JUSTICE AS A FUNDAMENTAL PILLAR IN ISLAM
By:
MUHAMMAD NASIR KHAN
(LL.M)
Islam provides a unique philosophy in the
world of religions because each and every act of a muslim may be equated to a religious one as motive
behind such act is of paramount importance. So justice in islam is considered to be a barer of Allah, while
administration of justice is not alone official or moral duty but also a
religious one. The dispensation "adal” or
justice as viewed by late justice Hamoodur Rehman(l),
"is the exercise of alqada which according to islamic concept, is the common concern of all muslims as a fard al-kifaya".
Now come to a precise definition of justice viz-a-viz adal
of arabic etimology. The nomenclature justice (as used in western
concept) as is generally known and understood may be equated to the concept of adal, qist or meezan
of islamic teaching. Justice
Hamoodur Rehman in his article(2) has stated, "justice in islam
is different from the concept of remedial justice of the Greeks, the natural
justice of the Romans or the formal justice of the Anglo-Saxons.
In western philosophy justice is said to be
blind but in islamic
teachings the most proper word to be equated with justice is, ihsan i.e justice means getting a
square and fair deal, ihsan may stand for good is
done over and above requirements of pure justice.
Syed Abdul Majeed in
his book(3) says that, "if a person hits you on
your cheek justice demands that you too may hit with the same force on his
cheek. But ihsan demands that you may forgive the
aggression in your love for your erring fellowmen. What it indicates that repel
ill with some sort of good". Prophet Muhammad (P.B.U.H) after migration
from Macca was admitted as Chief Justice of the
city-state of Madina by all the tribes. Charter of Madina or Mithaaqe-Madina was
formulated and adopted between various clans of madina.
Dr. Hameedullah, a highly reputed international scholar
has declared the charter as the first written constitution of the world. During
this period some important incidents apropos administration of justice took
place which occupied prominent place in history books and are corner stone and
cause of guidance for judicial dispensation. Among other a well known event of larcency committed by a woman Fatima and admonition of the
Prophet that if in case his own daughter Fatima had had committed larcency surely she had to face the same fate of an
ordinary larcenist. As the al-Quran ordaines
(4) judges to decide against themselves, their parents, relatives, friends etc.
The Prophet practically did it.
In total contrast to medieval kings of england where it was a proverb that king cannot do a wrong,
much before this period in famous Last Sermon, the Prophet said that, "if
he owed anything to any one or had misappropriated
anyone's property or had done any harm to anyone's life or reputation, he was
present there to pay his dues to whomsoever demanded it". The audience was
amazed and out of the whole assembly there was only one person who claimed some
dirhams, which were paid promptly.
Acknowledged by all the friends and foes that
judiciary in the known human history was first separated from executive by the muslims. Though upto time of first caliph of islam, Abu Bakr the caliph
himself and his administrative officers acted as judges. However by the time of
second caliph Umar bin khatab
practically separated the judiciary from executive. Apart from the muslim historians an english
writer Von Hammer has said(5), "the Islamic
administration even in its infancy proclaimed in the words and in deeds the
necessary separation between judiciary and executive powers".
The statement of von hammer was not mere a
theoretical one but can be espoused by a hallmark event of second caliph Umar reign, (6) i.e in a suit
brought against a jew by Umar b.khatab, both of them went
to the qazi. Seeing the caliph, the qazi rose in the seat out of deference. Umar
considered that such an act was unpardonable weakness and he dismissed the qazi at once.
Justice Gul
Muhammad Khan in his article (7), has endorsed the
views of von hammer by saying that qazis appointed by
Umar b.khatab were free
from the control of the governors. History books are evident
that legal proceedings against caliphs and governors were instituted in
ordinary Courts in a normal way and disputes were settled strictly in the
spirit prescribed by the shariah. Once on the
occasion of haj Umar b.khatab addressed a large gathering of peoples in prescence of all of his governors saying that(8),
"my governors are not appointed to strike you in your faces and grab your
property. I rather sent them to teach you your faith and acquaint you with your
Prophet practice. If any governor deviates from this course, report to me. By
Allah I will see to it".
Following are some of the incidents that took
place during reign of second caliph Umar, Abdul Qadeer says(9), "once Umar got a horse on approval. But it died as he rode on it.
The owner of the horse started wrangling with Umar,
where upon he offered to appoint an arbitrator to settle, the dispute the owner
of the horse named Shuriah, to act an arbitrator. Umar agreed to it and Shuriah
decided the matter by saying that as the caliph received the horse in perfectly
good health\condition it was incumbent upon him to return it unimpaired.” Induced by the just decision of shuria Umar appointed him as qazi.
The same author at another place of his book(10) has
quoted another incident which is well known and related to jibalah
b.acham. He was performing tawaaf
of Ka'ba. Perchance a villager set his foot on fringe
of his cloak. Enraged as he was, jibalah slapped this
poor fellow. The rustic complained this to Umar, who
ordered retaliation. A chieftain like jiballah could
not withstand the indignity he had to suffer by the hands of a rustic and flee
to
Now some instances fron
Ali b.abe Talib, fourth caliph's reign, Justice Hamoodur Rehman has quoted(11), "in a suit for recovery of his armour from a jew in the Court of
qaaze of kufa he appeared
personally but lost the case because the witness he had in support of his claim
were his slave and his son whose testimonies were not fit in this case to prove
a claim". In another incident Abdul Qadeer has stated(12), “Mughira, governor of kufa was accused of adultry. He
was tried for the alleged offence according to normal judicial procedure".
What it depicts that there was rule of law even at the primitive stage of
Islamic history.
In the history of Islam Umar
the great was the first who introduced an institution called Ifta or jurist-consult. H.S Bhatia in his book(13) has narrated that Umar
also set up the institution of Ifta to advise the
executive, assist the judges as well as the lay-public. This body constituted
of capable mufties who could give legal opinions(fatwas). They were not
only legal advisors of the state but also a body which gave free legal aid to
the lay-public so that no one should suffer due to ignorance of law.
REFERENCES:
1. Reflection
of Islam by Justice Hamoodur Rehman
(p.144);
2. The
Concept of Justice in Islam, an article written by J.Hamoodur
Rehman;
3. Saga
of Islam by Sycd Abdul Majeed
(p.277);
4. al-Quran
4:135;
5. History
of Saracen by Amir Ali (p.62);
6. Reflection
of Islam by S.Hamoodur Rehman
(p.I50);
7. The
Concept of Justice in Islam an article written by J.Gul
Muhammad Khan;
8. al-Kharaj by Abu Yousuf (65);
9. Criminal
Law of Islam (vol. 2) by Abdul Qadeer
10. ibid;
11. Reflection
of Islam by J.Hamoodur Rehman
(p. 151);
12. Criminal
Law of Islam op.cit;
13. Studies
in Islamic Law, Religion and Society by H.S Bhatia (p.58).
14.