Legal eye

Such is the collective state of our bigotry, complicity, timidity and expediency that even the Muslim majority in this Islamic Republic (created to enable them to live their lives in accordance with their belief system) lives in a constant state of terror. Forget minorities, even members of the Muslim majority can no longer ask questions or critique the logic or intent of those raising demands in the name of religion out of fear of being declared apostate or blasphemers and devoured by vigilantism.

During a discussion about the miseries of the residents of the twin cities held hostage by the Faizabad dharna, a colleague stated that he too was willing to lay his life for the sanctity of our Prophet (peace be upon him) and join the dharna. When asked what the controversy was about, he thought the constitutional clause declaring Ahmadis non-Muslims was being undone through Election Act, 2017. Without getting into whether we should be in the business of sitting in parliament and introducing provisions in our law and constitution to define the faith of fellow citizens, let us consider our law, as it exists.

In 1974, through the 2nd Amendment, the definitions of ‘Muslim’ and ‘Non-Muslim’ were introduced as Article 260(3), which states:

“In the Constitution and all enactments and other legal instruments, unless there is anything repugnant in the subject or context

(a) “Muslim” means a person who believes in the unity and oneness of Almighty Allah, in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets, and does not believe in, or recognize as a prophet or religious reformer, any person who claimed or claims to be a prophet, in any sense of the word or of any description whatsoever, after Muhammad (peace be upon him); and

b) “non-Muslim” means a person who is not a Muslim and 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 constitution is our supreme law. No provision of a subordinate legislation (such as Election Act, 2017) can override or undermine a constitutional provision. Thus, the question of the Election Act changing the categorisation of Ahmadis as non-Muslims doesn’t arise. Further, reiterating what is categorically stated in Article 260(3) of the constitution in each and every law affecting all citizens, including Ahmadis, serves no purpose.

To appease those using religion for politics, Zia promulgated Ordinance XX of 1984, through which he added Sections 298-A, B and C to Pakistan penal Code. Pursuant to this, if an Ahmadi calls himself a Muslim, or “poses as a Muslim” or “preaches or propagates his faith” or “outrages religious feelings of Muslims”, he is punishable with imprisonment of up to three years.

Election Act, 2017 changed none of this. It consolidated provisions related to elections previously spread out over eight laws. One of these was Conduct of General Elections Order, 2002, introduced by Musharraf. The first part of the present controversy is about Sections 7B and 7C of this law. The Election Order declared in Section 7 that elections will be held on joint electorate basis (undoing the prior dis-enfranchisement of minorities), and seats for non-Muslims were to be filled on the basis of proportional representation through party lists.

When elections were held on a separate electorate basis, there was a separate electoral list for non-Muslims that entitled them to vote for seats reserved for non-Muslims. When the mode of electing reserved seat candidates changed from direct election by non-Muslims to proportional representation, the need for maintaining a separate list for non-Muslims was extinguished. In the joint electorate system only one list was needed, as all citizens (Muslim and non-Muslim) would vote for the general seat in their respective constituencies.

But the bigoted brigade smelled conspiracy and alleged that Musharraf was trying to undo Ahmadis’ non-Muslim status. To appease the bigots, Musharraf added Sections 7B and C to the Elections Order. Section 7B essentially said that the definition of non-Muslim in Article 260 of the constitution would reign supreme notwithstanding anything in subsidiary legislation (a principle so obvious and established that it needs no restatement).

Section 7C said that if anyone objected to a person included in a voter list as Muslim, such person would be asked to sign the declaration regarding finality of our Prophet (peace be upon him). And if he didn’t, he would be deemed non-Muslim, his name deleted from the joint electoral rolls and added to a separate list of non-Muslim voters for the same electoral area. This created a special list for Ahmadis, but served no purpose in the joint electorate election system where all citizens were entitled to vote irrespective of their religious identity.

The declaration to be made by candidates under the new law is the second cause for controversy. Form A under the new law requires a Muslim candidate to state that, “I believe in the absolute and unqualified finality of the Prophethood of Muhammad (peace be upon him), the last of the prophets and that I am not the follower of any one who claims to be a Prophet in any sense of the word or of any description whatsoever after Prophet Muhammad (peace be upon him), and that I do not recognize such a claimant to be Prophet or a religious reformer, nor do I belong to the Qadiani group or the Lahori group or call myself an Ahmedi.”

This language is exactly the same as that under the Representation of Peoples Act that it replaces. The change was that in the new form multiple declarations were clubbed together and the language preceding the declarations stated, “I… hereby declare”, whereas words preceding the declaration in the old form were “I… solemnly swear”. The legal consequence remained unchanged: a false declaration attracts disqualification whether you swore upon it or just stated it. To say that such change is one of substance has no basis in law.

If repeal of Sections 7B and C of the Elections Order 2002 and replacement of the words “solemnly swear” to “declare” were such matters of consequence, why did 34 members of the parliamentary committee, who oversaw the evolution of the new election law in its 26 meetings (or those of the subcommittee that held 93 meetings) fail to identify them. If the matters are such that they undermine a fundamental tenant of our faith, why not demand scalps of all members of the parliamentary committee if not all members of parliament?

Parliament passed Election Act, 2017 on October 2, an Amendment Act on October 16 (to amend Form A and undo repeal of Sections 7B and C) and then another bill on November 16 to reintroduce the text of Section 7B and C as a new Section 48A in Election Act, 2017. The entire parliament that itself passed the original law joined the chorus condemning the ‘mistake’, looking for a scapegoat, and using religion for politics. As there can be no rational discussion on the matter, the average Joe might think some deep conspiracy against our religion has been unearthed and undone.

Taking note of the state of persecution of religious minorities in Pakistan, CJ Tassaduq Jillani had noted (in an extraordinary SC judgment emphasising the right to religious conscience under Article 20) that, “it requires strong moral courage for an individual or nation to apologize for having wronged a community. It is time for us as a nation and as individuals to have a moment of reflection, a moment of soul searching and perhaps a moment of reckoning to ask ourselves, have we lived by the pledges made in the constitution and by the vision of Quaid-e-Azam…”

While leaders of this pitiable nation sharpen their petty political tactics, freedom of religious conscience remains shackled, hate speech proliferates, tolerance recedes and a few hundred mullahs hold the capital and the garrison cities hostage against clear orders of the Islamabad High Court.

The writer is a lawyer based in Islamabad.

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