Islam and Fundamental Rights in Pakistan
The case of Zaheer-ud-din v. The State and its impact on the fundamental right to freedom of religion
by Martin Lau
The decision of the Supreme Court of Pakistan in the case of Zaheer-ud-din v. The State 1993 SCMR 1718 can be regarded as the the most important judgement of a Pakistani court on the fundamental right to freedom of religion since Pakistan came into being in 1947. The case contains ground-breaking judicial pronouncements on the scope of the fundamental right to freedom of religion in an Islamic state and discusses in extenso the legal definition of religion: it is for this reason that this decision is of interest to anybody concerned with the development of modern Islamic law.
The case concerned inter alia the constitutional validity of the Anti-Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984, which added the new sections 298B and 298C to the Pakistan Penal Code, 1860, and amended section 99A of the Code of Criminal Procedure, 1898 and section 24 of the West Pakistan Press and Publications Ordinance, 1963. The constitutional vires of the Ordinance, which was promulgated in the last year of President Zia-ul-Haq's martial law regime, were challenged by a number of Ahmadis, who had been charged with criminal offenses under the provisions of the Ordinance. In their appeal against the convictions it was argued that the Ordinance was violative of the constitutionally guaranteed fundamental right to freedom of religion as provided in Article 20 of the Constitution of Pakistan. Article 20 states that
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.
The Supreme Court of Pakistan has the power to strike down any law which is violative of any of the fundamental rights contained in Part II, Chapter 1 of the Constitution of Pakistan.
The Ordinance has to be seen in the light of a legal development, which began in 1974, when the Government of Prime Minister Zulfiqar Bhutto declared all members of the Ahmadiyya community to be non-Muslims. Up to then the Pakistani state had regarded Ahmadis as a religious minority within Islam. Members of the community were therefore governed by Muslim personal law in the area of family law. They were furthermore allowed to contest elections as Muslims and were able to assume public offices reserved for Muslims. In short, their legal status was not any different from any of the other Muslim communities in Pakistan, like for instance the majority Sunni sect or the minority Shia sect. Attempts to declare Ahmadis to be non-Muslims had up to 1974 been firmly rejected by both the respective Governments and Pakistan's higher judiciary.
The spirited defence of the Ahmadiyya community is well illustrated in the case of Abdul Karim Shorish Kashmiri v. The State of West Pakistan PLD 1969 Lahore 289 where it was held that Ahmadis as citizens of Pakistan were guaranteed by the Constitution the same freedom to profess and proclaim their religion as any other citizen of Pakistan and that Ahmadis are within the fold of Islam. The Court furthermore held the legal process as being incapable of determining who is a Muslim holding that there is an "absence of any legal right [...] to have this abstract question determined by any right legal process , unless it is somehow linked with any right to property or right to an office [...] [at p. 307]." The Court asserted that the true Islamic precepts and injunctions of Islam as manifested in the Holy Quran guarantee freedom of religion in clear mandatory terms and concluded that the persecutions of Ahmadis "are sad instances of religious persecution against which human conscience must revolt, if any decency is left in human affairs" [at p. 308].
The change of the legal status of Ahmadis from Muslims to a non-Islamic religious minority was achieved by an amendment to Article 260 of the Constitution, which defines terms used in the Constitution. The Constitution (Second Amendment) Act, 1974 added to these definitions a new clause 3 which provided that:
A person who does not believe in the absolute and unqualified finality of the Prophethood of Muhammad (Peace be upon him) the last of the Prophets or who claims to be a Prophet, in any sense of the word or of any description whatsoever, after Muhammad (Peace be upon him), or recognises such claimant as a prophet or a religious reformer, is not a Muslim for the purposes of the Constitution or the law.
The new clause was clearly aimed at Ahmadis, since it was alleged that Ahmadis regard Mirza Ghulam Ahmad, the founder of their religious movement, as a Prophet. The legal effect of the re-definition of Ahmadis as non-Muslims, was, however, limited. They were barred from contesting general elections as Muslim candidates or voters and were given special minority representation in Parliament along with Christians, Hindus, Sikhs and other non-Muslim communities but attempts to prevent Ahmadis from describing themselves as Muslims under Pakistan's civil law failed. In Abdur Rahman Mobashir v. Amir Ali Shah PLD 1978 Lahore 113 the High Court of Lahore decided that no permanent injunction could be granted to bar Ahmadis from continuing to perform religious practices associated, as it was alleged by the petitioners, exclusively with Islam as defined by the majority Sunni community. The Court held that civil law could only be used to protect rights of a legal character and explained that religious practices or religious terms could never constitute a proprietary right stating that 'a suit regarding such matter is only competent if it involves dispute about right to property or office'[at p. 143]. The Lahore High Court furthermore held that religious terms do not fall within the domain of intellectual property law either, holding that: "Rights in trademarks or copyrights are matters which are the concern of the statutory law. There is no positive law investing the plaintiffs with any such right to debar the defendants [i.e. the Ahmdaiyya community] from freedom of conscience, worship, or from calling their places of worship by any name they like"[at p. 139].
The Court further held that neither public nuisance law nor any direct application of Islamic law based on the equitable jurisdiction of "equity, justice and good conscience" could be used so as to prevent Ahmadis from calling themselves Muslims. A further constitutional amendment, carried out under the provisions of the Constitution (Third Amendment) Order, 1983, clarified the definition of non-Muslims as contained in Article 260 by inter alia adding a new sub-clause (b) which states that "'non-Muslim' means a person who is not a Muslim and in includes a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, a person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name), or a Bahai, and a person belonging to any of the scheduled castes."
The difficulties in using the ordinary civil law to curb the religious practices of the Ahmadiyya community was overcome by resorting to the area of criminal law: for Ahmadis to call themselves Muslims was now elevated to a criminal offence. The Ordinance XX of 1984 provides that:
298B. Misuses of epithets, descriptions and titles, etc., reserved for certain holy personages or places. (1) Any person of the Quadiani group or the Lahori group (who call themselves 'Ahmadis' or by any other name) who by words, either spoken or written, or by visible representation, –
(a) refers to, or addresses, any person, other then a Caliph or companion of the Holy Prophet Muhammad (peace be upon him) as 'Ameer-ul-Mumineen', 'Khalifa-tul-Mumineen', 'Khalifa-tul-Muslimeen, 'Sahabii' or 'Razi Allah Anho';
(b) refers to, or adresses, any person, other than a wife of the Holy Prophet Muhammad (peace be upon him), as 'Ummul-Mumineen';
(c) refers to, or adresses, 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 the Lahori group (who call themselves '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 the 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.
298C. Person of Quadiani group, etc., calling himself a Muslim or preaching or propagating his faith.– Any person of the Quadiani group or the 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 propagates his faith, or invites others to accept his faith, by words, either spoken or written, or by visible representations, or 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.
Legal representatives of the Ahmadiyya community initially tried to challenge the validity of the Ordinance before the Federal Shariat Court. This Court has the power to invalidate certain laws, including criminal laws, if they are in the opinion of the court repugnant to the injunctions of Islam. In the case of Mujibur Rehman v. The Federal Government of Pakistan PLD 1985 FSC 8 the Federal Shariat Court upheld the validity of the Ordinance arguing that Ahmadis were not Muslims according to the tenets of Islam and that therefore any restrictions imposed on the Ahmadis's claim to be Muslims would not be repugnant to Islam as laid down in Quran and Sunnah.
The constitutional challenge of the Ordinance before the Supreme Court was therefore the last resort for the Ahmadiyya community to regain their right to freely practice their religion. It should be noted that Ordinance XX of 1984 has been vigorously enforced in Pakistan: Up to 1992 a total of 1790 criminal cases had been filed under the Ordinance XX of 1984 and were pending before the courts.
II. The Decision in Zaheer-ud-din v. The State
The Supreme Court of Pakistan in Zaheer-ud-din v. The State rejected by a majority decision of four to one the contention that the Ordinance XX of 1984 was violative of any of the fundamental rights guaranteed by the Constitution.
i. The Minority Judgement
The minority judgement delivered by Shafiur Rahman held that the restrictions imposed on the Ahmadiyya community on the use of the terms 'Azan', meaning the call for prayer, and 'Masjid', the Urdu term used to denote a place of worship, were unconstitutional since they formed part of the Ahmadi religion having been used by them for a long time:
Historically this [i.e. the naming of the place of worship by the Ahmadis as 'Masjid' and calling of 'Azan'] has been shown in the Lahore High Court case [PLD 1978 Lahore 113, quoted above] to be a tenet or a practice of Ahmadis or Quadianis not of recent origin or device and adopted not with a view to annoy or outrage the feelings and sentiments of non-Ahmadis and non-Quadianis. Being an essential element of their faith and not being offensive per se prohibition on the use of these by them and making it an offence punishable with imprisonment and fine violates the Fundamental Right of religious freedom of professing, practising and propagating and of [the] Fundamental Right of equality inasmuch as only Quadianis or Ahmadis are prevented from doing so and not other religious minorities[at p. 1747].
Furthermore, he held that the restriction on the Ahmadi's right to propagate or to preach their religion, contained in section 298C of the Pakistan Penal Code as amended by the Ordinance, to be violative of the fundamental right to freedom of religion. Shafiur Rahman concluded his argument by asserting that the wearing of badges by members of the Ahmadiyya community carrying religious messages pertaining to Islam would not constitute a criminal offence since "for ascertaining its peculiar meaning and effect one has to reach the inner recesses of the mind of the man wearing or using it and to his belief for making it an offence." This would be beyond the scope of the law and "in any case it will infringe directly the religious freedom guaranteed and enjoyed by the citizens under the Constitution, where mere belief unattended by objectionable conduct cannot be objected to" [at p. 1749].
ii. The Majority Judgement
The majority judgement, delivered by Abdul Quadeer Chaudhary did not follow Shafiur Rahman's liberal approach and dismissed the appeals. The decision, discussed in more detail below, was based on the following arguments:
1. Certain religious terms are peculiar to Islam. In analogy with the law on trademarks and copyrights these terms can be protected by the state from being used by other religious communities.
2. An Islamic state is under an obligation to protect Islam. In order to do this, it can prevent religious communities from claiming to be Muslims. It follows that Ahmadis are only allowed to use religious symbols and terms which are not already being used in connection with Islam.
3. The right of freedom of religion extends only to the integral and essential parts of a religion. It is up to the Courts to determine the nature of these integral and essential elements of a religion. However, even these essential elements, which are protected by constitutionnally guaranteed right to freedom of religion can be restricted if their exercise leads to law and order problems.
4. The fundamental right to freedom of religion together with all other fundamental rights is subject to the limits imposed by Islamic law since Islamic is the positive law of the land.
a. Islam and Intellectual Property Rights
Chaudhary's judgment is firmly based on the argument that religious terms can be protected by law from being used by those who are not members of the religion who has an exclusive right to their use. With reference to the terms mentioned in section 298 B of the Ordinance XX of 1984 he holds that
It will be appreciated that some of the epithets, descriptions and titles etc., as given in section 298-B have been used by the Qur'an for specific personages (See 33: 32, 33: 54 and 9: 100) while others undoubtedly and rather admittedly are being used by the Muslims, for those mentioned there, exclusively, for the last about 1400 years. These epithets carry special meaning, are part of the Muslim belief and used for reverence. Any person using them for others, in the same manner, may be conveying impression to others that they are concerned with Islam when the fact may be otherwise. [at p. 1751]
Having established that the terms listed in the Ordinance XX of 1984 are peculiar to Islam Chaudhary argues that legal protection of the use of names or terms is an established feature of English, Indian and Pakistani law. In a list of examples Chaudhary quotes inter alia Indian commercial law stating that:
'Section 20 of the Indian Company Law also lays down that no company shall be registered by a name which, in the opinion of the Central Government is undesirable and that a name which is identical with, or too nearly resembles, the name by which a company in existence has been previously registered, will be deemed to be undesirable by the Indian Government. The Indian Constitution has similar Fundamental Rights as ours but we have not seen a single decision of any Court there, declaring the restriction violative of these rights.' [at p.1752]
He continues this line of argument by proceeding to examine the law on trademarks in India and Pakistan arguing that:
'It is thus clear that intentionally using trade names, trade marks, property marks or descriptions of others in order to make believe others that they belong to the user thereof amounts to an offence and not only the perpetrator can be imprisoned and fined but damages can be recovered and injunction to restrain him issued. This is true of goods of even very small value. For example, the Coca Cola Company will not permit anyone to sell, even a few ounces of his own product in his own bottles or other receptacles, marked Coca Cola, [...].Further, it is a criminal offence carrying sentences of imprisonment and also fine. The principles involved are: do not deceive and do not violate the property rights of others. [at p. 1754]
Chaudhary then extends his findings to the protection of Islamic religious terms in an Islamic state holding that:
It must be appreciated that in this part of the world, faith is still the most precious thing to a Muslim believer, and he will not tolerate a Government which is not prepared to save him of such deceptions or forgeries.[...] If a religious community insists on deception as its fundamental right and wants assistance of Courts doing the same, then God help it. [at p. 1754]
The only way for Ahmadis to exercise their right to freedom of religion is by using a new, distinctive set of terms since
Do they not realise that relying on the 'Shaairs' [i.e. distinctive characteristics of Islam] and other exclusive signs, marks and practices of other religions will betray the hollowness of their own religion? It may mean in that event that their religion cannot progress on its own strength, worth and merit but has to rely on deception. [...] It must, however, be mentioned here that there is no law in Pakistan which forbids Ahmadis to coin their own epithets etc. and use them exclusively and there is no other restriction of any sort, whatever, against their religion.[at p. 1754]
b. The Definition of Religion
The obvious difficulty of squaring the demand that Ahmadis should be forced to coin their own terms for their religion with their constitutional right to freedom of religion is met by Chaudhury with two arguments. Firstly, courts are allowed to determine what constitutes a particular religion. He arrives at this conclusion by analyzing two leading Indian decisions on freedom of religion, Commissioner H.R.E Air 1954 SC 282 and Durgah Committee AIR 1961 SC 1402, which establish the principle that
[..]though religious practices are protected by the term 'freedom of religion' yet only such practices are so covered as are integral and essential part of the religion. [...] it is for the Courts to determine whether a particular practice constitutes [an] essential part of the religion or not. [at p. 1762]
Secondly, he states that the right to freedom of religion can be restricted not only in the interest of the maintenance of law and order but also by the limits on the scope of all constitutionnally guaranteed fundamental rights imposed by the positive law of the land, i.e. Islamic law.
c. The Restriction of Religious Freedom or: The Protection of Islam
The essential parts of a religion are, however, not protected as absolute rights under the fundamental right to freedom of religion. The State is allowed to interfere even with these 'essential' parts of a religion if they are liable to disturb law and order. Applied to the Ahmadiyya community this argument leads Chaudhary to assert that, firstly, the Muslims of the Indian sub-continent regard the movement as "a serious and organised attack on its ideological frontiers", a "permanent threat to their integrity and solidarity", and "a threat to the integrity of 'Ummah' and tranquillity of the nation", which "is also bound to give rise to a serious law and order situation". [at p. 1765]. Secondly, Chaudhary holds that Ahmadis have always claimed to be the only true Muslims, which leads him to conclude that:
It is thus clear that according to the Ahmadis themselves, both the sections, i.e. Ahmadis and the main body cannot be Muslims at the same time. If one is Muslim, the other is not. [...] However, being an insignificant minority [they] could not impose their will. On the other hand, the main body of Muslims, who had been waging a campaign against their (Ahmadis') religion, since its inception, made a decision in 1974, and declared them instead, a non-Muslim minority, under the Constitution itself. As seen above, it was not something sudden, new and undesirable but one of their own choice; only the sides were changed. The Ahmadis are, therefore, non-Muslims; legally and constitutionally and are, of their own choice, a minority opposed to Muslims. Consequently, they have no right to use the epithets etc, and the Shaa'ire Islam, which are exclusive to Muslims and they have been rightly denied their use by law. [at p. 1768]
The next point tackled by Chaudhury concerns the right to excommunicate members of a religious community. Again, he refers to Indian case-law to prove that religious communities are allowed to expel members, quoting the Indian case Sardar Syedna AIR 1962 SC 853, in which the Supreme Court of India had upheld the right of the head of the Bohra community, a Muslim community based in Gujarat, to excommunicate members. In applying this principle to the present case Chaudhary notes that:
[...] the Ahmadis always wanted to be a separate entity, of their own choice, religiously and socially. Normally, they should have been pleased on achieving their objective, particularly, when it was secured for them by the Constitution itself. Their disappointment is that they wanted to oust the rest of the Muslims as infidels and retain the tag of Muslims. [...] The reason of their frustration and dismay may be that now, probably, they cannot operate successfully, their scheme of conversion, of the unwary and non-Muslims, to their faith. May be, it is for this reason that they want to usurp the Muslim epithets, descriptions etc., and display 'Kalima' and say 'Azan' so as to pose as Muslims and preach and propagate in the garb of Muslims with attractive tenets of Islam. [at p. 1769]
In the last part of his judgment Chaudhury concludes this argument by holding that, firstly, Muslims cannot be blamed for loosing "control of himself on hearing, reading, or seeing such blasphemous material as has been produced by Mirza Sahib [the founder of the Ahmadiyya movement]." [at p. 1777] In such a scenario the state is obliged to take actions against the Ahmadiyya community since "'if an Ahmadi is allowed by the administration or the law to display or chant in public, the Shaair-e-Islam, it is like creating a Rushdi out of him. Again, if this permission is given to a procession or assembly on the streets or a public place, it is like permitting civil war." [at p. 1777]
d. The Impact of Islamic Law on the Scope of Fundamental Rights in Pakistan
The state's obligation to protect is Islam is furthermore supported by the Constitution and the legal system of Pakistan. Chaudhary arrives at this conclusion by offering a new interpretation of the position of Islamic law in Pakistan. Earlier Supreme Court decisions, especially the case of Hakim Khan v. Government of Pakistan PLD 1992 SC 595, had rejected the claim that Islamic law can be directly applied by courts as a source of law or as benchmark for the judicial review of legislation by arguing that only laws enacted in accordance with the provisions of the Constitution constitute valid law. The Islamization of the legal system was, according to Hakim Khan, to be carried out by the elected representatives of the people and not by the High Courts or the Supreme Court. Courts are therefore barred from directly applying Islamic law so as to strike down laws which might be repugnant to Islamic law. Zaheer-ud-din constitutes a departure from this principle since Chaudhury holds that the "Constitution has adopted the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet as the real and the effective law. In that view of the matter, the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet are now the positive law." [at p. 1774] This principle applied to the interpretation of the right of freedom of religion leads according to the Chaudhary to a situation where "Therefore, every man-made law must now conform to the Injunctions of Islam as contained in Qur'an and Sunnah of the Holy Prophet p.b.u.h.). Therefore, even the Fundamental Rights as given in the Constitution must not violate the norms of Islam. [...] Anything, in any fundamental right, which violates the Injunctions of Islam thus must be repugnant." [at p. 1775]
Zaheer-ud-din v. The State is a problematic decision. Not only does it confirm the legality of the continued persecution of members of the Ahmadiyya community, which is in itself a worrying prospect, but it also attempts to establish a new interpretation of the scope and the limits of fundamental rights in Pakistan. This restrictive interpretation of fundamental rights stands in stark contrast with the recent development of Public Interest Litigation in Pakistan, which is based on the argument that Islamic law can be used to add new rights to the list of fundamental rights contained in the Constitution rather than to limit them.
The assertion that religious term stand on the same footing as proprietary rights to the use of terms in commercial transactions constitutes a radical departure from established Pakistani law and creates a number of difficulties. Who is to determine which terms are the exclusive property of which religious community? The Supreme Court leaves this question open but indicates that in an Islamic state like Pakistan the state and the courts as the guardians of Islam are under an obligation to take measurers to prevent Islam from being 'usurped' by imposters. The actual mechanism of the registration of copyrights to religious terminology are, however, not discussed. In such a scenario the state and the courts are reduced to the guardians of just one religion, i.e. the state religion, namely Islam. The Supreme Court's re-definition of the role of Islamic law in Pakistan's legal system is also unprecedented: Islamic law is regarded as the positive law of the land, capable of restricting all fundamental rights, and binding on both the courts and the legislator. Consistently applied, such a principle would make the continued existence of statute law superfluous since judges could apply Islamic directly without any reference to other sources of law. Finally, the tenor of the decision deserves comment. The Supreme Court's choice of words, like for instance its comparison of Ahmadis with Salman Rushdi, constitutes an new element in the legal development of Pakistan and begs a troubling question: could it be that religious sentiments rather than sound legal logic constitute the underlying ratio decidendi of the decsion?