http://www.ThePersecution.org/ Religious Persecution of Ahmadiyya Muslim Community
Recommend UsEmail this PagePersecution News RSS feedeGazetteAlislam.org Blog
Introduction & Updates
<< ... Worldwide ... >>
Monthly Newsreports
Media Reports
Press Releases
Facts & Figures
Individual Case Reports
Pakistan and Ahmadis
Critical Analysis/Archives
Persecution - In Pictures
United Nations, HCHR
Amnesty International
H.R.C.P.
US States Department
USSD C.I.R.F
Urdu Section
Feedback/Site Tools
Related Links
Loading


By Tayyba Seema Ahmed
Chapter 1: Introduction
Chapter 2: Nineteenth Century British India
Chapter 3: Jihad - Origins, Concepts and Interpretations
Chapter 4: The Essence of Jihad
Chatper 5: Introduction to the Translation
Chapter 6: Jihad and the British Government
US$3.99 [Order]
Author: Hadhrat Mirza Bashir-ud-Din Mahmood Ahmad (ra), The 2nd Head of Ahmadiyya Muslim Community.
Description: The purpose of this book is to convey an authentic account of the beliefs and doctrines of the Movement and the purpose of its establishment. It also refutes the false charges that were made by the orthodox divines and contradicts the baseless allegations made against the Movement. (read it online)
US$15.00 [Order]
Author: Hadhrat Mirza Tahir Ahmad
Description: This book is a brief introduction to the five fundamental articles of the Islamic faith. The articles of faith, which all Muslims believe in, are: Unity of God, Angels, Prophets, Holy Books and Life after Death. Throughout the book, the author emphasises the areas of similarities between Islam and other religions. He shows how religious teachings evolved through the ages culminating in the complete, perfect and universal teachings of Islam. (read it online)
US$3.00 [Order]

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
D. Ordinance XX Should Have Been Found Void For Vagueness.

According to Ordinance XX, one “who directly or indirectly, poses himself as a Muslim” has committed a criminal offense. *186 The offense of posing is vague, thus making Ordinance XX void under Pakistani and U.S. law. *187 The Pakistan Court stated that Ordinance XX is not vague because the Pakistan Constitution and Islamic law “seem to be precise and clear” and therefore “the law is not vague in any juristic sense.” *188 However, the Appellants in Zaheeruddin were asserting the vagueness of Ordinance XX, not Islamic law or the Pakistan Constitution. *189 Answering Ordinance XX's vagueness by asserting the clarity of Islamic Law *190 and the Pakistan Constitution does not address the problems with the language of Ordinance XX.

When the Pakistan Court did address the language of Ordinance XX, it held it to be constitutional, finding that “posing” as a Muslim is not a vague offense. The Pakistan Court defined “pose” to mean “to claim or propound.” *191 The Court claims it found its definition of “pose” from “the dictionary” but did not name which one. *192 Funk & Wagnall's Dictionary defines “pose” in many possible ways:

To cause to assume an attitude … as to pose as a model; … to state as a proposition; posit; lay down, affirm; … to conduct; bear as to pose oneself with dignity … to put; place; also, to suppose … to assume a pose; … attitudinize; posture; … to puzzle or confuse by propounding a question hard to answer … to examine or question closely… an attitude or posture to be copied in a portrait or statue; as the pose of the head. *193

According to some of these latter definitions, if Ahmadis assume the attitude that they are Muslims, conduct themselves like Muslims or even look like Muslims, they are criminally liable. *194 Ahmadis are, in fact, prosecuted pursuant to Ordinance XX, for behaving like Muslims. *195 If Ahmadis are to be charged with acting like Muslims, then Ahmadis can “pose” as Muslims in innumerable ways.

An Ahmadi can pose simply by following the sunna or traditions of the Prophet Muhammad. *196 The following examples indicate the wide range of possible applications and interpretations of Ordinance XX. The Prophet Muhammad kept a beard, thus providing divine blessing for a Muslim male who also keeps a beard. *197 If an Ahmadi follows the sunna and keeps a beard, he is criminally liable because he looks like a Muslim. Islam prohibits Muslims from eating pork. *198 If an Ahmadi refrains from pork consumption, he or she is assuming the attitude of a Muslim and is thus criminally liable. Muslim women observe purdah (the practice of wearing veils to cover their heads and bodies). *199 If an Ahmadi woman wears a veil she is taking on the appearance of a Muslim and is thus posing. Any resemblance of an Ahmadi action to a tradition of the Prophet Muhammad or an Islamic teaching exposes that person to criminal penalties. Ordinance XX makes Ahmadi daily life a penal offense and thus makes all Ahmadis potentially guilty of violating this ordinance. *200

Ahmadis cannot know what conduct is lawful for them because every aspect of their lives can be considered a criminal offense. *201 An Ahmadi is further left in the dark as to the lawfulness of his or her actions because Ordinance XX states if an Ahmadi poses as a Muslim “or in any manner whatsoever outrages the religious feelings of Muslims, [he or she] shall be punished.” *202 Ordinance XX leaves the decision of the lawfulness of an Ahmadi's conduct to the subjective determination of the authorities and anyone Pakistan law considers Muslim. *203 Ahmadis are, therefore, not on notice as to which actions are lawful until an “offended” Muslim files a complaint with the authorities. Ordinance XX was worded in such a broad and vague manner that an Ahmadi cannot conduct any facet of his or her life without “guesswork” and fear of criminal prosecution. *204


186
See infra Appendix I. Despite the word "his" in Ordinance XX, women have also been charged pursuant to the statute. Rahman Interview, supra note 4.
Back to Article
187
Pakistan has absorbed the United States vagueness doctrine. The Pakistan Court relied solely on United States definitions and cases in its discussion of vagueness. See Zaheeruddin, 1993 S.C.M.R. at 1770-72. In Zaheeruddin, the Pakistan Court quoted Black's Law Dictionary when it defined “vague.” Zaheeruddin, 1993 S.C.M.R. at 1770. Vague means “indefinite; uncertain; not susceptible of being understood. Under this principle, a law which does not fairly inform a person of what is commanded or prohibited, is unconstitutional, being violative of ‘due process’.” Id.; see Black's Law Dictionary 1549 (6th ed. 1990).

There may be no dispute about the proposition that if a law goes beyond the frontiers that are fixed for a legislature or where a law infringes a fundamental right, or a law, particularly, criminal is vague, uncertain or broad, it must be struck down as a void law…

Zaheeruddin, 1993 S.C.M.R. at 1770. In order for a law to be vague:

the constituents of the offence, as given in the law are so indefinite that [the] line between innocent and condemned conduct cannot be drawn or there are attendant dangers of arbitrary and discriminatory enforcement or that it is so vague on the face of it that common man must necessarily guess at its meaning and differ as to its application.

Id. at 1771.

The Pakistan Court cited Lanzetta v. New Jersey, 306 U.S. 451 (1939) and Connally v. General Construction Co., 269 U.S. 385 (1926). Zaheeruddin, 1993 S.C.M.R. at 1772. The Court applied Lanzetta to show “that vagueness is a Constitutional vice” and Connally to show that “as a matter of due process, a law is void on the face of it, if it is so vague that persons ‘of common intelligence must necessarily guess at its meaning and differ as to its application’.” Id. at 1771 (quoting Connally, 269 U.S. at 391; citing Lanzetta, 306 U.S. at 458). “Such vagueness occurs when a legislature states its proscriptions in terms so indefinite that [the] line between innocent and condemned conduct becomes a matter of guesswork …” Zaheeruddin, 1993 S.C.M.R. at 1772.
Back to Article
188
Zaheeruddin, 1993 S.C.M.R. at 1772.
Back to Article
189
Although Ahmadis do not agree with Article 260(3) of the Pakistan Constitution, they were not challenging it in this case.
Back to Article
190
The Pakistan Court stated Islamic Law was clear on the issues of the case but did not cite any support. They did not cite support because there is none. See infra Part III, Section F.
Back to Article
191
Zaheeruddin, 1993 S.C.M.R. at 1771.
Back to Article
192
Id. at 1770.
Back to Article
193
Funk & Wagnall's New Standard Dictionary of the English Language 1936 (1959).
Back to Article
194
The Pakistan Court gave support for this definition of "pose" by referring to the India Penal Code 140, 170, 171, 171D, 205, 229 and 416 regarding the “offense of personation … which is mostly the same as” Ordinance XX. Zaheeruddin, 1993 S.C.M.R. at 1771-72. The Indian offenses mentioned concerned the offense of impersonating soldiers, airmen, sailors, public servants, voters and jurors; assuming a false character; or “cheating by personation.” Id. The Pakistan Court essentially stated that if an Ahmadi “wears any garb or carries any token resembling any garb or token used by a Muslim, the Ahmadi ‘shall be punished’.” Id. at 1771 (citing India Penal Code 140).
Back to Article
195
Ahmadis have been charged pursuant to Ordinance XX for putting Quranic inscriptions on invitation cards; for praying in the Islamic fashion; for reciting the Holy Quran; and for simply saying the greeting of “salaam”, a greeting as common and instinctive as “hello” and “good day” is in the West. Implementation of the Declaration, supra note 14, at 81; Rahman Interview, supra note 4. Ahmadis are thus charged for more than “claiming” or “propounding” to be Muslims.
Back to Article
196
The sunna are the recorded traditions of the Prophet Muhammad and are one of the sources of Islamic law. Netton, supra note 17, at 238. Sunni Muslims are Muslims who claim to adhere to the sunna. Id.
Back to Article
197
See supra note 196.
Back to Article
198
Holy Quran (Ali), supra note 17, at 2:174.
Back to Article
199
Purdah means “veil” in Arabic. Netton, supra note 17, at 199-200.
Back to Article
200
Criminal Appeal 150, supra note 99, at 4-5.
Back to Article
201
See supra notes 196-200 and accompanying text. Ordinance XX is also overbroad. The Pakistan Court, however, did not fully address the question of overbreadth. Overbreadth was mentioned when the Court made reference to Lanzetta. Zaheeruddin, 1993 S.C.M.R. at 1772. The Pakistan Court stated that, according to Lanzetta, overbreadth is a concept distinct from vagueness “in that an overbroad law need lack neither clarity nor precision.” Id. (citing Lanzetta, 306 U.S. at 457). Ordinance XX is overbroad as it covers and makes liable every facet of an Ahmadi's life.
Back to Article
202
See infra Appendix I (emphasis added). Stating that Ahmadis are criminally liable if they outrage the feelings of Muslims “in any manner whatsoever” further demonstrates Ordinance XX's overbreadth.
Back to Article
203
Forte, supra note 23, at 58.
Back to Article
204
See supra note 187.

Justice Rahman, in his dissent, found the offense of “posing” as a Muslim to be vague because ascertaining the intent to pose requires mind-reading and the ability of one “to reach the inner recesses of the mind” which is “beyond the scope of the law.” Zaheeruddin, 1993 S.C.M.R. at 1748-49 (Rahman, J., dissenting).

For an Ahmadi to wear a badge having “Kalma Tayyaba” inscribed on it [There is no God but Allah and Muhammad is the Messenger of Allah] does not per se amount to outraging the feelings of Muslims nor does it amount to his posing as a Muslim. It was admitted and is common knowledge that those who are Muslim do not in order to prove their religion of Islam wear badges of the “Kalma Tayyaba”. This is done by those who are Constitutionally classified as non-Muslims. Therefore, there should be no element of posing or representation by non-Muslims by wearing the “Kalma-Tayyaba” as Muslims in the existing situation.

Id. at 1748 (Rahman, J., dissenting). A curious line of reasoning was taken by the dissenting Justice. Justice Rahman stated that only non-Muslims wear the Kalima Tayyaba. “Muslims” perhaps fear being seen as Ahmadis. The author queries if “non-Muslims” are professing the Kalima Tayyaba as their faith and “Muslims” are not, then who are the real Muslims? If Ahmadis are the only people in the entire State of Pakistan bearing and boldly professing the Kalima Tayyaba, the faith and conviction of the “Muslim” majority is to be questioned.
Back to Article
Previous -> III. C. The Pakistan Court Misused United States Freedom of Religion Precedent. Table of Contents Top of Page Next - III. E. The Pakistan Court Attributed False Statements to Mirza Ghulam Ahmad