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South Africa decides on Qadianis

By A.H. Ghouzul Ameen LLB, LLM, JPUM
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 summarised as:
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 Muslims.
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 marriage ceremonies.
05. Inter marriage between them and a Muslim should never be allowed.
06. They are not allowed to serve as wakiels or witnesses in any religious matters.
07. They will not be allowed any burials nor can any of them be allowed to perform burial services at any of the Muslim cemeteries.
08. A Muslim should not pray for or on their dead.
09. Anything slaughtered by them cannot be eaten nor can you eat from them.
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 theologians.”
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 General

Additional Solicitor General, President’s Counsel, Priyasath Dep was recently appointed Solicitor General.
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 soccer.
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 case.
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 in 1994.
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 allowance.
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 addiction

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 work.


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 chaos.”
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 World Parliament
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 listing rules.
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 mandatory?
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.