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B. The Fundamentalist Surge and the History of Ahmadi Persecution

The building of a secular and inclusive state in Pakistan proved difficult in the face of rising religious fundamentalism. For Pakistan outwardly to manifest its solidarity with the international community with respect to freedom of religion was easier than for its ulama or “religious leadership,” consisting of the class of orthodox Muslim clerics, to agree with this vision of freedom. Religious fundamentalists recognized that the persecution of Hindus was too obvious a breach of Pakistan's constitutional rights protections to escape censure from the international community. A more subtle form of persecution under law, however, would attract less attention; thus Pakistani fundamentalists used the platform of the excommunication of Ahmadis, members of a “fake Muslim community,” as a pretext to maintain their hegemony. *22 They used Pakistan's constitution as their political weapon of choice.

In March 1949, the first Constituent Assembly of Pakistan introduced the so-called Objectives Resolution, which relied heavily on the UDHR, pledging that Pakistan's first constitution would make adequate provision for non-Muslims to enjoy full religious freedom. *23 Soon after the Objectives Resolution was passed into law by Pakistan's General Assembly, the Majlis-e-Ahrar-e-Islam (Ahrar), a Muslim separatist movement, began to engage in anti-Ahmadi agitation. On May 1, 1949, Ahrar activists made their first public demand that Ahmadis be declared a non-Muslim minority. The Ahrar insisted that Khan be removed from his position in the cabinet, along with all other Ahmadis in public service. They also accused members of the Ahmadiyya Community of conspiring with India (and particularly remnants of the British regime) against Pakistan's Sunni population. The Ahrar opposition movement climaxed during the peak of the Punjab disturbances. The Ahrar, knowing the disturbances would carry to Karachi, pressured Governor-General Khwaja Nazimuddin to remove Khan from office on the pretext that this would protect Karachi from the ensuing violence of the unrest in Punjab. In the midst of this tense situation, Khan delivered a speech before the Anjuman Ahmadiyya at Jahanghir Park, Karachi on May 18, 1952. Immediately after his speech Khan resigned from the powerful Basic Principles Committee (“BPC”), a governmental agency that ensured the application of Islamic principles in everyday governmental practice. *24

Increasingly, Muslim fundamentalist groups turned away from their position that the very creation of Pakistan was per se un-Islamic, and began to pressure government officials to transform the country into an Islamic theocracy. The leader of this new struggle was Maulana Maududi, head of Jama'at-i-Islami (Party of Islam), an Islamic revivalist fundamentalist movement. Maududi sought to unify Pakistani Muslims under the common cause of excommunicating Ahmadis from Pakistan. *25 The ruling Muslim League Party opposed both the idea of creating a theocracy in Pakistan and the ‘theo-democratic’ activities of Jama'at-i-Islami. The government's ensuing crackdown on the Jama'at-i-Islami resulted in violent demonstrations by Maududi's movement against Ahmadis in 1953. The Pakistani government condemned these anti-Ahmadi demonstrations as a threat to public order. Thus, at least until 1953, because it disagreed with the Jama'at-i-Islami on the creation of a theocratic state, and because of the close association of the Jama'at-i-Islami to the anti-Ahmadi movement, the government treated anti-Ahmadi speeches as attacks on its policies. *26

By 1954, it became clear that the government was giving ground to the fundamentalists. The Pakistani ulama used Ahrar propaganda as a basis to launch a unified campaign against Ahmadis. *27 For the next two decades, Ahmadis would face severe attacks on their properties and businesses; the ulama treated Ahmadis not only as non-Muslims, but also as threats to Islam. The “Islamization” of Pakistan's constitution received its first major push in 1962 when the ulama and the Advisory Council for Islamic Ideology added a “repugnancy clause” to the constitution: “No law shall be repugnant to the teachings and requirements of Islam as set out in the Qur'an and Sunnah [actions of the Holy Prophet], and all existing laws shall be brought into conformity therewith.” *28 The shift towards the strict constitutional implementation of the Shari'a was partly a result of the 1958 military coup, which indirectly stifled secularist movements within Pakistan.

Pakistan's reformation of its constitution under the strictures of the Shari'a has resulted in a steady deterioration of the rights protections found therein. *29 Nowhere was this more evident than in the 1974 amendment to the constitution. After a bloody civil war and the separation of Bangladesh from Pakistan in 1971, the National Assembly approved a new constitution in 1973, portions of which embodied the legal and political machinery of the Shari'a as espoused by the orthodox religious clergy. The ulama indoctrinated Pakistan's masses, arguing that there was an inherent danger in affording too much political autonomy to religious minorities whose very existence undermined Islamic ideology. *30 In 1974, a new wave of anti-Ahmadi disturbances spread across Pakistan. Having made significant gains in their 20-year political struggle for an Islamic theocracy, members of the ulama saw the disturbances as their opportunity to pressure Prime Minister Zulfikar Ali Bhutto to declare Ahmadis as non-Muslims. Under Bhutto's leadership, Pakistan's parliament introduced Articles 260(3)(a) and (b), which defined the term “Muslim” in the Pakistani context and listed groups that were, legally speaking, non-Muslim. *31 The goal of this constitutional amendment was to bring some of Pakistan's remaining progressive constitutional provisions under the purview of the Shari'a. Put into effect on September 6, 1974, the amendment explicitly deprived Ahmadis of their identity as Muslims. *32

In early 1978, General Mohammad Zia-ul-Haq, now safely installed as president after a coup overthrowing Bhutto, pushed through parliament a series of laws that created a separate electorate system for non-Muslims, including Ahmadis. *33 In 1980, under President Zia-ul-Haq's leadership, the Federal Shariat Court was created and given jurisdiction to examine any existing law to ensure it was not repugnant to Islam. *34

In 1984, Pakistan's constitution was amended yet again. Seeking to solidify the place of the Shari'a within the legal order, President Zia-ul-Haq issued a presidential order to parliament asking that the constitution be amended in such a way that the original Objectives Resolution of 1949 would take on a new substantive force. Thus, the key provision of that Resolution, which stated that “Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in the Holy Qur'an and Sunnah,” *35 became embedded in the text of the constitution. A further amendment proposed, but never passed, later that same year would have strengthened this provision by adding the following: “The injunctions of Islam as laid down in the Holy Qur'an and Sunnah shall be the supreme law and source of guidance for legislation to be administered through laws enacted by the parliament and provincial assemblies, and for policy making by the government.” *36 The essential purpose and effect of the two amendments was to establish the supremacy of the Shari'a over the constitution itself. That is to say, questions of constitutional interpretation could only be answered in line with the Shari'a.

As a result of these amendments, the Federal Shariat Court, with wide discretionary power accorded it, became the state's legal instrument to legitimize subsequent criminal ordinances passed by parliament. These ordinances included five that explicitly targeted religious minorities: a law against blasphemy; a law punishing the defiling of the Qur'an; a prohibition against insulting the wives, family, or companions of the Prophet of Islam; and two laws specifically restricting the activities of Ahmadis. *37 On April 26, 1984, Zia-ul-Haq issued these last two laws as part of Martial Law Ordinance XX, which amended Pakistan's Penal Code and Press Publication Ordinance Sections 298-B and 298-C. Ordinance XX undercut the activities of religious minorities generally, but struck Ahmadis in particular. For fear of being charged with “indirectly or directly posing as a Muslim,” Ahmadis could no longer profess their faith, either verbally or in writing. Pakistani police destroyed Ahmadi translations of the Qur'an and banned Ahmadi publications, the use of any Islamic terminology on Ahmadi wedding invitations, the offering of Ahmadi funeral prayers, and the displaying of the Kalima (the principal creed of a Muslim) on Ahmadi gravestones. In addition, Ordinance XX prohibited Ahmadis from declaring their faith publicly, propagating their faith, building mosques, or making the call for Muslim prayers. In short, virtually any public act of worship or devotion by an Ahmadi could be treated as a criminal offense. *38

In Mujibur Rahman v. Government of Pakistan, the Federal Shariat Court was asked to exercise its jurisdiction under Article 203D of the constitution to rule whether or not Ordinance XX was contrary to the injunctions of the Qur'an and Sunnah. The court upheld the validity of Ordinance XX and ruled that parliament had acted within its authority to declare Ahmadis as non-Muslims. Ordinance XX, the court maintained, merely prohibited Ahmadis from “calling themselves what they [were] not,” namely Muslims. *39

With the passage of the Criminal Law Act of 1986, parliament advanced Ordinance XX's severe restrictions. The “Blasphemy Law,” as the Act came to be referred to, amended Section 295-C of the Pakistan Penal Code by raising the penalty against blasphemy from fine or imprisonment to death. *40 Because the Ahmadi belief in the prophethood of Mirza Ghulam Ahmad was considered blasphemous insofar as it “defiled the name of Prophet Muhammad,” *41 Zia-ul-Haq and the Pakistani government institutionalized the persecution of Ahmadis in Pakistan with Section 295-C. The mere existence of practicing Ahmadi Muslims could be considered blasphemous and punishable by death.

On July 3, 1993, the Supreme Court of Pakistan dismissed eight appeals brought by Ahmadis who were arrested under Ordinance XX and Section 295-C. The collective complaint in the case, Zaheerudin v. State, *42 was that the 1984 Ordinance violated the constitutional rights of religious minorities. The court dismissed the complaint on two main grounds. First, the court held that Ahmadi religious practice, however peaceful, angered and offended the Sunni majority in Pakistan; to maintain law and order, Pakistan would, therefore, need to control Ahmadi religious practice. Second, Ahmadis, as non-Muslims, could not use Islamic epithets in public without violating company and trademark laws. Pakistan, the court reasoned, had the right to protect the sanctity of religious terms under these laws and the right to prevent their usage by non-Muslims. The court also pointed to the sacredness of religious terms under the Shari'a. By directly comparing the Ahmadis to the controversial author Salman Rushdie as a way of underscoring the risk to public safety, this decision ironically endorsed violence against the Ahmadiyya Community. *43 The ruling further entrenched the anti-Ahmadi ordinances by giving the government power to freely punish Ahmadi religious practice as apostasy. *44

In the wake of the Zaheerudin decision, the number of religious minorities arrested and charged with blasphemy increased dramatically. *45 Provincial-level ordinances restricting the democratic activity of Ahmadis proliferated. In 1999, for example, the Punjab Provincial Assembly, with the backing of the Federal Shariat Court, unilaterally decided to change the name of the Ahmadi-founded and 98% Ahmadi-populated village of Rabwah (an Arabic word meaning “higher ground” used reverentially in the Qur'an) to Chenab Nagar (an Urdu phrase used pejoratively in Pakistan meaning “Chenab river village”) and infiltrated its housing projects with non-Ahmadi settlements in an effort to transform permanently the composition of the village itself. *46

Since October 1999, the emergence of President Musharraf has brought about substantial changes in Pakistan's internal political structure, but little in its legal structure. Although President Musharraf combated the corruption of past leaders, particularly that of former Prime Minister Nawaz Sharif, increased the number of seats in parliament for minority candidates, *47 called for the holding of general elections free from past campaign finance corruption, *48 and facilitated an immediate and active partnership with the United States in the war against terrorism, he failed to take action against the legal persecution of religious minorities. In fact, Musharraf and other government officials refuse even to discuss repeal of the anti-blasphemy provisions; the perceived tenets of the Shari'a render the matter moot. *49 With the recent parliamentary gains by fundamentalist groups in Pakistan, the prospect of reform appears even more unlikely.

22	“[The Ahrar's] enmity of the Ahmadis extended over almost a quarter of a century, and . . . it can be said with absolute certainty that now the Ahrar brought the anti-Ahmadiyya controversy out of their old armoury purely as a political weapon. . . . [I]f [the Ahrar] could arouse public feeling and the masses against the Ahmadis, nobody would dare oppose them and . . . the more the opposition to this activity of theirs, the more popular they would become.” LAHORE HIGH COURT, REPORT OF THE COURT OF INQUIRY CONSTITUTED UNDER PUNJAB ACT II OF 1954 TO ENQUIRE INTO THE PUNJAB DISTURBANCES OF 1953 257 (1954). For an ethnographic discussion of the effects of labeling on Ahmadis in Pakistan, see ANTONIO R. GUALTIERI, CONSCIENCE AND COERCION: AHMADI MUSLIMS AND ORTHODOXY IN PAKISTAN (1989).
23	See JAVAID REHMAN, THE WEAKNESSES IN THE INTERNATIONAL PROTECTION OF MINORITY RIGHTS 143 (2000).
24	See BINDER, supra note 5, at 262.
25	See Siddiq, supra note 4, at 284.
26	See id. at 285. The cause of the 1953 disturbances against Ahmadis was put to judicial inquiry. Justice Muhammad Muneer and Justice M.R. Kiyani of the Lahore High Court issued a 387-page document, known later as the Muneer Inquiry Report, that rebuked the politically-motivated goals of Muslim fundamentalist groups apparent in the anti-Ahmadi disturbances. The Report undermined persecution movements against Ahmadis in 1953. See Mahmud, supra note 16, at 66 - 68; see also LAHORE HIGH COURT, supra note 22.
27	See Siddiq, supra note 4, at 285 - 86.
28	PAK. CONST., pt. IX, art. 227.
29	See Mahmud, supra note 16, at 45.
30	See David F. Forte, Apostasy and Blasphemy in Pakistan, 10 CONN. J. INT'L L. 27, 35 - 36 (1994). “The political power of religious radicals comes from their ability to mobilize the passions of the lower middle classes in the cities by conjoining the ideology of nationalism with the xenophobia and legalistic positivism of militant Islam.” Id. at 35.
31	See PAK. CONST. PT. XII, ch. 5, arts. 260(3)(a), 260(3)(b). “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).” Subsection (b) reads: “‘Non Muslim’ means a person who is not a Muslim and includes a person belonging to the Christians, Hindus, Sikh, Buddhist 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.”
32	In addition to the constraints the amendment placed on Ahmadis, it also called for the nationalization of Christian schools, so that the influence of private Christian groups was radically reduced.
33	Approximately 92% of Pakistan's 140 million people are Muslim. The remaining 8% constitute roughly four million Christians, four million Hindus, Jews, Sikhs, Zoroastrians, and Bahais, and four million Ahmadis. Election reform legislation in 1978 provided for separate electorates for non-Muslims in the National and Provincial Assemblies. Only ten of the 211 seats in parliament are reserved for minority candidates. Members of minority religions may only vote for candidates in their local districts from a list of minority candidates. As a result, 95% of the nation may vote for candidates based on their geographic locality, while the remaining 5% must vote for roughly 5% of parliamentary seats regardless of their geographic locality. The division of the electorates has serious implications. Perhaps most obvious is that majority Muslim candidates have no incentive to appeal to religious minorities. The influence of religious minorities being negligible, majority Muslim candidates have no political obligation to push for the civil liberties of religious minorities in parliament. For a long time, the Pakistani National Assembly based its representation for religious minorities on 1981 census figures. The census figure of Ahmadis represented in the National Assembly, for example, was 104,244, only 2.6% of the actual Ahmadi population in Pakistan. Moreover, non-Muslims have no representation whatever in the senate and federal cabinet. Bureau of Democracy, Human Rights and Labor, U.S. Department of State, Annual Report on International Religious Freedom: Pakistan, supra note 7. Political persecution of Ahmadis emanates from their political disenfranchisement. In order to cast their votes for minority candidates, non-Muslims must register on the “non-Muslim” electoral rolls. Ahmadis, however, base their entire ideological foundation on Islam and profess to be true Muslims. To register as non-Muslims demeans their faith and compromises their ethical standards. Ahmadis cannot register as Muslims without facing severe legal consequences, including fines and imprisonment. The result is a glaring infringement on freedom of conscience, as protected by the UDHR and international human rights law. Ahmadis are psychologically paralyzed when filling out electoral ballots to the extent that they rarely vote in Pakistan's elections. See, e.g., Barbara Crosette, Pakistan's Minorities Face Voting Restrictions, N.Y. TIMES, Oct. 23, 1990, at A5; David Lamb, Non-Muslims in Pakistan Seek a Political Voice, L.A. TIMES, Jan. 13, 2002, at A9. On February 27, 2002, President Musharraf issued Chief Executive's Order No. 7 of 2002 (Conduct of General Elections Order), which called for the elimination of the separate electoral system. Non-Muslim minorities and Ahmadis hailed the Order as a step towards true democracy in Pakistan. On June 17, 2002, however, Musharraf passed a series of amendments to the original Order, which stated explicitly that the “[s]tatus of Ahmadis [was]. . . to remain unchanged” (Section 7-B). The striking result is a joint electoral roll with the names of eligible voters (Muslims and non-Muslims alike), but with no Ahmadis.
34	See Forte, supra note 30, at 37. By 1986, the Federal Shariat Court had invalidated fifty-five federal laws and 212 provincial laws as being contrary to Islam.
35	See PAK. CONST., art. 2(A) (made part of constitution by Presidential Order No. 14 (1985)).
36	See PAK. CONST. amend. IX, Bill section 2 of 1985 (an unadopted proposal to amend Pak. Const. of 1973).
37	See PAKISTAN PENAL CODE §§ 298B and 298C (collectively referred to as Ordinance XX). According to §298B: (1)  “Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or any other name) who by words, either spoken or written, or by visible representation a.  refers to, or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (Peace be upon him), as ‘Ameer-ul-Mumineen’, ‘Khalifat-ul-Mumineen’, ‘Kilafat-ul-Muslimeen’ ‘Sahaabi’ or ‘Razi Allah Anaho’; b. refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (Peace be upon him), as ‘Ummul-Mumineen’; c. refers to, or addresses, any person, other than a member of the family (Ahle-bait) of the Holy Prophet Muhammad (Peace be upon him), as Ahle-bait; or d. refers to, or names, or calls, his place of worship as Masjid; shall be punished with imprisonment or either description for a term which may extend to three years, and shall also be liable to fine. (2) Any person of the Quadiani group or Lahori group (who call themselves as ‘Ahmadis’ or by any other name) who by words, either spoken or written, or by visible representation, refers to the mode or form of call to prayers followed by his faith as ‘Azan’ or recites Azan as used by Muslims, shall be punished with imprisonment or either description for a term which may extend to three years and shall also be liable to fine.” According to §298C: “Any person of the Quadiani group or Lahori group (who call themselves ‘Ahmadis’ or by any other name), who directly or indirectly, poses himself as a Muslim, or calls or refers to, his faith as Islam, or preaches or propagates his faith, or invites others to accept his faith, by words either spoken or written, or by visible representations in any manner whatsoever outrages the religious feelings of Muslims, shall be punished with imprisonment of either description for a term which may extend to three years and shall also be liable to fine.”
38	See Siddiq, supra note 4, at 288 - 89.
39	See Mujibur Rehman v Gov't of Pakistan, 1985 S.D. Vol. II (Fed. Shariat Court) 382, 473 (Pak.).
40	See PAK. PENAL CODE § 295C (part of the Criminal Law Amendment Act of 1986, which amended the punishments enumerated in §§ 298B and 298C to include death). “Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, directly or indirectly, defiles the sacred name of the Holy Prophet Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall be also liable to fine.”
41	See id.
42	Zaheerudin v. State, 26 S.C.M.R. 1718 (S.Ct. 1993) (Pak.). Zaheerudin v. State was a 4 - 1 ruling led by Justice Abdul Qadeer Chaudhry, holding that Ordinance XX was in accord with statutes and judicial opinions in England and the United States that protect religious freedom; the majority erroneously cited legal precedent from both jurisdictions as false support. For an extended treatment of the case and its misapplication of American judicial precedent, see Siddiq, supra note 4.
43	Note that Ahmadis believe in retaliation only as a matter of necessary self-defense. The spiritual leader of the worldwide Ahmadiyya Community at the time of the passage of the 1974 amendment, Mirza Nasir Ahmad , voiced no official opposition against it, nor did he encourage his members to rebel against the laws. Likewise, Mirza Tahir Ahmad, the spiritual leader of the Ahmadiyya Community at the time of the passage of Ordinance XX and the Blasphemy Law, encouraged tolerance against oppressive Muslims. The explicit purpose behind the anti-Ahmadi ordinances, that is, to quell the Ahmadi threat, appears irrational when placed in the context of Ahmadi non-retaliatory conduct.
44	See Siddiq, supra note 4, at 286.
45	Seventeen blasphemy cases, resulting in one conviction, were registered against Ahmadis in the first nine months of 1994. Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Annual Report On Human Rights Abuses: Pakistan, http://www.state.gov/www/global/human_rights/drl_reports.html (Feb. 1995).
46	See REHMAN, supra note 23, at 153.
47	In January 2002, Musharraf added new seats in the National Assembly, reserved sixty seats for women, and ended a system in which non-Muslims had to run separately for a limited number of reserved seats. See Mohamad Bazzi, Musharraf Pledges October Elections, NEWSDAY (New York), Jan. 25, 2002, at A34 (Musharraf added 350 new seats and set aside 60 parliamentary seats for women); Erik Eckholm, Leader Plans Open Election for Pakistan in October, N.Y. TIMES, Jan. 25, 2002, at A6 (Musharraf ended non-Muslim discrimination in electoral practices).
48	See Erik Eckholm, supra note 47, at A6.
49	This is especially compelling given that Pakistan's constitution had been suspended for reexamination immediately after the October 1999 military coup. See Celia W. Dugger & Raja Zulfikar, Pakistan Military Completes Seizure of All Authority, N.Y. TIMES, Oct. 15, 1999, at A1.