Concept of justice

MOST of the recent western legal concepts such as supremacy of law, equality before law, judicial independence and impartiality, juristic personality, non-retroactivity, legal representation, presumption of innocence, etc., were never alien to Islam.

Muslims can take just pride in the fact that from the beginning their judicial system was placed on lines that in substance are no different from those of the best systems of today. Let us take a brief look at some of the main features of administration of justice in Islam.

1. Supremacy of law: In Islamic legal system, no ruler and no official can claim to be above the law. No acts, procedures, and decisions of any authority, howsoever high it may be, can be valid and binding as to the people they affect, save to the extent they are in consonance with the law.

2. Equality before law: The Quran and the Sunnah, which are the primary sources of Islamic law, put great emphasis on equality. Consequently, in Islamic legal system there cannot be one law for the ruler and another for the subject; one for the powerful and another for the weak; one for the rich and another for the poor. Government authorities enjoy no special privileges or immunities from the application of law. Even the Holy Prophet (PBUH) did not consider himself or his family above the law. Instead of claiming any immunity from the law, he laid down the rule that even the head of the state may be challenged, in both official and private capacity, in the court.

The following statement of the Prophet, which he made while deciding the case of a noble woman who had committed theft, demonstrates it all: “Verily those who were before you were destroyed because when a noble man from among them committed theft, they passed no sentence on him. By Allah, had Fatima, the daughter of Muhammad, committed theft, I would have cut off her hand.”

Also, during the course of his last sermon, the Prophet publicly offered to the community that if he owed anything to anyone, or had done any harm to anyone’s life or property, he was available to answer for it. One person came forward and demanded some money which was immediately paid.

3. Judicial impartiality: The Quran says: “Surely We have revealed the Book to thee with truth that thou may judge between people by means of what Allah has taught thee. And be not one pleading the cause of the dishonest.” (4: 105)

It is agreed that the occasion of the revelation of the above-given verse was a dispute between a Jew and a Muslim, in which the Prophet decided against the Muslim. The Muslim, supported by his tribe, had falsely accused the Jew of theft. At a time when help was sorely needed for the defence of Islam, a verdict against a man supported by his tribe meant the loss of that tribe. But such considerations did not carry any weight with the Prophet and he cleared the Jew of the charge. Thus, the verse lays down that dishonesty must be punished, and the balance of justice must be held equal between friends and foes and between Muslims and non-Muslims.

The Prophet was known for his fair and impartial administration of justice. Along with Muslims, non-Muslims would also come to him for settlement of their disputes and he would adjudicate in accordance with their laws. He strictly observed the Quranic instructions regarding equality before law, and never made any distinction between litigants on the basis of religion or relations.

The Quran says: “O you, who believe, be maintainers of justice, bearers of witness for Allah, even though it be against your own selves or (your) parents or near relatives—- whether he be rich or poor .... And if you distort or turn away (from truth), surely Allah is ever Aware of what you do.” (4: 135) “O you who believe, be upright for Allah, bearers of witness with justice; and not let hatred of a people incite you not to act equitably. Be just; that is nearer to observance of duty. And keep your duty to Allah. Surely Allah is aware of what you do.” (5: 8)

The extent to which impartiality is expected of a judge is also well illustrated in the story concerning Caliph Umar. He once had a lawsuit against a Jew. When both parties went before the judge, the latter rose in his seat out of deference to Umar. Umar looked upon this act of deference to one party as an unpardonable judicial weakness and dismissed the judge at once.

4. Judicial independence: In Islamic legal system, judiciary is independent of executive control. Judges can perform their functions without any interference and none can influence the course of justice with his authority or wealth. The following portion of a letter that was written by Caliph Ali to one of his governors, excellently explains the notion of independence of judiciary in Islam:

“Select for 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.”

Since law, in Islam, stands at the apex of social organisation, those who administer the law must likewise be elevated and kept free of all executive control.

5. Free administration of justice: In Islamic legal system, justice is administered free of cost. All citizens, regardless of their financial status, can get justice without incurring any expenses in the form of court fee, stamp duty, etc.

Conclusion: In Islam, the concept of justice is more comprehensive, vital, and sacred than in any other system. It is one of the fundamental objectives of the Islamic state to provide justice. Not only justice is considered to be a trust, a sacred responsibility, which is to be performed in conformity with the provisions of the Quran and the Sunnah; but the dispensation of justice also constitutes one of the most important acts of devotion.

An agenda for the OIC

PEOPLE living in OIC countries had pinned high hopes on the organization’s extraordinary summit and are now waiting to see how far its 10-year plan of action will help to realize the “vision to turn the tide” that the OIC has set in the Makkah declaration.

The statistics that paint the true picture of state and society in member countries of the OIC are too depressing but well known to the readers of this newspaper. One simple statistic aptly sums up their collective plight: comprising over 20 per cent of the world population OIC countries have been incapable of generating even five per cent of global wealth and their share continues to decline even now.

As a matter of fact they were better off in the mid-18th century than they are now. The Ottoman and Mughal empires together accounted for over 30 per cent of the world GDP during their times.

For the loss of the people and areas of these two old empires that are now outside the OIC, there have been additions of people, resources and areas in countries of Central Asia, Southeast Asia and Africa into the OIC that more than balance the overall equation.

Therefore, with their share in the creation of the wealth of the world shrinking to under five per cent of the world GDP, their economic contribution now is one-sixth of what it was about 250 years ago. The state of their economies is reflected in their powerlessness in the political and other spheres of their individual and national lives.

It would help to correctly address our challenges when we realize that the single most important factor that has kept weakening our economic and political power and increasing social problems is an event that also happened about the same time in history — about 250 years ago. Even now, it continues to cast its long shadows on every society.

It is not for nothing that the industrial revolution has been called the ‘most important event in human evolution in over 8,000 years’. Unfolding since some 250 years ago, it has benefited all those that have embraced it except the Muslim world that has almost refused to acknowledge it. Consequently, Muslims are being pushed into the periphery.

The industrial revolution involves more than just science and technology or a smattering of trade and industrial activity and requires a restructuring of the social, economic and political underpinnings of society if that society is to succeed. But its rewards lie in the creation of new sources of wealth and power that are not dependent upon the possession of Neolithic assets and generate unending benefits.

In short, the reforms and restructuring required for OIC countries to succeed lie in changing the relationship between society and the state and redefining the place of their citizens.

Many in OIC countries are asking how the 10-year plan of action purports to ‘turn the tide’ without changing the mediaeval underpinnings of systems that have produced their decline in the first place. The need for internal reforms stems from the reality that if we are not the solution to our problems, there is no other solution.

Nor can we continue to hide behind scapegoats and keep pointing fingers at others for all that ails society in OIC countries.

Most OIC governments must acknowledge that they control the entire social, economic and political spectrum in their countries and that not many opportunities are left open to those who are not part of the government or not ‘blessed’ by the government in one way or another.

Eliminating poverty and generating employment opportunities cannot materialize in an environment where government monopolies are dominant in every sphere of national life.

These governments need to ease their heavy hand over the economy and polity of their countries and encourage greater participation by their people. The resounding successes of Dubai and Malaysia in their own, very different, fields are proof of what OIC countries can achieve by giving greater space to their people.

There is of course, justification for the complaints voiced by the OIC regarding the current hate and bigotry against Muslims. But there are plenty of things that are actually wrong and we should be mature enough to admit the facts and work to address our weaknesses. This does not mean that we should submit to the new labels being tagged to our image.

The OIC has done wise to address the issues created in the post 9/11 world and the summit has strongly voiced its condemnation and called for extensive inter-faith and inter-state dialogue for better understanding and respect all around.

But the problems afflicting OIC member countries are much older than the events of 9/11. And even if there were no 9/11, the OIC countries have to get around to addressing the many internal challenges their societies have been facing since long. Their success or failure would depend much more on how they address their internal challenges than anything else.

There are also many linkages between external and internal problems confronting OIC states. Their strong commitment to fight terrorism should also resonate in changing the mediaeval underpinnings of their societies and developing systems that would be more inclusive and incorporate their people into the peaceful and productive conduct of their national life.

That is not only one of the fundamental principles of good governance supported by the OIC in its declaration; it is also good state policy because the outcasts of one society can hardly be expected to become members of the mainstream in another.

More by deeds than by declarations, the OIC can convey to its people whether the 10-year plan of action will help in removing the poverty and powerlessness that have enveloped their societies for over 250 years. The need is for the emergence of a clearer and more categorical strategy.

Without addressing the changes that would finally inaugurate the industrial revolution in their societies, OIC countries cannot expect to reverse the tide that has been turning against them. Many people in the OIC also believe that the need reform and restructuring of the relationship between society and state can best be helped by carrying out the following five steps given below:

— building capabilities in their peoples through extensive programmes of modern education and skill development

— empowering their people through reforms in social, economic and political governance by opening up equal opportunities

— instituting work ethics as the basic value system for rewards and punishment

— providing equal protection to all through the rule of law

— curbing extremism, violence and terrorism as means of settlement of disputes

Of course, these objectives can only be achieved gradually and different countries will have to follow different timeframes. But these five steps impart a clearer sense of direction and help better in the realization of the “vision to turn the tide” that the OIC has set form in the Makkah declaration.

smshah@alum.mit.edu

Spying on Americans

IN the wake of the Sept. 11, 2001, attacks, the New York Times reported last week, President Bush authorized the National Security Agency to conduct electronic surveillance of hundreds of US citizens and residents suspected of contact with Al Qaeda figures — without warrants and outside the strictures of the law that governs national security searches and wiretaps.

The rules here are not ambiguous. Generally speaking, the NSA has not been permitted to operate domestically. And the Foreign Intelligence Surveillance Act (Fisa) requires that national security wiretaps be authorized by the secretive Fisa court. “A person is guilty of an offence,” the law reads, “if he intentionally ... engages in electronic surveillance under colour of law except as authorized by statute” — which appears, at least on its face, to be precisely what the president has authorized.

Mr Bush, in his weekly radio address, defended his action, chastised the media for revealing it, and suggested both that Congress had justified this step by authorizing force against al Qaeda and that such spying was consistent with the “constitutional authority vested in me as commander in chief.” But there is a reason the CIA and the NSA are not supposed to operate domestically: The tools of foreign intelligence are not consistent with a democratic society.

Americans interact with their own government through the enforcement of law. And in those limited instances in which Americans become intelligence targets, Fisa exists to make sure that the agencies are not targeting people for improper reasons but have sufficient evidence that Americans are actually operating as foreign agents. Warrantless intelligence surveillance by an executive branch unaccountable to any judicial officer — and apparently on a large scale — is gravely dangerous.

Why the administration even deems it necessary remains opaque. Mr. Bush said yesterday said that the programme helped address the problem of “terrorists inside the United States ... communicating with terrorists abroad.” Intelligence officials, the Times reported, grew concerned that going to the Fisa court was too cumbersome for the volume of cases cropping up all at once as major al Qaeda figures — and their computers and files — were captured. But Fisa has a number of emergency procedures for exigent circumstances. If these were somehow inadequate, why did the administration not go to Congress and seek adjustments to the law, rather than contriving to defy it? And why in any event should the NSA — rather than the FBI, the intelligence component responsible for domestic matters — be doing whatever domestic surveillance needs be done?

—The Washington Post