Who exactly is a Muslim? It shouldn’t surprise anyone that this is a question with a rather long history. Islam’s first split – the Shi’a/Sunni/Kharajite – was a split over leadership and community but the debates revolved around self-definition vs oppositional-definition. Many, if not all such schisms occurred as, participated in, or were reflected through theological prisms. Yet, the doctrinal or juristical debates were rarely the sole motivators as any passing familiarity with the fate of the Zayidis, the Alawis, the Imamis, or the Ismailis in the first two hundred years of Islam can amply demonstrate.1
More bluntly, theological differences were political realities and political realities were debated and encoded in communal law. For reference, see Sunni legal codes on Shi’a heresiography from any point in the 9th century onwards.2.
But maybe we ought to stick to more recent past, and things that matter directly on the case of the Ahmadiyya in Pakistan.
The 1860s and 70s were a conflict over communal self-definition of “Muslim”, over who can pray in what mosque, and behind whose “Imam”. Those were the heady days of the Ahl-e Hadith versus the Hanafi/Deobandi schools. The Ahl-e Hadith considered it legitimate to physically attack the Hanafis or at the very least to reject their corrupt Muslim-ness. Riots and violence notwithstanding, the British legal system became one clear venue to contest these assertions. In a number of cases from 1884 to 1891, most notably Queen Empress v Ramzan (1885), both the lower and high courts ruled that the Muslim mosque was a public institution which did not belong to one sect or another, and hence, was open for all, whether they said the Ameen out loud or under their breaths. What is significant is not only that these doctrinal or ritual issues were being actively contested in British courts, by both parties, on the basis of “heresy” but also that the courts consistently refused to legalize any ritual difference as sectarian difference. The central tenets of the faith, kalima, was enough for the court to claim that varied rituals were minor differences, and both parties were “Mohammadan”.
So when the Ahmadiyya enter this fray, not only is there a long precedent of litigation over mosques, over ritual, over heresy but there is also established law on the books. In 1911, in Monghyr, the Ahmadis petitioned the courts to allow them to pray behind a separate imam in the same mosque. They argued that the Hanafi were denying their right to pray behind their own imam. The Hanafi counter-argument was that the Ahmadi were non-Muslim to begin with.
In December 1916, the Patna High Court issued its ruling in Hakim Khalil Ahmad v Malik Israfi:
The plaintiff alleged that they were Muhammadans and followers of Hazrat Mirza Ghulam Ahmad; that they used to offer up their prayer with other followers of their own sect in a mosque in Dillawarpur, Monghyr; that they did so up to the 2nd December, 1911, when they were illegally and maliciously interfered with and prevented from entering the mosque by the defendants’ 1st party, at the instigation of defendants’ 2nd party. The plaintiffs used for declaration that they had a right to offer prayers in the said mosque with the people of their own sect, and that the defendants had no right to prevent them from doing so, and that the defendants be premanently restrained from interfeering with right of the plaintiffs to offer prayers in the said mosque, collectively and individually. The Court of first instance held that the plaintiffs were Muhammadans, and that they were entitled to offer prayers individually behind the Hanifi Imam of the mosque, but that they were not entitled to form a separate congregation for prayer in the mosque. The suit was dismissed. An appeal to the District Judge was dismissed, and he ordered it to be declared that the plaintiffs are at liberty to worship in the disputed mosque behind the recognised Imam of the mosque, in the same congregation with the defendants and other Sunnis. Both sides appealed to the High Court. (emphasis added)
– Howard Arnold Walter. The Aḥmadīya Movement (Calcutta: Association Press, 1918): 155
The Ahmadi counsel was Zafarullah Khan.
In 1920, the Court was finally involved in adjudicating whether Ahmadi were heretical or merely sectarian. In the case Narantakath Avullah vs Parakkal Mammu (1922), the court took it upon itself to “decide [it] ourselves”. The judges rejected the three witnesses of the “orthodox party” as being too quick to deem everyone heretic, and instead turned to the printed materials and self-descriptions of the Ahmadiyya party. In them, the judges found that there was clear adherence to Kalima, to the finality of Muhammad, to monotheism. They found that there was some deviation on the issue of abandonment of militancy, of the relationship with the Caliph in Turkey, of Jesus’s position in the theological construction and the issue of communication with God. The conclusion was that “the Ahamadiyans are in my view only a reformed sect of Mahomedans.” Hence, Muslim.
This was the stable legal definition of Ahmadis under British Legal Code – the code under which Pakistan gained independence and which continues to underpin Pakistan’s legal apparatus – plus, the various martial law routines.3 It is towards this history that I want to turn, now.
In an recent column, Still No Counter-terrorism Strategy, Mosharraf Zaidi had this to say:
The religious issue of the status of the Ahmedi faith in Pakistan is further complicated because it is also a legal issue. If Pakistanis, whether they call themselves liberal or not, are interested in beating the fanatics, and making Pakistan a safe place to live for all Pakistanis, then remembering certain facts is central to the project of fixing Pakistan.
The religious identity of Pakistan’s Constitution was the product of a democratic discourse. It is easy to demonise Zia, particularly given his government’s slavish pandering to a tiny sliver of mullahs. But frankly, reality also requires us to remember that Bhutto’s own rhetoric and most of the mainstream discourse preceding Bhutto (notwithstanding Ayub’s colonised vision for Pakistan) was not uncomfortable with Muslim identity. To the contrary, it had a healthy mix of political Muslimness, without any of the political Islamism that infected Pakistan under Zia
It is a patently absurd statement (as is the whole op-ed, but you can go read Ahsan on that) and one that posits a completely ahistorical picture of the Ahmadi as well as the “Pakistani” public (“There is scarcely a symbol more central to Pakistani Muslims than the life, times and person of the Holy Prophet Muhammad” O Rly?).
So about this “democratic discourse”. The Islamization of Pakistan, under Zulfiqar Ali Bhutto, and the Sunnification of Pakistan under General Zia ul Haq were both top-down, constructed processes which were at odd not only with the public but with the Courts and the Constitution. Before 1973, there was only the Objectives Resolution – a preamble with some general principles. The 1956 Constitution introduced Article 198 which stated that “no law shall be enacted which is repugnant to the injunctions of Islam as laid down in the Holy Quran and Sunnah” but only that a commission will make recommendation as to which laws, and how, can be conformed to Islam while enshrining minority rights. This Constitution was waylaid two years later, in 1958, so none of this had any effect on the working legal courts. The 1962 Constitution was much more restrictive in its “Islamic” hues. Pakistan became a Republic from an Islamic Republic and Islamization procedures were dropped. An amendment, in 1963, added an Advisory Council of Islamic Ideology [pdf] which could only advice the President. The provisions in the 1973 Constitution moved the rhetorical goalpost back -becoming again, the Islamic Republic and enshrining Islam in the preamble and the declarative bits. But it was Zia ul Haq and his Hudood Ordinances which set up a parallel legal apparatus to Islamicize all of Pakistani laws. Notice now, that none of the above described processes were “democratic” in any sense of the word. There never was a mandate for any party to do Constitutional reform. See now the perniciousness of the claim that the anti-Ahmadi law represent “democratic discourse”? But, here is another damning detail – not only was this criminalization of the Ahmadi un-democratic, it was also judicial activism (well, they also gave legal sanctuary to the military coups).
Until 1974, Ahmadiyya were a religious minority within Islam – they could contest elections as Muslims, hold posts, get married, own land – their status was no different than the Sunni majority. Their status was secure in Indian legal code – as above – and it was re-affirmed under Government of West Pakistan v. Begum Agha Abdul Karim Shorish Kashmiri (1969) which judged Ahmadis to be citizens, to be Muslim, and protected under the fullness of law.
After the brutal partition of 1971, Zulfiqar Ali Bhutto sought support and sustenance in Middle East – specifically in Saudi Arabia – and one of the channels of that ideology was Maulana Maududi’s Jamaat-i Islami and Ahmadiyyat was a central issue for them. They had been re-buffed in the 1950s and 1960s by sternly secular governments but in Bhutto, though himself a non-practitioner, they finally found a workable ally. The amendment to Article 260 of the 1973 Constitution declared Ahmadis non-Muslim, and the Second Amendment in 1974 further defined this in clause 3:
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
This was further clarified in 1983 when “any non-Muslim means a person who is not a Muslim and includes a person belonging to the Christian, Hindu, Sikh, Buddhist or Parsi community, or a person of the Quadiani group or the Lahori group (who call themselves Ahmadis or any ther name), or a Bahai, and a person belonging to any of the scheduled castes.”
And in 1984 came the Ordinance XX which banned specific terms, specific practices of the Ahmadis as criminal – they could not refer to the call to prayer as Azan etc. The legality of this law – and the fact that it collides with the freedom granted in the preamble to practice one’s religion – was raised by a number of Ahmadi lawsuits, culminating in Zaheeruddin v The State (1993), where a number of Ahmadi were charged under the Ordinance for wearing patches inscribed with the Kalima.
The Supreme Court rejected all the challenges and declared that Ordinance XX was not in violation of any fundamental laws in the Constitution. The majority opinion was written by Justice Abdul Qadir Chaudhry who concluded that in an Islamic state, the court had the right to determine what is, or isn’t, Islamic. The freedom to practice religion cannot supersede the desire to maintain law and order. The court was required to rule against the Ahmadi because “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 Rushdie 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.”
Martin Lau, The Role of Islam in the Legal System of Pakistan (2006) explains:
Earlier Supreme Court decisions, especially Hakim Khan, had rejected the claim that Islamic law could be directly applied by courts as a source of law or as a benchmark for the judicial review of legislation by arguing that only laws enacted in accordance with the provisions of the 1973 Constitution constituted valid law. The Islamisation 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 were therefore barred from directly applying Islamic law so as to strike down laws which might be repugnant to Islamic law.
Zaheeruddin v. The State must be regarded as a problematic decision. Not only did it confirm the legality of the contined persecution of members of the Ahmadiyya community, which is in itself a worrying prospect, but it also attempted to establish a new interpretation of the scope and the limits of fundamental rights in Pakistan.
Therein lies the entire “democratic discourse” – from religious ideologues to craven politicians to power-hungry military dictators to judicial zealots.———
- Take, for example, the famous Mahmud of Ghazni who repeatedly sought favor with the court in Baghdad for his sack and massacre of Ismailis in Multan (1006, 1011) and Mansura (1025). The court in Baghdad, however, had checked out of the affairs of Sindh for a solid 80 years by that time. So here was our Sunni warrior Mahmud settling scores and crushing infidels or here was our Afghan war lord plucking gold from them temples. [↩]
- See, Muhammad Qasim Zaman’s Religion & Politics under the `Abbāsids: The Emergence of the Proto-Sunnī Elite (1997) [↩]
- The Indian Independence Act 1947 clarifies this in Section 18(3) [pdf]: the law of British India and of the several parts thereof existing immediately before the appointed day shall as far as applicable and with the necessary adaptations, continue as the law of each of the new Dominions… [↩]