The barrister Mr Jinnah, together with his comrades in the struggle for Independence, wanted Pakistan to be a secular country and just a couple of days before the Partition of India he, therefore, said that:
You are free; you are free to go to your temples, you are free to go to your mosques or to any other place of worship in this State of Pakistan. You may belong to any religion or caste or creed. That has nothing to do with the business of the State.
But alas the ideology espoused by the leaders who spearheaded the Pakistan Movement (which was itself based on the idea that Muslims within India were a minority) was not to be. Pakistan failed to be secular. The 1953 riots against Ahmadis led to Pakistan’s first martial law being imposed in the city of Lahore and things have spiralled downwards ever since. In 1974, in order to appease the Islamic fundamentalists of his times, Prime Minister Zulfikar Ali Bhutto amended Pakistan’s Constitution and declared Ahmadis to be non-Muslims.
After orchestrating Mr Bhutto’s judicial murder, the venal General Ziaul Haq took the crusade against Pakistan’s minorities – especially Ahmadis – even further. Zia used his presidential powers to promulgate, under Article 89 of Pakistan’s Constitution, Ordinance XX of 1984 (see full text here) which created harsh criminal offences to prevent the Quadiani, Ahmadi and Lahori groups from indulging in “anti-Islamic activities.” (Minimum punishments are set at two years’ imprisonment.)
Ahmadis were pivotal to the creation of Pakistan. The country’s first foreign minister Sir Zafrulla Khan – the drafter of the Lahore Resolution who also served as the President of the International Court of Justice (1970-1973) – was an Ahmadi. Others such as Dr Abdus Salaam – who won the Nobel Prize for Physics – have also served their country with great distinction.
The misfortune of the Ahmadis is that their highly educated community has interpreted the Qur’ān to attribute a special status to their leader Mirza Ghulam Ahmad. The misunderstanding and prevarication of the Ahmedis’ beliefs by extremists has resulted in the dogma that Ahmadis are heretics who do not believe in the Finality of the Qur’ān and Allah’s last Prophet Muhammad (Peace Be Upon Him): a charge which the Pakistani branch of the Ahmadi community vehemently denies.
In MT (Ahmadi – HJ (Iran)) Pakistan  UKUT 00277(IAC) the appellant entered the UK on a visit visa and claimed asylum. The SSHD, thus, treated him as an illegal entrant. Owing to his religion MT lost his job in Pakistan but managed to establish his own business. During a wedding in Sindh province, while proselytising their beliefs, MT and others of his community became the subjects of police action under Pakistani criminal law; several people were arrested, but being from Punjab province MT was not taken into custody.
Upon his return he managed to pay bribes to the police to keep them at bay. But the police wanted more money and to blackmail MT they issued an arrest warrant: so he paid them yet again and went into hiding. Things deteriorated further when MT’s name was included in pamphlets handed out by Islamists. He also received death threats and the police informed him that they could not protect him and that he should move to another town. MT and his wife, therefore, arrived in the UK on visit visas (which they were granted on appeal) and claimed asylum.
In refusing the claim for asylum the SSHD said that she was not convinced that MT had preached in Pakistan. Since he was not charged with blasphemy under the Pakistan Penal Code 1860 – for the SSHD even if he were so charged all such cases are ultimately dismissed so that was no problem! – he could easily relocate internally because the attacks against Ahmadis in Pakistan were random and MT had not personally been targeted. (Moreover, his entry on a visit visa was deceptive as he always intended to claim asylum in the UK.)
Although MT was the author of religious books, an Immigration Judge dismissed his appeal because of lack of evidence in relation to the books ever having been used for preaching. Equally, the IJ found that the publication of the books was restricted to the Ahmadi community. (MT had admitted to preaching only to friends in secret.) Citing MJ and ZM (Ahmadis – risk) Pakistan CG  UKAIT 00033 the IJ found that risk of return to be insufficient to merit international protection as the books had been provided only to people who were not considered dangerous by MT.
Permission to appeal to the Upper Tribunal was initially refused but later granted on the HJ (Iran) ground whereby MT argued if a person is required to carry out activities discreetly, then this amounts to persecution. (Given the terms of Ordinance XX, MT had no option but to preach discreetly.) It was further stated that case law established that a person could not be expected to lie in order to avoid persecution. Since HJ (Iran) applied to all of the Refugee Convention reasons for claiming asylum its application to MT’s case was inextricable.
In the Upper Tribunal it was submitted on MT’s behalf that his religious works were not shared with people who might be dangerous precisely because MT feared reprisals and if he was returned to Pakistan and continued to preach he would be at risk of persecution. (This view, however, was not shared by the SSHD who thought that MT’s activities were not discreet and he had not circumscribed his activities because of fear.)
Upon hearing the parties the Upper Tribunal decided that because MT had restricted the disclosure of his religious work to people he considered safe it could be inferred that his behaviour in proselytising the Ahmadi faith in Pakistan was inhibited. The Tribunal, thus, answered Lord Rodger’s – paragraph 82 – HJ (Iran) questions to conclude that MT was a devout Ahmadi who, if returned to Pakistan, was likely to continue to preach discreetly but would avoid dangerous people owing to the fear of persecution.
The grotesque attack on an Ahmadi mosque in May 2010 (which left 85 people dead and 150 wounded) by sectarian Islamists was remembered by the Tribunal and the Human Rights Commission of Pakistan’s acknowledgement “that the best way for an Ahmadi to protect her or himself is to hide their religion” was also reiterated. MT’s case was decided on its own merits and facts and it was determined that:
Where it is found that an Ahmadi will be “discreet” on return the reasons for such discretion will need to be considered in the light of HJ (Iran)  UKSC 31.
While in a Kurdish takeaway restaurant on Manchester’s Wilmslow Road called Al-Safa (with the best Kobeda kebab in the business) my friend Mr Iqbal and I began to chat about Pakistan’s future with two young Pakistani electrical engineering students. After hearing my thoughts – as a “Muslim” non-Ahmadi Pakistani – on the absolutely deplorable and disgraceful state of the Pakistani criminal law in relation to minorities (Ordinance XX of 1984 in particular), one of the students called Fareed “admitted” to being an Ahmadi. Turning to his friend Sohaib (a confessed Sunni Muslim), Fareed – whose entire family recently migrated to the UK under the Tier 1 (Investor) route to avoid persecution – exclaimed “You can hear that for yourself mate, we are not some evil sect!”
Pakistani passports are endorsed with the holder’s religion. When I asked Fareed why he didn’t just sign the “Muslim declaration” in the Pakistani passport application form (stating that Mirza Ghulam Ahmad was a false prophet and an impersonator) and pretend to be “Muslim”, the twenty-year old’s proud response was “Why should I have done that?”
I asked the question because to avoid problems poorer less educated Ahmadis do routinely sign the passport declaration. Heaven knows it might even help with an asylum claim if a person was so scared that in order to avoid persecution they signed the declaration and pretended not to be Ahmadi.
The imposition of “Islamic” criminal laws in Pakistan by dictators such as Zia ruined its founders’ secular vision, but the alternative dynamics of the Islamisation of Pakistan’s laws have been considered at length by Dr Martin Lau (of SOAS) in The Role of Islam in the Legal System of Pakistan. In appraising to what extent Islam forms the immutable Grundnorm or basic standard of Pakistan’s legal order, Lau explains that the Islamisation of laws:
[H]as been a judge led process, which was initiated to enhance the power of the judiciary and to expand the scope of constitutionally guaranteed fundamental rights.
The Islamisation of law did, perhaps ironically, not only precede Zia-ul-Haq’s regime, but was actually used to challenge him.
Now that the genie of extremism is fully out of the bottle in Pakistan the country’s judges, politicians and civil society organisations will have to show much greater courage in combating the persecution of minorities so that communities such as Ahmadis don’t have to claim asylum in the UK.
A Tall Order indeed!