Global Intifada

“O ye who believe! Stand out firmly for justice, as witnesses to Allah , even as against yourselves, or your parents, or your kin, and whether it be (against) rich or poor: for Allah can best protect both. Follow not the lusts (of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily Allah is well-acquainted with all that ye do.” (Surat An-Nisa 4:35)

Recent events unfolding in Pakistan have captured the attention of Muslim activists the world on over. “President” Pervez Musharraf recently sacked Iftikhar Mohammed Chaudhry, the Chief Justice of the Supreme Court of Pakistan, purportedly for a misuse of his judicial authority. The termination of the highest judge in the country triggered a nation-wide strike by lawyers all over the country to protest Justice Chaudhry’s indignant treatment. As dictators usually do, Musharraf invoked the police powers of the state to squelch dissent and set riot police upon the protestors. They also stormed the offices of Geo TV and used their batons to smash glass, furniture and broadcast equipment for their decision to cover the protests.

The actions of the police-state in Pakistan illustrate a political reality for the majority of the Muslim world: the lack of judicial independence. Whether it is in secular democratic Turkey or fascist Pakistan or post-revolutionary Iran, the judiciary seems to come under constant attack from the state.

The importance of the judiciary within a government is a concern for all Muslim activists all over the world, whether they claim to be progressive, traditional, salafi, shia, etc. Whether one is calling for more democratization or Islamization of government, one of the most important components good governance is an independent judiciary. The underlying purposes of judicial independence is to promote impartiality by judges in making decisions and also to serve as a check against the other branches as part of a system of checks and balances upon the government.

As pointed out by Alexander Hamilton in Federalist No. 78, the judiciary is the most vulnerable branch of the government. He wrote that “ The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.”

Such sentiment was expressed by the early Muslims as well. Sa`îd b. Suwayd said in one of his addresses in the city of Homs: “O people, Islam has an impenetrable wall with a secure gate. Its wall is the truth and its gate is justice. Islam will remain inviolable as long as the political authority is stern. This sternness is not by whip or sword, but by judging with truth and applying justice.”

Essentially, the true purpose of the judiciary is to make sure that the actions of the government are consistent. It is for this reason that they have the right to declare the actions of the state to be void if they conflict with the law. Justice John Marshall strongly emphasized this important role of the judicial branch in the landmark case, Marbury v. Madison, where he wrote “It is emphatically the province and duty of the judicial department to say what the law is….This is the very essence of judicial duty.”

In fact, as chaotic as the rule of Islamic government has been throughout history, the judiciary has been the branch of the government that was the most stable. Countless incidents can be recalled where absolutely tyrannical rulers were still subject to the commands of judges.

The judges, themselves, were no less concerned about these things than the governors were. The judge in his courtroom was an imposing and well-respected figure. He would not sway from the truth on account of criticism. He would treat the prince and the pauper equally. The history books give us some examples of this. Al-Ash`ath b. Qays entered upon the judge Shurayh while he was in his courtroom. Shurayh greeted him and bade him sit next to him. At this time, a person came in with a case against al-Ash`ath. Shurayh then said: “Stand up and take the defendant’s seat and address the other.”

Al-Ash`ath said: “On the contrary, I will speak to him from here.”

Shurayh then said: “Will you stand on your own, or must I bring someone in who will make you stand?” At this point, he stood up and took his place as ordered.”

Abû Yûsuf – one of history’s most extraordinary judges - has a case brought before him where a man claimed that he owned a garden that was in the possession of the Caliph. Abû Yûsuf had the Caliph appear in court and then demanded that the plaintiff bring his proof. The plaintiff said: “The caliph misappropriated it from me, but I have no proof, so let the Caliph take a solemn oath.”

The Caliph then said: “The garden is mine. Al-Mahdî purchased it for me but I find no contract for it.”

Abû Yûsuf bade the Caliph thrice to testify under oath, but the Caliph would not do so. At this point, Abû Yûsuf ruled in favor of the plaintiff.

The Caliph, Abû Ja`far al-Mansûr, once wrote to Siwâr b. `Abd Allah , the presiding judge in Basra: “Look at the land that so-and-so the general and so-and-so the merchant are disputing about and give the land to the general.”

Siwâr wrote back: “The proof has been established before me that the land belongs to the merchant. I will not take it from him without proof.”

Abû Mansûr wrote back: “By Allah , besides Whom there is no other god, you will not take it from the merchant without right.” When the judge’s letter had reached him, he had said: “I have filled it, by Allah , with justice, and my judges have begun to refuse me with the truth.” (Source)

These incidents clearly illustrate that Muslim rulers were still subjected to the law as common citizens were.

Classical Muslim jurists not only went so far as to declare the actions of the executive to be unlawful, but encouraged civil disobedience (but not revolt) against rulers who transgressed the law.

The purpose of this article, however, is not to get into a detailed description of judicial processes within Islamic government, but to show that the Islamic legal tradition emphasizes judicial independence as well.

As was stated above, whether one advocates Islamization or Democratization of Muslim governments, neither of these goals can be accomplished without promoting the sanctity of the judicial branch. Since this is a common goal of all Muslim activists, it would be prudent for everyone to work towards accomplishing this goal.

As such, I call for the creation of an Independent Judiciary Project whose underlying goals are as follows:

- Researching judicial independence in both democratic and Islamic legal traditions

- Calling upon Muslim governments to respect judicial independence

- Protesting the actions of Muslim governments when they infringe upon judicial independence

For now, we can initiate protests against the Pakistani government

For those of you interested in assisting in researching the importance of judicial independence within the Islamic legal tradition, please post your research in the following thread.

Share This