December 05, 2011
A fresh round of hate has been unleashed against the hapless Ahmediyya community once again. A young woman has been expelled from her university for daring to stand up to hate speech against her community on campus in Lahore. In Rawalpindi, ignorant and boorish mobs have been agitating to close down an Ahmedi ‘place of worship’ for being ‘unconstitutional’. In other words, practising their own faith in their own space is deemed unconstitutional by a mob that has probably never opened the constitution. All the while this community goes on praying and fasting for Pakistan, where a majority continues to persecute them for believing differently.
Oliver Wendell Holmes, the great American Judge, wrote in his dissenting opinion in Abrams vs United States 250 US 616 (1919): “When men have realised that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas — that the best test of truth is the power of the thought to get itself accepted in the competition of the market.” If the Ahmedi beliefs are so patently false and ridiculous as our ulema (Islamic scholars) say they are, then why be so insecure as to shut them down completely? Why not allow them to be ridiculed in the marketplace of ideas?
Every citizen of Pakistan has the unfettered right to practice and propagate his or her religion and every religious denomination and sect thereof has the right to establish its places of worship and educational institutions according to Article 20 of the constitution of the Islamic Republic of Pakistan, 1973. These rights are paramount. Unlike other articles, this Article — the cornerstone of religious liberty in our country — is not restricted by reasonable restrictions but is subject to law, order and morality alone. This means that religious freedom and freedom of conscience cannot be restricted. Ahmedis might be non-Muslims for the purposes of law and constitution under Article 260 but that does not mean that they are not Pakistanis. Unfortunately, time and again the judiciary in Pakistan — whose basic function is to safeguard marginalised sections of our society — has upheld retrogressive laws that target the Ahmedis.
To begin with, let us put a popular notion to rest that if an Ahmedi calls himself a Muslim, he is violating the constitution. The most one can stretch Article 260, which is a definition clause, is to say that the state of Pakistan does not agree with an Ahmedi if he calls himself a Muslim and that laws and provisions specific to the Muslims will not apply to the Ahmedis. When Article 260 is read with Article 19 (freedom of speech and expression) and Article 20 (freedom of religion), it becomes clear that there is no constitutional bar against an Ahmedi citizen calling himself a Muslim, even if the Pakistani constitution and law does not agree with him. In these circumstances Ordinance XX of 1984 is a clear violation of the fundamental rights of an entire community to any sane and reasonable mind. However, two judges on a three member bench of the Supreme Court of Pakistan in Zaheeruddin vs the State 1993 SCMR 1718 did not think so. They felt — incredibly enough — that Ahmedis purporting to or even thinking themselves to be Muslims is a violation akin to violation of intellectual property rights. One of these judges went so far as to declare that it was reasonable for a Muslim to be outraged and therefore attack the Ahmedis on this ground. This is our Supreme Court for God’s sake. Check your religious biases on the door, Lordships. You cannot be partisan judges serving communitarian interests of the majority. You are justices of the superior judiciary of Pakistan, tasked with safeguarding fundamental rights of every citizen of Pakistan, whatever his faith maybe. The clearest duty on part of the Pakistani Supreme Court is to stand up for every citizen of Pakistan, be it an Ahmedi, Shia, Christian or Hindu. If you cannot be unbiased or if you cannot stand up or are too afraid to stand up for every citizen of Pakistan, then I implore you to resign and let men made of sterner stuff replace you.
Last but not the least, the history of Ahmedi persecution is as sordid as it is surreal. The anti-Pakistan Majlis-e-Ahrar-ul-Islam, which had opposed the Muslim League in the 1940s, enflamed passions on the Ahmedi issue to hit back at the Muslim League, which had many prominent Ahmedis in it. One particular Ahmedi target for this party was Chaudhry Zafarullah Khan who was Pakistan’s first foreign minister and in the words of Quaid-e-Azam Mohammed Ali Jinnah, the most able Muslim in his team. Jinnah himself would have been horrified at the persecution of the Ahmedis. He had dismissed appeals by the mullahs in his lifetime. saying that anyone who professes to be a Muslim is a Muslim. It was this statement that won him the eternal animosity of the Majlis-e-Ahrar-ul-Islam and other religious outfits. These religious organisations are today claimants of the protectors of Nazaria-e-Pakistan (Ideology of Pakistan).
The basic premise on which we won ourselves Pakistan was that a permanent majority cannot and should not dominate a permanent minority on account of numeric strength. Yet contrary to that founding logic, Pakistan is today legally a totalitarian fundamentalist theocracy. It will lead us to a dead end from which there will be no way out. It is time the Muslims of Pakistan halted and thought about where they intend to take this much abused, much maligned and much misunderstood Islamic Republic.
The writer is a lawyer based in Lahore. He is also a regular contributor to the Indian law website http://mylaw.net and blogs on http//globallegalforum.blogspot.com and http://pakteahouse.net. He can be reached at firstname.lastname@example.org