Lahore High Court on Forced Conversion of a Minor and International Human Rights Law

September 2, 2021
4:07 pm

(Abdullah Mohsin)

Introduction

In a recent judgment titled “Nasira v. Judicial Magistrate and 5 others,” the Lahore High Court Lahore (‘Court’) ruled on a case pertaining to the alleged forced conversion of a 14-year-old Hindu girl (namely: Pumy Muskan) to Islam¹ It was ruled that since Pumy Muskan is a minor, she lacks legal capacity to change religion on her own² The Court went on, stating: “However, the question of faith being a matter of heart and one’s conviction, no Court can declare her conversion invalid or void. It can only refuse to recognize or give effect to it for certain legal purposes.”³ In addition, the Court handed over the custody of Muskan to her mother (‘Petitioner’).⁴ The Court states “The Petitioner being the lawful guardian of Pumy Muskan is entitled to her custody. There is no reason to deprive her of that right.”⁵

This article has three parts: the first part will state the Court’s reasoning in relation to the ruling that Pumy Muskan “…lacks legal capacity to change religion on her own”; the second part will analyze the applicable provisions of international human rights law (‘IHRL’) and see whether the Court’s reasoning is consistent with the applicable IHRL; and, the third part will assess the general legal soundness of Court’s reasoning in relation to the “lack of legal capacity to change religion for a minor.”

Court’s reasoning

The Court framed the question as “Whether Pumy Muskan, who is admittedly a 14-year-old minor, could change her religion without consent of her parents?” Initially, the Court dwells upon the “age of discernment”⁶ for the purpose of conversion to another religion.⁷ Upon perusal of writing of various Islamic scholars and jurisprudence of national and foreign courts, the Court accepted that under Islamic Law, puberty is associated with completion of the 15th-year of age, unless there is evidence to the contrary.⁸

The Court ventured upon consideration of “majority” under Pakistani law. It accepted that “In Pakistan there is no uniform standard definition of age of majority.” ⁹ In addition, the Court mentions section 3 of the Majority Act 1875 (‘Majority Act’).¹⁰ This Act was promulgated “…to amend the Law respecting the age of majority.”¹¹ Accordingly, section 3 defines the “age of majority” for persons domiciled in Pakistan to be 18 years. However, when the “Court of Wards” presumes superintendence of a minor’s property before the age of 18, the minor shall attain his majority when he reaches 21 years of age.¹² Yet, section 3 is subject to section 2 of the Majority Act, which excludes application of the Act in matters of “the capacity of any person to act in the following matters (namely), marriage, dower, divorce and adoption”; “the religion or religious rites and usages of any class of citizens of Pakistan;…”¹³ Hence, the ‘18-years’ age of majority, as defined in section 3, is not applicable in issues pertaining to ‘marriage’.

Moreover, the Court considered “whether the age of majority for the purpose of conversion would be determined with reference to the personal law to which the intending convert is subject or the faith that he wants to embrace.” The Court argued that “Islamic jurists and even in some cases our Courts have held that where a person intends to become a Muslim the governing law for determination of the age of majority would be Islamic Law.”¹⁴ Regardless, Pumy Muskan is considered a minor under both (Hindu and Islamic) laws. Because of this, the Court ruled that “Pumy Muskan being a minor lacked legal capacity to abjure her religion without the consent of her parents or guardian.” It further ruled that “a person’s religious belief is not a tangible thing and cannot be seen or touched…However, it may refuse to recognize or give effect to it for certain legal purposes.”

International Human Rights Law and conversion of a minor

For the purpose of the aforementioned subject, Article 18 of the 1966 International Covenant for Civil and Political Rights (‘ICCPR’)¹⁵ is relevant. Article 18 recognizes everyone’s “freedom of thought, conscious and religion”. It states:

“Everyone shall have the right to freedom of thought, conscience and religion.
This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” (emphasis added).¹⁶

In addition, paragraph 4 of Article 18 is particularly relevant for the purpose of the present Case. It holds that: “The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.” (emphasis added) Similar provisions are also included in Article 12 of the ‘American Convention on Human Rights’ (‘ACHR’)¹⁷. Article 12(4) of the American Convention recognizes the right of the parents and guardians to provide for the religious and moral education of their children or wards that is in accord with their own conviction. However, it is apparent that these various human rights instruments “…do not expressly provide a minimum age for religious conversion.”¹⁸ In addition, the aforementioned Article 18 (ICCPR) and Article 12 (ACHR) merely deal with the right of parents/legal guardians in relation to the moral and religious education of their children. It is not clear whether a minor has a ‘right’ to convert to a different religion. Moreover, Article 5 of the UN General Assembly (‘UNGA’) resolution¹⁹ on “Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief” also recognizes: i) the right of parents/legal guardians to organize the family life in accordance with their religion or belief; and ii) the right of every child to have access to education in the matter of religion in accordance with the wishes of his parents/legal guardians, and shall not be compelled to receive teaching on religion or belief against the wishes of his parents or legal guardians.²⁰ This is particularly relevant in situations where a minor is forced to convert to another religion without the consent of her parents. For instance, in the Pumy Muskan’s case, her parents had the right, in light of the UNGA resolution, to educate their daughter. Further, in addition to the aforementioned provisions, Articles 2, 14 and 30 of the ‘1989 Convention on the Rights of the Child’ (‘CRC’) were deemed relevant by the Lahore High Court for the purpose of assessing the rights of a minor in relation to religious conversion. These articles require state parties, including Pakistan, to respect the rights set out in the Convention for each child within their jurisdiction without discrimination.²¹ It also requires the state parties to respect the right of the child to “freedom of thought, conscious and religion”.²² In addition, it recognizes the rights and duties of the parents/legal guardians to provide direction to the child in the exercise of his or her right in a manner consistent with the evolving capacities of the child.²³ Furthermore, a child belonging to a minority or who is indigenous shall not be denied the right to profess and practice his or her own religion.²⁴ It is apparent from these IHRL provisions that IHRL recognizes a minor’s “freedom of thought, conscience and religion”²⁵. This may lead one to argue that a minor has the freedom to convert to another belief system. However, such freedom is, seemingly, subject to the parents/legal guardians’ right to provide religious and moral education to her children in accordance with his or her own conviction.²⁶ Regardless, forcing a minor to keep a certain belief system or to convert to another is clear violation of the minor’s “freedom of thought, conscience and religion” (Article 18 (2), ICCPR; Article 14, CRC). It is pertinent to mention that when a state ratifies²⁷ an international treaty (or convention), it is legally bound by it. Hence, Pakistan, as a ratifying state of ICCPR and the CRC, is legally bound to enforce both Conventions. In this regard, the Lahore High Court’s judgment is consistent with the IHRL to the extent that it forbids forced conversions and recognizes the paramount right of parents/legal guardians when it comes to the religious affairs of a minor. However, nothing in the IHRL absolutely bars a minor from changing his or her own religion, despite the ‘religious and moral’ education provided by her parents/legal guardian.

Conclusion

It is important to note that international human rights law recognizes minors’ “freedom of thought, conscience and religion”, subject to parents/legal guardian’s right to provide moral and religious education to her children in accordance with her own convictions. However, the latter ‘right’ of parents/legal guardians does not necessarily imply that a minor absolutely lacks legal capacity to change her own religion. In other words, a minor might still have the freedom to convert to another religion despite the “moral and religious education” provided by her parents/legal guardians.²⁸

Moreover, the reasoning that the Court seems to rely upon is that since the minor is not at the ‘age of discernment’ in order to make an informed decision regarding religion, they lack the legal capacity to do so without the consent of parents/legal guardian. However, the legal basis for such ‘lack of legal capacity’ is not clear from the Court’s judgment. Another argument that can be used for the purpose of a ‘minor’s conversion’ is that any forced conversion to another religion is illegal. This entails that the element of ‘force’ renders the ‘conversion’ illegal. ²⁹

In addition, instead of creating an absolute bar against the conversion of minors, it might be possible to define a presumption against minor’s conversion unless proven otherwise, for example: a minor can be presumed to not to have converted unless it is proven that the conversion actually occurred. Yet, it is understandable that in light of the evidential difficulties of proving a ‘forced conversion’, the Court has chosen a ‘just’ outcome instead of one that is legally sound.

Bibliography

American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969.

See link: https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.pdf

Constitution of the Islamic Republic of Pakistan, 1973.

See link: http://www.na.gov.pk/uploads/documents/1333523681_951.pdf

Convention on the Rights of the Child 1989 (CRC), 1577 UNTS 3.

See link: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en

International Covenant on Civil and Political Rights 1966 (ICCPR), 999 UNTS 171.

See link: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en.

Majority Act, 1875 (Act XI of 1875).

See link: http://www.pja.gov.pk/system/files/6.%20Majority%20Act,%201875.pdf

Nasira v. Judicial Magistrate and 5 others, PLD 2020 489.

See link: https://courtingthelaw.com/wp-content/uploads/2019LHC4414.pdf

Taylor, M. Paul (2020) ‘A Commentary on the International Covenant on Civil and Political Rights’ Cambridge University Press.

UN General Assembly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, UN Doc. A/RES/36/55.

See link: https://www.ohchr.org/en/professionalinterest/pages/religionorbelief.aspx

Reference

Nasira v. Judicial Magistrate and 5 others, PLD 2020 489, para 2. See link: https://courtingthelaw.com/wp-content/uploads/2019LHC4414.pdf
Ibid, para 62.
Ibid
Ibid
Ibid
Presumably, the term “Age of Discernment” is used to indicate the ‘age’ in which a person is mentally capable to make an informed and rational decision.
(Nasira, 2020) see above n.1, para.31.
Ibid, paras.28-34.
Ibid,para.37.
Ibid, para 37; The Majority Act, 1875 (XI of 1875)(Pakistan). See link: http://www.pja.gov.pk/system/files/6.%20Majority%20Act,%201875.pdf
Preamble of the Majority Act. See above n.10.
Section 3, Ibid.
Section 2(a) (b), Ibid.
(Nasira, 2020) see above n.1, para.39.
ICCPR is an international multilateral treaty that universally recognizes ‘human rights’ of individuals within the jurisdiction of ‘State-Parties’ to the Treaty. See: International Covenant on Civil and Political Rights 1966 (ICCPR), 999 UNTS 171. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en.
Also see the commentary on Article 18 (4) by: Taylor, M. Paul (2020) ‘A Commentary on the International Covenant on Civil and Political Rights’ Cambridge University Press, p.530.
ACHR is an international treaty which aims “…to consolidate…within the framework of democratic institutions,
a system of personal liberty and social justice based on respect for the essential rights of man;”. See: American Convention on Human Rights, “Pact of San Jose”, Costa Rica, 22 November 1969. https://www.oas.org/dil/treaties_b-32_american_convention_on_human_rights.pdf
(Nasira, 2020) see above n.1, para. 35.
Unlike a ‘treaty’, which is legally binding upon states parties to it, the ‘UN GA Resolution’ is not legally binding.
UN General Assembly, Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 25 November 1981, UN Doc. A/RES/36/55. See link: https://www.ohchr.org/en/professionalinterest/pages/religionorbelief.aspx
Convention on the Rights of the Child 1989 (CRC), 1577 UNTS 3, Art 2. See link: https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-11&chapter=4&clang=_en
Ibid, Art 14.
Ibid.
CRC, see above n.21, Article 30.
CRC, see above n.21, Article 14.
ICCPR, see above, n.15, Article 18 (4).
“Ratification” is a process through which a state-party to a treaty incorporates that particular treaty into domestic law through domestic legislation.
This is reinforced by Article 14 (1) of the CRC which bind State Parties to “…respect the right of the child to freedom of thought, conscious and religion”. Under Article 14 (2), the parents/legal guardians merely have the right “…to provide directions to the child in the exercise of his or her right in a manner consistent with the
evolving capacities of the child.” See above n.21.
Under Article 20 (Freedom to profess religion and manage religious institutions), Constitution of Pakistan 1973; and Article 18, ICCPR. See n.15 for ICCPR, and See Link for Constitution of Pakistan: http://www.na.gov.pk/uploads/documents/1333523681_951.pdf.