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4. Our reply to Professor Khurshid Ahmad’s report

In the Pakistani magazine Tarjuman-ul-Qur’an for January 1996 (on pages 57 to 59), a news report was published entitled South Africa: Court judgment about Qadianism, by Professor Khurshid Ahmad and Dr. Syed Habib-ul-Haq Nadawi, commenting on the appeal judgment of the South Africa court case 201/92, dated 26 September 1995. This report is full of blatant misrepresentations.

To read this news report in English translation with original Urdu, please see this link.

There are two basic misrepresentations in this report. Firstly, this appeal has been considered to be an appeal in an earlier case, which ran from 1982 to 1985, and in this way the details relating to two different cases have been mixed up as if it was the same case. Secondly, the appeal judgment has been misrepresented, so much so that the actual ruling is not even mentioned while what has been described as the outcome was not at all the result. The assertion is entirely and absolutely wrong that the judgment of the court is that “it is the Muslims themselves and their highest religious and legal bodies who are authorised to determine who is a Muslim and who is not a Muslim, and that a secular government must accept what the Muslims themselves decide.”

The real author of this article appears to be Prof. Khurshid Ahmad himself because at one point, after mentioning Dr. Syed Habib-ul-Haq Nadawi by name, it is said: “I myself had the occasion to participate in court twice in connection with this case”. This shows that the writer is Prof. Khurshid Ahmad.

Bearing in mind that Prof. Khurshid Ahmad, as he here says, has had some personal association with this case, we are even more astonished as to why, then, his article can be so seriously misleading! It cannot be because he is unaware of the facts, and we are thus forced to conclude that the misrepresentation and false propaganda in his article is deliberate and calculated.

Confusing this case with the 1982-85 case

Prof. Khurshid Ahmad writes:

“In South Africa the Ahmadis challenged the Muslims, and went to the court in Cape Town to get their ‘right’ accepted that they are ‘Muslims’, and to get their ‘right’ of worship in Muslim mosques and of burial in Muslim cemeteries. This suit was filed in 1982 and its final judgment has now been given in August 1995.”

The fact is that the case which was filed in 1982, by Lahore Ahmadis against the MJC and two other defendants, came to an end in November 1985 with the judgment of Mr. Justice Williamson. The court found that the plaintiff, Mr. Ismail Peck, a member of the Ahmadiyya Anjuman Ishaat Islam Lahore in Cape Town, is a Muslim, and on that basis it issued orders which prohibit the defendants from publishing defamatory matter against Ahmadis describing them as unbelievers and apostates (kafir and murtadd), etc., and which declare the plaintiff to be entitled to the same rights as Muslims generally as regards entry to a mosque and burial in a cemetery. The MJC and the other defendants, against whom this judgment was given, did not appeal and therefore this case came to an end in November 1985.

The real case and the appeal judgment

The case in which the appeal judgment was given recently in September 1995 is a different case which began in 1986. (In the original Urdu article, at this point I gave an outline of the Jassiem case. The plaintiff in this case was Sheikh Jassiem, a Sunni imam, and the defendants were the MJC (as in the previous case) and its President. The original trial court found against both the defendants in its judgment in 1990. Both the defendants appealed. The appeal judgment has upheld that Sheikh Jassiem was indeed defamed, and therefore the appeal of the President of the MJC, Sheikh Nazim, failed and he was found to have committed defamation. As regards the appeal of the MJC, all their grounds were rejected by the appeal court, but one plea was accepted, namely, that it could not be proved that the MJC had authorised its President to brand Sheikh Jassiem as unbeliever and apostate, and that therefore Sheikh Nazim had acted in his personal capacity, and not in his official capacity as President of the MJC. So the appeal by the MJC was granted, and the appeal court overturned the finding of the trial court in respect of the MJC.

Examples of confusion

By confusing this case with the 1982-1985 case, Prof. Khurshid Ahmad has made several mis-statements. For example, he writes:

“The famous advocate of South Africa, Ismail Mohammad, and attorney Ahmad Chohan, pursued the case most ably. Dr. Mahmud Ahmad Ghazi of the International Islamic University of Pakistan, as a witness and scholarly advisor, presented the Muslim view-point before the court for more than two weeks.”

Ismail Mohammad was the MJC’s advocate in the 1982-85 case, while Dr. Ghazi was a witness in the Jassiem case. Prof. Khurshid Ahmad was himself present in the court-room during the Jassiem case. Could he not see that the MJC’s advocate was not Ismail Mohammad, a man of Indian ethnicity, but a white gentleman of the Jewish faith by the name of Hoberman?

We should explain here that we have a particular reason for mentioning the fact that the MJC’s advocate was a Jew; otherwise, we would consider it to be inappropriate, tasteless and irrelevant to bring up this point. That reason is that when the Ahmadis won the 1982-85 case, the Pakistani religious and legal advisors to the MJC made statements in newspapers that the Ahmadis had won because the judge was a Jew and Ahmadis are agents of Zionism. Their reference was to one Justice Berman who was the judge at an intermediate stage of that case. So we now ask Prof. Khurshid Ahmad, Dr. Ghazi and their supporters if they are prepared to announce that they presented their case in court with the help of a Jewish advocate, and what conclusion can we draw about them from this fact?

Mis-statements about the appeal judgment

Referring to the judgments in the 1982-85 case, Prof. Khurshid Ahmad writes:

“The MJC filed an appeal in the highest court of the land against the judgments of Berman and Williamson. This case, Case No. 201/1992, was put to five judges of the appeal court, … On 26 September 1995 the judges issued their judgment consisting of 171 pages.”

As already explained, the appeal was not against the judgments of Berman and Williamson, respectively of 1984 and 1985, but against the judgment of 1990 in the Jassiem case. When Prof. Khurshid Ahmad was present in court during the hearings of the Jassiem case in 1987, did he not know what the case was about, for which he had specially travelled thousands of miles from Pakistan? If he has forgotten, then he should have glanced at just the first two pages of the appeal judgment where it is explained that the appeal is against the upholding of the defamation claims against Sheikh Nazim and the MJC in the lower court.

Regarding the appeal judgment, Prof. Khurshid Ahmad writes:

“On 26 September 1995 the judges issued their judgment consisting of 171 pages. On pages 154 and 155, rejecting the judgments of the previous judges, they declared in clear words that:

Matters relating to the religious beliefs of any community can only be decided by the ulama and theological experts of that community…. Only they have the right to give a decision as to whose beliefs are in accordance with the accepted beliefs of the faith and whose beliefs are opposed to them. This right cannot be taken away by any court or group… . The ulama also have the right to excommunicate any person from the religion.”

If this really had been the judgment of the appeal court, then how could that court uphold the lower court’s finding that Sheikh Nazim had defamed Sheikh Jassiem by branding him as an apostate? On the real point to be decided, that of whether defamation had taken place, the appeal court clearly accepted the judgment of the lower court.

Then we again ask, if the appeal judgment was really as stated above by Prof. Khurshid Ahmad, how was it that the court accepted the MJC’s appeal on the ground that there was no evidence that Nazim had acted under the authority of the MJC in branding Jassiem as unbeliever and apostate? Had the court agreed, as Prof. Khurshid Ahmad claims, that “the ulama also have the right to excommunicate any person from the religion”, then the MJC’s defence that it had not authorised Nazim to brand Jassiem as apostate, which was its only successful defence in court, makes no sense whatsoever.

Analysis of the quotation from the judgment

We now turn to the words of the appeal judgment referred to by Prof. Khurshid Ahmad, namely, pages 154-155, from which he draws the conclusion that previous judgments have been over-turned and the right of the ulama has been accepted that they may declare any person as apostate and excluded from Islam.

At the very beginning the appeal judgment outlines the 1982-85 case, and referring to the judgment of Berman of 1984 that a secular court is capable of determining whether Ahmadis are Muslim or not, it says:

“As will become apparent later in this judgment it is not necessary for the purposes of this appeal for this Court to pronounce upon the acceptability or practibility of the above point of view.” (p. 31)

So the appeal court says that it is not pronouncing any judgment upon Berman’s ruling, while the entire basis of the propaganda in Prof. K. Ahmad’s article is that the appeal court has over-turned his ruling.

If we look at the context of the words on pages 154-155 of the appeal judgment, which have been mis-stated by Prof. Khurshid, we find that the issue under discussion is that in their evidence to the trial court both Dr. Ghazi from Pakistan and Sheikh Nazim himself had claimed that there are certain “procedures” which must be followed before a man can be declared as an apostate. The appeal judgment says the following of this:

“If, as was contended on behalf of the appellants, 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.” (pages 153-154)

What follows in the judgment is based on the assumption that this contention of the appellants is true. But the court has said clearly here that it is not expressing any opinion as to whether this contention is true or not. It is in this light that the judgment then goes on to say:

“One cannot deny the right to 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 appearance 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.” (pages 154-155)

This is the passage which Prof. Khurshid Ahmad is misrepresenting in his propaganda to claim that the court has recognised the right of the ulama to declare any person as murtadd (apostate), and ruled that any court of secular law must accept their verdict.

But this view neither forms a part of the ruling of the court on the issues to be decided, nor has the court acted on it in reaching its judgment. In a judgment such as this, many general issues are mentioned which arise during the course of the trial. But the court only rules on those questions which are necessary for it to give the judgment on the particular case before it, leaving others undecided.

The conclusion which Prof. Khurshid Ahmad and his co-thinkers seek to derive from this passage is also proved false by what the judgment then continues to say:

“Whether or not a failure or refusal by Jassiem, for those reasons, to denounce Ahmadis would have justified branding him a “sympathiser” is a question which we are not called upon to decide in the light of our conclusions on other aspects of the case, … However, we may say that it is far from clear to us that it would have justified so branding him.

“Suffice it to say that it is common cause that the procedural requirements of Islamic faith in dealing with a person suspected of being an Ahmadi or an Ahmadi sympathiser had not been followed in respect of Jassiem prior to 20 December 1985.”

The “procedures” which our opponents had themselves claimed as being required by Islam to be followed, in order to determine whether someone has become an apostate, had not been applied by them in case of Jassiem when he was branded apostate by Nazim. The court, on this basis alone, ruled in favour of Jassiem’s claim of defamation.

Consequently, as stated in the judgment above, the court did not have to decide the question whether the religious reasons for declaring Jassiem an apostate were justified or not, because the case was settled in Jassiem’s favour from its other aspects. But the court still gives its view that “it is far from clear to us” that Jassiem’s refusal to denounce Ahmadis justified branding him an apostate. This flatly contradicts Prof. Khurshid Ahmad’s misinterpretation that the court has ruled that if the ulama declare a person as an apostate then their decision cannot be questioned or challenged by a court.

False evidence and use of coercion

Immediately after the above passage in the judgment, it refers to what it calls:

“Nazim’s false evidence”

and on page 160 the judgment uses the following words:

“Nazim’s false evidence at the trial in an apparent attempt to bring his conduct in line with Islamic procedures …”

Thus the party supported by Prof. Khurshid Ahmad is condemned in the appeal judgment for giving “false evidence” in the trial.

Elsewhere it is written in the judgment:

“Several times during his evidence Jassiem claimed that he had not produced further witnesses because people were afraid to speak on his behalf. Having regard to the MJC’s boasted insistence on guilt by association, … the MJC’s insistence on obedience, and many other points in the record, this claim seems to be well founded. And it seems to be confirmed, not rebutted, by the two witnesses that Nazim did succeed in calling. Both give the impression of men giving evidence under orders, but reluctant to visit the further reaches of perjury.” (pages 112-113)

This, then, is the description given in the judgment regarding the party in the case with whom Prof. Khurshid Ahmad is siding: that they used fear tactics to prevent Muslims from giving evidence against them, that they coerced unwilling Muslims into giving evidence for them, and that the testimony given by their witnesses was bordering on perjury! The next sentence in the judgment reads:

“What is striking is not the paucity of witnesses on Jassiem’s side, but the failure of the defendants to call even one out of the hundreds present [at the wedding occasion where Nazim branded Jassiem as apostate -- Editor] to give Nazim anything like full support.”

Now contrast this with what Prof. Khurshid Ahmad writes:

“All the Muslim organizations of South Africa, ignoring any differences between them, united as one and with one voice presented the view-point of the Muslims in this case…”

Is this statement not laughable in view of what the appeal judgment says? In fact, all his statements presenting the Muslim public as united behind the ulama against the Ahmadis, such as “the Muslims” rejected the earlier court rulings in favour of Ahmadis, and

“…every Muslim was willing to bear the penalty and go to prison for breaching the order of the court…”

are just false propaganda, as shown by the comments of this appeal judgment. The fact is that in Cape Town, as elsewhere in Muslim communities around the world, the ordinary Muslims are coerced into supporting the organisations of the ulama by fear, intimidation and threats of ostracisation.

Prof. Khurshid Ahmad’s role in the case

While Prof. Khurshid Ahmad writes that “I myself had the occasion to participate in court twice in connection with this case”, he does not give any details of his participation. Therefore we apprise our readers of some interesting events in this connection.

During the hearings of this case, from July to December 1987, first Maulana Hafiz Sher Mohammad had testified on behalf of Jassiem and then Dr. Mahmud Ahmad Ghazi had testified for the defendants. The defendants then notified that they intended to call Prof. Khurshid Ahmad (who, I believe, was present there at the time) to testify for them, who would put to the court rulings from all over the Islamic world showing that all Muslims have declared Ahmadis as kafir. However, the court was further told that as the good Professor required time to compile his testimony, the hearings should be postponed till the new year. Thus the hearings were postponed by the court till February 1988. When the case resumed, Prof. Khurshid Ahmad was nowhere to be seen.

He should have explained why he avoided appearing in the witness-box. We would have been happy to publish his version of the above events, just as we have published above his article in full from Tarjuman-ul-Qur’an.

Final word

In the end we reiterate that Prof. Khurshid Ahmad is absolutely wrong in his claims that this appeal judgment has over-turned previous judgments according to which the Lahore Ahmadis are Muslims, and that it has ruled that courts of law must accept the decisions of the ulama as to who is and who is not a Muslim.

If Prof. Khurshid Ahmad is so sure of his conclusions, then we ask him to publish a statement under oath to the effect that he has read the appeal judgment and found that it corroborates his article in Tarjuman-ul-Qur’an; and in particular that it supports his claim that this judgment is in the case which was filed in 1982 by the Ahmadis, and that the appeal by the MJC, with which this judgment deals, was against the judgments of Berman and Williamson.

[Note by Dr Zahid Aziz: In May 1996 I sent the original Urdu version of my above reply to the editor of Tarjuman-ul-Qur’an in Lahore, Pakistan, with a covering letter. I sent two copies of my reply: one for the magazine and the other I requested them to forward to Prof. Khurshid Ahmad.]