CHAPTER-14
Justice
What is Justice
The administration of Justice, according to unanimous view of political philosophers of all ages, is the foremost and fundamental duty of a state. States cannot survive without 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.
According to Judicial Dictionary, “Justice consists precisely in treating all cases alike and meeting out fair and equal treatment to all.” P.G. Osborn’s Dictionary defines justice as “the upholding of rights, and the punishment of wrongs, by the law.” Generally accepted definition of justice is still that of Justinian which states: “The constant and perpetual will to give each man his due.” In the nutshel, Justice involves the idea of :- (a) Punishment of offences; (b) the giving to a person of what is due to him, and (c) the impartial settlement of disputes on principles approved by the community Justice has been classified into various kinds. According to one classification, justice is grouped into distributive justice and corrective or remedial justice. According to another classification it is grouped into legal justice and moral justice. According to yet another classification it is placed under natural justice and social justice. These classifications, in fact, highlight various aspects of justice.
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 kindness (or ‘Ehsan’). Justice, according to Ibn Abi’r Rabi, consists in putting everything in its proper place and giving everyone his due. Administration of justice, in his view, is function of government which is on a higher plane than other functions. Imam Al-Ghazzali relates how Caliph Umar bin Abdul Aziz asked 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 Hadrat Ali that the best judge is he who is not prejudiced in his decision from personal desires or by any leaning towards his relations, or by fear or hope, but takes a natural attitude towards all that come before him.
Islam and Justice
Though the world ‘justice’ has not been defined in explicit terms by the Qur’an or Hadith, yet the Qur’an and Sunnah have attached great importance to justice and fair dealing in human relations. Dispensation of justice has been greatly emphasised between man and man and between state and individual. It is the foremost obligation of the Islamic state to provide justice to all of its citizens without fear or favour and without any discrimination and prejudice. According to the Qur’an, Allah sent messengers and revealed books so that the mankind may stand forth in justice. Justice must be dispensed even if it goes against one’s parents or near relations. No enmity or hatred of a people should incite one who is responsible for doing justice to leave the path of justice and truthfulness. Many blessings reward those who establish justice fairly and impartially, while the unjust and the oppressive rulers have been threatened with severe punishment.
According to Islam, justice is trust, a sacred obligation which is to be fulfilled in conformity with the dictates of Allah in the most honest and objective manner. The ultimate aim of justice is to ensure the peace and welfare of the people by ensuring respect of law and by punishing the wrong-doer. The most important guiding principle behind the Islamic administration of justice is to place one’s own self in the position of the seeker of justice and then to decide. The prophet of Islam declared: ‘You should wish for your brother what you wish for yourself’. This principle pronounced by the Prophet (PBUH) can guide a judge in the administration of 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. 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. It would be fair and proper if we reproduce some of the injunctions of the Qur’an and Ahadith (Traditions) of Prophet Muhammad (PBUH) to show how Islam values justice.
Injunctions of the Qur’an
The Qur’an says:
1) Allah is the Best of all Judges (95:8), and He loves those who are just and equitable (5:42, 49:9, 60:8)
2) Judge according to what Allah has revealed. Those who do not judge by that which Allah has revealed are wrongdoers (5:45), such are evil-livers. (5:47)
3) Allah sent messengers with clear proofs, and revealed with them the Scripture and the Balance that mankind may stand forth in justice, (57:25)
4) Allah set Prophet David as a viceroy in the earth and commanded him to do justice between the people with truth. (38:26)
5) Allah commanded Prophet Muhammad to do justice, saying: Lo! We have revealed to you the Book with the truth that you may judge between mankind by that which Allah shows you. And be not a pleader for the treacherous (4:105). Judge between them (the Jews if they have recourse to you) with equity. (5:42). Judge between them by that which Allah has revealed and follow not their desires …..(5:49). “Say (O Muhammad to them): My Lord enjoins justice….” (7:29). “And say: I believe in whatever Scripture Allah has revealed, and I am commanded to do justice among you.” (42:15)
6) Allah commands (you to do) justice and kindness. (16:90)
7) Verily Allah commands you that you give back the trusts (or deposits) to their owners, and when you judge between the people you judge with justice. (4:58)
8) O you who believe! Stand firmly for justice, as witness to Allah, even though it be against yourselves or your parents or your relatives. Whether the case is of a rich man or a poor (it makes no difference) for Allah is nearer to both (than you are). So follow not your passion lest you lapse from justice. (4:135)
9) O you who believe! Stand up firmly for Allah as just witnesses, and let not the enmity of a people seduce you to do injustice. Do justice, that is nearer to piety, and fear Allah. (5:8)
Traditions of Muhammad (PBUH)
1) 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)
2) 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)
3) 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)
4) 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!” (Tirmizi, Abu Daud and Darimi)
5) Amr-bin Shuaib reported …… that the messenger of Allah said: Proof is upon the plaintiff and oath is upon the defendant. (Tirmizi)
6) 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 committed theft, I would have cutt off her hand. (Bukhari, Muslim)
Qadhi 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 Qdha 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 an officer 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. English equivalent of Qadhi is Judge.
His Qualification: A candidate for the post of a Qadhi should possess the following qualifications in order to be eligible:-
1. He must be a Muslim. The Qur’an says: O you 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 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.
2. 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 not disqualification.
3. 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.
4. 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. Shafi maintains that an unjust man is not capable of the office of Qadhi.
5. 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. However, 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 woman can be appointed a judge without any restrictions.
6. A Qadhi must be a learned person and must be well-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 jurists, 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 work as a Qadhi. Imam Malik, Ibn Qudamah, Imam Shafi 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.
His code of conduct: Muslim jurists, in the light of the Qur’an and Sunnah and the conventions of the right-guided caliphs and practice of good Qadhis, have recommended the following code of conduct for a Qadhi:
1. The Qadhi should perform the work of dispensation of justice and adjudication when he is in good frame of mind. According to a tradition of the Prophet (PBUH) 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 indisposed, etc.
2. 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.
3. 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 a 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. Hadrat 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.
4. 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.
5. Needless to say that a Qadhi must be very honest and that he should not be tempted by bribery or any other offers.
6. 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.
7. 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.
8. 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. 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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