Article by Pooja Mehta and Jay Malwade,
On May 5, 2020, Pakistan announced the formation of the National Commission for Minorities (NCM) in response to a Supreme Court decision directing the federal government to form a commission for the protection of minority rights and religious harmony. The Pakistan Cabinet withdrew its decision to include Ahmadis in the NCM. Forming a minute 0.22% minority of the Muslim population, Ahmadis have faced severe persecution from authorities as well as societal harassment for their beliefs. The NCM includes members of the Hindu, Christian, Parsi, Sikh, and Kelash communities. This blog highlights how exclusion of Ahmadis from the NCM violates provisions of the International Covenant on Civil and Political Rights (ICCPR) and the Paris Principles, and furthers the means of persecution of Ahmadis.
Ahmadis have long endured the brunt of prejudicial policies. In 1974, the Second Amendment to the Constitution of Pakistan declared that the Ahmadis were “not Muslims for purposes of law and Constitution.” Ordinance XX, promulgated in 1984, amended the Pakistan Penal Code, effectively prohibiting Ahmadis from practicing their faith as Muslims and calling their faith Islam. Upheld by the Supreme Court in Zaheeruddin v. State, the law equipped authorities with notorious blasphemy laws that were used extensively to oppress the community. The 2017 Election Act (the “Election Act”) retains provisions in the 2002 Chief Executive Order regarding the status of Ahmadis. As per the provisions, unless Ahmadis do not have a right to vote unless they sign a declaration stating that they are non-Muslims–something that is not required of any other non-Muslim community. Extremist policies such as those in the Election Act have handicapped Ahmadis and left them without recourse.
International Law Violations
Laws curtailing the rights of Ahmadis, who already are among the most persecuted communities in Pakistan, violate several international norms. Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR) in 2010. Domestic laws prohibiting Ahmadis’ rights to freedom of religion and freedom to vote and be elected at periodic elections are violative of Articles 18 and 25 of the ICCPR. Additionally, though Pakistan ratified the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, the nation has violated its legal sanctity by orchestrating state-sponsored minority persecution and initiating blasphemy-based prosecution against Ahmadis. Pakistan has failed to protect the Ahmadis against religious discrimination and grant them equal status as citizens, in contravention of Article 26 of the ICCPR. The Sub-Commission on Prevention of Discrimination and Protection of Minorities condemned the promulgation of Ordinance XX, finding that it violated the right of religious minorities to profess and practice their religion. In doing so, Pakistan also violated rights conferred by the Universal Declaration of Human Rights. Decades ago, the country also ratified conventions such as Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), Covenant on Economic, Social and Cultural Rights (ICESCR), Convention on the Elimination of All Forms of Racial Discrimination (ICERD) and Convention on the Rights of the Child (CRC), provisions of which it has continuously and grossly violated. The All-Party Parliamentary Group’s report, “Suffocation of the Faithful: The Persecution of Ahmadi Muslims in Pakistan and the Rise of International Extremism” highlights the prevalence of targeted attacks on Ahmadi Muslims around the world, with an emphasis on Pakistan. The report is a bleak reminder of the fact that when a community is robbed of constitutional protections and targeted by the legal and societal spheres, they are at risk of being stripped of the most fundamental human rights.
The overall composition of the NCM is also dissonant with the Paris Principles (the “Principles”), which provide for the functioning and legitimacy of national institutions. Under the Principles, anyone holding political office cannot be part of a national institution. Currently, a member of the Hindu community belonging to the ruling party, Pakistan Tehreek-e-Insaf (PTI), is the NCM’s chairman. The PTI member’s appointment severely impairs the autonomy and independence of the NCM. Although the Supreme Court judgment mandated that the NCM be a statutory body set up through legislative acts, the Cabinet formed the present Commission in a manner that restricts its ability to legally enforce its decisions. The Statement of Objects and Reasons of the NCM Bill recognizes that violence against ethnic and religious minorities is commonplace across the country. The said Commission’s function is to monitor the practical realization of the rights and safeguards provided to minorities under the Constitution. The exclusion of Ahmadis from, coupled with the subservient nature of the NCM obstructs it from fulfilling the very purpose for which it was created, instead enhancing institutional means of persecution.
The Information Minister announced that Ahmadis were excluded from the NCM because they did not fall within the definition of ‘minority’. There is no generally accepted definition of minorities in positive international law, but certain recurring elements denote the essential characteristics of minorities, which are definitive of Ahmadis. According to the 1977 Special Rapporteur of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, Francesco Capotorti, a minority is “a group numerically inferior to the rest of the population of a State, in a non-dominant position, whose members–being nationals of the State–possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, traditions, religion or language.” The population of Ahmadi Muslims is estimated to be 4 million in a country of 212 million. The community has faced widespread discrimination due to their different beliefs and additional state sanction by the Parliament terming them as ''Non-Muslims”. Ahmadis today face widespread persecution and the community has sought refuge in several other countries to preserve their culture and ensure their communities' existence. Based on these characteristics, Ahmadis are quintessentially minorities. Various countries and international organs have historically considered Ahmadis minorities. Continued recognition of the group as a minority would allow them to avail the protection they require.
Ahmadis and the International Landscape
No human rights violation takes place in isolation. State-sponsored persecution of Ahmadi Muslims in Pakistan has led them to flee the country and seek refuge elsewhere. The countries to which they flee are not always signatories of the 1951 UN Convention Relating to the Status of Refugees (“Refugee Convention”) or the 1967 Protocol Relating to the Status of Refugees (“the Protocol”). As a result, while the UNHCR confers upon such people the status of refugees, Ahmadis who have fled sometimes cannot claim rights under the Refugee Convention or the Protocol. For example, Article 33 of the Refugee Convention ordinarily provides the critical protection against refoulement. Devoid of that right, refugees face a constant fear of being forced to return to the land from which they fled. In addition, many countries lack a formal national policy for refugee regulation. Ahmadis in such countries often live in inhumane conditions, crammed in tiny spaces with highly inadequate facilities as they live in constant fear of deportation. The recent Joint Report by the International Human Rights Committee sheds light on the harrowing conditions of Ahmadi refugees in Thailand and Malaysia, countries which are not signatories to the Refugee Convention or the Protocol. Ahmadis have sought refuge in other countries such as Afghanistan, Bangladesh, Algeria, Kyrgyzstan, Kazakhstan, Bulgaria, Belarus, Saudi Arabia, and Indonesia, but have faced discrimination and persecution akin to that from which they fled.
With growing strife, discrimination against the Ahmadi community has transpired through legal, legislative, and social forces. In India, the Ahmadis are recognized as Muslims. However, the recent Citizenship Amendment Act (CAA), which aims to protect communities that have faced persecution on religious grounds, has become another instrument of discrimination against the Pakistani Ahmadi Muslims, among others. The text of the CAA protects the rights to practice, profess, and propagate religion, but its application is unequal. The convenient exclusion of Muslim minorities, such as the Ahmadis, from protective measures against neighboring countries portrays the legislation’s discriminatory impact. Today, the exclusion of the Ahmadi community from the NCM, which protects other minority communities, reinforces the failure and redundancy of the CAA.
The decision to exclude Ahmadis from the NCM only exacerbates the vulnerability of the minority community. Pakistan must review its decision and call for a truly independent commission in order to better protect minorities, including those widely persecuted, like Ahmadis.
Authors
Pooja Mehta is a third year student of Gujarat National Law University pursuing B.A.LL.B.(Hons.). She is interested in Public International Law, International Criminal Law and Constitutional Law.
Jay Malwade is also a third year student of Gujarat National Law University pursuing B.A.LL.B.(Hons.). He is interested in Constitutional Law, International Human Rights Law and International Criminal Law.