Skip to main content

Sharia on the Altar of the Federal Shariat Court (Part II) 

(Continued from 17 August issue)

 

FEDERAL SHARIAT COURT

Tanweer Akhtar Shahid 

It is interesting to note that regarding the Sh‘aair the Court mentions arguments presented by both sides. Then, it states, “The opinion of Pir Muhammad Karam Shah, now a Judge of the Supreme Court Shariat Bench, in his well-known commentary Ziaul Quran favours the opinion of Mr Mujeeb-ur-Rahman.” (PLD 1985 FSC, p. 111)

On this situation, Mr Mujeeb-ur-Rahman comments in his book by saying:

“The court did not record any finding as to which of the two contending views prevailed with the court. Nor did it record any reason either for accepting or for rejecting one view or the other and felt content merely with the recording of the two views. The inference is obvious.” (Error at the Apex, Mujeeb-ur-Rahman, www.thepersecution.org/archive/erratapex/04.html)

This was not a case of seeking validity and correctness of the Ahmadiyya version of Islam from a court that comprised of judges who, in order to secure these jobs for themselves, had demonstrated their partiality and bias by taking oath and rejecting the claim of the holy founder of Ahmadiyyat. It was a case asking the Court to strike down a law that was categorically repugnant to Quran and Sunnah. But the Court permitted the respondents to enter into irrelevant discussions about doctrinal issues during the proceedings. These issues were Khatm-e-Nubuwat (finality of prophethood), jihad, prophecies of the Promised Messiahas, “insult” to Jesus Christas, praise of British Empire, etc. The petitioner accepted this challenge and chased them in that haven as well. The petitioners explained to the Court that for the sake of argument, even if it was proved that Ahmadiyya interpretations were incorrect, did that justify the prohibitions in the Ordinance XX according to Holy Quran and Sunnah? Did it justify that religious freedoms of a community be taken away on the basis that the religious doctrines of that community could not be approved and accepted by the majority of a country? What actually happened in the Court during these proceedings can precisely be known from the following:

Mr Mujeeb-ur-Rahman expresses his deepest sense of gratitude to Almighty God for His miraculous help and support that he received while he was arguing this case. In his book (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu]) he devotes a full chapter (p. 20) on his recollection of Divine favours that he received and witnessed during those proceedings. He also mentions the level of panic in the respondents’ camp. 

The manner in which the Sharia was being interpreted by the respondents in the Court to oppose the petition was not different from the one in which it is being interpreted from the pulpits of the mosques even today. Realising the revulsion of human nature against such a version of Islam and expected criticism from the international community, Justice Fakhar Alam could not help but comment, “In such a situation would we be able to show our faces to the present world?” (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, p. 32) Qazi Mujeeb-ul-Rehman, showing utter disregard to human nature and prospective censure from international community, sticking to his version of Sharia retorted, “I am talking of Sharia and I don’t care about anything else”. (ibid., p. 34)

Mr Tahir ul Qadri also appeared before the Court as a jurist consult. Summing up why he was called by the Court and what was happening in the Court, all this he tells about in an inside story. Mr Qadri describes the situation of respondents in the Court who appeared to oppose the petition. He says:

“Scholars from around the country appeared before the Court – the foremost scholars. When they appeared and the hearing came to a complete end, I swear by Allah as my witness and proclaim that there is none worthy of worship except Allah and that Muhammad is His messenger, all of them were defeated. This is the inside story and I am telling you today the thing that happened inside. They could not secure the dismissal of the appeal made by Qadianis. And they made themselves an object of laughter. Included among them were scholars from Tahaffuz Namoos-e-Resalat, Tahaffuz Khatam-e-Nubuwat, Ulama Deoband, Ahl-e-Hadith, Ahl-e-Sunnat; all of them appeared. They could not answer any one of the questions that was put to them by the Court, which were raised by Qadianis. Whosoever from the scholars appeared before the Court would start discussing the issue of his [Hazrat Mirza Ghulam Ahmadas]  prophethood, that he made a claim to prophethood [in light of the Hadith] ‘There shall be no prophet after me’ and [the status of] ‘Khatam-un-Nabiyyin’ and that a person who claimed to be a prophet would naturally become an infidel and apostate. Therefore, they said, they [Ahmadis] are not Muslims. The Court said that this was not an issue before the Court. This had been settled in the 1973 Constitution in the time of Mr Bhutto through the parliament. They [Ahmadis] had been declared a non-Muslim minority. So his [Hazrat Mirza Ghulam Ahmadas] claim to be a prophet, being an infidel and apostate was not a matter under the consideration of the Court. They would come and present arguments that he was one-eyed, that he used to ask women to press his legs, that he was not a believer and that he used to say that he received revelations [which made no sense to them]. They were citing this sort of references just to cause laughter. This very act of those scholars rendered the sanctity of religion to a laughing stock. The scholars spoke about such things while the Court laughed at them. The Court told them that in doing so, they would lose the case! None of these matters was under consideration. They [Ahmadis] had asked a simple thing – why did the Constitution declare them non-Muslims? They demanded their freedom of religion being a non-Muslim minority. They said, ‘This is what our religion requires from us and we should have the right to it. Why interfere in it? Present your arguments on this issue from the Sharia whether we can or cannot use such and such words as a matter of our freedom of religion.’ When all of the scholars had appeared before the Court and the Court became extremely upset, I was on a tour in Norway. I received a telephone call. None of them argued about the matter before the Court. This is their problem even today. They make the non-issue an issue, thereby confusing matters. This is the reality. They present their arguments about his [Hazrat Mirza Ghulam Ahmadas] being an apostate and that is not an issue before the Court. The issue is what freedoms they have as non-Muslim minority.”

Mr Qadri takes credit and claims that it was exclusively due to his representations before the Court that the petition was dismissed.

I conclude this part on what Mr Mujeeb-ur-Rahman writes in his book:

“The discussion was very lengthy and many issues came under discussion. The complete discussion that continued for fourteen days cannot be reduced to writing.” (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, p. 48)

Conclusion

Through a short order, pending the detailed judgment by the consensus of all the five judges, the petition was dismissed. (PLD 1984 FSC 136) As Faiz Ahmad Faiz once said, “Par terey ehad sey agey to ye dastoor na tha” [This was not the law before your time]. (Quoted by Hazrat Mirza Tahir Ahmadrh, Khutbat-e-Tahir, Vol. 3, p. 399) The judgment presented a textbook example of “a historical reversal, of earlier court commitments to safeguarding rights and religious freedoms of minorities”. (The Nation and Its Heretics: Courts, State Authority and Minority Rights in Pakistan, Sadia Saeed, Indiana University, Bloomington, pp. 1-2)

The reasons that could not be accepted by the independent judiciary since 1953 to 1978 became acceptable by it under a dictator’s rule. The judges in 1953, exposing the unreasonable nature of the demands against Ahmadis said that the Prime Minister “could not have accepted the demands as it would certainly have exposed Pakistan to ridicule and disillusioned the international world of her claims as an advancing, progressive and democratic State.” (Report of the Court of Inquiry Constituted Under Punjab Act II of 1954 to Enquire into the Punjab Disturbances of 1953, p. 264) But in 1984 the judges, by giving this judgment that justified the acceptance of these demands by a dictator, practically declared: Who cares about Pakistan? 

The Court, showing its utter disregard to human decency, incorporated in its detailed judgment irrelevant material and presented in judicial garments what was already available in the public domain as malicious content and hate speech against Ahmadis and was being propagated by the clergy. (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, p. 203) The petitioners protested against this illegal, illogical and indecent attitude of the Court in their appeal. (ibid., p. 213)

To the utter astonishment of the international legal fraternity, the detailed judgment was signed by the four judges while the fifth judge’s opinion, who was the Chief Justice of that Court, was not mentioned anywhere. (Gustaf Patern, (1987) Pakistan: Human Rights after Martial Law. Geneva: International Commission of Jurists. p. 62) Though the petition was dismissed, the Court accepted almost all the arguments of the petitioners. (Ordinance XX of 1984 Before the Federal Shariat Court [Urdu], Mujeeb-ur-Rahman, p. 201) As a matter of faith, all five judges were not only themselves a party to the petition, rather they also lacked the moral courage to declare “I disapprove of what you say, but I will defend to the death your right to say it. 

As a conclusion of the conclusion, we would like to quote here the verse of Mirza Ghalib as cited by Hazrat Mirza Tahir Ahmadrh when he commented on the expected outcome of the petition. Hazrat Mirza Tahir Ahmad, Khalifatul Masih IVrh says, “I had written to the petitioners at the very beginning of the proceedings:

Qaasid ke atey atey khat ik aur likh rakhun; mein janta hoon jo vo likheingey javab mein’

[Better I write another letter before the messenger returns; I know what they will be writing in reply to my letter already sent.] (Hazrat Mirza Tahir Ahmadrh, Khutbat-e-Tahir, Vol. 3, p. 447)

The petitioners made an appeal before the Shariat Appellate Bench of the Supreme Court, but on the hearing date they found that two of the judges to hear the appeal had already publically approved the legality of the infamous Ordinance XX of 1984. These judges insisted to continue to sit on the bench. There was no wisdom to argue an appeal before judges sitting with such closed minds so the petitioners sagaciously withdrew their appeal.  

 

Published Date