Obviously, if there was a clear breach of the ismaili constitution, then this case would have been in the Arbitration board.
Discussions about the constitution have revolved around the specific clauses about Farmans that were included in previous constitutions but that have been removed from the newer constitution since 1986. Older constitutions distinguished between religious publications and Farmans. The clauses about Farmans were removed by the Imam, but the clauses about the other religious publications remained intact.
Sachedina maintains that the constitution has been breached and that in the case of Farmans, only the Imam can Publish or authorize publication, Not Itreb, not the Council. However, if the current constitution is to be relied on to prove the breach, then article 14.1c lets the Ismaili Council authorize publications (and this is how Mr Gray seems to understand it), and Article 8.4d gives the ITREB's the responsibility to publish. Neither article reserves the right for the Imam. This leaves us with Farmans to follow which say that Imam makes Farmans FOR Jamats.
[Note: Extracts of Federal Court Transcripts of Cross-Examinations held August 2010 for Summary Judgement Motions in the Aga Khan Copyright Lawsuit
Sections starting with N. Tajdin #... Means Nagib Tajdin is the one answering questions in the next section
Sections starting with Jiwa #... Means Alnaz Jiwa is the one answering questions in the next section
Sections starting with Sachedina #... Means Shafik Sachedina is the one answering questions in the next section
Sections starting with Bhaloo #... Means Aziz Bhaloo is the one answering questions in the next section
]
N. Tajdin #580 - #584:
Cross-Examination by Mr Gray.
Q. And I am referring you to Article 14.1(c)?
A. Yes?
Q. And (c) says: '...Without the permission in writing of the National Council obtained through the regional council...' Have you ever requested the permission of the National Council under that article?
A. I didn't have to.
Q. I didn't ask you that. I just asked you, did you ever request the permission in writing of the National Council?
A. No, because I had consent from the Imam.
Q. Okay. And I take it you never asked...just to be specific, you didn't ask the permission in writing of the National Council to print or publish or circulate any material that is on behalf of, in the name of, or relating to Mawlana Hazar Imam, the plaintiff?
A. I don't believe it talks of Hazar Imam.
Q. I didn't ask you that, either. I asked you if you ever asked for the permission in writing...
A. No.
Jiwa #45 - #48:
Cross-Examination by Mr Gray.
Q. Okay. I am showing you a copy of Exhibit 13, which I understand you have a copy still there from this morning.
A. Yes.
Q. And can you identify that as the Constitution of the Shia Imami Ismaili Muslims?
A. This is part of the constitution. Our constitution consists of two parts; the constitution and the rules and regulations for each country.
Q. Right.
A. The 1986 constitution that was distributed in Canada had within that document the constitution as well as rules and regulations. This is just the constitution. The rules and regulations are still embodied in the 1986 constitution.
Q. Okay. And can you produce the rules and regulations for me?
A. I can, yes.
Jiwa #56 - #62:
Cross-Examination by Mr Gray.
Q. And in respect particularly to article 14.1(c), have you ever asked for permission in writing of the National Council obtained through
the regional councils to print or publish or circulate any material?
A. I don't need the council's permission.
Q. I didn't ask you that, Mr. Jiwa. I asked you if you ever...
A. No, because you are...
Q. Please answer the question.
A. You are referring to 14.1(c), so if you are going to refer to 14.1(c) then I am going to say I don't need their permission.
Q. Well...
A. So if you want to ask me without referring to the 14.1(c), then you can ask me without referring to that and I have already answered you earlier that I did not.
Q. Right, so...
A. If you are going to ask me pertaining to this, then I don't need consent...
Q. That isn't the question I asked you. I asked you if...
A. You are referring me to 14.1.
Q. I asked you if you ever asked for permission in writing of the National Council obtained through the regional council to print or publish or circulate any material: Yes or no?
A. You already asked me earlier, and I said no.
Sachedina #261 - #269:
Cross-Examination by Mr Jiwa.
Q. I'm going to go back to that. I said to you: Is there any farman or any article in the Constitution that says that farmans cannot be released for distribution to the jamats before the Imam has edited and approved them? That's my question.
A. It is not in the Constitution, but that's a process established by the present Imam.
Q. So what I'm saying to you --
A. Imam is above the Constitution, I explained to you. He transcends the Constitution in a sense that even if the Constitution is there, Imam has a right to do what he wishes to do. He has the authority to change or to decide or to alter or to do whatever he wishes to do.
Q. I'll come back to that in a second. I just want to focus on the question that I asked you. My question, and I'm going to repeat it again: Is there any article in the Constitution or is there any farman that says before any farman that has been made by the Imam, before it is distributed to the jamats, has to be edited and approved by the Imam? That's my question.
A. Not in the way that you describe.
Q. Now, you said earlier -- as you were just answering this issue, I see your lawyer is pointing you to something?
A. The same --
MR. GRAY: Article 14.1(c).
THE DEPONENT: That's the one that I read. Because you're talking about the issue of editing and the issue about farmans, and this to me is the article. That's why I quoted you that article.
Q. Sir, the article that you are quoting me, the 14.1 that your lawyer also is pointing you to see, show me where does it say that it's the Imam who is going to edit and approve before they are released. On the
contrary, it seems to suggest that National Council can do that decision. You are saying all along that the Imam approves and edits farmans?
A. National Council has no authority to edit farmans.
Q. But you're pointing to this --
A. No, it's not. I'm talking about, very clearly, the provisions in this Constitution that gives unfettered right to the Imam.
Q. Okay. 14.1(c), where does it say the Imam has to approve or it gives him the unfettered right, 14.1(c)?
A. No, but it's Imam you're talking about that there is -- anybody who prints, publishes or circulates any material.
Q. But this is not my question. I mean --
A. The questions you are asking is Imam edits, is it in the Constitution, and I'm saying to you not the way as you've described it in the Constitution. I'm saying there are provisions but not the way about editing
or the way that you describe, it's not that.
Q. Now, I'm suggesting to you that what you are saying is simply your opinion and perhaps Mr. Keshavjee's opinion and perhaps other leaders' opinion. But I say to you that the Constitution nor any farman says that a farman that's been made by the Imam may not be distributed to the jamat before it's edited and authorized by the Imam?
MR. GRAY: You've already indicated these are questions of opinion. The Constitution is here. The interpretation of the Constitution I'm sure you will argue before a judge. We'll read the words of the Constitution, and so far as it's relevant, we'll deal with it as a matter of interpretation.
THE DEPONENT: I take my instructions from His Highness, and that's what His Highness has conveyed to me.
Sachedina #370 - 388:
Cross-Examination by Mr Jiwa.
Q. Now --
A. For the present time, this Imam has authorized the ITREBs to be the body, relevant body for publications or, rather, distributions of all the religious matter, according to the constitution.
Q. There is nothing in the Constitution that says ITREB has been given this power?
A. It is there. If you come back to that ITREB, as I say to you, if you look at the -- all the materials relevant to the Islam and the Ismaili tariqa, that if you look at --
Q. Which clause?
A. 8.4(d). And that is the role. If you look at tariqa and Religious Education Board, if you look at that, it says, '...undertake the publication of books and material on relevant aspects of Islam and the Ismaili
Tariqah;'
Q. And he talks of books and materials; right?
A. Yes. On Ismaili tariqa, farmans are part of the tariqa material.
Q. All right. But it doesn't specify farmans, does it?
A. It's included. It's inclusive.
Q. So why --
A. Ismaili tariqa has material, and the tariqa board is responsible, and farmans are part of the Ismaili tariqa, and the doctrine of the Ismailis, sir.
Q. Isn't that contradictory to everything you've been saying to date?
A. What?
Q. You are completely contradictory. You are contradicting yourself, sir, aren't you?
A. What -- the farmans --
Q. You --
A. Release of the farmans, this is the body that actually releases the farmans for the jamat. The process we're talking about, earlier on you said ITREBs, and I said ITREB, yes.
Q. Fine. So if you look at 8.4(b) and if that is your jurisdiction to say ITREB has jurisdiction over farmans, then why do you need Hazar Imam's approval?
MR. GRAY: Look at the beginning of 8.4.
BY MR. JIWA:
Q. Where does it say --
A. It is always done under the behest of the Imam.
Q. Excuse me, sir, where does it say that approval for approval for publication of farmans --
A. If you read 8.4, it says: 'Each Tariqah and Religious Education Board shall under the direction and guidance of Mawlana Hazar Imam.' Not without his directions or guidance. And I want to point out to you it will therefore under Imam's direction undertake the publication of books and materials of relevance to Islam and Ismaili tariqa. The distribution process is part of the responsibility of the tariqa board once given authorization by the Imam of the Time. Does that not make sense to you?
Q. No, it doesn't, because it is one thing to say under the direction and guidance of Mowlana Hazar Imam, and it's another thing to say you need his prior approval. If you look at the Rules and Regulations, if you
look at the Rules and Regulations, function 24, those are the powers that have been granted to each local tariqa board.
A. But that's local tariqa board. You're talking about the national tariqa boards. Because the farmans, I kept on telling you, they come to the national boards, not the local boards.
Q. Right.
A. It's the national board that directs them.
Q. All right. Now -- and this is what you are saying is a breach of the Ismaili Constitution?
A. The article -- in my view, both article 14.1(c) and article 8.4(d) are -- very much work together.
Q. Right. And those are your authority --
A. And I've told you --
Q. Yes?
A. -- there's the Constitution. You have -- the letter from the Imam of the Time telling him not to do that. You have the second letter from the Imam to tell you not to do that. You have an affirmation that says not to do that. And then you also have very clearly the Statement of Claim which was filed by the Mr. Plaintiff, the Imam of the Time saying I don't want you to do that.
Q. Sir --
A. So there are four documents telling you not to do that. Five documents now.
Q. Those documents you know are being disputed by us. But we'll come to that. We'll come to that.
