Hazrat Umar on the judiciary
Dr A Q Khan
Monday, April 09, 2012
From Print Edition

In my column of April 2 I stressed the differences between the old Islamic judiciary system and the present one. Today I would like to further discuss this topic. While appreciating that it would not be feasible to enforce the old qazi system in toto, I do believe that if we used the spirit of this golden system, we could still apply it in present times to provide quick and cheap justice.

In one of my previous columns I had also mentioned the historic letter (advice) written by Hazrat Umar (RA) to Abu Musa Ashari (RA), governor of Kufa. It contained the golden principles of quick justice without fear or favour. I am reproducing the whole letter here.

1. “The duty of adjudication is a well-established and consistent practice in Islam that has been followed throughout the ages; therefore, try your best to understand with depth and wisdom whenever you are appointed as judge, on the basis of evidence and proof, and enforce the right, if it is established, because it is useless to talk about a right which is not enforceable.

2. “And make sure that you do full justice between the litigant parties, not only through your judgments, but also through your facial expressions and body language, so that an influential man never hopes for any kind of injustice from you, nor a powerless person need question you fairness, nor an enfeebled one gets hopeless about your justice.

3. “Remember that the burden of proof is always on the plaintiff and the complainant and the obligation of oath is upon the defendant and the respondent. Reconciliation is allowed between Muslims, provided it does not permit what is prohibited or prohibits what is permissible.

4. “Your earlier judgment should not deter you from reviewing it if you are guided to the right path by your senses and reason, because truth is eternal and it can never be abolished. And to revise decisions for the sake of upholding the truth is far better than persisting in something that is null and void (not correct).

5. “And you must be perceptive and judicious regarding whatever comes to your mind which is not revealed in the Holy Quran and the Sunnah. Then search for earlier, similar examples from the Quran and Sunnah.

6. “And compare your unprecedented thoughts and ideas with what you have discovered and then base your judgment upon what is closest to the guidance of the Almighty and nearest to the truth.

7. “And set a deadline for a complainant who is asking for a right and accept his claim if he/she manages to produce evidence. This will leave no room for any excuse.

8. “Muslims are equal before you as witnesses unless someone is convicted in a Hadd (adultery) case or proved guilty of fake testimony or is seen as serving the personal interest of a friend or relative. Almighty Allah takes responsibility of secrets and will relieve you of your responsibility if you decide a case on the basis of evidence and proof.

9. “And beware of showing anger, getting annoyed and upset, hurting people and shying away from deciding a case. Do not forget that adjudication with justice and truth will entitle you to some great reward from the Almighty in this world and the hereafter as the one who makes his intentions pure regarding what is between him and other human beings. But whoever presents himself falsely to others, pretending to be what he is not in Divine knowledge, then Allah will surely disgrace and dishonour him, because Allah never accepts any act from His servants except that which is done purely for Him.”

Hazrat Umar (RA) took extreme care in the selection of judges and those chosen were of the best character and most knowledgeable in the whole Islamic world. He also organised tests for them. Even though judges were appointed by the governors in their respective domains, Hazrat Umar (RA) still used to personally meet them and approve their appointments on the basis of their knowledge and experience. Besides, he also personally appeared before judges many times in disputes, in order to ascertain their competence and neutrality.

Our judicial system was established in 1919. It was modified in 1935 and again in 1945. As a layman, I am not aware of the details of those changes. I got my first taste of law in 1983 when a court in Amsterdam sentenced me to four years in jail in absentia. I was not aware of the court proceedings, nor had I been given a chance to defend myself. I was blamed for attempting to obtain so-called “classified” information from my colleague, which was, in fact, openly published information. I immediately contacted one of Pakistan’s most prominent lawyers and a former law minister, Mr S M Zafar and asked him to defend me.

There were some who tried to be wise and said that the government would never agree. I told them all that, come what may, I would do whatever it took to clear my name. Permission was given and I appointed two Dutch lawyers, Dr W Russells and Dr Den Drijver to assist Zafar Sahib. We won the case and the Dutch prosecutor general agreed that there was no substance in the accusations. In order to assist Zafar Sahib, I read through the Dutch Criminal Code and the international laws covering such cases.

I am fully aware of the fact that the old qazi system cannot be enforced in toto, but we can definitely adjust our judicial system to encompass the spirit of that golden age. Unfortunately, our current system is a legacy of the British. On April 12, 1936, Quaid-e-Azam said that the 1935 Act was worse than the Versailles Treaty, which had turned Germany into a subordinate state (resulting in the Second World War and the deaths of almost 55 million people). In his letter dated May 28, 1937, to the Quaid-e-Azam, Allama Iqbal had also criticised the 1935 Act.

In Britain the legal system functions well, but our disfigured system is not providing quick and fair justice to the people. The reason is that those who are supposed to obey the law are of a criminal mindset and make a mockery of the judiciary.

A word here about Maulana Fazalur Rahman and Maulana Shirani, chairman of the Islamic Ideology Council. Our Constitution states that no law will be against the Quran and Sunnah. Why then are they not doing or saying anything about Article 148 which gives protection to looters and the corrupt? They should remember what Allah has ordained in Surah Zarriat, Ayat 55: “Do, however, keep exhorting them (to do good), for exhortation benefits those endowed with faith.”
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