Daily Times

Last week marked 36 years since the mighty General, Zia-ul-Haq, the sixth and longest-serving head of the state of the Islamic Republic of Pakistan promulgated the infamous “Anti Islamic Activities of the Quadiani Group, Lahori Group and Ahmadis (Prohibition and Punishment) Ordinance, 1984” (Ordinance XX).

This was not the first instance where the self-declared Chief Martial Law Administrator felt the need that his dictate should have an effect, notwithstanding, any order or decision of any court of law. In 1984, however, there was a pressing necessity for such promulgation, which stemmed from the filth and hatred that Ahmadis were spreading by worshipping God – the God, which belonged to the “Muslims,” only.

The clergy argued, and quite successfully for the Zia clan, that Ahmadis, by carrying out activities similar to those of the majority Muslims, deceive and misrepresent the ordinary citizens of the country into thinking that they are one of them – the righteous Muslim Ummah. According to them, this fraud on their fellow brethren was creating a feeling of hostility and resentment within them and, thus, the state was required to act.

As for the state, rather General Zia, he wanted legitimacy for his martial law and this was one such opportunity. Ordinance XX of 1984 was, thus, proclaimed to be law. It amended the Pakistan Penal Code (PPC) to create certain new criminal offences. Different from the law on manslaughter, adultery or robbery, this was a unique instance where a set of criminal injunctions would apply only to a specific and defined class of people, the wrong kind of Muslims.

This piece of legislation took me back a few years. It took me back to law school and made me question the very purpose of the law. It made me question why the state was required only to protect the majority

Thus, Section 298-B of the PPC made it a crime, inter alia, for Ahmadis to refer to, name or call (by words, either spoken or written or by visible representation) their place of worship as a “Masjid” or their call to prayer as “Azan.” Moreover, the following sub-section went on to state that any Ahmadi, who directly or indirectly, poses to be a Muslim or calls, or refers to, his faith as Islam or in any manner whatsoever, outrages the religious feelings of Muslim shall be imprisoned for up to three years.

What constitutes as “posing” and what all can “outrage the religious feelings of Muslims” is something unfathomable, to say the least.

This piece of legislation took me back a few years. It took me back to law school and made me question the very purpose of the law. It made me question why the state was required only to protect the majority. As such, since when did the state become the guardian of one’s feelings? And, if in fact, it was required to act as such a protector, then why not also protect the feelings of Christians? Jews? Why not Bhais, Atheists and Agnostics? Why be selective? Is the belief in Islam, or the majoritarian view of it, a condition for the fundamental rights guaranteed under the Constitution to apply to you?

As one would suspect, with these questions in mind, Ordinance XX’s validity was challenged in the landmark decision of the Supreme Court of Pakistan in Zaheeruddin v. State vis a vis Article 20 of the Constitution of Pakistan, 1973 which guarantees “every citizen to have the right to profess, practice and propagate his religion”.

Delivering judgment on behalf of the majority, Mr Justice Abdul Qadeer Chaudhry held that as Article 2 A of the Constitution adopted and incorporated the Objective Resolution, all other provisions of the Constitution, including, the fundamental rights guaranteed, were, “subject to the Injunction of Islam”. The right to practice and profess one’s religion, therefore, was not absolute and may be qualified. Such reasoning was in spite of various Supreme Court decisions stating the long-standing legal principle that the very idea of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law.

More importantly, the Court awarded legitimacy to Ordinance XX by holding that there was a constitutional mandate behind the promulgation of Ordinance XX. This mandate was the infamous Second Amendment to the Constitution, which essentially, declared Ahmadis to be NonMuslims, and took them out of the realm of the constitutionally defined Muslims. Whether or not the Parliament in doing so, was acting ultra vires its powers is certainly an interesting moot point worth exploring.

Believe it or not, Mr Justice Abdul Qadeer Chaudhary went further to state that just like the Coca Cola Company will not permit anyone to sell their product in bottles labelled “Coca Cola”, Ahmadis will not be permitted to use the Islamic epithets, belonging exclusively to the Muslims. Yes, he did, in fact, just compare ‘Coca Cola’ with a ‘Masjid’ treating the latter as a good or commodity appropriate to be registered as a trademark.

Clearly, Ordinance XX is one of the most draconian of laws and should be repealed immediately. However, if one were to really look at the judgment of Zaheeurddin closely, it would be evident that the Second Amendment has caused far greater damage to this Country, than Ordinance XX, at least from a legal standpoint.

This is because the Second Amendment has not just validated a piece of legislation which criminalizes Ahmadis for basically everything from offering daily prayers to sacrificing animals, but through the Second Amendment, the state (emphasis added) has played a significant role in institutionalizing discrimination against a particular segment of the society.

In fact, it is the Second Amendment, which compels us to abuse the founder of a certain sect or community as a pre-requisite to getting our national identity card or passport renewed.

Zulfiqar Ali Bhutto might have been a people’s man, and an excellent orator, but this, was his biggest mistake. By mixing politics and governance with religion, Bhutto laid the very seeds of hatred, bigotry and fundamentalism, which took away his daughter, Benazir.

The chances that the people of Pakistan will stand up, united, for the repeal of such laws are bleak; hope is, therefore, all we can gamble upon. It is important, nevertheless, to recognize that there exists a problem and that we have been a part of it, all along.

The writer is a Barrister-at-Law