2. Distorted news in Muslim Views and reply by advocate for Sheikh Jassiem
In the November 1995 issue of Muslim Views, a newspaper of Cape Town, the Appeal Judgment was misrepresented in an article with the heading:
MJC vs Ahmadis
Court rules MJC having right to outlaw Ahmadis
See this link for an image of the article.
Upon this publication, Mr D.P. de Villiers, QC, the advocate for Sheikh Jassiem who had represented him in court, was asked for legal advice. He issued the following legal opinion.
IN RE: NAZIM MOHAMED AND THE M.J.C.
V.
M.A. JASSIEM
ADVICE.
- With reference to the judgment of the Appellate
Division delivered in the above matter on 26th
September, 1995, I have been requested to advise on
aspects of an article which appeared in the Muslim
Views of November 1995, at page 5, under the heading,
“M.J.C. vs AHMADIS
COURT RULES M.J.C. HAVING RIGHT TO OUTLAW AHMADIS”
- I must warn at once that in numerous aspects of
its contents, and in the second line of its heading‚
the article is thoroughly misleading and wrong — as
would inevitably be found to their cost by any Muslim
or Muslim Authority who may seek to act on the basis
of the statements in the article as if they were a
correct rendering of the law or of the Appellate
Division judgment in question.
- First of all it must be realised that in the appeal
the Court was confined to issues pertaining to an action
for defamation. It therefore decided only such
issues as were necessary for it in order to give
a judgment on that case. In the result, a large
number of issues of great interest with reference
to what is termed in the article “the Ahmadi-Muslim
issue” were intentionally left undecided by the
Appeal Court, although they had been pertinently
raised and intensively discussed both at the trial
in Cape Town and as part of the Appeal at Bloemfontein.
- A further general feature of importance is
this. If it is suggested by the article that a
Court of Law can under no circumstances step in
to redress injustice done to a person merely because
it happened at the hands of a Muslim individual or
body, purporting to uphold the Muslim faith, then
this very Judgment demonstrates exactly the
opposite. In this case Nazim was, at the wedding
in the Wynberg Mosque, the officiating Imam; and
everybody knew that he was the president of the
M.J.C.; throughout the altercation with Jassiem, he
purported to act in accordance with the policy
which had been laid down by the M.J.C.; nevertheless
he was found by the Appellate Division to have
committed defamation towards Jassiem, and ordered to
pay R25000 in damages and 85% of Jassiem’s costs. Each and every one of a number of defences
raised by Nazim and the M.J.C. to the claim for damages for defamation
was rejected. Only one defence, by the M.J.C. alone,
succeeded, viz. that on the facts the Appellate Division
was not satisfied that Nazim had been authorised by
the M.J.C. to act on its behalf in the manner in
which he acted on the occasion in question. In this
respect the M.J.C. scored a victory, which was
important from the point of view of costs. But
that was the only sense in which it was successful
at all: it is completely fallacious to suggest
that on any aspect of the Muslim-Ahmadi issue the
M.J.C. was now in any better position than it had
been before.
As far as our Courts are concerned, the judgment
of Williamson J in the Peck case of 1985 still,
therefore, stands, viz. that Lahore Ahmadis are
indeed Muslims, and so are so-called “sympathisers”
in the Muslim community. The enormous cost and time
spent by the M.J.C. in this case in trying to prove
the opposite, were to no avail. Judge van den
Heever in the Cape Provincial Division found that the
M.J.C. and Nazim had failed to prove their proposition
that Lahores and sympathisers were indeed murtad and
therefore liable to be excommunicated. And the
Appellate Division found it unnecessary for purposes
of their Judgment to consider the question at all: at the request of the Court, it did not even hear argument on the question.
- To return now to the article in Muslim Views.
lt refers to a judgment delivered earlier by the
late Judge Berman and quotes him as stating that
“a secular court is more appropriate to decide on
the Ahmadi-Muslim issue”. That decision was in
fact delivered in a preliminary stage of the Peck case. The M.J.C. had raised the contention that
a secular court “should decline to entertain on its
merits the dispute as to whether Ahmadis are Muslims
or not”. Berman J found to the contrary. He based
his conclusion on a firm line of decisions to the
effect that where a religious dispute is such that
its outcome would or could affect ordinary civil
rights of a party, which are at issue in a case
coming before a secular court, then it would be
the function of such court to enter into aspects
of the religious dispute insofar as necessary for
deciding the question pertaining to civil rights.
The civil rights could concern entry upon premises
(e.g. a Mosque), burial in a cemetery or protection
against injury like insults or defamation. In
upholding this principle Judge Berman added that
“it appears to me that the resolution
of the question whether Ahmadis are
Muslims or not may well be more fairly
and dispassionately decided by a secular
court as this, than by some other tribunal composed of theologians. Certainly
when regard is had to the considerable
number of experts to be called and the
considerable volume of testimony to be
given by them, this court may well be
the most suitable forum to deal with them
and with their evidence”.
In relation to this quoted comment of Judge Berman,
which was also noted by the Appellate Division, the
latter court said that:
“It is not necessary for the purposes
of this appeal for this court to
pronounce upon the acceptability or
practicability of the above point of
view”.
This is not surprising, since, as already seen,
the Appellate Division considered it unnecessary
to consider at all “the question whether Ahmadis
are Muslims or not”.
- However, the article tries to read more than
this into the attitude of the Appellate Division.
It proceeds to quote (out of context) a passage appearing
in the Appellate Division Judgment some 153 pages later (in
the typed version). In its proper context‚ that
portion of the judgment is concerned with certain
procedural prerequisites which, according to the
evidence of both Professor Ghazi and Sheik Nazim,
would have to be observed before anyone could be excommunicated from the Islamic religion as being an
apostate. The Court found that, on either of the two
versions as to the prerequisite conditions, they had
not been complied with in this case, and that for
that reason alone there could have been no valid excommunication at the time when Nazim spoke. It was
therefore unnecessary for the Court to consider the
question whether substantively there would have been
been good reasons for excommunication. On the subject
as a whole, however, the Court made certain further
comments, as follows:
(a) With reference to the procedural prerequisites,
the Court said the following at pp 153-4:
“If, as was contended on behalf of the
appellant, these procedures are indeed
integral to Islamic faith — as to
which we express no opinion — it would not be for us to comment on their reasonableness or fairness”. (Underlining added).
(b) It then proceeds to quote from a decision of the
House of Lords, and to make a statement of its own
(the latter of which is quoted in the article) to
the effect that a secular court should not take it
upon itself to question “doctrines” or “fundamental
and critical tenets of … faith” of religious
ordinations or organisations, be it on the basis of
reasonableness, soundness in comparison with
scriptural sources, or the like.
(c) It was on the basis as stated in (b)
that the statements in (a) were made with reference
to the procedural prerequisites under discussion — but only if they were “indeed integral to Islamic
faith” — which they were not found to be.
(d) It was further on the basis of (b) that the
Court made the statement which is quoted in full in
the article in Muslim Views, reading as follows:
“One cannot deny the right of those who
are legitimately charged with the protection
of the Muslim faith to seek to safeguard
what they consider to be the fundamental
and critical tenets of their faith, and to
excommunicate someone whose convictions
and beliefs are in opposition to, or not
in conformity with, those principles.
It would therefore be inappropriate for
us to measure by conventional juridical
standards the fairness or justifiability
of declaring murtad a person who persists
in adopting a neutral attitude towards
Ahmadis, either because of his lack of
knowledge as to what their beliefs are,
or because he believes that the Quran
enjoins that a person who is to all outward appearances a professing Muslim
may not be debarred from attendance at a
mosque, and that the sincerity of such
a person’s professed faith is a matter
between him and Allah,” (at 154-155).
(e) The following comments are apposite:
(i) The quotation commences with a reference
to a “right” on the part of “those who are
legitimately charged with the protection of the Muslim faith”. Though it was a
disputed point in the case, there is nowhere
any finding that the self-appointed M.J.C.
fits the description of the quoted words.
(ii) The right to excommunicate applies only to
someone whose “convictions and beliefs are
in opposition to or not in conformity with” … “what they consider to be the fundamental
and critical tenets of their faith”. Before
excommunication of Lahore Ahmadis and/or
“sympathisers” could be justified in terms
of these criteria, it would have to be shown
that there was indeed such a conflict between
their “convictions and beliefs” and “the
fundamental and critical tenets of” the Muslim faith. In the case of Lahore Ahmadis and Sympathisers the existence of such a conflict has never been satisfactorily
shown, either by the M.J.C. leadership, or
by the Cairo Fatwa on which they relied, or by
the resolutions of the international conferences
to which they have referred, or by he efforts
of expert witnesses whom they have called in
litigation in South Africa. Outside of
the politically controlled situation in
Pakistan, there has not been shown to
be any consensus, to the effect that such
conflict existed, among those who can be
said to be “legitimately charged with the
protection of the Muslim faith”. Until
such consensus can be shown to exist, Courts
of justice cannot be barred from requiring
evidence and proof of the existence of such
conflict. They certainly cannot be expected
to be bound by the “stand” of the self-appointed M.J.C., which has been ruled to be
wrong, or at least seriously flawed and
unsubstantiated, by both South African judicial
decisions which have dealt with the subject,
viz. that by Williamson J in the Peck case
and that by v.d. Heever J in the Cape
Provincial Division in this case. As has
been noted, the Appellate Division found it
unnecessary to go into this aspect at all,
due to other conclusive findings in favour
of Jassiem, and therefore in no way overruled
the conclusions of Williamson J and
v.d. Heever J.
(iii) It will, consequently, be a very dangerous
path to tread for the M.J.C. or any Muslim
leader who has accepted their “stand”, to
proceed with purportedly excommunicating
Lahore Ahmadis and/or “sympathisers” and to debar them in the various ways
suggested in the article, without expecting
trouble from South African courts.
(iv) It is particularly noteworthy that, apart
from making no finding whatsoever as to
whether any Ahmadis can justifiably be
regarded as apostates, the Appellate Division
also explicitly abstained from arriving
at a conclusion whether Jassiem’s conduct
and attitude of neutrality “would have
justified branding him as a ‘sympathiser’ ”;
and they significantly added further:
“However we may say that it is far from
clear to us that it would have justified
so branding him.”
(v) It will be obvious that although the
Appellate Division expressed itself very
cautiously and correctly, the М.J.C. methods
of operation are still not favourably
looked upon by South African Courts.
(vi) In conclusion it must emphatically be stated
that
(a) the Appellate Division did not decide that the “M.J.C. may now outlaw Ahmadis” and
has given its very firm reasons for not
saying so;
and
(b) the Appellate Division has indicated that
it would have great difficulty about
agreeing that a person in the position of
Jassiem could legitimately be regarded as
a “sympathiser” with Ahmadis.
D.P. de VILLIERS Q.C.
CHAMBERS
15th December 1995 |
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