Persecution of the Ahmadiyya Community in Pakistan: An Analysis Under International Law and International Relations

I. Introduction Before September 11, 2001, the United States characterised the Pakistani government as an unstable regime with a tarnished history of corrupt dictators, military coups, and territorial violence along its borders.1 Following the September 11 terrorist attacks against the United States, Pakistan became a leading partner in the U.S.-led war on terrorism, thrust into a position to bring “international criminals” to justice and to act as a hero for the “civilized” world.2 Indeed, one of the lessons of September 11 is that exigencies often spur credulity. U.S. concerns with Pakistan’s human rights problems lost significance once Pakistan agreed to stand with the United States against terrorism. Pakistan’s leaders saw September 11th as an opportunity to gain redemption. Blasted in the past for conducting nuclear testing, suspending its Constitution, and breeding Islamists, Pakistan, post- September 11, was in an excellent position to curry favour with its critics by suffocating terrorist networks. Seizing upon this opportunity, President Pervez Musharraf led a fight against militant Islam. This shift in Pakistan’s priorities resulted in a decrease in attention paid to the plight of religious minorities in Pakistan, once a recognised problem of serious international concern.3 The two issues of human rights and terrorism were treated as unconnected, without the slightest suggestion that addressing the former would be helpful in addressing the latter. The problem of Pakistan’s treatment of its religious minorities once again merits consideration. Pakistan’s Penal Code carries specific provisions criminalising behaviour considered blasphemous to Islam. Apart from stifling religious freedom for non-Muslims, these provisions 20 The Review of Religions – June 2003 Persecution of the Ahmadiyya Community in Pakistan: An Analysis Under International Law and International Relations – part 1 Published in Harvard Human Rights Journal , Vol.16, Spring 2003, pp.217-245 by Amjad Mahmood Khan also target a particular group of minority Muslims that the Sunni Muslim majority deems heretical to Islam, namely members of the Ahmadiyya Community, a Muslim group of roughly four million adherents in Pakistan that has always considered itself as belonging to the Muslim u m m a h (or larger ‘community of Muslims’). The fundamental diff e rence between Ahmadis and the Sunni Muslim majority concerns the identity of the Promised Messiah(as), the reformer that the Prophet Muhammad(sa) foretold would appear after him.4 Doctrinal interpretations peculiar to Ahmadis were deemed sufficient to place them outside the pale of Islam by the religious orthodoxy.5 For over five decades, Ahmadis have endured senseless persecution. Their mosques have been burned, their graves desecrated, and their very existence criminalized. According to a 2002 United States State Department report, since 1999 316 Ahmadis have been formally charged in criminal cases (including blasphemy) owing to their re l i g i o n .6 Between 1999 and 2001, at least twenty-four Ahmadis were charged with blasphemy; if convicted, they could be sentenced to life imprisonment or death.7 The offences charged included wearing an Islamic slogan on a shirt, planning to build an Ahmadi mosque in Lahore, and distributing Ahmadi literature in a public square.8 Ahmadis consider themselves Muslims, and yet their persecution is wholly legal, even encouraged, by the Islamic Republic of Pakistan and its leadership. As a result, thousands of Ahmadis have fled the country to seek asylum abroad. Recognising the pervasiveness of the problem and the pressing need for action, the United States House of Representatives introduced a bipartisan resolution in February 2002 urging Pakistan to repeal both the anti-blasphemy provisions in its Penal Code as well as the second amendment in its constitution, which declares Ahmadis to be non-Muslims.9 This Article undertakes a legal analysis of the problem of persecution towards religious minorities in Pakistan. Surveying the rise of religious persecution towards the Ahmadiyya Community—including its gradual legalisation—this Article makes a positive case for the repeal of the anti-blasphemy provisions in Pakistan’s Penal Code. Part II explores 21 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 the background and history of the persecution of Ahmadis in Pakistan with emphasis on the legal entrenchment of the anti-blasphemy p rovisions in Pakistan’s Penal Code. Special emphasis is placed on Pakistan’s state practice with respect to the protection of re l i g i o u s minorities, illustrating the striking slide from its initial high re g a rd for the Universal Declaration of Human Rights, to its current defiance of e m e rging international norms with respect to religious liberty. Parts III and IV survey the way in which Pakistan’s anti-blasphemy pro v i s i o n s violate both international law and prevailing international norms of religious liberty. Part V puts forth the competing policy paradigms for and against the repeal of the anti-blasphemy provisions. Finally, Part VI concludes with recommendations on how best to synthesize the policy paradigms and present a solution that is viable to both Pakistani and U.S. i n t e rests. (Parts III onwards are featurd in July 2003). Two main issues underlie the following analysis: (1) whether Pakistan has violated international covenants and customary law in promulgating the anti-blasphemy provisions in its Penal Code; and (2) whether the international community can intervene on behalf of Ahmadis in Pakistan, given that the majority of Pakistan’s people seem to favour the anti-blasphemy provisions currently in place. This Article concludes that both questions can be answered in the affirmative, and that addressing the situation of the Ahmadis through international law can enable the United States and other Western democracies to uproot militant Islam in Pakistan more effectively. II. Background A. The Emergence of Pakistan and Its Commitment to Religious Freedom An often misguided assumption regarding the establishment of the Islamic Republic of Pakistan is that the country emerged solely out of the Hindu-Muslim divide of the late 1940s; that is, Hindus and Muslims could not live together peacefully, separatist movements emerged, and Pakistan sprung forth as an independent Muslim country. It may be more appropriate to understand the emergence of Pakistan as a product of trans-religious phenomena: political identity, empowerment, and constitutionalism. The leading Indian Muslims of the time, led by Mohammad Ali Jinnah, articulated the idea of Pakistan as a 22 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 revolutionary political experiment necessary for the subsistence of Muslim citizens. An ardent democrat, Jinnah sought a separate Muslim state, founded on consensual and pluralistic grounds, as a model of welfare, community, and popular sovereignty.10 He believed in the supremacy of the general will rather than of the religion of Islam per se. Jinnah’s involvement in the Muslim League Lahore, particularly the 1940 session, brought the concept of religious tolerance to the forefront of the Muslim secessionist movement. Jinnah and other concerned leaguers never felt that the political arrangement of major Muslim provinces in one single state would solve completely the struggle of Muslims and Hindus in South Asia, but they knew that Muslims in India could only gain independence by forming a sovereign and liberal Muslim state. The state they envisioned was the largest of its kind in the Muslim world at the time.11 It was easy for many Muslims, however, to lose sight of Jinnah’s ideals. The monolithic nature of the Indian Congress Party and British Raj, the b rutal and devastating riots of 1947, and the increasingly bloody dispute in the Punjab pointed to violence as the most effective means to establish a separate Pakistan.1 2 To many, absolute justice meant the establishment of a state protective of Muslims at the expense of Hindu separatists. Islamist language pervaded the provincial corridors of Hindu-Muslim India. Jinnah did not see the founding of Pakistan as an historical aberration. His vision was based on the primacy of the people; it was a non- sectarian, non-denominational, and purely Islamic ethos.13 He felt that in founding Pakistan he could elevate not only the status of South Asian Muslims in the world, but also the status of Islam itself. In spite of the force of Muslim separatists wielding militant Islam as their weapon, Jinnah gained tremendous public support among the Muslim masses. Within the Lahore League, he sought counsel from Muslims who subscribed to his point of view.14 T h ree days before Pakistan’s official founding, Jinnah, then president of the Constituent Assembly, spoke about the problems his people would face and the kind of cooperation necessary to alleviate them. He declare d : 23 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 If you change your past and work together in a spirit that every one of you . . . is first, second and last a citizen of this State with equal rights, privileges, and obligations, there will be no end to the progress you will make. We should begin to work in that spirit, and in the course all these angularities of the majority and minority communities, the Hindu community and the Muslim community—because even as regard to Muslim you have Pathans, Punjabis, Shias, Sunnis, and so on—will vanish. To my mind, this problem of religious differences has been the greatest hindrance in the progress of India. Therefore, we must learn a lesson from this. You are free; you are free to go to your temples, you are free to go to your mosques or to any other places 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.15 Thus, Jinnah pushed for the Muslims of Pakistan to disregard religious distinctions in politics. He reminded his audience, the Constituent Assembly, that Pakistan would assume independent statehood with the goal of creating a progressive Muslim state based on pure Islamic principles. His rhetoric was one of reconciliation, tolerance, and moderation. The right to religious freedom was not only central to the struggle for the independent state of Pakistan in 1947; it was also an important part of a larger world-wide debate over human rights at that time. Indeed, as Muslims fought for an independent Pakistan, the U.N. General Assembly fought to construct a universal norm for protecting freedom of religion with the Universal Declaration of Human Rights (UDHR), passed in 1948. During a drafting session of the UDHR, representatives from Saudi Arabia and Pakistan quarrelled as to whether freedom of conscience and freedom to change one’s religion, as outlined in Articles 18 and 19 of the UDHR, were recognised under Islamic Law (or the Shari’a). The Saudi representative expressed his vehement opposition against the inferred right to change one’s religion under Shari’a, calling the Articles a product of Western thinking. Muhammad Zafrulla Khan, the Pakistani representative to the session, Pakistan’s first foreign minister, and an Ahmadi, hailed the adoption of the articles as an 24 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 ‘epoch-making event’ and considered them entirely consistent with Islam’s emphatic denunciation of compulsion in religion.16 Re-asserting Jinnah’s ideals, Khan said the following to the General Assembly at the occasion of the adoption of Article 18 of the UDHR: Pakistan is an ardent defender of freedom of thought and belief and of all the freedoms listed in Article 18. For the Pakistani delegation, the problem had a special significance as some of its aspects involved the honour of Islam … . The Muslim religion unequivocally claims the right to freedom of conscience and has declared itself against any kind of compulsion in matters of faith or religious practices.17 The colloquy was a window into Pakistan’s deep and open commitment to the UDHR, in particular its provisions for freedom of religion and conscience. Before partition, Muslims were themselves a religious minority in India and wanted the Constitution of India to include safeguards for their protection. As late as the months preceding partition, the All India Muslim League (AIML) negotiated with the Indian Congressional Party for constitutional protections for the large number of Muslims who would remain in Hindu majority areas in India post partition. In exchange, AIML was prepared to offer similar protections to non- Muslims who would remain in the territory of the new Pakistani state.18 Continuing Jinnah’s work of championing minority rights, Pakistan’s founding documents reflect that the protection of religious minorities under a separate Muslim state was of prime significance. Pakistan’s original 1956 constitution outlined in clear terms the right of each citizen to profess, practice, and propagate his religion (Article 20), to attend school freely without religious instruction (Article 22), to enjoy places of public entertainment without religious discrimination (Article 26), to qualify for appointment in the service of Pakistan without religious discrimination (Article 27), and to preserve and promote his own language, script, or culture without religious discrimination (Article 28). These provisions had their roots in Articles 1(3) and 55(c) of the U.N. Charter,19 which emphasise non-discrimination on the basis of religion, 25 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 and in Article 18 of the UDHR,20 the language of which tracks Article 20 of Pakistan’s constitution.21 B. The Fundamentalist Surge and the History of Ahmadi Persecution The building of a secular and inclusive state in Pakistan proved difficult in the face of rising religious fundamentalism. For Pakistan outwardly to manifest its solidarity with the international community with respect to freedom of religion was easier than for its ulema or ‘religious leadership,’ consisting of the class of orthodox Muslim clerics, to agree with this vision of freedom. Religious fundamentalists recognized that the persecution of Hindus was too obvious a breach of Pakistan’s constitutional rights protections to escape censure from the international community. A more subtle form of persecution under law, however, would attract less attention; thus Pakistani fundamentalists used the platform of the excommunication of Ahmadis, members of a ‘fake Muslim community,’ as a pretext to maintain their hegemony.22 They used Pakistan’s constitution as their political weapon of choice. In March 1949, the first Constituent Assembly of Pakistan introduced the so-called Objectives Resolution, which relied heavily on the UDHR, pledging that Pakistan’s first constitution would make adequate p rovision for non-Muslims to enjoy full religious fre e d o m .2 3 Soon after the Objectives Resolution was passed into law by Pakistan’s General A s s e m b l y, the Majlis-e-Ahrar-e-Islam (Ahrar), a Muslim separatist movement, began to engage in anti-Ahmadi agitation. On May 1, 1949, Ahrar activists made their first public demand that Ahmadis be declare d non-Muslims. The Ahrar insisted that Khan be removed from his position in the cabinet, along with all other Ahmadis in public service. They also accused members of the Ahmadiyya Community of conspiring with India (and particularly remnants of the British regime) against Pakistan’s Sunni population. The Ahrar opposition movement climaxed during the peak of the Punjab disturbances. The Ahrar, knowing the disturbances would carry to Karachi, pre s s u red Governor-General Khwaja Nazimuddin to remove Khan from office on the pretext that this would protect Karachi f rom the ensuing violence of the unrest in Punjab. In the midst of this tense situation, Khan delivered a speech before the Anjuman Ahmadiyya at Jahanghir Park, Karachi on May 18, 1952. Immediately after his speech 26 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 Khan resigned from the powerful Basic Principles Committee (BPC), a governmental agency that ensured the application of Islamic principles in everyday governmental practice.2 4 Increasingly, Muslim fundamentalist groups turned away from their position that the very creation of Pakistan was per se un-Islamic, and began to pressure government officials to transform the country into an Islamic theocracy. The leader of this new struggle was Maulana Maududi, head of Jama’at-i-Islami (Party of Islam), an Islamic revivalist fundamentalist movement. Maududi sought to unify Pakistani Muslims under the common cause of excommunicating Ahmadis from Pakistan.25 The ruling Muslim League Party opposed both the idea of creating a theocracy in Pakistan and the ‘theo-democratic’ activities of Jama’at-i- Islami. The government’s ensuing crackdown on the Jama’at-i-Islami resulted in violent demonstrations by Maududi’s movement against Ahmadis in 1953. The Pakistani government condemned these anti- Ahmadi demonstrations as a threat to public order. Thus, at least until 1953, because it disagreed with the Jama’at-i-Islami on the creation of a theocratic state, and because of the close association of the Jama’at-i- Islami to the anti-Ahmadi movement, the government treated anti- Ahmadi speeches as attacks on its policies.26 By 1954, it became clear that the government was giving ground to the fundamentalists. The Pakistani ulema used Ahrar propaganda as a basis to launch a unified campaign against Ahmadis.27 For the next two decades, Ahmadis would face severe attacks on their properties and businesses; the ulema treated Ahmadis not only as non-Muslims, but also as threats to Islam. The ‘Islamization’” of Pakistan’s constitution received its first major push in 1962 when the ulema and the Advisory Council for Islamic Ideology added a ‘repugnancy clause’ to the constitution: ‘No law shall be repugnant to the teachings and requirements of Islam as set out in the Qur’an and Sunnah [actions of the Holy Prophet], and all existing laws shall be brought into conformity therewith.’28 The shift towards the strict constitutional implementation of the Shari’a was partly a result of the 1958 military coup, which indirectly stifled secularist movements within Pakistan. Pakistan’s reformation of its constitution under the strictures of the 27 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 Shari’a has resulted in a steady deterioration of the rights protections found therein.29 Nowhere was this more evident than in the 1974 amendment to the constitution. After a bloody civil war and the separation of Bangladesh from Pakistan in 1971, the National Assembly approved a new constitution in 1973, portions of which embodied the legal and political machinery of the Shari’a as espoused by the orthodox religious clergy. The ulema indoctrinated Pakistan’s masses, arguing that there was an inherent danger in affording too much political autonomy to religious minorities whose very existence undermined Islamic ideology.30 In 1974, a new wave of anti-Ahmadi disturbances spread across Pakistan. Having made significant gains in their 20-year political s t ruggle for an Islamic theocracy, members of the u l e m a saw the disturbances as their opportunity to pressure Prime Minister Zulfikar Ali Bhutto to declare Ahmadis as non-Muslims. Under Bhutto’s leadership, Pakistan’s parliament introduced Articles 260(3)(a) and (b), which defined the term ‘Muslim’ in the Pakistani context and listed groups that were, legally speaking, non-Muslim.31 The goal of this constitutional amendment was to bring some of Pakistan’s remaining progressive constitutional provisions under the purview of the Shari’a. Put into effect on September 6, 1974, the amendment explicitly deprived Ahmadis of their identity as Muslims.32 In early 1978, General Mohammad Zia-ul-Haq, now safely installed as president after a coup overthrowing Bhutto, pushed through parliament a series of laws that created a separate electorate system for non- Muslims, including Ahmadis.33 In 1980, under President Zia-ul-Haq’s leadership, the Federal Shariat Court was created and given jurisdiction to examine any existing law to ensure it was not repugnant to Islam.34 In 1984, Pakistan’s constitution was amended yet again. Seeking to solidify the place of the Shari’a within the legal order, President Zia-ul- Haq issued a presidential order to parliament asking that the constitution be amended in such a way that the original Objectives Resolution of 1949 would take on a new substantive force. Thus, the key provision of that Resolution, which stated that ‘Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set out in 28 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 the Holy Qur’an and Sunnah,’35 became embedded in the text of the constitution. A further amendment proposed, but never passed, later that same year would have strengthened this provision by adding the following: ‘The injunctions of Islam as laid down in the Holy Qur’an and Sunnah shall be the supreme law and source of guidance for legislation to be administered through laws enacted by the parliament and provincial assemblies, and for policy making by the government.’36 The essential purpose and effect of the two amendments was to establish the supremacy of the Shari’a over the constitution itself. That is to say, questions of constitutional interpretation could only be answered in line with the Shari’a. As a result of these amendments, the Federal Shariat Court, with wide discretionary power accorded it, became the state’s legal instrument to legitimise subsequent criminal ordinances passed by parliament. These ordinances included five that explicitly targeted religious minorities: a law against blasphemy; a law punishing the defiling of the Qur’an; a prohibition against insulting the wives, family, or companions of the Prophet of Islam(sa); and two laws specifically restricting the activities of Ahmadis.37 On April 26, 1984, Zia-ul-Haq issued these last two laws as part of Martial Law Ordinance XX, which amended Pakistan’s Penal Code and Press Publication Ordinance Sections 298-B and 298-C. Ordinance XX undercut the activities of religious minorities generally, but struck Ahmadis in particular. For fear of being charged with ‘indirectly or directly posing as a Muslim,’ Ahmadis could no longer p rofess their faith, either verbally or in writing. Pakistani police destroyed Ahmadi translations of the Qur’an and banned Ahmadi publications, the use of any Islamic terminology on Ahmadi wedding invitations, the offering of Ahmadi funeral prayers, and the displaying of the Kalima (the principal creed of a Muslim) on Ahmadi gravestones. In addition, Ordinance XX prohibited Ahmadis from declaring their faith publicly, propagating their faith, building mosques, or making the call for Muslim prayers. In short, virtually any public act of worship or devotion by an Ahmadi could be treated as a criminal offence.38 In Mujibur Rahman v. Government of Pakistan, the Federal Shariat Court was asked to exercise its jurisdiction under Article 203D of the 29 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 constitution to rule whether or not Ordinance XX was contrary to the injunctions of the Qur’an and Sunnah. The court upheld the validity of Ordinance XX and ruled that parliament had acted within its authority to declare Ahmadis as non-Muslims. Ordinance XX, the court maintained, merely prohibited Ahmadis from ‘calling themselves what they [were] not,’ namely Muslims.39 With the passage of the Criminal Law Act of 1986, parliament advanced Ordinance XX’s severe restrictions. The ‘Blasphemy Law,’ as the Act came to be referred to, amended Section 295-C of the Pakistan Penal Code by raising the penalty against blasphemy from fine or imprisonment to death.40 Because the Ahmadi belief in the prophethood of Mirza Ghulam Ahmad(as) was considered blasphemous insofar as it ‘defiled the name of Prophet Muhammad,’4 1 Zia-ul-Haq and the Pakistani government institutionalised the persecution of Ahmadis in Pakistan with Section 295-C. The mere existence of practising Ahmadi Muslims could be considered blasphemous and punishable by death. On July 3, 1993, the Supreme Court of Pakistan dismissed eight appeals brought by Ahmadis who were arrested under Ordinance XX and Section 295-C. The collective complaint in the case, Zaheerudin v. State,42 was that the 1984 Ordinance violated the constitutional rights of religious minorities. The court dismissed the complaint on two main grounds. First, the court held that Ahmadi religious practice, however peaceful, angered and offended the Sunni majority in Pakistan; to maintain law and order, Pakistan would, therefore, need to control Ahmadi religious practice. Second, Ahmadis, as non-Muslims, could not use Islamic epithets in public without violating company and trademark laws. Pakistan, the court reasoned, had the right to protect the sanctity of religious terms under these laws and the right to prevent their usage by non-Muslims. The court also pointed to the sacredness of religious terms under the Shari’a. By directly comparing the Ahmadis to the controversial author Salman Rushdie as a way of underscoring the risk to public safety, this decision ironically endorsed violence against the Ahmadiyya Community.4 3 The ruling further entrenched the anti- Ahmadi ordinances by giving the government power to freely punish Ahmadi religious practice as apostasy.44 30 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 In the wake of the Z a h e e r u d i n decision, the number of re l i g i o u s minorities arrested and charged with blasphemy incre a s e d dramatically.45 Provincial-level ordinances restricting the democratic activity of Ahmadis proliferated. In 1999, for example, the Punjab Provincial Assembly, with the backing of the Federal Shariat Court, unilaterally decided to change the name of the Ahmadi-founded and 98% Ahmadi-populated village of Rabwah (an Arabic word meaning ‘higher ground’ used reverentially in the Qur’an) to Chenab Nagar (an Urdu phrase used pejoratively in Pakistan meaning ‘Chenab river village’) and infiltrated its housing projects with non-Ahmadi settlements in an effort to transform permanently the composition of the village itself.46 Since October 1999, the emergence of President Musharraf has brought about substantial changes in Pakistan’s internal political structure, but little in its legal structure. Although President Musharraf combated the corruption of past leaders, particularly that of former Prime Minister Nawaz Sharif, increased the number of seats in parliament for minority candidates,47 called for the holding of general elections free from past campaign finance corruption,48 and facilitated an immediate and active partnership with the United States in the war against terrorism, he failed to take action against the legal persecution of religious minorities. In fact, Musharraf and other government officials refuse even to discuss repeal of the anti-blasphemy provisions; the perceived tenets of the Shari’a render the matter moot.49 With the recent parliamentary gains by fundamentalist groups in Pakistan, the prospect of reform appears even more unlikely. (to be continued) REFERENCES 1 See, e.g., H.D.S. Greenway, Court India, But Don’t Ignore Pakistan, The Boston Globe, Sept. 10, 2001, at A15. Greenway writes: ‘Pakistan was, and is, in the U.S. doghouse for not restoring democracy, which ended in a military coup in 1999.’ 2 See, e.g., Mansoor Ijaz, Given Cover, Pakistan Can Prove Helpful, L.A. Times, 31 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 Sept. 19, 2001, at B11. Ijaz writes: ‘Gen. Pervez Musharraf, Pakistan’s president, rightly has chosen to stand on the side of civilisation in what will soon become a global campaign against zealotry.’ 3 See, e.g., Editorial, Pakistan’s Cruel Blasphemy Law, N.Y. Times, Aug. 30, 2001, at A20. That a leading American newspaper’s scrutiny of the blasphemy laws in Pakistan came but eleven days prior to September 11 illustrates the dramatic de-emphasis of Pakistan’s problems after September 11. 4 See M. Nadeem Ahmad Siddiq, Enforced Apostasy: Zaheerudin v. State and the Official Persecution of the Ahmadiyya Community in Pakistan, 14 Law and Ineq. 275, 279 (1995). Siddiq notes that, fundamentally, Ahmadis fall within the pale of Islam. They are followers of Mirza Ghulam Ahmad of Qadian, India, who claimed to be the same Messiah foretold by Prophet Muhammad(sa) and awaited eagerly by all Muslims. The Ahmadiyya Community meant to revive the ‘true spirit’ and message of the Islam M u h a m m a d( s a ) e ffectuated, relieving it from all misconstrued or superstitious teachings that tainted Islam for fourteen centuries. The orthodox Muslims claim that Mirza Ghulam Ahmad(as) had proclaimed himself as a prophet, thereby rejecting a fundamental tenet of Islam: Khatm-e-Nabuwwat (a belief in the ‘finality of Prophet Muhammad’(sa)). Ahmadis respond that Mirza Ghulam Ahmad(as) came to illumine Islam in its pristine beauty and to reform its tainted image, as predicted by Prophet Muhammad(sa); for Ahmad(as) and his followers, the Arabic Khatm-e- Nabuwwat does not refer to the finality of prophethood in a literal sense, that is, to prophethood’s chronological cessation, but rather to its culmination and exemplification in Prophet Muhammad(sa). 5 See Leonard Binder, Religion and Politics in Pakistan, 261 (1961). 6 Bureau of Democracy, Human Rights and Labor, U.S. Department of State, Annual Report on International Religious Freedom: Pakistan, http://www.state.gov/g/drl/rls/irf/2002/14026.htm (Oct. 7, 2002). 7 Bureau of Democracy, Human Rights and Labor, U.S. Department of State, Country Reports on Human Rights Practices: Pakistan, h t t p : / / w w w.state.gov/g/drl/rls/hrrpt/2001/sa/8237.htm (Mar. 4, 2002); Bureau of Democracy, Human Rights and Labor, U.S. Department of State, Annual Report on International Religious Freedom: Pakistan: h t t p : / / w w w. s t a t e . g o v / w w w / g l o b a l / h u m a n _ r i g h t s / i r f / i r f _ r p t / i r f _ p a k i stan.html (Sept. 5, 2000). 32 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 8 The persecution of Ahmadis is part of the widespread mistreatment of religious minorities in Pakistan under anti-blasphemy laws. Christians, for example, are also subject to severe religious persecution. A telling case concerns Ayub Masih, a Christian jailed for making favourable comments about Salman Rushdie, the author of the controversial Satanic Verses. A Pakistani court sentenced him to death on April 27, 1998, a year after he survived an attempt on his life during trial. The case was on appeal to the Lahore High Court when Masih’s chief defender, Roman Catholic Bishop John Joseph, committed suicide outside the courtroom to protest Masih’s death sentence. His act sent shockwaves through the minority Christian community across Pakistan, which protested violently against the Blasphemy Law immediately thereafter. See Dexter Filkins, Pakistan’s Blasphemy Law Under Heightened Scrutiny, L.A. Times, May 9, 1998, at A1. 9 H.R. Res. 348, 107th Cong. (2002). 10 Iftikhar H. Malik, Islam, Nationalism And The West: Issues Of Identity In Pakistan, 110 (1999). 11 Id. at 111. 12 See Ayesha Jalal, The Sole Spokesman: Jinnah, the Muslim League and the Demand for Pakistan, 239 – 40 (1985). 13 Id. at 216. 14 He found one such person in Muhammad Zafrulla Khan: an Ahmadi, a prominent member of the Governor-General’s Legislative Council, a justice of the Supreme Court of India, and a staunch proponent of reconciling political founding with fundamental Qur’anic teachings on governance and liberty. Khan was later knighted by the Queen of England. 15 Mohammad Ali Jinnah, Address at the Karachi Club (Aug. 11, 1947), available at: http://www.pakistani.org/pakistan/legislation/constituent_address_11 aug1947.html. 16 S e e Tayyab Mahmud, F reedom of Religion and Religious Minorities in Pakistan: A Study of Judicial Practice, 19 Fordham Int’l L.J. 4086 (1995); see also Mary Ann Glendon, A World Made New: Eleanor Roosevelt and the Universal Declaration of Human Rights 168 (2001). 17 Quoted in David Little et al., Human Rights and the Conflict of Cultures: Western and Islamic Perspectives on Religious Liberty 37 (1988). 18 See Mahmud, supra note 16, at 52 – 53. One might even argue that the 33 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 protection of religious minorities was itself the catalyst for partition. 19 See U.N. Charter art. 1, para. 3; U.N. Charter art. 55, para. c. 20 See Universal Declaration on Human Rights art. 18, G.A. Res. 217A (III), U.N. D o c . A / 8 11 (1948), reprinted in Supplement of Basic Documents to International Law and World Order 377 (Burns H. Weston et al. eds., 3d ed. 1997) [hereinafter Document Supplement]. 21 See Pak. Const., art. 20. ‘Subject to law, public order and morality: – (a) every citizen shall have the right to profess, practise and propagate his religion; and (b) every religious denomination and every sect thereof shall have the right to establish, maintain and manage its religious institutions.’ 22 ‘[The Ahrar’s] enmity of the Ahmadis extended over almost a quarter of a century, and . . . it can be said with absolute certainty that now the Ahrar brought the anti-Ahmadiyya controversy out of their old armoury purely as a political weapon. . . . [I]f [the Ahrar] could arouse public feeling and the masses against the Ahmadis, nobody would dare oppose them and . . . the more the opposition to this activity of theirs, the more popular they would become.’ Lahore High Court, Report of the Court of Inquiry Constituted Under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1953 257 (1954). For an ethnographic discussion of the effects of labelling on Ahmadis in Pakistan, see Antonio R. Gualtieri, Conscience and Coercion: Ahmadi Muslims and Orthodoxy in Pakistan (1989). 23 See Javaid Rehman, The Weaknesses in the International Protection of Minority Rights 143 (2000). 24 See Binder, supra note 5, at 262. 25 See Siddiq, supra note 4, at 284. 26 See id. at 285. The cause of the 1953 disturbances against Ahmadis was put to judicial inquiry. Justice Muhammad Muneer and Justice M.R. Kiyani of the Lahore High Court issued a 387-page document, known later as the Muneer Inquiry Report, that rebuked the politically-motivated goals of Muslim fundamentalist groups apparent in the anti-Ahmadi disturbances. The Report undermined persecution movements against Ahmadis in 1953. See Mahmud, supra note 16, at 66 – 68; see also Lahore High Court, supra note 22. 27 See Siddiq, supra note 4, at 285 – 86. 28 Pak. Const., pt. IX, art. 227. 34 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 29 See Mahmud, supra note 16, at 45. 30 See David F. Forte, Apostasy and Blasphemy in Pakistan, 10 Conn. J. Int’l L. 27, 35 – 36 (1994). “The political power of religious radicals comes from their ability to mobilise the passions of the lower middle classes in the cities by conjoining the ideology of nationalism with the xenophobia and legalistic positivism of militant Islam.” Id. at 35. 31 See Pak. Const. pt. XII, ch. 5, arts. 260(3)(a), 260(3)(b). ‘Muslim means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe, or recognise as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or any description whatsoever, after Muhammad (peace be upon him).’ Subsection (b) reads: ‘“Non Muslim” means a person who is not a Muslim and includes a person belonging to the Christians, Hindus, Sikh, Buddhist or Parsi community, a person of the Quadiani Group or Lahori Group (who call themselves “Ahmadis” or by any other name) or a Bahai, and a person belonging to any of the Scheduled Castes.’ 32 In addition to the constraints the amendment placed on Ahmadis, it also called for the nationalisation of Christian schools, so that the influence of private Christian groups was radically reduced. 33 Approximately 92% of Pakistan’s 140 million people are Muslim. The remaining 8% constitute roughly four million Christians, four million Hindus, Jews, Sikhs, Zoroastrians, and Bahais, and four million Ahmadis. Election reform legislation in 1978 provided for separate electorates for non-Muslims in the National and Provincial Assemblies. Only ten of the 211 seats in parliament are reserved for minority candidates. Members of minority religions may only vote for candidates in their local districts from a list of minority candidates. As a result, 95% of the nation may vote for candidates based on their geographic locality, while the remaining 5% must vote for roughly 5% of parliamentary seats regardless of their geographic locality. The division of the electorates has serious implications. Perhaps most obvious is that majority Muslim candidates have no incentive to appeal to religious minorities. The influence of religious minorities being negligible, majority Muslim candidates have no political obligation to push for the civil liberties of religious minorities in parliament. For a long time, the Pakistani National Assembly based its representation for religious minorities on 1981 census figures. The census figure of Ahmadis presented in the National Assembly, for example, was 35 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 104,244, only 2.6% of the actual Ahmadi population in Pakistan. Moreover, non-Muslims have no representation whatever in the senate and federal cabinet. Bureau of Democracy, Human Rights and Labor, U.S. Department of State, Annual Report on International Religious Freedom: Pakistan, supra note 7. Political persecution of Ahmadis emanates from their political disenfranchisement. In order to cast their votes for minority candidates, non-Muslims must register on the ‘non-Muslim’ electoral rolls. Ahmadis, however, base their entire ideological foundation on Islam and profess to be true Muslims. According to Ahmadis, under the current electorate set- up, any representation as minorities would be a tacit admission on their part that they are, therefore, non-Muslims. To register as non-Muslims demeans their faith and compromises their ethical standards. Ahmadis cannot register as Muslims without facing severe legal consequences, including fines and imprisonment. The result is a glaring infringement on freedom of conscience, as protected by the UDHR and international human rights law. Ahmadis are psychologically paralysed when filling out electoral ballots to the extent that they rarely vote in Pakistan’s elections. See, e.g., Barbara Crosette, P a k i s t a n ’s Minorities Face Vo t i n g Restrictions, N.Y. Times, Oct. 23, 1990, at A5; David Lamb, Non-Muslims in Pakistan Seek a Political Voice, L.A. Times, Jan. 13, 2002, at A9. On February 27, 2002, President Musharraf issued Chief Executive’s Order No. 7 of 2002 (Conduct of General Elections Order), which called for the elimination of the separate electoral system. Non-Muslim minorities and Ahmadis hailed the Order as a step towards true democracy in Pakistan. On June 17, 2002, however, Musharraf passed a series of amendments to the original Order, which stated explicitly that the “[s]tatus of Ahmadis [was]. . . to remain unchanged” (Section 7-B). The striking result is a joint electoral roll with the names of eligible voters (Muslims and non-Muslims alike), but with no Ahmadis. 34 See Forte, supra note 30, at 37. By 1986, the Federal Shariat Court had invalidated fifty-five federal laws and 212 provincial laws as being contrary to Islam. 35 See Pak. Const., art. 2(A) (made part of constitution by Presidential Order No. 14 (1985)). 36 See Pak. Const. amend. IX, Bill section 2 of 1985 (an unadopted proposal to amend Pak. Const. of 1973). 37 See Pak. Penal Code §§ 298B, 298C (collectively referred to as Ordinance XX). According to § 298B: 36 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 (1) Any person of the Quadiani group or the Lahori group (who call themselves ‘Ahmadis’ or any other name) who by words, either spoken or written, or by visible representation a . refers to, or addresses, any person, other than a Caliph or companion of the Holy Prophet Muhammad (peace be upon him), as ‘ A m e e r-ul-Mumineen,’ ‘Khalifat-ul-Mumineen,’ ‘Khilafat-ul- Muslimeen’ ‘Sahaabi’ or ‘Razi Allah Anaho’; b. refers to, or addresses, any person, other than a wife of the Holy Prophet Muhammad (Peace be upon him), as ‘Ummul-Mumineen’; c. 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 d. refers to, or names, or calls, his place of worship as Masjid; shall be punished with imprisonment of either description for a term which may extend to three years, and shall also be liable to fine. (2) Any person of the Quadiani group or Lahori group (who call themselves as ‘Ahmadis’ or by any other name) 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 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. According to S 298C: Any person of the Quadiani group or Lahori group (who call themselves ‘Ahmadis’ or by any other name), who, 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 in any manner whatsoever outrages the religious feelings of 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. 38 See Siddiq, supra note 4, at 288 – 89. 39 See Mujibur Rehman v Gov’t of Pakistan, 1985 S.D. Vol. II (Fed. Shariat Court) 382, 473 (Pak.). 37 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 40 See Pak. Penal Code § 295C (part of the Criminal Law Amendment Act of 1986, which amended the punishments enumerated in §§ 298B and 298C to include death). ‘Whoever by words, either spoken or written, or by visible representation, or by any imputation, innuendo, or insinuation, d i rectly or indire c t l y, defiles the sacred name of the Holy Pro p h e t Muhammad (peace be upon him) shall be punished with death, or imprisonment for life, and shall be also liable to fine.’ 41 See id. 42 Zaheerudin v. State, 26 S.C.M.R. 1718 (S.Ct. 1993) (Pak.). Zaheerudin v. State was a 4 – 1 ruling led by Justice Abdul Qadeer Chaudhry, holding that Ordinance XX was in accord with statutes and judicial opinions in England and the United States that protect religious freedom; the majority erroneously cited legal precedent from both jurisdictions as false support. For an extended treatment of the case and its misapplication of American judicial precedent, see Siddiq, supra note 4. 43 Note that Ahmadis believe in retaliation only as a matter of necessary self- defence. The spiritual leader of the worldwide Ahmadiyya Community at the time of the passage of the 1974 amendment, Mirza Nasir Ahmad, voiced no official opposition against it, nor did he encourage his members to rebel against the laws. Likewise, Mirza Tahir Ahmad, the spiritual leader of the Ahmadiyya Community at the time of the passage of Ordinance XX and the Blasphemy Law, encouraged tolerance against o p p ressive Muslims. The explicit purpose behind the anti-Ahmadi ordinances, that is, to quell the Ahmadi threat, appears irrational when placed in the context of Ahmadi non-retaliatory conduct. 44 See Siddiq, supra note 4, at 286. 45 Seventeen blasphemy cases, resulting in one conviction, were registered against Ahmadis in the first nine months of 1994. Bureau of Democracy, Human Rights, and Labor, U.S. Department of State, Annual Report On Human Rights Abuses: Pakistan, h t t p : / / w w w. s t a t e . g o v / w w w / g l o b a l / h u m a n _ r i g h t s / d r l _ re p o r t s . h t m l (Feb. 1995). 46 See Rehman, supra note 23, at 153. 47 In January 2002, Musharraf added new seats in the National Assembly, reserved sixty seats for women, and ended a system in which non- Muslims had to run separately for a limited number of reserved seats. See Mohamad Bazzi, Musharraf Pledges October Elections, Newsday (New 38 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003 York), Jan. 25, 2002, at A34 (Musharraf added 350 new seats and set aside 60 parliamentary seats for women); Erik Eckholm, Leader Plans Open Election for Pakistan in October, N.Y. Times, Jan. 25, 2002, at A6 (Musharraf ended non-Muslim discrimination in electoral practices). 48 See Erik Eckholm, supra note 47, at A6. 49 This is especially compelling given that Pakistan’s constitution had been suspended for re-examination immediately after the October 1999 military coup. See Celia W. Dugger & Raja Zulfikar, Pakistan Military Completes Seizure of All Authority, N.Y. Times, Oct. 15, 1999, at A1. Acknowledgement J.D. Candidate, Harvard Law School Class of 2004; B.A., Claremont McKenna College, 2001. The author would like to thank M. Nadeem Ahmad Siddiq, Jeff Redding, Tom Kellogg, Elizabeth Puskar, Karen Parker, Peter Rosenblum, and the editors of the Harvard Human Rights Journal for their constructive comments and suggestions. The author also thanks his parents, Anwer Mahmood Khan and Amtul Hakeem Khan, for their love and support. The article is dedicated to the memories of Hadhrat Sir Muhammad Zafrulla Khan (d.1986), former president of the International Court of Justice, and Hadhrat Abdul Malik Khan (d.1983), the author’s paternal Late grandfather. Special dedication to beloved Hadhrat Mirza Tahir Ahmad, the Supreme Head of the worldwide Ahmadiyya Community, for his spiritual guidance and inspiration. 39 Persecution of the Ahmadiyya Community in Pakistan The Review of Religions – June 2003