ERROR AT THE APEX - 5. In the Supreme Court - The Majority View

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ERROR AT THE APEX

ERROR AT THE APEX

In the Supreme Court

THE MAJORITY VIEW

The majority judgment opened with the observation “I have had the benefit of going through the draft judgment proposed to be delivered by my learned brother Shafi ur Rahman, J. but with respect, I do not agree with the opinion of my learned brother.” Though the learned author judge of the majority opinion had the benefit of reading the minority view, he did not advert to the case law cited in the minority opinion and did not specifically spell out the reasons of his dissent on the vital ques-tion involved. The majority view proceeded as if there was no minority view and as if there was nothing to be dissented from.

The majority opinion pointed out that “Mr. Fakharud Din G. Ibrahim the learned counsel did not challenge the validity of sub section A of Section 298” which prohibited Ahmadis to use certain epithets descriptions and titles etc., The majority judgment, nevertheless, devoted a good part of the judgment to epithets descriptions and titles and observed that not only in Pakistan but throughout the world the laws protect the use of words and phrases which have special connotations or meanings which if used for others may amount to deceiving or misleading the people. The court held that law for protection of trade and merchandise marks exists in every legal system to protect the trade name or mark etc. with the result that no registered trade name or mark of one firm or company can be used by any other concern and violation thereof entitles the owners of the trade mark to receive damages and to bring criminal action. Relying heavily on the mercantile law the majority opinion held that Ahmadis cannot use the words and terminology and descriptions which are exclusively the right of Muslims. By adopting the Muslim terminology the Ahmadis practise deception. The court observed, “Again, if the appellants or their community have no designs to deceive, why do not they coin their own epithets etc.” “It must, however, be mentioned here that there is no law in Pakistan which forbids Ahmadis to coin their own epithets etc. and use them exclusively and there is no other restriction of any sort, whatever, against their religion”.

The court next held that since the appeals before the FSC had been dismissed and the appeal before the Shariat Appellate bench had been withdrawn and the Shariat appeal bench had observed that “judgment of the FSC shall rule the field” therefore the present appeals on the Constitutional jurisdictions were not maintainable.

The court next held that in view of Article 2-A of the Constitution of the Islamic Republic of Pakistan whereby the Martial Law dictator had incorporated the preamble of the Constitution as a substantive part thereof, the fundamental rights guaranteed by Article 20 were subject to injunctions of Islam. The majority opinion thus made Article 2-A self executing and gave it an overriding effect.

The Majority judgment next argued that though the religious practices of Ahmadis were clearly curtailed by the impugned Ordinance XX, they were within the permissible restrictions. In this behalf the majority opinion relied on some cases from the American jurisdiction.

On the question of vagueness the majority opinion conceded that if a law is vague it should be declared void but the court held that the appellants could not point out how the law was vague.

The majority in Zaheer ud Din held that Ahmadis will face no difficulty in coining new names epithets titles and description of their personages places and practices.

The majority opinion further held that when an Ahmadi or Ahmadis “display in public on a placard, a badge or a poster or write on walls or ceremonial gates or buntings, the Kalima or chant other shaa’ir-e-Islam it would amount to publicly defiling the name of the Holy prophet and other prophets and exalting the name of Mirza Saheb thus infuriating and instigating the Muslim. ---”.

The reason for such finding was that ”… there is a general consensus among Muslims that whenever an Ahmadi recites or displays Kalima he proclaims that Mirza Ghulam Ahmad is the prophet who should be obeyed and the one who does not do that is infidel. In the alternative they pose as Muslims and deceive others.”

¹¹

The difference between the majority and minority opinion is sharp and fundamental. The court is divided on (a) the basic concept of permissible limitations on fundamental rights; (b) concept of discrimination and classification,’ and (c) the overriding effect of Islamic provisions. The court is apparently divided on the very concept of Islamic provisions.