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

53The Review of Religions – June 2003 III. THE ANTI-BLASPHEMY PROVISIONS UNDER INTERNATIONAL LAW A. The U.N. Charter and the Universal Declaration of Human Rights Given Pakistan’s once staunch advocacy of Article 55(c) of the U.N. Charter and Article 18 of the UDHR, it is striking that it should so clearly c i rcumvent them in its promulgation and constitutionalisation of Ordinance XX and the Criminal Law Act of 1986. Where Article 18 guarantees the right to ‘freedom of thought . . . and to manifest this [thought] in . . . community with others and in public or private, in teaching, practice, worship and observance,’ Ordinance XX subjects one who thinks critically about the Holy Prophet Muhammad and manifests this thought ‘by words, either spoken or written, or by visible representation,’ or “any person . . . who calls himself or herself Ahmadi . . . and 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 that outrages the religious feelings of Muslims” to ‘imprisonment . . . and fine.’ Moreover, Section 295-C of the Pakistan Penal Code, in its 1986 amended form, undermines completely the crucial right to manifest one’s beliefs and goes so far as to punish the exercise of this right with capital punishment, particularly as it relates to Ahmadis. Pakistan’s state practice establishing the hegemony of a strict interpretation of the Shari’a makes such a glaring circumvention of an international declaration it formerly supported less surprising, though no less disturbing. As one of only a few Muslim countries to accept fully Persecution of the Ahmadiyya Community in Pakistan: An Analysis Under International Law and International Relations – part 2 This is the second part of an article looking at the illegitimacy of the position of Pakistan in the way that it deals with minorities such as the Ahmadiyya Community. By Amjad Mahmood Khan 54 The Review of Religions – June 2003 the provisions of the UDHR, it is ironic that Pakistan would endorse a p roposition, advanced by Saudi Arabia, that it once condemned vociferously: that freedom of conscience is antithetical to the Shari’a. The irony is both tragic and fatal, for under a less strict interpretation of the Shari’a, Pakistan’s state practice holds no logic. Pakistan attaches a temporal penalty to apostasy, something the Qur’an, the primary informant of the Shari’a, labels a spiritual offence.50 The presumption that the state should assess the truthfulness of a believer is equally contrary to Qur’anic injunction.51 B. The International Covenant on Civil and Political Rights Article 18 of the UDHR arguably became a peremptory norm of international law in 1966 with the passing of Articles 18, 19, 20, and 27 of the International Covenant on Civil and Political Rights (‘ICCPR’). The covenant concretised the basic freedoms of religion and conscience articulated in the UDHR and made its signatories legally bound by it. In addition to prohibiting state coercion that would impair a person’s freedom to practice or adopt a religion or belief of one’s choice, the ICCPR also prohibits states from denying religious minorities the right, in community with other group members, to enjoy their own culture, profess or practice their own religion, or to use their own language.52 These rights are non-derogable except if the interests of public safety, order, health or morals, or the fundamental rights and freedoms of others, if prescribed by law, justifies their limitation. Though Article 18 of the UDHR was a resounding declaration of religious freedom, without the backing of the ICCPR it lacked the force of a binding legal instrument. The ICCPRs long drafting period encompassed eighteen years of wrestling with issues the UDHR did not expound upon, including religious conversion, proselytism, and the tension between universal human rights and cultural relativism.53 The durability and universalisability of the precepts of the ICCPR were evident in its implementation ten years after its formulation in 1976. One hundred and twenty-five countries, including 23 Muslim states, ratified the Covenant.54 Persecution of the Ahmadiyya Community in Pakistan 55The Review of Religions – June 2003 Twenty-seven years after the Covenant’s introduction, the U.N. Human Rights Committee issued a General Comment describing the state of international norms of religious freedom at that time.55 The Comment described how international law recognised twelve non-derogable core rights, including the right to freedom of religion and prohibition of discrimination on the basis of religion. Even the key right of the freedom to manifest one’s religion, which customary international human rights law recognises as derogable, has adequate safeguards built around it. In 1984, thirty-one international law experts from seventeen countries met in Siracusa, Italy, to consider the ICCPR’s Article IV limitation and derogation provisions.56 The Siracusa Principles on the Limitations and Derogation in the ICCPR clarify that any limitation imposed on one’s freedom to manifest one’s religion, or on other derogable rights in the Covenant, must be justifiably necessary and must constitute a response to a pressing public or social need, pursue a legitimate governmental purpose, and be appropriate to that purpose.57 States face a number of restrictions if they choose to place a domestic legal limitation on a right protected in the ICCPR, including prohibitions against laws that are vague, arbitrary, or unreasonable in content or application, and laws that discriminate expressly on the basis of religion. Fundamentally, domestic legal systems must grant protections at least equal to those specified under international law.58 Pakistan is not a signatory to the ICCPR; in particular, it could not endorse Articles 18, 19, 20, and 27. Pakistan’s state practice, as mentioned above, involved the ascendancy of the S h a r i ’ a a n d devolution from its fundamental acceptance of religious freedom in its founding era. Ironically, Pakistan’s distinguished jurists contributed to the opinio juris in Pakistan that regards the ICCPR as an affirmation of international human rights norms. Commenting on the relevance of international human rights law to common law jurisdiction in Pakistan, Justice Muhammad Haleem, then Chief Justice of Pakistan, at the Bangalore Colloquium in 1988,59 exclaimed: All rules of general international law created for humanitarian purposes constitute jus cogens. A valid domestic jurisdiction defense can no Persecution of the Ahmadiyya Community in Pakistan 56 The Review of Religions – June 2003 longer be founded on the proposition that the manner in which the state treats its own national is ipso facto a matter within its domestic jurisdiction . . . because a matter is essentially within the domestic jurisdiction of the state only if it is not regulated by international law. In the modern age of economic and political interdependence, most questions which, on the face of it, appear to be essentially domestic ones are, in fact, essentially international. . . . The international human rights norms are in fact part of the constitutional expression of the liberties guaranteed at the national level. The domestic courts can assume the task of expanding these liberties. . . . The present thinking at the international level supports an expanded role of domestic courts for the observance of international human rights norms. This re a p p r a i s a l enables domestic courts to extend to citizens via state constitutions, greater protection of internationally recognised rights.60 That the Supreme Court of Pakistan would declare Ordinance XX constitutional only five years later in Zaheerudin is troubling because in so doing, Pakistan violated Article 18 of the ICCPR. To mar the consciences of Ahmadis by foreclosing their right to profess and practise their interpretation of Islam is a breach of Article 18’s instruction that ‘no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his own choice.’61 Though the Court in Z a h e e r u d i n did not directly invoke the Article IV limitations to derogable rights, the majority justices used a public order argument akin to these limitations in their justification for upholding the constitutionality of Pakistan’s anti-blasphemy provisions. By witnessing their faiths, the Court argued, Ahmadis inherently blasphemed Islam; if the government allowed the public declaration of their faiths, each Ahmadi would become a ‘state-crafted Salman Rushdie.’62 Thus, the anti-blasphemy provisions were not only constitutional, but also fully consistent with the limitations to the rights enumerated in the ICCPR, insofar as they restricted Ahmadi activities for the sake of protecting public morals, maintaining public order, and preserving the integrity of Islam as Pakistan’s official state religion.63 For the Supreme Court of Pakistan to analogise the Ahmadi population to Salman Rushdie is to suggest that Ahmadis pose a threat to national Persecution of the Ahmadiyya Community in Pakistan 57The Review of Religions – June 2003 security (more specifically, the security of the Shari’a), which the General Comment to the ICCPR specifically forecloses as a legitimate exception to a non-derogable right.64 The fact that Ahmadis consistently invoke principles of non-retaliation even in the face of persecution is further indication of the absurdity of the national security argument. Moreover, Section 9 of the U.N. General Comment specifies: ‘The fact that a religion is recognised as a state religion or that it is established as official or traditional or that its following comprise the majority of the population, shall not result in any impairment of the enjoyment of any of the rights under the Covenant, including Articles 18 and 27, nor in any discrimination against adherents of other religion or non- believers.’65 Thus, the court’s law and order justification is not in accordance with the express provisions of the ICCPR, the official comments, or Pakistan’s opinio juris regarding the Covenant. C. The U.N. Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief With the passage of the Declaration on the Elimination of All Forms of Religious Intolerance and of Discrimination Based on Religion or Belief on November 25, 1981, the U.N. further alerted Pakistan to emerging customary international human rights law concerning re l i g i o u s freedom.66 The U.N. Declaration of 1981, unlike the ICCPR, addressed restrictions on freedom of religion for religious minorities as they relate to conflicting interpretations of a single religion (i.e., intra-state and intra-religious discrimination). While affirming the basic principles of freedom of thought, conscience, religion, and belief, the Declaration of 1981 also separates ‘intolerance based on religion or belief’ fro m ‘discrimination based on religion or belief,’ so that religious minorities gain virtually exhaustive protection from systemic cruelty fro m members of another religion, from members of a particular sect or division of the same religion, and from a state (or state religion). Thus, the six Articles in the Declaration of 1981 offer arguably the most expansive annunciation of freedom of religion. The Declaration itself was adopted without a vote in the U.N.: it is a ‘soft law’ designed to further the international norms the ICCPR espoused. Persecution of the Ahmadiyya Community in Pakistan 58 The Review of Religions – June 2003 By circumscribing the freedom of Ahmadis to manifest their faith in Islam through written and verbal means, including the use of the K a l i m a, the A d h a n (or call for prayer), and A s s a l a m o – o – A l a i k u m (standard greeting of a Muslim, Arabic for ‘peace be upon you’), Pakistan, in its promulgation of the anti-blasphemy provisions, violated Article 6 of the Declaration of 1981. Section (c) guarantees the freedom “to make, acquire and use to an adequate extent the necessary articles and materials related to the rites or customs of a religion or belief,”67 which for an Ahmadi, as it would be for any Muslim, includes the public display of the Kalima, the use of a loudspeaker or microphone for the Adhan, and the use of stationary with the phrase Assalamo-e-Alaikum as a basic Islamic greeting. Yet these very ‘articles and materials’ have been the subject of formal criminal charges levelled against Ahmadis. Even more compelling than Article 6 of the Declaration of 1981 is Article 7, which sets forth a patent obligation that ‘the rights and freedoms set forth in the Declaration shall be accorded in national legislations in such a manner that everyone shall be able to avail himself of such rights and freedoms in practice.’68 Because the creation of parliament was to come years later, President Zia-ul-Haq was effectively Pakistan’s originator of ‘national legislation’ at this time. It was highly unlikely that Pakistan could meet the obligation of Article 7 of the Declaration of 1981 while still maintaining the supremacy of the Shari’a. Thus, the passage of Ordinance XX and the Criminal Law Act of 1986, only a few years after the Declaration of 1981, can be seen as Pakistan’s way of asserting, with a clenched fist, the place of the Shari’a in the international community and its own adherence to the Shari’a in its national legislation. D . Report of the U.N. Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Thirty-Eighth Session In 1985, the U.N. Sub-Commission issued a formal statement against Pakistan’s promulgation of Ordinance XX, calling for its immediate repeal and the creation of protections to prevent the mass exodus of Ahmadis.69 Resolution 1985/21 was a succinct and powerful affirmation Persecution of the Ahmadiyya Community in Pakistan 59The Review of Religions – June 2003 of the crucial principles of the UN Charter, the UDHR, and the U.N. Declaration of 1981. Its first paragraph expressly proclaims that the Sub- Commission’s reports are ‘guided’”7 0 by the principles of these international instruments. The report condemns Ordinance XX as a ‘prima facie violation . . . of the right of religious minorities to profess and practice their own religion.’71 It ‘expresses grave concern’ at the O rdinance’s subjection of Ahmadis to ‘various punishments and confiscation of personal property . . . discrimination in employment and education . . . and to the defacement of their religious property.’72 P e rhaps most importantly, Resolution 1985/21 rejects Pakistan’s justification for Ordinance XX’s restrictions on Ahmadis as a public safety regulation.73 Resolution 1985/21 was a sweeping reminder to Pakistan to live up to its commitment to international human rights. This commitment was not an implied one, but rather was clearly manifested by Pakistan’s membership in the U.N. Sub-Commission for the Promotion and Protection of Human Rights, a privilege Pakistan will hold at least until 2006.74 That Pakistan turned a blind eye to Resolution 1985/21 is yet another powerful example of its failure to honour commitments under international human rights norms. (to be continued) References 50 A primary verse of the Qur’an that proponents of Pakistan’s anti- blasphemy provisions cite is Chapter 3, Verse 86: ‘And who so seeks a religion other than Islam, it shall not be accepted from him, and in the life to come he shall be among the losers.’ THE HOLY QUR’AN, Ch.3:V.86, translated by Maulawi Sher Ali. Even a strict and literal interpretation of the above verse places any sort of punishment for apostasy squarely in the ‘life to come’ or hereafter, that is, it is a spiritual offence punished by God alone and not an offence that requires physical punishment. For a detailed discussion of the significance of blasphemy under Islamic Law, see Donna E. Arzt, Heroes or Heretics: Religious Dissidents Under Islamic Law, 14 WIS. INT’L L.J. 349 (1996). 51 Though doctrinally difficult to grasp, the concept of separation of Persecution of the Ahmadiyya Community in Pakistan 60 The Review of Religions – June 2003 religion and state is not fundamentally antithetical to Islam. It suffices here to mention that the Qur’an stresses that an individual’s spiritual destiny is strictly between God and that person, without interference from an outside person or state. That is to say, true religious belief requires both intense personal commitment and individual consent. In reference to the Muslims’ treatment of non-believing Arabs during the Prophet Muhammad’s time, Chapter 6, Verse 108 of the Qur’an reads: “And if Allah had enforced His Will, they [the non-believing Arabs] would not have set up gods with Him. And We have not made thee a keeper over them, nor art thou over them a guardian.” THE HOLY QUR’AN, Ch.6: V.108, translated by Maulawi Sher Ali. Chapter 10, Verse 100 reads: “And if thy Lord had enforced His will, surely, all who are on the earth would have believed together. Wilt thou, then, force men to become believers?” THE HOLY QUR’AN, Ch.10: V.100, translated by Maulawi Sher Ali. From the verses, one can see how the case of the non-believing Arabs was not with humankind, but with God. They w e re immune from punishment, compulsion, and other civil disabilities in relation to their religion and practices. In pure Islamic teaching, it is irrational for an outside person or state to determine the fate of non-Muslims because it is tantamount to associating partners with God, which for a Muslim is the most egregious sin man can commit. See THE HOLY QUR’AN, Ch.4: V.49 translated by Maulawi Sher Ali. Pakistan’s legal persecution of Ahmadis, understood in this light, is contrary to these verses of the Qur’an. 52 See International Covenant on Civil and Political Rights, arts. 18, 27, G.A. Res. 2200A (XXI), U.N. GAOR 21st Sess., Supp. No. 16, at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 1976), reprinted in DOCUMENT SUPPLEMENT, supra note 20, at 440, 441. 53 See Natan Lerner, The Nature and Minimum Standards of Freedom of Religion or Belief, 2000 B.Y.U. L. REV. 905, 914 (2000). 54 See Arzt, supra note 50, at 358. Though considered one of the most important human rights instruments in the world, the ICCPR has not yet reached the status of customary law. Makau Wa Mutua argues, for example, that the ICCPR is “mainly a repetition and elaboration of the rights and processes that liberal democracies have evolved” and an “attempt[] to universalise civil and political rights accepted or aspired to in Western liberal democracies.” See Makau Wa Mutua, The Ideology Persecution of the Ahmadiyya Community in Pakistan 61The Review of Religions – June 2003 of Human Rights, 36 VA. J. INT’L L. 589, 604n.39, 606 (1996). 55 See the U.N. Human Rights Committee, General Comment adopted under art. 40, para. 4, of the ICCPR, U.N. DOC. CCPR/C/21/Rev. 1/Add. 4 (1993). 56 See The Siracusa Principles on the Limitation and Dero g a t i o n Provisions in the International Covenant on Civil and Political Rights, reprinted in 7 HUM. RTS. Q. 1, 1 (1985). 57 Id. at 4. 58 Id. at 5, 9 – 10. The Siracusa Principles define “public safety” as protection “against danger to the safety of persons . . . or their physical integrity, or serious damage to their property” and define “public order” as the “sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded.” A limitation for the protection of “public morals” must be “essential to the maintenance of respect for the fundamental values of the community.” Id. at 5 – 6. 59 In 1988, the British Commonwealth Secretariat initiated a series of judicial colloquia to promote the domestic application of international and regional human rights norms. The first colloquium took placed in Bangalore, India, from which emerged the Bangalore Principles, which called for the creative and consistent development of human rights j u r i s p rudence throughout the British Commonwealth. S e e h t t p : / / w w w. t h e c o m m o n w e a l t h . o rg / g e n d e r / w h a t w e d o / a c t i v i t i e s / h umanrights/regjudcoll.htm (last visited Feb. 12, 2003). 60 Muhammad Haleem, Domestic Application Of Human Rights Norms, in IV DE V E L O P I N G HU M A N RI G H T S JU R I S P R U D E N C E: A FO U RT H JU D I C I A L COLLOQUIUM ON THE DOMESTIC APPLICATION OF HUMAN RIGHTS NORMS 101 (Judicial Colloquium in Abuja, 1991). 61 ICCPR, supra note 52, art. 18. 62 Zaheerudin v. State, supra note 42, at 1778. 63 The Pakistani government’s justification here is contrary to international norms. According to a 1993 resolution by the U.N. Commission on Human Rights, governments should be obligated to provide effective remedies for redress for religious groups suffering intolerance. See, e.g., U.N. Commission on Human Rights, Res. Persecution of the Ahmadiyya Community in Pakistan 62 The Review of Religions – June 2003 1993/25, paras. 3,5,6, U.N. Doc. E/1993/23, (1993) at 111, 112 in KAREN PARKER, RELIGIOUS PERSECUTION IN PAKISTAN: THE AHMADI CASE AT THE SU P R E M E CO U RT fn. 20 (1993), available at: https://www.webcom.com/hrin/parker/ahmadi.html. 64 See Lerner, supra note 53, at 915. 65 See General Comment, supra note 55, P9 at 4. 66 See Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, G.A. Res. 36/55, U.N. GAOR, 36th Sess., Supp. No. 51, at 171, U.N. Doc. A/36/684 (1981). 67 Id. art. 6(c). 68 Id. art. 7. 69 See The Situation in Pakistan, E.S.C. Res. 1985/21, reported in Report of the Sub-Commission on Prevention of Discrimination and Protection of Minorities on its Thirty-Eighth Session, U.N. ESCOR, 38th Sess., at 102, U.N. Doc. E/CN.4/1986/5 (1986). 70 Id. 71 Id. 72 Id. 73 See Siddiq, supra note 4, at 326 – 27. 74 Mr. Abdul Sattar currently serves as Pakistan’s delegate to the U.N. Sub-Commission on the Promotion and Protection of Human Rights. 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