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SUPREME COURT JUDGMENT — OPINION OF M.M. CLARKE ON SUPREME COURT JUDGMENT
A COMMENT ON THE SUPREME COURT JUDGMENT IN THE CASE OF AHMADIS
On the 3rd of July, 1993, the Supreme Court of Pakistan, dismissed a set of eight appeals filed by Ahmadies. The question of law common to all these appeals was whether, "The Anti Islamic Activities of the "Qadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984," was ultra vires the constitution of Pakistan. It may be mentioned that these appeals had arisen out of proceedings initiated by or against certain individual Ahmadis. The Ahmadiyya Community as such has persistently and resolutely maintained that no legislative, judicial or executive authority in any country can decide, determine or prescribe religious beliefs for an individual or a group. The jurisdiction to do so was challenged and was not conceded to the National Assembly which enacted in 1974 the amendment declaring the Ahmadis to be "not Muslims for the purposes of constitution and law," nor was this jurisdiction ever conceded to any court. The religious beliefs are determined and prescribed by the founders of the religion or religious sects and are accepted and practised by the followers as a matter of conscience. In view of this fundamental principle, question of faith was never taken to or agitated before any court, even by Ahmadi individuals. It was under the constraint and compulsion of criminal prosecution and denial of fundamental citizenship rights that the concerned individuals took the precise question of the scope and vires of the Ordinance XX to the courts. Only that, and nothing more.
At the outset of the proceeding, the attorney for the appellants, Retired Judge Fakhruddin Ibrabim, told the court that he had come not to seek a judgment as to whether Ahmadis should be called Muslims or not. What the appellants sought from the Court was the restoration of their basic rights guaranteed under article 20 of the Constitution of Pakistan. It was argued that the provisions of Ordinance XX of 1984 were also;
The Supreme Court judgment miserably failed to give a clear cut answer to the constitutional issues raised before them. Instead, the appeals were dismissed on the premise that:
The Supreme Court judgment will be received with a measure of shock and surprise by all lovers of human rights throughout the world. Well-informed legal opinion finds it incompatible and cannot reconcile it with the earlier pronouncements of the same court on fundamental rights. The judgment denies Ahmadis the religious practices which have earlier been declared by the courts to be their religious practices. Ahmadis who have suffered a relentless decline in their religious freedom on account of Ordinance XX of 1984 will now be even more vulnerable than before and will be exposed to greater persecution.
This advice confirms what the International Commission of Jurists had discovered long ago:
A part of the Ordinance has been justified on the analogy of trade mark and copyright. The analogy sought to be drawn between trade mark and religion will be considered by enlightened public and juristic opinion as singularly shallow. To lay exclusive claim on concepts, ideas, or universal truths, or to treat religion as merchandise and to place copyright on Divine messages sounds so bizarre and odd. The judgment implies that religion is no longer a matter of conscience and leaves an impression that the solemn and sublime subject of religion is degraded to the profane level of trade and marketable commodity.
It is astounding to observe how the simple universally accepted procedure of registering patents escaped the minds and knowledge of their Lordships who authored the majority judgment. The issue of patents cannot be admitted as a subject of dispute in any court of raw unless a patent has been granted by proper institutions for registering patents in any country.
Applications to the right of patents are always directed to the "Patents Offices" and not to the courts of law. They have no jurisdiction to initially receive applications or claims to the right of patents. Their Lordships, therefore, have failed to establish the foundation for the claim of non-Ahmadi clergy that Islamic beliefs and practices must be treated as patents granted to certain majority sects of Islam.
This will of course lead to the widening of the contention. Jews and Christians would certainly have a right to file counterclaims for the exclusive rights for themselves to use the term "Islam" and "Masjid" and "Ibadat" and "Iqamatus Salat" and "Zakat" because the Holy Quran admits in no uncertain terms the fact that all these "Sha'air-e-Islam" were common to all the religions before Islam (see Sura Al-Bayyana Chapter 98 Verse 6) and the term "Islam" was most certainly employed by Prophet Abraham (peace be upon him) for his faith which is a faith commonly accepted by the Jews and Christians.
There are certain parts of the judgment which would qualify as hate literature in all civilised states. The majority judgment observes at page 33:
The judgment appears to have ignored many of the well established principles of interpretation of constitution and criminal statutes and appears simply to have overlooked the law laid down by the court itself. On the question whether a fundamental right can be taken away by law, the principle laid down by this Supreme Court of Pakistan in Jibindhra Kishore's case decided as long ago as 1957 and consistently followed thereafter, has been ignored in the judgment. In that case the Supreme Court had observed:
The present judgment has interpreted provisions of the Constitution in a manner which has the effect of making fundamental rights subject to injunctions of Islamic Shariah as interpreted by the orthodoxy in Pakistani. The proposition has been laid down in so broad terms that non-Muslims can genuinely comprehend that there are no fundamental rights available to them. Furthermore, the decision would thus lend support to the assumption that human rights are not recognised by Islam.
The assertion that the Ahmadiyya faith has no foundation is totally false and baseless. Ahmadis are being denied the foundation of their faith only because the court simply refuses to see that it exists. This foundation was laid by the Founder of the Movement, Mirza Ghulam Ahmad, over a hundred years ago in the following unambiguous terms in his book Izala-e-Auham:
This declaration of true faith has remained unchanged and will always remain so because no one has the authority to amend or alter it. Again, this foundation of adherence to the fundamental article of Islamic faith was never challenged during the National Assembly debate in 1974. All that was claimed was that the Ahmadiyya interpretation of khatam alnabiyyeen (Seal of Prophets) was different from that of orthodox Muslims.
The prohibition created by the Ordinance and now being enforced clearly strikes at the heart of the practice of the Ahmadiyya faith. Ahmadis instead of protesting or agitating in the violent manner, which is so common in Pakistan, remained peaceful and tried to adopt all legal methods to protect their religious freedom. They were prosecuted under the new law. They were punished, their appeals were taken to different courts, some of the appeals which were dismissed were taken to the Supreme Court. Five such criminal cases were taken to the Supreme Court, wherein the convictions were challenged on various grounds including the ground that the Ordinance itself was violative of fundamental rights guaranteed under the Constitution and was, therefore, void. The Ordinance was also directly challenged through two writ petitions on the Lahore High Court which were dismissed and ultimately came before the Supreme Court. Another writ petition challenged the ban imposed on the Centenary Celebrations in Rabwah by the District Magistrate of Jhang. This also came up before the Supreme Court. In all these appeals the constitutional validity of Ordinance XX was under challenge. These appeals were disposed of by a single split judgment with one to four majority.
Another fact which cannot escape the notice and attention of a keen lawyer is that the difference between the minority and majority opinion is sharp and fundamental. The minority judgment confines itself to the purely legal and constitutional question before it and comes to the conclusion that certain portions of Ordinance XX are violative of religious freedom and fundamental rights guaranteed under the Constitution, strikes them down as un-constitutional and, therefore, partially accepts appeals. The majority judgment, on the other hand, enters into doctrinal controversies and religious polemics, which were neither in issue nor germane to the points in issue, and dismisses all the appeals. The majority judgment speaks of greater fundamentalist religious influence than of deeper legal and constitutional analysis. The questions involved in the appeals were not of religious polemics but were purely of legal and constitutional interpretation. Religion was not and apparently could not be in issue. If it were, it is doubtful whether their Lordships would at all be competent to sit as Judges because their Lordships who were admittedly not Ahmadis would then constitute a party to the dispute.
The majority judges have not distinguished nor particularly discussed or spelt out the basis of disagreement with the points raised and dealt with in the leading judgment written by the Senior Judge. This leaves an impression that the view of the minority Judge was evidently unassailable on the legal plane.
The Supreme court has refused to strike down the Ordinance. As for as the disposition of justice in Pakistan is concerned, this seems to be the end of the road for Ahmadis and they have been delivered a clear and unambiguous message that access to domestic courts is now closed to them for ever.
The Supreme Court of Pakistan has rendered many erudite and scholarly judgments in the past. It remains to be seen how the legal fraternity and jurists, all over the world, will rate the present judgment in terms of its intrinsic quality and independence of approach. In some areas the judgment is especially intriguing. More particularly, one is hard put to divine the significance of the observation made in the minority judgment that a lot of "avoidable heat and controversy" was generated at "argument and post argument stage". How is heat generated at Cpost argument" stage? Only the Judges hold the answer. One is intrigued indeed to wonder what that answer would be.
M. M. CLARKE