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February 28th, 2010

Article – 260 – (3) of Constitution of Pakistan – an analysis

This post has been submitted by our learned friend Ikram.

Due to the formatting that this post requires, it is being presented as a pdf file at this link.

10 Responses to “Article – 260 – (3) of Constitution of Pakistan – an analysis”

  1. Wow!
     
    Ikram dissected Article 260 (3) of 1973 Constitution of Pakistan.
     
    It is very clear that this article is SELF-DEFEATING and contradictory. Contrary to serving the purpose of declaring Lahori-Ahmadis as “non-Muslims” by the representatives of majority Muslim citizens of Pakistan, it in fact declares Lahori-Ahmadis as Muslims and rest of Pakistani-Muslims as non-Muslim.
     
    This brings me to think that Pakistani Majority are guilty of violation of 1973 constitution when they treat Lahori-Ahmadis as “non-Muslim”, and consider themselves as Muslims; and demand ridiculous declarations from Lahori-Ahmadis on Pakistani Passport and National Identity card to prove themselves as Muslims. In my opinion this point could be brought up in Pakistan Supreme Court. There is discrimination against Lahori-Ahmadis whom in fact according to wording of 1973 constitution are the Muslims, by Pakistani-Muslims whom in fact according to wording of 1973 constitution are non-Muslim. Again, there is violation of human rights of Lahori-Muslims by Pakistani-Muslims as defined in article 260 (3) of 1973 Constitution of Pakistan.
     


  2. 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); ”

    I would just like readers to ponder on this for moment; especially the use of the words “in any sense of the word.”  Is this not a ridiculous statement?  And shall we start counting the names of the Muslims Saints (highly revered by the millions of Muslims) who are now then “non-Muslims.” 

    Also ponder on the fact that a clause is inserted to describe non-Muslims.  Is this also not nonsensical?  I mean all persons who are not Muslims as per clause (a) are by default non-Muslims; so why attempt to describe a non-Muslims specifically after describing a “Muslim”.  This is like some one gives the defintion of mammal and then starts to present a long list of non-mammals to complete the definition. 


  3. 1973 Pakistan Constitution, article 260 (3), clause (b):
     
     (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.
     
    Constitution of Pakistan uses word “non-Muslim” for ‘Ahmadis’.
    Out side Pakistan and other Islamic countries, especially in USA, and perhaps in Canada and West European countries, Pakistani and non-Pakistani Muslims use words ‘Followers of other faiths’ instead of using words such as ‘non-Muslims’ or ‘Kaffir/ Kuffar’.
     
    I would say this is a clear proof of fulfillment of HMGA revelation:
    ‘Dunya mein aik nazier aaya, per dunya nay oos ko kabool na kia. Laikan Khuda issay kabool karay gha, aur baray zoorawar humloon say oos ki sachai zahir karay gha’
    (A Warner came to the world, but world did not accept him. But Allah will accept him, and with very powerful attacks will manifest his truthfulness).
    It is clear, ‘Powerful Attacks’ are forcing Muslims to be civil, and talk with respect, politely and with logic and reason, without offending others.


  4. (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 word includes is an ambiguous word that could mean “consists of” or it could mean “contains as a subset.”
    If the meaning “consists of” is assumed, then the writers of the Constitution missed Judaism and many other religions. By implication then follower of Jewish faith is a Muslim.

    If the meaning “contains as a subset ” is assumed, then what stopped the writers to write … and includes besides others a person belonging to the Christian… which would have included all other non-Muslim religions.

    For example, you hire a contractor to deliver a list similar to (b) above, which states –
    (b) “non construction-tool” means a tool which is not a construction-tool and includes a tool belonging to the hammer, wrench, ratchet, spanner or screw-driver categories, a tool of the wire-cutter group or the wire-stripper group which are called ‘wire-tools’ or by any other name or a chisel, and a tool belonging to any of the Scheduled Instruments.

    Question: Will you expect the contractor to deliver a “saw” under the above contract, even though it is not explicitly mentioned, despite the fact that you have used the word includes in the contract?

    The argument will return to the ambiguous nature of the word includes and the contract either has to be terminated and rewritten or ends up in the court which will have to decide between the contractor and the customer.

    It could be a test case for the Supreme Court of Pakistan by e.g ACLU or similar, where a case is filed by a person who claims that he is of a Jewish faith and wants a Muslim passport under the Constitution.

    In civilized societies the constitutional issues are usually about the ambiguity arising from the implementation of the clauses and not from the contradictions within the Constitution e.g. the concept of “freedom of speech.”

    Just as a word of caution for Pakistan. After the current constitutional reforms committee completes its deliberation, its Law Ministry shall do the drafting of the new constitutional bill, headed by Senator Babar Awan. It is the same person who is on record that in order to deflect allegations of his corruption to buy the judges for his clients he blamed it as a Quadiani conspiracy against him. (http://www.paktribune.com/news/index.shtml?225060)


  5. Well in Pakistan if they only use this expression for non-Muslims then, God Forbid, how will they throw out people from Islam?  I mean just imagine, Ahmadis openly saying their prayers, reciting the Kalimah, reading the Quran in public.  Such blasphemous behavior would certainly hurt the feeling of the pious Ummah.  Thank God we don’t simply use “followers of other faiths” to describe non-Muslims in Pakistan.


  6. Question:
    Can Lahore Ahmadiyya Movement file petition in International Court of Justice (ICJ), in Hague?
     
    Pakistan is signatory to ICJ. At least its one time president Sir Zafarullah Khan was Pakistani. I wonder why Qadiani jamaat has not approached ICJ against 2nd amendment in 1973 Pakistan’s constitution. They definitely have financial and human resources.
     
    Anyways, I’m curious to find out if Lahore Ahmadiyya Movement can file petition in ICJ on the grounds:
    i-                    2nd amendment was ultra-vires act of Pakistan’s constitutional assembly.
    ii-                  2nd amendment is cause of violation of human, and religious rights; and discrimination against citizens of Pakistan.
     
    Link to ICJ:
    http://www.icj-cij.org/homepage/index.php?lang=en
     
     


  7. @ Rashid:

    ICJ has Jurisdiction in only two areas:

    Contentious Jurisdiction – Only States may apply to and appear before the International Court of Justice. International organizations, other collectivities and private persons are not entitled to institute proceedings before the Court.

    Advisory Jurisdiction – Since States alone have capacity to appear before the Court, public (governmental) international organizations cannot as such be parties to any case before it. A special procedure, the advisory procedure, is, however, available to such organizations and to them alone.


  8. Bottom Line to Article – 260 – (3) of Constitution of Pakistan

    In the discussion so far, due to its internal conflicts and ambiguities many can challenge this article for changing the faith of so many without them knowing for what fault of theirs i.e.

    1. All Ummah except Lahoris are “Non-Muslims” – under sub-clause (a)
    2. All non-Ummah except a few (e.g. Christian, Hindu, Sikh, Buddhist or Parsi) religions can be “Muslims” – under sub-clause (b)
    3. Lahoris are both “Muslims” and “Non-Muslims” – under sub-clauses (a) and (b) respectively. The irony is that even if Lahoris file a lawsuit to be declared non-Muslims they will be denied under (a).

    By its illogic, with or without a court, using its own words the Article nullifies itself because “there is everything repugnant in the subject or context” in it – under its main clause.

    And the winner is….Mirza Ghulam Ahmad – under sub-clause (a), because all his life he is someone …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)…


  9. @Ikram
     
    I think ICJ should be approached to expand its mandate.
     
    Question is how to redress injustice to any group of humans or even one single person, if the highest law of the land becomes the foundation of that injustice. And on top of that if the same law declares that it cannot be challenged in the highest court of the land either. Ethically humanity is superior to any law of the land. Early Muslims followed this principle. If I’m not wrong, Khulifa-e-Rashideen went to war with countries that did not allow their Muslim citizens to practice their religion. In recent years we have seen UN giving precedence to humanity and human rights of citizens over “laws of that country”. We saw it in East Timor. Now perhaps it will happen in Southern Sudan.
     
    2nd amendment to 1973 constitution of Pakistan is unequivocally discriminatory and unjust, and the same constitution says no article and amendment of it can be challenged in any court. And Supreme Court of Pakistan is subservient to this constitution.
     
    Again, 2nd amendment cannot be challenged in court, and it is discriminatory. So, where citizens who have been wronged should seek justice? I think may be this point can be brought to the attention of ICJ.
     


  10. nobody can judge a muslim. I know so many ahmadis, wonderful people MA, offer salat, read Quran, give Saqa, their Qalma is La Illaha ILAllah Mohammad-ur-Rasool Allah. don’t judge as Allah is the only authority to judge, look at what you are not others. first fix the inner you then raise your finger at someone.


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