Politics of Religion: Ahmadis of Pakistan
By Tipu Salman Makhdoom
(Another Chapter form my upcoming book)
(Another Chapter form my upcoming book)
1- INTRODUCTION
In middle ages, Portuguese law
declared Muslims as protected but inferior subjects. They were decreed to live
in separate quarters and to restrict their social interaction with Christians.[1] At the same time, in the
neighbouring Spain, similar transition was taking place from a Muslim to a
Christian society. “During the war with the Muslims of Granada, Isabella
founded the first military hospital in Europe, consisting of six large tents
equipped with bandages, medicine, and beds, which were carried from on besieged
town to another.”[2]
However praiseworthy this act of the queen Isabella is, Spanish policies towards minorities viz., Muslims, Jews and newly converted Christians, were inhuman. Inquisition was on the run to check the genuineness of faith of the Christians, especially newly converted Christians. Of many accusations which would be considered grave enough to initiate formal inquisition proceedings was accusation of taking regular baths;[3] bath was associated with Muslim and Jewish religious habits and being alien to the routine of Christian monks and priests, frequent bath was considered a sign of heresy.[4] Inquisition of Muslims was not contained to their life (and often torturous death during inquisition) but be taken to haunt there generations. Since new converts from Spanish Jews and Muslims were the people whose faith was considered most liable to corruption, it were they who faced inquisition generally. Therefore Kings issued orders forbidding anyone from their lineage to hold a public post ever. Even the institution of the Inquisition maintained record of its victims and their families. Before a person could seek office or even marry, records were checked to ensure that he/she does not contain a contaminated blood.[5]
However praiseworthy this act of the queen Isabella is, Spanish policies towards minorities viz., Muslims, Jews and newly converted Christians, were inhuman. Inquisition was on the run to check the genuineness of faith of the Christians, especially newly converted Christians. Of many accusations which would be considered grave enough to initiate formal inquisition proceedings was accusation of taking regular baths;[3] bath was associated with Muslim and Jewish religious habits and being alien to the routine of Christian monks and priests, frequent bath was considered a sign of heresy.[4] Inquisition of Muslims was not contained to their life (and often torturous death during inquisition) but be taken to haunt there generations. Since new converts from Spanish Jews and Muslims were the people whose faith was considered most liable to corruption, it were they who faced inquisition generally. Therefore Kings issued orders forbidding anyone from their lineage to hold a public post ever. Even the institution of the Inquisition maintained record of its victims and their families. Before a person could seek office or even marry, records were checked to ensure that he/she does not contain a contaminated blood.[5]
Recognition of freedom to
profess faith according to one’s unfettered belief is a recent phenomenon. Starting
in ancient world as a mode of cooperation, where correcting others’ faith was
considered a social service, this faith therapy reached its zenith in the
medieval ages where Spanish inquisitor would torture and kill people believed
to be possessing “incorrect” faith, in order to “force-in” the “true” faith in
them so that they can be “pushed” in heavens. Innumerable wars and uncountable tortures
and murders have been committed on the question of who believes in which God or
god and in which manner. This had been a very sad state of affairs. Religions,
which invariably came as “true guidance” from “the compassionate God”, ended up
in the bloody struggle for power with the already established ones. Blinding
emotional affiliations of ordinary men and women with religion provided a handy
emotional tool to the power brokers of a community. Any political motive of the
King or leader presented as divinely ordained mission would become part of
faith. Decrees of priestly class would certify that worldly gains of kings will
ensure heavenly gains for poor.
In modern times, with the
dominance of reason over the dogmatic and irrational thinking of humanity, it
was slowly realized by masses that it is a very private matter of a person as
to what he wants to believe are the metaphysical realities of life and the
universe, and as long as he is not hurting others, it is his fundamental right
to have whatever belief he wants to have. That any intrusions in such matters
of faith amounts to violation of personal and intellectual privacy of a person.
This right, which has been
famously recognized in the Universal Declaration of Human Rights in 1948 was
resisted by many. Most notable among them was the Kingdom of Saudia Arabia,
which abstained from voting in United Nations General Assembly in 1948 for the
reason that this right included the right to change one’s belief or religion. Dominant
perception of religion was still as a tool to muster political power. Anyone
betraying the political community will be stripped of the right to life.
Although newly established
state of Pakistan did vote in favour of this Declaration, by 1980s it amended
its Constitution and the criminal laws to such an extent that a complete and
comprehensive denial of this right for the Ahmadi community of Pakistan became
an undeniable fact. This foreign funded bloody campaign for the purity of faith
is still lurking among the traditional players viz., the thin thinking
minority, the thick fanatic minority and the huge docile majority.
In this chapter we will first
of all have a brief over view of the role that politics play in religion. Then
we will comprehend the background of why Ahmadis ended as the sole target of
Islamic fundamentalist scholars of Pakistan and in the end we will make a
comprehensive analysis and comparison of the right of freedom of religion as
enshrined in the Universal Declaration of Human Rights, 1948 and its handling
in the Constitution of Islamic Republic of Pakistan, 1973 and the Pakistan
Penal Code, 1860.
2- POLITICS OF RELIGION
“At a press conference on 12
October 2001, US President George W. Bush stated: ‘How do I respond when I see
that in some Islamic countries there is vitriolic hatred for America? I’ll tell
you how I respond: I am amazed. I just can’t believe it because I know how good
we are.’[6]
This eccentric mentality is not limited to the imperialist super power of the
world but is prevalent in every power block; be it a super power, a political
party or a religious faction.
The medieval church, which was
the primary leader of the moralists of the time, perceived itself beacon of
solitary light in the oceans of moral darkness that had engulfed the world. The
focus of morality, however, was, as it still is, on the purity of the soul in
contrast to happiness of the living bodies. Naturally, aggressiveness of the
purists was directly proportional to the increase in the perceived moral decay
in the world. However, the priority of moral cleansing was concerned more with
sex as compared to social justice. What bothered the church of morality was not
the poor dying of hunger but people who were indulging in unauthorized sex. All
the decadence that they could see in the world was sexual, not social.[7]
However, this situation changed
drastically with the advent of the modern age. Everything that made the basis
of the classical age was transformed. Traditions, morals and religious views,
everything changed drastically. This change resulted in large part because of
the new discoveries of science which established the practical superiority of
the logical view of the world. Observing the world on the touchstone of reason
was the primary cause of the Renaissance, the Reformation and the Industrial
revolution. And so, it played decisive
part in the decay of the institutionalized dogmatic religion.[8]
Church of the moralists, which
was losing ground since modernism, started gaining ground once again with the
advent of the twentieth century; Fundamentalism. Fundamentalism is based on
fundamentals, a rigid and dogmatic view of the world devoid of reality and
reason, clinging to fixed fundamentals of an ideology. Peculiarity of a fundamentalist
mind is to close down the open-ended question that is the base of the religion,
“what do I love when I love my God?” with the dogmatic answers, thus taking
religion out of the realms of spirituality, grace and love to the sphere of
force, power, discipline and, resultantly, of authority.[9]
Fundamentalism is a system of
meanings, which are derived entirely from a sacred text. For a fundamentalist,
therefore, life can only be understood with relation to the sacred text.[10] The term Fundamentalism
originally referred to US Protestants but the Iranian revolution became the
defining image linking the term to any group advocating strict application of
sacred texts to personal and communal life.[11] A fundamentalist
approach, therefore, is not only strict but is narrow and exclusive. And
naturally, the exclusion is focused less against the other even rival
ideologies, being clearly excluded, but more against different, often less
fundamentalist versions of its own ideology, seen as confusing and often
diluting the “strictness” forming the fundamentals of the fundamentalism.
Whatever have been the origins and early formulations of fundamentalism, in a
global interdependent world, embracing shared values is the only mode of
peaceful existence. Any other mode would lead to conflict and destruction.
Mutual respect of all religions and equal rights to all religious minorities is
now a globally recognized value.
In the Unites States Supreme
Court case of 1993 titled Church of the Lukumi Babalu Aye Vs. Hialeah,
practitioners of the Santeria religion filed the case for getting the
ordinances declared unconstitutional which had outlawed their ritual of
sacrificing animals in the city. Although the lower courts held that the
ordinances prohibiting this ritual in the city were constitutional, Supreme
Court held that these ordinances were unconstitutional because those laws were
neither neutral nor generally applicable. Moreover, such laws could only be
passed if it could have been shown that there was some general interest in
passing of this law which could not have been achieved by any other less
intrusive means.[12]
Article 10 of the European Convention on Human Rights[13] provides that everyone
has the right to freedom of expression and that this right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers.[14] In a 2005 judgment in the
case of I.A. Vs. Turkey[15] European Court of Human
Rights, while interpreting article 10[16] in the context of freedom
of religion and expression held that a distinction has to be made between right
of expressing beliefs & opinions and making “provocative” opinions and
abusive attacks on someone’s religion.
3- AHMADIS: LEGALITY OF
SPIRITUALITY
Since most of the Sikhs and
Hindus had left Pakistan and went to India after partition in 1947, orthodox
Muslims of Pakistan were deprived of an infidel target to profess
politico-religious campaigns. Ahmadis filled this vaccum and religious fundamentalism,
thus turned inwards on itself.
Ahmadis emerged on the Indian
religious scene in the leadership of Mirza Ghulam Ahmad of Qadian (1835—1908).
In the beginning it was ignored as an irritation but as Mirza’s followers
started increasing, many fundamental factions of the Indian Muslims started
campaigning against them as heresy, prominent among them were the Muslim
religious leaders of the religious school of Deoband.[17] Main accusation against
Ahmadis was that they violated a fundamental pillar of the Islamic faith by
claiming their spiritual leader, Mirza Ghulam Ahmad, as a prophet of Islam.[18]
At the time of birth of
Pakistan on 14th of August, 1947 there were no specific laws
targeting Ahmadis. However, campaigns against the Ahmadis gained strength soon
after creation of Pakistan, which turned violent shortly. The main argument of
the fundamentalist Muslims was that beliefs of the Ahmadis cannot be treated as
a different interpretation of Islam but it amounted to an altogether different
and distinct religion. However, since they claim themselves as Muslims, this
creates a violation of Muslim beliefs and is provocative as well as abusive.
Consequently, they be declared non-Muslims and a religious minority and granted
same rights as those granted to Christians and Hindus, for instance. Moreover,
Ahmadis be specifically banned from claiming themselves as Muslims or
propagating their beliefs as Islam. A focused and very effective campaign was
initiated against the Ahmadis as a joint venture by many religious groups in
league with several selfish and ambitious politicians, prominent among them the
Oxford educated chief minister of Punjab, Mumtaz Daultana.[19]
Most prominent people in the
forefront of the anti-Ahmadi movement were those who just a few years ago had
either supported Congress manifesto of united secular India or had publicly and
openly opposed the creation of Pakistan.[20] Well known among them was
Maulana Abul Ala Maududi (1903—1979) the founder Chief of the hardliner
religio-politcal party Jamaat-e-Islami, who had fiercely opposed creation of
Pakistan. Maulana took up the front position against the Ahmadis in the new
born Pakistan. In 1953 there occurred a series of closely connected bloody
riots covering almost whole of the province of Punjab. Maulana Maududi was at
the fore front of these riots which were meant to pressurize the government of
Pakistan in submission to the demand of the fundamentalist religious parties to
declare Ahmadis as non-Muslims and a religious minority. However, central
government courageously refused to submit before the religious fanatics.
Consequently, martial law and curfew was imposed and soldiers opened fire on
the rowdy mobs. The riots ended within a couple of days and many miscreants
were arrested. Prime convict among the arrested was Maulana Maududi who was
sentenced to death. This sentence, however, was later commuted to some years in
prison.
In order to figure out the
reason and possible solutions of the riots, a public inquiry commission was
established in the Presidentship of Justice Munir with Justice M.R. Kiyani as
its other member. Both of these High Court Judges were undoubtedly well-educated
and progressive persons of very open yet balanced mind-set. The inquiry took
almost a year and was based on a huge record consisting of 1600 pages of
written statements, 2600 pages of evidence, 339 formally proved documents,
numerous letters, some of which exceeded 100 pages, and a host of books,
pamphlets, journals, and newspapers.[21] The crux of their close
to 400 page report was rather an eye-opener, which said:
“Keeping in view the several
definitions given by the ulama, need we make any comment except that no two
learned divines are agreed on this fundamental. If we attempt our own
definition as each learned divine has done and that definition differs from
that given by all others, we unanimously go out of the fold of Islam. And if we
adopt the definition given by any of the ulama, we remain Muslims according to
the view of that alim but kafirs according to the definition of everyone else.
[page 218]”.[22]
Ahmadis might have been
heretics for hardliners but they were considered true Muslims by the Muslim
League of Pakistan Movement. Before the 1937 elections in the British India
Jinnah had flatly refused the religious fundamentalists’ demand of banishing
the Ahmadis from Muslim community. In this backdrop inquiry commission found
that in fact it was the passage of the famous Objectives Resolution by the
constituent assembly in 1949 which had led the Ulema and the people of Pakistan
to believe that the struggle for Pakistan was in fact a struggle for the
establishment of a theocracy. Passage of Objectives Resolution was seen as a
declaration to that effect and created general expectation that the state of
Pakistan was willing to warm heartedly accept all and any demands of the people
on the basis of their religious affiliations. Almost all of the Ulemas which
were questioned by the commission declared that passing of Objectives
Resolution had left no doubt in their minds that creation of Pakistan had the
sole purpose of serving Islam which in turn had made it imperative upon them to
get the Ahmadis declared non-Muslims.[23] It was a necessary
corollary that fundamentalists were the most suitable ones for this job
because Objectives Resolution, which
later became the Preamble of the Constitution and ended up being its
substantive part, declared that the Sovereignty belongs to God and will be
exercised by the people. Since hardliners, of all the people of Pakistan, were
the most pious and closest to God, only they were qualified to exercise the
Godly power that Constitution talks about. Since de jure claimants of the Godly
power had decreed Ahmadis as Non-Muslims, it was obligatory upon the state to
follow suit.[24]
This pragmatic report was the
only short term positive result of that mess, otherwise in the long run these
riots had a far reaching negative effect on the state of Pakistan and the trend
of legislation that developed afterwards. Mumtaz Daultana was not a religious
minded person, however, as the Chief Minister of Punjab he was using the Ahmadi
riots to gain popularity and engineer his way into the office of Prime Minister
of Pakistan. In order to counter this move, Prime Minister Khawaja Nazimuddin
outsmarted him and went a step further. He provided a lot of room to the Ulemas
and religious people in order to play this effective card. Although he did not succumb
to the radicals in declaring the Ahmadis non-Muslims, in order to win them over
and downplay his other political rivals who were playing the Islamic card at
that point of time, he gave Clerics a greater say in the affairs of the State.
Thus a board of five Ulemas was established in order to advise the head of the
state as to which law was in accordance with Islam and which was against the
injunctions of Islamic law.[25] This provided enormous
boost to radical religious leaders who were already enjoying the support of
anti-socialist forces by issuing fatwas (religious decrees) declaring socialism
as an un-Islamic ideology.
Fundamentalist support soon
promoted from local politicians to international players. In the late 1960s and
early 1970s, Iran was the most dominant Muslim player in the region. In
Pakistan, Iran had quite an influence because of allegiance of Pakistani Shia
community, Iran’s role in RCD (Regional Cooperation for Development) which was
established in 1964 between Iran, Pakistan and Turkey and cultural commonality
of southern Balochis with their Iranian counterparts. Saudis, who then lately
had acquired a heap of petro-dollars, now wanted to counter the Iran’s
influence in Pakistan and establish its own.
In order to craft an excuse for
entering into the religio-political scene of Pakistan, Saudi ruler Shah Faisal
started to project Wahabi ideology of Islam against the Shia ideology. But in
order to fund religious elements without overtly offending Iran, it also played
the Ahmadi card. Saudia started demands for declaring Ahmadis as non-Muslims
and began denying them Haj visas. This turn of events provided the
fundamentalists a new life and the anti-Ahmadi campaign gained a fresh vigour.[26] Saudis were so happy with
their proxy-war with Iran over the religious scene in Pakistan, that during the
Islamic Summit of 1974, King Faisal conveyed to the then Prime Minister of
Pakistan Mr. Zulfiqar Ali Bhutto that Saudi aid to Pakistan could be contingent
upon Pakistan declaring Ahmadis as non-Muslims. It was in this background that
religious fundamentalists struck another blow to the state while Pakistan
People’s Party’s government had became unpopular for crushing the uprising in
Baluchistan.
Powered by this Saudi petro-dollar
support, Jammat-e-Islami of Maulana Maududi along with other religious parties
instigated a fresh wave of violent protests against Ahmadis. Clashes of May
1974 between the students of Nishtar Medical College and Ahmadis at the railway
station in Rabwah, Ahmadis’ spiritual and organizational center, became the
excuse for the widespread disturbances. Ahmadis all over Punjab and parts of
Khyber Pakhtunkhwa province, were killed, their properties burned and their
mosques and graves desecrated.[27] This time, however, with
the religious fundamentalism playing in the hands of international players and
backed by petro-dollars, faithful won over.
In 1970 elections Ahmadis had
supported Z.A. Bhutto and it was one of the main reasons how Bhutto defeated
Allama Iqbal’s son Javed Iqbal from the Lahore constituency with a huge margin
of 40,000 votes. In the Bhutto government, therefore, Ahmadis were rewarded
adequately. Aziz Ahmad, the minister of State for defense and foreign affairs
in the Bhutto’s cabinet, was a known Ahmadi. It is a matter of record that by
1972, Ahmadis were in a very strong position in the state of Pakistan. At that
time, Ahmadis were commanding in both the air force and the army. In addition
to that a dozen Ahmadis were holding important and sensitive positions in army
which included the position of corps commander. However, by 1974, all this had
changed forever. Religious parties and opposition members of Punjab Assembly
were unequivocal that if Bhutto did not take stern action against Ahmadis, he
will not remain in power. Mian Tufail, Ameer of the Jamaat-i-Islami and
Nawabzada Nasrullah Khan, president of the Pakistan Democratic Party spoke the
same language.[28]
With the support of petro-dollars from Saudia Arabia, the religious fundamentalists
had put so much pressure upon Bhutto government that he succumbed and so,
national assembly unanimously passed an amendment to the Constitution of
Islamic Republic of Pakistan, 1973, on September 7, 1974, categorically
pronouncing the Ahmadis as non-Muslims. The fact that Bhutto did this under
pressure and not out of some religious zeal can be ascertained from the fact
that his Ahmadi minister Aziz Ahmad retained his ministership even after
passage of this amendment. However, the case of Nobel prize-winning physicist
Mohammad Abdus Salam was different. Dr. Abdus Salam was also a known Ahmadi and
was serving as a science adviser to the People’s Party’s government. He was
overseeing the development of the nuclear weapons program since 1972. On the
passage of this anti-Ahmadi amendment, Dr. Salam, unlike Aziz Ahamd, resigned
from his position as a protest.[29]
Even when Ahmadis were declared
as non-Muslims by Constitutional amendment of 1974, communal agitation could
not be curtailed. Pakistan’s government was questioned in this regard from
Special Rapporteur on Religious Intolerance. Pakistan government justified its
action on the ground that it was necessary to protect majority religious
sentiments and also to safeguard the Ahmadis.[30] Religious rights of the
Ahmadis also became difficult to justify as being protected considering that
they believed themselves Muslims agreeing to most of the tenets of Islam yet
classified as non-Muslims on their passports, were barred from entry into Mecca
and Medina prohibiting them from performing Hajj pilgrimage, a must religious
duty on every affording Muslim.[31]
It is still another story that
it was General Muhammad Zia ul Haq which made preaching of religion by Ahmadis
a punishable crime.[32] According to data
collected by unofficial sources and quoted widely, between 1986 and 2006 a
total of 695 people were accused of blasphemy in Pakistan. Of these, 362 were
Muslims, 239 were Ahmadis, 86 were Christians and 10 were Hindus.[33]
It is also a matter of record
that many members of the Ahmadi community have been sued for naming themselves
as Muhammed and inscribing Quranic phrases in their private letters and wedding
cards. In 1991 Ahmadis were preparing to celebrate their centenary
celebrations. A case was filed in the Court to ban them from such celebrations,
arguing that allowing Ahmadis such celebrations would amount to giving them
freedom to preach their faith, which is a crime punishable with death. Lahore
High Court upheld the ban. Thus the social decree of never accepting the
Ahmadis in the society was legalized. In 1995 in the provincial capital city of
Peshawar, two Ahmadis who were allegedly preaching their faith and were trying
to convert a Muslim were stoned by a crowd, killing one of them.[34] In 1991 federal cabinet
decided to remove all the Ahmadis from important official posts. Consequently,
government demanded details of all officials
and after scrutinizing and pin pointing Ahmadis they were removed. Between
1984 and 1992, 30 Civil Servants were sacked from government employment for
being Ahmadis.[35]
On 14th of August,
1947 Pakistan was created as a Muslim state but not as an Islamic Theocracy.
Founding father Muhammad Ali Jinnah, in his opening speech to the opening
session of the Constituent Assembly of Pakistan emphasized the importance of
the freedom of religion in the following words:
“You are free; you are free to
go to your temples, you are free to go to your mosques or any other place of
worship in this State of Pakistan. You may belong to any religion or caste or
creed that has nothing to do with the business of the State.”[36]
However, Islamic law forbids
Muslims from changing faith as it is considered apostasy for them.[37]
Ahmadis consider themselves
Muslims by faith and worship as per Muslim rites. However, by law of Pakistan,
Ahmadis are prohibited from referring themselves as Muslims or from referring
their places of worships as mosques. Moreover, Ahmadis are barred from using
the Muslim call to prayer, quoting the Quran, participating in the pilgrimage
to Mecca or the rituals associated with the holy month of Ramzan and from
distributing any Amhadi literature.[38] There is a lot of
international pressure on the state of Pakistan to ensure grant of fundamental
rights to the Ahmadis. However, instead of taking any steps in this direction,
successive governments, hostage to the street power of the fundamentalists,
have tried to depict Ahmadi faith as an insult to the religious believes of
most of the Pakistanis. That is why Pakistan’s government supports United
Nation Human Rights Council Resolutions on “defamation of religions”, which is
meant for protection of religions from insult.[39]
4- CONSTITUTION, PENAL CODE AND
UDHR
Universal Declaration of Human
Rights was voted upon in the United Nations General Assembly on 10th
of December 1948 and Pakistan voted in favour of its adoption. Although the
present Constitution of the country, the Constitution of Islamic Republic of
Pakistan, 1973 was adopted after a quarter of a century of adopting Universal
Declaration of Human Rights, there are a number of contradictions between the
Declaration and the Constitution. In addition to that, there are a large number
of contradictions between the Universal Declaration of Human Rights and many
Statutes and Ordinances of Pakistan. Analysis of all the provisions of the
Constitution of Islamic Republic of Pakistan and those of hundreds of statutes is
beyond the scope of this chapter. However, we can make an analysis of the
provisions of the Universal Declaration of Human Rights, Fundamental Rights
ensured by the Constitution of Islamic Republic of Pakistan, 1973 and Pakistan
Penal Code, 1860 with regard to freedom of religion.
The Articles of the Universal
Declaration of Human Rights which provide, expand or protect a person’s right
to religious freedom are several. For instance, a leading Article[40] of the Declaration says
that 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. Here it
is a whole bundle of rights which have been provided to every human being of
the world by virtue of his being human. These rights include right of every
person to have absolute freedom of thought, his absolute freedom of conscience
and his complete freedom to have whichever and whatever religion he chooses to
take. The provision further clarifies that this freedom of choosing and
maintaining any religion, whatsoever, includes a person’s right to change his
religion. Not only this, but he also has the absolute right to make, change or
keep his belief with or without religion and if it’s about religion, whether it
is shared by other followers of that religion or not. In addition to that the
Article provides that this freedom includes manifestation of his religion or
belief by preaching it, teaching it, practicing it, worshipping it and
observing it all of which, he has complete right to do either in public or
private and also whether alone or along with other of such like followers.
Other freedoms complimentary to
the religious freedom are contained in different provisions of the Universal
Declaration of Human Rights such as in an Article[41] which says that in the
exercise of his rights and freedoms, everyone shall be subject only to such
limitations as are determined by law solely for the purpose of securing due
recognition and respect for the rights and freedoms of others and of meeting the
just requirements of morality, public order and the general welfare in a
democratic society. This article is squarely based on the principle of common
law which has been wittingly described by an English judge as ‘your right to
swing your walking stick ends where the nose of your neighbor starts.‘ The very
first Article of the Universal Declaration of Human Rights says that all human
beings are born free and equal in dignity and rights. They are endowed with
reason and conscience and should act towards one another in a spirit of
brotherhood. Then comes another important Article[42] of the Declaration, which
also, is complimentary to the religious freedoms. It says that everyone is
entitled to all the rights and freedoms set forth in this Declaration, without
distinction of any kind, such as race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth or other
status. There is yet another provision[43] which declares that
everyone has the right to life, liberty and security of person. After that the
relevant Article[44]
talks about equality before law and discrimination and says that all are equal
before the law and are entitled without any discrimination to equal protection
of law. Next Article of the Declaration supporting the right and freedom to
religion is the Article[45] which declares that no
one shall be subjected to arbitrary interference with his privacy, family, home
or correspondence, nor to attacks upon his honour and reputation. And surely, the
Universal Declaration of Human Rights says that everyone has the right to
freedom of opinion and expression.[46]
On the same ground, an Article[47] of the Constitution of
the Islamic Republic of Pakistan, 1973 says that every citizen shall have the
right to profess, practice and propagate his religion and every religious
denomination and every sect thereof shall have the right to establish, maintain
and manage its religious institutions. However, all these rights are subject to
open ended limitations of law, public order and morality. Moreover, Article 4
of the Constitution says that enjoying protection of law and to be treated in
accordance with law is the inalienable right of every citizen, wherever he may
be, and of every other person for the time being within Pakistan. It further
ensures that no action detrimental to the life, liberty, body, reputation or
property of any person shall be taken except in accordance with law; that no
person shall be prevented from or be hindered in doing that which is not
prohibited by law, and that no person shall be compelled to do that which the
law does not require him to do.
These Constitutional guarantees
in the form of inalienable and fundamental rights mean that there is complete
freedom and protection available to everyone to profess whatever religion he
wants and in any manner that he finds right, subject to the condition that it
does not hurt others. However, when we look at the provisions of the Pakistan
Penal Code, 1860 regarding the Ahmadi community, we see that all these rights,
freedoms and protections provided by the Universal Declaration of Human Rights
are violated and denied to them and for doing this provisions of the
Constitution of the Islamic Republic of Pakistan, 1973 are interpreted in such
a way that for the purposes of Ahmadis,
the rights and freedoms do not exist in their true spirit but are available in
a botched up way, which amounts to total denial of their religious freedoms and
right to belief.
Pakistan Penal Code, 1860 creates
two types of religious crimes. One category consists of community neutral laws from
pre-Zia[48] era and the other category
is Ahmadi specific laws of Zia era. Section 295 of the Pakistan Penal Code,
1860 says that whoever destroys, damages or defiles any place of worship, or
any object held sacred by any class of persons with the intention of insulting
the religion of any class of persons or with the knowledge that any class of
persons is likely to consider such destruction, damage or defilement as an
insult to their religion, shall be punished with imprisonment for a term which
may extend to two years, or with fine, or with both. Another section[49] of the Penal Code says
that whoever, with deliberate and malicious intention of outraging the
religious feelings of any class of the citizens of Pakistan, by words, either
spoken or written, or by visible representations insults or attempts to insult
the religion or the religious beliefs of that class, shall be punished with
imprisonment for a term which may extend to ten years, or with fine, or with
both. Further the Code says[50] that whoever voluntarily
causes disturbance to an assembly lawfully engaged in the performance of
religious worship, or religious ceremonies, shall be punished with imprisonment
for a term which may extend to one year, or with fine, or with both. Next section[51] of the Code provides that
whoever, with the intention of wounding the feelings of any person, or of
insulting the religion of any person, or with the knowledge that the feelings
of any person are likely to be wounded, or that the religion of any person is
likely to be insulted thereby, commits any trespass in any place of worship or
on any place of sepulture, or any place set apart for the performance of
funeral rites or as a depository for the remains of the dead, or offers any
indignity to any human corpse, or causes disturbance to any person assembled
for the performance of funeral ceremonies, shall be punished with imprisonment
for a term which may extend to one year, or with fine, or with both. Section
298 of the Code provides that whoever, with the deliberate intention of
wounding the religious feelings of any person, utters any word or makes any
sound in the hearing of that person or makes any gesture in the sight of that
person or places any object in the sight of that person, shall be punished with
imprisonment for a term which may extend to one year, or with fine, or with
both. Another important section[52] of the Penal Code
declares in this regard that any person of the Quadiani group or the Lahori
group who call themselves Ahmadis, who by words either spoken or written, or by
visible representation refers to or addresses, any person, other than a Caliph
or companion of the Holy Prophet Muhammad (peace be upon him), as
‘Ameerul-Mumineen’, ‘Khalifa-tul-Mumineen’, ‘Khailifa-tul-Muslimeen’, ‘Sahaabi’
or ‘Razi Allah Anho’; or refers to, or addresses, any person, other than a wife
of the Holy Prophet Muhammad (peace be upon him), as ‘Ummul-Mumineen’; or
refers to, or addresses, any person, other than a member of the family
(Ahle-bait) of the Holy Prophet Muhammad (peace be upon him) as Ahle-bait; or
refers to, or names, or calls, his place of worship as ‘Masjid’ shall be
punished with the imprisonment for a term which may extend to three years, and
shall also be liable to fine. Subsection 2 of this section 298-B further
declares that where any of the Ahmadis, who by words, either spoken or written,
or by visible representation, refers to the mode or form of call to prayers
followed by his faith as ‘Azan’, or recites Azan as used by the Muslims, shall
be punished with imprisonment of either description for a term which may extend
to three years, and shall also be liable to fine. In a criminal case, Lahore
High Court held that creation of a Sharaee mosque is not to be proved for
constituting an offence under S.298-B(1)(d), P.P.C. It is enough if by the
words spoken or written or mere visible representation it is conveyed to others
that the Quadianis' place of worship is Masjid. Moevoer, if a person belonging
to Quadiani or Lahori Group constructs a building, though squarish in shape or
like a Christian Church, or a Hindu temple and names or calls same as
"Masjid", he would be guilty under S.298-B(1)(d), P.P.C. It was also
held that even naming a place showing visible representation of Masjid as
Baitul ahmadia, would also, prima facie, fall within the mischief of
S.298-B(1)(d), P.P.C.[53] The last section of this
chapter No XV of the Pakistan Penal Code, 1860, titled “Of Offences Relating to
Religion”, section 298-C, provides that if any Ahmadi directly or indirectly,
poses himself as a Muslim, or calls, or refers to, his faith as Islam, or
preaches or propagates his faith, or invites others to accept his faith, by
words, either spoken or written, or by visible representations, or in any
manner whatsoever outrages the religious feelings of Muslims, shall be punished
with imprisonment for a term which may extend to three years and shall also be
liable to fine. Despite the narrow focus of these Ahmadi-specific provisions, judiciary,
at least the superior judiciary, is trying to instill reason and tolerance in
the society. In a leading case, a larger bench of the Hon’ble Supreme Court of
Pakistan held that for an Ahmadi to wear a badge having "Kalma
Tayyaba" inscribed on it does not per se amount to outraging the feelings
of Muslims nor does it amount to his posing as a Muslim. It was admitted and is
common knowledge that those who are Muslim do not, in order to prove their
religion of Islam, wear badges of the "Kalma Tayyaba". This is done
by those who are Constitutionally classified as non‑Muslims. Therefore, there
should be no element of posing or representation by non‑Muslims by wearing the
"Kalma Tayyaba" as Muslims. As regards the allegation that on being
questioned and interrogated Ahmadis gave the reply that they were Muslims while
in fact they were Quadiani or Ahmadis, that too was not considered to constitute
an offence under the law. Posing involves voluntary representation. It was held
that in giving reply to a question one does not respond voluntarily but under
threat or duress. One may hide his religion in public to protect himself
physically preferring the lesser evil of criminal prosecution or one may avoid
and give an evasive reply. This conduct would not be reprehensible,
particularly so when the person asking the question would have no authority in
law to ask these questions or to exact a correct reply, nor the statement was
being made on oath. The exhibition or use of "Kalma Tayyaba"
correctly reproduced, properly and respectfully exhibited cannot be made a
ground per se for action against those who use "Kalma Tayyaba" in
such a manner. If for ascertaining its peculiar meaning and effect one has to
reach the inner recesses of the mind of the man wearing or using it and to his
belief for making it an offence then the exercise with regard to belief and the
meaning of it for that person and the purpose of using and exhibiting the
"Kalma Tayyaba" would be beyond the scope of the law and in any case
it would directly infringe the religious freedom guaranteed and enjoyed by the
citizens under the Constitution, where mere belief unattended by objectionable
conduct cannot be objected to.[54]
It is clear from above that the
basic freedom ensured by Universal Declaration of Human Rights to every human
being of adopting whatever religious faith he wants, is not applicable in
Pakistan in the Spirit of the Declaration.[55] Although these freedoms
are essentially provided in the Constitutional document of Pakistan,[56] these are subjected to undefined
and vague limitations of law, public order and morality. Article 260
sub-article (3) of the Constitution provides that a person would be considered a
Muslim if he believes that Muhammad (peace be upon him) was the last prophet
and no prophet or reformer, etc came after him. This article further defines
non-Muslim as a person who is not a Muslim and includes among others a person
of Ahmadi community. Several sections of the Penal law[57] criminalizes various
religious rites of the Ahmadis provided these resemble those of Muslims. It
does not matter whether they do it mala fidely or in good faith truly believing
it to be their religious duty. It also does not matter whether the Ahmadis rite
performed is insulting and provocative or not. It’s a kind of strict liability;
intention has been belittled!
5- CONCLUSION
Religion is a very handy tool
to gain political power, especially in less developed societies where general
mode of thinking is emotional and rational thinking is considered evil. After
the partition of India, when most of the Hindus and Sikhs left Pakistan and
settled in the newly freed india, religious leaders of Pakistan lost a historical
target. So in order to create a new target for themselves, they focused on
Ahmadis. This resulted in the riots of 1953 and later of 1974. Although the
state of Pakistan resisted the pressure of these religious orthodox groups, but
with the involvement of Petro-dollars from Saudi Arabia, which wanted to hire
religious mercenaries for its religious sect and start a proxy war against Iran
and Shia Islam on the soil of Pakistan, these indigenous fundamentalist groups
got strength and in a moment of weakness, state of Pakistan succumbed to their
pressure. Thus, the trend became the norm and in addition to amendments in the
Constitution of the country, many amendments were made in the penal code which
had the accumulated effect of wiping out the freedom of religion in case of
Ahmadis, which is a clear cut violation of the Universal Declaration of Human
Rights, adopted by General Assembly of the United Nations in the year 1948 with
the votes of most of the nations of the world, including Pakistan.
[1]
Francois Soyer, The Persecution of the Jews and Muslims of Portugal: King
Manuel I and the End of Religious Tolerance (1496-7), Brill, 2007, 59.
[2]
James Maxwell Anderson, Daily Life During the Spanish Inquisition,
Greenwood Publishing Group, 2002, 253.
[3]
James Maxwell Anderson, Daily Life During the Spanish Inquisition,
Greenwood Publishing Group, 2002, 109.
[4]
James Maxwell Anderson, Daily Life During the Spanish Inquisition,
Greenwood Publishing Group, 2002, 56.
[5]
James Maxwell Anderson, Daily Life During the Spanish Inquisition,
Greenwood Publishing Group, 2002,35.
[6]
Tariq Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity,
Verso, 2003, ix.
[7]
John D. Caputo, On Religion, Routledge, 2001, Taylor & Francis
e-Library, 2001, 103.
[8]
Louis Greenspan and Stefan Andersson (ed), Russell on Religion: Selctions
from the writings of Betrand Russell, Routledge, 1999, Taylor & Francis
e-Library, 2002, 153.
[9]
John D. Caputo, On Religion, Routledge, 2001, Taylor & Francis
e-Library, 2001, 108.
[10]
Peter C. Hill & William Paul Williamson, The Psychology of Religious
Fundamentalism, Guilford Press, 2005, 5.
[11]
Steve Bruce, Fundamentalism, Polity, 2008, 11.
[12]
Jonathan A. Wright, Shapers of the Great Debate on the Freedom of Religion:
A Biographical Dictionary, Greenwood Press, 2005, 251.
[13]
Convention for the Protection of Human Rights and Fundamental Freedoms, 1950.
[14] 1.
Everyone has the right to freedom of expression. This right shall include
freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This
Article shall not prevent States from requiring the licensing of broadcasting,
television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties
and responsibilities, may be subject to such formalities, conditions,
restrictions or penalties as are prescribed by law and are necessary in a
democratic society, in the interests of national security, territorial
integrity or public safety, for the prevention of disorder or crime, for the
protection of health or morals, for the protection of the reputation or rights
of others, for preventing the disclosure of information received in confidence,
or for maintaining the authority and impartiality of the judiciary.
[15]
Application No. 42571/98, ECHR 2005-VIII.
[16]
European Convention on Human Rights—Convention for the Protection of Human
Rights and Fundamental Freedoms, 1950
[17]
Tariq Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity,
Verso, 2003, 177.
[18]
Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global
Politics, The Belknap Press of Harvard University Press, 2014, 58.
[19]
Tariq Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity,
Verso, 2003, 177.
[20]
Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global
Politics, The Belknap Press of Harvard University Press, 2014, 59.
[21]
Hamid Khan, Constitutional and Political History of Pakistan, 2nd
ed, Oxford University Press, 2009, 72.
[22]
Tariq Ali, The Clash of Fundamentalisms: Crusades, Jihads and Modernity,
Verso, 2003, 170-179.
[23]
Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global
Politics, The Belknap Press of Harvard University Press, 2014, 59.
[24] Preamble
to the Constitution of the Islamic Republic of Pakistan, 1973: Whereas
sovereignty over the entire Universe belongs to Almighty Allah alone, and the
authority to be exercised by the people of Pakistan within the limits
prescribed by Him is a sacred trust;……………….
[25]
Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global
Politics, The Belknap Press of Harvard University Press, 2014, 88.
[26]
Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global
Politics, The Belknap Press of Harvard University Press, 2014, 203.
[27]
Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global
Politics, The Belknap Press of Harvard University Press, 2014, 205.
[28]
Hamid Khan, Constitutional and Political History of Pakistan, 2nd
ed, Oxford University Press, 2009, 291.
[29]
Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global
Politics, The Belknap Press of Harvard University Press, 2014, 205-206.
[30]
Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World
Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 227.
[31]
Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World
Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 230.
[32]
Ayesha Jalal, The Struggle for Pakistan: A Muslim Homeland and Global
Politics, The Belknap Press of Harvard University Press, 2014, 242.
[33]
Policing Belief: The Impact of Blasphemy Laws on Human Rights, Freedom House,
2010, 69. Available on https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf,
accessed on 20.03.2015.
[34]
Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World
Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 230.
[35]
Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World
Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 230.
[36]
Policing Belief: The Impact of Blasphemy Laws on Human Rights, Freedom House,
2010, 80. Available on https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf,
accessed on 20.03.2015.
[37]
Kevin Boyle & Juliet Sheen (Ed), Freedom of Religion and Belief; A World
Report, Routledge, 1997, Taylor & Francis e-Library, 2003, 228.
[38]
Policing Belief: The Impact of Blasphemy Laws on Human Rights, Freedom House,
2010, 81. Available on https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf,
accessed on 20.03.2015
[39]
Policing Belief: The Impact of Blasphemy Laws on Human Rights, Freedom House,
2010, 72. Available on https://freedomhouse.org/sites/default/files/Policing_Belief_Full.pdf,
accessed on 20.03.2015.
[40]
Article 18, Universal Declaration of Human Rights, 1948.
[41]
Article 29, Universal Declaration of Human Rights, 1948.
[42]
Article 2 of the Universal Declaration of Human Rights, 1948.
[43]
Article 3 of the Universal Declaration of Human Rights, 1948.
[44]
Article 7 of the Universal Declaration of Human Rights, 1948.
[45]
Article 12 of the Universal Declaration of Human Rights, 1948.
[46]
Article 19 of the Universal Declaration of Human Rights, 1948.
[47]
Article 20 of the Constitution of the Islamic Republic of Pakistan, 1973.
[48]
The self-proclaimed soldier of Islam General Muhammad Zia ul Haq, Military dictator
from 1977 to 1988.
[49]
Section 295-A, Pakistan Penal Code, 1860.
[50]
Section 296, Pakistan Penal Code, 1860.
[51]
Section 297, Pakistan Penal Code, 1860.
[52]
Section 298-B, Pakistan Penal Code, 1860.
[53]
Atta Ullah Vs. State, PLD 2000 Lah 364.
[54]
Zaheer ud Din Vs. State, 1993 SCMR 1718.
[55]
Universal Declaration of Human Rights, 1948.
[56]
Constitution of Islamic Republic of Pakistan, 1973.
[57]
Pakistan Penal Code, 1860.
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