COMMENT: Copyrighting religion — Mehreen Zahra-Malik
One has only to look at the historical Zaheer-ud-din v The State (1993) decision by the Supreme Court of Pakistan to realise how optimistic, if not completely dishonest, it is to ask Ahmadis to take their grievances to court
In a pre-dawn operation on April 22, a police contingent supervised the bulldozing of the boundary wall of a 6-acre piece of land procured by the Ahamdiyya Community to extend their graveyard. The operation was conducted on the directives of the district government and Wagah Town administration because, apparently, the construction was illegal and its plan unapproved by town authorities.
The bulldozing came after local clerics and the police gave the Ahmadiyya Community until Friday, April 20 to demolish the wall. In the run-up to this ultimatum and subsequent demolition, clerics began to provoke the residents of the locality to oppose the construction of this wall, putting up banners, urging people to save Lahore from a “Qadiyani conspiracy”, and warning them that the boundary was to actually house a “mini-Rabwah”.
A senior police official told the media that the construction of the wall by the Ahmadis was illegal: “The affected community had the right to submit a construction plan to the town government,” he said, “and the matter could then be resolved under the law.” He would do well to give the same suggestion to some seminaries in Islamabad.
This police official seems to be encouraging the Ahmadiyya community to seek justice for itself in a court of law. The assumption here is that while the police, for various reasons, can do nothing to end the hate campaign against Ahmadis and protect the community from extremist clerics, the courts can.
One has only to look at the historical Zaheer-ud-din v The State (1993) decision by the Supreme Court of Pakistan to realise how optimistic, if not completely dishonest, this reasoning is.
The case was the first in Pakistan to consider the constitutionality of Ordinance XX of 1984, which made it a crime for Ahmadis to call themselves Muslims and forbade them from, among other things, using epithets, titles and descriptions ‘reserved’ for holy personages or places of Muslims. The State rejected by a majority decision of four to one the contention that Ordinance XX violated any of the fundamental rights guaranteed by the Constitution, in this case the rights of every citizen to profess, practice and propagate his/her religion and of every religious denomination and sect to establish, maintain and manage its religious institutions (Article 20).
The decision in Zaheer-ud-din was based on four main arguments: 1) Analogous to the law on trademarks and copyrights, the state can outlaw other religious communities from using certain religious terms peculiar to Islam; 2) The right of freedom of religion extends only to the ‘integral’ and ‘essential’ parts of a religion and the Court has the power not only to determine the nature of these parts but also to restrict their practise if it leads to law and order problems; 3) An Islamic state is obligated to protect Islam and, to achieve this end, can prevent certain ‘fraudulent’ religious communities from claiming to be Muslim and disallow them from using religious symbols and terms used by Muslims; and 4) The ‘fundamental’ right to freedom of religion as well as all other fundamental rights is subject to the limitations of Islamic law which is the positive law of the land.
In Zaheer-ud-din, the Court quoted the company laws of Britain, India and Pakistan and the trademark law of the United States to justify prohibiting Ahmadis from using Islamic epithets and practices in the exercise of their faith. It pointed out, for instance, that “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...The principles involved are: do not deceive and do not violate the property rights of others”.
Reference to trade mark and company law in the case is entirely misplaced. Religion is not a commercially valuable property, nor Islam a registered company. The Court assumed here that there can be a copyright on God and that religion can be treated as a commodity; religions are not corporations and do not register their prayers as trade names or trademarks. How can goods and material objects with financial stakes be compared to religion, faith and belief?
In fact, by the Court’s own logic, Muslims could also, in countries where they form a minority, be accused of usurping the monotheistic beliefs of other religions. For example, the idea that “There is no god but Allah” is a monotheistic notion that precedes Islam in both the Christian and Jewish faiths. What would the Pakistani Court have to say if Christian- and Jewish-dominated countries forbade Muslims from making monotheistic declarations pursuant to a copyright or trademark law?
Indeed, in an eminently sensible decision in 1978, this question was already settled by the High Court of Lahore (Abdur Rahman Mobashir v. Amir Ali Shah) when it decided that civil law could only be used to safeguard rights of a legal character and that religious practices and terms could not constitute a proprietary right or fall within the domain of intellectual property law.
In 1993, with Zaheer-ud-din, the Mobashir judgement was tragically overturned and it was announced that allowing an Ahmadi to publicly display his religious beliefs was like “creating a Rushdie out of him”. The consenting judges’ bias is only too obvious. The argument, made clearly on the basis of assumptions and religious sentiment — not sound legal reasoning — was that: “Ahmadis always wanted to be a separate entity, of their own choice, religiously and socially...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...”
The Court as a guardian of Islam could not allow this ‘deception’. Before Zaheer-ud-din happened, the Constitution had already declared Ahmadis as non-Muslims through the third amendment; with the Court decision, it was decreed that any Ahmadis calling themselves Muslims or their faith Islam, were engaging in misrepresentation and fraud. Here, we see the Court imputing a negative intent to acts which are not socially disruptive. Indeed, it is clear that the focus is not on the act, but on the actor, Ahmadis being criminals because they are Ahmadis and not because they have committed any act, which in and of itself poses danger to society.
The accusation that Ahmadis are impostors, posing as Muslims, shifts attention away from external acts which restraining laws usually cater to and should, towards inward motives — with the Court having the power to decide whether particular acts are a result of ‘genuine’ loyalty to Islam or another loyalty which the Court defines as ‘posing’.
It is because of such a judgement that Dr Sarfaraz Ahmed Naeemi, the head of Jamia Naeemia and the chairman of the Protection of Islam Front, could so nonchalantly say that the intentions of Ahmadis in building a wall around their graveyard were doubtful and that while “We [Muslims] do not oppose giving them rights...that does not mean they can do whatever they want”.
With the Zaheer-ud-din case, protecting Islam became the state’s obligation under the Constitution and legal system of Pakistan. Earlier Supreme Court decisions (Hakim Khan v Government of Pakistan 1992) had rejected the claim that courts could use Islamic law directly as a source or a yardstick for the judicial review of legislation. It said that only laws that were in harmony with the provisions of the Constitution would be considered valid laws; also, courts were barred from directly applying Islamic law to strike down other laws considered contrary to it.
Zaheer-ud-din marked a departure from this opinion and held that “every man-made law must now conform to the Injunctions of Islam as contained in Qur’an and Sunnah of the Holy Prophet (pbuh)...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”.
It should be clear why a decision such as Zaheer-ud-din would tend to legitimise violent action against Ahmadis. Consider the Court’s words when it asked how “can anyone blame a Muslim if he loses control of himself on hearing, reading or seeing such blasphemous material as has been produced” by the Ahmadis. What are the implications of such a question by a court on the life and liberty of an Ahmadi and on his/her property?
Can the community, after the 1993 judgement, stop anyone from coming in the early hours of the morning and bulldozing the wall that surrounds their graveyard? Can anyone suggest to the Ahmadis after this that they seek justice for themselves in a court of law?
The writer is News Editor, The Friday Times