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Home Critical Analysis/Archives Enforced Apostasy: …
Enforced Apostasy: Zaheeruddin v. State and the Official Persecution of the Ahmadiyya Community in Pakistan

III. The Decision in Zaheeruddin v. State
A. The Pakistan Court Considers Ahmadis Non-Muslims.

Article 260(3) of the Pakistan Constitution provides that Ahmadis are non-Muslims. *83 Article 260(3)(a) of the Pakistan Constitution defines Muslim:

Muslim means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified Prophethood of Muhammad (peace be upon him), the last of the prophets and does not believe or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or any description whatsoever, after Muhammad (peace be upon him) *84

Ahmadis believe in the oneness of Allah and that the Prophet Muhammad was the last of the prophets - the most perfect of all the prophets and the last law-bearing prophet. *85 Support for the latter portion of the definition of Muslim cannot be found in the Holy Quran or in the traditions of the Prophet Muhammad. The latter portion of the constitutional definition of a Muslim was created by the Pakistan Government to exclude Ahmadis and appease mullahs. *86

According to the Holy Quran, “only those are Believers who have believed in Allah and His Messenger, and have never since doubted, but have striven with their belongings and their persons in the cause of Allah: Such are the sincere ones.” *87 The Holy Quran's definition of a Muslim applies to Ahmadis and their confidence in Allah. *88 The Pakistan Government wrongly defined Muslim without referring to the Holy Quran, from which Islamic law is principally derived. *89

The conviction that Ahmadis are non-Muslims pervades the Pakistan Court's decision in Zaheeruddin. *90 Therefore, any Ahmadis representing themselves as Muslims or practicing their faith as Islam constitutes fraud and misrepresentation. *91 Ahmadis regard themselves as true Muslims who are responsible for the revival of the Islamic faith. *92 The Pakistan Court found an Ahmadi intent to deceive despite the fact that Ahmadis have historically and consistently represented themselves as Muslims. The Pakistan Court imputed a negative intent to acts which are not per se anti-social, thereby focusing the attention not on the act, but on the actor. *93 Ahmadis are criminals because they are Ahmadis, not because they commit any acts which, by themselves, pose any danger to society.

Pak Const., art. 260(3)(b). “The Ahmadis have been declared non-Muslims by Article 260(3)(b) of the Constitution.” Zaheeruddin, 1993 S.C.M.R. at 1755. See supra notes 46-48 and accompanying text. See infra note 206 (indicating the Pakistan Court's non-usage of this definition of Muslim in the Zaheeruddin opinion).
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Pak. Const., art. 260(3)(a) (emphasis added). Article 260(3)(b) goes on to explicitly state that Ahmadis, and other religious groups are non-Muslims. Pak. Const., art. 260(3)(b). Furthermore, “non-Muslim” means a person who is not a Muslim and includes a person belonging to the Christians, Hindus, Sikh, Budhist or parsi community, a person of the Quadiani Group or Lahori Group (who call themselves “Ahmadis” or by any other name) or a Bahai, and a person belonging to any of the Scheduled Castes. Pak. Const., art. 260(3)(b) (emphasis added).

Since Ahmadis are non-Muslims in Pakistan, the Saudi Arabian government does not permit them to perform the Hajj (holy pilgrimage to Mecca), one of the five essential tenets of Islam. Adamson, supra note 21, at 87.
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See supra Part I (explaining Ahmadi beliefs).
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Maulana Maududi's definition of a Muslim given at the Court of Inquiry in 1953 is interesting to note:
Please define a Muslim?
A. [Maududi]- A person is a Muslim if he believes (1) in tauheed [Oneness of God], (2) in all the prophets [ambiya], (3) all the books revealed by God, (4) in mala'ika [angels], and (5) yaum-ul-akhira [the Day of Judgement].
Is a mere profession of belief in these articles sufficient to entitle a man to call himself a Musalman [Muslim] and to be treated as a Musalman in an Islamic State?
If a person says that he believes in all these things, does anyone have a right to question the existence of his belief?
The five requisites that I have mentioned above are fundamental and any alteration in any one of these articles will take him out of the pale of Islam.
Report of the Court of Inquiry, supra note 24, at 215-16. See supra note 32 and accompanying text for a discussion of Maulana Maududi's beliefs.

Ahmadis do not disagree with Maududi's definition of a Muslim. See Ahmad, supra note 49, at 6-11.

The summary and essence of our faith is that there is none worthy of worship except Allah and Muhammed is the messenger of Allah. Our belief that we possess in this life and with which, through the favour of God Almighty, we shall pass on to the next life, is that our lord and master, Muhammed, the chosen one, peace be upon him, is the Khatamal Anbiyya [Seal of the Prophets] and the best of Messengers, at whose hands the faith was perfected and the bounty was completed through which by treading the straight path, a person can reach God Almighty.

Mirza Ghulam Ahmad, Izalah a Uham 69 (1891), cited in Memon, supra note 17, at 266. Mirza Ghulam Ahmad instructed his followers to “have firm faith in all Messengers of Allah and revealed Books which have been authenticated by the Holy Quran.” Mirza Ghulam Ahmad, Ayyamus Sulh 88 (Zia-ul-Islam 1899), cited in Memon, supra note 17, at 267. Ahmad further asserted “we believe that angels [mala'ika] are a reality, that Resurrection is a reality and that the Day of Judgement, [yaum-ul-akhira] is a reality….” Id.

As Ahmadi beliefs satisfy the definition given by Maulana Maududi, in order to exclude them, the Government added an aberration to the definition of Muslim. See supra note 84 (providing the constitutional definition of Muslim and referring to the italicized portion).
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Holy Quran (Ali), supra note 17, at 49:15 (some capitalization omitted). For, Believers [Muslims or Momins] are those who, when Allah is mentioned, [feel] a tremor in their hearts, and when they hear His revelations rehearsed, find their faith strengthened, and put (all) their trust in their Lord; Who establish regular prayers and spend (freely) out of the gifts We have given them for sustenance: Such in truth are the Believers: They have grades of dignity with their Lord, and forgiveness, and generous sustenance…. Id. at 8:2-4. “And say not to any one who offers you a salutation [of peace]: ‘Thou art none of a Believer!’ ” Id. at 4:94 (some capitalization omitted).
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“The Ahmadis … have a remarkable confidence in the reality and providence of God. They take it for granted that God intervenes, even in their everyday affairs, to bring good issue out of their dilemmas in response to their trust and fidelity in Him.” Gualtieri, supra note 19, at 84. “The starkness of Ahmadi confidence in God's active guidance is evident in all strata of their membership.” Id. at 86.
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See infra Part III, Section F (demonstrating the nonapplicability of Islamic law).
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See Zaheeruddin, 1993 S.C.M.R. at 1760-61, 1771.
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Id. at 1752-58, 1775-79.
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See supra Part I.

The Ahmadis … regard their movement as a reformation that repristinates the tradition of the Prophet Muhammad and brings about true Islam. They would hardly understand themselves as heterodox in any normative sense…. On the evidence of Ahmadi self-definition … the presentation of themselves to the world as Muslims is an integral expression of their faith, that is, their most basic perceptions, values, and commitments.

Gualtieri, supra note 19, at 22, 32.

[Pakistan's laws against Ahmadis amounts], in effect, to enforced apostasy, to the denial of their self-identity, and the violation of the particular tenets and practices of their religious tradition. The Ahmadis cannot deny their Muslim identity because they live under God's revelation in the Qur'an which explicitly calls the name of their revealed religion, Islam [Holy Quran, 3:20]. This they are not prepared to do on pain of suffering and death.

Id. at 34.

Mirza Ghulam Ahmad saw himself as having been appointed by God for the revival and support of the true faith of Islam and his followers continue to worship Allah in the same way as other Muslims, with the faithful being summoned to prayer five times a day and the same rites and rituals being followed. However, despite seeing themselves as part of the broader Islamic movement and having been treated as such under Pakistan's constitutions since independence, other Muslims have repeatedly declared the Ahmadis to be heretics.

Petren et. al., supra note 22, at 103.
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Such an imputation is problematic because one cannot rebut it. Ahmadis, when they practice their faith and behave to the best of their intentions as Muslims, cannot rebut any finding of negative intent. See Zaheeruddin, 1993 S.C.M.R. at 1746-47 (Justice Rahman dissenting) (recognizing the sincerity and conviction of Ahmadi beliefs). When a Sunni or other type of Muslim engages in the same acts, no negative intent is read into their actions, even though the actions are the same. For example, for the Ahmadi, the calling of the azan (call to prayer) is a state offense, but for a Sunni or any other type of Muslim, it is not. What becomes at issue is the actor, not the act.

The crucial charge of posing as a Muslim is a curious one indeed. It shifts the focus from external acts upon which restraining laws normally concentrate onto inward motives so that the judicial authority presumes to know whether the same external acts are prompted by genuine Islamic allegiance or by another loyalty which is defined as posing. For example, a Sunni Muslim gives the azan, the call to prayer, and so does the Ahmadi Muslim. In the first case, the azan is judged to be legally appropriate and socially correct; in the second case, the azan is judged to be inauthentic, condemning the perpetrator to the charge of posing.

Gualtieri, supra note 19, at 28.

The most sinister feature of Section 298C is that … persons are to be charged and tried not on the basis of alleged anti-social acts, offensive even as the definition of these acts might be, such as calling one's place of worship a mosque. Rather, one is to be tried on the basis of one's inner state of mind or intentions, whether one deliberately intends to mislead or deceive other people with respect to his/her identity as a Muslim.

Id. See United States v. Ballard, 322 U.S. 78 (1944) (holding that inquiries into the truth or falsity of asserted religious beliefs are prohibited under the free exercise clause of the United States Constitution).
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