6. Further clarification
Secular
courts do provide protection to victims of ulama’s declarations
of apostasy and kufr
A particular point
required further elucidation, i.e. how the courts of secular law deal
with religious issues. Both in this case and the previous case in Cape
Town, the courts have always worked on the principle that as regards
a matter purely of theological belief (of any religion) the court
cannot make a judgment as to the correctness of that belief. They avoid,
so far as possible, giving a decision on matters purely of religious
belief.
Therefore, if the ulama hold the belief that a certain person
is not a Muslim, they are entitled to believe that, and a court cannot
rule it to be a wrong belief or a right belief. It is this point which
is being misrepresented by the anti-Ahmadiyya spokesmen as meaning that
the ulama are entitled to determine who is or is not a Muslim,
and the courts must accept their decision and cannot provide legal redress
to a person they condemn as kafir.
It may be noted that the above principle applied by the courts also
means that anyone declared apostate by the ulama is entitled
to call himself a Muslim if that is what he believes, and the court
cannot rule that his belief that he is a Muslim is right or wrong.
It is when a belief is used as the basis for injuring a party and depriving
it of the rights which it has under the law of the country, that
that party can seek redress from the courts and get its rights. Therefore
if the ulama, acting upon their belief, call a man as kafir and this causes him to be defamed and lose his respect in the community,
then he can make a claim of defamation against the ulama in the
courts. The courts are then entitled to rule whether he was defamed
or not.
This is exactly what happened in this case. Sheikh Jassiem was applied
a certain epithet by Sheikh Nazim, President of the organisation of
the ulama, in a Muslim gathering, which amounted to calling him kafir and murtadd in the eyes of that gathering. The basis
for doing this was that Jassiem regarded Ahmadis as Muslims. Jassiem
took Nazim to court for defaming him, and the lower trial court as well
as the appeal court ruled in favour of Jassiem that he was defamed.
These judgments have ruled it as unlawful for the ulama to take those actions against Ahmadis or Muslim friends of Ahmadis (as
Jassiem was), which they used to do, such as defame them in the eyes
of the Muslim public by calling them various names, impose boycotts
against them, stop them from building mosques, prevent their burial
in Muslim cemeteries, etc.
Prof. Khurshid Ahmad is absolutely wrong in inferring that Ahmadis
“cannot now show their face in any court in the world. No secular
court is competent to give them protection” and that Ahmadis “who
used to try to get the support of secular courts to safeguard their
rights, have now been deprived of this in the light of this decisive
precedent”.
Ahmadis in South Africa have exactly the same rights in law to call
themselves Muslims, to follow the Islamic faith, and to perform their
Muslim duties, as do the rest of the Muslims in South Africa.
To summarise, the courts in South Africa cannot rule on matters purely
of belief nor compel the ulama to believe that Ahmadis are Muslims,
but the courts can stop the ulama from instigating any action
whatsoever against Ahmadis, verbal or physical, which deprives Ahmadis
of those rights which the rest of the Muslims enjoy. |
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