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South Africa court case (1982-1985)

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History of the Case

compiled by Dr. Zahid Aziz


"Surely We have granted you a clear victory."
(The Holy Quran, 48:1)

  1. Start of legal action.
  2. Defendants' response --- their inability to define Muslim
  3. Defendants' reasons for calling Ahmadis as kafir
  4. Defendants' exception against First plaintiff succeeds
  5. More pre-trial exchanges
  6. Defendants' Special Plea --- a new ploy
  7. Defendants fail in filing new exception
  8. Preparation for trial --- Top Pakistani experts come to defendants' aid
  9. 1984 hearing --- Defendants submit preliminary questions
  10. The final phase --- November 1985
  11. The trial --- dramatic opening
  12. Ahmadis present full case --- win judgment

The Aftermath

  1. Pakistani witnesses make misleading statements
  2. Our reply
  3. Muslim cases in non-Muslim courts
  4. "Non-Muslim can be judge of Shariat court" --- Dr Israr Ahmad
  5. Verdict of a Muslim court
  6. WHICH PARTY ACCEPTS ALLAH'S JUDGMENT?

There has been a branch of the Lahore Ahmadiyya Movement in Cape Town since the late 1950s. The members of the association faced hostility from the local 'professional' Muslim religious leaders, as has been the situation in other parts of the world. This opposition entered a new phase in 1965 when so-called fatwas or 'decrees' were first issued to the effect that Ahmadis were kafirs and outside the fold of Islam. After that, there was constant malicious propaganda against the Ahmadiyya Movement in books, pamphlets and newspapers published by the local Muslim religious bodies. The Movement and its Founder were portrayed in a grossly distorted form, and viciously ridiculed in literature of the worst possible taste. Cartoon caricatures of the Founder were frequently published to revile and mock him. Attempts were made to incite the Muslim public to exclude Ahmadis from their midst and impose a social boycott against them.

In May 1982 the Lahore Ahmadiyya association — organised under the name Ahmadiyya Anjuman Isha`at Islam Lahore (South Africa) — applied for a licence, as required by law, to allow it to make a public collection of funds for building an Islamic centre, and in accordance with due procedure the Anjuman gave notice of the application in a newspaper. At this, the Muslim Judicial Council (MJC) of Cape Town, an association of religious leaders which claims to be the authoritative Muslim theological body of the area, issued an announcement styled "Urgent and Important Notice" which stated:

"The Muslim Judicial Council hereby state categorically that whatever centre the Ahmediahs are going to establish can never be an Islamic centre, neither any type of Islamic institution or Mosque because these establishments or Mosques cannot be established by Kafirs.

"The Muslim Judicial Council will lodge strong objections to the Department concerned objecting to the Ahmediahs collection of Funds in the name of Islam and call upon the Muslims to stand up to defend Islam."

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Start of legal action

On top of the incessant humiliation, propaganda and hostility faced by Ahmadis, this intervention by the MJC was the final step which left them with no choice but to seek legal redress for the wrongs they had long been suffering. The Anjuman began legal action against the MJC and two other bodies. The summons (notice of legal action), with the details of the claim annexed thereto, were issued in October 1982. Footnote 1

There were two plaintiffs: first, the Ahmadiyya Anjuman Isha`at Islam Lahore (South Africa), and second, Mr Ismail Peck, a member of the Anjuman. The first and chief defendant was the Muslim Judicial Council, the other two being the trustees of a mosque and the trustees of a Muslim cemetery, full details of which are given in the judgment.

In the particulars of claim, plaintiffs stated that Islam is based on certain fundamental principles — the well-known five pillars — and that they accept these tenets, and are Muslims. The grievance was that the first defendant was publishing and propagating false and defamatory allegations to the effect that Ahmadis are kafir and apostate (murtadd), and that they reject the finality of prophethood etc. The first defendant was inciting the Muslim public to hatred, violence and social ostracism against the plaintiffs. The complaint against the second defendant was that they were refusing the Ahmadis their right to use the mosque, of which the former were trustees; and similarly against the third defendant that they were denying Ahmadis burial rights in the cemetery, of which the former were trustees. The Ahmadis thus sought against the defendants the court orders listed in the judgment, to restrain the defendants from these actions. The first order, sought jointly against all the defendants, was the basis for the other restraining orders, namely, "an order declaring that members of the First Plaintiff are Muslims and as such are entitled to all such rights and privileges as pertain to Muslims".

The seeking of this declaratory order has been misrepresented by our opponents as Ahmadis asking a non-Muslim court to determine that they are Muslims. The fact is that the Ahmadis went to court strongly claiming that they were Muslims, with the heart-felt grievance that certain Muslim religious bodies were defaming them by calling them kafir, and were denying them the rights due to them as Muslims. And throughout the protracted legal battle, the plaintiffs constantly let it be known to the defendants that if they agree to desist from their campaign of vilification and from their refusal to let Ahmadis have their due Muslim rights, the legal action would be discontinued.

We stress our standpoint here. Ahmadis believe that one should try to be a Muslim in God's sight, and that no one can become a Muslim or kafir in God's judgment just because a state authority or a theological institute or a religious leader has pronounced him to be so. From this angle, Ahmadis are not in the least perturbed if some so-called Islamic body or government does not regard them as Muslim, nor do they require anyone's certification of being Muslims. The reason they went to court was to stop the defendants from spreading false allegations, and misleading the innocent public, about them.

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Defendants' response — their inability to define Muslim

In response to the summons, the defendants filed a notice in court of intention to defend, and each of the three bodies involved passed resolutions to this effect. On 17 March 1983 the defendants filed their plea in answer to the claim of the second plaintiff (the individual Mr Peck), but filed a notice of exception regarding the claim of the first plaintiff, the Anjuman. In the exception they contested the entitlement of the Anjuman to institute action on behalf of its members, arguing that it was not the Anjuman but its members who were claimed to have suffered the wrongs. In their plea to the case of the second plaintiff, replying to the Ahmadis' basic point that Islam is based on the well-known five pillars the acceptance of which makes a person a Muslim, the defendants contended:

"Defendants deny that the doctrines and principles set out in the Claim alone constitute the fundamental doctrines and principles of Islam ... Defendants plead that it is a further fundamental doctrine and principle upon which Islam is founded that the Prophet Mahomed [defendants' spelling] is the last and final prophet."
And they considered the second plaintiff to be a non-Muslim because he:
"... does not accept that the Prophet Mahomed is the last and final prophet; and recognises as a leader and reformer a person, namely Mirza Ghulam Ahmad, who does not acknowledge the Prophet Mahomed to be the last and final Prophet of Allah ... "
In response to this plea, the second plaintiff filed a "request for further particulars to Defendants' Plea", in which a question was put that arises as a direct and natural implication of their stand given above. They were asked to state whether they rely on any further fundamental doctrines or principles, in addition to the finality of prophethood, and if so, to furnish full particulars of the same. The fact is that if one starts "extending" the basic foundations of Islam, as taught by the Holy Prophet Muhammad himself and as recognised throughout the history of Islam, there is then no limit to what might be added under the name "fundamental", nor would there be agreement on what to add. The defendants were unable to stand their original ground, and on 25 April 1983 they filed a notice to amend their first plea, the first of many amendments they were to make during the whole course of the litigation. They unashamedly amended their stand on the fundamentals of Islam as follows:
"While Defendants admit that the five doctrines and principles listed by Plaintiffs may be described as fundamental to Islam they do not thereby admit ... that such doctrines and principles are the only ones which are of importance in defining the faith or that adherence to such doctrines and principles alone constitutes a sufficient basis to qualify a person to be called a Muslim. ... "

"Acceptance of such principles alone does not constitute the touchstone by which a person is properly identified as a Muslim. There are many other principles and beliefs, acceptance of which is essential to the true Muslim and failure to accept which constitutes apostasy."

They now restrict the word "fundamental" to the five pillars, and no longer refer to "further fundamentals", but to "other principles and beliefs". Moreover, they are confusing the real issue by using expressions such as "properly identified as a Muslim" and "essential to the true Muslim". The question is not what is required of a true and proper Muslim (nor can anyone be adjudged as such by human authority). The issue is: Who can be called a Muslim for purposes of civil law and civil rights, such as the right to worship in a public mosque? If the defendants bring in the issue of "true Muslim", the question arises whether all those persons whom they allow into the mosques or permit to be buried in the cemeteries, which are under their charge, have been determined by them to be true Muslims, and if so, what criterion did they use!

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Defendants' reasons for calling Ahmadis as kafir

In this amendment, they pleaded the following grounds for regarding Lahore Ahmadis as kafir:

"Plaintiffs fail to accept the following principles and beliefs which are essential to adherence to Islam and are therefore not Muslims:

(i) The finality of prophethood of the Prophet Muhammad, in that they accept as a leader and reformer, alternatively do not repudiate the teachings of, one Mirza Ghulam Ahmed, who claimed to be a prophet and/or the Messiah and/or one who had received revelation from God.
(ii) The apostasy of the said Mirza Ghulam Ahmed.
(iii) The virgin birth and immaculate conception of Jesus Christ.
(iv) Jihad or religious war against unbelievers in Islam."

The change here, too, from the first plea can be clearly seen. They have widened their definition of who can be said to deny the finality of prophethood, going so far as to include even those who merely "do not repudiate the teachings of Mirza Ghulam Ahmed". Moreover, by using the term "and/or" above, they are having to cast a very wide net in order to catch the Lahore Ahmadis. They are actually saying that even if Hazrat Mirza Ghulam Ahmad did not claim to be a prophet, a person who accepts him as a non-prophet receiving revelation from God, or even a person who does not "repudiate" him, is denying the finality of prophethood! This all-embracing statement has had to be made because they lack any specific and solid allegations which could be directed against Lahore Ahmadis.

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Defendants' exception against First plaintiff succeeds

The exception filed by the defendants mentioned above, seeking to disqualify the first plaintiff — the Anjuman — from pursuing the legal action, was further amended by them on 24 May and 6 June 1983. They gave further reasons as to why the Anjuman could not sue, such as "First Plaintiff as an association is not capable of being defamed". Later events showed clearly that the defendants adopted these tactics in an attempt to have the case confined to legal technicalities only, so that they could avoid the real issue of proving from Islamic teachings their contention that Ahmadis are not Muslims.

The case for the exception was heard on 13 June 1983, and judgment given in favour of the defendants by Justices Tebbutt and Van Heerden. The exception was upheld on grounds such as: the wrongs of which Ahmadis were complaining were not suffered by them as members of the Anjuman, but rather because the defendants considered them as non-Muslims, and the Anjuman was not alleging that it had suffered any wrong, and was therefore seeking relief not for itself but for its members. The Anjuman thus having been disentitled to pursue the case, the litigation was continued on behalf of the second plaintiff, Mr Peck.

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More pre-trial exchanges

Returning to the normal course of the case, there were a number of "requests for further particulars" and replies thereto between the plaintiff and the defendants in the period June to August 1983. We would note only one point from these exchanges. The plaintiff, in a request for particulars dated 15 June, asked the defendants for the following:

"State whether or not there are doctrines, principles or beliefs (other than those listed by the plaintiff) which are requisite to qualify a person as a Muslim. If yes, give particulars of all such doctrines and principles."
The defendants' reply, of 7 July, was as follows:
"Defendants deny that Second Plaintiff requires the Particulars requested for the purposes of pleading. Defendants plead that there are in fact many other doctrines, principles or beliefs inherent in Islam, but aver that the relevant beliefs and principles in Islam which are not accepted by Plaintiffs and accordingly disqualify Plaintiffs from being regarded as Muslims are those set out and described."
This is a plain and clear admission by the defendants that they cannot give any positive definition of a Muslim. This is exactly the position adopted by the Pakistan constitution and law in its declaration of Ahmadis as kafir: no definition is given of what constitutes a Muslim, in the light of which Ahmadis may be said to fall outside this faith; there is simply an invidious statement that whoever holds Ahmadi beliefs is a non-Muslim. The fact is that, besides the simple definition of a Muslim taught by the Holy Prophet Muhammad himself, which has always been relied upon by the Lahore Ahmadiyya Movement, there is no other definition of a Muslim in Islamic teachings nor can one be devised without departing from logic, commonsense, and the religion of Islam.

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Defendants' Special Plea — a new ploy

After all these exchanges of details, the defendants sprang a surprise in December 1983. They filed yet another amendment to their plea, by inserting a "Special Plea", and at the same time gave notice of filing an exception by means of which they raised the points made in their special plea as well as some other points. We quote below at length from this special plea, for the reason that from this stage onwards it remained the crucial part of their pleadings and intended evidence. The following arguments were adduced:

(a) The particulars of Plaintiff's claim involve a decision as to whether Ahmadis are Muslims.

(b) The decision of that issue involves a determination of the doctrinal and religious questions and/or disputes set out in ...

(c) These religious and doctrinal issues and disputes are purely ecclesiastical in nature, and it is not appropriate for a Secular Court to attempt to resolve these questions.

(d) Furthermore these religious and doctrinal issues and disputes have been determined in favour of the contentions of the Defendants by the First Defendant [the Muslim Judicial Council] and by the International bodies of Islamic ecclesiastical opinion to which First Defendant is affiliated namely the following: (i) Darul Uloom of Deoband, India; (ii) Darul Ifta in Riyad; (iii) Al-Azhar in Egypt; and (iv) Jamiatul-Ulama in Karachi, Pakistan.

(e) First Defendant and the said International Bodies referred to are empowered to make decisions of an Islamic ecclesiastical nature, and it is part of their normal functions to make such decisions which are authoritative and binding as far as the Muslim world is concerned in the areas in respect to which they carry on their ecclesiastical judicial functions.

(f) First Defendant and the said Bodies are fully conversant with the doctrinal and religious questions referred to. They are peculiarly and particularly qualified to adjudicate upon such questions and to decide them.

(g) In the premises this honourable Court cannot, alternatively should not, attempt to resolve or adjudicate upon the said doctrinal and religious issues and/or should accept and apply the decisions of the First defendant and the said ecclesiastical bodies...

This was clearly a ploy to prevent the religious arguments being tested by the court, after the defendants, having consulted "certain international experts" (as referred to in their attorney's affidavit quoted further on), realised how weak was their case against the Lahore Ahmadis. The defendants had known from the beginning that this case would involve the court discussing religious and doctrinal issues, but never before did they say that "it is inappropriate for a Secular Court to attempt to resolve these questions", and that the court must accept the decisions of so-called "International bodies of Islamic ecclesiastical opinion". Here 4 such bodies are cited, but in further amendments to their plea they increased this number to 10 and finally to 12. Some of the bodies listed, such as the Islamic Foundation of Leicester, England, and the Islamic Council of Europe, do not even claim to have the "ecclesiastical judicial functions" assigned to them by the defendants; they are publishing, research, or administrative bureaus. Many others, such as Darul-Uloom Deoband, are private theological colleges.

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Defendants fail in filing new exception

At the same time, on 20 December 1983, the defendants raised these and some other points in a 'Notice of Exception' to the plaintiff's claims, pleading for the claims to be set aside. In a further notice of exception, on 1 February 1984, they asked for the second plaintiff himself to be disqualified from pursuing his claim on various technical grounds. However, as the stage to file exceptions had by now passed, because the pleas were at an advanced stage, they had to apply to the court to be allowed to file these exceptions out of time.

The application was heard in March 1984 by Mr Justice Tebbutt. In affidavits submitted by the defendants' attorney, it was explained why the exception was late and why their submission should be granted:

"... it was not appreciated at the time the Plea was drawn just how complex and difficult the doctrinal issues in this case were. This only became apparent when a detailed consultation was recently held by me with certain international experts ... I personally travelled to Pakistan, India and Saudi Arabia where I consulted a number of very eminent experts on Islamic law, Islamic theology, Islamic history and dogma, and on the movement of which the Ahmadis are followers. ... The detailed consultations held with these experts disclosed that the evidence which will have to be adduced and assessed in order to determine the main issues will be of an extremely complex, protracted and technical nature. ... Having had these consultations I now understand the full import of: (a) the enormously complex preparation involved ... (b) the trial on the issues arising will involve many weeks of extremely complex expert testimony and analyses on very technical questions. ... If the Special Plea is heard separately and upheld, it will be unnecessary to lead all this complex and voluminous evidence and there will be a dramatic saving in costs and in the time which will otherwise be consumed in the Courts."
The court, however, dismissed this application with costs in judgment given on 16 May 1984. The judge, referring to the defendants' explanation for being out of time, wrote:
"This statement is vague in the extreme. It says that the fact that 'some things' became manifest after consulting certain experts is 'one' of the reasons for not excepting timeously but no other reason or reasons are given ... In any event defendants, in order to be able to plead, must have known and appreciated what the issues were that are involved in this case and what their answers were to the allegations made by the plaintiffs. A perusal of the defendants' request for particulars to the particulars of claim, for further and better particulars thereto, and of the replies to such requests [by plaintiffs] makes that clear."
In their submissions quoted above, the defendants are really admitting that it is too difficult to prove that Ahmadis are not Muslims. It is then curious that the same international experts, when writing books or making speeches for the ordinary Muslim public, are able to put forward dozens of "obvious" reasons for calling Ahmadis as kafir, and mosque preachers of quite average intelligence and education are able to understand these reasons and communicate the same to the masses. It appears that previously the defendants must have been under the impression, created by the propaganda literature and the reputation of these "international experts", that it is all too easy to show that Ahmadis are kafir. However, in their "detailed consultations" with these experts, what they actually realised was that, certainly in regard to the Lahore Ahmadis, it is almost impossible to make out a religious case against them which can pass the scrutiny of an impartial body like an independent court of law. Therefore they tried to hide behind the excuse of "extremely complex, protracted and technical evidence" which can only be assessed by their "peculiarly and particularly qualified ecclesiastical bodies".

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Preparation for trial — Top Pakistani experts come to defendants' aid

The defendants' application having been rejected, the litigation continued its normal course. The hearing was set down for 1 November 1984. In accordance with the rules of court, the defendants gave notice on 1 October of the expert witnesses they were intending to call in the trial. The list consisted of six Pakistani legal and theological experts and nine local religious leaders. The Pakistani witnesses listed are highly prominent public figures in Pakistan, who are indeed leading international experts in the murky field of declaring Ahmadis as kafir. Certainly the defendants could not have found in the whole world any other witnesses so well-qualified for this purpose or of such a high status, as these dignitaries. If they cannot prove that Ahmadis are kafir, then no one else can. We quote below the names of these six along with some of their qualifications, as given in the defendants' notice to court:

1. Moulana Muhammad Zafar Ahmed Ansari: Former member of the National Assembly of Pakistan. Founder member of the Constitutional Council of the Muslim World League. ... Member of the Council of Islamic Ideology ... a body established under the Constitution of Pakistan. Chairman of the Constitution Commission appointed by the President of Pakistan to advise the President on the future constitutional development of Pakistan. ...

2. Mr Justice (Retired) Mohammad Afzal Cheema: ... Member of the National Assembly of Pakistan 1962–1965 ... Former acting speaker of the National Assembly 1962–1965. Acting President of the Islamic Republic of Pakistan, May 1963. Judge of the West Pakistan and Lahore High Courts. Federal Law Secretary of the Government of Pakistan, appointed 14 May 1973. Elevated as a Judge of the Supreme Court of Pakistan, October 1974 ... Current member of the Constitution Commission appointed by the President of Pakistan. ...

3. Maulana Justice Muhammad Taqi Usmani: ... Member of the Constitution Commission established by the President of Pakistan. ... Presently Judge of the Supreme Court of Pakistan (Shariat Bench). ...

4. Professor Khurshid Ahmad: Former Minister of Planning and Statistics in the Federal Cabinet of Pakistan. Former Deputy Chairman of the Planning Commission of Pakistan. Former Director-General and present Chairman of the Islamic Foundation, Leicester, United Kingdom. ...

5. Dr Sayed Riazul Hasan Gilani: Senior Lecturer higher Islamic Law, Punjab University. Senior Advisor High Court and Supreme Court of Pakistan. Standing Counsel of the Government of Pakistan in the Federal Shariat Court and in the Shariat Appeal Bench of the Supreme Court. ...

6. Professor Mehmood Ahmad Ghazi: Associate professor, Islamic Research Institute, Islamabad, Pakistan. ... Juris consultant of the Federal Shariat Court. Associate member of the Constitution Commission appointed by the President of Pakistan.

We have reproduced the above details from the defendants' official notice to show that in this court case the Lahore Ahmadis were facing, not just some local religious leaders of Cape Town who may be said to lack expertise, but really the topmost grade of opposition to the Ahmadiyya Movement in the world. Besides being opponents of Ahmadis, these dignitaries hold very high judicial positions in their country, some higher than even the Cape Town supreme court judges who were hearing the case! While these witnesses for the defence were themselves supreme court judges or greater, the witnesses for the Ahmadis had never even testified in a court of law before! It was truly a David against Goliath combat.

The defendants filed further amendments to their plea on 2nd and 5th October 1984, adding the allegations that Ahmadis are instructed by their Founder to have "no religiously acceptable association with Muslims" and "to create for themselves a separate religion and a separate religious existence". On this basis they pleaded that the plaintiff's action was "of an academic nature in that the plaintiff cannot and will not seek to participate in the religious organisation and institutions led by the Defendants" and "this honourable court should refuse to enter into a protracted and complicated dispute of an academic nature". We say that Ahmadis had taken the legal action to gain the right to use the mosque and cemetery. That they may not join the defendants in religious services does not make the Ahmadis' claim merely academic, because they can still use these facilities which are there for the benefit of all Muslims. In fact, the only reason Ahmadis would not join in religious services with the defendants is the latter's own action in condemning them as kafir. If they announce that they consider Ahmadis and their Founder Hazrat Mirza Ghulam Ahmad to be Muslims, our members would be happy to say prayers behind them.

It can be seen that the defendants were all the time trying desparately to think of reasons with which they could persuade the court not to admit the religious evidence on the issue of whether Ahmadis are Muslims or not. And as they thought of one reason after another, no matter how implausible or cynical, so they gave notice of further amendments to their original plea.

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1984 hearing — Defendants submit preliminary questions

The final consolidated plea by the defendants, incorporating the various arguments referred to in the foregoing account of their pleas and amendments, was filed on 29 October 1984. On the same day, they gave notice in terms of a certain rule of court that, at the start of the hearing, they intended to apply for certain questions "to be determined in limine and separately from the merits of this action, and for all proceedings in the action to be stayed until the said questions have been disposed of". There were five such questions, the first three contesting, on the basis of various technical grounds, the entitlement of the second plaintiff to approach the court for the relief that he sought. The other two questions were both "whether or not the Court should decline to hear the merits of the dispute as to whether Ahmadis are Muslims or not", in each question a different ground being advanced to support the contention. Both these grounds have been mentioned above. The first was that a secular court could not adjudicate on religious issues, and that it should accept the decisions of the first defendant and the "international ecclesiastical bodies". The second ground was that the case was "academic" and "not bone fide with the object of securing and enforcing a legal right but ... abuse of the process of court in order to obtain an ideological or religious advantage which falls outside the legitimate purposes for which the process of the court is designed".

The hearing opened on 6 November 1984 in the court of Mr Justice Berman. It lasted three days and was confined to legal arguments on the preliminary questions raised by the defence. The Pakistani expert witnesses to be called by the defendants, including the highly placed Justice Muhammad Afzal Cheema, were in Cape Town for the trial. At the end of the hearing, judgment was reserved. It was some months later, on 24 July 1985, that judgment was delivered. The contentions of the defendants were rejected, and all the questions were answered in favour of the plaintiff. An extract from the judgment of Mr Justice Berman is quoted in the final judgment of the case, reproduced in Part II of this book, to which the reader is referred for the grounds on which the defendants' arguments were rejected.

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The final phase — November 1985

The date 5 November 1985 was now set for the trial to resume, and for the plaintiff and the defendants to present the religious case on the issue of whether Ahmadis are Muslims or not, as outlined in the respective pleadings of the two parties. In October the defendants' attorneys sent a letter to the plaintiff's attorneys stating clearly that the defence would fight the case in court. The plaintiff made full and intensive preparation for the case during that month. The one religious expert witness to testify for the Ahmadis (as against the 15 whom the defence intended to call) was Maulana Hafiz Sher Mohammad, an accomplished missionary, scholar, lecturer and author who has worked for the Central Ahmadiyya Anjuman Isha`at Islam Lahore since about 1940. He had prepared expert theological and historical testimony on a wide range of vital topics, such as the definition of a Muslim, beliefs of Ahmadis, claims of Hazrat Mirza Ghulam Ahmad, as may be seen from the Evidence part of this book. This material is based on references to a large number of sources, classical and modern, and in order to present it as legal evidence in court he had to have the original sources ready at hand, as any of these could be required for proving authenticity. This was an enormous practical problem, but the Maulana managed to transport with him to Cape Town a veritable library of books and journals, ready for court inspection if required. Plaintiff's counsel, Mr Edwin King SC, assisted by Mr Colin Prest, were briefed by the expert witness over a number of days on all aspects of the religious issues involved and the evidence to be offered. Dr Zahid Aziz, the author of these lines, acted as interpreter between the counsel and the Maulana, translating between Urdu and English.

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The trial — dramatic opening

The hearing opened on the set date in the court of Mr Justice D. M. Williamson. As I was there throughout the trial, the following account is based on my observation. A very large court room with an upper gallery was packed to the brim with members of the Muslim public, predominantly supporters of the defendants who had been instructed by their religious leaders to attend — but for a purpose that only became apparent a little later. As the proceedings opened, the junior counsel for the defence made a lengthy statement. (The senior defence counsel, Ismail Mohammad SC, who had appeared in previous hearings, was absent.)

He said that his clients could not accept "the jurisdiction of this honourable court to determine who is a Muslim". He added that this question had been put to the "Muslim leadership of South Africa", and further that they had "canvassed the opinions of the international Muslim community" on this point. They had, so he alleged, found the "common point of view throughout the Islamic world", which he termed an ijma, that Muslims "cannot accept a determination from a non-Muslim judge as to who is a Muslim". He claimed that the defendants had received messages from "Muslim organisations throughout the world ... representing hundreds of millions of people" expressing this view. The counsel for the defence then announced that "the defendants wish no longer to participate in these proceedings ... they withdraw their defence in this matter".

The defendants, their counsel, and their supporters in the public then all walked out of the court room, never to return. Their supporters had been instructed to attend, just for the purpose of staging the walk-out. For the rest of the trial, while we gave evidence, the local religious leaders had given strict instructions to their followers not to attend the proceedings. Anyone doing so, risked being classed as an Ahmadi or Ahmadi sympathiser by them, and treated accordingly.

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Ahmadis present full case — win judgment

With the withdrawal of the defendants, we were not obliged to present a full case, but had only to give our arguments in brief. However, we decided against this course and presented our case fully, just as it would have been in the presence of the defendants, so that the mass of evidence may be given an open hearing and placed permanently on public record. The plaintiff's counsel opened the case and called Maulana Hafiz Sher Mohammad to the witness stand. (I had been sworn in as his interpreter.) After some general testimony about the religion of Islam, the expert witness went through his prepared evidence as given in Part III of this book. On each topic, a document was submitted to the court as an exhibit, and then the witness introduced the topic and went through the bulk of the document in oral testimony. The court frequently interposed to question the witness on points and conclusions arising out of the evidence.

As may be seen from the record of the evidence, it not only presented the positive aspect of our case, i.e., the definition in Islam of a Muslim, and showing that Ahmadis clearly satisfy that definition, but it also refuted the arguments against the Ahmadis' case as advanced by the defendants in their pleas, which have been referred to in this account. Hafiz Sher Mohammad gave evidence for five and a half days, and throughout he stood in the witness box despite the offer of a seat.

Then the second plaintiff, Mr Ismail Peck, gave evidence on the wrongs he had suffered personally as a result of the defendants' actions. The last witness was the plaintiff's attorney, Mr Rashad Khan, who gave evidence on the question of costs, particularly with regard to the defendants' conduct in concealing their decision to withdraw till the last moment, thereby putting our side to much extra preparation and expense. Finally, plaintiff's senior counsel summarised the whole of the case, religious and legal, a task which took one full day. As the defendants had elected to withdraw from the trial, naturally no case was presented on their behalf.

Judgment was given on Wednesday 20 November 1985. The judge summarised all the religious and legal evidence presented, and on the basis of that he granted the plaintiff all the orders that were sought. So ended the three year long legal battle that had become known as the 'Ahmadiyya Case', with the claim being accepted that a member of the Ahmadiyya Anjuman Isha`at Islam Lahore is a Muslim and entitled to all the rights pertaining to Muslims.

The Aftermath

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Pakistani witnesses make misleading statements

The earlier stages of this case had been given much publicity in Pakistani newspapers (both home and foreign editions) by the Pakistani religious and legal experts who were witnesses for the defendants. This reporting was often erroneous and untrue. At one intermediate stage, when we suffered a reverse, these newspapers reported that Ahmadis had been officially declared kafir in South Africa! At the final stage in 1985 however, the start of the hearings and the defendants' withdrawal were not reported at all. After judgment was given, and announced in other sources, these newspapers had no option but to print the news, and the witnesses had to make press comment. The witnesses published lengthy statements saying that "Qadianis" had been declared Muslim "by a biassed Jewish judge". This was further said to show "the link between Qadianis and Israel"!

Maulana Zafar Ahmad Ansari, witness no.1 of the defendants, was reported as follows in the well-known Urdu daily Jang:

"The former head of the Pakistan Constitution Commission and the leader of the Pakistani delegation which went to South Africa last year in pursuance of the court case between Qadianis and the Muslim Judicial Council there, Maulana Zafar Ahmad Ansari, has said that no non-Muslim court has the right to give a judgment as to whether a person is Muslim or not. He was commenting on the South African Supreme Court judgment according to which Justice Williamson declared Qadianis to be Muslims. Maulana Ansari said that this judge is a Jew, and it was because of his being a Jew that the Muslim Judicial Council boycotted the court proceedings, and had said that no non-Muslim court had the right to decide on religious affairs of the Muslims. He said that, by the unilateral verdict of this Jewish judge, the Qadianis and the Ahmadis would not become Muslims. ... He said that, in view of the special relations of the Qadianis with Israel and the Jews, what else could be expected from this Jewish judge except that he would declare Qadianis to be Muslims."
(Jang, London edition, 2 December 1985, front page)
Sayyid Riaz-ul-Hasan Gilani, another of the expert witnesses who had been in Cape Town for the 1984 hearing, and was now Deputy Attorney-General of the Punjab province, said:
"In October 1984, when the proper hearing of the case began, the judge was changed, and a biassed Jew was appointed judge. At that stage, we said that there should first be a discussion on the scope of authority of the court, because this is a Muslim issue, and a secular or non-Muslim forum does not have the competence and authority to settle it. The Jewish judge did not accept this. At that stage we decided to boycott this Jewish court. The Muslim Judicial Council of Cape Town took the position that, as justice could not be expected from this Jewish judge, they would boycott. On 8 November [1985], the Jewish judge recorded the statement of a Qadiani named Sher Muhammad in which he said: We do not deny the finality of prophethood, we accept the Holy Prophet Muhammad as the Last Prophet. As the evidence of the Qadiani witness was not challenged, nor was it given in the presence of Muslims, hence this judgment has no value."
(Jang, London edition, 4 December 1985, pages 8 and 7; Lahore edition, 1 December 1985, front page)
It should be noted that it was entirely through their own choice and decision that the defendants were not present at the hearing. We had certainly prepared our case to be presented in their presence. They have only themselves to blame for their absence.

There were similar misleading statements from other theologians and lawyers in Pakistan. These press statements also sought to tarnish the judgment by associating it with the apartheid system: "the judgment of the Jewish court of the racialist government of South Africa", "this judgment is as hateful as the racialist government of South Africa" (Jang, Lahore, 1st December 1985).

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OUR REPLY

Firstly, it was only Lahore Ahmadis who were involved in the court case and not Qadianis. The term "Qadiani" refers to a different sect and movement, and its use here is highly misleading. Secondly, we consider the reference to the religion of the judge to be irrelevant, out of order, and distasteful. Moreover, the judge was not a Jew. The learned judge in question is a Christian, but we hasten to repeat that such considerations are irrelevant so far as we are concerned. The learned judge at the 1984 hearing was, we understand, of the Jewish faith. The Pakistani expert witnesses, including the spokesmen referred to above, were present in his court, but their side raised no objection then about the judge being a Jew.

Thirdly, the fact that apartheid exists in South Africa does not mean, by any stretch of the imagination, that all judgments of the courts of law of that country are worthless, or that its judiciary is not reputable. Non-white inhabitants of South Africa generally, and even leading campaigners against apartheid, approach courts there for the redress of their grievances. There are several instances of courts handing down judgments against the state, in favour of opponents of apartheid. The Guardian, the liberal British newspaper which is a staunch opponent of apartheid, comments: "South African judges have never shed their capacity for independent thought and have often delivered rulings against the government" (11 December 1985, editorial). Footnote 2.

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Muslim cases in non-Muslim courts

Lastly, the chief objection repeated again and again is that a non-Muslim, secular court cannot rule on Islamic religious matters, and more particularly that such a court cannot determine who is a Muslim. As regards the issue in general, there have always been legal cases in countries with Muslim minorities, such as India or South Africa, in which the court had to give a judgment based on Islamic teachings. Instances of such cases in South Africa have been referred to in the judgment of our own case given in this book. The Muslim Judicial Council itself has been involved in civil cases against Sunni Muslims, in which the courts had to make determinations according to Islamic law. Footnote 3.

In India, from the days of British rule to the present day, there have been cases all the time in which Christian, Hindu, or other non-Muslim judges, in a secular court, have had to give judgments based on a consideration of Islamic practice and law. Some of these cases, in connection with personal law, involved the specific question of determining whether a certain person was a Muslim or not. In the late nineteenth century, three cases went up from India to the Privy Council in London, the highest court of appeal for India at the time, between the Hanafis and members of the Ahl-i Hadith sect on the issue of whether the former could exclude the latter from attending mosques for prayer because of differences in the manner of offering the service. The court had to rule on the basis of Islamic teachings and practice, and obviously both Muslim parties considered the court capable of doing so. (Incidentally, it was upheld by the courts that a mosque must be open to all Muslims. See Islamic Revival in British India, by Dr Barbara Metcalf, Princeton University Press, U.S.A., pp. 286–287.)

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"Non-Muslim can be judge of Shariat court" — Dr Israr Ahmad

The above was the headline in the Jang, reporting a forum held by this newspaper in 1986, at which the concept of proposed Shariat courts (courts to decide cases according to Islamic law) was discussed. Dr Israr Ahmad, a most famous religious scholar of Pakistan, was asked at the seminar about the qualifications of judges for these courts. He replied:

"A judge could be appointed just as High Court judges are appointed. We do not ask that there should be a separate panel of theologians. ... The real issue is that of setting up a court. We are not even mentioning religious leaders. Good examples of this were given in the speech by Mian Tufail Muhammad [head of Jamaat Islami, the main Islamic political party] at the Shariat convention, namely, that under the British, the courts used to settle many matters of personal law according to Islamic law, and in those courts Hindu judges gave rulings. It makes no difference who the judge is. It is not necessary to have a scholar of religion as judge. ... In this matter we say that a court must be set up, even if the judge is a non-Muslim."
The Jang asked him: "Can a non-Muslim be its judge?" He replied:
"He can be. Justice Cornelius [famous Christian Justice in Pakistan] can determine that a certain thing conforms to Islamic law and another thing does not. Any person who is an expert can decide as to what is right or wrong according to the American constitution, or the British traditions. In the same way, the Quran and Sunna is not a complicated thing. There is the Book of God, and there is the Sunna of the Holy Prophet, and this system has been continuing for thirteen centuries."
(Jang, Rawalpindi edition, magazine section, 14–20 November 1986, page 2)
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Verdict of a Muslim court

If our opponents are unwilling, on grounds of conscience as they contend, to accept the decision of a non-Muslim court, let us refer them to the findings of Muslim judges in a Muslim country. In 1953–4, the Munir Court of Enquiry in Pakistan investigated anti-Ahmadiyya disturbances which had then taken place in the Punjab. The enquiry examined at length the issue of 'Who is a Muslim', in the light of exactly this claim of the Ulama that the Ahmadis are non-Muslim. After questioning all the leading Ulama of Pakistan at the time, who were the predecessors and teachers of the expert witnesses against us in this case, the two eminent judges came to the following conclusions in their report.

  1. "Keeping in view the several definitions of a Muslim given by the Ulama, need we make any comment except that no two learned divines are agreed on this fundamental." (p. 218 of the report)

  2. The report refers in detail to the rulings (fatwa) of the Ulama of various sects condemning other sects as kafir, and to the belief of all of them that apostasy under Islamic law carries the death penalty. It concludes:

    "The net result of all this is that neither Shias nor Sunnis nor Deobandis nor Ahl-i Hadith nor Barelvis are Muslims and any change from one view to the other must be accompanied in an Islamic state with the penalty of death if the Government of the State is in the hands of the party which considers the other party to be kafirs." (p. 219)

  3. Justice Munir relates in his later book From Jinnah to Zia that when Maulana Sayyid Abul Ala Maudoodi, the topmost of the Ulama opposed to the Ahmadiyya Movement, was asked at the enquiry to give his definition of a Muslim, he "could not define a Muslim as excluding the Ahmadis from Islam". Munir then adds:

    "Realising his mistake on the day following ... an application was made by Mr Said Malik, the representative of the [Maudoodi] Jamaat, that the question 'Who is a Muslim' was asked without notice. The application was rejected [by the court] on the ground that a person who calls another kafir is supposed to know who a Muslim is." (p. 136)

Are the expert witnesses prepared to accept these findings of Muslim judges, from a public enquiry set up by Muslim authorities in their own country, Pakistan, at which their predecessors of a generation ago gave evidence?

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WHICH PARTY ACCEPTS ALLAH'S JUDGMENT?

It is alleged by our opponents that our approaching a non-Muslim court implies somehow that we do not accept Allah's judgment. As a matter of fact, we are the ones who accept the judgment of Allah and His Messenger Muhammad (may peace and the blessings of God be upon him!), because our entire case was based on presenting the teachings of the Holy Quran and the Holy Prophet to show that Ahmadis are Muslims. That evidence is now recorded in the book The Ahmadiyya Case for all to ponder over.

It is the defendants and their religious experts who have rejected the judgment of Allah and His Messenger, because they refused to give evidence from the word of Allah and His Messenger to prove their case. They have refused to recognise the clear definition of a Muslim given by the Holy Messenger of Allah, by his word and practice. In fact, their submissions quoted earlier mean that they consider the judgment of their "international ecclesiastical bodies" to be the same as the judgment of Allah and His Messenger, which therefore cannot be challenged!

END OF HISTORY OF THE CASE


Footnotes referred to in the History of the Case

Footnote 1

It is interesting to record that, just prior to this, when the news of the impending litigation was reported in Pakistan newspapers, two Christian bodies in Pakistan filed separate submissions to the Supreme Court in Cape Town for becoming parties to the case in opposition to the Ahmadis. One submission was received from a Mr. Patras Gill, President of the National Masihi Kashtkar Party, claiming to be "a representative of all Afro-Asian Christians", who pleaded that he be allowed to "expose the heretical and heathen beliefs of the followers of Mirza Ghulam Ahmad", otherwise "the world-wide Christian community will suffer an irreparable loss and injury" (submission dated 23 August 1982, Lahore). The other submission, from a James Subbay Khan, President of the Pakistan National Christian League, was along similar lines, and among its accusations against Ahmadis one was that they "are the creation of British rulers during their reign" and "were against the ideology of Pakistan at the time of partition" (submission dated 28 August 1982, Lahore). Coming from Christians, these allegations are particularly ludicrous! Both submissions also alleged that Ahmadis were "creating communal riots between Christians and Muslims in Lebanon". This intervention by Christian organisations calls to mind Hazrat Mirza Ghulam Ahmad's prophecy, which he has mentioned several times, that Christian missionaries and the self-seeking, literalist Muslim Ulama would make common cause against him.

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Footnote 2

These lines were written in 1986, about six years before Apartheid was abolished in South Africa.

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Footnote 3

It was only a mere two years after this case that in the case brought by Sheik Jassiem against the MJC, the same defendants contradicted their position adopted in the Ahmadiyya case by presenting religious arguments in the same secular courts.

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