Sunday Times 2
Islam and the judicial process
View(s):This is the fourth and last part of a series of articles written by eminent jurist C.G. Weeramantry, former Vice President of the International Court of Justice, on the influence of religious thoughts on the judicial process. The series began with an article on ‘Buddhism and the judiciary’ in the November 8 edition. The articles on Christianity and Hinduism and their influence on the judiciary were published in the following two weeks.
Arabic libraries such as the Cairo library of Caliph Al-Azhiz in the 10th century had several hundred thousand volumes of books. Pic courtesy ismailimail.wordpress.com
The vast surge of learning that swept the Islamic world from the 9th to the 12th centuries was one of the outstanding chapters in the world’s scholastic history. All branches of scholarship – mathematics, medicine, physics, chemistry, astronomy, philosophy, sociology, theology and law – blossomed in a manner rarely witnessed before in world history.
Arabic libraries such as the Cairo library of Caliph Al-Azhiz in the 10th century had several hundred thousand volumes of books and the House of Wisdom of Al Hakim in Cordova had 400,000 to 600,000 volumes, of which the catalogue alone ran to forty four volumes.
Several treatises were written which were used in European universities for hundreds of years on subjects like medicine. Physics, chemistry, mathematics and philosophy were dealt with in a manner which broke much new ground in these subjects. Part of this intellectual renaissance was in the field of philosophy and law.
Significance of justice in Islamic thought
Justice was central to Islamic philosophy about government and hence attracted a vast amount of literature. The Qur’an makes it clear that justice has to be done without any discrimination, whoever may be involved. “O ye who believe! Stand out firmly for justice, as witnesses to Allah, even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both”. (Qur’an 4:135)
This emphasis is accompanied also by the thought that all justice is under divine scrutiny and any failure in this regard will not pass unnoticed. “If you distort justice or decline to do justice, verily Allah is well-acquainted with all that you do”. (Qur’an 4:135)
This is a warning to the judges themselves that they too will be judged if they fail to do justice.
High standard of integrity
Legal knowledge was always highly rated in Islam. As Montgomery Watt observes in his book The Majesty that was Islam (Praeger Publishers, New York, 1974, p. 78) the central discipline of Islamic higher education, once it came into being, has always been jurisprudence.
Islamic jurisprudence elevates the judge’s position in society with many observations regarding the high standards of integrity associated with the judicial office.
This is well illustrated in the story often recounted in Islamic law books of the conduct of the just caliphs. For example Caliphs would give directions to their judges about the high standards of duty expected of them. The directions of a Caliph on this matter recounted in Bassouni on the Islamic Criminal Justice System (Oceana Publications, 1982, pp. 31-32) state that judges must not hesitate to follow the truth, for Truth is eternal. In these directions the Caliphs also remind the judge of the absolute equality of all parties before him, of equality in his demeanour towards them and of equality in his judgment.
Judges were particularly enjoined that they could not make any discrimination on the basis of religion, race, colour, kinship or even hostility. (T Kamel, The Principle of Legality and in its application in Islamic Criminal Justice in Bassiouni, The Islamic Criminal Justice System, p.186)
This is all summarised in the Qur’anic statements that “if thou judge, judge in equity between them. For Allah loveth those who judge in equity” (5:42) and “Allah loveth those who are just” (60:8).
Even the Sovereign enjoys no special position
The principle of the complete equality of all parties appearing before the court and the duty of the judge to make no differences, however slight in his treatment of parties whatever their rank, is often illustrated in the Islamic texts with a story concerning one of the just Caliphs. The Caliph had lent a suit of armour to a non-Muslim subject. When he requested the return of the suit of armour the subject did not return it.
Rather than sending his officials to seize the armour, the Caliph filed a law suit against his subject. On the date of hearing the Caliph went into court like an ordinary litigant. The judge, seeing the sovereign enter the court, rose deferentially in his seat. The sovereign, seeing this, said that the judge was not worthy to hear the case, as he did not realise that all litigants are equal in his court and that the sovereign should not be treated deferentially. The case was heard before another judge, and it is interesting to note that the case was dismissed because the only witnesses in support of the claim were a servant and a son.
It is said in the literature that the subject concerned was so moved by all this procedure that he gave back the suit of armour to the caliph.
This is an important reminder that however exalted a litigant may be, he is on terms of absolute equality in court with his opponent, and that importance ranging even to the level of Head of State cannot tilt the scales of justice, however infinitesimally in favour of powerful personalities appearing before it.
The equality of all before the law
One of the first principles of Islamic Law is that there is no room for privilege under a legal system which treats all citizens equally. As was observed by the Prophet in his Farewell Sermon, one of the world’s outstanding human rights documents, “the aristocracy of yore is trampled under my feet. The Arab has no superiority over the non- Arab and the non-Arab has no superiority over the Arab. All are children of Adam. Nor is the fair-skinned superior to the dark-skinned nor is the dark-skinned superior to the fair-skinned: Superiority comes from piety and the noblest among you is the most pious. Have I spoken clear”. (The Shorter Encyclopaedia of Islam and M U Akbar, The Orations of Mohammed, (Revised Ed) Muhammed Ashrof, Lahore, Pakistan 1966)
There are also sayings of the Prophet to the effect that all people are as equal as the teeth of a comb. There could not therefore be one law for the powerful and one for the underdog; one for the rich and one for the poor. Judges in a court of justice deal with all litigants alike, whether they be rulers or ruled, or rich or poor. No special treatment could be offered to any person by virtue of their importance of their office or their wealth or power.
Judicial office not a path to self-advancement
Another important feature of Islamic teaching is the absence of special privileges enjoyed by the priestly or learned class. In the words of Zayed Ameer Ali (Ameer Ali, The Ethics of Islam, 1981, p. 185) “The Islam of Mohammed recognises no caste of priesthood and allows no monopoly of spiritual knowledge or special holiness to intervene between man and his God… In the Islam of Mohammed no man is higher than any other”.
This means that those holding judicial office must not arrogate importance to themselves. It is furthest from the judicial function to use the office one holds as a route to seeking prestige, position, advantages or other benefits for one’s self.
Independence of the judiciary
Islamic law stood at the apex of Islamic social organisation, and this was reflected in the pre-eminent position of the judge who was described as hakim-ush-shara, that is the ruler through law. The judge was discharging the function of the ruler himself. Indeed, there was a strong tradition in Islam that the authority of the judge was even independent of the authority of the State as he derived his authority from a higher source.
Islamic thought thus anticipated one of the primary principles of modern human rights and democracy — the principle of the Separation of Powers. The judge is totally independent of the executive and does not derive his prestige or authority from the government of the day.
The judiciary was totally independent of executive control. (M S Mahmoud, The role of the Mufti in the administration of the court system, Shari’a Law Journal, (1984), p.56)
The independence of the judiciary is therefore ingrained in Islamic teaching down the centuries and the Islamic notion of the judicial function places this concept of independence of the judiciary at the very centre of all judicial activity. The slightest departure from it, whether through a deference to authority, advantage to one self, partiality towards one group or another, communalism, racism or any other, is contrary to the traditions of Islam and to centuries of religious writing on the judicial process. In Islam, judges were enjoined by the Qur’an to follow the law and this was a duty with which no ruler could interfere.
The sacrosanct nature of the judicial function
For all these reasons, judicial impartiality was a sacrosanct principle. Tribal partisanship or favours shown towards one group or another were totally condemned, and the Qur’anic message of the impartiality of justice rings clear “Verily, Allah commands you to render trusts to whom they are due and when you judge between people to judge with justice. Excellent is that which Allah instructs you. Verily, Allah is ever hearing and seeing”. (Qur’an 4:58)
Justice is next to piety, from which virtue the believer must not swerve. ‘O ye who believe, stand out firmly from God, as witnesses, to fair dealing; and let not the hatred of others make you swerve to wrong, and defect from justice. Be just; that is next to piety, and fear God’ (Qur’an 5: 9).
This concept is reinforced by the Islamic principle that sovereignty itself is a sacred trust. The sovereign is obliged to act under the law, and judges as his delegates carry the same responsibility. In Islamic thinking, the sovereign himself has no greater right than that of enforcing the law and his judges are his delegates for this purpose.
Realist School of jurisprudence
Julius Stone in his classic work on Legal System and Lawyers’ Reasonings draws attention to the numerous circumstances that could in reality operate on the mind of a judge and cause him to deviate from the correct decision. Interestingly, Islamic jurisprudence had dealt with some of these matters which are often overlooked in legal writing.
Islamic jurisprudence even anticipated the modern realist school of jurisprudence which draws attention to factors that could affect the impartiality of a judge such as illness, domestic disagreements, anger or even indigestion. The 13th century Poet Nawawi dealt with this in terms that, “it is blameable in a judge to deliver a judgment when he is angry or hungry or in a state of excessive anxiety or, in general, when he has any physical state likely to trouble his mind”.
Duty of judge to supervise court arrangements
It is surprising to see in what detail these matters had been analysed in Islamic literature even to the extent of recommending that the judge should sit in a large open court where the audience is sheltered from heat and cold. According to Islamic writers, the court should be so arranged that the pomp and glory of the state official should not overawe the public. (Fyzee, The Adab Al-Qadi in Islamic Law, 1964b, p. 411; and Ibrahim, The concept of justice in Islam, 1985, p. xcvi.) These are useful reminders to the modern judge, having regard to the fact that poor litigants from remote regions of the country may tend to be overawed by the majesty and dignity of the court and the judge. This is also a useful corrective to the tendency for judges to use the dignity of their office for overawing those appearing before them.
Parading the importance of the judicial office is strongly opposed by teachings such as these.It should be noted also that the judge, although not an administrator, is in control of his court house and its precincts. Witnesses coming from faraway places to attend the judicial sessions need to be comfortably accommodated and it is the judge’s duty to ensure this.
One, sometimes, hears of a lack of facilities for witnesses such as unavailability of food or refreshments during court adjournments, and even lack of toilet facilities.All this is the responsibility of the judge, and a legal system or a judicial process that does not recognise this needs to be corrected. Witnesses have to leave their entire day’s work and attend court, sometimes from very distant places. They must not undergo the hardship resulting from lack of such facilities. Likewise, constant and unnecessary postponements increase their burdens and must be avoided. Attention to all of these is part of the duties which are expected of a judge.
Presumption of innocence
Islamic judges were also under a duty to observe rules such as the presumption of innocence and the requirement of an adequate standard of proof. There are statements by the Prophet himself to the effect that the accuser is bound to present positive proof and also regarding the principle of resolution of doubt in favour of the accused: “prevent punishment in case of doubt”. (Bassiouni, The Islamic Criminal Justice System, 1982, p.67)
This is a reflection of the principle that the innocent person must in no event be penalised by the judicial process and is a clear anticipation of the modern principle that proof must be beyond reasonable doubt.
The universal Islamic declaration of human rights
It is interesting to note that the International Islamic Council held a conference in Paris in 1981, to mark the beginning of the 15th century of the Islamic era. The document that emerged from this conference was the Universal Islamic Declaration of Human Rights embodying the human rights principles of Islam.
Among these principles which are deeply ingrained in Islamic religious teachings are the right to justice (article IV) and the right to a fair trial (article V). Article IV (b) states categorically that every person, against whom charges are preferred, has a right to fair adjudication before an independent judicial tribunal.
Indeed, the right to protection against abuse of power is recognised in article V of this declaration, and is another basic component of thought regarding the judicial obligation to dispense justice without fear or favour.
Conclusion
A beautiful summary of the importance of justice in the Islamic system is the view that “one day in the office of a just ruler is better than sixty years of worship” and “The most beloved in the eyes of Allah is the just ruler and the most hateful in his eyes is the unjust ruler”. (See Ibrahim, The Concept of Justice in Islam, 1985).
It follows that the same observation would no doubt be made of the just judge, for he discharges one of the mot elevated functions that can be accorded to a human being.