What does Islam say about the structure of the judiciary? - File photo.

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) The verse lays down that dishonesty must be punished, and the balance of justice must be held equal between friends and foes, Muslims and non-Muslims.

Judges are required to be upright so as not to be swayed by ties of relationship or by considerations of fear, favour or the kind. 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 then, `... And not let hatred of a people keep you from acting equitably....` (5 8) `... So judge between men justly and follow not desire....` (38 26)

The Prophet of Islam (PBUH) was known for his fair and impartial administration of justice. He strictly implemented equality before law, and never made any distinction between litigants on the basis of faith or relations. Instead of claiming any legal immunity, he laid 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. By Allah, had Fatima, the daughter of Mohammad (PBUH), committed theft, I would have cut off her hand.`

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 to his feet as a sign of respect. Umar, considering the act as an unforgivable weakness, immediately dismissed him from office. On another occasion, Umar caused his son to be publicly flogged for drinking alcohol.

These instances show the extent to which impartiality is expected of a Muslim judge. The following portion of a letter, written by Ali 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 often; 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 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.

The writer is a Harvard Law School graduate based in Lahore.

syed-asad@post.harvard.edu

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