Sunday April 14, 2024

Amending Khatm-e-Nabuwwat oath failure of parliament: IHC

By Faisal Kamal Pasha
July 05, 2018

ISLAMABAD: Justice Shaukat Aziz Siddiqui of the Islamabad High Court (IHC) here on Wednesday issued detailed judgment in a matter pertaining to the issue of Khatm-e-Nabuwwat that severely jolted the previous PML-N government back in October 2017 causing wide spread protests across the country leading to resignation of Federal Minister for Law Zahid Hamid.

Against an amendment in the oath of Khatam-e-Nabuwwat in Election Act 2017, a religious political party held a protest sit-in at Faizabad, chocking the twin cities and several lives were lost during the ensuring police operation.

Justice Siddiqui on March 9 this year issued a short order with certain declarations. That short order is also part of this judgment. In the short order, Justice Siddiqui had declared that nobody should be allowed to conceal his/her real religious faith and for getting CNIC, passport, birth certificate, entry in voter list, appointment in judiciary, armed forces and civil service, an affidavit must be sworn by the applicant based on definition of Muslim and Non-Muslim provided by Article 260 (3) (a) (b) of the Constitution. Appointment of a non-Muslim on constitutional posts is against the law.

In this recent 172-page judgment, Justice Siddiqui held that it is difficult for the court to single out a person responsible for the amendment in Election Act (EA-2017); however, the report of Raja Zafar-ul-Haq Committee is relevant.

The IHC directed the authorities concerned to make the report public. The bench held the whole parliament responsible for the amendment in the oath of Khatam-e-Nabuwwat and said, “It is for the Parliament which can explain the real intent but prima facie it appears that a deliberate and motivated effort was made by the draftsmen of the bill to bring Qadianis in the loop of majority in order to diminish their separate identity as non-Muslims. I observe with great concern that all the members of the National Assembly as well as the Senators (without distinction of parties) failed to identify the motive, lacuna and an effort to frustrate constitutional amendment through simple enactment which is not permissible under the law. In my opinion, Parliamentarians either exhibited casual approach or failed to realise the sensitivity of the issue and, to this end, could not expose the plot against the Constitution”.

The IHC bench noted that the matter related to the oath of Khatm-e-Nabuwwat has been solved by the parliament but the legislature should think over the powers given to the Election Commission of Pakistan (ECP). It noted ECP’s powers to make rules and regulation need to be re-examined as there is a serious apprehension and grave concern that any rule and regulation about the Act vis-à-vis declaration of religion, either being Muslim or non-Muslim, may create serious law and order situation and challenge the mandate of the constitution.

The judgment noted that Parliament’s Sub Committee in its 91st meeting, held on May 24, 2017, considered draft Election Bill and related election forms as redrafted by then Minister for Information Technology Anusha Rehman and PTI MNA Shafqat Mehmood. In next meeting, the Sub Committee considered redrafted Forms presented by Anusha Rehman and these were approved subject to some rechecking/scrutiny by the Convener, who was then law minister. Later on, leaders of all parliamentary parties were contacted by the speaker of the National Assembly and were made to realise the sensitivity of this issue and they agreed on October 4 2017 to reinstate the original wording of the Khatam-e-Nabuwwat declaration.

All the parliamentary political parties initially agreed to restore the original Articles 7B and 7C of Conduct of General Elections Order (CGEO), 2002. Consequently, an amendment was made to restore these provisions. Later on, through consensus of all political parties, Articles 7B and 7C of CGEO 2002 have been inserted in Election Act, 2017 vide Section 48A in an improved manner. The new addition of Section 48A has resulted in making the previous Articles 7B and 7C which became inoperative 15 years ago on 26.06.2002 as perpetually operative.

The IHC bench noted that Zahid Hamid during a meeting held on this issue admitted to the fact that basically it was his primary responsibility to see that the draft does not contain any thing controversial but somehow he felt that he failed to perform his duty despite his legal acumen; experience and command of language. The bench held that it is obvious that it was a failure on such a sensitive issue on the part of Zahid Hamid.

The judgment noted that the September 7, 1974 is a big occasion for the Muslims as on the same day Parliament unanimously carried the 2nd Amendment Bill declaring Qadianis non-Muslims. On the contrary, Qadianis through different devices and maneuvering tried their best to frustrate the objects of the amendment. After declaring Qadinais/Lahoris as non-Muslims, there should have been some steps for their separate identity, recognition, and scrutiny, as Qadinais are not like other minorities who could be easily identified through their appearance, names, beliefs and mode of prayers, it said. On the contrary, Qadianis have same names, appearance and even their prayers are like Muslims, therefore, confusion about their separate identity resorted to declare them non-Muslims but the purpose could not have been achieved e.g. name “Ahmad” is somewhat specified for Qadianis and the basis of same they are also termed as Ahmadis which cannot be permitted. Name “Ahmad” refers to the Holy Prophet Hazrat Muhammad (PBUH). Muslims are possessive about this name, and in first interaction or introduction name of an individual indicates about the religion of any person, it said.

Therefore, it is only in the fitness of things that Qadianis may be referred to as Ghulaman-e-Mirza/Mirzai etc. but not as Ahmadis and they should also be stopped using Muslim names, the IHC bench said. The bench in its order said that during dictatorial regime of General (R) Pervez Musharaf, Qadianis access to power corridors was being felt by everyone and remained matter of concern, it said. Tariq Aziz, a bureaucrat and a known Qadiani, was Principal Secretary to the President and he played his role and managed induction of Qadianis in different departments, including constitutional offices and due to his maneuvering Qadianis were made part of consultation process on different sensitive issues.

Recently, Wajid Shamsul Hassan, a Qadiani, disclosed his faith, by addressing annual gathering of Qadianis held in country of their patronage i.e. UK, it said. It goes without saying that that every citizen of Pakistan irrespective of race, cast, creed or religion has a right to life and to profess their own religion within the contours of the Constitution. However, having already constitutionally declared Qadianis to be non-Muslims, it is only justified that they be treated on the same footing as other minorities who are easily identifiable by, least of all, their names and they fortunately do not imposter themselves to be from a religion they are not.

The bench noted that the report of the FIA with respect to individuals who have travelled abroad after affecting a change in their religion in the records of Nadra is alarming. In the larger interests of the country, the court is avoiding disclosing the names of many who held high positions in the bureaucracy, judiciary, military, naval, and air forces and other sensitive and important institutions having Qadianis beliefs while hiding their real religious identities as it would bring bad taste but this practice has to be brought to a halt, the order said. It said that last but not the least, the defender(s) in whose hands the defence of Islamic Republic of Pakistan rests belongs to which religion? This was the responsibility of the State, and the federal government in particular, but it has badly failed to discharge it, which necessitated this court to issue directives, the IHC said.

A person who is non-Muslim and conceals his religion is actually an open defiance to the words and spirit of the Constitution, it said. To prevent this disobedience, the state needs to take immediate measures. It said, “The matter of absolute and unqualified finality of Prophet-hood of Muhammad (SWA) is the nucleus of our religion.”

The IHC has directed Nadra to must fix time duration for any citizen who intends to make correction/change in the already given particulars, especially religion. Parliament should do a legislation and also do requisite amendments in the existing laws to ensure that all the terms which are specifically used for 'Islam' and 'Muslim' are not used by the persons belonging to any of the minorities for hiding their real identity or for any other purpose, the IHC bench said.

IHC bench referring to Quranic injunctions, teachings of the Holy Prophet Hazrat Muhammad (SAW) and incidents from the life of Sihaba (RA) has said, “There shall not be any iota of doubt that it is the responsibility of the State to also ensure the protection of rights of minorities in the light of teachings of Islam being the religion declared by the Constitution of the country.”

Detailed judgment has also revealed some very interesting aspects of Pakistani society like as per Nadra record 26 Jews also embraced Islam. It is to mention here that Justice Siddiqui while hearing this case on March 5 had remarked that Mirza Nasir in 1974 had announced that there are two million Qadianis in Pakistan. The court had expressed its astonishment that according to census statistics in 1998, there were 286,212 Qadianis in Pakistan whereas according to the recent statistics provided by Nadra, 167,000 persons are registered with the authority as Qadianis.

Beside this, Nadra had provided the court with details that how many non-Muslim converted to Islam and how many of them converted from Islam to other religions. As per statistics mentioned in the judgment, a total of 38488 persons converted to Islam from other religions including 6428 Qadianis. As per Nadra records, 17,971 Muslims converted to other religions including 10, 205 Qadianis.