Constitutional Migration and the Meaning of Religious Freedom: From Ireland and India to the Islamic Republic of Pakistan

Abstract

Building on current research regarding constitutional migration, this article shows how constitutional provisions protecting religious freedom (“subject to public order”) arrived in the Islamic Republic of Pakistan, not via colonial British or traditional Islamic sources—both explicitly rejected—but via deliberate constitutional borrowing from “anti-colonial” precursors in Ireland and, especially, India. Drawing on Ernesto Laclau's notion of “empty signifiers,” the article highlights the shifting political circumstances that transformed the meaning of Pakistan's borrowed constitutional provisions. Even as core texts guaranteeing an individual's right to peaceful religious practice were imported, political, legal, and conceptual modulations ensured that specific forms of peaceful religious practice were refashioned as a source of religious provocation and, therein, public disorder. Far from protecting religious freedom, this repurposing of imported constitutional clauses tied to “the politics of public order” underpinned the formal legal restriction of an otherwise explicit right.

Orthodoxy and Order: The Denial of Religious Liberty to Ahmadis in Colonial Ceylon

“…'Orthodoxy', backlash, and public order Scholars have explained the complex relationship between the heterodoxy of Ahmadis, Sunni majoritarian antagonism, and the use of 'public order' laws in contemporary Pakistan, which has witnessed unjust restrictions on Ahmadiyya religious liberty (Nelson 2020;Khan 2003). In contemporary settings, religious liberty is often protected 'subject to public order', and that it is 'via the manipulation of these legal rubrics that heterodox groups like the Ahmadis came to be excluded' (Schonthal et al 977).…”

Religion and World Politics

“…Consequently, promoting the right to FoRB for minorities may reinforce their difference and otherness, making them more vulnerable, rather than upholding their dignity and humanity and providing them with greater protection. Nelson (2020b) discusses the example of the Ahmadiyya community in Pakistan to demonstrate the lived realities of these ambiguities around FoRB and the rights of minority groups. The Ahmadiyya community follow the teachings of Ghulam Ahmad, a 19th-century man from Punjab who the Ahmadiyya consider a prophet in the Muslim tradition after the Prophet Muhammad.…”

“…The Ahmadiyya community follow the teachings of Ghulam Ahmad, a 19th-century man from Punjab who the Ahmadiyya consider a prophet in the Muslim tradition after the Prophet Muhammad. The Ahmadiyya consider themselves to be part of the broader Muslim community (Nelson 2020b). This membership of the broader Muslim tradition, however, is questioned, not recognised, or outright rejected by others from outside the Ahmadiyya community.…”

“…This membership of the broader Muslim tradition, however, is questioned, not recognised, or outright rejected by others from outside the Ahmadiyya community. Indeed, there are some within the broader Muslim community who see the Ahmadiyya as blasphemous, because in their view Muhammad was the last and greatest of the prophets (Saeed 2016;Nelson 2020b).…”

“…The Ahmadiyya are a minority community within Sunni Muslimmajority Pakistan. The question of whether the Ahmadiyya are or are not "Muslim" has been the source of significant political and civil tension, violence, and unrest since the post-colonial formation of the Pakistani state (Saeed 2016;Nelson 2020b). According to Nelson (2020b), the article on the right to FoRB as expressed in the Pakistan constitution originated in the Constitution of the Irish Republic, migrating essentially verbatim to Pakistan via India.…”