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!
