Aga Khan Lawsuit

The Ismaili

 

Constitution

 

 

"Alnaz Jiwa's Absurd Interpretation Exposed"

 

 

 

 

 

By

 

Mehboob Kamadia

Independent Ismaili Scholar & Lecturer

- August 5, 2010 -

The Ismaili Constitution

 

His Highness the Aga Khan has repeatedly alleged that the Defendants Nagib Tajdin (NT) and Alnaz Jiwa (AJ) have infringed his copyright by publishing the Infringement Materials (Farmans & Talikas). To avoid litigation, His Highness gave several warnings but in vain. As a result, the lawsuit was initiated. Defendants AJ and NT argue that they have neither infringed His Highness' copyright nor breached the Constitution. AJ makes three absurd claims with respect to publishing Farmans in relation to the Constitution. First, he asserts that His Highness has not reserved the right and power to publish His Farmans! Second, AJ and NT have inherent rights to record, transcribe, print, publish and circulate Farmans of His Highness! Third, His Highness has snatched this so-called inherent right from His appointed institutional leaders on the grounds of their failure and disobedience! I am mindful of the fact that the applicability of the Constitution in this legal proceeding is unequivocally extraneous. Nonetheless, I wish to once and for all expose the absurdity of Alnaz Jiwa. Not only AJ's interpretation diametrically clashes with the letter and spirit of the Constitution but it defies common-sense.      

 

"Power & Authority of His Highness The Aga Khan"

 

His Highness ordained the current Constitution under his sign manual and seal. An extract of the Preamble reads: By virtue of his office and in accordance with the faith and belief of the Ismaili Muslims, the Imam enjoys full authority of governance over and in respect of all religious and Jamati matters of the Ismaili Muslims. Under the heading of "Power & Authority of Mawlana Hazar Imam", Article 1.1 maintains that "Mawlana Hazar Imam has inherent right and absolute and unfettered power and authority over and in respect of all religious and Jamati matters of the Ismailis"  (p.7). Moreover, the Imam has the sole authority to determine "all questions that may arise as regards the meaning and interpretation of any such constitution"  (p.7).

 

The foregoing citations unmistakably lead us to infer that the very act of printing, publishing and circulating Farmans and Talikas or any other material which relates to "religious and Jamati matters of the Ismailis" directly falls within the prerogative of His Highness. It is His Highness' sole prerogative to authorize or not authorize readings of Farmans in any part of the world; to publish or not publish His Farmans. If His Highness chooses to publish - at his sole discretion and pleasure - all, any or some of his Farmans at any given time and in any part of the world, such a publication can only take birth in accordance with an established criteria and well established guidelines. To carry out this function, His Highness has created The Tariqah and Religious Education Board or ITREB, previously known as The Ismailia Association.  

 

 

ITREB

Ismaili Tariqah & Religious Education Board

 

Article 8.1 & 8.4 (d) of the Constitution respectively read:

 

"There shall be a Tariqah and Religious Education Board for each of the territories...for which it is formed for the provision of religious education at all levels of the Jamat, for the training of religion teachers and waezeen, for research and publication, and for the performance of such functions in relation to the Ismaili Tariqah as Mawlana Hazar Imam may deem necessary."

(p.14; emphasis added) 

 

 

"Each Tariqah and Religious Education Board shall, under the direction and guidance of Mawlana Hazar Imam: ...(d) undertake publication of books and materials on relevant aspects of Islam and Ismaili Tariqah."  (p.15; emphasis added)

 

 

The Article under consideration empowers ITREB to carry out the official mandate of publishing books and materials. The words "undertake publication of books and materials" on aspects related to "Ismaili Tariqah" obviously include publications of Farmans. The Article leads us to infer that ITREB's constitutional mandate can only be carried-out under the explicit "direction and guidance" of His Highness the Aga Khan thus accentuating the established criteria. Over the course of many years, ITREB, the Council and the LIF have provided sufficient clarity over this criteria. Recently, His Highness too provided absolute clarity vis-a-vis the procedure ITREB must follow. In his Reply to the Statement of Alnaz Jiwa's Defence, His Highness explains:

 

"The Plaintiff [His Highness] thus receives requests for publication from the ITREB and if approved by the Plaintiff [His Highness], the ITREB is the sole entity authorized to publish and distribute the Plaintiff's [His Highness'] Farmans and other works" 

(para. 35) 

 

"The availability of Farmans is governed by an approved process of dissemination. Providing access to Farmans is distinguished from the unauthorized and wrongful distribution of copies. The unauthorized publication or distribution of the Plaintiff's Farmans is a breach of the Plaintiff's copyright. Farman are definitive only when authored, published and distributed by the Plaintiff [His Highness'] " [para. 27]

 

The foregoing Article compels us to infer that any other unauthorized copies of Farmans purporting to be in the name of or relating to His Highness is a very serious and an absolutely unacceptable breach of His Highness' right and responsibility. With all of the above in mind, I now proceed to expose Alnaz Jiwa's absurd interpretation which has been circulated in the public forum.   

  

 

Alnaz Jiwa's Absurd Claim # 1

 

His Highness Does Not Have the Sole Authority to Publish His Own Farmans!

 

Says who? Says Alnaz Jiwa! To legitimize their infringing activities and to sanctify their jihad, legal war, against His Highness, AJ assiduously evokes the Constitution, a document which is not germane to legal proceedings in question. Positing absolute faith in his myopic grasp of the Constitution, AJ marshals his argument against His Highness' Statement of Claim. In his Defence, AJ alleges that His Highness did NOT retain the authority and power to publish Farmans: "[Alnaz] Jiwa further states that the Aga Khan is NOT retaining or reserving the power for ...publishing Farmans to Himself [in the Constitution]..."; "...The Aga Khan DID NOT reserve this power for Himself." (para. 28 & 24; emphasis added).. The foregoing are baseless conjectures of Alnaz Jiwa.

 

In his Reply to the Statement of Defence of Nagib Tajdin, His Highness asserts his sole right in the following words: "Neither ITREB nor any other person or entity, other than the Plaintiff [His Highness], can give consent to the publication or distribution of the Infringing Materials, or any other Farman Books."

 

The Constitution explicitly states that His Highness has inherent right and absolute and unfettered power and authority over and in respect of ALL religious and Jamati matters of the Ismailis. This incontestably incorporates the very act of printing, publishing and circulating Farmans. The onus was and still is on Alnaz Jiwa to prove that Farmans do NOT fall within the grounds set out in "religious and Jamati matters of the Ismailis".

 

 

Alnaz Jiwa's Absurd Claim # 2

Alnaz Jiwas has "inherent" Right to Publish His Highness' Farmans!

 

The Constitution explicitly and in the strongest possible terms prohibits an "Ismaili" to engage in an act of printing, publishing and circulating "any" material purporting to be on behalf of or in the name of or relating to His Highness. This unambiguously includes the publication and/or circulation of His Highness' Farmans. If a follower commits a breach of Article 14. 1 (c), the offender is subject to disciplinary action which may lead to expulsion from the Ismaili Community. Article 14.1 (c) reads:

 

"Any Ismaili [follower] shall be liable to disciplinary action who: (c) without the permission in writing of the National Council obtained through the Regional Council within whose jurisdiction he resides, prints, publishes, or circulates any material or makes any statement or convenes a meeting or assembly purporting to be on behalf of or in the name of or relating to Mawlana Hazar Imam, the Ismaili Tariqah, the Jamat, any Council or any other Ismaili institution" - p.22 (emphasis added). 

 

Whereas the Constitution sternly rules out the possibility of His Highness' follower to engage in an act of publishing Farmans, Alnaz Jiwa is devoted to the contrary purport. He suggests that the Constitution empowers each follower to record, transcribe, print, publish and circulate Farmans whenever and wherever! Now imagine millions of Ismailis living in more than 25 countries take their audio devices in Ismaili Congregations and start publishing Farmans. Only Alnaz Jiwa can come up with such classic absurdity.

 

The Constitution explicitly states that His Highness has "inherent" right over and in respect of all religious and Jamati matters of Ismailis which evidently include Farmans. Coincidentally, Alnaz Jiwa applies the same term "inherent" to himself! AJ argues that he too has "inherent" right of access to His Highness' Farmans simply by being a follower of His Highness (Statement of Defence, para 49). From this, AJ extrapolates that he has a license to record, transcribe, print, publish and circulate Farmans and Talikas among Ismailis since there is nothing in the Constitution to prove to the contrary. Thus, in principle, a follower of His Highness according to Alnaz Jiwa requires no formal consent to publish Farmans. In other words, a follower has licence to infringe the copyright of His Highness; correspondingly, His Highness who is sole copyright holder loses his copyright! Once again, only Alnaz Jiwa can come up with such absurdity. 

 

   

Alnaz Jiwa's Absurd Claim # 3

 

"Institutional Leaders Failed to Fulfil their Mandate"

 

AJ had attacked the Institutional leaders in 1987; he hasn't changed ever since. Although the lawsuit is about the copyright infringement of His Highness, AJ wanders and goes on to attack the Institutional leaders. This is a distinctive inherent feature of Alnaz Jiwa. 

 

In his Statement of Defence, AJ alleges that His Highness has "purposely" snatched the so-called inherent right from his appointed Institutional leaders because they "had failed to fulfil the mandate previously given to them for the publications of the Farmans." (para. 27). Elsewhere AJ alleges that "in recent years the Institutional leaders have not only failed to make the Farmans available to the Jamats, but they also insist on editing the Farmans." (para. 45); "Some institution leaders have failed to abide by the Constitution' (para 47); "Institutional leaders do not abide by the Constitution and are also resisting to abide by the Imam's Guidance (para. 66).

 

His Highness Defends

His Institutional Leaders Against the Onslaught of Alnaz Jiwa

 

In his Reply to the Statement of Defence of Alnaz Jiwa, His Highness denies each allegation Defendant Alnaz Jiwa has made against the leaders appointed by His Highness: 

 

"...the Plaintiff [His Highness] denies all allegations made against the Institutional leaders." (para. 19)

 

"In any event, the Defendant's [Alnaz Jiwa's] belief in any allegations against the Institutional leaders, which the Plaintiff [His Highness] denies as unfounded, is irrelevant to the legal matters at issue in the present proceeding." (para. 19)

 

"The ITREB and the Ismaili Council were, and are, acting on the express instructions of the Plaintiff [His Highness]." (para. 18)

 

Concluding Remarks

 

All powers of logic and basic common-sense have so far miserably failed to lead Alnaz Jiwa on the path of rationality. Whereas the Constitution and legal documents prove beyond any reasonable doubts that His Highness has the sole right to publish His own Farmans, Alnaz Jiwa argues to the contrary. If Alnaz Jiwa ever admits that His Highness has the sole authority and powers to publish His own Farmans, Alnaz Jiwa would have to burry all his absurd arguments that he has been making since the late 80's. AJ would have to concede that leaders, intellectuals and laity who have been speaking the language of common-sense and rationality were all correct; Alnaz Jiwa would have to admit that His Highness too was correct when he wrote to defiant and arrogant Nagib Tajdin that the latter and his supporters had engaged in "a serious and absolutely unacceptable breach of Imam's right and responsibility". But alas, no powers of rationality can ever perform an exorcism on Alnaz Jiwa's inherent idiocy.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

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