On
right to freedom of religion and the plight of Ahmadiyas
Ridwanul
Hoque
The
recent governmental action banning publications of the Ahmediyas (or
Ahmadis) must have shaken the conscience of those who believe in democracy,
peace and justice. The action has sparked off huge debates and justifiably
severe criticisms. A legal challenge of the government's order has already
reached the court of justice. This short article purports to explore
some legal aspects of the governmental action with reference to Pakistani
situation where the same issue has caused a lot of problems..
Ahmadiyas, sometimes
called Quadianis, claim themselves as Hanafi Muslims but do not believe
in the finality of Islam's Prophet - Mohammad (SM). Resultantly, they
have been facing rivalries and oppositions across the world, although
Pakistan is the only state to have declared the Ahmadis as non-Muslims.
In Bangladesh and India, there is no legislation that goes to the extent
of declaring Ahmadiyas non-Muslims or even limiting their activities.
Nor is there any law that defines who is or not a Muslim. In India,
the issue of Ahmadis came into forefront in the seventies. On one occasion,
the court very pragmatically held that the Ahmadis are Muslims [Shibauddin
Koya AIR (1971) Ker. 206].
In Pakistan, Ahmadis
have been declared as nonMuslims and their freedom of religion curtailed
by a whole series of ordinances, acts and even constitutional amendments.
This was concomitant with the process of Islamisation of Pakistani legal
system orchestrated largely by General Zia-ul Haq. Following a constitutional
definition of 'Muslims' in 1974 that indirectly excluded the Ahmadis,
a law-suit was brought seeking injunction to prevent Ahmadis from observing
Islamic practices. But the court declined to act and Ahmadis were allowed
to maintain mosques and to call for azans. Things changed gradually.
Besides being declared as non-Muslims, activities of Ahmadis were made
an offence by an Ordinance of 1984. Notably, within the process of Islamisation
of Pakistani legal system, Shariah Courts were created to review compatibility
of any law with the 'Injunctions of Islam'. On the other hand, there
were Constitutionally guaranteed fundamental human rights (e.g., freedom
of religion, protection of minorities etc) which also created a basis
of judicial review. The Ahmadis went to the Shariat Court to unsuccessfully
challenge the authencity of the 1984 Ordinance. The challenge was aborted
as the court held that the Ordinance was not un-Islamic. (Mujibur Rahman,
PLD 1985 FSC 8). On another occasion, the court held that Muslims and
Ahmadis are two separate and distinct entities (Khurshid Ahmad, PLD
1992 SC 522). These judgments left the Ahmadis effectively insecure
and observance of their religious activities still remained a criminal
offence. Having lost the legal battle of sustaining their religious
rights, the community went to the Supreme Court to challenge the 1984
Ordinance on the ground of constitutionality. (Zaheer-ud-din, 1993 SCMR
1718). Not surprisingly, the court interpreted the right to freedom
of religion from the perspective of an Islamic state's obligation to
promote and preserve the state religion, i.e., Islam. Consequently,
the Court decided by a majority that the Ordinance was not unconstitutional,
thereby throwing the Ahmadis into an apparently perpetuating state of
insecurity and frustration. It seems that the court's unduly restricted
interpretation of 'freedom of religion' was much influenced by the Pakistani
politics of that time. Labeling the Ahmadis as 'non-Muslim minority',
the Court held: "The freedom of religion is guaranteed by Article
20 .... The overriding limitation .... is the law, public order and
morality. The law cannot override Article 20 but has to protect the
freedom of religion without transgressing bounds of morality and public
order. Propagation of religion by the appellants (Ahmadis) who as distinguished
from other minorities, having different background and history, may
be restricted to maintain public order and morality.''
Right to freedom
of religion is a very special kind of fundamental right which touches
a person's belief as to his creation, life and death as well as his
way of life and thinking. Interaction with religion and the state has
been therefore inevitably critical and intriguing and maintaining a
peaceful atmosphere between different believers of the same or different
religions has emerged as a potentially difficult job for the state.
A strategy of attaining that objective of peace is by resorting to the
state principle of secularism or by adhering to the principle of ensuring
human rights for all ethnic, social and religious minorities. But secularism
is not always an ideal solution to the problems with freedom of religion,
unless there is democratic political will. An examination of the developments
in this field in India reveals that freedom of religion is not absolute
even in a secular state. And, from the Pakistan's experiences as above,
we have learnt that interpretation of freedom of religion in a religious
state brings forth a further dimension to the judicial discourse.
Truly speaking,
as regards legal and political difficulties ensuing from the interpretation
of the right to freedom of religion, Bangladesh does not fit into the
systemic position of either Pakistan or India. Although Bangladesh initially
adopted secularism as one of its core fundamental principles of state
policy, she has abandoned the principle later, following, of course,
not a truly democratic process. On the contrary, it is not a Islamic
state either. Nor is its legal system Islamised, although Islam has
been made 'state religion' by amending the Constitution through another
undemocratic means. Bangladesh is a democratic, plural society with
a record of fairly peaceful coexistence of a diverse number of religious,
ethnic or linguistic minorities. Its Constitution is a unique piece
of supreme legal document encompassing almost all human rights. The
Constitution has unequivocally and emphatically insisted on democracy,
rule of law and social, economic and political justice. Needless to
say, the level of democracy or civility of a society is measured in
terms of its record of preserving and promoting fundamental human rights
of all including minorities without any sort of discrimination.
Fighting
for freedom of religion!
Article
39 (1) of the Constitution guarantees freedom of thought and conscience.
Interestingly, unlike freedom of speech and expression guaranteed by
Art. 39 (2), this right has not been subjected to any legal restrictions.
Correspondingly, the threshold of the government's obligation not to
interfere with the citizens' freedom of thought is high. Prohibition
by government of Ahmadiyan publications is undoubtedly a severe blow
on the community's freedom of thought. More importantly, the banning
order has violated the community's right to freedom of religion. Article
41 of the Constitution guarantees freedom of religion, albeit subject
to 'law, public order and morality'. However, it is a cardinal principle
of constitutional jurisprudence that 'public order and morality' ground
does not authorise the parliament to take away the very right to freedom
of religion. That said, it should also be noted that law does not also
allow any one to impede social order or to jeopardise public morality.
What is tricky is that government does often play politics with 'public
order and morality' ground as this has not been defined in the Constitution
or any other law. Absent such a definition, it is a challenge for the
courts to determine what 'public order and morality' means in a given
situation. Thus when a governmental action is alleged to have violated
freedom of religion of a person or people and the government advances
the ground as justification, the court has to make a balancing exercise
keeping in mind that the concept of public order and morality is not
static, rather society-specific.
A pertinent question,
therefore, is whether Ahmadiyan activities are against public order
and morality justifying the government's action. As we have seen above,
in Pakistan, the activities of the Ahmadis were legally prohibited and
they were declared non-Muslim on the ground of public order and morality.
But the situations - legal, political and constitutional - in Pakistan
are clearly not the same as in Bangladesh. We have seen that present
constitutional scheme disallows the type of action the government has
taken. One might however argue that there are at least two potential
elements that might liken the situations to those of Pakistan. These
are: (i) that the principle of absolute trust and faith in the Almighty
Allah is a fundamental principle of the Constitution and state policy
and (ii) that Islam is the state religion of Bangladesh. A closer look
at these previsions will show that attack on Ahmadis' freedom of religion
cannot be justified with reference to these provisions. Because, true
faith in Islam requires us to show tolerance to others who expresses
different opinions and even to those who oppose Islam. That Islam itself
acknowledges various sects is particularly educative for us. State religion
provision of the Constitution does not permit the state, it is argued,
to lay unreasonable restrictions on Ahmadis' freedom of religion, because
the provision does not obligate the state to do anything in relation
to state religion. This is merely a recognising or declaratory provision.
Another potential argument in defence of the governmental action might
be that government did not actually prohibit the Ahmadis' activities,
nor were they declared non-Muslims and thus their right to freedom of
religion is kept untouched. Instead, it has only forfeited some of the
Ahmadiyan publications on the ground that these did hurt the belief
of general of Muslims. As said earlier, regulation of religious activities
may be justified on the ground of public order (Jibendra Kishore, 9
DLR (SC) 21). The 'public order' ground must, however, be exercised
bona fide and objectively. In Bangladesh Anjuman-E-Ahmediya (45 DLR
185), the court upheld the forfeiture of a book as it outraged the religious
belief of bulk of Muslims. But now the government seems to have forfeited
the Ahmadiyan books on a wholesale basis and seemingly to console those
who are demanding the complete prohibition of practising Ahmadiyanism.
Thus at any rate,
governmental action in question appears to be blatantly illegal and
incompatible with its constitutional duty to preserve and promote human
rights for all.
Ridwanul
Hoque is an Assistant Professor, Department of Law, Chittagong University.
