Defending The Qazi And His Rules
Whenever judicial discretion is under discussion, it is the poor qazi and the rules applied by him that are put under the critical scanner. From the tradition of British judges, our learned judges sometimes recall the famous image of the “qazi under the palm tree” on such occasions. The honourable Chief Justice of Pakistan, in his speech before the National Judicial (Policy Making) Committee (NJPMC), mentioned the qazi under the palm tree attributing the quotation to the learned Justice Mahmood. An earlier article, written by this writer, The Qazi Under the Palm Tree is available online and the matter need not be pursued further. The speech of the CJ was good and passionately delivered.
It must be pointed out, however, that the Muslim qazi has never handed out judicial decisions without rules, therefore criticizing judicial discretion may be unfair in most circumstances. This has been the position right from the first century of the Hijrah (The Flight/Emigration, from which the Muslim era is dated, 622 AD). It is a tradition that has continued right up to the end of the Mughal empire, when the rulers could not defend the homeland and rendered the outstanding judges powerless. In fact, Muslim judges decided on the basis of finely crafted rules derived from the Quran and Sunnah long before the common law or civil law were born. Non-Muslims, who have studied Islamic law objectively and without bias, have tried to show that Islamic law may even have influenced the development of common law as well as the civil law. It was Islamic law that first functioned on the basis of the uncodified common law of Islam.
It is pertinent to note that the work of the last Chair of East India Company, the virtual ruler of entire India, Sir Archibald Galloway, who is deemed as an expert in Islamic law, was quite influenced by Islamic law and the works of leading Muslim jurists, such as Sarakhsi. He, too, was passionate about advocating the application of Islamic law as the preferred law of India, including its application to the Constitution. His view was that Islamic law was not only superior to the common law, it was a law that helped the mind grow. His dream did not materialize as the British Crown took over direct rule replacing the East India Company, apparently using the Indian War of Independence as an excuse. It is, however, unfortunate that neither our lawyers nor our lawmakers are aware of these developments.
As an illustration of some of the rules used by qazis, we may mention a principle that first came to light in the second century of Hijrah and was recorded by a leading Hanafi jurist in the third century as Principle No.6 in Al-Karkhi’s book on qawaid in the following terms: “The affairs of Muslims are to be construed as upright and proper, unless the contrary is proved.” This means that every Muslim is to be presumed truthful, and all his or her acts will be construed as legal, unless it is proved before a court of law that he or she is untruthful. The rule directly addresses the qualifications of witnesses. These qualifications of a witness are also supposed to be the same for a judge as well as a head of State, because they all deal with the hudud (limits) prescribed by Allah and determine and alter the rights of individuals. The head of State is included here as having the primary duty to implement the hudud of Allah, for which the head of State must have the same qualifications as those of a witness and hence, those of a judge as well.
Lawmakers or members of the legislature, or even members of the executive, are not included in this list. If the qualifications of these three types of persons are to be extended to the members of the legislature by saying that their law-making efforts alter the rights of the people, then the same should be said about the executive as the views and decisions of the members have the same effect. Fairness and lack of discrimination demand that the requirement be extended to all officials, whoever they may be, when their decisions affect financial and other interests of individuals.
The idea of these qualifications is couched in the concept of adalah (moral probity) and the related process of tazkiyyah implying that a court may adopt to verify moral probity. In order to do this, the earlier jurists preferred a secret inquiry into the qualifications, due to the changing nature of circumstances in their times. Today, this will be a report from the intelligence agencies and will not be acceptable to the courts and the people. Abu Hanifah is of the view that the judge must be confined to the apparent adalah and should not inquire about the witness on his or her own, except in the cases of hudud and qisas. This is the preferred law, according to the Hidayah. Where the verification is in secret, the adalah of the notary is not stipulated, but where it is in open court, the adalah of the person certifying another must be acceptable to the judge.
The content of adalah should be examined, as it throws light on who is to be rejected as a witness or as an official who settles the rights of citizens or alters them by his or her decisions. The examination may also help in determining the duration of the disqualification. The relevant cases in which the testimony of the witness is rejected are the following:
The first case is that of a person who is convicted by a competent court for the offence of qadhf. This is a person who is found guilty of falsely accusing chaste persons. Verse 4 of Surah Nur provides that “those who launch a charge against chaste women, and produce not four witnesses (to support their allegations), flog them with eighty stripes, and reject their evidence ever after, for such men are fasiqun; except those who repent thereafter and mend (their conduct).” Once convicted, future testimony is to be rejected on a perpetual basis. This law has been promulgated as part of the hudud laws, but has been diluted by borrowing a number of alien ideas from the offence of defamation in the Pakistan Penal Code; a number of good faith exceptions have also been inserted, thus rendering the law ineffective. The main point here is that the term fasiq, which means a disobedient person who violates the boundaries established by Allah, is in this case based on falsehood, that is, false accusation. This term will also include persons convicted of grave sins that invoke hadd penalties. In the case of levelling false accusations against chaste women, Hanafi law does not accept repentance after conviction, whereas in the Shafi school of thought, repentance is accepted even after conviction. The Hidayah explicitly says that the school will accept repentance in cases other than hudud. It is, hence, obvious that in cases such as the ones involving wealth that has been collected through corruption and has been moved abroad, the court should accept repentance if the person acknowledges his or her act and repents adding that he or she will not do it again. This may also have other consequences that we need not discuss for now. Suffice it to say that his or her testimony will be acceptable after repentance and he or she will become eligible for appointments to posts as well as elections to the legislature.
The Hidayah mentions many other cases that may be of interest to readers. We may mention a few here. The testimony of an intersex person is admissible, however, that of a transvestite may not be. A person who plays with pigeons on a rooftop may not be eligible as he is likely to see women in other houses when they are not properly covered. Today, people will obviously not want to extend such cases to modern forms of entertainment and the internet. However, a case that merits attention is that of riba or interest. The testimony of a person who indulges in the paying and charging of interest is not acceptable, but this qualification alone can prove to be fatal for an entire economic system.
The conclusion to be drawn from the above discussion is that Islamic law has a detailed and developed body of rules that the Muslim judges have been following from the earliest days of the Hijrah. If the Constitution and statutes are not being interpreted in the light of the principles of Islamic law, at least those provisions of law that are based on Islamic law must be interpreted with reference to the principles and rules of Islamic law. A final recommendation can be that article 62(1)(e) and (f) should be amended to read that a prospective candidate for a post should not have been convicted by a court of law for moral turpitude and the commission of grave sins. Failing this, the said article and clauses should be applied to all witnesses, ministers, judges, bureaucrats, lawyers and members of the legislature. Ineligibility may be waived, as discussed above, if the concerned person admits to the offence and repents, having met the consequential requirements of such admission, which may be determined by the court accepting the repentance.
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.