South Africa decides on
By A.H. Ghouzul Ameen LLB,
Qadianis are followers of Mirza Ghulam Ahmad who was born in
India. His doctrine or ideology is known as Qadianism or
Ahmedism. Mirza Ghulam Ahmed, the son of Mirza Ghulam Murthaza
was born in an area called Qadian in the Punjab Province of
India during the latter part of 1830s. In or about 1876, with
the death of his father he claimed that he received the divine
command from Allah. His ideology is known as ‘Quadanism’ or ‘Ahmadism.’
He died on May 26, 1908.
In 1945, an association of Muslim Ulamas (learned men in Islam)
was established in South Africa, which was called the Muslim
Judicial Council (MJC). The MJC claimed authority over religious
matters of the Muslim Community in the Western Cape. In
exercising its functions it has applied rules or prescriptions,
which in its perceptions are laid down in the Holy Quran and the
Sunnah (the traditions of Holy Prophet).
In 1914, six years after the death of Mirza the movement split
into two. Members of the first branch became known as the
Qadiani Ahmadis and those of the second under the leadership of
Muhammed Ali as the Lahore Ahmedis.
The main differences in the tenets of the two groups may be
1. The Qadianis, unlike the Lahores, believe that Mirza was a
prophet in the literal sense of the word. In common with the
orthodox Muslims, Lahores maintain that no prophet can come
after the Holy Prophet.
2. Unlike the Lahores, the Qadianis believe that acceptance of
Mirza as a prophet is essential for being a Muslim and that any
one who does not accept that is a non-believer, an apostate, a
kafir, murtad (all of which, more or less have the same
meaning). The Lahores believe that any one who professes faith
in the Kalimah Shahada (There is only one God, Allah and
Muhammad is His Messenger (prophet) is a Muslim.
3. Unlike the Qadianis, the Lahores hold that a follower of
Mirza may marry an orthodox Muslim.
4. The Qadianis believe that it is inadmissible to pray behind
an Imam (a leader of prayers) who does not accept Mirza’s claims
whilst the Lahores hold that they may pray behind any Muslim
Imam who does not condemn other Muslims as kafirs.
In Pakistan, subsequent to the partition of the Indian
sub-continent, both branches of Mirza’s followers were declared
non-Muslims by legislation in 1981.
It was submitted to the South African Supreme Court that a
Research Committee of senior professors of the Al-Azhar
University of Cairo in Egypt have prepared a report expressing
their opinion called the Cairo Fatwa, that Qadianis are
apostates on the basis that the claim of Mirza as a prophet is
contrary to the Holy Quran.
In Sri Lanka, the All Ceylon Jamiyyathul Ulama, which is the
association of the theologians or learned men of Islam in Sri
Lanka, incorporated by an Act of Parliament No. 51 of 2000
resolved at National Convention on Defending Finality of
Prophethood held on March 17, 2007 declaring among things that
‘that Qadiyanism, alias Ahmadism is contrary to Islam and that
Qadiyanis alias Ahmadus are nor Muslims’.
The first agitation in the Cape of South Africa against the
followers of Mirza occurred in about 1960. The Qadiani
publications claimed that Mirza was a prophet. The MJC took up
the stand that all followers of Mirza should be excluded from
mosques and treated as outcasts by Muslims. The issue of
Qadianism in South Africa arose when the Imam of Coovatool
mosque Jassiem expressed sympathy over the Lahores. Jassiem, a
graduate of the Al-Azhar University, was 72 years of age and
serving the said mosque for about twelve years.
In 1965, the MJC declared Jassiem to be a murtad on the Islamic
principle that he who approves of kufr is also kufr (he who
approves of apostasy is himself guilty of apostasy) Immediately
after this the Muslim Judicial Council, MJC took the following
decisions and sent out fatwa dated May 8, 1965 to Sheikhs, Imams
and Mosque Committees:
01. All Ahamadis, Kadyanis, Bhais and sympathisers are murthad.
02. They should not be allowed to enter the masjids of the
03. Their marriage ceremonies should not be allowed to take
place in the Muslim masjids.
04. No sheikh, Imam or Muslim should officiate at any of their
05. Inter marriage between them and a Muslim should never be
06. They are not allowed to serve as wakiels or witnesses in any
07. They will not be allowed any burials nor can any of them be
allowed to perform burial services at any of the Muslim
08. A Muslim should not pray for or on their dead.
09. Anything slaughtered by them cannot be eaten nor can you eat
10. There should be no association between a Muslim and any of
the above sects
In 1982, an action was instituted against the MJC for a
declaration that the Lahores were Muslims. The Defendant took a
preliminary objection that it is inappropriate for a secular
court to attempt to resolve questions, which were purely of a
doctrinal and ecclesiastical nature. This objection was
overruled on the basis a secular court would be better equipped
to deal with the question than “some other Tribunal composed of
On the first day of the trial, the Counsel for the Defendants
announced that they were withdrawing from the proceedings, not
because they were conceding the merits of the claims against
them, but because as Muslims they felt that they could not in
conscience submit to the jurisdiction of this court, which is an
ordinary secular court to decide who is a Muslim. On November
20, 1985 Williamson J. gave judgment holding that Peck, the
acknowledged Lahore Ahmadi, had discharged the onus of proving
that he was a Muslim (and hence not an apostate).
MJC publicly declared that Muslims had no option but to ignore
the ruling of the secular court on the basis that no kafir could
make another kafir a Muslim. It is noteworthy that this judgment
was made only in favour of the Petitioner, Peck a Muslim and not
the entire Lahore group.
Subsequently, Nazim, President of the MJC at a wedding ceremony
called Jasseim, an Ahmadi sympathiser and six witnesses came
forward to give evidence. Jassiem, a graduate of the Al-Azhar
University was dismissed from Imam of the Coovatool mosque. He
was asked to denounce Ahmadism so that he may re-appointed as
Imam of this mosque where he had served for 12 years. Jassiem
instituted an action for defamation against Nazim and the MJC.
The question as to whether a follower or sympathiser of
Qadianism or Ahmedism is an apostate arose in a recent case in
the Supreme Court of South Africa, Mohamed and Another vs
Jassiem, 1996 ( 1 ) SA 673.. Though this was a defamatory action
several matters as to whether a qadiani is a Muslim, arose. This
is an appeal from the Cape Provincial Division.
According to the pleadings of this case, Hazrath Mirza Ghulam
Ahmed (Mirza) was born in what was then British India in 1840s
and died there in 1908. He was born a Muslim and no doubt that
throughout his life he regarded himself as a Muslim. At least
until 1891, he was widely accepted as by his co-religionists as
a devout Muslim. He wrote prolifically in propagation of the
Muslim faith and in particular, defended it against what were,
or perceived by him to be, scurrilous attacks by some Christian
missionaries on the Holy Prophet Muhammad. There were
nevertheless some severe ecclesiastical rumblings during Mirza’s
lifetime. He had founded his Ahamadiya movement in 1889 and for
the next two years there was little, if any, opposition to it.
In 1891, he wrote that Muslims were in error in believing Jesus
Christ to be alive, or in his second coming. He proceeded to
claim that he was the ‘promised Messiah.’
The trial court held that the MJC was liable to Jassiem for the
defamatory words uttered by Nazim at the wedding. It stated
that, “Nazim merely adopted the course approved by the MJC as
appropriate in similar matters of labelling as an Ahmadi
sympathiser and ejecting from the mosque a person not himself
willing, when called upon to do so, to take a similar stand
either the Ahmadis or anyone suspected of being one.”
In appeal of both Nazim and the MJC, the Supreme Court rejected
the reasoning of the trial judge. It held that Nazim could not
have uttered the said words, “in pursuance of his duty as laid
down in the constitution of the MJC, to give guidance.’ His duty
was clearly to abide by the decision of the MJC to conduct an
investigation into Jassiems attitude in relation to the Ahmadis.
The court held that there was no room for a finding that Nazim
had the authority or approval expressed or implied by the MJC.
The appeal of the MJC was upheld with costs.
However, Nazim’s appeal failed as the investigation of the MJC
was not completed. This in my view recognised the role of the
MJC to go into the question of Qadianism or any sympathiser of
Qadianism or Ahmadism and to declare that he is not a Muslim.
(The writer, an Attorney at Law, is a lecturer and senior
treasurer of the Muslim Majlis of the Sri Lanka Law College)
Priyasath Dep is new Solicitor
Additional Solicitor General,
President’s Counsel, Priyasath Dep was recently appointed
President’s Counsel Dep was sworn as an Attorney-at-Law in 1976.
He excelled both in studies and in sports representing his
school St. Joseph’s College, Colombo in athletics, rugby and
Dep gained his bachelor’s degree in Development Studies and a
Master’s in International Relations from the University of
Colombo. He was awarded a scholarship by the Netherlands
Government to follow a post graduate diploma in International
Law at the Institute of Social Studies in The Hague,
Netherlands. In 1991, he was enrolled as a Solicitor of the
Supreme Court of England. He obtained a post graduate diploma in
Forensic Sciences and Toxicology from the University of Colombo.
Dep PC joined the Attorney General’s Department as a State
Counsel in 1978. He was promoted as Senior State Counsel in
1989, Deputy Solicitor General in 1996 and was appointed
Additional Solicitor General in 1999.
He took silk in 2000.
Dep PC has practiced in both the criminal and civil divisions of
the department. He was attached to the criminal division from
1978 to 1985 as a State Counsel. Among the high profile cases he
prosecuted was the Amarapala (deputy director of customs) murder
In 2002, he led the prosecution in the Sewwandi murder case
before a trial-at-bar and successfully argued the appeal before
the Supreme Court. In 2004, he successfully argued the appeal
before the Supreme Court in the Sujith Prasanna Perera
(superintendent of customs) murder case.
In 1989, he was promoted as senior state counsel. After a stint
in civil and writ work, he reverted to the criminal division in
1997 and supervised the work of subordinate officers in the
criminal division. AW
New silks in the AG’s Dept.
By Ayesha Wijeratne
The three legal luminaries who were appointed as President’s
Counsel (PC) by President Mahinda Rajapaksa took oaths at the
Ceremonial Court at the Supreme Court on Friday.
We give below pen sketches of the new Additional Solicitor
General (A.S.G.) Sarath Palitha Fernando President’s Counsel,
who is the first from his family to have joined the legal
profession. Fernando, a past pupil of Royal College, Colombo
spent much of his time on literary work. He was Secretary of the
Sinhala Literary Association and captained both the Sinhala and
English debating teams at school.
A.S.G Fernando entered the Sri Lanka Law College in 1976 and was
enrolled as an Attorney- at- Law in 1979. He served as the
President of the Law Student’s Union in 1978. He was awarded the
‘Hector Jayewardene Gold Medal,’ being placed first at the
address to the jury competition in English. Palitha Fernando
also won the ‘S R Wijetillake Challenge Shield’ when he was
placed first at the address to the Jury in Sinhala and the ‘A.C.
de Zoysa Challenge Shield’ for first place at the extempore
speech competition in English.
President’s Counsel Fernando apprenticed in the chambers of
President’s Counsel Eardly Perera. In 1980, he joined the
Attorney General’s Department as an acting State Counsel, before
being promoted as Senior State Counsel, Deputy Solicitor General
and currently as Additional Solicitor General.
He obtained his Master’s degree in International Law from the
University of Colombo and a Master’s degree in International
Commercial Law from the University of Bristol in the UK when he
was awarded a Chevening Scholarship.
Fernando P.C joined the volunteer naval force in 1989 and worked
in the legal department of the Navy. He served as commander
before being promoted as captain and subsequently as commodore.
Fernando P.C is a lecturer at the Sri Lanka Law College, the
Bandaranaike International Diplomatic Training Centre and at
Bandaranaike Centre for International Studies. He also lectured
at the Open University of Sri Lanka
He is a member of the board of directors of the National Child
Protection Authority (NCPA) and is the Vice President of the
Medico- Legal Society. He is an active supervisor of the Child
Protection Unit of the Attorney General’s Department, which was
created for the purpose of enforcing child abuse legislations.
Additional Solicitor General Shanthi Eva Wanasundera created
history when she became the first female from the Attorney
General’s Department to be conferred silk.
An old girl of Dharmapala Vidyalaya, Pannipitiya. President’s
Counsel Wanasundera joined the Sri Lanka Law College in 1974 and
took oaths as an Attorney-at-Law in 1977. She joined the
Attorney General’s Department in 1979, after a two year stint in
the private bar.
She was the second female State Counsel and the first woman to
be Senior State Counsel in the AG’s Department. Wanasundera PC
also had the privilege of being the first female Deputy
Solicitor General and the first female Additional Solicitor
General in the history of the AG’s Department. Her practice in
the department has been in the civil division.
Soon after completion of school she was one of eight students
selected to represent Sri Lanka under the ‘American Field
Service scholarship’ scheme in 1971.
President’s Counsel Eva Wanasundera obtained her Master’s Degree
in International Trade Law from Leicester University of England
Wanasundera PC when contacted by The Nation said that it was the
duty of a law officer in the Attorney General’s Department to
see that justice is done. “A law officer should not merely fight
the case and win but should assist court to give the correct
judgment. That is the difference between those of us in the
department and lawyers in the unofficial bar. We have been
working for much less by way of remuneration. We have to do our
job with good conscience and present our case so that justice
will be the end result. This gives us a lot of satisfaction.”
She added that, “It has been very challenging and difficult to
work as a lawyer, as female lawyers have to work extremely hard
in the male dominated local legal profession.”
Allowance hike for Quazis
Cabinet approval has been
granted to increase the allowance paid to Quazis.
District Judge and Additional Secretary of the Ministry of
Justice and Law Reforms, Mr. Sisira K. Ratnayake told The Nation
that according to the approved cabinet paper an allowance of Rs.
12,000 will be paid to the Chairman of the Board of Quazis and a
travelling allowance of Rs.2,500 per meeting subject to a
maximum of Rs.10,000 per month will be paid in addition to the
Each Quazi will be paid an allowance of Rs.6,000 per month and
another allowance of Rs. 5,000 per month for the cost of support
services such as clerical work, typing etc. will be paid.
Quazis are appointed by the Judicial Service Commission under
Section 12(1) of the Muslim Marriage and Divorce Registration
Ordinance No 30 of 1951.
At present, there are about sixty Quazis as well as three
members of the Board of Review of Quazis. AW
Wrongful dismissal for sex
James Pacenza, (58) of the US
is suing multinational IBM for US$5 million in a wrongful
dismissal case after he was sacked for visiting adult internet
chat rooms while at work.
Pacenza, a Vietnam War veteran, claims that he was addicted to
online chat rooms and that IBM should have offered him sympathy
and treatment instead of firing him.
He claimed that he was suffering from post-traumatic stress
disorder since 1969 and that he used the internet to control his
psychological problems. He claimed that seeing his best friend
killed in action in Vietnam resulted in his post-traumatic
stress disorder. He contended that his psychological problems
have left him addicted to sex, especially adult internet chat
rooms. He was fired after another employee at IBM told the
management that Pacenza was surfing adult websites while at
Appointing new PCs
Newly sworn in President’s
Councils W.Y. J.W. Wijayatilake, Shanthi Eva Wanasundera, Sarath
Palitha Frenando greeted by well wishers at the ceremony held on
May 25, 2007 at Supreme Court
The WFC gets going
Justice C. G. Weeramantry,
former vice president of the International Court of Justice and
a founding councillor of the global forum, the World Future
Council, attended its inaugural meeting in Hamburg, Germany,
from May 9 to 13.
Justice Weeramantry is one of 50 councillors selected from
across the world, representing expertise and experience in
different fields. They will direct the work of 16 commissions
which will investigate global problems such as climate change
and report their findings to the international community,
seeking to influence members of legislatures, public opinion and
decision makers throughout the world.
The Council is regarded as one of the most influential
international think tanks working on global problems, and was
put together by Mr. Jakob von Uexkull, the founder of the
Alternative Nobel Prize. Detailing how the Council will go about
implementing the proposals, Jakob von Uexkull, the founder said
that the Council will help “introduce these into national
parliaments via the e-Parliament - a global online network of
democratically elected parliamentarians. Our first in a series
of major ongoing campaigns will be on tackling global climate
Judge Weeramantry is joined in this Council by some outstanding
personalities such as Professor Hans Peter Durr, the leading
nuclear scientist and philosopher, who worked with Edward Teller
and the founder of quantum mechanics, Professor Dr. Vandana
Shiva identified by Time Magazine as an environmental hero in
2003 and Dr. Olivier Giscard d’Estaing, Chairman Committee for a
On the invitation of the Council, Justice Weeramantry has
undertaken a research on what the major religions say about the
protection and the conservation of the environment.
More on Companies Act
Very few companies complied with
voluntary code on corporate governance
From April 1, 2007 listed
companies will be required to start complying with mandatory
rules on corporate governance. The rules will take effect in two
stages. Under the first stage, companies will be required to
disclose the extent to which they are complying with such rule,
which touches on matters such as non executive directors,
independence of directors, disclosure of directors’ interests,
remuneration committees and audit committees.
The second stage will take effect from April 1, 2008, from which
point proper compliance will be required backed by a statement
by the board of directors that there is compliance. Marina
Fernando, Director Legal of the Securities and Exchanges
Commission of Sri Lanka (SEC) speaks to The Nation about the new
Q: What was the reason to make the corporate governance code
mandatory for listed companies?
A: The consensus among the committee appointed to draft the
rules was that the most suitable manner in which to impose the
corporate governance standards would be through the Listing
Rules of the Colombo Stock Exchange (CSE) in order to ensure
compliance by listed companies. This view was also influenced by
the fact that the voluntary code on corporate governance had
been available since 2003, but very few companies were
implementing the standards contained therein.
Q: What are the other countries in which it has been made
A: Most countries apply the rules on a mandatory basis using the
method of introducing these standards through the relevant
listing rules. Some of the examples are India, Thailand,
Malaysia and the New York Stock Exchange.
Q: Does it apply only to listed companies?
A: The rules apply only to listed companies as they are
introduced through the Listing Rules of the CSE. Further the
mandate was to draft rules applicable to listed companies since
the jurisdiction of the SEC extends only to listed companies.
Q: To what extent would monitoring of compliance be carried
out? Who will carry out the monitoring?
A: The rules are disclosure based and, therefore, would involve
minimal monitoring. However, any monitoring activities would be
carried out by the CSE as they are the listing authority. The
SEC would perform an overall supervisory role.
Q: What would be the consequence of non compliance? Who would
be taking the decision - the SEC or the CSE?
A: Any non-compliance would be subject to the applicable
penalties for non-compliance of the listing rules.
Q: Is the code modelled on the corporate governance rules of
any particular country?
A: The rules are not based on any particular jurisdiction.
However, among others, the rules applicable in the UK and the
New York Stock exchange in addition to India, Thailand and
Malaysia were considered in drafting the rules for Sri Lanka.
Q: Beyond this code what are the main corporate governance
concerns of the SEC?
A: The SEC is also considering the introduction of rules for
external auditors in addition to studying the impact of the
present rules upon their full implementation.