Government Influence and the Judiciary
The Independence of the
Judiciary
Islamic Law, through the sacred
texts and through its basic principles,
prohibits the governing officials from
interfering with or influencing the
decisions of the court in any way.
Islamic Law, in its general principles
and individual statutes, seeks to
realize its primary objective of establishing justice on the foundation of
monotheism. Monotheism is not just lip service. It is realized through actions
that verify the profession of faith. These actions must entail carrying out the
commandments of God and preventing what God has prohibited. This is a
collective responsibility of Muslim society. This requires that God’s
commands and prohibitions be applied as the standards of truth and justice.
Whatever God has commanded is truth and justice and whatever He has
forbidden is falsehood and oppression. Consequently, prohibiting what God
has forbidden is truth and justice.
There are numerous verses in the Quran that command justice and forbid
oppression. God says:
“Verily, God enjoins justice, doing good, and spending on
one’s relatives, and forbids licentious deeds, wrongdoing,
and transgression. He admonishes you, so perhaps you
might take heed.” (Quran 16:90)
And God says:
“…And let not the hatred of others dissuade you from
justice. Be just, that is nearer to piety; and fear God.
Verily, God is well acquainted with what you do.” (Quran
5:8)
And God says:
“…And if you judge (O Muhammad), judge between them
with justice. Verily, God loves those who act justly.”
(Quran 5:42)
And God says:
“…And whoever does not judge by what God has revealed,
they are the disbelievers.” (Quran 5:44)
In the hadîth, God’s Messenger relates:
“God says: ‘O My slaves, I have prohibited oppression upon myself and
made it prohibited between you, so do not oppress one another.” (Saheeh
Muslim)
These are but a few of the sacred texts that show the obligatory nature of
judging with justice and with what God has revealed. This is a general
command, equally applicable to the one who governs and the one who is
governed. The political power in Islam is bound by God’s Law. There is no
obedience due to the government if it requires disobedience to God’s Law.
This is the way our pious predecessors acted upon Islamic Law. The political
leaders are merely appointed to the affairs of state. The true ruler is God. The
Caliph or leader is but one of the Muslims, equal with the others. The Muslims
are the ones who select him and place him in authority. They can monitor his
activities. He must consult with them. If he violates Islamic Law and acts
against the welfare of the people, they can have him removed from office.
In the past, the political leaders of the Muslim state understood that justice
– by which the heavens and the Earth are kept right – is the basis for governing
in Islam.
Amr b. al-As said: “There is no political leadership without men. There are
no men available without wealth. There can be no wealth without a prosperous
civilization. Civilization cannot prosper without justice.”
The Caliph[1] Umar b. Abdulaziz wrote to one of his functionaries who
sought permission to fortify his city: “Its fortification is achieved through
justice and through removing oppression from its streets.”
Saeed 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.”
Footnotes:
[1] Caliph: From the Arabic word Khaleefah, or Successor. A term used to denote the political
leader of the Muslim nation.
(part 2 of 2)
For this reason the Rightly Guided Caliphs and the leaders of the Islamic
state worked hard to bestow every possible dignity and honor on the judiciary
and strove to protect it from all outside interference. They did this to ensure
truth and justice. Therefore, they did not attempt to turn the court rulings to
their favor or the favor of those they liked.
They, themselves, adhered to the decisions of the judiciary, respected them,
and carried them out. They accepted the verdicts of the judge. Even when the
rulings were against their own selves, they would dutifully carry them out. The
history books are full of narrations where the Rightly Guided Caliphs and later
Muslim governors were involved in litigation with others and the judges who
they themselves appointed ruled against them. In some cases, the Caliph knew
what the truthful outcome should be, but still allowed the case to go to court in
order to set an example of conduct for those who would come after them. They
would also do this to test the strength of the appointed judges in the face of
such a situation where their adversary might even be a Jew or other Non-
Muslim.
The judges themselves were no less concerned about these things than the
governors were. The judge in his courtroom was an imposing and wellrespected
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-Ashath 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-Ashath. Shurayh then said: “Stand up and
take the defendant’s seat and address the other.”
Al-Ashath 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.”
Abu Yusuf – 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. Abu Yusuf 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-Mahdi purchased it for me
but I find no contract for it.”
Abu Yusuf bade the Caliph thrice to testify under oath, but the Caliph
would not do so. At this point, Abu Yusuf ruled in favor of the plaintiff.
The Caliph, Abu Jafar al-Mansoor, once wrote to Siwar b. Abdullah, the
presiding judge in Basra: “Look at the land that so-and-so the general and soand-
so the merchant are disputing about and give the land to the general.”
Siwar 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.”
Abo Mansoor wrote back: “By God, 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 God, with justice, and my
judges have begun to refuse me with the truth.”
Islam did not stop at prohibiting the political leadership from interfering
with the decisions of the judge. It went further, providing other guarantees to
ensure that the judiciary would remain strong and independent.
Since the judge holds such a prominent and serious position in society –
being that he is the one who decides between others in their disputes – it is
necessary for him to enjoy the respect and trust of the people so that they will
be content in accepting his judgments as just. A judge will not be able to attain
this public esteem except with some concrete proof of his character.
He provides this proof through his good conduct that must be free of
eccentricities and through his unyielding adherence to justice when passing
judgment. The jurists stress this point and discuss the types of behavior and
work that a judge should stay away from. Without doubt, the things that they
mention are not exhaustive, but are merely given by way of example.
