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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.
Commentary by Hazrat Mirza Bashiruddin Mahmood Ahmad (may Allah be pleased with him). The most comprehensive commentary on Holy Quran ever written.
Report on the Situation of Ahmadi Muslims in Pakistan
to sanction Ordinance XX and its discriminatory impact and religious restrictions is to violate a fundamental and universally recognized standard of human rights.
Lawyer's Committee for Human Rights
This section presents a brief overview of the persecution of Ahmadi Muslims in Pakistan and describes how this persecution has come to be legalized and made part of the constitution and the attitudes of various governments and the courts. Much of the legal analysis that follows relies heavily on that of Mujeeb ur Rehman, Advocate, MM Clarke and professor Tayyab Mahmud, Associate Professor of Law at Cleveland State University. (See Protecting Religious Minorities: The Courts; Abdication (Chapter Six of Pakistan: 1995, Charles H. Kennedy and Rasul Baksh Rais)
Over the years, the position of Ahmadi Muslims in Pakistan has deteriorated under increasing legalized and institutionalized persecution. The government typically justifies this persecution in the name of law and order or as a way to defend Islam. At the present time, there are no signs of improvement in the situation. Rather, there has been an increase in official and legal persecution along with continued acts of violence against Ahmadi Muslims.
The government onslaught against the Ahmadiyya Muslim community has at its heart the demands of a fundamentalist minority represented by the religiously based political parties that had opposed the creation of Pakistan. Writing of these parties, the former Chief Justice of Pakistan says :
When Pakistan appeared on the map, they found no place for themselves in India and they all came to Pakistan and brought with them the curse of Takfir (calling one another infidel).
The leading part in this Takfir was taken by the Ahrar and their first target were the Ahmadies. They demanded that the Ahmadies (Qadianies) should be declared a minority as they were outside the pale of Islam, that Sir Muhammad Zafrullah Khan who was an Ahmadi should be relieved of his office and that in future no Ahmadi should be taken on a key post. Soon they gathered the other Ulama round themselves .... The campaign against the Ahmadies had assumed such a virulent form, that several Ahmadies were attacked and killed and their Masjids and property burnt, destroyed or looted …
Khawaja Nizamuddin … was confronted with the situation that either he should accept the demands or as Prime Minister treat the ultimatum as a challenge to law and order which as Prime Minister he was bound to maintain. He chose the latter alternative and ordered the arrest of the agitating Ulama. With these arrests, began the disturbances throughout the Punjab and the situation soon went out of control of the civil authorities. Martial law in Lahore was therefore declared.
Muhammad Munir, From Jinnah to Zia,
Vanguard Books Ltd., Lahore, p.38
The present situation in Pakistan, in which Ahmadi Muslims may be murdered with impunity and charged with the capital offense of blasphemy for practicing their faith may be seen as the result of the steady surrender of the Pakistani government to the demands of organizations like the Ahrar and the Jamaat-i-Islaami made soon after the creation of Pakistan. Their demands are in stark contrast to the vision of the founder of Pakistan who said :
Everyone of you, no matter to what community he belongs, no matter what relations he had with you in the past, no matter what his colour, caste or creed, is first, second, and last a citizen of this State with equal rights, privileges and obligations,… You are free; you are free to go to your temples, you are free to go to your mosques or any other place of worship in this State of Pakistan… You may belong to any religion or caste or creed, that has nothing to do with the business of the State …
Muhammad Ali Jinnah, presidential address to the
first session of Pakistan's Constituent Assembly
In 1969 the Lahore High Court upheld this vision and the fundamental rights of Ahmadi Muslims. It found a Constitutional bar against declaring Ahmadis non-Muslims or forbidding them from calling themselves Muslims.
… Ahmadis as citizens of Pakistan are also guaranteed by the Constitution the same freedom to profess and proclaim that they are within the fold of Islam. How can the petitioners deny to others what they claim for themselves is beyond our comprehension. Certainly not by terrorizing them …
… sad instances of religious persecution against which human conscience must revolt, if any decency is left in human affairs.
Shorish Kashmiri v. Province of West Pakistan,
PLD Lahore 289
The process of entrenching persecution of Ahmadi Muslims in law began with the anti-Ahmadi campaign of Prime Minister Zulfikar Ali Bhutto . The Constitutional Amendment passed by the government of Prime Minister Bhutto in 1974 declared Ahmadi Muslims to be non-Muslims for the purpose of the law and Constitution.
On 5 July, 1977 General Zia ul Haq overthrew the government of Prime Minister Bhutto. The late military dictator directed a further increase in persecution.
In early 1984 fundamentalist mullahs had declared that if no action was taken against Ahmadi Muslims by 30 April, 1984 and the 1974 Constitutional Amendment was not rigorously enforced, Ahmadis and their places of worship would be attacked. On 26 April, 1984 Martial Law Ordinance XX was promulgated by the late military dictator. It proscribed certain Islamic terminology and made it a criminal offense for an Ahmadi Muslim to call himself a Muslim. Presently any act with any religious colour can become a criminal offense when performed by an Ahmadi. The denial of religious rights intensified with the trial of Ahmadi Muslims under a section of the Pakistan Penal Code that carries the death penalty. The Pakistani government is seeking the death penalty for seemingly trivial and harmless acts.
In the period since Martial Law Ordinance XX was promulgated, in addition to persecution under the law, Ahmadi Muslims suffered in a number of other ways. Ahmadis were reviled in the media by government officials. Businesses and homes of Ahmadi Muslims were attacked, places of worship were demolished with active government and police participation, members of the Ahmadiyya community were (and continue to be) murdered without any effort on the part of the police or government to protect their lives.
The persecution of Ahmadis was further entrenched in law by the decision of the Supreme Court on 3 July 1993 which would appear to close the door of judicial remedy.
To understand the legal position of Ahmadi Muslims under Pakistani law attention is invited to the following:
- Constitutional Second Amendment Act 1974.
- Martial Law Ordinance XX of 1984.
- Mujeeb-ur-Rehman and others vs. the Federation of Pakistan.
A short order by five Judges of the Federal Shariat Court reported in PLD 1984, FSC.
- Pakistan Penal Code 295C.
- Judgment of the Lahore High Court entitled Abdur Rahman Mubashar vs. Amir Hossain Bokhari, reported in PLD 1978 Lahore, p.13.
- Mujeeb-ur-Rehman vs. the Federation of Pakistan, detailed judgment by four Judges reported as PLD 1985, FSC.
- Zaheer Uddin vs. the State, PLD 1988 Quetta.
- Mirza Khurshid Ahmad and others vs. Province of Punjab and others reported as PLD 1992 Lahore, p.1.
- Mohammad Haneef and Mohammad Ahsan vs. the State, unreported judgment of Multan Bench of Lahore High Court, delivered in May, 1992.
- Nazir Ahmad and others vs. the State, judgment delivered in the month of August, 1992.
- Supreme Court judgment, 3rd July 1993.
PROCESS OF INSTITUTIONALIZING THE PERSECUTION OF AHMADI MUSLIMS
THE SECOND AMENDMENT
In 1974, the National Assembly of Pakistan passed the Second Amendment to the Constitution. This amendment declared Ahmadis to be non-Muslims as far as the law and Constitution were concerned. Three years later, following the military coup, the same National Assembly was denounced for political and moral aberrations. (See White Paper on "The Performance of the Bhutto Regime", Vol III, p. 130, Government of Pakistan, 1979.)
This religious opinion offered by the National Assembly of Pakistan need not have led to the sort of persecution that would follow as shown by the opinion of the Lahore High Court in the Mobashir Case.
DECISION OF LAHORE HIGH COURT
In 1976, a group of ulema sought an injunction prohibitting Ahmadi Muslims from calling their places of worship masjid, giving the call to prayers called the azan, performing Muslim prayers, namaz, and reciting the Holy Quran.
The Lahore High Court found that freedom of conscience or the freedom to practise a religion could not be restricted by law:
It is the policy of the State to protect all religions but to interfere with none … the right … to hold certain religious beliefs and opinions … cannot be called in question or ajdudicated upon in a civil court.
…it is not the province or duty of the Court to pronounce on the truth of religious tenets or to regulate religious rites or ceremonies.
… everyone … is at liberty to worship according to the dictates of his own conscience without being guided or governed in this respect by persons following a different religion.
(Mobashir v. Bokhari, PLD Lahore 113.)
The Court did not feel that the restrictions demanded by the ulema were a natural consequence of the Second Amendment to the Constitution, which the Court saw as a mere pronouncemnt of opinion:
It is true that Legislature can pass any law and can declare even a man as a woman or conversely a woman as a man …
However, the wish of the ulema would be granted by means of martial law Ordinanc XX.
MARTIAL LAW ORDINANCE XX
Martial Law Ordinance XX of 26 April 1984 proscribed certain Islamic words, phrases and epithets for Ahmadis and a ban was placed on calling Ahmadi places of worship mosques, or giving the call for prayers known as Azan. It prohibited preaching and propagation also. Ahmadis were not to pose as Muslims or in any manner outrage the religious sentiments of Muslims. These provisions were made by adding section 298B and 298C in the Pakistan Penal Code.
The provisions of Martial Law Ordinance XX are very vague and as a result practically anything can be covered under the word pose, as seen from the examples listed below. Any act that has any relation to Islam is now seen as criminal by the Pakistani legal system if performed by an Ahmadi Muslim. Many cases have been registered under Section 298C PPC for posing as a Muslim. The following acts brought criminal charges :
saying Assalamo Alaikum (peace be upon you) which is a common greeting and a part of social etiquette in any Muslim society;
issuing invitation cards with Bismillah ir-Rahman ir-Raheem (in the name of God, the Gracious the Merciful) printed on them;
inviting people for Iftar Dinner, which is a dinner after the breaking of the fast in the month of Ramadhan;
offering janaza (funeral) prayers;
displaying Kalima Tayyeba (the declaration that God is One and that MuhammadSAW is His Messenger) inside shops and houses;
wearing a ring bearing an inscription of a Quranic verse;
offering prayers inside a mosque;
reciting the Quran inside one's house;
retiring into one's own house for meditation in the last ten days of Ramadhan commonly known as Itekaf;
invoking blessings on the Holy Prophet MuhammadSAW in the traditional manner known as Darud.
Thus day to day religious acts, normally considered commendable in Islam, became penal offenses when performed by Ahmadi Muslims. The Human Rights Commission of Pakistan reported that:
Since the promolugation of anti-Ahmadiyya Ordinance of April 1984, 2,183 Ahmadis have been charged with violations of Sections 298-B and 298-C of the Ordinance, and 107 with violations of the so-called Blasphemy Law, under Section 295-C PPC.
(Quarterly newsletter, Vol.IV No.IV October 1993)
RULING OF FEDERAL SHARIAT COURT
Martial Law Ordinance XX was challenged before the Federal Shariat Court. The author of Mobashir reversed his previous opinions and argued that Ordinance XX was
and that subsequent to the Amendment of 1974 Ahmadi Muslims
should have refrained from directly or indirectly posing as Muslims but they obstinately perservered in trying the patience of Muslim Ummah by acting contrarily.
The Federal Shariat Court felt that the law can be used to limit this deceit:
the Ordinance, therefore restrains them from calling themselves what they are not; since they cannot be allowed to deceive anybody, especially the Muslim Ummah by passing off as Muslims.
and that since Ahmadi Muslims can
… call their place of worship by any other name and call the adherents of their religion to prayer by use of any other method
no fundamental rights were infringd by the Martial Law Ordinance:
(Mujeeb-ur-Rehman v. Pakistan, PLD 1984 FSC 136.)
THE EIGHTH AMENDMENT
Before ending martial law, the military dictator General Zia ensured that all Martial Law Ordinances, including Ordinance XX, were given legal sanction through the adoption of the Eighth Amendment to the Constitution.
OUTLAWING THE KALIMA
The Baluchistan High Court, in the case entitled Zaheer Uddin and others, held that wearing Kalima Tayyeba (the declaration that God is One and that MuhammadSAW is His Messenger) was an offense under 298C PPC. Kalima Tayyeba is the Muslim credo, and as such a cardinal principle of the religious faith of Ahmadis. These offenses were brought under 298C and the Quetta High Court justified such persecution.
In 1986, Section 295-C was added to the Penal Code which made defiling the name of the Holy Prophet of IslamSAW a criminal offense punishable by death or life imprisonment. The government is now seeking the death penalty for over 100 Ahmadi Muslims under this law.
DEATH PENALTY DEMANDED FOR RELIGIOUS OBSERVANCES
A new element was introduced by the Lahore High Court in the case entitled, Mirza Khurshid Ahmad and others vs. the Province of Punjab. Mirza Khurshid Ahmad had challenged the constitutionality of a prohibitory order passed by the District Magistrate of Jhang placing a ban on the Centenary Celebrations of the Ahmadiyya community. The court upheld the ban. Further, the Judge made observations to the effect that when Ahmadi Muslims recite Kalima Tayyeba, they commit an offense not under 298C PPC but under 295C PPC which is punishable with death.
As a result, many cases under 298C PPC were converted into cases under 295C PPC . In Nankana, a case based on the allegation of issuing a wedding invitation card , registered under 298C PPC was converted into a case under 295C PPC. When the matter was taken to the High Court, the Lahore High Court not only refused to grant bail, but also said that even when Ahmadi Muslims invoke blessings on the Holy Prophet MuhammadSAW by way of traditional Darud, they commit an offense under Section 295C PPC and bail cannot be allowed.
Similarly, in a case in Multan, the High Court sent a case under Section 298C PPC back to the Session Judge for trial under 295C PPC. In this manner the judgments of courts have extended the lesser offense of 298C into a more serious offense under 295C punishable with death.
DEATH PENALTY OFFENSES
The state has sought legal sanction to murder Ahmadi Muslims for following acts:
Writing an article about the Prophet Muhammad'sSAW life;
Giving the Azan (call to prayers);
Reciting the Darood Shareef (a prayer asking God to bless the Prophet SAW and his followers);
Saying bismillah (in the name of God) and other Qur'anic words;
Writing the Kalima (article of faith) on a place of worship;
Writing a Qur'anic verse on a wall;
Writing a Qur'anic verse meaning In the name of Allah, most Gracious, most Merciful, As salaam alaikom (May peace be upon you), and Inshallah (If God wills), on a wedding invitation;
Writing a magazine article and thus posing as a Muslim;
Using Islamic terminology in a registered letter;
Translating the Quran into a local language Serikee.
As already quoted, the Human Rights Commission of Pakistan noted in its quarterly newsletter (Vol.IV No.IV October 1993) that 107 Ahmadis had been charged under Section 295-C.
SUPREME COURT DECISION
On 3rd July 1993, the Supreme Court of Pakistan dismissed a set of eight appeals filed by Ahmadi Muslims. The question of law common to all these appeals was whether Martial Law Ordinance XX : The Anti Islamic Activities of the Qadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984, was ultra vires the constitution of Pakistan. These appeals had arisen out of proceedings initiated by or against certain individual Ahmadi Muslims.
The Ahmadiyya Community maintained that no legislative, judicial or executive authority in any country can decide, determine, or prescribe religious beliefs for an individual or a group.
At the outset of the proceeding, the attorney for the appellants, Retired Judge Fakhruddin Ibrahim, told the court that he had come not to seek a judgment as to whether Ahmadis should be called Muslims or not. What the appellants sought from the Court was the restoration of their basic rights guaranteed under article 20 of the Constitution of Pakistan. It was argued that the provisions of Ordinance XX of 1984 were:
The Supreme Court dismissed the appeals on the grounds that:
Ahmadis follow a new religion which cannot progress or expand on its own strength but has to rely on deception.
Ahmadis cannot "pass off" their religion as Islam and usurp Islamic terms and epithets.
Ahmadis are not forbidden to "coin" their own phrases and epithets etc.
The majority judgment argues that
"They (Ahmadis) have no right to use the epithets etc. and the Shaair-i-Islam (customs and rites of Islam) which are exclusive to Muslims and they (Ahmadis) have been rightly denied their use by law."
The majority judgment further holds that
"The legislation was, therefore, necessary which in any way does not interfere with the religious freedom of Ahmadis, for it only prohibits them from using those epithets etc. on which they have no claim of any nature. It does not prohibit them from coining their own."
This advice confirms the opinion of the International Commission of Jurists
"In effect, therefore, the religious freedom they are offered is for a religion which is not their own." (ICJ Report, 1987).
ATTITUDES OF RECENT GOVERNMENTS
BENAZIR BHUTTO’s FIRST TERM AS PM (1988-90)
In the People's Party Manifesto, a campaign promise to do away with the Eighth Amendment was made. This promise was not kept by Benazir Bhutto after forming the government.
In addition, the Pakistan People's Party under Benazir Bhutto pledged to establish and maintain peace and harmony in civil society and ensure security and protection of the life, honour and property of every citizen irrespective of his political affiliations, religion, caste, race and sex. (See Pakistan People's Party Manifesto , Dawn, Karachi, 14 October 1988.)
As will be shown in this report there was no change in the government's attitude towards Ahmadi Muslims nor decrease in its support of religious fanatics.
Benazir Bhutto's government did not change any laws affecting Ahmadi Muslims and in particular did not change the blasphemy law. As will be shown in this report, this amounts to threatening Ahmadi Muslims with death.
Further, the Minister of State for Religious Affairs, Mr. Bahadur Khan, issued instructions to the Provincial Chief Ministers, on 30 Janauary 1989, to vigourously implement all legal means of persecuting Ahmadi Muslims. (letter (D.O.) No: 6 (4) DDJ/89, dated 30.1.1989)
Attacks on Ahmadis
During Benazir Bhutto's first term as Prime Minister, Ahmadis were attacked in Chak Sikandar in April 1989 (see for instance, the HRCP report on Chak Sikandar) and Nankana Sahib in July 1989 (see for instance, the HRCP report on Nankana Sahib). The Human Rights Commission of Pakistan (HRCP) condemned the authorities for failing to protect or offer compensation to the victims.
NAWAZ SHARIF's TERM AS PM (1990-93)
Nawaz Sharif became PM in November, 1990. His government decided to introduced a column for religious designation on the national identity cards. The Minister for Religious and Minority Affairs, Abdul Sattar Khan Niazi, explained that this was intended to separate Ahmadis from other Muslims in Pakistan. (See The Frontier Post, 23 November, 1992.) Perhaps due to strong domestic and international pressure, the decision was not acted upon.
Amendment to 295-C
In 1992, by order of the Federal Shariat Court, 295-C PPC was amended to make death the only possible penalty for blasphemy . The National Assembly did not amend the PPC or appeal the decision of the Court in the time allowed by the decision. By order of the Court, failure to amend or appeal the decision in the alloted time resulted in the allowance for life imprisonment to be deemed struck. While the wording has not changed, death is now the mandatory penalty.
SECOND PPP TERM
Failure to Scrap Amendment Eight
After returning to power in October 1993, Benazir Bhutto again failed to scrap Amendment Eight. By December 1993 the press was reporting that the government had decided to abandon plans to scrap the Eighth Amendment and had decided to retain "Islamic" clauses in the Constitution. (See for instance Dawn, 3 December, 1993 statements of the President of Pakistan and the Minister of Justice and Parliamentary Affairs.)
Failure to Amend 295-C PPC
The PPP government announced at one point that it intended to make false accusations under the blasphemy law a punishable offense in order to curb abuses of the law. This was confirmed by the Minister of Justice and Parliamentary Affairs while accompanying PM Bhutto on an official visit to Ireland. The President of Germany while on a state visit was also informed of the government's intention to curb abuses under the blasphemy law. (See Nation, 6 April, 1995.) Mr Kamran Rizvi, the Prime Minister's Adviser on human rights, gave a similar understanding to the British Parliamentary delegation led by Mr Tom Cox, MP on 12 April, 1995. (See Nation, 13 April, 1995.)
The government quickly succumbed to threats by fanatics (including the offer of a reward for the murder of the Law Minister Iqbal Haider - see POLITICS AND BUSINESS, March 27, 1995, Naveed Farooqi) and announced that it had never intended to amend or change 295-C PPC.
After the international uproar over the death sentence given to a Christian child the government again proposed changes to the blasphemy law. The government stressed however, that the government only intended to make filing complaints more difficult by amending the law to include a prison term for those filing false complaints. Interior Minister Nasirullah Babar was quoted as saying that the government firmly believed that anyone guilty of blasphemy should be put to death (VOA gopher report, 5/27/95, NUMBER=2-179487, TITLE=PAK / STRIKE, BYLINE=JENNIFER GRIFFEN, DATELINE=ISLAMABAD).
Addressing the Human Rights Commission in Geneva, PM Bhutto pledged to overcome the philosophies of hate and confrontation which are being propagated by obscurantists and fascists.
This rhetoric has not been backed by actions. During the PM's term in office persecution has continued and has included:
assassinations and assaults
attacks on mosques and houses in Manshera, Mardan, Gujranwala, Karachi and Vehari
the demolition of a mosque by the Rawalpindi Development Authority
the stoning to death of an Ahmadi outside of a court house in Shabqadr with active police participation
continuing arrests including the laying of charges under the blasphemy act against Ahmadi journalists by the Deputy Commissioner of District Jhang
a continuing ban on religious gatherings that were held regularly before the imposition of Martial Law Ordinance XX
the desecration of graves of Ahmadi Muslims in Manshera and Kot Momin (Distt Sarghoda).
Justification of Persecution
The Pakistani government has continued to deny that Ahmadis suffer any discrimination in Pakistan. All actions against Ahmadis are justified on the basis of doctrinal deviation from the "true" Islam.
For example, a "Memorandum on the Ahmadiyya Question" has been circulated by the Ministry of Foreign Affairs. It contains gross distortions of Ahmadi beliefs in order to justify the measures taken against them. (See Ministry of Foreign Affairs No. UN(11)-2/29/93, 16 January 1994.) A Reuter's wire service report quoted Prime Minister Benazir Bhutto's support for maintaining the death penalty for blasphemy.
Assurance that Persecution will Continue
After the Supreme Court decision referred to above, a Review Petition was filed by Ahmadi Muslims. In response, a demonstration as held outside the Court by some leading ulema. The Minister of the Interior, Nasirullah Babar, met the demonstrators and assured them that the government would continue to enforce all discriminatory legislation and that the Supreme Court decision would not be revised. (See for instance, The Daily Jang, July 12, 1994.)
The alleged "unpopularity" of a belief is not a sound basis for the curtailing of basic rights under international law. (For instance, see the comments of Dr. Karen Parker.) In a letter addressed to the Chief Justice of Pakistan, the Lawyer's Committee for Human Rights stated:
to sanction Ordinance XX and its discriminatory impact and religious restrictions is to violate a fundamental and universally recognized standard of human rights.
The LCHR further reminded the Chief Justice that:
your court has an obligation to render a judgment free of religious intolerance and animosity against Ahmadis.
Lord Avebury, the Chairman of the British Parliamentary Human Rights Group, in a letter to the Pakistani High Commissioner in London, pointed out the logical extension of the Supreme Court's excuse that law and order would be threatened if Ahmadi Muslims were allowed to carry out their religious obligations as prescribed by Islam:
… in India the Bhartiya Janata Party may one day suggest that restrictions be placed on Muslims because of the threat to public order posed by the exercise of their religion.
The judgment denies Ahmadi Muslims the religious practices of Islam which have earlier been declared by the courts to be their religious practices and effectively entrenches the persecution of Ahmadi Muslims in Pakistani law.