Beyond 2nd Amendment

January 24, 2016

A historical review of the contradictions of Pakistan’s anti-Ahmadi laws

Beyond 2nd Amendment

Shakoor bhai, an eighty-year-old bookseller from Rabwah, is the latest victim of persecution for being an Ahmadi. He was arrested for stocking and selling books that had either been banned through an official notification issued by the government of Punjab or were likely to cause disorder. He was prosecuted under the provisions of the Anti-Terrorist Act and sentenced to eight years of imprisonment. The books seized from his shop include copies of the Quran and the biography of the founder of the Ahmadiyyah community.

What is interesting is the way the first investigation report (FIR) registered against him is worded. It indicts Shakoor bhai of selling books that could lead to sectarian and religious discord (firqa warana wa mazhabi manafrat). Since the Constitution of Pakistan designates Ahmadis (pejoratively referred to as Mirzais and Qadiyanis) as non-Muslims, the question is how could someone be accused of promoting sectarian strife when his religious beliefs are considered to be antithetical to the religion rather than being a sect of that religion. This contradiction is only one of the many in Pakistan’s various amendments, laws and judicial verdicts dealing with the Ahmadis.

In 1974, when Pakistan’s National Assembly was mulling over the fate of the Ahmadis, the attorney general of Pakistan, Yahya Bakhtiar, was striving to build a strong case against the Ahmadis by invoking their history, politics and beliefs. The proceedings lasted for about a month. Mirza Nasir Ahmed, the head of the Ahmadiyya community, was exhaustively questioned by the committee of the House convened especially for this purpose. Bakhtiar concluded the proceedings by describing the Ahmadi religious beliefs as anathema to the modernist spirit of Islam, which, according to him, had ushered in an era of human rationality by closing the door not only of prophet-hood, but also the possibility of divine guidance. He also described the Ahmadis as a disruptive force immaculately organised into a closely-knit community.

While concluding his arguments, Bakhtiyar pointed out the contradiction in declaring the Ahmadis as non-Muslims while paradoxically promising them the protection of their religious and political rights. He said:

"On the one hand they say [i.e. Ulema/opponents of Ahmadis] they are a subversive movement, they indulge in subversion inside and outside. What is that subversion? Propagating [sic] their religion, practising their religion, whatever they may be? You want to safeguard their rights at the same time condemn them. You cannot have both. […] If you declare a section of population as a separate religious community, then not only the Constitution but even your religion enjoins upon you to respect their right to profess and practise their religion and to propagate it."

In other words, Bakhtiar pointed out the clear contradiction between the condemnation of a community ostracised for its subversive religious beliefs and political practices, while promising the protection of their religious beliefs and political practices under the Constitution -- a contradiction that Bakhtiar had himself helped build during the proceedings of the National Assembly.

The constitutional safeguards offer no protection and guarantee no rights against this criminalisation of the very existence of Ahmadis. It can only be undone by revisiting the debates and processes that criminalised the religious and political identity of Ahmadis.

The Second Constitutional Amendment unanimously passed by the assembly in 1974 declared the Ahmadis as non-Muslims for the purposes of the Constitution and law. In his important work on a related theme, a Harvard anthropologist Asad Ahmad emphasises the significance of this wording. According to him, Ahmadis were non-Muslims only for legal purposes; in their everyday life and practice -- ‘ontic identity’ as he calls it -- the Ahmadis were still Muslims. So while the constitution considered Ahmadis as non-Muslims, Ahmadis continued to live as Muslims.

Again, the contradiction between the law and practice was quite stark. A group of Ulema took this matter to the court on the plea that Ahmadi appropriation of Islamic symbols, terminologies and ritual practices was a violation of their rights protected under civil law. In the famous ‘Abdur Rehman Mubashir v. Syed Amir Ali Shah’ case in 1978, Justice Aftab Hussain of the Lahore High Court observed that Ahmadi practice of Islam did not inflict any material damage to the proprietary rights of the Muslims. The judge wrote: "Rights in trademarks or copyrights are matters which are the concern of statutory law. There is no positive law investing the plaintiffs with any such rights to debate the defendants from freedom of conscience, worship, or from calling their place of worship by any name they like."

This gap between the legal and ontic identity of Ahmadis was bridged by the infamous Ordinance XX of 1984 which barred the Ahmadis from ‘posing’ as Muslims or using Islamic terminologies and epithets for their religious beliefs and practices. As regards the use of such epithets as Sahaba and Umhat-ul-Momineen for the associates and wives of the founder of the Ahmadiyyah community, Mirza Ghulam Ahmad, the ban was not burdensome for the Ahmadis.

In the past, the community had realised the impact of such terminologies on the general public and refrained from using it. For instance, following the massive anti-Ahmadi riots of 1953, the head of the community, Mirza Bashir-ud-Din Mehmud, decided not to use the term kafir (infidel) for non-Ahmadis. In his statement before the court of inquiry, Mehmud had said that he and other members of the community had been using the term kafir in the sense of denier of the prophetic status of Mirza Ghulam Ahmad and not in the sense of being non-Muslim. However, such a nuanced, lexicographic distinction was an afterthought and, in any case, lost upon the mind of the general public who simply viewed it as a declaration of kufr by the Ahmadis against those who did not accept Mirza Ghulam Ahmad’s claim to prophethood.

The real damage was done by other provisions of the ordinance whereby the Ahmadis could not ‘act’ like Muslims. The Ahmadis unsuccessfully challenged this ordinance in the Federal Shariat Court, hoping for reprieve since they believed that even though they reluctantly acquiesced to the constitutional declaration of kufr by the assembly, shariat law still allowed them to continue practising their religion as Islam.

Related article: "The Second Amendment polarised the society," says Sheikh Mujeeb ur Rehman

The contradictions arising from this ordinance became manifest in 1989 when several Ahmadis were arrested for celebrating the centenary of the foundation of the Ahmadiyyah Jamat and wearing badges with the kalima written on it. The matter went to the court and resulted in a landmark judgement of the Supreme Court in 1993. ‘Zaheer-ud-Din vs. The State’ was a split decision in which one judge, Justice Shafi-ur-Rehman, found many provisions of Ordinance XX -- under which the arrests had been made -- to be contrary to the fundamental rights guaranteed in the Constitution. (An excellent and highly readable commentary for general readers of this case and its background has been written by Martin Lau and made freely accessible online.

During the court proceedings, Fakhruddin G. Ebrahim was the counsel for the appellants. He described Ordinance XX of 1984 as "oppressively unjust, abominably vague, perverse, discriminatory, produce of biased mind, so mala fide and wholly unconstitutional". It not only violated Article 19 (freedom of speech) and Article 25 (equality of citizens), he argued, but also Article 20 (freedom to profess religion) which could not be suspended even during the state of emergency.

The majority judgement, written by Justice Abdul Quadeer Chaudhary, touched upon two main themes. First, it invoked the provisions of trademark laws to endow the entire Muslim community with exclusive copyright over the use of Islamic beliefs and terminologies. The judge wrote:

"For example, the Coca Cola Company will not permit anyone to sell, even a few ounces of his own product in his own bottles or other receptacles, marked Coca Cola, even though its price may be a few cents. Further, it is a criminal offense carrying sentences of imprisonment and also fine. The principles involved are: do not deceive and do not violate the property rights of others." [emphasis mine]

The argument is too spurious to require any elucidation. Trademark protection or intellectual property rights exist to protect original and creative ideas developed by individuals and firms for profiteering. Religions -- especially if their adherents believe them to be of Divine origin -- are not ‘developed’ by individuals nor followed by devotees to gain any profit. As Amjad Mahmood Khan has pointed out in his critique of this judgment, "Islam, unlike Coca Cola, is not a registered company", nor is all Islamic terminology unique to Islam since many have emanated from other monotheistic religious traditions, such as Christianity and Judaism. Justice Chaudhary not only commoditised religion but also described it as "the most precious thing to a Muslim" making it necessary for the government to protect it from deceptions or forgeries.

The second important part of the judgement, in my estimation, is the discussion on the right to profess religion. The judgement takes the simple route of invoking the provision of limits prescribed in the interest of the society and maintenance of law and order. The state, said Justice Chaudhary, could not allow one community to violate the rights of another community under the pretext of exercising their religion.

The judgement also cited various cases from around the world to justify restrictions on certain aspects of religion. Courts all over the world define not only religion but also the essentials of religious beliefs and practices. Citing the example of Mormons, the judgement said that they have a right to practice their religion in North America, but they are not allowed to be polygamous as it goes against the law of the country. A legal restriction in this matter does not amount to a violation of the fundamental rights of Mormons to profess and practice their religion.

The problem lies in the court’s definition or interpretation of the Ahmadi religion and its essentials. The verdict describes Ahmadiyyat as "a conspiracy against Islam" and, after citing various quotes from the writings of Mirza Ghulam Ahmed, comments:  "Can anyone blame a Muslim if he loses control of himself on hearing, reading or seeing such blasphemous material as has been produced by Mirza Sahib?"

In other words, the Ahmadi religion is essentially equated with blasphemy. The highest court of law in Pakistan, in no uncertain words, absolves any perpetrator of violence against the Ahmadis of any responsibility on the pretext of religious hurt caused by Ahmadi beliefs. Like Bakhtiar, Justice Chaudhary in glaringly contradictory terms wrote that "the Ahmadis like other minorities are free to profess their religion in this country and no one can take away that right of theirs, either by legislation or by executive orders". In his opinion, the Ahmadis could continue to practise their religion as long as they respected the law and refrained from appropriating Islamic terminologies or misleading people about their actual faith.

Read also: Being Ahmadi in Pakistan by I.A. Rehman

The Supreme Court verdict of 1993 allowed the Ahmadis to coin their own terms, symbols, epithets and terminologies. However, it fails to even consider the basic issue that even if the Ahmadis accept their legal status as non-Muslims and follow the law as dictated by the Supreme Court verdict, they will still continue to believe in the prophetic status of Mirza Ghulam Ahmad which, according to their belief, is derived from the spiritual and religious authority of Prophet Muhammad himself. Such a statement, Justice Chaudhary and many others in Pakistan seem to think, is enough to bring a devout Muslim to the verge of committing any possible act to safeguard the dignity and honour of Prophet Muhammad. The Ulema in recent times have given fatwas that far from being a prophet or a revivalist of Islam, anyone who considers Mirza Ghulam Ahmed even as a Muslim is himself a kafir.

In these circumstances, what exactly is the quantum of religious liberty allowed to the Ahmadis? Even if they do not refer to their form and place of worship as namaz and masjid respectively, they still have to fulfil the essential requirements of their faith, read the Quran, pay annual charity and perform the pilgrimage. Most importantly, what should be their description of an essential component for a distinctive faith structure that revolves around the status of Mirza Ghulam Ahmed as a prophet?

In other words, how should the Ahmadis profess their faith in the prophetic status of Mirza Ghulam Ahmed without referring to Quran, Hadith and Prophet Muhammad? Unlike the Baha’is who originated from within the larger Islamic tradition and later branched off as a separate religion, the Ahmadis make no such claims of being a separate religion, even though they have, in the past, insisted on registering themselves as separate from mainstream Muslim groups.

All the constitutional changes, ordinances issued and judicial verdicts share the same contradiction: they declare the Ahmadis as non-Muslims, or a minority because of their allegedly heretic religious beliefs and subversive political activities, and yet vouch to guarantee their religious and political rights as a non-Muslim minority. If the Ahmadi religion is a conspiracy against Islam, as stated by Justice Chaudhary, why does he in the same breath state that the constitution guarantees their right to profess religion?

After all, in his words, Pakistan is an ideological state and should fight against such conspiracy. Simply by disallowing the Ahmadis from calling themselves Muslims is not enough. Even if the Ahmadis agree to call their religion Mirzayyat/Qadiyaniyyat sponsored by anti-Islamic forces, they cannot be allowed to profess and propagate their religion as it would then clash with the avowed ideological basis of the state.

So if the reasoning followed by Yahya Bakhtiar and Justice Chaudhary and his peers is taken to its logical conclusion, Ahmadism, being a conspiracy against Islam, should be banned in Pakistan. The ulema would certainly welcome such a step. In fact, I will be surprised if they have not already made such a demand. Not that the absence of a ban has meant freedom to profess, practise and propagate their religion for the Ahmadis. It has simply meant the existence of an uncertain situation in which anti-Ahmadi laws can be invoked anytime on the pretext of blasphemy, hurting of religious sentiments and possession of inflammatory literature to result in widespread acts of violence or state oppression.

The Pakistani state, not because of any regard for the life and property of the Ahmadis but because of the fear and pressure of international backlash, has refrained from taking the ‘logical’ step of banning Ahmadiyyat as a cult/organisation and labelling every Ahmadi as a potential enemy of the state and a blasphemer. At the same time, it has allowed the very framing of the ‘Ahmadi question’ in Pakistani parliament and courts along these lines. It has then left it to private individuals to deal with potential blasphemers and disloyal citizens of the Pakistani state.

The constitutional safeguards offer no protection and guarantee no rights against this criminalisation of the very existence of Ahmadis. It can only be undone by revisiting the debates and processes that criminalised the religious and political identity of Ahmadis. Until and unless this happens, people like Shakoor bhai will continue to suffer.

Beyond 2nd Amendment