A Lecture by Mujeeb ur Rahman, Advocate Harvard Law School Cambridge, Massachusetts, USA
(part 2 of 2)
For years, Ahmadi Muslims have been treated as second-class citizens in Pakistan. Pakistani advocate Mujeeb ur Rahman explores the legal background.
After the Second Amendment was passed and Ahmadis were declared to be non-Muslim, the community took it in their stride. We said, “Alright, for the purposes of constitution and law, I am a non-Muslim, so what? I will lose some of my political rights. But I continue to be what I am with my faith. If I am reckoned as a Muslim with the Lord in Heaven, let the constitution deny me.” So we did not challenge it in court for whatever reason. But the clerics did not sit quiet. They said, “We have declared them non-Muslim and yet they pray as they did, they fast as they did and they read the Qur’an as they did, so what’s the point?” So there was a spate of litigation in the Province of Punjab and I had the honour to argue the cases: where cases were filed that Ahmadi mosques should be demolished, that they should be restrained from building minarets in their mosques, that they should be restrained from building domes on their mosques, that they should be restrained from calling Durud (blessings) on the Holy Prophetsa, that they should be restrained from calling Azan, the call to prayer, that they should be restrained from doing prostrations in Salat (prayer) – i.e., every part of religious practice was called into question; So there were many cases. 35 cases were brought in the Lahore High Court.
One case decided was that of Abdur Rahman Mubashar Ahmad (and Professor Asad Ahmad sitting in front of me would know that case and he has studied many other cases, though he has his own sociological angle). In that case, we had a compelling argument that the 1974 amendment was violative of fundamental rights. But the counsel on the other side said: “Yes our constitution is the law, but Islamic law is also a body of law, and in Pakistan we are going to enforce Islamic law.” So under the Islamic law, the mosques belonging to the Ahmadiyya community need to be erased. He tried to rely on some historic event of Masjid-e-Zarar having been demolished during the lifetime of the Holy Prophetsa and certain Qur’anic verses. So I was called in to argue the religious side of that case. I argued it for about 14 days, I think. That case yielded a masterpiece judgement by Justices Aftab Hussain and Samdani; they said Ahmadis are non-Muslim under the constitution, but they are non-Muslims of a special kind because they believe in the Qur’an, they believe in Hadith, they believe in Salat and all their practices are those of Hanafi Muslims, so we cannot stop them. They have been doing it for the last 100 years, and these particular practices, which have been banned now under ordinance XX of Zia–ul-Haq, each one of them was protected and sanctified for Ahmadis – and the judge used those words. They said it has been argued before us that Azan and Salat and such things, are Sha’aer of Islam (Sha’aer means the symbols of Islam), and the judge said that they are as much the symbols of the Ahmadiyya faith, and it will be against their fundamental rights to deny them that. So that judgement ran about 120 pages. The clerics dare not take that case to the Supreme Court because it was a compelling case. So as a result of Abdul Rahman Mubashar Ahmad, for a while there was some peace again.
But the clerics waited, and they got an ally in the martial law administrator, Zia-ul-Haq. When he came, I remember Zia-ul-Haq’s first comments, that phrase is in my ears even now. On his first television broadcast, he said in Urdu: “Don’t give up your faith and don’t touch other men’s faith.” So very neutral. Within a matter of two years, when he was gasping for the legitimacy of his political rule, he brought in this ordinance XX. The second section of the ordinance XX says: “notwithstanding any judgement of the court, or any other law for the time being enforced, this ordinance shall have effect.” This ordinance was meant to destroy what I had gained by the judgement of a court. So, the clerics had a victory in the Assembly, declared me non-Muslim, but they could not make me a non-Muslim. I call it legal fiction; some people have called it a paradox of identity. But I call it a legal fiction, and as lawyers I ask you, how far can you take a legal fiction? Legal fiction is saying that a man is a woman and a woman is a man; therefore, can I expect a man to deliver a baby? This matter has also been referred to in a different way by the Supreme Court of South Africa by a Jewish judge.
In any event, they failed to make me a non-Muslim, so they wanted to make me a non-Muslim through a court of law. Though the National Assembly declared me to be non-Muslim, it could not make me a non-Muslim, because the amendment does not stop me from praying or calling myself a Muslim. They went to a court and went to parliament, but they failed. So they came through the martial law administration. So the martial law said, “Alright, you will not do this because you ‘pose as a Muslim.’” Now, how does one pose as a Muslim? Subsequently, the Zaheeruddin case came up, and after that, there were a series of comments on the appropriateness of the ruling.
If I was to summarise them, the first comment was, I think, by Justice Retired Duraab Patel of the Supreme Court of Pakistan. He said the judgement was flawed because it was against the Supreme Court’s own case law. It had not considered the earlier case of Jivindranaat Kishore, a judgement by five judges. The five judges in Zaheeruddin could not overrule the earlier judgement of five judges. But that judgement was cited in court (I cited that judgement). Justice Fakhruddin Ibrahim, who was our lead counsel, also cited it. And yet it was not even discussed. The judges could have said we do not agree with that judgement; it needs to be overturned, but they did not even mention it. So Patel said that Zaheeruddin was bad because it has ignored the Supreme Court’s earlier ruling. The judgement was also bad on account of another case decided in the Supreme Court by five judges, which is known as Haqim Khan. In Haqim Khan’s case, one of the judges was also a judge sitting in the Zaheeruddin case, and in the prior case he said that Islamic law does not prevail over the constitution, and in the Zaheeruddin case, he said that Islamic law does prevail over the constitution. So, what do we consider his opinion [to be]? He signed the majority opinion. There was a Supreme Court lawyer in Pakistan, Misayadree Chaudhry, who said the ratio or nature of the division of opinion in Zaheeruddin is not clear.
In this particular issue, two judges said that the Islamic provisions prevail and two judges said that the Islamic provision did not prevail, one judge who was in the earlier case. The division was two and two, which did not make a majority. There was also a comment by Karen Parker, a human rights activist in San Francisco, who said: “It’s a virtual diatribe against the Ahmadiyya belief.” Then there was a comment in the School of Oriental and African Studies in the U.K. by Martin Lau, who criticised the judgement and pointed out its legal flaws. I also wrote a short book about the judgment called Error at the Apex. Today, we are confronted with sociological and anthropological comments on the judgement. I still need to examine them and will not discuss them here in detail. But they try to maintain that there is some legitimacy about defining the appropriateness of “Muslim-ness” or a “foreignness within.” If there is a foreignness within your body, you need to throw it out; so, as the argument goes, Ahmadis are a foreign element within the Muslim body and must be thrown out. Now, we will have to examine the validity of this argument. There was another argument that this judgement, which all lawyers say was seriously flawed, was in the best of liberal traditions of Anglo-Saxon law. How? Because Ahmadis have a conflict of identity; their ontic identity is different from their legal identity. I may not have followed this argument thoroughly, but as I understand it, the court has to negotiate and give effect to one’s legal identity, not one’s ontic (actual) identity. But my ontic identity is my real identity; the legal identity has been forced upon me, it has been planted on me, I have been tagged with that legal identity and when I challenge that legal identity you say, “But your legal identity and your ontic identity are different?”
Anyway, these are the few legal questions which I wanted to place before you in my talk, but let me stop here. I will be happy to take any questions if you have them. Thank you very much. [Applause].
I am Raj Guppal, I teach at MIT University and direct the Human Rights programme there. So given all the very enormous obstacles that you have laid out for the Ahmadis, what do you see as the next strategy? What is the path forward in terms of options for changing the system or rules, both within the country and also I was wondering as part of the strategy of response, whether you can speculate about the relationship between the Ahmadiyya community’s struggles for justice and other communities that might be facing similar sorts of issues; whether there have been alliances where there are mutual interests, those sorts of things, whether it’s part of a broader constitutional rebuilding movement in some way?
I think it is. In Pakistan, the Christian community is an organised community, as are the Ahmadiyya community. The Pakistan Human Rights Commission is a secular voice, and there are certain other individuals who keep on raising their voices. For instance, Sherry Rahman (former Ambassador to the U.S.) proposed a bill in the Assembly to amend some of the laws, and then the bill had to be taken away on account of outside pressure. She only proposed certain amendments in the blasphemy law, some procedural amendments. She said leave the law where it is, but at least make it more reasonable so that everybody does not go to court or the police station. But even that amendment could not be possible. Then, as a part of the strategy which was being very effectively pursued by the Ahmadiyya community, I know of the effort made by the Ahmadiyya community, but I also know that the Christian community had also been making good efforts, and at some points we also coordinated with one another. As a result of that, enough pressure was built by America and the European Union, as a result of which, Benazir Bhutto and Nawaz Sharif both had been talking of amending the laws. After all that pressure, Pervez Musharraf did in fact amend that law. Only a part of it; he first wanted to amend the blasphemy law; there he did not succeed because he was also making some kind of coalition with the fundamentalist Muslim clergy’s political parties, but he did amend part of the electoral process.
The biggest harm, talking in political terms, is that I (and my fellow Ahmadis) have been disenfranchised. I have no right to vote. I cannot vote as an Ahmadi Muslim. To start with, in Pakistan’s Constitution, we did not have separate Muslim and non-Muslim lists, there was one list; citizenship is indivisible – Muslim, non-Muslim; they are all citizens and the voting right is the citizen’s right. So, Pervez Musharraf passed what is known as executive order 7 (2002). It said that henceforth there will not be a separate list, there will be a joint electoral list, so we had some relief after all. Why are elections so important? Because, if the minority community and the majority community do not interact, it works against the solidarity of the nation; it disintegrates. When the minority and majority community interact, then it helps integration of the society and the nation at large. So, it was a welcome move because a member who wants to fight or contest in an election, will necessarily go to Muslims, Christians, Ahmadis, and Hindus. Hence, there will be interaction and then the candidate will also feel a responsibility to protect the minority’s rights in the Assembly. So Musharraf passed that, but then within a matter of weeks, Pervez Musharraf took that order back, and executive order number 15 of 2002 was passed. Now that presidential order 15, which was passed in 2007 governs, the elections of 2008 and 2013 are being conducted under the same executive order 15 of 2007. There was an Assembly who could have amended the order, but they did not. And the same law is being followed, and now there is a talk of amending the electoral procedures. I want the international voice raised; I want the human conscience around the world to be awakened. We will lobby and work with many political actors to see that if the procedures are being amended. Maybe something can be done now, because we are experiencing a very strange kind of drama outside the Pakistan National Assembly; one Tahir-ul-Qadri from Canada and one Imran Khan, a cricketer from Pakistan and a man with great credibility it seems, are both sitting down there and they want electoral reforms. So let us hope that these people see some reason when the electoral reforms come.
So Mr. Raj Guppal, we do interact, but as far as I am concerned, I live in hope. As far as the Ahmadiyya community, in their 100-year history, they have never adopted violent means and they will not go on street demonstrations. Their fight is a legal fight, and it is so both in the minds and hearts of the people not only in Pakistan but across the globe. That is our strategy.
Yes, I am happy to see you, Beena Sarwar. Beena is one of the voices of sanity that we often hear.
I am Beena Sarwar. Thank you so much, and I am honoured to meet you and to hear you speak. You gave a fantastic talk, and there is so much in there I wish we could have had a couple of hours here. Two specific cases I want to ask you about; one case is about that lecturer, that English lecturer, Junaid, I think his name is, who was a Fulbright scholar and he was at Bahauddin Zakariya University in Multan. The Jamaat-e-Islami concocted a case against him, for which our friend Rashid Rahman was killed, the lawyer who took up that case. I want to ask what is happening with that case, if anything, and secondly, I want to ask you that one thing that really hurts us all as citizens of Pakistan who are “Muslims”—we are ‘real Muslims’ as opposed to you ‘fake Muslims’, so when we go to get a passport we have to state what our religion is. If you write Muslim over there (I cannot write atheist or non-practising, you have to write a religion) I have to sign that declaration that declares Mirza Ghulam Ahmad[as] to be an imposter and I know of people who have actually crossed that out and then signed it as a symbolic gesture. But not everybody can do that, and has that been challenged at all? That particular case?
The passport issue has been challenged at the administrative level and there have been changes time and again, sometimes when there is pressure from these countries, that pro forma is withdrawn and a new pro forma is made.
But as it is now, we are not required to sign a pro forma ourselves. Now the procedure is different, the signature is obtained, now everything is online. When I apply for a passport, I go to the passport office. He asks questions and fills the form and it is on the computer. So if he asks me whether I am a Muslim or not, then I have to sign that which he prints. He prints it out; I have to sign it, if I say I am a Muslim. If I say I am an Ahmadi, it is very difficult for me to say I am not a Muslim. So what I do is, I say I am an Ahmadi, so he scores it out. There are cases to my knowledge where Ahmadis have gotten passports with Muslims written on their passport. I do not have my passport in my pocket. In my passport, there is the endorsement ‘Ahmadi’ because I have declared my faith to be Ahmadi. But there are many Ahmadis whose passports I have seen and they are very unhappy about the designation. But there are obstacles, and I keep on going to the passport office and NADRA [Pakistan’s National Database and Registration Authority] because by default everybody is not that literate. By default, looking at my name ‘Mujeeb ur Rahman,’ the man filling the form will think, looks like a Muslim, he scores it out and if I am illiterate, I let it go by default. But it is difficult for an Ahmadi to get a passport as a Muslim. For an Ahmadi to get a passport as a Muslim and to sign that declaration is worse than death. So, he would never sign it. That is a genuine difficulty.
The other question that you asked was about Rashid Rahman’s case. The problem is, at one of these lectures—I think at Columbia Law or somewhere—I am going to touch on the law of blasphemy in Pakistan and its validity under law, constitution and Islamic jurisprudence. The law of blasphemy in Islam is absolutely not based on Qur’an and Sunnah, and is absolutely un-Islamic. I could talk for hours on this subject and if necessary have that discussion with Allama Tahir–ul-Qadri. It is not an Islamic provision, but nevertheless the blasphemy law is there. So, the gentleman was killed and after that it was difficult to get lawyers for prosecuting the assailants. So, the issue was raised for quite some time, and thereafter I think it went quiet, I have not heard anything further.
I am just wondering about the case of the young man who was in prison for blasphemy.
The person who was going to defend him has been killed. I know that the Human Rights Commission of Pakistan is working on it, and somebody will defend him. Pakistan is not still that barren, somebody will come to defend him.
I am Ken Berkowitz, Chief of Police, Canton, Massachusetts. I just want to thank you for your comments, they are very enlightening. A couple of things; just sitting here as an American, as a police chief, it’s kind of inconceivable that the police officers, as Amjad was saying before, were complicit with some of the torture and of some of the discriminatory practices against the Ahmadis over there. But do you think that the totalitarianism philosophy that’s being implemented over there empowers or even plants seeds for militancy?
Empowers militancy you said? Yes. You see my view is that the militancy in Pakistan has increased over time because of some of the legal and statutory provisions. To start with, if I say that I was maybe talking of my own case, but I am now absolutely, dispassionately, independently saying this: that the Second Amendment declaring Ahmadis non-Muslim started a process of fragmentation of society. It was feared at that time that after Ahmadis it would be the turn of the Shias. So this bifurcation and fragmentation of society took place. Society was fractured, and the religious influence started coming in more and more. Because it was a religious influence that brought that amendment, and the Taliban and the terrorist organisations have their presence within Pakistan also amongst some Pakistan religious political parties, that fact cannot be denied. The Pakistan State, as such, does not acknowledge that terrorism is their state policy, but in Pakistan state, now I am saying it with quite a bit reservation and I would say it with all possible due care and caution, that our Pakistan political government also does not have the political will to challenge terrorist organisational attacks. Now the absence of that political will could be due to multiple reasons: number one; they may have a mental affinity with those people who are terrorists or fundamental[ist] organisations, or they think that if they take some action against them there will be a backlash, and that backlash will affect their government, so there is no political will. I am not in a position to say anything positive—but sometimes we, sitting outside, I mean the ordinary citizens, we feel that there is a difference of opinion amongst our establishment and our political government as to how to deal with fundamentalist attacks.
My name is Mauroof Sayed, and I am a graduate student here at Harvard and my question is more historical; you said that Pakistan was established on democratic principles and later on certain elements, certainly Jamaat-e-Islami, came to Pakistan and established its will and had various nefarious political alliances, but if you look—and correct me if I am wrong—but the establishment of Pakistan was also a move away from one person-one vote. So having this electoral division where non-minorities had special seats in Parliament, was that a slippery slope that started right from the beginning and led to this situation where, certainly, Ahmadi Muslims are completely disenfranchised? Also, was it right from the beginning and a sort of slippery slope that led to it?
That is a very important question and many people do not really give it serious thought. The point that Pakistan was envisioned as a secular state or a democratic state cannot be denied. This also cannot be denied that the Pakistan Constitution is the Federal Constitution Republic and in all its appearances it is structured as a democratic constitution. But, the other thing that you mentioned is that in that constitution there were reservations for the minority seats, when Ahmadis had not been declared as a minority. However, there were other minorities—Christians, Hindus, Parsis and Sikhs, so there were reserved seats for them. I think that was a part of the colonial legacy and that also has its own wisdom according to the need of the time. Because this representation in India during the colonial period was on account of the clash of economic and political interests between Muslims and non-Muslims, that in order to protect the minorities—now this is very important and I have a thesis of my own and I have talked about it at length also—that the reservation for minority seats is in the ultimate analysis a process of integration. Some minorities that have been left behind by the process of history, in India they called them the untouchables, they call them Dalit, they call them lower caste; in Pakistan we do not have low caste, but we have the Christian community, which was left behind by the accidents of history. If they competed in the general elections, because of the overwhelming majority of Muslims, no Christian would be elected, no Hindu would be elected, so they would have no voice. So the separate seats were designed to give them a voice, so that they were part of a phased process of integration. Ultimately, it has turned out to be a process of disintegration, unfortunate as it is.
Hello, my name is Shanta Bahaan, I attended here at Harvard a few years ago and I am actually a part of the Christian community in Pakistan, as is much of my family and so I appreciated your actually addressing that issue. I was not aware that Christians and Ahmadis had actually been working together to advocate, I think if it were possible to have more of the minority communities working together, there might be a greater voice. I know travelling toward the Khyber Pakhtunkhwa, I have seen some Sikh communities there as well, so there are other minorities and I am just wondering what work is being done to bring all of them together so that they can have a collective voice? I say this also because Christian communities (my family is actually from a slightly more privileged community), are relegated and are safer in some areas that are, I don’t want to call them slum areas, but they are areas that are not quite so nice, they tend to be safer in those areas then they are in some of the wealthier districts. So I’m just wondering, what can we do to bring a collective community of minorities to work together to advocate for more freedom?
I think given the circumstances in Pakistan, Ahmadis and Christians and other communities, they interact, they help one another, but they are not seen acting together. That is what raises your question; that they should be more visibly together. In terms of logistics and in terms of ideas, in terms of work, they do interact and cooperate with one another. But in Pakistani society, sometimes it can be counterproductive. When some Muslims work with Christians, Christians can be said to be working with Ahmadis who are not loyal Pakistanis. Yet, Christians are as much loyal as any other persons. We had that Squadron leader, Cecil Chaudhry, in the Pakistani Air Force; Charles Amjad Ali, the Bishop of Lahore and I, we have been interacting, meeting in the American Embassy, the German Embassy and some other European Embassies, so we have been working together.
Let me just again thank you so much for joining us today, thank you everyone, it’s great to see such a wonderful turnout.
Thank you so much again, you have done me a great honour. I am privileged to be at Harvard Law School, one of the most prestigious law schools in the world. If I may say so, many world leaders, judges of the U.S. Supreme Court and U.S. presidents, came from here. So Harvard carries a great name and for a humble man like me to be in Harvard, speaking to this galaxy of students and academia, it has been a great pleasure. Thank you all for giving me such a patient hearing.