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Home Critical Analysis/Archives ERROR AT THE APEX
The Error
Kalima Tayyeba
The attitude of Ahmadis towards Kalima Tayyeba which is a fundamental of their faith may be aptly put; “if I had ten thousand millions of lives I would spend them all for my faith in Kalima Tayyeba
Conscious of the fact that Kalima Tayyeba was not mentioned in the ordinance, Abdul Qadeer J. goes on to justify why Ahmadis should be denied Kalima Tayyeba and ends up with the observation:
“in the light of what has been said above, there is general consensus among the Muslims that whenever an Ahmadi recites or displays Kalima he proclaims that Mirza Ghulam Ahmad is the prophet and should be obeyed and one who does not do that he is an infidel.” [28]
General consensus can by no means be a substitute for a statute. The rule that a criminal statute cannot be extended beyond the letter of law and cannot be extended by implication was clearly violated here. The Kalima Tayyeba has been made punishable NOT by the letter of the ordinance but by the tyranny of the extended application emanating directly from the vagueness of the law. Abdul Qadeer J. has gone a step further and made Kalima Tayyeba punishable not even by extended application of law but on account of what the learned judge describes as general consensus among the Muslims. General consensus, even if it existed cannot take place of law unless translated into statute, which in the present case has not been done. The judgment holds that though the statutes did not proscribe Kalima Tayyeba yet it can be made punishable by implication because the mainstream Muslims by consensus hold it to be offensive. If there was a consensus it was known to the law maker when the law was made and yet it was not included in the law. How could it be made punishable passes all imagination. Here we clearly have a transgression which calls for a corrective measure.
On the Constitutional issue the majority judgment completely overlooks the issue of discrimination. The ordinance in its preamble clearly defines its purpose to “prohibit and punish” activities of Qadianis, which have been described as anti-Islamic. Thus the ordinance singles out a religious group for penal action on the ground of religion alone. It is manifestly a case of stark discrimination.
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