Religious Persecution of Ahmadiyya Muslim Community
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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
C. The Pakistan Court Misused United States Freedom of Religion Precedent.

The Pakistan Constitution does not contain a provision similar to the United States Constitution's Establishment Clause. The Pakistan Constitution, however, does include a Free Exercise component. Article 20 of the Pakistan Constitution guarantees the “freedom to profess religion and to manage religious institutions” only “subject to law, public order and morality.” *112 The Pakistan Court referred to the United States, where “fundamental rights are given top priority,” as a country with “similar fundamental rights.” *113 In interpreting their own Constitution, the Pakistan Court used United States Supreme Court precedent to define the permissible limits on state infringements of an individual's religious practices.

In Zaheeruddin, the Pakistan Court relied on United States case law to illustrate how religious practices may be restricted for public order and safety requirements. *114 The Pakistan Court used Cantwell v. Connecticut *115 as authority for the proposition that the “freedom to act” on one's beliefs can be regulated for the protection of society. *116 According to Cantwell, the freedom to profess religion involves two concepts, the freedom to believe and the freedom to act. *117 Freedom of belief is absolute. *118 The freedom to act, however, may be restricted by law. *119 Conduct is regulable for the protection of society. *120 The state has an interest in regulating action for the protection of society. *121 The legislature, however, does not have plenary power to restrict or take away fundamental rights. *122 When considering the particular circumstances of a case, a reasonable balance must be struck between religious practices and regulations necessary to protect society. *123

The Pakistan Court quoted the following passages from Reynolds v. United States *124 to support its contention that a legislature may curtail certain religious behavior: “Congress was deprived of all legislative power over mere opinion, but was left free to reach actions which were in violation of social duties or subversive of good order,” *125 and “laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices.” *126

The Pakistan Supreme Court also cited Jones v. Opelika, *127 Hamilton v. Regents *128 and Cox v. *ew Hampshire. *129 The Pakistan Court used Jones v. Opelika to show that the constitutional guarantee of freedom of religion is not an absolute “to be exercised independently of other cherished privileges, protected by the same organic instrument.” *130 Freedom of religion must be reconciled with the right of a State to employ the sovereign power to ensure orderly living “without which Constitutional guarantees of civil liberties would be a mockery.” *131

The Pakistan Court quoted from Hamilton v. Regents, stating that, “Government owes a duty to the people within its jurisdiction to preserve itself in adequate strength to maintain peace and order and assure the enforcement of law. And every citizen owes the reciprocal duty, according to his capacity, to support and defend the Government against all enemies.” *132 Finally, the Pakistan Court incorrectly quoted the United States Supreme Court as stating in Cox v. New Hampshire that [a] statute requiring persons using public streets for a parade or procession to procure a special license therefore from the local authorities, does not constitute an unconstitutional interference with religious worship or the practice of religion, as applied to a group marching along a sidewalk in single file carrying signs and placards advertising their religious beliefs. *133 The Pakistan Court stated that Ahmadi rights are restricted in order to maintain peace and order in society, including the prohibitions on their centenary celebrations made by the Jhang District Magistrate in Khurshid Ahmad (this case was joined with Zaheehuddin). The Court asserted that Ahmadi practices and centenary celebrations threaten Pakistani society by disturbing public peace, order and tranquility. *134 The Court found such acts injure the feelings of the Muslim majority and therefore elicit violent reactions. *135 Since violence results from Ahmadi practices, the Pakistan Court asserted that the Pakistan legislature has the authority to restrict these religious practices and that Ordinance XX was enacted pursuant to such authority. *136 The Pakistan Court disingenuously applied United States case law that is over half a century old. The Court's reliance on old cases as precedent was hasty and self-serving. However, even if an analysis of Zaheeruddin is limited to these cases, Ordinance XX should still be found unconstitutional. The Pakistan Court took judicial statements out of context and misinterpreted United States law. A closer examination of these cases in their full context reveals that the U.S. decisions contradict the basic premises of Zaheeruddin. The United States decisions reveal that a constitutional statute must be neutral from its inception and thereafter applied equitably.

The Pakistan Court failed to recognize that in Cantwell the state could not completely ban certain religious practices and that a statute is unconstitutional if it forbids religious, charitable or philanthropic solicitation. *137 In Cantwell, the United States Supreme Court stated, “freedom of conscience and freedom to adhere to such religious organization or form of worship as the individual may choose cannot be restricted by law.” *138 The First and Fourteenth Amendments of the U.S. Constitution safeguard “the free exercise of the chosen form of religion.” *139 Therefore, a court may not interfere with a person's religious choice.

In formulating its balancing test as to what conduct may be regulated, the Cantwell Court held that “breach of peace' embraces a great variety of conduct destroying or menacing public order and tranquillity.” *140 A “breach of peace” is limited to violent acts or words directed at and likely to produce violence in others and not by the mere communication of undesirable views. *141

Religious liberty [does not connote] the privilege to exhort others to physical attack upon those belonging to another sect. … When clear and present danger of riot, disorder, … or other immediate threat to public safety, peace or order, appears, the power of the State to prevent or punish is obvious. Equally obvious is it that a State may not unduly suppress free communication of views, religious or other, under the guise of conserving desirable conditions. *142 The Reynolds Court held that certain religious groups are not exempt from the general laws applicable to all people, even if those laws have an impact on what are arguably religious activities. *143 However, polygamy, the banned activity, was an act already considered “odious” when it was made criminal in the U.S. *144 Further, the laws banning polygamy pre-dated the religious practice at issue in Reynolds. The laws were of general application and did not target any specific group. *145

The Pakistan Court failed to realize that in Jones, “the sole constitutional question [was] whether a nondiscriminatory license fee … may be imposed upon” the sale of literature. *146 In Jones, a city ordinance required anyone who wished to sell religious literature to obtain a license and pay a license tax. *147 The challenge against the ordinance was that since the license fee, once granted, was subject to revocation at the discretion of the City Commission, the law was thus arbitrary and an infringement on the freedom to disseminate information. *148 The provision requiring the license fee was upheld because of the requirement's nondiscriminatory and neutralnature; *149 all book agents, regardless of religious belief, were required to obtain a license to sell books. *150

In Hamilton, students were appealing compulsory military training imposed by the University of California. *151 The compulsory military training was upheld because it was applicable to all students of the University of a particular age provided they had not yet completed certain levels of their education. *152 Further, the United States Supreme Court in Hamilton stated that the liberty of worship undoubtedly includes the right to entertain the beliefs, to adhere to the principles, and to teach the doctrines which are advocated. *153 The Pakistan Court did not mention that the law pertaining to the public practice of religion in Cox is only a time, place and manner regulation and not a prohibition. Regulations serve to “conserve the public convenience” and put authorities on notice for providing appropriate policing and “to prevent confusion by overlapping parades or processions, to secure convenient use of the streets by other travelers, and to minimize the risk of disorder.” *154 In Cox, the sole charge against appellants was that they were “taking part in a parade or procession” on public streets without a permit as the statute required. They were not prosecuted for distributing leaflets, or for conveying information by placards or otherwise, or for issuing invitations to a public meeting, or for holding a public meeting, or for maintaining or expressing religious beliefs. *155

The regulation of street parades must be applied “without unfair discrimination” and, therefore, according to the principles of neutrality, equality and nondiscrimination. *156

The United States Supreme Court was guided by the principles of equality, neutrality and nondiscrimination in deciding each of these cases. *157 “Unlike the laws at issue in these United States cases, Ordinance XX is not neutral since it explicitly singles out the religious practices of one community, the Ahmadis.” *158

Following the United States Supreme Court's reasoning in Cantwell, the suppression of Ahmadi beliefs “under the guise of conserving desirable conditions” is unconstitutional. The Pakistan Government suppresses Ahmadi religious practice for the supposed protection of society because Ahmadi beliefs offend public sentiments and allegedly subvert law and order. *159 Ahmadis, however, do not seek to create disorder. Ahmadis desire to peacefully practice, propagate and profess their faith. A state cannot justifiably back the refusal to tolerate the religious practices of peaceful and law-abiding citizens any more than it could “in supporting an assailant against his victim.” *160 Ahmadis do not commit violent acts in the practice of their faith nor do they direct their religious expression at others or intend to elicit violent reactions. Ahmadis peacefully practice their faith according to the dictates of conscience.

Furthermore, the practices of Ahmadis are similar to those of the majority Sunni population. Ahmadi practices do not pose any more of a threat to society than do the practices of the Sunni majority. The Appellants in Zaheeruddin wore badges displaying the Kalima Tayyaba, the principle tenet of Islamic faith for all Muslims, and referred to themselves as Muslims. Ahmadis, Sunnis and other Muslims also use the greeting of “peace” or “salaam.” Such acts do not per se pose any danger. The Appellants were not charged because their acts threatened society, but because they are Ahmadis. Ahmadis are punished and suppressed because of the manner in which others react to their peaceful practices. The danger to society is not posed by Ahmadis but by potential violence resulting from public intolerance towards them.

The Pakistan Court erroneously applied the reasoning of Jones, and held that the rights of Ahmadis can be restrained to ensure orderly living in Pakistan. Jones, however, condemned the discriminatory suppression of unpopular views by the state for the sake of order. Regulations enacted for the purpose of imposing order must be nondiscriminatory and universal. Viewed against this reasoning, Ordinance XX is not universal and nondiscriminatory because it targets and restricts only the practices of Ahmadis.

Unlike polygamy in Reynolds, the practicing of Islam in Pakistan was never considered subversive of public order or “odious,” nor was it ever criminal. In Pakistan, Islam is the religion of the majority and its practices are socially encouraged. Ahmadi practicing of Islam, however, is considered criminal. A perfectly moral act becomes criminal if an Ahmadi commits it. Ordinance XX therefore targets the religious practices of Ahmadis and prohibits them from performing otherwise socially encouraged acts. Ordinance XX, unlike other criminal laws, makes the actor, not the act, illegal. Ahmadis are therefore discriminated against for who they are and not what they do. Ordinance XX is a discriminatory law which names and targets a specific group and is not neutrally and generally applicable to all citizens.

The Pakistan Court relied on United States cases that refer to time, place and manner regulations of the freedom of action; to cases that involve acts which are already illegal; or to cases that uphold laws which are neutrally and generally applicable. The Pakistan Court was not regulating the streets “without unfair discrimination” when it upheld the Jhang District Magistrate's prohibition of Ahmadi centenary celebrations in Khurshid Ahmad. *161 The Court cited public safety to justify its prohibition, knowing, however, that Ahmadis would not engage in acts which would per se constitute a threat to society. Lights on buildings and Islamic inscriptions on walls, both of which were prohibited by the Jhang District Magistrate, are common sights and are not offensive in Pakistan. Further, the risk of disorder was minimal as the Ahmadi celebrations would have taken place in Rabwah, a predominantly Ahmadi village. *162 Ahmadis were prohibited from celebrating in a familiar and friendly setting. Any violent reaction would have to be imported from outside the village. The Jhang District Magistrate discriminated against Ahmadis pursuant to Ordinance XX. According to Cox, the prohibition of the Ahmadis' celebration of their centenary or the practicing of their faith is therefore unconstitutional. The Pakistan Court purported to be protecting society and relieving it of the threat of violence. However, the Pakistan Court, by suppressing Ahmadis, did not relieve Pakistan's citizens of the threat of violence. Rather, its judgment further emboldens anti-Ahmadi sentiment and thus encourages more violence and criminal prosecutions of Ahmadis. *163 Because the Court deemed Ahmadis offensive, anti-Ahmadi perpetrators have judicial and state license to create further disorder. Mullahs and their followers are free to orchestrate religious riots without prosecution or restriction from government authorities. *164 The threat to public order and safety will persist if the state and courts continue to encourage intolerance towards Ahmadis. If the Pakistan Court was genuinely interested in public safety, it would have condemned the suppression of Ahmadis, and the intolerance and discrimination directed against them. The protection of public safety and order is best served by scrupulous enforcement of laws prohibiting assault, battery and vandalism. Even older United States precedent demonstrates that intolerance and animosity against a religious community make that community worthy of governmental protection, not disdain. *165 Instead, the Pakistan Government and Court participated in the intolerance and subversion of freedom of conscience and religion by deciding against the Ahmadiyya Community. In order to thoroughly examine Free Exercise precedent and the protection of this fundamental right, the Pakistan Court should have applied more recent case law, like Sherbert v. Verner *166 and Employment Division v. Smith, *167 rather than relying solely on older case law. The more recent cases are directly applicable to the controversy in Zaheeruddin and are also favorable to the Ahmadi Appellants. They demonstrate that the threat posed by religious beliefs must be substantial and not merely repugnant to the majority. They also emphasize that, for a law to be constitutional, it must be neutral in nature and application.

For example, under Sherbert, a law or regulation which burdens the free exercise of religion is constitutional only if the burden is incidental to a justifiable compelling state interest. *168 A law may justifiably regulate conduct which poses “some substantial threat to public safety, peace or order.” *169 However, “government may neither compel affirmation of a repugnant belief… nor penalize or discriminate against individuals or groups because they hold religious views abhorrent to the authorities… nor … inhibit the dissemination of particular religious views.” *170 The threat to society must be “substantial” or else the religious beliefs or principles are not “within the reach of state legislation.” *171 Minority religious views cannot be suppressed merely because of hostility felt by the majority community. *172

According to Justice Douglas in his concurrence, “many people hold beliefs alien to the majority of our society - beliefs that are protected by the First Amendment but which could easily be trod upon under the guise of ‘police’ or ‘health’ regulations reflecting the majority's views.” *173 Ahmadis are penalized and discriminated against under Ordinance XX because they hold views abhorrent to the Sunni majority.

The dissent in Zaheeruddin recognized the sincerity and conviction of Ahmadi beliefs. *174 Ahmadis preach and practice the religion of Islam and assert they are Muslims. They wish to freely adhere to their own interpretations of Islamic teachings. Depriving Ahmadis of their right to assert their Muslimhood and to call their faith Islam directly attempts to undermine the Ahmadi faith.

In Employment Division v. Smith, the U.S. Supreme Court applied Reynolds to uphold a prohibition against sacramental peyote use. *175 The Court in Employment Division asserted that:

[United States Supreme Court] decisions have held consistently that the right of free exercise [of religious belief] does not relieve an individual of the obligation to comply with a “valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or )proscribes.” *176

In Employment Division, the prohibition against peyote use was found to be a neutral, generally applicable law that is not “an attempt to regulate religious beliefs, the communication of religious beliefs, or the raising of one's children in those beliefs….” *177 Islamic practices, however, are not criminal acts in Pakistan, unless practiced by Ahmadis. Employment Division distinguished between laws that specifically target religious practices and those that are neutral and generally applicable.

According to Employment Division, laws that target religion are unconstitutional, but laws which are neutral and generally applicable are not. *178 Ordinance XX is not a neutral, generally applicable law. It exclusively targets Ahmadis and their religious practices. Ordinance XX regulates Ahmadi beliefs and their communication and the Ahmadi freedom to raise children according to such beliefs. According to Employment Division, Ordinance XX targets Ahmadis and should thus be unconstitutional.

Finally, Church of Lukumi Babalu Aye v. Hialeah *179 demonstrates how the Pakistan Court should have applied U.S. law in Zaheeruddin. Both cases were argued at the same time and involved the persecution of minority religious groups. Hialeah was decided one month prior to the decision in Zaheeruddin. However, they resulted in opposing judgments. In Hialeah, the U.S. Supreme Court struck down a statute banning ceremonial animal sacrifice. *180 The statute did not specifically mention any minority religious groups, but the statute may have been motivated by the majority community's animus against a minority group's religious practices *181 and was, therefore, found to be unconstitutional. *182 Ordinance XX refers specifically to Ahmadis by name and restricts only their religious practices. *183 A government cannot justifiably punish religious behavior on the basis of discriminatory or anticipated violent reaction against it. *184 According to Hialeah, the animosity towards Ahmadis makes them worthy of governmental protection, not persecution. *185 As Hialeah demonstrates, Ordinance XX should have been found unconstitutional under United States precedent.

The Pakistan Court's use of United States case law to support Ordinance XX's constitutionality under Article 20 of the Pakistan Constitution was flawed. Ordinance XX is a content-based, discriminatory law. The Pakistan Court misstated and misused United States case law to justify the law and perpetuate official discrimination against the Ahmadiyya Community.

Pak. Const., art. 20. The full text of Article 20 is:

Freedom to profess religion and to manage religious institutions. - Subject to law, public order and morality, -
  1. every citizen shall have the right to profess, practise and propagate his religion; and
  2. every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.
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Zaheeruddin, 1993 S.C.M.R. at 1758, 1778.
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Id. at 1758-65. While the Pakistan Court also referred to cases from Australia, the United Kingdom and India to support its holding, this article will confine itself to the erroneous application of United States case law.
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310 U.S. 296 (1939). In Cantwell, Jehovah's Witnesses were arrested for publicly soliciting funds pursuant to a statute enacted to protect the public against fraud and imposition in the solicitation of funds for what purported to be religious, charitable or philanthropic causes. Cantwell, 310 U.S. at 300-02. Jehovah's Witnesses were soliciting contributions to be used for the publication of their religious literature. Id. at 301. The statute required that any public solicitation of funds must first be approved by the secretary of the public welfare council. Id. at 301-02. The secretary's approval, however, was only granted if the applicant was not a religious organization. Id.

[The secretary's] decision to issue or refuse [such approval] involves [an] appraisal of facts, the exercise of judgement, and the formation of an opinion. He is authorized to withhold his approval if he determines that the cause is not a religious one. Such a censorship of religion as the means of determining its right to survive is a denial of liberty protected by the First Amendment and included in the liberty which is within the protection of the Fourteenth [Amendment].

Id. at 305.
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Zaheeruddin, 1993 S.C.M.R. at 1758.
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Cantwell, 310 U.S. at 303, cited in Zaheeruddin, 1993 S.C.M.R. at 1758.
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Cantwell, 310 U.S. at 303-04.
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Id. at 304.
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Id., cited in Zaheeruddin, 1993 S.C.M.R. at 1758.
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Cantwell, 310 U.S. at 303.
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Id. at 303-04, cited in Zaheeruddin, 1993 S.C.M.R. at 1758.
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98 U.S. 145 (1878).
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Id. at 164, quoted in Zaheeruddin, 1993 S.C.M.R. at 1758.
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Reynolds, 98 U.S. at 166, quoted in Zaheeruddin, 1993 S.C.M.R. at 1758. In Reynolds, a Mormon, according to the dictates of his faith, practiced polygamy and was charged pursuant to statute. Reynolds, 98 U.S. at 161.
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316 U.S. 584 (1942).
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293 U.S. 245 (1934).
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312 U.S. 569 (1941).
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Jones, 316 U.S. at 593, quoted in Zaheeruddin, 1993 S.C.M.R. at 1759.
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Zaheeruddin, 1993 S.C.M.R. at 1764. The quote in Zaheeruddin omits the word "just" before "enforcement of law." See Hamilton, 293 U.S. at 262-63.
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Zaheeruddin, 1993 S.C.M.R. at 1764 (citing the above as an alleged direct quotation from Cox). The quotation does not, in fact, appear anywhere in the Cox opinion.
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Id. at 1749-50, 1777-78.
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Id. at 1777.
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See id. at 1758.
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Cantwell, 310 U.S. at 296. Solicitation of funds without a license is allowed only for a religious, charitable or philanthropic cause. Id. Solicitation may be given time and manner regulation but not via a license, the grant of which rests in the exercise of a determination by state authority as to what is a religious cause." Id. at 306-07. Such a determination constitutes a "forbidden burden upon the exercise of liberty" and is unconstitutional. Id.

The Jehovah's Witnesses would not commit fraud according to the statute in Cantwell provided they were soliciting funds for religious purposes. Cantwell passed no judgment on the truth or falsity of the beliefs of Jehovah Witnesses or on their sincerity in holding them. Determining the propriety of a religious cause is not within the powers of the legislature or a government official. Id. at 303-04. Ahmadi beliefs were subjected to legislative and judicial appraisal when the accounts were referred to as "anti-Islamic" in Ordinance XX and "blasphemous" by the Court. Zaheeruddin, 1993 S.C.M.R. at 1765-68, 1775-78; see infra Appendix I for text of Ordinance XX. The Pakistan Court asserts Ahmadis commit fraud when they allegedly falsely represent themselves as Muslims. Zaheeruddin, 1993 S.C.M.R. at 1754-55. The Pakistan Court therefore declared Ahmadi beliefs false and appraised their sincerity in their belief in their Muslimhood.
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Cantwell, 310 U.S. at 303.
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Id. at 308.
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Id. According to the United States Supreme Court, statements that constitute "breach of peace" consist of "provocative language … consisting of profane, indecent, or abusive remarks directed to the person of the hearer." Id. at 309. Whereas, the Pakistan Court stated Ahmadi propagation and practices "directly or indirectly incite and injure the feelings of Muslims." Zaheeruddin, 1993 S.C.M.R. at 1757 (emphasis added).

In 1989, Ahmadis celebrated the centenary of their Community's existence. Id. The Ahmadis of the majority Ahmadi city of Rabwah, see infra note 162 (providing information on Rabwah), were prohibited by the Jhang District Magistrate, pursuant to Ordinance XX, from the following acts:
  1. Illumination on buildings and premises [similar to Christmas lights in the United States];
  2. Erection of decorative gates;
  3. Holding of processions and meetings;
  4. Use of loudspeaker or megaphone [at all meetings];
  5. Raising of Slogans [i.e. "long live Islam' and "God is the Greatest'];
  6. Exhibition of badges, buntings and banners etc. [which have Arabic writing on them];
  7. Distribution of pamphlets and pasting of posters on the walls and wall writings;
  8. Distribution of sweets and service of food;
  9. Any other activity directly or indirectly which may incite and injure the religious feelings of Muslims.
Zaheeruddin, 1993 S.C.M.R. at 1736, 1749-50 (emphasis added). By the Pakistan Court's reasoning, putting up lights on one's house and giving away sweets and food were determined "profane, indecent or abusive" and likely to produce violence in others.
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Cantwell, 310 U.S. at 308 (emphasis added).
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Reynolds, 98 U.S. at 163-66.
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Id. at 146, 164.
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Jones, 316 U.S. at 592-93 (emphasis added).
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Id. at 586.
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Id. at 599. The petitioner had neither applied for nor had the license revoked. Id. The petitioner therefore lacked standing to raise questions regarding the discretion to revoke licenses for the sale of religious literature. Id.
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Id. at 588.
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Id. at 586.
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Hamilton, 293 U.S. at 262-63.
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Id. at 256.
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Id. at 262.
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Cox, 312 U.S. at 575-76 (citing Cantwell, 310 U.S. at 306-07). Parading in the streets was not banned, only regulated. Id. at 574-76.
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Id. at 573.
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Id. at 576. The Pakistan Court also cited Commonwealth v. Plaisted, 148 Mass. 375 (Mass. 1889) to illustrate that "the plea of fundamental right was rejected" in Plaisted. Zaheeruddin, 1993 S.C.M.R. at 1764. According to Plaisted, "[a] law [may prohibit] the use of streets for religious meetings, or the beating of drums [even] thought [sic] it is a part of religious ceremony of such organisations as the salvation army." Id. at 1765. The law in Plaisted only prohibited unreasonable use of the streets. Plaisted, 148 Mass., at 381. Religious worship was not at issue. Id. The legislative authority to require reasonableness was at issue, and was upheld. Id. at 383-87.
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Letter from Michael H. Posner, Executive Director of Lawyer's Committee for Human Rights, to Chief Justice Saad Saod Jan, Supreme Court of Pakistan, 2 (cc: Prime Minister Benazir Bhutto) Doc#: DC1: 5004.1, DC-1324, Apr. 22, 1994.
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The … views [shown by U.S. case law], as they are prevalent, in the above jurisdiction, do go to show that freedom of religion would not be allowed to interfere with the law and order or public peace and tranquillity. It is based on the principle that the State will not permit anyone to violate or take away the fundamental rights of others, in the enjoyment of his own rights and that no one can be allowed to insult, damage or defile the religion of any other class or outrage their religious feelings, so as to give rise to [a] law and order situation. So whenever or wherever the State has reasons to believe, that the peace and order will be disturbed or the religious feelings of others may be injured, so as to create [a] law and order situation, it may take such minimum preventive measures as will ensure law and order.

Zaheeruddin, 1993 S.C.M.R. at 1765. The Sunni Muslim majority is offended by Ahmadi beliefs and is thus likely to instigate religious riots. Id. at 1765. In order to prevent offended Sunni Muslims from endangering society, Ahmadi religious practices are restricted. Id. While intolerant citizens create the violence, Ahmadis bear the blame. Id. The Pakistan Court regards any violence that erupts out of intolerance towards Ahmadis as justified. Id.
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Petren et al., supra note 22, at 110-13.
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See supra note 141 (providing the text of the Jhang District Magistrate's law prohibiting Ahmadi celebration). In Cantwell, the United States Supreme Court determined that the mere communication of views, whether or not the views are desirable, cannot constitute a breach of peace. Cantwell, 310 U.S. at 308. Jehovah's Witnesses did not impart their views in a noisy or overbearing fashion and did not intend to offend anyone. Id. Such is the case with Ahmadis.

Ahmadis do not intend to offend anyone by their religious beliefs. Ahmadis do not abusively direct their religious expression at others. The Ahmadi belief in Prophet Muhammad's "lastness' as spiritual rather than merely chronological is thought to elevate Muhammad's spiritual rank. See supra note 17. Such a notion can hardly be considered "indecent" or "profane". Therefore, the peaceful exercise of Islam by Ahmadis cannot be prohibited according to Cantwell.
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In 1947, after the partition of India and Pakistan, Ahmadis bought slightly over a thousand acres of land on the west bank of the Chenab River. Adamson, supra note 21, at 45-47. The village was completely isolated and was built entirely by Ahmadis. Id.
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"The judgment has emboldened anti-Ahmadi groups and resulted in more court cases against Ahmadis." (U.S. Country Reports on Human Rights, 1995 [covering 1994]). See infra Part III, Section G.

On February 22, 1994, Dr. Muhammad Akhtar Majoka was charged pursuant to Ordinance XX (298C) "for allegedly inviting others to watch a television program featuring the exiled head of the Ahmadiyya community." Amnesty International Report 232 (1995). The charge of blasphemy pursuant to 295C was later added by police "although there appeared to be no evidence to support the [charge]." Id.

On February 7, 1994, five Ahmadi journalists were detained for a month "for publishing articles in which they allegedly "posed as Muslims' and were charged pursuant to Ordinance XX." Id. The charge of blasphemy was added later. Id. The journalists published their articles in the Ahmadi daily newspaper, Al Fazal. (U.S. Country Reports on Human Rights 1995 [covering 1994]).

To give an example of how the Pakistani authorities interpret alleged Ahmadi instigation of disorder, on September 15, 1994, local authorities in Rawalpindi, Pakistan "razed the structures" of an Ahmadi mosque. Banned sect's worship site razed in Rawalpindi, Reuters World Service, Sept. 15, 1994 [hereinafter Banned Sect]; Pakistanis destroy minority mosque, Proprietary to the United Press International, Sept. 16, 1994 [hereinafter Destroy Mosque]. "The bulldozers and laborers of the Rawalpindi Development Authority began the demolition … after a civil court rescinded an earlier order which had prevented the demolition." Id. The authorities claimed that the mosque was a potential cause of religious riots. Id. The mosque was claimed to have been constructed illegally. Id. The local authorities "razed the site under pressure from fundamentalist Islamic clerics …" Banned Sect. Ahmadis filed an appeal before a higher court and the hearing was scheduled for September 19, 1994. Id. The authorities destroyed the mosque before the Ahmadis could defend themselves in the hearing. Rahman Interview, supra note 4. The mosque was destroyed on the eve of the Ahmadi Juma (Friday) Prayer service. Id. In Pakistan, the simple existence of a building where people peacefully pray is considered an instigation of public disorder and violence. A number of other Ahmadi mosques have been sealed pursuant to instructions from local officials. Petren et al., supra note 22, at 112.

The Government does not allow deceased Ahmadis to rest in peace. The Government ordered 13 bodies to be disinterred from graveyards, because deceased Ahmadi were not allowed in Muslim cemeteries. See Implementation of the Declaration, supra note 14, at 78. Another 23 bodies were denied burial in municipal burial grounds. Id. Gravestones of Ahmadis were also defaced or damaged. Id.
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Petren et al., supra note 22, at 112.

Hostile remarks by private citizens in the press and on the broadcast media pass unchallenged despite the prohibitions in the Pakistan Penal Code on promoting enmity between different religious groups [153A] and on outraging the religious feelings of any class by insulting its religion or religious beliefs [295A]. No action was taken, for example, after a broadcast on Pakistan Television (16 november 1986) in which Dr. Mujeeb-ur-Rehman said "anyone who makes a claim of prophethood in any form and shape is a liar … and an Islamic Government … is bound to order that either he should enter the fold of Islam or he be killed." There can be little doubt that such statements only help to inflame tensions and this seems rather reckless, particularly as the number of assaults on and murders of Ahmadis where the victim's religion was a motivating factor appears to be increasing. For example, both Dr. Aqeel and Babu Abdul Ghaffar, had their throats cut while they were the head of the Ahmadiyya community in Hyderabad [Pakistan]. Furthermore the government appears to be either ignoring unprovoked attacks on Ahmadi places of worship or allowing public order to be used as a pretext for stopping acts of worship…. An Ahmadi mosque in Rahwali has … been destroyed and the mosques in Bhaker, Jhang and Sadar have been set on fire. A number of Ahmadi mosques have also been sealed up on the instructions of local officials. Id. at 111-12.

On April 9, 1995, in Peshawar, Pakistan, a crowd of Muslim militants publicly stoned an Ahmadi to death and injured another. Pakistan: Pakistani Islamic Crowd Stones Man to Death, Reuter Newswire, Apr. 9, 1995. The murder "occurred during a court hearing in Shabqadar town over a complaint that the two men, Rashid and Riaz (both one name), were trying to convert another resident, Daulat Khan, to [Pakistan's] banned sect." Id. Witnesses stated, "[a] crowd of people suddenly surrounded the men and started stoning them until Rashid died on the [scene] … Riaz was taken to a hospital with serious injuries." Id. The Reuter report did not mention whether any charges were filed against the perpetrators of the stoning.

Prior to the stoning, the crowd demanded that Rashid and Riaz (Rashid's son-in-law) denounce their heretical faith and insult Mirza Ghulam Ahmad. Friday Sermon delivered by Hazrat Mirza Tahir Ahmad at the London Mosque, London, England on May 26, 1995 (errors in the translation from Urdu are the author's alone). Rashid and Riaz answered by asserting they were Muslims and that there was no heresy to denounce. Id. They recited the Kalima Tayyaba before the crowd. Id. The crowd repeated its demands for Rashid and Riaz to insult Mirza Ghulam Ahmad. Id. Riaz replied by stating that the Islam he learned taught him to not make insulting remarks regarding anyone. Id. The crowd, frustrated by the refusal of their demands, proceeded to stone Rashid and Riaz. Id.

On October 12, 1994, in Islamabad, Pakistan, Dr. Nasim Babur, a physics professor at Quaid-i-Azam University in Islamabad, was shot and murdered by an intruder in his home. Pakistani Ahmadis Complain of Murders by Fanatics, Reuter newswire, Oct. 18, 1994. Police authorities took no action to investigate Dr. Babur's murder despite written appeals to President Farooq Leghari, Prime Minister Benazir Bhutto, and other government officials. Id. Pakistani media reported that Dr. Babur was killed because he was an Ahmadi. Telephone Interview with Mujeeb-ur-Rahman, Pakistan Supreme Court Advocate (Oct. 31, 1994).
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Rather than applying the same standards to everyone, Ordinance XX expressly forbids members of the Ahmadi community from engaging in practices which are legal and encouraged in the majority community. The Ordinance is therefore fundamentally discriminatory and would be unconstitutional under U.S. law…. In addition, the [Pakistan] Court's concern for "law and order" would not provide a sufficiently "neutral" purpose under U.S. law. Throughout the opinion, [the Pakistan] Court referred to the animosity of the majority community against the Ahmadis, maintaining that the majority considers the Ahmadi movement "a serious and organized attack on its ideological frontiers" and "a permanent threat to its integrity and solidarity." Under U.S. law, such admitted animosity, alone, would be sufficient to find Ordinance XX unconstitutional.

Letter from M.H. Posner to Chief Justice S.S. Jan, supra note 157.
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374 U.S. 398 (1963).
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494 U.S. 872 (1990).

This article is not addressing the issue of whether, in order to be found unconstitutional, a neutral law must infringe upon a fundamental right as well as an individual's free exercise of religion. That issue was raised by Employment Division. See Jennifer D. Malinovsky, Consitutional Law - Liberty or Luxury? The Free Exercise of Religion in the Aftermath of Employment Division, Department of Human Resources v. Smith, 26 Wake Forest L. Rev. 1297 (1991). Since Ordinance XX is not neutral, it would be found unconstitutional under either standard, therefore, to enter this debate is not necessary.
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Sherbert, 374 U.S. at 403 (quoting NAACP v. Button, 371 U.S. 415, 438 (1963)). In Sherbert, the appellant, a Seventh Day Adventist, was discharged by her employer because she refused to work on the Sabbath pursuant to the dictates of her faith. Id. at 399. She was thereafter unable to obtain other employment because of her refusal to work on the Sabbath. Id. at 399, n.2. The appellant filed a claim for unemployment compensation, but was deemed ineligible for benefits because her religious beliefs allegedly did not provide her good cause to refuse suitable employment. Id. at 309-401. The South Carolina compensation statute, in effect, required the appellant to forego her religious convictions and work on Saturdays. Id. The appellant alleged that requiring her to work on Saturdays was an unconstitutional burden on the free exercise of her religious beliefs. Id. at 401. The United States Supreme Court held that the eligibility requirement of the South Carolina statute was an unjustifiable infringement on the appellant's religious freedom and was thus unconstitutional. Id. at 406-09.
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Id. at 403 (citing Reynolds v. United States, 98 U.S. 145 (1878); Jacobson v. Massachusetts, 197 U.S. 11 (1905); Prince v. Massachusetts, 321 U.S. 158 (1944); Cleveland v. United States, 329 U.S. 14 (1946)).
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Id. at 402 (citing Torcaso v. Watkins, 367 U.S. 488 (1961); Fowler v. Rhode Island, 345 U.S. 67 (1953); Murdock v. Pennsylvania, 319 U.S. 105 (1943); Follett v. McCormick, 321 U.S. 573 (1944); Grosjean v. American Press Co., 297 U.S. 233 (1936)).
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Id. at 403.
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See Sherbert, 374 U.S. at 412 (Douglas, J., concurring).
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Id. at 411 (Douglas, J., concurring).
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Zaheeruddin, 1993 S.C.M.R. at 1746-47 (Rahman, J., dissenting).

Justice Shafiur Rahman dissented from the majority judgement written by Justice Abdul Qadeer Chaudhry. Id. at 1733-49 (Rahman, J., dissenting). Also, Justice Saleem Akhtar called for remanding the criminal cases but said that all of the laws against Ahmadis did not violate freedom of religion. Id. at 1779-80.

Justice Rahman would have found that only 298B(1)(c) & (2) and 298C(c) and (d) of the Pakistan Penal Code violated the fundamental right of freedom of religion. Id. at 1747-48. See infra Appendix I for the complete text of Ordinance XX and 298B & C therein. He correctly found that as Ahmadi practices were adopted from Islam, were not of "recent origin or device," nor adopted "with a view to annoy or outrage the feelings and sentiments of non-Ahmadis," Ahmadis are not committing fraud upon the public nor are they inciting violence in society. Zaheeruddin, 1993 S.C.M.R. at 1746-47 (Rahman, J. , Dissenting).

Being an essential element of [Ahmadi] faith and not being offensive per se, prohibition on the use of these by them and making it an offense punishable with imprisonment and fine violates the Fundamental Right of religious freedom of professing, practising and propagating [religion] and of [the] Fundamental Right of equality inasmuch as only Qadianis or Ahmadis are prevented from doing so and not other religious minorities. It is not the "Azan" or the naming of "Masjid" which has been made objectionable by law but doing of these by Ahmadis or Qadianis alone.

Id. at 1747.

However, Justice Rahman compromised by finding some parts of 298B and 298C constitutional and some not. See id. at 1746-49. Justice Rahman asserted that the five criminal appeals should have been set aside. Justice Rahman also stated the two civil appeals in Mujeeb-ur-Rehman Dard, the constitutional challenges, should have been partly allowed based on the partial unconstitutionality of Ordinance XX. Justice Rahman agreed, however, with the majority, in reference to Khurshid Ahmad, regarding the upholding of the law barring the Ahmadi celebration of the centenary. See id. at 1741-42, 1749. Justice Rahman stated he would allow Ahmadis some Islamic epithets and practices and not others.

The dissenting Justice adhered to the notion that Ahmadis are constitutionally non-Muslims and, therefore, found that not all of Ordinance XX is unconstitutional. Id. at 1742-43. Although Justice Rahman's opinion was more just than that of the Court, it was not completely satisfactory, as all of Ordinance XX is repugnant and denies Ahmadi religious freedom. To find for Ahmadis in some sections and against them in others indicates Justice Rahman tried to reconcile religious freedom and intolerance, attempting to please both sides. His dissenting opinion was ultimately unsatisfactory because he would still have unconstitutionally restricted Ahmadi religious freedom.
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Employment Division, 494 U.S. at 870-90. In Employment Division, respondents were fired by a private drug rehabilitation organization for ingesting peyote, a hallucinogenic drug, for sacramental purposes at a Native American ceremony. Id. at 872. Their applications for unemployment compensation were denied because of the disqualification for being discharged for work-related "misconduct." Id. The U.S. Supreme Court upheld the laws prohibiting sacramental peyote use and denied the respondents their employment benefits. Id. at 890. Employment Division was legislatively overturned by the Religious Freedom Restoration Act of 1993, 42 U.S.C.A. 2000bb. The holding in Employment Division, despite the fact that it is widely viewed as an attack on free exercise, is still consistent with a finding of Ordinance XX's unconstitutionality.
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Id. at 879 (quoting United States v. Lee, 455 U.S. 252, 263 n.3 (1982) (Stevens, J., concurring)).
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Id. at 882. The U.S. Court distinguished Sherbert by finding that, unlike the case at hand, Sherbert did not deal with a religious practice that was already a criminal offense. Id. at 882-84.
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Id. at 878-82.
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113 S.Ct. 2217 (1993). Hialeah was decided in June of 1993, while Zaheeruddin came down later in July.
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Id. at 2231.
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Id. "The Free Exercise Clause [of the U.S. Constitution] commits government itself to religious tolerance, and upon even slight suspicion that proposals for State intervention stem from animosity to religion or distrust of its practices, all officials must pause to remember their own high duty to the Constitution and to the rights it secures." Id. at 2234 (emphasis added).

The logic behind this principle [in Hialeah] is clear and universal. Legislatures are frequently urged by their constituencies to restrict the religious practices of vulnerable minority groups. Thus, it is these minorities that are most in need of constitutional protection. To deny them this protection - indeed to limit their religious practices because of their unpopularity -would, in the Court's own words, render those rights "nonexistent."

Letter from M.H. Posner to Chief Justice S.S. Jan, supra note 157, at 2-3.
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Hialeah, 113 S.Ct. at 2233.
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See infra Appendix I.
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Hialeah, 113 S.Ct. at 2231.
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[The logic of Hialeah] can be applied to the case of the Ahmadis. Ahmadis, as a religious minority, are in most need of Pakistan's Constitutional protection…. [The Pakistan] Court has an obligation to render a judgement free of religious intolerance and animosity against the Ahmadis. To offer anything less violates the Constitution of Pakistan. … 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. This standard is universally recognized and consistently upheld. To sanction Ordinance XX and its discriminatory impact and religious restrictions is to violate a fundamental and universally recognized standard of human rights.

Letter from M.H. Posner to Chief Justice S.S. Jan, supra note 157, at 2-3.
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