Religious Persecution of Ahmadiyya Muslim Community
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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
B. Company and Trademark Laws Do Not Prohibit Ahmadis from Muslim Practices.

Pakistani Courts frequently cite the laws of other common law jurisdictions, particularly the United States, Great Britain, Canada and Australia. *94 Given Pakistan's “Anglo-Islamic” and post-colonial common law heritage, the Pakistan Supreme Court's respect for Anglo-American law is not surprising. *95 The Pakistan Court relied on the company laws of Britain, India and Pakistan and trademark law from the United States, to justify prohibitingAhmadis from using Islamic epithets or practices in the exercise of their faith. *96 According to the Pakistan Court, intentionally using trade names, trade marks, property marks or description of others in order to make [third parties believe] that they belong to the user thereof amounts to an offence and not only the perpetrator can be imprisoned and fined but damages can be recovered and [an] injunction to restrain him issued.... For example, the Coca Cola Company will not permit anyone to sell, even a few ounces of his own product in his own bottles or other receptacles, marked Coca Cola, even though its price may be a few cents.... The principles involved are: do not deceive and do not violate the property rights of others.... However, in this ideological State, the [Ahmadis], who are non-Muslims want to pass off their faith as Islam? ...[A] Muslim believer ... will not tolerate a Government which is not prepared to save him of such deceptions and forgeries. *97

The Court urged Ahmadis to “coin their own epithets”. *98 The Court proceeded on the erroneous assumption that there is a legal parallel between religion and trade. The Court assumed that there can be a copyright on God and that religion can be treated as merchandise, ignoring the obvious differences between religion and trade. *99 United States case law belies the fallacy of the Pakistan Court's reasoning, because it supports the position that religious prayers and names cannot be trademarked. In McDaniel v. Mirza Ahmad Sohrab, *100 the plaintiffs asserted that the defendants did not have the right to represent the Baha'i faith through their publishing, their meetings, or through their commercial enterprises without authorization from the recognized religious leadership, namely, the National Spiritual Assembly. *101 The plaintiffs alleged that any representation or solicitation in the name of the Baha'i faith by defendants was a misrepresentation to the public that such use was officially authorized and sanctioned. *102 The McDaniel court held that plaintiffs had no cause of action against defendants and stated, “the plaintiffs have no right to a monopoly of the name of a religion. The defendants, who purport to be members of the same religion, have an equal right to use the name of the religion in connection with their own meetings, lectures, classes and other activities.” *103 Defendants were thus permitted the “absolute right” to practice their faith and conduct their religious meetings. *104 The McDaniel court also held the Baha'i defendants did not intend to deceive the public into believing their acts were affiliated with those of the plaintiffs. *105

According to Christian Science Board of Directors of First Church of Christ v. Evans, *106 religious names and terms are “generic” and thus not subject to trademark law. *107 Determining the generic nature of terms is a matter of common sense. *108 In Christian Science Board, where Christian Science is purported to be practiced in a church, as a matter of common sense, that church will call itself a "Christian Science Church" and those who practice therein are Christian Scientists. *109

Ahmadis purport to be Muslims and publish literature and conduct meetings in the name of the religion of Islam. The state of Pakistan claims Ahmadis have no right to represent themselves as Muslims, as they have not received authorization to do so from either the government or the ulema. Like the defendants in McDaniel, Ahmadis are charged with misleading and defrauding the public through their representations and solicitations in the name of Islam. According to McDaniel, Ahmadis, who purport to be members of the same religion (Islam) as the Pakistani majority have an equal right to use the name of their religion, to call themselves Muslims and to conduct their meetings and gatherings in their religion's name.

Ahmadis are also charged with deceiving the public through their representation as Muslims. However, McDaniel shows that acts of faith or religious representations do not per se require official sanctioning by an organization. Therefore, one may freely purport to be Muslim or represent himself or herself as Islamic without need for sanction by some religious authority. Ahmadis may thus represent themselves as Muslims and purport to be Islamic and not be charged with deception upon the public. In addition, under Christian Science Board, the terms “Islam”, “Muslim” and other Islamic terms and prayers are generic. Therefore, logic dictates that a place where Islam is purportedly practiced is a “Mosque” and those praying therein are “Muslims”. According to Christian Science Board, Ahmadis are free to use the name of Islam and Islamic terms and to call themselves Muslims because such names and terms are generic and thus not subject to trademark law. *110 United States law does not support the proposition that religion and religious terms can be trademarked. Religions are not corporations and do not register their prayers as trade names or trademarks. Therefore, the Pakistan Court erred in analogizing between company and trademark law on the one hand, and religion on the other. *111 In addition, the Pakistan Court's use of United States case law regarding religious free exercise is, at best, misguided.


Rahman Interview, supra note 4. The law reviews and journals of U.S. law schools are often read by Pakistani judges and lawyers. Id.

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Belder & Khan, supra note 22, at 536. English is one of Pakistan's official languages. Rahman Interview, supra note 4. Pakistan's other official language is Urdu, but all court documentation and litigation are recorded and conducted in English and the Pakistan Constitution is written in English. Id. The Zaheeruddin decision is written in English.
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Zaheeruddin, 1993 S.C.M.R. at 1752-58.
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Id. at 1753-54. See infra Appendix I (providing the Islamic epithets enumerated in Section 298B of the Pakistan Penal Code).
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Zaheeruddin, 1993 S.C.M.R. at 1779. Ahmadis cannot "coin their own epithets" because traditional Islamic epithets are crucial for the sanctity of Ahmadi faith. Islamic epithets are the only epithets in which Ahmadis believe and to which they adhere. See supra Part I and note 86 and accompanying text. The Pakistan Court effectively told a religious community devoted to particular practices and epithets to abandon them and construct new ones. The ability of a court to instruct and dictate the actions and beliefs of a religious group is indeed questionable. See infra Part II, Section C (analyzing United States case law regarding government and court involvement with religious practices).
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The differences between the two are akin to the differences between the spiritual and the mundane, the conceptual and the tangible, the sublime and profane, the worldly and the other worldly. Crim. App. No. 150 of 1989, In the Supreme Court of Pakistan (Civil Review Jurisdiction), 9-10, Aug. 8, 1993 [hereinafter Criminal Appeal 150].

No jurisdiction cited in the ‘Ahmadi case’ treats restrictions on commercial speech in the same way as restrictions relating to freedom of religion. None of these jurisdictions, as indicated above, would allow the restrictions on religious speech allowed by Ordinance XX. Citing these commercial speech limitations appears to be an attempt by the majority to appear learned. The result is the opposite - the justices have regrettably but severely jeopardized their credibility in a way that would be comic if the potential outcome in Pakistan were not so tragic.

Karen Parker, Religious Persecution in Pakistan: The Ahmadi Case at the Supreme Court 10 (1993).

The Pakistan Court has not ... kept in view that:

(i) religion is not a commercially valuable property nor is Islam a registered company.

(ii) Goods and material objects have been considered at par with religion, faith, belief and ‘Shaa'ir’ [Islamic custom] which is a universal heritage and a part of beneficent Divine dispensation. Reference to trade mark and Company law is entirely misplaced.

Criminal Appeal 150, at 9.
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27 N.Y.S.2d 525 (1941). In McDaniel, members of the National Spiritual Assembly and Trustees of the Baha'is, an organization which claimed to be the authorized representatives of members of the Baha'i faith living in the United States and Canada, alleged defendants created the erroneous impression they were connected with and were authorized to represent the Baha'i religion. Id. at 526. Defendants published Baha'i books and conducted Baha'i meetings, social gatherings and lectures without authorization from the National Spiritual Assembly. Id. In addition, defendants opened a bookstore named "Baha'i Book Shop." Id. at 527.
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520 A.2d 1347 (N.J. 1987). In Christian Science Board, the New Jersey Supreme Court held that a New Jersey church, not affiliated with the Christian Science Church based in Boston, but also bearing the name "Christian Science Church," was free to name themselves as such. Id. at 1349-52.
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According to the New Jersey Court, the term "Christian Science" is "generic" and thus cannot be trademarked. Id. at 1353.
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Id. at 1352.
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Other U.S cases support the Ahmadi position that Islam and Islamic terms and prayers cannot be trademarked. See, e.g., General Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventist Congregational Church, 887 F.2d 228 (9th Cir. 1989) (holding “Seventh-Day Adventist” is a generic term whereby unauthorized use of the term could not deceive or confuse the public); Board of Provincial Elders of Southern Province of Moravian Church v. Jones, 159 S.E.2d 545 (N.C. 1968) (holding defendant was free to use the name “Moravian” in connection with any religious or church activity despite non-affiliation with plaintiffs); New Thought Church v. Chapin, 144 N.Y.S. 1026 (N.Y. App. Div. 1913) (holding that the “New Thought Church” could not enjoin defendants from conducting services under the name “New Thought Services”).
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The Pakistan Supreme Court asserted Ahmadis may not usurp Islamic beliefs for adoption into their faith, failing to realize that by their own logic, Muslims could be accused of usurpation of the monotheistic belief held by other religions. For example, the idea that “There is no god but Allah (God)” is a monotheistic notion that precedes Islam in both the Christian and Jewish faiths. The author wonders if the Pakistan Court Justices would assert that the Prophet Muhammad usurped the monotheistic beliefs of Christianity and Judaism and if Christian and Jewish dominated countries could legitimately forbid Muslims from making monotheistic declarations pursuant to a copyright or trademark law.
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