ROLE OF THE COURTS IN A DEMOCRATIC ISLAMIC SOCIETY

ROLE OF THE COURTS IN A DEMOCRATIC ISLAMIC SOCIETY <!--[if gte mso 10]> ROLE OF THE COURTS IN A DEMOCRATIC ISLAMIC SOCIETY [Including The Pakistani Perspective]* By Mr. Justice Mian Saqib Nisar, Judge, Lahore High Court * Lecture, delivered at OSLO-Norway on 22-2-2009 in a Conference arranged by Pakistan Welfare Union in collaboration with Norwegain Ministry of Foreign Affairs. DEMOCRACY AND ISLAM In political theory, democracy, has been described by the political analysts as being a form of government in which, power is held by people under a free electoral system. Even though there is no universally accepted definition of the term, yet there are two foundational principles that any definition of democracy includes. The first, that all members of the society (citizens) have equal access to power and the second, that all members (citizens) enjoy universally recognized human rights; the first principle should be considered to have been founded on EQUALITY and the second on FREEDOM. As a consequence of equality of all citizens, consultation amongst them is a natural outcome in order to reach decisions in matters arising between them. Thus, the question to be considered is: Where does Islam stand on this? The process of consultation in all the affairs of Muslim society has been made mandatory as the Holy Quran ordains: (i) Oh: Muslims resolve your matters (of governance) 'through mutual consultation (Al-Shura: 38); (ii) Oh: Prophet in the affairs of governance have consultation (Al-Imran: 159). In Islam, the sovereignty vests in God Almighty, which is exercisable by the Muslims as a whole. The status of the head of the State (Caliph) is not more than this, that the power of viceregency which the general body of Muslims possesses is delegated as a trust to a person (Caliph) whom they elect as the one amongst them for this job. The Holy Prophet (p.b.u.h.) on his death bed was urged by his followers to name his successor, but he refused to do so and thus it was on the basis of the consultative process as per the above command of the Holy Quran, that all the subsequent three Caliphs were elected, which procedure is absolutely akin to the first principle of democracy, about choosing of the representatives by the people. It may be emphasized that the whole (Ummah) Muslim community can participate in the process, as there is no prohibition in this regard and thus, all the members of society have equal access to power; this rule of Islamic democracy, undoubtedly at the relevant point in time (i.e. fourteen hundred` years ago) was not even known to, the western culture. It may however, be stated that every society may have its own system of choosing its representatives for the' purposes of governance, which may vitally differ from the system of another democratic State; the systems of United States of America, United Kingdom, France, Russia, China fundamentally differ in nature; in some of the democracies, Election of Government is direct while in others it is on the basis of indirect franchise; in certain, the right to vote is qualified by the standards of education or taxation, whereas there are no such conditions in the other. Likewise, in an Islamic, society, no strict and definite system has been ordained for the constitution of government and it has been left to the Muslim community to draw its own system suiting its needs but essentially founded on the rule of consultation. Presently a large number of Muslim States such as Malaysia, Bangladesh, Egypt, Indonesia, Iran, Pakistan, Syria, Turkey are Republics like United States of America, France, Germany etc., all in which the supreme power is held by the people or their elected representatives. 2. Judging the proposition on account of "freedom", which is analogous to the concept of "liberal democracy," in which the citizens enjoy universally recognized freedoms and liberties and also entails the segments of due process of law and equality before law, the modern societies of the time may feel proud on account of Magna Carta (1215), the Bill of Rights (1689) and the UN Charter (1948), but Islam enshrined and enunciated the human fundamental rights some 1400 years ago when no society could even conceive of them. In this behalf, I shall be failing in my discourse if I do not refer to the farewell sermon of the Holy Prophet (PBUH),' which is called "Khutba-e-Hajjatul Wida", delivered on 633 AD at the plain of Arafat near Mecca; it constitutes a perfect and everlasting charter of human rights and duties. Each word of this sermon is a liberation of Man from bondage and degradation and should make him aware of his destiny; the Holy Prophet (PBUH) said, (a part therefrom is being reproduced):-- O people! know that your blood, your property and your honour are sacred and inviolable until you appear before your Lord (God Almighty). He who has been entrusted anything at all should restore, that to the person who deposited it with him; Beware!. whoever commits a crime is alone responsible for it. Neither is the. son responsible for the crime of his father, nor is the father responsible for the crime of his son. Wrong not and you would not be wronged. O people! fear Allah with regard to women. You have taken them (as wives) on the security of Allah; they have certain rights over you. It is incumbent upon you to honour your conjugal rights, and do not commit any act of impropriety and harshness (towards them). O people! Verily your Lord is one and your father is one. All of you belong to ancestry of Adam; there is no superiority for an Arab over a non-Arab and for non-Arab over an Arab; nor for white over the black nor black over the white. The rule of equality elucidated in this sermon embraces the absolute conceiveable rule of equality of all human beings without any distinction on the basis of faith, caste, religion, creed, social, economic or political status. As against the above, I am constrained to mention the racial discrimination meted out only a few decades ago, to the Black community of America, the most liberal democratic society of the world; Martin Luther King JR., in his autobiography1 narrates an incident, which according to him had a tremendous impact on his development; he states, "The second incident happened when I was about six years of age. From the age of three I had a white playmate who was about my age. We always felt free to play our childhood games together. He did not live in our community, but he was usually around every day; his father owned a store across the street from our home. At the age of six we both entered school-separate schools, of course. I remember how our friendship began to break as soon as we entered school; this was not my desire but his. The climax came when he told me one day that his father had demanded that he would play with me no more. I never will forget what a great shock this was to me. I immediately asked my parents about the motive behind such a statement." There was complete segregation in the American society on account of apartheid, in the schools, hospitals, restaurants, clubs, public places and transport. The Black Americans were not even allowed to sit on the seats reserved in the buses for the Whites. On Dec 1, 1955 Mrs. Rosa Parks, an old Black lady, refused to vacate a seat for a White male when asked to move back by the conductor, the result was her arrest. In some of the clubs meant for the "Whites", there were displayed signs proclaiming "Blacks and Dogs not allowed". The right to vote was conferred on the Blacks for the first time on account of their untiring struggle by the Voting Act of 1965, which faced a strong reaction by the Whites in the form of an outbreak of violence in the South. How can one forget the atrocities of South Africa, the rampant apartheid and the sufferings of Nelson Mandela, who faced the longest political incarceration in human history? Contrary to the above, there can be no denial of the fact that in a Muslim society, all including the minorities, enjoy the following rights2, which now are considered to be foundational to modern democracies:-- 1. The Autobiography of Martin Luther King, JR. Edited by Claybome Carson 2. Fundamental Rights in Islam by * Right to live with its fullest possible amplitude; * Right of equality; * Right of freedom; * Right to reputation; * Right to raise their voice against oppression; * Right to adopt any religion and protection of the same; * Right of expression; * Right of privacy; * Right of ownership; * Right to be involved and indulged in the political affairs of the State; * Right to refuse to accept any dictation regarding anything which is forbidden by the law and one's religion; * Right of protection available to the women, old, infirm, disabled, injured, sick persons of the society including non-Muslims; * Right of protection regarding modesty and chastity of all women, notwithstanding their caste and faith; * Right to economic protection for the poor and needy; * No one is responsible for the deed of the other (in relation to criminal liability) and no one can be prosecuted on account of a doubt; What else are the niceties and the blessings of any civilized democratic society which when compared with the Islamic system can be found lacking? Maulana Abu ala Maudoodi Besides the above, there is another important feature of the Islamic society, as, electing the leaders to government is not enough in a democracy, rather holding those who govern accountable, is an essential principle of democracy if government by the people is to work. According to Quranic teachings, the leaders are not left to govern on the basis of their own whims and desires rather on account of mutual consultation, keeping in view the teachings of Quran and Sunnah. The leaders in Islam are responsible to citizens of the land as according to Al-Nisa-458, Quran mandates the leaders to pay back their trust to those who are entitled to it. The importance of accountability has been set out by Abu Bakar, the first Caliph in the words "If I follow the right path follow me, if I deviate from the right path correct me so that we are not led astray." Certainly the role and responsibility of people within an Islamic society extends far beyond choosing the leader within the Islamic political system. On account of the above, it is duly established that Islamic law and society pass the test of equality, representation, freedom and that of "liberal democracy as well. Therefore, without any fear of contradiction it may be unequivocally stated that for all intents and purposes Islam and democracy are compatible. Here I would like to state specifically that there is a deliberate campaign underway to declare the two fundamentally incompatible and forever at odds with one another. This is a campaign fuelled by vested interests who strive to judge the sustainability of democracy within an Islamic State on the touchstone of secularism. The relationship between secularism and democracy is a separate discourse, altogether, however, suffice to say that democracy and secularism are not synonymous and it is merely a popular myth and a misguided belief that one cannot survive without the other. As long as the fundamental principles of the democratic ideal are allowed to flourish in a society, democracy exists, whether this is in a secular or a theocratic state is wholly without relevance. ROLE OF JUDICIARY: 3. About the importance of the role of the Judiciary in general, it may be stated that a State acts through its legislative, executive and judicial authorities and in no other way. The legislative organ of the State is primarily responsible for the making of State policies and the laws including the enunciation and creation of the rights and the obligations of the citizens or the persons within the State limits; whereas, the executive setup is entrusted with the authority of governance and running the affairs of the State in accordance with and within the permissible limits as prescribed by law. While as regards the function and the status of the Judiciary, one of the best definitions has been provided by Griffith, CJ in Parker and Co. v. Moorehead3 where he says that judicial power means "the power which every sovereign authority must of necessity have to decide controversies between its subjects, or between itself and its subjects, whether the rights relate to life, liberty or the property". As distinguished from the legislative power, which is to declare what the law should be, the judicial power is the power to declare what the law is or has been. It is one of the characteristics of the judicial power that it is concerned with the past and present and not with the future. The Judiciary is the foundational pillar of the State structure without which the existence of a stable and civilized society and State cannot be conceived. The importance of this organ can be adjudged on the basis of what Chief Justice Lord Marshall (US) once said "The judicial power without patronage, without legitimate means of ingratiating itself with the people is the weakest part of the citadel but is at the same time necessary to the very existence of the State." At another occasion the great jurist remarked: 3. 8 C.L.R. 330, 357. "Advert, sir, to the duties of a Judge. He has to pass between the government and the man whom that government is prosecuting: between the most powerful individual in the community, and the poorest and most unpopular. It is of the last importance that, in the exercise of these duties, he should observe the utmost fairness. Need I press the necessity of this? Does not every man feel that his own personal security and the security of his property depends on that fairness? The Judicial Department comes home in its effects to every man's fireside: it passes on his property, his reputation, his life, his all. Is it not to the last degree of importance that he should be rendered perfectly and completely independent, with nothing to influence or control him but God and his conscience.... I have always thought, from my earliest youth till now, that the greatest scourge an angry Heaven ever inflicted upon an ungrateful and a sinning people was an ignorant, a corrupt or a dependent judiciary." There cannot be a better description of the importance and the position of the judicial organ of the State and it is imperative and essential for any democratic society that it should have a strong and independent judicial system, as it is the forum which not only resolves the ordinary, criminal and civil disputes inter se the subjects and the State but also keeps a check on the excesses of the legislative and executive organs and protects the citizens on account of the violation of their rights by the above. It may be reiterated that a society, even if it may be governed by its chosen representatives and has human rights in place, but lacks an effective judicial system, cannot be termed to be following the path of democracy. In Islam, the rule of dispensation of justice is cardinal and pivotal and is founded upon the absolute, pure and unqualified concept of "the independence of Judiciary". In the best democracies and systems of the world, the Judiciary has no authority to summon a head of State and proceed against him, while he holds office, but it is the beauty of the Islamic system that a Caliph (the head of the Islamic State) does not enjoy such immunity or the privilege and can be tried for civil and criminal liabilities, even during the tenure of his office. In this behalf,, examples of Hazrat Umar, the second Caliph and Hazrat Ali, the fourth Caliph can be quoted. Once, Hazrat Umar bought a horse, he paid the price, but on its first ride, due to a fall, the animal broke its leg, the Caliph wanted to return the horse and get his money back, but the seller refused; the matter went to the court and was decided against Hazrat Umar. Likewise, in a dispute between Hazrat Ali and a Jew (the minority community in the Islamic society) the decision went against Hazrat Ali, because he could not prove his claim; which otherwise was true, as subsequently his opponent admitted the same. In a case between two parties, when Hazrat Umar appeared as a witness for one, he was made to stand in the witness box like any ordinary witness, rather than being given any protocol. This postulates how independent the Judiciary in an Islamic society is. 4. In an Islamic society, there is a complete judicial hierarchy and a setup, having different levels of jurisdiction; the Chief Justice of the State is known as "Qazi-ud-Qazat", like any other judicial system in vogue in any developed and modern democracy, if the rights of the citizens in the Muslim society by anyone whosoever, including the State, are violated and the court is approached, the legal mechanism comes into motion and the courts dispense justice on the basis of the Islamic laws i.e. Quran, which is the primary source of law, and in case the solution is not available therein, the Sunnah, which is the tradition (the sayings of the Holy Prophet (PBUH) or interpretation made by him of any proposition) of the Holy Prophet (PBUH), and the second source in line, and if an issue still cannot be resolved on the basis of both the above, resort can be had to "IJMA" which is defined as an 'Agreement' of the jurists among the followers of Muhammad (PBUH) in a particular age on a question of law, and such jurists may also include the imminent Judges of the time. If an answer to the proposition is not available from Quran, Sunnah and Ijma, it can then be achieved through "IJTIHAD" which literally means striving, exerting and as a term of jurisprudence it is the application by a jurist of all his faculties to the consideration of all the authorities of law i.e. Quran, Sunnah and Ijma with a view to find out what in all probability is the law. In other words, "IJTIHAD" is the capacity for making deductions in the matters of law in respect of the cases to which no express text or a rule already determined by Ijma is applicable. 5. Moreover, to adjudge the role of the Judiciary in an Islamic society, the qualification and the criteria for the appointment of a Judge (Qazi) is of utmost importance and critical, because such standards depict what is required of him in the course of justice. In a letter, Hazrat Ali (the fourth Caliph), imparted instructions to MALIK-E-ASHTAR, the governor of a province, upon the appointment, qualifications of Judges and their conduct; this advice is a master piece, which highlights the sanctity and the basic principles of the institution upon which the entire judicial system of the Islamic society and. the role which the Courts can play is founded; the letter reads as follows:-- "So far as dispensing of justice is cone' led, you have to be very careful in selecting Judges for the same. You must select people of excellent character and high calibre and with meritorious record. They must possess the following qualifications: (i) Abundance of litigations and complexity of cases should not make them lose their temper; (ii) When they realize that they have committed a mistake in judgment they should not insist on it by trying to justify it; (iii) When truth is made clear to them or when right path opens up before them, they should not consider it below their dignity to correct the mistake made or to undo the wrong done by them; (iv) They should not be corrupt, covetous or greedy; (v) They should not be satisfied with ordinary enquiry or scrutiny of a case, but should scrupulously go through all the pros and cons, they must examine every aspect of the problem carefully, and whenever and wherever they find doubtful and ambiguous points, they must stop, go through further details, clear the points, and only then proceed with their decision; (vi) They must attach greatest importance to reasonings, arguments and proof; (vii) They should not get tired of lengthy discussions and argument; (viii) They must exhibit patience and perseverance in scanning the details, in testing the points presented as true, in sifting facts from fiction and when truth is revealed to them they must pass their judgments without fear, favour or prejudice; (ix) They should not develop vanity and conceit when compliments and praises are showered upon them; (x) They should not be misled by flattery and cajolery; He further asked in his letter: "But there are few persons having such characteristics. After you have selected such men to act as your judges, make it a point to go through some of their judgments and to check their proceedings and:- (i) Pay them handsomely so that their needs are fully satisfied and they are not required to beg or borrow or resort to corruption; (ii) Give them such prestige and position in your State that none of your courtiers or officers can overawe or harm them; (iii) Let judiciary be above every kind of executive pressure or influence, above fear or favour, intrigue or corruption. Scrutinize this matter with particular strictness because before your appointment this State was under the sway of corrupt, time-serving and wealth-grasping opportunists who were lewd, greedy and vicious and who sinfully amassed wealth and pleasures for themselves from the State authority." THE PAKISTANI PERSPECTIVE: 6. Pakistan is an Islamic State and society. It is a Federal Republic, which is known as the Islamic Republic of Pakistan and is governed by a written Constitution enforced in 1973. The Objectives Resolution is considered to be the grund norm of the Constitution; this resolution was adopted by the Constituent Assembly of Pakistan on 12-3-1949. It is a landmark in the constitutional history of Pakistan for having laid down, for the first time, the ideological foundation of the country. The provisions of the Objectives Resolution are incorporated in the 1973 Constitution by virtue of Article 2-A, which postulates:-- (a) The State shall exercise its powers and authority through the chosen representatives of the people. (b) The principles of democracy, freedom, equality, tolerance and social justice as enunciated by Islam shall be fully observed. (c) The Muslims shall be enabled to order their lives in the individual and collective spheres in accordance with the teachings and requirements of Islam as set-out in the Holy Quran and the Sunnah. (d) Adequate provision shall be made for the minorities to profess and practice their religions and develop their cultures. (e) The fundamental rights shall be guaranteed including equality of status, of opportunity and before law, 'social, economic' and 'political justice', and freedom of thought, expression, belief, faith, worship and association, subject to law and public morality. (f) Adequate provision shall be made to safeguard the legitimate interests of minorities and backward and depressed classes. (g) The independence of the Judiciary shall be fully secured. 7. The legislative system of Pakistan is based upon the Parliament (Majlis-e-Shoora) comprising of the National Assembly (lower house) in which on account of the territorial constituencies, the members are directly elected by an electoral college of adult voters, in which, special seats have been allocated for women and non-Muslims; besides, the minority community of Pakistan has a double right of vote, one for the general election and the other for their own representatives. The Senate (upper house) has equal representation of all the four federating units of Pakistan and some seats for the Federal Capital, Islamabad. The Parliament is the supreme body in the system and is omnipotent for making the laws and laying down the State polices but subject to the fundamental rights as enshrined by the Constitution. Such rights inter alia are; `safeguard as to arrest and detention, slavery, forced labour etc. is prohibited, dignity of man and his privacy is inviolable; freedom of assembly and association, freedom of speech; freedom to profess religion and to manage religious institutions; protection of property rights, equality of citizens, including no discrimination on the basis of sex'. According to Article 8 thereof, no law shall be made by the State, which contravenes, curtails or abridges the fundamental rights and/or is inconsistent or interfere therewith. It is specifically mentioned in Article 4 of the Constitution that to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be, and of every other person for the time being within Pakistan. In the context of its executive setup, the Prime Minister is the Chief Executive of the country who is elected from amongst the members of the National Assembly and has the authority to appoint the Ministers from the parliament to constitute the cabinet, which is founded on the rule of "collective responsibility" of the cabinet. This executive body at the top is entitled to run the affairs of the Federation and is bound to govern and regulate the state affairs in the sphere, which has been prescribed in the Constitution and the law. The third important pillar of the State is the Judiciary, which comprises of two levels, subordinate Judiciary constituted under the provisions of Article 175 of the Constitution and the superior Judiciary such as the High Court for each province and the Supreme Court of Pakistan. Lately, the High Court for the Federal Capital, Islamabad, has also been established. Both these Courts (High Courts and Supreme Court) are the constitutional forums which inter alia have extraordinary writ jurisdiction to protect and enforce the fundamental rights of the citizens and are vested with the power of judicial review, which is the established rule for checking the excesses and abuses of the executive authority and/or also to examine, that the State legislature (even though being supreme in making the law) does not transgress its sphere of authority in the law making process, as has been determined for it by the Constitution. The superior Judiciary in Pakistan despite unprecedented attacks on its independence, is dispensing justice to the people of Pakistan. Besides the High Courts and the Supreme Court, Pakistan also has a Federal Shariat Court, which has the jurisdiction to examine and determine whether any law is repugnant to the injunctions of Islam, and certain cases of criminal offences also fall within its jurisdiction. Pakistan is an Islamic State and society and the role of its Judiciary is comparable to any first class system of democracy in the world; certain celebrated judgments in the domain of human rights have been given by the Courts, which include civil liberties; freedom of expression, social, economic and political justice.