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Judicial independence through sharia lense

By A. I. Hussein:

The concept ‘Judicial Independence’ has been defined in various works by different Jurists. The common denominator in the literature is that the importance of this concept, as far as the dispensation of justice is concerned, is far beyond all question.

The concept judicial independence in its simplest form refers to independent of individual judicial officer in performance of his function not be subjected to direction of anybody or authority. The judicial officer should only be subject to the constitution and the applicable law.

It’s proven historically that a man cannot live in harmony on this earth unless there is some coercive force to check his aggressive action. The weak and poor will always suffer at the hands of mighty and rich in society. Thus a right-thinking members of our society wish for genuine independence of judiciary which protects and promotes the highest values and aspirations of our community. A weak judiciary gradually losses respect and authority and is often looked upon with disdain.

The concept of judicial independence can be characterized in three ways namely; (1) Impartiality, (2) Finality and respect for decision and (3) Freedom from pressure and/or influence from outside.

Impartiality commands a judicial officer to make a decision based on the facts of a case and relevant law, without fear, favour and/or bias. This is known as ‘decisional independence’. The concept of finality and respect to decision means that a courts decisions must be deemed final and /or reviewed by the same institution i.e. superior courts but not by another organ or agency and that parties must respect the court’s decisions and complied with it. Possibly most crucial is that judicial officer must be free from outside influence and pressure and, generally this includes all manners of individuals, urgency and organization that may either seek curry the court’s favour or bully the court into submission. Interested parties must be barred from interfering with court’s proceedings by any means and this calls upon courts to be incorruptible and insusceptible to coercion.

While this three characters are inherent to judicial independence, it’s the third concept that requires special consideration as it falls under the garb of the doctrine of separation of powers.

Separation of power

Behind this doctrine is the notion that no organ of government should be so dominant as to wield total power without a system to check any rampant or swelling authority.

There are two schools of legal thoughts regarding the independence of judiciary in Islamic law.

A group of jurists holds that Islamic law didn’t provide for a separation between judiciary and executive arm and that judiciary derives its power the caliphs and governors of provinces. The second School of thought is of the opinion that judiciary is a separate and independent organ from executive branch.

The proponents of the first school of legal thought based its theory on the history of judicial system during the period of the Prophet (Peace be upon him) and the four pious caliphs. At the beginning the caliphs exercised both judicial and executive powers and that later they appointed judicial officers, who performed duties not as a separate organ but under the executive control.

Ibn Umar says that neither the prophet (Peace be upon him) nor Abu Bakr or Umar had appointed independent judges. Umar, at the end of his caliphate, said to Yazid Ibn Ukht al Namr, Help me in some affairs of the state. (Akhbarul Qudhat vol. 1 pg. 105).

Ibn Khaldun is also of the opinion that judiciary was under the control of the executive and was supervised by caliphs who themselves were deciding cases. They did not appoint independent judges. (Muqaddimah pg. 220).

According to the aforesaid discussion it indicates that the proponents of this theory believes that there were no independent judges, in fact the Caliphs themselves were deciding cases and may consult the learned jurists (Fuqaha) when necessary. Although they admits that judges were part of executive.

The proponents of the second theory claimed that judiciary is separate and independent organ from the executive. They argued the Prophet (PBUH) delegated some of his judicial powers to his companions and referred some of the cases to them, such as:

The Prophet (PBUH) asked Amr ibn al-‘As to adjudicate between the disputant parties. He replied as to how be it possible while the Prophet (PBUH) was among them. The Prophet (PBUH) said to him “judge between them if you reach the right conclusion. You get ten times rewards and if you erred in your Ijtihad you get a single reward. (Majma‘al Zawā’d wa Manba‘ al Fawa’d.Vol.4.)

These traditions indicate that it does not necessitate that judiciary was considered as part of Executive, because Amr Ibn al-Ās did not remain governors of any province during the era of the Prophet (PBUH). Indeed they were assigned judicial duties.

According to Ibn Hajar al-Asqalani Ma’az worked as judge in Yemen till the caliphate of Abu Bakr and later he was redeployed to Syria, Ibn ‘Abdl Barr has stressed that he was a Qadhi (Judge) not a Wālī (Governor). It’s reported in ‘Akhbar Al-Qudhat Vol.1 at pg 104’ that when Abu Bakr became the Caliph he appointed ‘Umar as a judge and Abū ‘Ubaydah as treasurer. It is further argued that Umar was only a judge, not a governor. Therefore this action was a preliminary step towards the separation of judiciary from executive.

Further it’s narrated that there were six companions of the Prophet (PBUH) who exercised judicial power namely; Umar, Alī , Ubay Ibn Ka’b, Ibn Mas’ud, Abu Musa and Zayd Ibn Thabit. (Akhbar Al-Qudhat Vol. 1. pg 105) this tradition indicates that these six judges were not assigned any executive duty during the life time of the Prophet (PBUH).

According to Al- fasi, Umar b. al-Khattab separated the judiciary from the administration and appointed for judiciary persons who were not the administrators and separated the two offices. He appointed Abu Darda with him at Madinah, Qadhi Shurayh at Basrah, Abu Musa al-Ashari at Kufah and Uthman Ibn Qays Ibn Abi al-As at Egypt as Qadhis.

The views of the jurists may be reconciled by saying that the position of courts and legal procedure in Islamic law is closely related to the historical development of Islam, similar with the legal system of ancient Rome and Greek. Prophet (PBUH) and the pious caliphs were executive heads of the state and were also judging among the disputants beside appointment of independent judges. The same was the position of the first Caliph Abu Bakr. Umar had appointed judges independent of the executive and also gave them vast jurisdiction and prohibited his governors from interference in the judicial affairs of the judges. These judges were not under the control of the executive/ governors. Muawiyah developed the scheme and he was the first caliph who relinquished himself of the judicial functions by appointing independent judges.

Further the Supreme Court of Pakistan observed in the case of Al-Jehad Trust v Federation of Pakistan7 that:

“Upon the advent of Islam, judicial functions were separated from the executive functions at its very initial stage. […] The reason being that the foundation of Islam is justice. The concept of justice in Islam is different from the concept of the remedial justice of the Greeks, the natural justice of the Romans or the formal justice of the Anglo-Saxons. Justice in Islam seeks to attain a higher standard of what we may call ‘absolute justice’ or ‘absolute fairness’”.

In Kenya, Article 160 (1) of the Constitution briefly provides that the courts shall, in the performance of their functions be independent and free from interference and should be subject only to the constitution and any other law. Notwithstanding these guarantees, the notion of judicial independence is forever tested and to a large extent remains threatened by various fora.

It cannot be gainsaid that independence of courts has to be vigorously fought for and won anew each day, for the benefit of the general public – the Wanjikus – who are in essence the primary beneficiaries of that right.

Our country equally need honest men and women who have the interest of their country at heart, who will incessantly fight for and cherish the independence of the courts.

The writer is a lawyer and a regular contributor of Nep Journal



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