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The Author: Mujeeb-ur-Rehman
A chronicle and a critique of the legislative and the judicial events leading to a gradual denial and erosion of religious freedom to Ahmadis in Pakistan. This work is intended to provide an insight into the background of the Supreme Court judgment in the Ahmadis' case.
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The Author: Mujeeb-ur-Rehman
A chronicle and a critique of the legislative and the judicial events leading to a gradual denial and erosion of religious freedom to Ahmadis in Pakistan. This work is intended to provide an insight into the background of the Supreme Court judgment in the Ahmadis' case.
US$10. [Order]

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Persecution Of The Ahmadiyya Community In Pakistan: An Analysis Under International Law

B. The International Covenant on Civil and Political Rights

Article 18 of the UDHR arguably became a peremptory norm of international law in 1966 with the passing of Articles 18, 19, 20, and 27 of the International Covenant on Civil and Political Rights (“ICCPR”). The covenant concretized the basic freedoms of religion and conscience articulated in the UDHR and made its signatories legally bound by it. In addition to prohibiting state coercion that would impair a person's freedom to practice or adopt a religion or belief of one's choice, the ICCPR also prohibits states from denying religious minorities the right, in community with other group members, to enjoy their own culture, profess or practice their own religion, or to use their own language. *52 These rights are non-derogable except if the interests of public safety, order, health or morals, or the fundamental rights and freedoms of others, if prescribed by law, justifies their limitation.

Though Article 18 of the UDHR was a resounding declaration of religious freedom, without the backing of the ICCPR it lacked the force of a binding legal instrument. The ICCPRs long drafting period encompassed eighteen years of wrestling with issues the UDHR did not expound upon, including religious conversion, proselytism, and the tension between universal human rights and cultural relativism. *53 The durability and universalizability of the precepts of the ICCPR were evident in its implementation ten years after its formulation in 1976. One-hundred and twenty-five countries, including 23 Muslim states, ratified the Covenant. *54

Twenty-seven years after the Covenant's introduction, the U.N. Human Rights Committee issued a General Comment describing the state of international norms of religious freedom at that time. *55 The Comment described how international law recognized twelve non-derogable core rights, including the right to freedom of religion and prohibition of discrimination on the basis of religion. Even the key right of the freedom to manifest one's religion, which customary international human rights law recognizes as derogable, has adequate safeguards built around it.

In 1984, thirty-one international law experts from seventeen countries met in Siracusa, Italy, to consider the ICCPR's Article IV limitation and derogation provisions. *56 The Siracusa Principles on the Limitations and Derogation in the ICCPR clarify that any limitation imposed on one's freedom to manifest one's religion, or on other derogable rights in the Covenant, must be justifiably necessary and must constitute a response to a pressing public or social need, pursue a legitimate governmental purpose, and be appropriate to that purpose. *57 States face a number of restrictions if they choose to place a domestic legal limitation on a right protected in the ICCPR, including prohibitions against laws that are vague, arbitrary, or unreasonable in content or application, and laws that discriminate expressly on the basis of religion. Fundamentally, domestic legal systems must grant protections at least equal to those specified under international law. *58

Pakistan is not a signatory to the ICCPR; in particular, it could not endorse Articles 18, 19, 20, and 27. Pakistan's state practice, as mentioned above, involved the ascendancy of the Shari'a and devolution from its fundamental acceptance of religious freedom in its founding era. Ironically, Pakistan's distinguished jurists contributed to the opinio juris in Pakistan that regards the ICCPR as an affirmation of international human rights norms. Commenting on the relevance of international human rights law to common law jurisdiction in Pakistan, Justice Muhammad Haleem, then Chief Justice of Pakistan, at the Bangalore Colloquium in 1988, *59 exclaimed:

All rules of general international law created for humanitarian purposes constitute jus cogens. A valid domestic jurisdiction defense can no longer be founded on the proposition that the manner in which the state treats its own national is ipso facto a matter within its domestic jurisdiction . . . because a matter is essentially within the domestic jurisdiction of the state only if it is not regulated by international law. In the modern age of economic and political interdependence, most questions which, on the face of it, appear to be essentially domestic ones are, in fact, essentially international. . . . The international human rights norms are in fact part of the constitutional expression of the liberties guaranteed at the national level. The domestic courts can assume the task of expanding these liberties. . . . The present thinking at the international level supports an expanded role of domestic courts for the observance of international human rights norms. This reappraisal enables domestic courts to extend to citizens via state constitutions, greater protection of internationally recognized rights. *60

That the Supreme Court of Pakistan would declare Ordinance XX constitutional only five years later in Zaheerudin is troubling because in so doing, Pakistan violated Article 18 of the ICCPR. To mar the consciences of Ahmadis by foreclosing their right to profess and practice their interpretation of Islam is a breach of Article 18's instruction that “no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his own choice.” *61 Though the Court in Zaheerudin did not directly invoke the Article IV limitations to derogable rights, the majority justices used a public order argument akin to these limitations in their justification for upholding the constitutionality of Pakistan's anti-blasphemy provisions. By witnessing their faiths, the Court argued, Ahmadis inherently blasphemed Islam; if the government allowed the public declaration of their faiths, each Ahmadi would become a “state-crafted Salman Rushdie.” *62 Thus, the anti-blasphemy provisions were not only constitutional, but also fully consistent with the limitations to the rights enumerated in the ICCPR, insofar as they restricted Ahmadi activities for the sake of protecting public morals, maintaining public order, and preserving the integrity of Islam as Pakistan's official state religion. *63

For the Supreme Court of Pakistan to analogize the Ahmadi population to Salman Rushdie is to suggest that Ahmadis pose a threat to national security (more specifically, the security of the Shari'a), which the General Comment to the ICCPR specifically forecloses as a legitimate exception to a non-derogable right. *64 The fact that Ahmadis consistently invoke principles of non-retaliation even in the face of persecution is further indication of the absurdity of the national security argument. Moreover, Section 9 of the U.N. General Comment specifies: “The fact that a religion is recognized as a state religion or that it is established as official or traditional or that its following comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including Articles 18 and 27, nor in any discrimination against adherents of other religion or non-believers.” *65 Thus, the court's law and order justification is not in accordance with the express provisions of the ICCPR, the official comments, or Pakistan's opinio juris regarding the Covenant.

See International Covenant on Civil and Political Rights, arts. 18, 27, G.A. Res. 2200A (XXI), U.N. GAOR 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 1976), reprinted in DOCUMENT SUPPLEMENT, supra note 20, at 440, 441.
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See Natan Lerner, The Nature and Minimum Standards of Freedom of Religion or Belief, 2000 B.Y.U. L. REV. 905, 914 (2000).
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See Arzt, supra note 50, at 358. Though considered one of the most important human rights instruments in the world, the ICCPR has not yet reached the status of customary law. Makau Wa Mutua argues, for example, that the ICCPR is “mainly a repetition and elaboration of the rights and processes that liberal democracies have evolved” and an “attempt[] to universalize civil and political rights accepted or aspired to in Western liberal democracies.” See Makau Wa Mutua, The Ideology of Human Rights, 36 VA. J. INT'L L. 589, 604n.39, 606 (1996).
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See the U.N. Human Rights Committee, General Comment adopted under art. 40, para. 4, of the ICCPR, U.N. DOC. CCPR/C/21/Rev. 1/Add. 4 (1993).
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See The Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights, reprinted in 7 HUM. RTS. Q. 1, 1 (1985).
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Id. at 4
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Id. at 5, 9 - 10. The Siracusa Principles define “public safety” as protection “against danger to the safety of persons . . . or their physical integrity, or serious damage to their property” and define “public order” as the “sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.” A limitation for the protection of “public morals” must be “essential to the maintenance of respect for the fundamental values of the community.” Id. at 5 - 6.
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In 1988, the British Commonwealth Secretariat initiated a series of judicial colloquia to promote the domestic application of international and regional human rights norms. The first colloquium took placed in Bangalore, India, from which emerged the Bangalore Principles, which called for the creative and consistent development of human rights jurisprudence throughout the British Commonwealth. See External Link - Opens new browser window (last visited Feb. 12, 2003).
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ICCPR, supra note 52, art. 18.
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Zaheerudin v. State, supra note 42, at 1778.
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The Pakistani government's justification here is contrary to international norms. According to a 1993 resolution by the U.N. Commission on Human Rights, governments should be obligated to provide effective remedies for redress for religious groups suffering intolerance. See, e.g., U.N. Commission on Human Rights, Res. 1993/25, paras. 3,5,6, U.N. Doc. E/1993/23, (1993) at 111, 112 in KAREN PARKER, RELIGIOUS PERSECUTION IN PAKISTAN: THE AHMADI CASE AT THE SUPREME COURT fn. 20 (1993), available at External Link - Opens new browser window (last visited Feb. 11, 2003).
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See Lerner, supra note 53, at 915.
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See General Comment, supra note 55, P9 at 4.
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