Justice And Islam

JUSTICE AND ISLAM (Paper presented at the Conference of the Islamic Philosophical Association of Pakistan on 12th November, 1987.)

By

Mr. Justice Dr. Nasim Hasan Shah, Judge, Supreme Court of Pakistan

Justice in Islam is like an unassailable fortress which can neither be overthrown by the violence of torrents nor demolished by the force of armies. Why this unassailability? It is mainly because justice in Islam is totally impartial. It is no respecter of persons, high or low, prince or peasant, white or black, Muslim or non‑Muslim:

"O, ye who believe, be maintainers of justice, bearers of witness for Allah's sake though it may be against your own selves or your parents or near relations, be he rich or poor. Allah is most competent to deal with them both, therefore do not follow your low desires lest you deviate, and if you serve or turn aside then surely Allah is aware of what you do."

(Al‑Quran, IV:135)

A Hadith of the Holy Prophet (p.b.u.h.) reported both by Bukhari and Muslim reveals the importance which the Holy Prophet (p.b.u.h.) attached to the doing of justice with absolute impartiality and without any discrimination, whatever. It is reported that the Quraish 'were anxious about the repercussions over the punishment to a Makhzumi woman who had committed theft and asked "who will speak to God's messenger about her?" Then they said "who except Usama b. Zaid, the friend of the messenger of God." Accordingly, Usama spoke to messenger of God, who after hearing him‑said "you are interceding against one of the punishments prescribed by God?" He then got up and exclaimed "What destroyed your predecessors was that when a person of rank among them committed a theft they left him alone, but when a weak one of their number committed it they inflicted the prescribed punishment on him. I swear by God that if Fatima daughter of Muhammad should steal I would have her hand cut off."

In the same connection, the following observations of Hazrat Abu Bakr Siddiq, on his election as Caliph, merit attention:

"O, People; I have been made the ‑Ruler amongst you, and I am not the best of you. So if I act rightly, help me, and if I am in error, correct me.

Truth is a (sacred) trust, and falsehood is breach of trust.

The weak amongst you is strong in my eyes till I bring, with the help of God, to him what is his right. And the strongest amongst you is weak (in my eyes) till I take from him, with the help of God, what is due."

Hazrat Umar the second Caliph, enunciated this principle even more emphatically. He said:

"If any one dares to usurp the right of another, I will throw him on the ground and put my foot on his neck, till I get back from him, the right that he has usurped of the other:"

But doing justice in Islam is not merely the concern of the Ruler or the Judge alone. It is the responsibility of the community as a whole. No one can stand apart as a silent spectator in an Islamic Society, while injustice is being perpetrated towards another, simply because he is not personally affected thereby:

"Ye are the best community that has been sent forth to mankind (in that) you enjoin right and forbid wrong and have faith in God."   

(Al‑Quran, III: 110)

If we Muslims were to adhere to the above Quranic concept of justice, the need for establishing Courts far doing justice in the State would not be necessary. But unfortunately being human we are not immune from human weaknesses of viciousness, aggression and jealousy‑‑in short remain sinners:

Human weaknesses being inherent in human nature we are all guilty of wrong doing. As a wrong done affects the rights of another and rave wrongs result in causing dis-equilibrium in Society the State' must of necessity take measures to see that justice is enforced in the Community and order prevails in the Society. The true balance should always be maintained:

"He has set up the balance (of justice), in order that ye may not transgress (due) balance. So establish weight with justice and fall not short in the balance."    

(Al‑Quran, LV: 7‑9)

It is also ordained:

"Lo; Allah commandeth you that ye restore deposits to their owners, and if ye judge between mankind that ye judge justly."

 (Al‑Quran. IV: 58)

At the same time justice must be administered humanely:

"Allah commands justice, the doing of good and liberality to kith and kin."

(Al‑Quran, XVI :90)

In his commentary, under this verse Abdullah Yousaf Ali observes that justice in its comprehensive sense "may include all the virtues of cold philosophy" but Islam asks "for something warmer and more human." This 'Something warmer' is called 'Ehsan or goodness proper.' 'Adl' simpliciter, according to the Islamic concept, is the doing of good for good but 'Ehsan' is the doing of good even where 'Adl' does not strictly demand it and there is no question of receiving any reciprocal benefit. Justice, according to the command of Allah has, therefore, also to be tampered with mercy and it is on this principle that an otherwise legal claim may be withheld or a legal obligation not imposed, upon considerations of hardships or the best interests of the community as a whole.

The above principle also indicates that under the Islamic System, Law and Equity are not different concepts. There are no separate Courts of Equity in Islam nor do different principles govern the grant of equitable remedies. Restitutio in integrum and specific performance are the rule and not an exception. Damages are allowed only where specific performance becomes impossible or to enforce it would result in hardship.

In the administration of criminal justice, the same principle is adopted. Justice is not adequately done merely by punishing the offender but in order to do complete justice the victim should be compensated for the loss suffered by him. Moreover the principle favoured under the Islamic system is to prevent the commission of crime rather than punish the offender after its commission. The concept that punishment of a criminal would deter others from committing crimes is not accepted. In an Islamic Society the State is under an obligation to create such conditions that crimes should not be committed.

Similarly, torts and crimes, in the Islamic System, come within the same jurisdiction. It is the duty of the State, as indicated already, to see that the culprit is not only punished but that the victim also is idemnified. Diyat (blood‑money) can be realized not only from the culprit but also from his kinsmen and tribe like a collective fine there the culprit is not traceable the head of the local police will be field responsible for making good the loss to the victim.

There are a large number of other legal principles which are decipherable from the Holy Quran, for instance:

(i) No offence can be created retrospectively.

(Al‑Quran; VIII‑‑38

(ii) Self defence is no offence. 4

(Al‑Quran, XLII:41

(iii) No more burden will be placed on one than he can bear.

(Al‑Quran, II: 28C,

(iv) Decide according to the evidence produced.

(Al‑Quran, IV: 10

However principles besides those noticed above can certainly be devised to deal with the problems pertaining to administration of justice arising from day to day. The commands of the Holy Quran that have been expressed in pass terms cover a very small field and by far the much larger area of human activity has been left unspecified wherein the Lawgiver in the State is permitted (mubah) to do whatever is necessary for the common good. Indeed the Almighty, in this field, has left it to us Muslims to provide for whatever may be necessary in the circumstances, through additional legislation by the exercise of our ijtihad (independent reasoning) in consonance with the spirit of Islam. To be more precise, the legitimate field of the community's law‑making activity comprises:

(a) details in cases and situations where the Shariah provides a general principle but prescribes ‑no detailed commands; and

(b) principles and details with regard to matters which are mubah, that is, not covered by Shariah laws at all.

It is this method that the Quran has referred to in the words:,

"For every one of you We have ordained a Divine Law and an open road."

(Al‑Quran, V: 48)

Thus, while the Divine Law (The Shariah) outlines the area within which Muslim life may develop, the Almighty has conceded to Muslims within this area, an "open road" (minhaj) for temporal legislation which would cover the contingencies deliberately left untouched by the nusus of the Quran and Sunnah.

The Prophet's (p.b.u.h.) sanction of a ruler's right to resort to such free ijtihad decisions is illustrated in many Traditions, but perhaps nowhere as lucidly as in the classical report of his conversation with his Companion Mu'adh ibn Jabal:

"When he (Mu'adh ibn Jabal) was being sent (as governor) to the Yemen, the Prophet asked him: "How will you decide the cases that will be brought before you?"

Mu'adh replied: "I shall decide them according to the Book of God."

"And if you find nothing concerning (a particular matter) in the Book of God?"

"Then I shall decide it according to the Sunnah of God's Apostle."

"And if you find nothing about it in the Sunnah of God's Apostle?"

"Then,  replied Mu' adh, "I shall exercise my own judgment (ajtahidu bi‑ra'yi) without the least hesitation."

Thereupon the Prophet slapped him upon the chest and said: "Praised be God, who has caused the messenger of God's Messenger to please the latter."

(Jami Al‑Tirmidhi and

Sunan Abu Daud, on

the authority of

Mu'adh ibn Jabal)

We should never forget that the message of Islam is eternal and must, therefore, always remain open to the searching intellect of man. The very greatness of the Prophet's life example lies in the fact that the more our knowledge of the world progresses, the better we can understand the wisdom of the Law of Islam.

It would not be out of place here to say a few words about the attempt being made in Pakistan to enforce the Islamic System of Justice. The Objectives Resolution which was adopted by the First Constituent Assembly on 7th March, 1949 has become a substantive part of the Constitutions and has afforded an opportunity to Courts in Pakistan to administer justice according to the precepts of the Quran. Until the 30th December, 1985, the Objectives Resolution was nothing more than a preamble to all, the' Constitutions adopted in Pakistan serving the same purpose as any other preamble to a legal instrument namely, that in the case of any doubt as to the intent of the law‑maker, it could be looked at for ascertaining the true intent but could not control the substantive provisions thereof. But its position underwent a dramatic change when on 30th December, 1985 while lifting Martial Law and revising the Constitution of 1973 [by the Revival of Constitution Order, 1985 (P.O. 14 of 1985)] it was incorporated into and made a substantive part of the Constitution itself by inserting therein a new provision, numbered as Article 2‑A.

The impact of this new Article in the administration of justice in Pakistan has already started manifesting itself. As an example I may mention the case relating to the compulsory retirement of civil servants.

During the Martial Law period a new Chapter (Chapter 3‑A) entitled "Federal Shariat Court" was added in Part VII of the Constitution of 1973 by General Muhammad Zia‑ul‑Haq by promulgating President's Order 1 of 1980. By this Order, a Court called the Federal Shariat Court was constituted which was empowered to examine and decide the question whether or not any law or provision of any law presently in force in Pakistan, is repugnant to the Injunctions of Islam, as laid down in the Holy Quran and the Sunnah of the Holy Prophet (p.b.u.h.). Taking advantage of this situation some civil servants challenged, before the Federal Shariat Court, certain provisions of the Civil Servants Act of 1973 whereby the competent authority could retire civil servants who had completed 25 years of service qualifying for pension or other retirement benefits even though the normal retirement age was 60 years.

The Federal Shariat Court in a well‑considered judgment found that the impugned provisions of the Civil Servants Act were indeed repugnant to the Quran and the Sunnah and directed that they be repealed.

The judgment of the Federal Shariat Court was challenged by an appeal before the Supreme Court, which was heard by the Shariat Appellate Bench of the, Supreme Court (consisting of five Judges). The appeal was dismissed (by a majority) but what is relevant here is that one of the Judges (constituting the majority) based his judgment directly on the terms of the Objectives Resolution. The said learned Judge after quoting the opening words of the Objectives Resolution, namely:

"whereas sovereignty over the entire Universe belongs to Allah Almighty alone and the Authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust."

went on to elucidate the concept of a trust in Islam and observed "the concept of Delegated Authority held in trust is enshrined in Verse 58 (of Surah Al‑Nisa) and it has invariably and consistently been given an extended meaning. Additionally, all authority being delegated authority and being trust, and a sacred one for that matter, must have well‑defined limits on its enjoyment or exercise. In the Holy Quran more so, but also both in the Western and the Eastern jurisprudence, delegated authority held in trust has the following attributes

("i) The Authority so delegated to, and held in trust by, various functionaries of the State including its Head must be exercised so as to protect, preserve, effectuate and advance the object and purposes of the trust;      

(ii) All Authority so enjoyed must be accountable at every stage, and at all times, like that of trustee, both in the heirarchical order going back to the ultimate delegator, and at the other end to the beneficiary of that trust;

(iii) In discharging the trust and in exercising this delegated authority, there should not only be substantive compliance but also procedural fairness."

As these attributes were found to be lacking in the impugned provisions of the Civil Servants Act, the learned Judge was pleased to hold them to be unlawful. Thus a most important power vesting in the hands of the Government, namely, the power to remove senior civil servants from service; a power conferred on it by Solemn Acts passed by competent legislatures was found, because of its repugnancy with the Objectives Resolution, to be unlawful.

This is not all. Another Judge, in the same judgment, remarked "Man having been born in the image of Allah cannot be permitted in matters of judgment to do injustice". Mark you this is a remark not made in the discourse of a religious Scholar or in a Speech of a public figure before a milling crowd' but is' an observation to be found in the judgment of the Chairman of Shariat Appellate Bench of the Supreme Court.

A remarkable transformation in the judicial system is undoubtedly taking place in Pakistan. The old Anglo‑Saxon Legal System hitherto in force is being replaced, slowly but surely by the magnificent edifice of the Islamic Shariah. A fresh dawn is rising and with the help of God justice in Pakistan, will not in the too distant future, be administered only and only by the Laws of Islam. May God be with us (Ameen).

SILVER JUBILEE CELEBRATIONS

                        OF

DEPARTMENT OF APPLIED PSYCHOLOGY

UNIVERSITY OF THE PUNJAB

OBSERVATIONS

By

Mr. Justice Dr. Nasim Hasan Shah Judge,

Supreme Court of Pakistan

[16th December, 1987]

I feel highly honoured to have been asked to be the Chief Guest at this function today organised by the Department of Applied Psychology at this magnificent Islamic Centre to celebrate the Silver Jubilee of the establishment of their Department.

This Centre is undoubtedly a remarkable addition to the facilities becoming available to the University of the Punjab which for over a century has been fighting a ceaseless battle for furtherance of knowledge and for overcoming ignorance. It is particularly relevant to repeat from this Islamic Centre the words of the Holy Quran about the curse of ignorance. Ignorance is likened to darkness on a vast, abysmal sea. It is, says the Quran. "Layer upon layer of darkness. When he holdeth out his hand he scarce can see it. And he for whom Allah hath not appointed light, for him there is no light" (Sura 24 Verse 40). Hence, the exhortations of the Holy Prophet to the Muslims to acquire knowledge. The acquisition of knowledge, according to the Holy Prophet "is a duty on every Muslim". "Acquire knowledge" said he for "it enables the possessor to distinguish right from wrong; it lights the way to heaven; it is our companion when friendless; it guides us to happiness; it sustains us in misery; it is a weapon against enemies and an ornament among friends. By virtue of it, Allah exalteth nations and maketh them guides in good pursuits and giveth them leadership, so much so, that their footsteps are followed, their deeds imitated and their opinions are readily accepted and held inviolable".

Applied Psychology is an important branch of knowledge as its concern is to describe those , phases of psychology which deal with practical problems. In pure psychology, as you all know, the researcher is never asked whether his investigations are designed for useful ends whereas the applied psychologist endeavours to find solutions to the problems confronting men and women in their every day practical affairs. Thus, while the pure psychologist will work on such problems as how we learn new skills, why square tables look square when the image of the eye is not square, and how people judge the lapse of time because investigations on such topics provide him with a systematic analysis of human behaviour; the applied psychologist would, on the other hand, work on such problems as how to select taxi drivers, how long to make a line of type, and how to make airplane instruments more readable. Some of his work is done in the laboratory, but much of it must be done in the field. Wherever he works, he is interested in useful outcomes. He may be doing research in a factory on the causes of labour turnover; he may serve in a school or college as a counsellor on the choice of vocations; he may be called on to advise officials of the army or navy on problems of limitations of human sight and adapting gunships. The applied psychologist may, no doubt, use the facts and methods developed by the pure psychologists‑‑he may, for example, utilize the known laws of learning in writing a manual for salesmen or take what the pure psychologist has discovered about colour‑‑vision and use this knowledge to prevent confusion between the colours of jerseys on the basket‑ball court. But he may, and often does, develop his own methods and discover his own facts. In this way applied psychology, while receiving help from pure psychology, contributes in its own right to the over‑all growth of psychology as a science concerned with the study of human behaviour.

It is heartening to learn for the Introduction in your brochure that ever since its inception in 1962 the Department of Applied Psychology has been engaged in producing students who are trained to shoulder responsibilities in various fields in order that they may be in a position to provide answers to important psycho‑social and psychobiological questions in a precise and empirical way and that your alumni are already working with various organisations like the Army, Mental Health and rehabilitation institutions and providing guidance in vocational administration, education, police and prisons and child care areas. May the efforts of your Department prosper and endure. Indeed, I have a special corner in my heart for your Department. How can I ever forget my bright and lovely niece Miss Kaukab Saadat, the highly talented and brilliant teacher of Applied Psychology but so brutally done to death in the flower of her youth. Her dedication, devotion and selfless attachment to the Department was unsurpassable and will serve as a beacon of light to all who will follow her.

Another fact that brings me closer to you is that I see a high proportion of womenfolk in your Department. Both in the staff as well as amongst the students they are not only well‑represented but are headed by an eminent woman scholar, Dr. Rafia Hasan. In Sura 2 Verse 188 of the Quran, men and women are described as each other's garments implying that each sex compliments the other and neither is inferior in status anal dignity to the other. Islam, in fact, accords a very special place to women and Allah's grace and His benevolence towards women is reflected in a story recounted in "Le Livre des bons usage en matiere de mariage" which is a translation, in French, of a work of Ghazali. He writes:

"When the Prophet Muhammad was walking towards paradise one day, he saw an old woman preceding him to the gates. Muhammad was hurt, since God had promised that he would be the first of Adam's children to enter heaven. 'What does this woman have that she goes before me? he asked, '0 Muhammad', came the thundering voice from the clouds, 'this woman was beautiful and graceful. But when she became a widow, she devoted herself fully to her two daughters until their future was assured. God wanted to show her that he was grateful."

In fact, the Holy Prophet himself was a great protagonist of the equality of men and women. According to him "women are the twin halves of men" and he took steps that they were accorded equal treatment in practice. It is reported that some women approached the Holy Prophet and told him that owing to housework they could not follow his sermons and requested him to set up separate classes for them on religion at a mutually convenient time. This request was gladly acceded to considering that they were as much entitled to this privilege as were men. At one of their meetings some women pointed out to the Holy Prophet that God's words were always addressed to men and asked whether they were not worthy of being addressed directly. He made no answer immediately. However, shortly thereafter he was favoured with the following revelation by the Almighty Allah: "The men who resign themselves to God and the women who resign themselves and the believing men and the believing women and the devout men and the devout women 'and the men of truth and the women of truth and the patient men and the patient women and the humble men and the humble women for them hath God prepared forgiveness and a rich recompense" (xxxiii, 35). Thus, it was made clear that the words of Almighty Allah were both for men and women.

In a remarkable book written icy Naila Minai, a Turkish lady, entitled "Women in Islam", the position of women throughout the history of Islam is recounted. In the part relating to the role of women in early Islam, she points out that a few of the learned women also acted as Imams and adds that as the Holy Prophet chose the most learned and respected man in a group to lead the prayers when he was absent, he appointed the most learned woman to lead when women congregated for prayer. In one case, however, Umm Waraqah, one of the best students of the Quran, was asked to be Imam for both men and women of her large household. This instance, according to Naila Minai, did not serve as a precedent for later generations because the conditions under which women could be Imams were not specified.

But she goes on to point out that:

"Under Islam, poetesses rediscovered their role as historians, journalists, propagandists, social critics, and cheerleaders of their community. They celebrated the ideals which united their Islamic tribe, moved men to defend them against enemies, and sang of their victories. They eulogized those fallen in battle and elevated them to martyrdom, inspiring the living to avenge the dead and plaguing the conscience of those who transgressed the accepted code of ethics."

She points out further‑

"Although most women fighters were poetesses and nurses who took up arms in self‑defence or to avenge their loved ones' death, some volunteered as soldiers. The list of women warriors was in fact rather long, given the small size of the early Islamic community. Typical among them was Umm Umarah one of Muhammad's earliest converts. She fought alongside her husband and sons in many battles, retiring only after she lost a hand. Like any old soldier, she was proud to show off her battle scars.

Perhaps the most endearing of the women veterans was Safiya, Muhammad's seventy years old aunt, who stood guard when the Muslim community in Medina wits under siege. She noticed an enemy prowling around the weak point of the fortification. Unable to warn the men in time, she clubbed down the intruder herself."

Naila Minai concedes that:‑

"The old chronicles and poems celebrating the daring exploits of these Amazons may not stand the scrutiny of today's historians in every detail, but they point out that the ideal woman in the mass media of early Islam was neither a house‑wife nor a sex object, but man's colleague. She would have been quite at home with Judith, Queen Esther, and Joan of Arc."

I am happy to say that from what I see today the women professors and girl students of your Department appear to clearly be men's colleagues. May both of them working together in harmony and amity fulfil the dream of Professor Ghulam Jilani, your distinguished first Chairman of making the Department of Applied Psychology, one of the finest Departments of the Punjab University. May this prayer be realised much before your Golden Jubilee!

God Bless you all!