, and Peter Jacob, of the Center for Social Justice. In addition to them, and some others, there are almost no people in the NGO sector who have the competence to comment on these issues.

In addition, each of the three groups – political leaders, church leaders and NGOs – had the expectation that their views would prevail only, but the work of the ministry was and is to listen to all, propose a law that has in It counts all the recommendations instead of allowing one section to dominate the other, as well as ensuring that the law corresponds well with Pakistan's other human rights laws and regulations.

Therefore, while consultations were and are essential, the ministry has the final say in the version of the bill that will be presented in parliament. The ministry, of course, has to explain its position, and a position paper may have to be submitted in this regard, but it must also ensure that a law is presented and enacted.

Provisions and revisions of the proposed law

The current draft of the Law shows some necessary changes after the revisions. The main one is the increase of the marriage age for men and women to 18 years. While the determination of marriage age is somewhat controversial in Islamic legal circles, Christian thought and theology are unanimous about the age of consent.

In addition, he proposes that both the husband and the wife have the same grounds for divorce. Previously, the husband could only file for divorce in court when the wife had committed adultery. Now, there is an allowance for both the husband and the wife to file for divorce to the court for a greater number of reasons.

At first, there were several critical problems that remained unsolved. However, once revisions to the Human Rights Minister were suggested, she examined them immediately and incorporated the changes in the proposed Law.

Speaking personally, I was surprised by the level of personal interest, enthusiasm and receptivity that the minister showed about it. The legislation has certainly come so far due to the personal efforts of the minister and should be commended for it.

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As I was deeply involved in these new revisions, let me explain some of them, all of which have been accepted by the ministry and incorporated into the proposed Law.

First, an important revision in the proposed Law was the elimination of the definition of Christian. While it might be possible to come up with a definition that most churches accept, the opinion was that it was not a civil problem and, therefore, it was better to leave it in the hands of individual churches and people's consciences.

Having seen the experience of the majority community in this country in defining who belongs to a religion, it was important that such fissures were not introduced into a small community, where such problems could end up being equally explosive.

Second, the review allowed the solemnization of Christian marriages in places other than a church or chapel. This was added to recognize the current reality where marriages take place not only in churches but in wedding halls, houses and even at destination weddings.

Thirdly, the proposed Law has eliminated all references to the General Registrar of Births, Marriages and Deaths. Although this office has a historical significance and the office still remains, the law in force in the country stipulates that a marriage be registered first in the local Union Council and then in the offices of the National Database and the Registration Authority .

The harmonization of the registration of Christian marriages, something that Bishop Emeritus of Lahore Alexander John Malik had even brought before the Supreme Court, must be in accordance with the law in force and in line with the way in which the state registers the marriages of others communities

Fourth, in the provision for divorce, the review introduced the notion of violence as understood in the modern sense. This was an important human rights intervention to make the law more equitable and friendly for women. There are several cases in which violence is not only physical, but psychological, economic and other, and the recognition of its serious nature is an essential human right.

Therefore, the definition of violence was introduced in this Law as grounds for divorce, to include "any crime committed against the human body of the aggrieved person, including the breach of a crime, domestic violence, sexual violence, psychological abuse, abuse economic, harassment or a cybercrime. "

Fifth, in the provision for divorce, the review added that the lack of understanding of marital rights and obligations could also lead to the dissolution of the marriage. Reflecting the provision in the Catholic Canon Law, which is also present in the Anglican Canon Law and in the law of other churches, this provision indicates that the lack of understanding of what marriage really entails, responsibilities towards the spouse, children and the family, could also lead to an end of marriage. The proposed Law, therefore, not only reflects similar provisions in Canon Law, but, for the first time, provides it to Christians in Pakistan's civil law.

Sixth, the revision improved the language of the proposed law and aligned it with current terminologies. He eliminated words like "idiot" and "crazy" as the basis for an annulment and replaced it with "mental disorder" to cover a wide range of mental and psychological problems. This is a recognized reason for annulment in both Catholic and Anglican churches and in most other major Christian churches throughout the world.

Seventh, the review focused on the issue of alimony received by women as part of the provisional or final agreement. In the previous draft, it was set at one fifth, which was thought to be too low. By raising it to "at least a quarter," the review ensured that at least a quarter of the husband's income should go to the maintenance of the ex-wife and children, and that the court, taking into account the reality of the situation , you could even increase it as you see fit.

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And finally, the revision eliminated the remainder of Article 7 of the Christian Divorce Act of 1869 that had survived as Article 49 in the proposed Law, stipulating that the provisions of this proposed Law should be read in accordance with the principles and rules of the law . Divorce court and matrimonial cases in England. Since Pakistan is now an independent country with its own laws, and also because that reference infers that the Pakistani Christian community is somehow foreign, the entire article was deleted.

These and some other changes accepted by the ministry in the proposed Law made it modern, comprehensive and friendly for women. This review was led by a team of experts that included, in addition to me, Bishop Emeritus of Lahore, Alexander John Malik and Peter Jacob. Several others also gave their opinion in the process, including lawyer Jamshed Rahmatullah, the Vicar General of the Diocese of Rawalpindi-Islamabad Asif John, Fahmida Saleem of the Center for Christian Studies, the executive director of the NCJP, Cecil Shane Chaudhry and Jennifer Bennette.

The strength of this group was that it was a mixed group of religious leaders, academics, legal experts and activists who had the experience and experience to comment on the proposed legislation. The review proposed by this group was not directed by the church or activist / NGO. They were guided by a deep understanding of Christian thought, a knowledge of the laws of various churches, decades of pastoral experience and the ability to work with the ministry to make the proposed law more comprehensive.

No more delay

The openness with which the Ministry of Human Rights adopted these revisions undoubtedly shows its eagerness to ensure that a holistic and good law is presented before parliament.

All laws in a country are a work in progress and that is why we have parliament. All legislation is proposed and passed with good intentions, but time, more knowledge and experience demands its improvement.

The proposed law could have some minor problems, but those little things should not prevent it from being submitted to parliament and becoming law. If critical problems arise later, the amendments can certainly be presented at a later stage.

This is undoubtedly a very necessary and historical legislation and directly affects the lives of more than four million citizens of Pakistan. Any additional delay in the presentation of the bill will only cause more suffering.

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