Independence of judiciary
By Syed Imad-ud-Din Asad | 5/11/2012 12
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THE notion of judicial independence and impartiality hasalways been an integral part of Islamic law.
Regarding the administration of justice, the Quran declares: `Surely, We have revealed the Book to you with truth so that you may judge between people by means of what Allah has taught you.
And be not one pleading the cause of the dishonest.`(4:105) It is agreed that the occasion of the revelation of the abovementioned verse was a dispute between a Jew and a Muslim. The Muslim, supported by his tribe, had falsely accused the Jew of theft. Based on the evidence the Prophet (PBUH) decided against the Muslim.
At a time when help was sorely needed for the defence of Islam, such a verdict meant the loss of that tribe. But such considerations did not carry any weight with the Prophet and he cleared the Jew of the charge. Thus, the verse lays down that dishonesty must be punished, and the balance of justice must be held equal between friends and foes and between Muslims and non-Muslims.Muslim judges are required to be upright and not to be swayed by ties of relationship or by considerations of fear or favour. The Quran says: `O you who believe, be maintainers of justice, bearers of testimony for Allah, even though it be against your own selves or (your) parents or near relatives whether one be rich or poor....
(4:135); `... And not let hatred of a people keep you from actingequitably....` (5:8); `... So judge between men justly and follow not desire....` (38:26) The Prophet was known for his fair and impartial administration of justice. He strictly implemented the Quranic instructions regarding equality before the law, and never made any distinction between litigants on the basis of faith or relations. Besides Muslims, nonMuslims would also come to him for the settlement of their disputes and he would adjudicate in accordance with their laws.
Most importantly, instead of claiming any legal immunity, helaid down the rule that even the head of state may be challenged, in both official and private capacities, in a court. His following statement demonstrates it all: `Verily, those who were before you were destroyed because when a man of stature from among them committed theft, they passed no sentence on him.
The successors of the Prophet also ensured the implementation of judicial independence and impartiality. Caliph Umar once went to a judge for the settlement of a dispute. The judge, on seeing the caliph, rose in his seat as a sign of respect.
Hazrat Umar, considering this act as an unforgivable weakness, immediately dismissed him from office.
Another example that shows how just and impartial the Islamic judiciary must be is when Caliph Ali went to court regarding a piece of armour in the possession of a Jew. As the evidence submitted by Hazrat Ali was apparently insufficient, the judge gave his verdict in favour of the Jew. The Jew was so impressed by the fairness of the Islamic justice system that he immediately returned the armour to Hazrat Ali and embraced Islam.
The following portion of a letter, written by Hazrat All to one of his governors, eloquently explains the status and role of the judiciary in Islam: `Select as your chief judge one from the people who by far is the best among them; one who is not obsessed with domestic worries; one who cannot be intimidated; one who does not err too of ten; one who does not turn back from the right path once he finds it; one who is not self-centred or avaricious; one who will not decide before knowing the full facts; one who will weigh with care every attendant doubt and pronounce a clear verdict after taking everything into full consideration; one who will not grow restive over the arguments of advocates; one who will examine with patience every new disclosure of facts; one who will be strictly impartial in his decision; one whom flattery cannot mislead; one who does not exult over his position.`But it is not easy to find such men. Once you have selected the right man for the office, pay him handsomely enough to let him live in comfort and in keeping with his position, enough to keep him above temptations. Give him a position in your court so high that none can even dream of coveting it, and so high that neither backbiting nor intrigue can touch him.
Thus, we see that Islam provides for an independent and impartial judiciary. As law in Islam stands at the apex of social organisation, those who administer the law must likewise be elevated and kept independent of executive control. Also, it is the duty of the judges to stand firm for justice, though doing so may become detrimental to their own interests.
Unfortunately, judicial systems in many present-day Muslim countries rarely show the independence and impartiality required by Islamic law. This is not due to some inherent fault in the teachings of the Quran and Sunnah. A dishonest government never prefers an efficient judiciary and, therefore, competent persons are never appointed to judicial posts.
And when a competent person somehow does get appointed, his actions are neither supported nor encouraged. Of course, an upright and capable regime has nothing to fear and does not need to resort to such tactics. The writer is a graduate of Harvard Law School and director of the Centre for Law and Policy, Lahore.
syed_asad@post.harvard.edu