Recommend UsEmail this PageeGazetteAlislam.org
The Animus Apparent
”…and let not a peoples’ enmity toward you incite you to act otherwise than with justice. Be always just, that is closest to righteousness”
Al Qur’an Ch:5 V:9
“to suffer the civil magistrate to intrude his powers into the field of opinion and restrain the profession or propagation of principles on supposition of their ill tendency is a dangerous fallacy, which at-once destroys all religious liberty, because he being of course judge of that tendency will make his opinions the rule of judgment, and approve or condemn the sentiments of others only as they shall square with or differ from his own.”
The question before the court in Zaheer-ud-Din was a purely Constitutional one and appellants scrupulously confined their arguments to the Constitutional question. The religious controversies or doctrinal issues were neither raised by the appellants nor argued, nor were they germane to the points in issues. It is axiomatic that a judge must wear all the laws of the country on the sleeves of his robe. Even so the judges are not infallible in deciding even the pure questions of law. Notwithstanding the presumption about their profound knowledge of law, judges are not necessarily presumed to be well versed in all the sciences, fine arts, metaphysics, mysticism or scriptures or exigecies. The entire argument based on religious controversy is misplaced. The present author does not wish to include any detailed comments on the religious issues or theological debate and has left that to be treated in a different treatise to which the reader must return for a fuller account of religious argument.
As one reads the majority opinion in Zaheer ud Din one is struck by the language of the judgment. The apex court of Pakistan has held that, “If a judge includes improper language, or becomes excitable then the impersonal concept of the seat of justice gets a rude shock.” and that, “A judge who adorns the seat of justice should always be careful to maintain the dignity of his office. If a judge becomes excitable and insultive to a party or a counsel then the confidence of the public is liable to be shaken in the administration of justice.” 03 It is not the province or duty of the court to pronounce on the truth of religious belief. Expression of opinions in matters of religious faith has also been disapproved by the Supreme Court of Pakistan because, “In such matters there can always be room for some difference of opinion and a Judge should not assume the role of an adviser or theologian.” 04 That is precisely what Abdul Qadeer J has done in Zaheer-ud-Din. Ahmadis have been advised by the court to coin their own epithets. He has in fact suggested change of theology for Ahmadis by validating a law, which clearly infringes religious freedom.
The majority opinion in Zaheer ud Din appears continuously locked up in a religious and theological debate with Ahmadis and appears to be arguing the case of fundamentalist mainstream Muslims against the Ahmadiyya belief. The effort is scarcely veiled. The language used is not only improper and excitable but manifestly abusive and provocative. It has been described in the international circles as “a diatribe against the Ahmadiyya belief and as having no place in judicial rulings.” 05 From some of the observations, which dropped from his pen, the learned judge seems to have reserved his choicest venom against Ahmadis. He describes their faith as hollow, relying on deception and refers to the founder of the movement in a language of ridicule and goes to the extent of inciting and sanctioning violence against Ahmadis. On account of this language the impersonal character of the seat of justice has indeed received a rude shock.
A senior Pakistani lawyer Barrister, A.G.Chaudhry, writing an analytical comment on Zaheer-ud-Din observed:
“Throughout the majority opinion, we find the belief of the author judge that the Muslims feel animosity against Ahmadis because they feel that the Ahmadiyya Movement is a “serious and organized attack” on their “ideological frontiers” and “a permanent threat to the integrity and solidarity” of majority community. The “mere fact that Ahmadis believe in Holy Qur’an, Sunnah, and same fiqh (subject of course to certain alterations“) cannot possibly be a ground of “annoyance to any reasonable man”. 06
“The majority judgment has been principally motivated by the assumption that the orthodox Muslims entertain hatred against Ahmadis on account of the concepts of shadowism, re-incarnation and transmigration in which they believe. It has been said that these concepts are violative of the basic tenets of Islam. The present writer, who is a Sunni Muslim, does not subscribe to any of these beliefs, which may or may not be an essential part of Ahmadiyya religion but he continues to adhere to his view expressed by him in Balancing the Constitution that “the right of a man to entertain such organize religious views as appeal to his individual conscience without dictation or interference by a person or power, civil or ecclesiastical, is as fundamental as is the right to life and liberty. The religion may be theistic or a monotheistic religion, its adherents may believe in one or any Prophet or many Prophets, it doubtless enjoys the Constitutional guarantee”. 07
One is reminded of the observation of the American Supreme Court in Lukumi Babalu Aye Vs Hialeh
”……. upon even slight suspicion that proposals for State intervention stem from animosity to a religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures.” 08
It would have been just, fit and proper for the court to take heed to the word of God,
”…and let not a peoples’ enmity toward you incite you to act otherwise than with justice. Be always Just, that is closest to righteousness” 09
In Zaheer-ud-Din the religious argument is in excess of jurisdiction and irrelevant to the Constitutional questions raised.
The Socio Political Argument
The majority opinion appears ready, willing and keen to catch at every and any argument to validate the ordinance. In that effort court has traveled far beyond its jurisdiction. The court canvassed a socio-political argument and proceeded to record a finding that:
“Ahmadis always wanted to be a separate entity and claimed a status distinct and separate from others,” 10
“The Ahmadis are therefore non-Muslims; legally and Constitutionally and, are on their own choice, a minority opposed to Muslims.” 11
The court further observed:
“As said above, the Ahmadis, also always wanted to be a separate entity, of their own choice, religiously and socially.” 12
The finding that the Ahmadis have always wanted to be a separate entity and hence are non-Muslim minority of their own choice does not stand scrutiny. The observation is contradicted by the judgment itself which says:
“The Ahmadis have been declared non-Muslim by Article 260(3)(B) of the Constitution.” 13
Clearly it does not indicate a choice of Ahmadis, it is obviously the coercive force and Constitutional fiat that declared them Not Muslims. Again, the court said:
“they were therefore asked to restrain themselves from directly or indirectly posing as Muslims or claiming legal rights of Muslims.” 14
So, they were asked; it was not their choice. They were constrained; they did not opt.
“Undoubtedly, they are an insignificant minority and have because of their belief been considered heretics and so Non-Muslim by the main body of Muslims. Apart from what has been said above the right to oust dissidents has been recognized, in favour of a main body of a religion or a denomination by the court,…..” 15
The reference to “insignificant minority” and the “right to oust” negate the assertion that it is a case of free choice. The argument is fallacious and self destructive. It is an admitted fact that Ahmadis were declared and classified non-Muslims against their wishes by a Constitutional amendment. When Ordinance XX was challenged before the Federal Shari’at Court, the Court justified Ordinance XX on the ground that despite the Constitutional amendment Ahmadis refuse to identify themselves as Non-Muslims.
“The impugned Ordinance is consequential to the Constitutional Amendment of 1974 by which the Qadianis, whether belonging to the Lahori Group or others were declared non-Muslims in accordance with the dictates of Islamic Sharia. In implementation of the Constitutional fiat which was disregarded with impunity by the Qadianis, they have been restrained by the impugned Ordinance from directly or indirectly calling or posing themselves as Muslims or calling their faith as Islam.’ 16
“The Constitution of 1973 was amended by the Constitution (Second Amendment) Act, 1974 (Act XLIX of 1974) to amend Article 106 and Article 260 thereof. Clause (3) was added to Article 260 to declare those persons as non-Muslims who do not believe in the absolute and unqualified finality of Prophet or claims to be a Prophet in any sense of the word or of any description whatsoever, after Muhammad (p.b.u.h.) or recognizes such a claimant as a Prophet or a Religious Reformer.” The Qadianis of the two groups are inter alia covered by this definition and they were thus declared non-Muslims.
Article 106 dealt with the Constitution of Provincial Assemblies which specified the number of Members to be elected for the Assemblies, their qualifications and also the additional seats in those Assemblies reserved for non-Muslims, i.e. Christian, Hindu, Sikh, Buddhist and Parsi communities. To these communities were added by the Second Constitutional Amendment of 1974 “persons of the Qadiani Group or the Lahore Group (who call themselves Ahmadis)”. 17
“Thus effect of Article 106 was given by declaration made in sub-Article (3) of Article 260 and Ahmadis of either persuasion were placed in juxtaposition with other minorities.
Despite the provisions of the Constitution, the Ahmadis persisted in calling themselves Muslims and their faith as Islam.” 18
All this could not possibly be construed to mean that Ahmadis have always wanted to be a separate entity from the Muslims and that they were non Muslims of their own choice. Historically the Ahmadis have throughout maintained their Islamic identity and the very challenge before the Supreme Court indicated that. The fact that the court in its judgment was suggesting Ahmadis to modify their practices distinct from Muslim practices, and not to insist on the Islamic practices, destroys the argument of the Majority opinion. It however, amply demonstrates the socio political bias, which runs through the judgment.
In fact the entire argument based on social cohesion and dissident minority needs to be closely examined. This argument was pressed into service in the case of Jehovah’s Witnesses who refused to salute the flag. To salute or not to salute the national flag did appear to involve a question of National Unity. But that argument adopted in Gobitis was strongly repudiated in Barnette with the following observations,
“Struggles to coerce uniformity of sentiment in support of some end thought essential to their time and country have been waged by many good as well as by evil men. Nationalism is a relatively recent phenomenon, but at other times and places the ends have been racial or territorial security, support of a dynasty or regime, and particular plans for saving souls. As first and moderate methods to attain unity have failed, those bent on its accomplishment must resort to an ever-increasing severity”……..“Ultimate futility of such attempts to compel coherence is the lesson of every such effort from the Roman drive to stamp out Christianity as a disturber of its pagan unity, the Inquisition, as a means to religious and dynastic unity, Siberian exiles as a means to Russian unity………” “Those who begin coercive elimination of dissent soon find themselves exterminating dissenters. Compulsory unification of opinion achieves only the unanimity of the graveyard.”
”…….But freedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.” 19
Unfortunately however where the expediencies of governments and trends of majority groups are made the basis of judgment, the majority opinions even though served under the name of religion are often a very complex socio political cum religious phenomenon and religion is often used as a ploy.
The religious and socio political argument is irrelevant and the statute and the judgment validating the statute, both are steeped into animosity, prejudice and bias. The judgment is therefore vitiated and needs to be reconsidered.