Home Critical Analysis/Archives Enforced Apostasy: …

IV International Human Rights Law.

International human rights law protects Ahmadis' fundamental right of freedom of religion. The United Nations Charter, *232 the Universal Declaration of Human Rights, *233 the International Covenant on Civil and Political Rights *234 and the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief *235 all safeguard the Ahmadi right to freedom of religion. *236 When there is hostility or bigotry based on religious intolerance, governments are obligated to defend the suffering group and provide effective redress. *237 Ordinance XX violates all of these international standards. Ahmadis are discriminated against by Ordinance XX because of hostility from the Sunni majority. Ahmadis cannot call themselves Muslims, assemble as they wish, publish their literature freely or practice their Islamic faith. *238 The Pakistan Government violated international human rights law when it enacted Ordinance XX. The Pakistan Court disregarded these international standards by not defending and protecting Ahmadis.

Ordinance XX was denounced in 1985 by the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities as a violation of human rights. *239 Resolution 1985/21 rejects the Pakistan Government's justifications for Ordinance XX's restrictions on Ahmadis as a public safety regulation. The Pakistan Government asserted that Ahmadi beliefs incite violence and that the government must “restrain Ahmadi practices which offend orthodox Muslims.” *240 According to international standards, Ahmadis possess the right to Muslim self-definition. *241 Although there is much debate on the status of human rights as international customary law, this section demonstrates Pakistan's disregard for the human rights standards espoused by the United Nations. *242

232	“The Purposes of the United Nations are: … to achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion …” U.N. Charter, art. 1(3). “The United Nations shall promote: … universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion.” Id. art. 55(c).
233	Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance. Universal Declaration of Human Rights art. 18, at 1, G.A. Res. 217A(III), U.N.Doc.A/811 (1948) [hereinafter Universal Declaration], reprinted in Basic Document Supplement to International Law: Cases and Materials 144-45 (Louis Henkin et al. eds., 3d ed. 1993) [hereinafter Document Supplement]. Sir Muhammad Zafrulla Khan was one of the drafters of the Universal Declaration. Parker, supra note 99, at 3.
234	Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching…. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice…. Freedom to manifest one's religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others. International Covenant on Civil and Political Rights, art. 18(1)-(3), 999 U.N.T.S. 171 [hereinafter International Covenant], reprinted in Document Supplement, supra note 233, at 156-57. Article 19 of the International Covenant refers to freedom of expression and states that it can only be restricted “for the protection of national security and public order….” According to the International Covenant, freedom of religion is a nonderogable right. Id. art. 4(2). Religious groups are protected from advocacy of “hatred that constitutes incitement to discrimination, hostility or violence.” Id. art. 20.
235	The right to freedom of thought, conscience, religion or belief shall include … the following freedoms: To worship or assemble in connection with a religion or belief, and to establish and maintain places for these purposes; To establish and maintain appropriate charitable or humanitarian institutions; 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; To write, issue and disseminate relevant publications in these areas; … Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, art. 6, G.A. Res. 36/55 (1981) [hereinafter Religious Declaration], reprinted in Document Supplement, supra note 233, at 173. Limitations may be placed on the right to publicly practice a religion when “necessary to protect public safety, order, health or morals or the fundamental rights and freedoms of others.” Religious Declaration, art. 1(3); see also International Covenant, supra note 234, art. 18(3); Universal Declaration, supra note 233, art. 29(2). See discussion supra Part III, Section C (demonstrating how the public safety requirement does not apply to the case of Ahmadis). Limitations regarding the right to maintain or deviate from a religion or belief, however, are not permissible. Religious Declaration, art. 2(1); International Covenant, supra note 234, art. 18(2); Krishnaswami, Study of Discrimination in the Matter of Religious Rights and Practices at 16, U.N.Doc.E/CN.4/Sub.2/200/Rev.1 U.N. Sales No. E. 60. XIV. 2 (1960).
236	Pakistan is a member of the United Nations. Document Supplement, supra note 227, at 24. Pakistan's Constitution is a post-World War II constitution and thus incorporates the Universal Declaration. Rahman Interview, supra note 4. Pakistan, however, did not ratify or sign the International Covenant. See Document Supplement, supra note 233, at 162. Aside from the United Nations Charter, these international documents are not binding on Pakistan. This section demonstrates Pakistan's disregard for United Nations human rights standards.
237	See U.N. Commission on Human Rights Resolution 1993/25, op. paras. 3, 5, and 6, at 111-112 U.N.Doc.E/1993/23.
238	See infra Appendix I.
239	The Sub-Commission … expresses its grave concern at the promulgation by Pakistan of Ordinance XX of 28 April 1984 which, prima facie, violates the right to liberty and security of the persons, the right to freedom from arbitrary arrest or detention, the right to freedom of thought, expression, conscience and religion, the right of religious minorities to profess and practise their own religion, the right to an effective legal remedy; [the Sub-Commission] further expresses its grave concern that persons charged with and arrested for violations of Ordinance XX have been reportedly subjected to various punishments and confiscation of personal property, and that the affected groups as a whole have been subject to discrimination in employment and education and to the defacement of their religious property; … Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Thirty-Eighth Session, at 102 U.N.Doc.E/CN.4/1986/5 (1985/21, The situation in Pakistan) [hereinafter Resolution 1985/21]. See infra Appendix IV for the full text of Resolution 1985/21.
240	Statement of Pakistan (Right to Reply), 42 U.N. E.S.C. Commission on Human Rights, U.N.Doc.E/CN.4/1986/SR.31, cited in Parker, supra note 99, at 7 n.23. “In defending Ordinance XX, then President General Zia-ul-Haq told this author [Karen Parker] ‘Ahmadis offend me because they consider themselves Muslims…. Ordinance XX may violate human rights but I don't care.’” Parker, supra note 99, at 7 (interview with President General Zia-ul-Haq, Army House, Rawalpindi, Pakistan, May 5, 1986).
241	Parker, supra note 99, at 7. Pakistan Penal Code Section 295C, which provides the death sentence for “blasphemy” has also given the United Nations reason for grave concern. Implementation of the Declaration, supra note 14, at 81. Holding civilian trials in military courts violates international standards of human rights. H.R. Con. Res. 370, supra note 14.
242	Pakistan's noncompliance with international human rights standards, initially established by the U.N. Charter, makes it unworthy of membership in the United Nations. This Ordinance violates basic human rights in the most obnoxious form and is an affront to humanity and the fundamental principles of the United Nations … Any country which does not respect the basic human rights and blatantly violates the United Nations Charter … must not be permitted to remain a member of the United Nations. Letter from Hazrat Mirza Tahir Ahmad, Head of the Ahmadiyya Muslim Community in Islam, to the author, postdated Nov. 1, 1994 (spelling and punctuation corrected) (on file with the Law and Inequality Journal). See also United nations, Elimination of all forms of intolerance and discrimination based on religion or belief: Study Series 2 49 (1989) (stating that nations who refuse to comply with U.N. General Assembly Resolutions and declarations, like the Declaration on the Elimination of All Forms of Intolerance and Discrimination Based on Religion or Belief, place themselves in positions that are incompatible with their status as members of the United Nations).