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Persecution Of The Ahmadiyya Community In Pakistan: An Analysis Under International Law

C. The U.N. Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief

With the passage of the Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief on November 25, 1981, the U.N. further alerted Pakistan to emerging customary international human rights law concerning religious freedom. *66 The U.N. Declaration of 1981, unlike the ICCPR, addressed restrictions on freedom of religion for religious minorities as they relate to conflicting interpretations of a single religion (i.e., intra-state and intra-religious discrimination). While affirming the basic principles of freedom of thought, conscience, religion, and belief, the Declaration of 1981 also separates “intolerance based on religion or belief” from “discrimination based on religion or belief,” so that religious minorities gain virtually exhaustive protection from systemic cruelty from members of another religion, from members of a particular sect or division of the same religion, and from a state (or state religion). Thus, the six Articles in the Declaration of 1981 offer arguably the most expansive annunciation of freedom of religion. The Declaration itself was adopted without a vote in the U.N.: it is “soft law” designed to further the international norms the ICCPR espoused.

By circumscribing the freedom of Ahmadis to manifest their faith in Islam through written and verbal means, including the use of the Kalima, the Azan (or call for prayer), and Assalamo-o-Alaikum (standard greeting of a Muslim, Arabic for “peace be upon you”), Pakistan, in its promulgation of the anti-blasphemy provisions, violated Article 6 of the Declaration of 1981. Section (c) guarantees the freedom “to make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief,” *67 which for an Ahmadi, as it would be for any Muslim, includes the public display of the Kalima, the use of a loudspeaker or microphone for the Azan, and the use of stationary with the phrase Assalamo-e-Alaikum as a basic Islamic greeting. Yet these very “articles and materials” have been the subject of formal criminal charges leveled against Ahmadis.

Even more compelling than Article 6 of the Declaration of 1981 is Article 7, which sets forth a patent obligation that “the rights and freedoms set forth in the Declaration shall be accorded in national legislations in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.” *68 Because the creation of parliament was to come years later, President Zia-ul-Haq was effectively Pakistan's originator of “national legislation” at this time. It was highly unlikely that Pakistan could meet the obligation of Article 7 of the Declaration of 1981 while still maintaining the supremacy of the Shari'a. Thus, the passage of Ordinance XX and the Criminal Law Act of 1986, only a few years after the Declaration of 1981, can be seen as Pakistan's way of asserting, with a clenched fist, the place of the Shari'a in the international community and its own adherence to the Shari'a in its national legislation.

See Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 36/55, U.N. GAOR, 36th Sess., Supp. No. 51, at 171, U.N. Doc. A/36/684 (1981).
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Id. art. 6(c).
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Id. art. 7.
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