IV. The Anti-Blasphemy Provisions Under Regional Instruments A. African Charter on Human and People’s Rights Thirty African nations, including thirteen Muslim states, signed the African Charter on Human and People’s Rights on October 21, 1986.75 Apart from the ICCPR, the African Charter stands as the only legally binding treaty that includes Muslim states. The 62-Article Charter enshrines sweeping rights including those of free speech, association, and property. Article 8 guarantees the freedom of conscience and the profession and free practice of religion. Although Pakistan is obviously not a signatory, the Charter, along with the ICCPR, is an indicator that religious freedom can be protected in Muslim states. In targeting a particular religious group by attaching criminal penalties to the public declaration or display of an Ahmadi’s faith, the anti- blasphemy provisions violate Article 8 of the Charter. B. Cairo Declaration on Human Rights in Islam The Charter of the Islamic Conference formed the Organisation of the Islamic Conference (‘OIC’) in 1972, opening membership to every Muslim state in the world, roughly 50 in all. The Conference aimed to offer an Islamic conception of human rights and express Muslim solidarity in international human rights norms. Members of the OIC 50 The Review of Religions – August 2003 Persecution of the Ahmadiyya Community in Pakistan: An Analysis Under International Law and International Relations – part 3 This is the final 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 Muslim Community. First published in Harvard Human Rights Journal, Vol.16, Spring 2003, pp.217-245 by Amjad Mahmood Khan. passed the Cairo Declaration on Human Rights in Islam on August 5, 1990.76 The Declaration makes no guarantee of freedom of religion, nor offers any of the explicit safeguards found in the UDHR, ICCPR, and U.N. Declaration of 1981. The closest it comes to the language of the above instruments is in Article 10, which prohibits ‘any form of compulsion on man in order to convert him to another religion or to atheism.’77 The language of this Article resembles that of Article 18(2) of the ICCPR, which provides, ‘No one shall be subject to coercion which would impair his freedom to have or adopt a religion or belief of his choice.’78 Where Article 18(2) prohibits compulsion as it relates to basic religious freedoms for minorities, Article 10 of the Cairo Declaration merely prohibits compulsion as it relates to conversion to a religion other than Islam or to atheism. In other words, the Cairo Declaration does little to advance international customary human rights law in the Muslim world. The anti-blasphemy laws do not seem to run counter to the basic Articles of the Cairo Declaration. Indeed, they seem wholly consistent with them: they are laws restricting blasphemy against the Prophet of Islam in accordance with ‘the tenets of the Shari’a’ and for the preservation of the ‘unspoiled nature’ of Islam. Though, in fact, the Cairo Declaration appears as Pakistan’s best, and perhaps only, chance to justify its anti-blasphemy provisions under an extra-territorial covenant, it is important to recognise that the Declaration itself came well after the issuance of the anti-blasphemy provisions. Indeed, a retroactive attempt at reconciling legal persecution of religious minorities with the precepts of a fledgling regional instrument not endorsed by the majority of the world79 is but a contradictory and perfunctory attempt at saving Pakistan’s once leading commitment to religious freedom while still advocating a debilitating, strictly Shari’a-based legal system. 51 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 V. TH E AN T I- BL A S P H E M Y PR O V I S I O N S A N D IN T E R N AT I O N A L RELATIONS THEORY The persecution of Ahmadis is fundamentally an issue of the legal entrenchment of restrictions on religious minorities in Pakistan. Though I argue that the issue is best resolved through international law, it nevertheless requires a deep understanding of Pakistan’s political and social milieu. Foreign policies concerning the issue would necessarily involve paradigmatic prescriptions. It is a useful exercise, therefore, to assess the issue through the lenses of various strands of international relations theory, so as to anticipate the major policy arguments for and against its resolution. Admittedly, many of these arguments cut against my own argument for the repeal of the anti-blasphemy provisions in Pakistan’s Penal Code. A. The Realist Paradigm80 A realist would argue that Pakistan’s anti-blasphemy laws target only about 5% of Pakistan’s total population. These laws were enacted by democratically elected officials in the National Assembly and are wholly constitutional. The majority of Pakistan’s people seemingly favour a system of Shari’a and deem Ahmadis as non-Muslims. The United States, or any nation, should therefore treat the persecution of Ahmadis no differently than other human rights concerns around the Islamic world, that is, as a minor problem relative to the concern of maintaining the balance of power among Muslim states. Considerable deference must be paid to the central authority in Pakistan, namely President Musharraf and his appointed cabinet and justices. By intervening on behalf of oppressed religious minorities in Pakistan, some have argued, the international community would not only be violating the sovereignty of Pakistan, but also disrupting its delicate and crucial partnership in the war on terrorism. Pakistan has endorsed only the UDHR, which is a mere moral affirmation of universal rights and has no binding force. The ICCPR, 52 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 in contrast, is binding on its signatories, which does not include Pakistan. Pakistan has asserted its preference for the Shari’a by not endorsing the U.N. Declaration of 1981 and by justifying its anti- blasphemy provisions under the Cairo Declaration. A young and unstable country like Pakistan should not bind itself by the whims of its founding fathers, whose mandate was short-lived. To undermine the strictures of the Shari’a with an international referendum to repeal the anti-blasphemy laws would damage Pakistan’s political and legal machinery, perhaps leading to the increase of violence along its borders. Such a referendum would also fail to account for the fact that Pakistan, since October 1999, and until only recently, has been essentially a military regime that solves its problems, particularly the Kashmir dispute, through military means. The persecution of Ahmadis in Pakistan can be resolved via political means, not legal ones. To hold Pakistan to international customary human rights law as it relates to its anti-blasphemy laws is an impractical and futile pursuit because political treatment of religious dissidents is what drives the legitimacy of such laws. Rather than dealing with individual political actors within Pakistan, a more manageable approach would be to treat the nation as a unitary political actor, whose internal political insurrections are not the concern of the international community, particularly not of Western, liberal nations. Of greater concern is who controls Pakistan’s central authority, how best to deal with that authority, and how to preserve Pakistan’s powerful alliance with the West against other, more volatile, Muslim states in the region and the world. B. The Institutionalist Paradigm81 According to the institutionalist point of view, the anti-blasphemy provisions violate Article 18 of the UDHR, which Pakistan itself advocated in 1948. According to a developing body of international customary human rights law, Pakistan, in passing Ordinance XX, 53 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 violated Articles 18, 19, 20, 27 of the ICCPR and Articles 6 and 7 of the U.N. Declaration of 1981. Pakistan justified its anti-blasphemy provisions and the persecution of religious minorities under the provisions of a regional instrument, namely the Cairo Declaration, post hoc, years after its promulgation. The United States, or any nation, should therefore treat the persecution of Ahmadis in a manner that defers to international institutions as a way to promote and maintain basic and universal religious freedom to religious minorities. Pakistan has clearly demonstrated its commitment to the universal human right of religious freedom in its founding era, being the leading Muslim nation to endorse the UDHR. This commitment, though buried in history, must be renewed by holding Pakistan accountable for its promulgation of anti-blasphemy laws that fly in the face of existing international norms. All states have an interest in preserving the basic freedoms of ethnic minorities within their borders. By rendering Pakistan subject to international law, the international community posits a collective interest in prescribing state activities that champion freedom of thought, conscience, religion, and belief. With a history marred by corruption, violence, and instability, Pakistan has a vested interest in proving to the world that it can function as not only a progressive democracy capable of honouring commitments to international law and custom, but also as one of the few Islamic states that encourages religious pluralism. Pakistan, though not a party to the ICCPR, reconciled its anti- blasphemy provisions with the limitations to non-derogable rights in the Covenant itself. Pakistan acted in a way prima facie incompatible with recognised rules concerning freedom of thought, conscience, religion, and belief. However, it defended its conduct by appealing to exceptions or justifications contained within the rules themselves. Whether or not Pakistan’s conduct is in fact justifiable on the basis of these exceptions is not the key issue. Rather, the important thing is that 54 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 Pakistan constructively consented to external institutions governing its conduct, thereby strengthening rather than weakening the spirit of the rules and the system. C. The Liberalist Paradigm82 The liberalist view holds that Pakistan criminalised the activities of Ahmadis to acquiesce to the wishes of its major political parties and interest groups, including the clerics. The majority of Pakistan’s people favour the 1974 amendment declaring Ahmadis non-Muslims and subsequent amendments to the Pakistani Penal Code through Ordinance XX and the Criminal Law Act of 1986. Non-Muslim minorities (and Ahmadis) are in fact represented in the parliament through separate electorates. The United States, or any nation, should therefore defer to the organised collective action of a sovereign and democratic nation and the legal procedures it adopts to protect its interest in preserving public order. Pakistan’s commitment to religious freedom for minorities, though certainly an integral part of its founding era, is not entirely representative of its people. As the Shari’a evolved in Pakistan and Islam became the official state religion, domestic support of laws restricting activity that blasphemed Islam and its founder, the Prophet M u h a m m a d( s a ), increased. Indeed, although Pakistan endured a number of military coups, its intensity of purpose to treat Ahmadis as non-Muslims remained consistent. To call for the repeal of the anti- blasphemy laws and thus allow the wishes of less than 3% of the nation to prevail would render meaningless the precise interactions between Pakistan’s institutions and its citizens. What is required to alleviate the plight of Ahmadis in Pakistan is an overhaul of public opinion towards them; to repeal the anti-blasphemy provisions so as to afford religious freedom to Ahmadis as Muslims would prove ineffective. 55 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 Altering individual and group behaviour within states requires state deference to international institutions. Though the anti-blasphemy provisions offend notions of freedom of thought, conscience, religion, and belief in the UDHR and U.N. Declaration of 1981 as well as the legal provisions of the ICCPR-that is to say, though the laws go against international norms-it is not necessarily the case that repealing them will make Pakistan more tolerant of religious minorities. External opinion of Muslim states within the region, and internationally as well, may disfavour the repeal of the anti-blasphemy provisions, which, in turn, may result in the severance of international commitments by Muslim states in the future. If the provisions are retracted, Ahmadis may then have the law on their side, but the rest of Pakistan and the Muslim world against them. More integral to the advancement of religious minorities in Pakistan is an analysis of Pakistan’s current conflict of interests. Pakistan’s quest to eradicate violent zealotry within its borders is genuine, though not without its limitations. The world has recently seen French naval engineers and an American journalist terrorised by a militant component of Pakistan.83 Yet, as President Musharraf clamps down on P a k i s t a n ’s internal terrorist network,8 4 this militant component struggles for legitimacy within Pakistan. Public opinion polarises as these crucial interests collide, altering the dynamics of represented interests. One emerging interest that the Pakistani government is bound to reflect is that of religious minorities like the Ahmadis, who favour emphatically an assault on Islamists. It follows, therefore, that the international community’s methodical appraisal of President Musharraf’s regime and its support of Islamists, rather than a slapdash attack on the anti-blasphemy provisions in particular, will likely result in resolving the persecution of Ahmadis. D. The Constructivist Paradigm85 Under the constructivist model, Pakistan, during its founding era, 56 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 expressed a felt obligation to grant the fundamental right of religious freedom to minorities. Pakistan’s prevailing social norms evolved to reflect a more restrictive Shari’a-based government protective of Islam’s integrity. The rise of President Musharraf and the devastating impact of September 11 again re-shaped the social norms in Pakistan, so that militant Islam’s hold on Pakistan was cast into doubt. The United States, or any nation, should therefore work discursively with Pakistan’s leadership to repeal the anti-blasphemy provisions in Pakistan’s constitution. By affirming the UDHR, Pakistan advocated a norm of international religious freedom. Its founding visionaries, led by Jinnah, deliberated over the construction of an Islamic Republic respectful of non- Muslims. Indeed, as the mouthpiece for millions of Muslims jaded by their brutal conflict with Hindu India, Jinnah constructed the basis for a constitution that ensured the right to profess freely one’s faith. Interestingly, this fundamental protection afforded to non-Muslims and Muslims alike was part of a patently secular impulse prevailing in Pakistan, at least up until 1953. Norms, however, are built up and broken down by state actors. The hegemonic discourse of the mullahs, essentially legislating from the pulpit, eviscerated the advancement of international norms in Pakistan. Sure enough, one such norm, that of basic freedom for religious minorities, eroded, leading to the institutionalised persecution of Ahmadis. Perhaps the only consistent pattern to glean from Pakistan’s brief and tumultuous history is that the norms that shape its government have constantly changed. Five military coups are testimony enough that Pakistan’s citizens are unsettled. They assault retrogression and champion an Islam not manipulated for political gains. Now, with Pakistan’s newfound responsibility to the ‘civilised’ world to uproot militant Islam from within, a significant next step by the international community would be to include experts on religious liberty on 57 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 delegations to Pakistan and appropriate regional and international meetings, to decry Pakistan’s punishment of quotidian religious observances by its minority Ahmadis, and also to work with those within Pakistan who advocate new legal norms and who hold a more broad-minded attitude toward Islam. VI. CONCLUSION AND RECOMMENDATIONS Ahmadis in Pakistan have been called ‘the most persecuted Muslim religious group today.’86 Those defending the anti-blasphemy laws would be quick to argue that Ahmadis are not Muslims to begin with, so they cannot be the most persecuted Muslim group in the world. Their persecution stems from their false hope for self-identification as Muslims; should they renounce their identity as Muslims, they would ameliorate their position. Such reasoning is counter to one of the very quests that sustained Pakistan’s statehood: self-identification as Muslims in lieu of persecution under Hindu India. Freedoms of thought, conscience, religion, and belief are what drove millions of people to die for the creation of a safe haven for Muslims in Pakistan. To subject Muslim religious minorities today to the same persecution Muslims endured during partition would be to relinquish the principles of justice Pakistan sought at its inception to justify its creation. Until international law speaks to the issue, the persecution of Ahmadis will continue. One of the virtues of international institutions and instruments is their ability to regulate problems of political proportions though legal means. The anti-blasphemy provisions in Pakistan are legal mechanisms cloaked in political trappings. They validate the ascension of strict Shari’a as well as the militant whims and ambitions of extreme Islamic fundamentalist groups in Pakistan. They construct and regulate an invisible threat by religious minorities and in so doing earn the backing and support of Pakistan’s institutions and a significant part of its people. But a State’s political ruse cannot 58 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 withstand the authority of a larger body of law. As an institutionalist might argue, where a nation once committed to universal human rights now stands opposed to a body of international customary human rights norms, it nevertheless cannot escape being bound by the norms of the majority, and it remains liable for its gross deviations from the set of regulations that govern that majority. A constructivist is correct to put faith in changing norms in Pakistan. The October 1999 military coup in Pakistan, though decried by much of the international community, was a joyous occasion for many of Pakistan’s citizens. On the streets of Karachi shortly thereafter, one could sense a movement towards governmental reform, accountability, and justice. The events of September 11th have only fuelled this impulse, with Pakistan’s citizens demanding more accurate census counts, more fair geographic and demographic representation in the National Assembly, and a more consistent administration of justice. These new norms initially began to bode well for Ahmadis, albeit tenuously.87 For example, on April 21, 2000, President Musharraf required that deputy commissioners rather than local police officers review all blasphemy charges prior to filing formal cases.88 He later rescinded this requirement due to strong pressure from right-wing Muslim groups. Though Pakistan has a long road ahead, the minimum effect of these emerging norms is to render less clear the claim that the majority of Pakistan’s peoples truly favour the anti-blasphemy provisions in place. It is also crucial for a liberalist to note that Ahmadis represent the moderate thread of Islam in Pakistan. In the face of persecution in Pakistan, Ahmadis advocate universal human rights, tolerance, and deliberation. They have condemned militant Islam in vociferous terms.89 In Pakistan itself, Ahmadis have set up progressive schools, hospitals for the sick and needy, and welfare programs. They have been built inter-religious coalitions against affronts to basic civil and 59 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 religious liberties. Some estimates calculate that Ahmadis in Pakistan, though only representing 3% of the country’s total population, represent nearly 20% of its literate population.90 Two of Pakistan’s most respected personalities: Sir Muhammad Zafrullah Khan, Pakistan’s first foreign minister and the only person ever to serve as both the president of the U.N. General Assembly (Seventeenth Session from 1962 – 1963) and president of the International Court of Justice (1970 – 1973); and, Professor Abdus Salam, the first Pakistani Nobel laureate, were both Ahmadis.91 Intervening on behalf of Ahmadis in Pakistan by calling for the repeal of the anti-blasphemy provisions under the authority of international law is, in fact, entirely consistent with the realist paradigm.92 Most Muslims are far less militant than one would gather from the harsh rhetoric of their “spokesmen.” What results often from the political power of militant Islam is not only systemic cruelty toward innocent domestic groups, but also the creation of a regime many times more dangerous to the interests of the international community than a moderate, tolerant Islamic regime. To empower Ahmadis would be to encourage political alternatives to emerging militant Islamic groups in Pakistan. Healthy political struggle paralyses militant Islam. The international community, the United States in particular, would be wise to understand the nature and function of moderate and credible opposition groups to militant Islam like the Ahmadiyya Community. In sum, the case of the Ahmadis in Pakistan represents a visible and practical outlet by which the United States and other We s t e r n democracies may empower moderation in Muslim regimes. To call for the repeal of the anti-blasphemy provisions in Pakistan is a prime opportunity for the international community to gain enormous political advantage over militant Islam, while at the same time elevating the status of the fundamental universal right of religious freedom. 60 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 References 75 See African Charter on Human and Peoples’ Rights, June 17, 1981, O.A.U. Doc. CAB/LEG/67/3/Rev. 5 (1981), reprinted in DOCUMENT SUPPLEMENT, supra note 20, at 489. 76 An English translation of the Declaration is included in U.N. GAOR, World Conf. on Hum. Rts., 4th Sess., Agenda Item 5, U.N. DOC. A/CONF.157/PC/62/Add.18 (1993). 77 Id. 78 ICCPR, supra note 52, art. 18 § 2, 999 U.N.T.S. 171. 79 For a discussion of the intractability of the Cairo Declaration as a statement of international law, see Ann Elizabeth Mayer, Universal Versus Islamic Human Rights: A Clash of Cultures or a Clash With a Construct?, 15 MICH. J. INT’L L. 307, 327 – 51 (1994). 80 Considered the dominant approach to international relations theory, the realist paradigm identifies the state as the only crucial actor in international politics. International norms reflect power relations among states, and a state’s given policy is driven by its relative gains to other states. The essential goal of a state is to survive by maintaining or enhancing its own power. See ANNE-MARIE SLAUGHTER, INTERNATIONAL LAW AND INTERNATIONAL RELATIONS 9 – 14 (2000). 81 Traditionally considered as opposing the realist paradigm, the institutionalist paradigm identifies institutions as modifiers of a state’s power-driven interests. Institutions link common issues and posit a collective interest between states so as to change state behaviour to reflect a norm. See id. at 14 – 17. 82 Questioning the realist and institutionalist view of the state as a unitary actor, the liberalist paradigm gives primacy to the social actors that make up a state. Government interests are but a reflection of the precise interactions between individuals and states. Domestic representation is the decisive link between societal demands and state policy. See id. at 17 – 20. 83 On February 21, 2002, authorities confirmed that Pakistani militants kidnapped and murdered Daniel Pearl, an American journalist for the Wall Street Journal. Fallen Journalist: Daniel Pearl is Dead, Abducted in 61 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 Pakistan and Killed by Captors, WALL ST. J., Feb. 22, 2002, at A1. On July 15, 2002, Ahmed Omar Saeed Sheikh, a British-born Islamic militant, was found guilty of the crime and subsequently sentenced to death. Steve LeVine, Pakistan Convicts Four in Pearl Slaying, WALL ST. J. (Europe Edition), July 16, 2002, at A2. On May 9, 2002, a Pakistani suicide bomber, allegedly with ties to the Al-Qaeda terrorist network, killed 11 French naval engineers in a Sheraton Hotel in Karachi. Pakistan Blast Kills 14, Marks Growing Risks for Musharraf, WALL ST. J. (Asia Edition), May 9, 2002, at A1. 84 See generally, Raymond Bonner, Pakistan Seethes as Militants Lash Out, N.Y. TIMES, Mar. 17, 2002, at A22. 85 Taking the liberalist view of the state as a composition of individual actors one step further, the constructivist paradigm recognises that the realities of international politics are shaped by the social structures that govern individual actors. Individual actors are discursively competent and, therefore, construct norms over time. SLAUGHTER, supra note 80, at 23 – 26. 86 Arzt, supra note 50, at 408. 87 Within fourteen months of President Musharraf taking office, Islamic fundamentalists set on fire and destroyed two Ahmadi mosques in the Sialkot and Punjab districts respectively, killing ten Ahmadis and injuring a score of others. See Bureau of Democracy, Human Rights, and Labour, U.S. Department of State, Annual Report On International Religious Freedom: Pakistan, http://www.state.gov/documents/organisation/9001.pdf (Dec. 2001). 88 See id. at 518. 89 For example, denouncing a militant perversion of Islam, the then Supreme Head of the worldwide Ahmadiyya Community, Mirza Tahir Ahmad, remarked: “No religion with a universal message . . . under one flag can even momentarily entertain the idea of employing force to spread its message. Swords can win territories, but not hearts. Force can bend heads, but not minds.” MIRZA TAHIR AHMAD, ISLAM’S RESPONSE TO CONTEMPORARY ISSUES, 42 (1992). 90 See Siddiq, supra note 4, at 283. 62 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 91 Internationally, now estimated as over 100 million strong, Ahmadis are lauded as peace-loving, law-abiding citizens with remarkable humanitarian interests. Ahmadis can be found in the highest offices of public service, in Europe and West Africa in particular. See Ahmadiyya Muslim Community, The Ahmadiyya Movement in Islam: An Overview, at http://alislam.org/introduction (last visited Dec. 17, 2002). 92 Intervention under the authority of international law on behalf of Ahmadis by the United States, or any nation, can be channelled through Pakistan’s existing institutions. The Supreme Court of Pakistan, in fact, has deferred to international legal norms in its adjudication. For example, in Shehla Zia v. WAPDA, a case decided only a year after Zaheerudin, the majority court cited as persuasive authority the 1972 Declaration of the United Nations Conference on the Human Environment and the 1992 Rio Declaration to declare that the construction of a grid station in a residential area in Islamabad constituted an affront to a Pakistani citizen’s right to life and would lead to environmental degradation. See Shehla Zia v WAPDA, 46 P.L.D. (Sup. Ct. 1994) 693, 710 (Pak.). 93 See H.R. Res. 348, supra note 9. 63 Persecution of the Ahmadiyya Community in Pakistan – Part 3 The Review of Religions – August 2003 We hope you have enjoyed reading this edition of the magazine. The Review of Religions w i l l continue to provide discussion on a wide range of subjects and welcomes any comments or suggestions from its readers. To ensure that you regularly receive this monthly publication, please fill in your details below and we will put you on our mailing list. The cost of one year’s subscription is £15 Sterling or US $30 for overseas readers (Please do not send cash). Payments should be made payable to the London Mosque and sent to the address below: The Review of Religions The London Mosque 16 Gressenhall Road London SW18 5QL United Kingdom Please put me on the mailing list for the Review of Religions for 1 year. I enclose subscription payment of £15.00 or US $30.00. 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Concluding a detailed review of the background to the persecution of Ahmadis – Part 3.