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Home Critical Analysis/Archives Report on the Situation of Ahmadi Muslims in Pakistan
Report on the Situation of Ahmadi Muslims in Pakistan

OPINIONS ON SUPREME COURT JUDGMENT
“… 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.”
Dr. Karen Parker

DR. KAREN PARKER

footnotes in original given in square brackets - SS

On July 3, 1993, the Supreme Court of Pakistan decided Mujib-ur-Rehman Dard v. Pakistan (the Ahmadi case)…the Court refused to find Ordinance XX of 1984, which severely penalizes Ahmadi Muslims for holding their religious beliefs and practicing their religion in violation of either Pakistan's Constitution or international human rights law…five criminal defendants… were returned to jail for the remainder of their sentences imposed for wearing a religious badge containing the Kalima Tayyaba. [The Kalima Tayyaba, a pronouncement of faith in Allah and Muhammad as His messenger is cardinal to Muslims.]

freedom of religion is a non-derogable right
Under international standards, freedom of religion is considered a non-derogable right. [International Covenant, article 4. "The freedom to hold religious beliefs and opinions is absolute." Braunfeld v. Brown, 366 U.S. 599 (1961)] International human rights standards also protect religious groups from advocacy of "hatred that constitutes incitement to discrimination, hostility or violence." [International Covenant, Article 20]

The three international instruments safeguarding religious freedoms all provide for some limitations on the right to manifest a belief…when "necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others" [Religious Declaration, Article 1….] Limitations may not be imposed in order to provide a theological preference limiting rights of one group over another…

It is patently obvious that Ordinance XX violates these international standards because it penalizes Ahmadi Muslims for believing they are Muslim and for worshiping and assembling as they wish…It denies to them even the language and terminology of their religion…it clearly subjects Ahmadi Muslims to persecution…

In adopting its resolution 1985/21, the UN Sub-Commission had clearly rejected justifications presented by the government of Pakistan … The real gravamen of the Pakistani position at that time was that Ahmadis offend because Ahmadis consider themselves Muslim, which of course, they have the right to do under international standards. In defending Ordinance XX, then President General Zia-ul-Haq told this author "Ahmadis offend me because they consider themselves Muslim … Ordinance XX may violate human rights but I don't care." [Author's interview with General Mohammad Zia-ul-Haq, in Rawalpindi at Army House (May 5, 1986)]

Laws that discriminate are instigators of religious-based violence
Laws and acts that discriminate … are themselves instigators of religious-based violence. As stated Mrs. Elizabeth Odio Benito in her Study of the Current Dimensions of the Problems of Intolerance and of Discrimination on Grounds of Religion and Belief, [U.N. Doc. E/CN.4/Sub.2/1987/26.] intolerance … can lead to "stirring up of hatred against or persecution of individuals or groups of a different religion." … and identifies Pakistan's treatment of Ahmadi Muslims … as one example of government action arising from prejudice and bigotry that had given rise to outright hatred, persecution, and repression.

Pakistan's Constitution protects the right … to "profess, practice and propagate [] religion" [Const. Pakistan, Art. 20 (a).] and the right of religious groups "to establish, maintain and manage its religious institutions." [Id., Art. 20 (b). Article 20 contains a limitation provision similar to provisions in the international instruments.] … many hoped that the Supreme Court would restore basic rights of Ahmadi Muslims by finding Ordinance XX unconstitutional light of Article 20 of the Constitution.

ruling far outside acceptable bounds
The majority … issued a ruling that is far outside acceptable bounds and sullies the judicial history of Pakistan. This majority chose to ignore the Pakistani Constitution as well as international human rights law standards of freedom of religion and to instead deliberate on whether or not the Ahmadi Muslims were theologically Muslim … According to the majority analysis, Ahmadis are only entitled to their religious belief that they are Muslim and the practices they carry out in their belief that they are Muslim if theologically correct. If not … the Ahmadis' right to believe themselves Muslim may be curtailed and their right to live as a Muslim may be prohibited. The bulk of the majority case … was devoted to showing that Ahmadi Muslims are not theologically correct…

The majority then provides a series of decisions from other jurisdictions on … limitations to religious practices … Not one of these decisions … addresses the types of limitations and criminalization of religious beliefs found in Ordinance XX and cannot be properly cited to defend such limitations. Indeed, if these cases were correctly read, they would all support a finding that Ordinance XX, by criminalizing prayer, religious terminology and the inherently benign practice at issue in this case (wearing the Kalima Tayyaba), clearly provides for unacceptable limitations …

ominous ridicule
More distressing than the impossibly flawed reasoning, however, is the ominous ridicule of Ahmadi beliefs and individual Ahmadis in the opinion. The majority overtly demonstrates intolerance and hatred … The majority … denigrates Ahmadi Muslims by referring to them as "hyper-sensitive".
majority confuses issue of freedom of religious expression and regulation of commercial speech
… the majority also seriously confuses the issue of freedom of religious expression and national regulation of commercial speech… The Court cites a number of provisions in foreign jurisdictions allowing restrictions on commercial speech and protection of certain words and phrases through application of copyright law … restrictions on commercial speech are used … to defend restriction on religious terminology …
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
No jurisdiction cited … treats restriction on commercial speech in the same way as restrictions relating to freedom of religion. None of these jurisdictions … would allow the restrictions … allowed by Ordinance XX. Citing these … limitations appears to be an attempt … 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.
no excuse for this legal atrocity
Further comment on this decision is pointless -- the majority approach is so irreparably flawed that it contradicts the whole notion of religious freedom … under international human rights law Ahmadi Muslims have the right to believe and practice as they do … the Pakistan Constitution can clearly be construed to conform with this international mandate … There is simply no excuse for this legal atrocity.

… The author is not unaware of … the serious difficulties facing the government as it seeks to preserve the unity of Pakistan… The Sikri group, the Deobandi group and Shi'a Muslims are but a few of other Muslim groups who have faced vehement hatred from other Muslims. Sikh, Christian, Hindu, Parsi, and Buddhist groups have also faced hatred and discrimination. Pakistan has suffered from ethnic animosity as well. All of these hatreds are fueled by official actions such as those directed against the Ahmadi Muslims, and can not but serve to further tear apart the social cohesion necessary to maintain national unity.

from the report:

RELIGIOUS PERSECUTION IN PAKISTAN:
THE AHMADI CASE AT THE SUPREME COURT

A Commentary by Karen Parker, J.D.
for
International Educational Development
Humanitarian Law Project
A Non-governmental Organization at the United Nations

December 1993

HUMANITARIAN LAW PROJECT
International Educational Development, Inc.

8124 West Third Street Suite 105
Los Angeles, California 90048
Phone: (213) 653-6583    Fax: (213) 653-2741

HUMAN RIGHTS COMMISSION OF PAKISTAN

From: Vol.IV No.IV October 1993
QUARTERLY HRCP NEWSLETTER

The Supreme Court of Pakistan dismissed a set of petitions challenging the various provisions of Ordinance XX of 1984 which prohibits Ahmadis from professing Islam as their religion, preaching their faith, calling their places of worship `mosque', reciting the Azan and using Muslim phrases and terminology. The net result of this decision was seen to be to legalize all the restrictions imposed on Ahmadis and to sanction violation of their fundamental rights.

A five member bench of the Supreme Court delivered its judgment in the case on July 5, 1993. This decision was said to have singled out Ahmadis for discriminatory treatment. Their victimisation was made much more easy now.

Following passages of the decision are to be particularly noted.

"… Can anyone then blame a Muslim if he loses control of himself, reading and seeing such blasphemous material as has been produced by Mirza Sahib?" (Founder of the Ahmadiyya Community) (P-55)

"So, if an Ahmadi is allowed by the administration or the law to display or chant in public, the `Shaa'ire Islam', it is like creating a Rushdi out of him." (P-56)

The Supreme Court touched the most sensitive nerve of the Muslim masses by equating Ahmadis with the notorious `Rushdi'.

The decision created serious apprehensions among Ahmadis that they would be made the target of hatred and persecution by the mullah and other fanatic and hostile elements. It is believed that as a result of this decision more and more Ahmadis will be implicated for the violation of the anti-Ahmadiyya Ordinance on innumerable grounds.

The decision justifies the practice of implicating Ahmadis under 295-C which awards the death sentence for defiling the name of the Holy Prophet Mohammad (Peace be upon Him). The following passage of the Supreme Court verdict is quite obvious in this regard:

"When an Ahmadi or Ahmadis display in public, on a placard, a badge, or a poster, or writes on walls, or ceremonial gates, or buntings, the `Kalima' or chants other `Shaa'ire Islam' it would amount to publicly defiling the name of the Holy Prophet (Peace be upon Him)." (P-56)

The Supreme Court also enlarged the scope of the Ordinance by giving its sanction to implicating Ahmadis on the grounds which were not specifically mentioned in the anti-Ahmadiyya Ordinance e.g. `Displaying of Kalima' etc. As such, hundreds of Ahmadis against whom cases are pending in the lower courts about which they have been pleading that they committed no violation of the Ordinance by displaying `Kalima' or performing other religious practices as these were not specifically prohibited by the Ordinance, now stand no chance of getting acquittal from the courts.

LAWYER'S COMMITTEE FOR HUMAN RIGHTS

The Rev. Robert F. Drinan, S.J.
member of the board at the LAWYER'S COMMITTEE FOR HUMAN RIGHTS

In an article "Pakistan Falls Short on Religious Freedom" Christian Science Monitor, Wednesday, January 5, 1994

…A decision of the Pakistani Supreme Court last July has effectively closed the door to any legal redress for the intolerance and persecution that the Ahmadiyya Muslims have been encountering in Pakistan for the last two decades.

…all civilized nations have cherished freedom of conscience, thought, and religion…Pakistan's Constitution also embodies and upholds these freedoms…

…most amazingly, the justices justified the laws prohibiting the Ahmadis the use of Islamic phrases by drawing a parallel from the trade laws prohibitive of trade and merchandise marks. This is a distasteful monetization of something spiritual and sublime. Furthermore, the Supreme Court's decision encourages religious intolerance and violence against Ahmadis…

…By stating that allowing an Ahmadi to display Islamic symbols in public is like creating a Salman Rushdie out of him, the Court has made a direct incitement to kill Ahmadis…

LAWYER'S COMMITTEE FOR HUMAN RIGHTS

In a letter addressed to the Chief Justice of the Supreme Court of Pakistan the LCHR stated that:

“to sanction Ordinance XX and its discriminatory impact and religious restrictions is to violate a fundamental and universally recognized standard of human rights”

and reminded the Chief Justice that

“your court has an obligation to render a judgment free of religious intolerance and animosity against Ahmadis.”

(LCHR, New York, letter dated February 4, 1994)

LORD AVEBURY
Chairman of the British Parliamentary Human Rights Group

In a letter addressed to the High Commissioner of Pakistan in London Lord Avebury remarked on the possible consequences of the Court's excuse that allowing Ahmadi Muslims to carry out their religious obligations would pose a threat to law and order:

“ … in India the Bhartiya Janata Party may one day suggest that restrictions be placed on Muslims because of the threat to law and order posed by the exercise of their religion.”

(Lord Averbury's letter to the Pakistani High Commissioner, dated February 4, 1994.)

LAWYER's COMMITTEE FOR HUMAN RIGHTS

In a letter to the Chief Justice of the Supreme Court of Pakistan the Executive Director of the LCHR tried to educate the Supreme Court on precedents in US law that the majority had cited in its judgement of the Ahmadi case:

“… your Court turned to American constitutional law for analogy… It cited Cantwell v. Connecticut … In Cantwell, the U.S. Supreme Court … held that it is unconstitutional to forbid religious, charitable and philanthropic solicitation.

The other cases cited by the Supreme Court of Pakistan also do not sanction limitations on the right to religious freedom, but rather consistently uphold that right. These cases each support the principle that laws infringing on religious practices may be upheld only if they have a neutral purpose (i.e., one that is not related to limitation on religious practices), apply to everyone and only coincidentally impact on or prohibit religious practice. In Reynolds v. United States … the U.S. Supreme Court held that certain religious groups are not exempt from general laws applicable to all … The Court did not forbid specific religious practices.

Principles of equality, neutrality and nondiscrimination guide each of the U.S. cases cited by the Supreme Court of Pakistan…

Unlike like the laws at issue in these U.S. cases, Ordinance XX is not neutral since it explicitly singles out the religious practices of one community … which are legal and encouraged in the majority community. The Ordinance is therefore fundamentally discriminatory and would be unconstitutional under U.S. law.

… your Court referred to the animosity of the majority community … Under U.S. law, such admitted animosity, alone, would be sufficient to find Ordinance XX unconstitutional.

While the Court in the Ahmadi case referred repeatedly to American legal authority, it failed to recognize that U.S. Constitutional law demands at the very minimum a right to religious freedom … ”

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