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I-
Concept of Justice
II- Judge and Administration of
Justice
III- Law and Procedure of Evidence
I- Concept of Justice
What is Justice?
The
administration of Justice, according to the unanimous view of
political philosophers of all ages, is the foremost and
fundamental duty of a state. States cannot survive without the
proper establishment of justice as oppression and tyranny cannot
provide enduring basis for their survival. Hence, the dispensation
of justice between the ruler and the ruled, between one citizen
and the other, between the oppressor and the oppressed, between
the wrong-doer and the wronged one, between the plaintiff and the
defendant, has been the hallmark of viable states. Good and evil
have co-existed since fall of Adam from Paradise. Justice requires
suppression of evil and establishment of good. Clash of interests
leads to disputes which need to be decided for the peace and
prosperity of society and the state.
Despite the fact that justice is one of the most fundamental
values of humanity, the philosophers and jurists have not been
able to agree on a definition of justice. Justice means different
things to different people at different times. Aristotle talks of
‘distributive’ justice, ‘corrective’ justice or ‘remedial’ justice
and ‘general’ justice. According to St. Thomas Aquinas, justice
“is a habit whereby a man renders to each one his due by a
constant and perpetual will”. According to some other
philosophers, justice is an irrational ideal which cannot be
defined. According to them, justice is what we think and not what
it really is. Justice, in the opinion of many Muslim Jurists,
means to equalize, to give one what is exactly due to him i.e..
equal to what he deserves. Giving of less than due is injustice
(or ‘Zulm’), while giving of more than due is good (or ’Ehsan’).
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Islam and Justice
Islam, as the religion of humanity, attaches great importance to
establishment of justice and the suppression of tyranny. One of
the fundamental objectives of the Islamic state, according to the
Qur’an, is to dispense justice without fear and favour and in fair
and equitable manner. The Qur’an emphasizes the fact that one of
the basic objectives of Allah in sending the Prophets and
revealing the books is ‘that the mankind may stand forth in
justice’. Justice is a sacred trust in Islam and this trust is to
be discharged most honestly, fairly and impartially. Dispensation
of justice is regarded as one of the most important duties after
belief in God. It constitutes one of the most important acts of
devotion.
However, before we discuss the system of administration of justice
in Islam, let us have a look upon the relevant verses of
al-Qur’an, the revealed book of Islam, and Ahadith and Sunnah of
Muhammad (PBUH), the Prophet of Islam.
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Lo! Allah commandeth you that ye restore deposits
to their owners, and, if ye judge between mankind, that ye judge
justly. Lo! comely is this which Allah admonisheth you. Lo! Allah
is ever Hearer, Seer. (4:An-Nisa:58)
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Lo! We reveal unto thee the Scripture with the
truth, that thou mayst judge between mankind by that which Allah
showeth thee. And be not thou a pleader for the treacherous;
(4:An-Nisa:105)
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O ye who believe! Be ye staunch in justice,
witnesses for Allah, even though it be against yourselves or
(your) parents or (your) kindred, whether (the case be of) a rich
man or a poor man, for Allah is nearer unto both (than ye are). So
follow not passion lest ye lapse (from truth) and if ye lapse or
fall away, then lo! Allah is ever informed of what ye do.
(4:An-Nisa:135)
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O ye who believe! Be steadfast witnesses for Allah
in equity, and let not hatred of any people seduce you that ye
deal not justly. Deal justly, that is nearer to your duty. Observe
your duty to Allah. Lo! Allah is Informed of what ye do.
(5:Al-Ma’idah:8)
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O my people! Give full measure and full weight in
justice, and wrong not people in respect of their goods. And do
not evil in the earth, causing corruption. (11:Hud:85)
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Lo! Allah enjoineth justice and kindness, and
giving to kinsfolk, and forbiddeth lewdness and abomination and
wickedness. He exhorteth you in order that ye may take heed.
(16:An-Nahl:90)
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O David, Lo! We have set thee a viceroy in the
earth; therefore judge aright between mankind, and follow not
desire that it beguiles thee from the way of Allah……(38:Sad:26)
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We verily sent Our Messengers with clear proofs,
and revealed with them the Scripture and the Balance, that mankind
may stand forth in Justice….. (57:Al-Hadid:25)
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Abu Bakrah reported: I heard the Messenger of Allah
say: No judge shall pass a decree between two men while he is
angry. (Bukhari, Muslim)
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Abdullah-bin-Amr and Abu Hurairah reported that the
messenger of Allah said: When a judge wishes to pass a decree, and
then strives hard and decides justly, there are two rewards for
him; but when he wishes to pass a decree, and then strives hard
but commits mistake, there is one reward for him. (Bukhari and
Muslim)
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Abu Hurairah reported that the Prophet said: Whoso
is appointed a judge among men has indeed been slaughtered without
a knife. (Ahmad, Tirmizi, Abu Daud, Ibn Majah)
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Ali reported: The Messenger of Allah sent me to
Yemen as a Judge. I said: O Messenger of Allah! you are sending me
while I am young in years and I have no knowledge of judgeship. He
said: verily Allah will soon give guidance to your heart and make
your tongue firm. When two persons come to you for decision, don’t
give decree in favour of the first till you hear the argument of
the other, because that is more necessary that decision may become
clear to you. He said: I had afterwards never entertained any
doubt in decisions. (Tirmizi, Abu Daud, Ibn Majah)
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Abdullah bin Amr reported that the messenger of
Allah said: Verily the just persons near Allah will be upon
pulpits of light on the right side of the Merciful. (Muslim)
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Mu’ adh b. Jabal told that when God’s messenger
sent him to Yemen he asked him how he would judge when the
occasion arose, and he replied that he would judge in accordance
with God’s Book. He asked what he would do if he could not find
guidance in God’s Book, and he replied that he would act in
accordance with God’s messenger’s Sunnah. He asked what he would
do if he could find no guidance in God’s messenger’s Sunnah, and
he replied that he would do his best to form an opinion and spare
no pains. God’s messenger then tapped him on the breast and said,
“Praise be to God who has disposed His messenger’s messenger to
something with which God’s messenger is pleased!” (Tirmidhi, Abu
Daud and Darimi)
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Umm Salamah reported that the Prophet said: I am
only a man and you bring your disputes before me (for decision).
Perhaps some of you may be more eloquent with his arguments than
others that I may give decree in his favour according to what I
hear from him. Whoso is, therefore, given a decree by me on
account of something out of the properties of his brother, he
shall not take it. For I am granting him only a portion of fire.
(Bukhari, Muslim)
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Amr-bin Shuaib reported …. that the messenger of
Allah said: Proof is upon the plaintiff and oath is upon the
defendant. (Tirmizi)
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Ayesha reported that verily as for the Quraish the
affair of a woman of Mukhjumiyah tribe who had stolen-gave them
much anxiety. They said: Who will plead for her to the messenger
of Allah? They said who will dare it than Osamah, son of Zaid, who
is a favourite of the messenger of Allah? Then Osamah pleaded to
him. The messenger of Allah said: You plead for a crime out of
ordained crimes of Allah! Then he got up and delivered sermon.
Afterwards he said: Verily those who were before you were
destroyed, because when a noble man from them committed theft,
they let him off, and when a weak man committed theft from among
them, they executed sentence on him. By Allah, had Fatima daughter
of Muhammad (PBUH), committed theft, I would have cut off her
hand. (Bukhari, Muslim)
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Views of Muslim Thinkers
Jurists and political thinkers of Islam like Ibn Abir’-Rabi,
Nizam-ul-Mulk and Al-Ghazzali have very high vision of justice.
According to Ibn Abir’–Rabi, justice is the correctness of all
action and is based on the happy means between the thinking
faculty and the animal nature in man. It consists in putting
everything in its proper place and giving everyone his due.
Administration of justice is a function of government which is on
a higher plan than other functions. For qualifications of a Qadhi,
Ibn Ab’r-Rabi says:
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Judge should be God-fearing and at the same time should have a
dignified demeanour;
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He should have sound commonsense and be conversant with the best
of judicial literature;
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He should bear an absolutely irreproachable character;
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He should not deliver judgments before he is satisfied that full
proof has been laid before him nor err in his judgment when
sufficient evidence has been produced;
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He should be fearless in awarding what is right and due;
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He should not accept any present nor hear any recommendation;
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He should never see any party in private;
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He should rarely smile, and speak little;
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He should never ask any party to do him any favour; and
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He should take great care to protect the property of the orphans.
Al-Ghazzali
relates how Khalifah ‘Umar bin ‘Abdul-‘Aziz asked the definition
of justice from Muhammad bin Ka’b of Cordova, to which the savant
replied that real justice was dealing with the inferiors like a
father, with superiors like a son and with equals like a brother
and to award punishment only according to the wrong done and the
power to bear it. He quotes ‘Ali that the best judge is he who is
not prejudiced in his decisions from personal desires, or by any
leaning towards his relations, fear or hope, but takes a natural
attitude towards all that come before him.
According to Nizam-ul-Mulk Tusi, the first and foremost duty of
the king towards his subjects is to dispense justice. Justice, in
his view, is a religious duty, and he lays much stress on its
importance for state and society. Justice brings progress and
prosperity for a state while tyranny leads to chaos and
destruction. To highlight the significance of justice for the
existence of a state, Nizam-ul-Mulk quotes the saying: “A state
can continue to exist notwithstanding impiety, but it cannot exist
with tyranny.” According to him, a king must remember that God,
the Almighty, would be pleased with him only when he treats his
people with kindness and justice. He advises the king to appoint
men of sound understanding and knowledge of Shariah as Qadhis who
should be able to dispense justice in accordance with Islamic law.
The Qadhis should be paid handsome salaries so that they should
not be tempted to bribery and corruption. Thus he gives the idea
of integrity, impartiality and independence of judiciary which is
claimed by the western scholars as a product of modern theory of
justice.
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II- Judge and Administration of Justice
Administration of justice in the history of Islam is known as “Qadha”.
Qadha is an Arabic term which has several meanings. Literally, it
means “he finished a thing entirely”. It, thus, stands for
complete and final decision of a thing. The word “Qadha” as used
in the Holy Qur’an at various places, carries various connotations
such as; to intend, to fulfil, to fix a limit, to perform a
religious duty, to give a judgement, to kill etc. However, in Fiqh
books “Qadha” has been used for adjudication of disputes, for
issuance of decrees and for judicial decisions. The person who
performs this work and makes judicial decisions is called a
“Qadhi”. Thus the Qadhi is a person who performs the duty of
deciding disputes. Sometimes such a person is also called ‘Hakam’
or ‘Hakim’ but generally these terms are used for an arbiter and a
ruler respectively.
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1.
Qualifications of a Qadhi:
A lot of discussion has been made by the Muslim jurists like Ibn
Jarier al-Tabari, Ibn Qudama, Ibn Farhun, al-marghinani, etc.
about the qualifications of a Qadhi. Some jurists have prescribed
as many as thirty or more conditions of eligibility, while some of
them have fixed only a few conditions. Generally a candidate for
the post of a Qadhi should possess the following qualifications in
order to be eligible:-
a)
Must be a Muslim:
The Qur’an says: O ye who believe ! Obey Allah, and obey the
messenger and those of you who are in authority …….(4:59). Ulul
amr or those of you who are in authority also refers to the Qadhi
who decides disputes between the litigants in an Islamic state.
Thus a Qadhi or a judge in an Islamic state must be a Muslim.
However, Imam Abu Hanifa states that a non-Muslim can be appointed
as a judge to perform judicial work among his co-religionists. But
al-Mawardi does not allow a non-Muslim to be a judge even in the
disputes of non-Muslims.
b)
Should be sane and adult:
A Qadhi should be sane, adult and a man of sound judgement. An
insane person or a minor who has not attained age of puberty
cannot be appointed
as Qadhi. He should not suffer from physical
defects pertaining to his power of speech, hearing and sight.
However, Imam Malik says that a blind person can also be appointed
a Qadhi as blindness is no disqualification.
c)
Must be a free citizen:
In order to qualify for the post, a person must be a free citizen
of the Islamic state. Jurists like Ibn Qudamah and Ibn Farhun
think that only a free Muslim
adult
citizen of the Islamic state
can exercise the functions of a judge. However, some other jurists
argue on the basis of a tradition according to which the Prophet
of Islam exhorted his followers to obey the Amir even if he
happens to be a mutilated slave, that a slave can be appointed as
Qadhi.
d)
Should be of good character:
A
Qadhi must be a pious person having excellent moral character. His
integrity and honesty must be above doubt. He should not have been
convicted of any crime. According to Hidayah, he must possess the
qualifications of a witness which require integrity of character.
Many jurists are unanimous in the view that a fasiq (a person of
loose character who is guilty of committing major sins) cannot be
appointed as Qadhi.
e)
A
man or a woman:
According to some Hanbali jurists like Ibn Qudamah and Maliki
jurists like Ibn Farhun, only a man can be appointed to exercise
the functions of a Qadhi. They quote a tradition attributed by Abu
Bakarah to the Prophet of Islam that “a people who entrust their
affairs to a woman cannot prosper” and say that a woman cannot
become a Qadhi or judge. However, there are some other jurists who
opine that a woman can exercise judicial functions as her evidence
is admissible in many cases and she is capable of issuing a fatwa.
Imam abu Hanifa is of the opinion that a woman can be appointed a
Qadhi only in those cases in which her evidence is admissible. But
al-Tabari pronounces that a woman can be appointed as a judge
without any restrictions.
f)
Should be a learned person and well-versed in Islamic law:
A
Qadhi must be a learned person and
must be will-versed in Islamic
law. He should have sound knowledge of the Qur’an and the Sunnah
and must be well conversant with the opinions of Muslim jurists.
According to some fuqaha, he should be a mujtahid. Their view is
that a person who is incapable of exercising Ijtehad, does not
understand Qiyas and other means of inferring or deducing Islamic
law and does not have sound knowledge of Arabic language cannot be
appointed as a Qadhi. Imam Malik, Ibn Qudamah, Imam Shafii and
jurists of Shia School of thought hold that only a mujtahid is
competent for the office of a Qadhi. However, Imam Abu Hanifa and
his followers say that the qualification of being a mujtahid is
merely preferable and not essential or indispensable.
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2.
Qualities of a Qadhi:
According to the author of al-Mughni, Caliph ‘Ali is reported to
have said that a person cannot become a qadhi, in the true sense
of the word, unless he possesses five qualities; i.e. he is pious,
sober, possessing the knowledge of the past events, consulting the
wise and fearing Allah and none else.
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3.
Code of conduct for a Qadhi:
Muslims jurists, in the light of the Qur’an and Sunnah, the
conventions of the right-guided caliphs and practice of good Qadhis, have recommended the following code of conduct for a
Qadhi:
-
The Qadhi should perform the work of dispensation of justice and
adjudication when he is in good frame of mind. We have already
quoted a tradition of the Prophet (PBUH) that no Qadhi should pass
a decree between two men when he is angry. According to another
Hadith, the Prophet (PBUH) is also reported to have said that a
judge should not decide cases when he has not taken his meals
(when he is hungry). From these Ahadith, it has been inferred that
a judge should not adjudicate when he is tired or sad or angry or
hungry or suffering from pain or is indisposed, etc.
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Before coming to a decision or announcing judgement, a Qadhi,
should hear both the parties with patience. According to a
tradition already reproduced, Hadrat Ali was advised by the
Prophet (PBUH), when he was sent to Yemen as a Qadhi, that he
should not pass judgement between two persons unless he has heard
both of them.
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The Qadhi should give equal treatment to the parties who bring
their disputes to him for decision. The Prophet of Islam is
reported to have said that if one of you is appointed as Qadhi,
let him give equal treatment to the parties with respect to their
sitting arrangement, in respect of giving attention to them or in
respect of even looking towards them. Thus, the Qadhi must not
show any sign or gesture towards any party appearing in his court
which gives suspicion that he is favourably inclined to that
party. Caliph Umar once snubbed a Qadhi before whom he appeared in
a case as the Qadhi tried to show the Caliph respect by standing
up in his honour. A Muslim Qadhi is, therefore, obliged to be
completely impartial.
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While performing judicial functions, a Qadhi should not smile to
anyone, nor he should joke with anyone as this would not only
create suspicion but would also destroy the proper awe and respect
due to his august office.
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Needless to say that a Qadhi must be very honest and that he
should not be tempted by bribery or any other offers. The Qur’an
prohibits giving bribe to judges when it says: “And eat not up
your property among yourselves in vanity, nor seek by it to gain
the hearing of the judges that ye may knowingly devour a portion
of the property of others wrongfully (2:188). The Prophet of
Islam is also reported to have cursed the bribe-taker and the
bribe-giver. According to another oft-quoted tradition the Prophet
(PBUH) said that one who gives bribe and one who takes bribe are
both in Hell.
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A
Qadhi must not accept presents or gifts as the acceptance of gifts
by a public functionary, according to the Prophet (PBUH), is
ghulul (misappropriation). However, some jurists are of opinion
that a Qadhi can accept presents from his close relations and also
from his friends who used to give him presents before his
appointment as Qadhi. But the best course is that he must avoid
gifts as they are a way to bribery.
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A
Qadhi must not attend feasts and entertainments except those which
are general. Particularly he must discourage and avoid those
feasts which the people want to arrange in his honour. However, a
Qadhi can attend the funeral and visit the sick.
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No particular dress has been prescribed for a Qadhi, However, it
has been recommended by the jurists that a Qadhi must appear in
his court in his best and the most dignified attire. This
recommendation is based on the practice of the Prophet (PBUH) who
used to wear a black turban or a fine gown whenever he received
envoys.
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A
Qadhi should not indulge in any trade or business and must avoid
going to the market for purchase or sale. A Qadhi should also
avoid transactions like lending or borrowing as its effects are
related to his office and position.
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A
Qadhi should not take cognizance of the cases of his children,
parents, brothers and sisters, or other near relatives, which can
create doubts or aspersions on his impartiality. Thus, he cannot
accept cases of those relatives, according to the opinion of some
jurists, in whose favour he cannot appear as a witness. He should
also avoid hearing of cases of his enemies. He should not contest
his own case. Instead, he should appoint an attorney.
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4.
Powers and functions: The primary function of a Qadhi is to dispense justice. He is
obliged to decide cases and disputes between the parties. He may
do it by pronouncing judgements or by arbitration. He is required
to show exemplary impartiality, fairness and sense of justice
while adjudicating the cases between the high and the low, between
ruler and the ruled, between the rich and the poor and, above all,
between the relative and the stranger.
However, in addition to the dispensation of justice, the Qadhi has
been traditionally entrusted with some other functions such as:
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Supervision of the subordinate law officers and subjudges within
his jurisdictional limits.
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Implementation of his decrees and judgements by calling upon the
guilty to satisfy the judgement given against him.
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The appointment of guardians for minors and lunatics.
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Administration and supervision of waqf properties.
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Execution of wills of the deceased.
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5.
Position and status:
A
Qadhi enjoys a very high and dignified status in an Islamic state.
Since the post of a Qadhi in an Islamic society is essential for
peace and dispensation of justice is regarded as one of the best
acts of devotion, some Shafites assign status to the Qadhi as
equal to the caliph in respect and esteem. The Prophet of Islam is
reported to have said that there is no envy except for two; a man
whom Allah has given wealth and spends it in His way, and a man
who has been given wisdom and he imparts justice by means of it
and spreads it.
The religious character of his office made the position of the
Qadhi very respectable. Sometimes he was appointed by the rulers
to carry out religious functions and preside over Friday prayers.
He also assumed importance in political field as his concurrence
was regarded essential to lend religious legitimacy for accession
or deposition of a king or to justify the imposition of a tax.
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6.
His emoluments:
Handsome salaries and remunerations are paid to a Qadhi lest he
should be tempted to accept bribe and do injustice. Though, no
standard of remunerations has been prescribed by the Qur’an or the
Sunnah of the Prophet (PBUH), yet the pieces of historical
evidence collected by the historians of early Islamic state reveal
that the right-guided caliphs paid respectable salaries and
allowances to the Qadhis. In the period of Caliph Umar, a Qadhi
was paid one hundred Dirhams and an amount of wheat compatible
with his needs. The same standard continued during the reign of
third and fourth caliph. Caliph Ali, in his letter to a governor,
advised him regarding a Qadhi. “… and spend on him with a
bountiful hand that removes
his ills and minimizes
his needs unto
people. Confer on him such a position that even your most chosen
persons
do not enjoy.”
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7.
His appointment and deposition:
A Qadhi is appointed by the caliph or the head of Islamic state
from among the persons eligible for the post on the basis of
learning, excellent character, honesty, trust-worthiness and
dedication. Once appointed, the Qadhi becomes independent in his
job and the appointing authority cannot interfere in his judicial
functions. Though an appointing authority can depose a Qadhi on
strong charges of corruption and misconduct, yet ordinarily he is
not removed from his post at the discretion of the appointing
authority. A Qadhi continues in his office even after the demise
of the appointing authority and no fresh appointment is required.
However, a Qadhi, on his own account, may resign from the post by
tendering his resignation to the appointing authority.
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III- Law and Procedure of Evidence
The
law of evidence which has been derived by the jurists and the
scholars from the Qur’an and the Sunnah as well as from the
exercise of Ijtehad is discussed briefly as follows:
1.
Evidence is essential in contracts,
business transactions, purchase and sale of goods and property. It
is also required to establish a claim, to prove an offence, to
hand over property to an orphan when he attains majority, to
contract marriage, etc. Evidence of four witnesses is required in
case of proving adultery, while in other matters evidence of two
witnesses is needed.
2.
The witness should be fair, just and
impartial in his evidence. He should honestly and steadfastly give
his evidence though it goes against his own interests or goes
against the interests of his nears and dears.
3.
The evidence of the following persons
is inadmissible:
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That of a treacherous man and a
treacherous woman.
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That of one who has been whipped for
an ordained crime.
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That of one who has enmity with the
accused.
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That of a slave in favour of his
master.
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That of a relative in favour of a
relative.
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That of a person who is under
obligation to the plaintiff or the defendant.
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That of a fornicator and fornicatress.
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That of one who is dependent on a
family (in favour of that family)
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That of criminals like slanderers,
murderers, thieves, dacoits, wine-drinkers, public singers,
prostitutes, usurers, heretics.
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That of a person who has been
convicted for the offence of Qazaf (levelling of false
allegation).
4.
False
evidence
is one of the major crimes and cardinal sins. It is equal to shirk
(holding partner unto Allah) which is an unpardonable sin.
5.
At the
time
of giving evidence, man who is witness can be made to swear by
Allah except Whom there is no God that he would speak truth and
hide nothing.
6.
Regarding
the Islamic institution of
purification of witnesses, Dr. Hamidullah writes: “As for the
administration of justice among Muslims, apart from its simplicity
and expedition, the institution of the “purification of witnesses”
is worth mentioning. In fact, in every locality, tribunals
organize archives regarding the conduct and habits of all the
inhabitants, in order to know, when necessary, whether a witness
is trustworthy. It is not left only to the opposite party to
weaken the value of an evidence. The Qur’an (24:4) has said that,
if someone accuses the chastity of woman and does not prove it
according to the judicial exigencies, not only is he punished, but
is also rendered, for ever, unworthy of testimony before
tribunals”
7.
In its Verse
no
282 of Chapter 2, the Qur’an equates evidence of two women to that
of one man in the matters relating to contracts of debt and the
reason given by the Qur’an for that is: if one of the two women
forgets the other should remind her. Mr Ahmad Ali, in his
commentary of the Qur’an, explains this injunction as follows:
“The
verse deals with a special kind of monetary transaction, as the
word dain signifies. Generally translated as ‘debt’ dain also
means, as here, bill of hand’ which would be called ‘letter of
Credit’ today. The conditions of an LC can be very trickly and
complicated, and are often missed even by experienced businessmen
and legal experts. That is why, perhaps, the Qur’an emphasises
that the terms of the contract should be written down, preferably
by a well-versed scribe, who would today be equivalent to lawyer.
There being no established courts of law at that time, the Qur’an
suggests a further safeguard of having witnesses to the deal
namely, two men, and in case two men are not available, one man
and two women of whom only one, in reality, is the witness, the
other being just her helper in case she gets confused. That is why
the role of the second woman is so clearly defined. These
precautions have not been suggested in the case of simple
transaction face to face about merchandise, mentioned in the later
part of the verse, and the simple way of pledging the goods
against the loan is considered sufficient. The presence of two
women does not mean that both are witnesses, or that the evidence
of one woman is half of that of a man. In no other place in the
Qur’an two women have been suggested as witnesses except here,
because this is a case of special transaction and women, not being
adepts at business, were more likely to get confused than men.”
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