INDEPENDENCE OF JUDICIARY

IN ISLAM
 WHAT DOES IT IMPLY?
Judicial independence implies the existence of a separate judiciary
established for the purpose of justice administration.
 It requires the independence of judges in the whole process of
discharging their functions.
They should perform their tasks free from any kind of interference
from any other person or other branches of government.
 RATIONALE BEHIND
JUDICIAL INDEPENDENCE
Justice administration is one of the strict commands of Allah the
Almighty. He commands human kind to observe justice even if
affects their own interests.
Allah says Surat An-Nisaa:135;
“O you who believe! Stand out firmly for justice, as witnesses to
Allah, even though it be against yourselves, or your parents, or
your kin, be he rich or poor, Allah is a better protector to both
(than you). So follow not the lusts (of your hearts),lest you avoid
justice; and if you distort witness or refuse to give it, verily, Allah
is Ever Well-Acquainted with what you do.” (An-Nisaa: 135 ).
“Verily! Allah commands that you should render back the trusts to
those to whom they are due; and that when you judge between
men, you judge with justice…” (An-Nisaa: 58).
“…And I am commanded to do justice among you….” (Surat As-
Shura: 15).
In Surat Swad (38:26), Allah instructs Prophet Dawud to judge
between people with justice.
And in many other verses He commands those entrusted with dispute
settlement to observe justice.
Taking in to consideration the nature of judicial task and its
accompanied rules, it is quite obvious that, judges must act freely.
They must stand to whatever is commanded by Allah and his
Prophet alone.
 THE SITUATION DURING
THE PERIOD OF PROPHET
• By that time, the Prophet exercised all state functions. He was
responsible for executive functions, legislations and adjudication.
• Since he was the Prophet, it was not even in imagination that he
would act unjustly.
• It is narrated in one of his traditions that, he happened to say that,
even if Fatima (his daughter) would be a thief, her hand could have
been amputated
 JUDICIARY IN THE PERIOD
OF THE RIGHTLY CALIPHS
• After the demise of the Prophet, Muslim ummah was under the
leadership of khalifa (caliph).
• As with the Prophet, the caliphs were also responsible for all
state’s functions. Though they used to delegate some of their
functions including adjudication.
• However, as per the historians, initiatives of establishing a separate
judicial started during the period of caliph Umar bin Khattab.
 THE PERIOD OF
UMAYYAD
 This was the first dynasty in the Islamic history emerged after the
period of the rightly guided caliphs. Under that dynasty, the system
of hereditary succession was established.
 During the period of Muawiya (the ruler under the Umayyad
dynasty), a strong and centralized government was established.
 The Byzantine administrative system was adopted.
 There was a judicial institution, though the judges were in most
cases appointed by local governors.
 CONT
• In spite of being the strong empire by then, that empire is known
for its introduction and application of non-Islamic norms.
• As for judicial functions, the local governors exercised control
over the judges.
• They even compelled judges to judge according to their wishes.
The dynasty faced opposition for among other things introduction
of non-Islamic practices which led to its fall.
 THE ABBASID
CALIPHATE
• The Abbasid took over the throne from the Umayyad.
• They reinstated the Islamic system that complied with the proper
teachings of Islam.
• During the second reign, they reformed judicial administration.
The judges were no longer appointed by local governors but by the
caliphs.
• However, there are reported instances where the caliphs used to
dominate the judges by compelling them to act as per their wishes.
 JUDICIARY IN THE
CURRENT ISLAMIC SYSTEM
OF GOVERNANCE
The existing governmental systems vest the power of adjudication to
the judiciary. In most cases the judiciary is a constitutional creature
headed by judges/qadhis who are qualified for such task.
 FACTORS AFFECTING
JUDICIAL INDEPENDENCE
Disregarding the supremacy of Shariah
Allah sent down the law so as to guide human kind in a proper path.
He says in surat An-Nisaa: 105;
“Surely, We have sent down to you (O Muhammad) the Book in truth
that you may judge between men by that which Allah has shown
you….”
 CONT
To him alone absolute submissiveness and obedience is due.
All people must be treated equally before the law. Even the head of
state must adhere to the Shariah principles. He should not unfairly
control the judiciary for his own interests.
The rightly guided caliphs were ready to comply with judges’
decisions which were against them
They never considered themselves to be above the law.
 After being appointed as the first caliph, Abuu Bakri conveyed a
speech to the Muslim community. He told them that being
appointed as the leader does not mean he is the best among them.
Thus, they should support him for the right thing he does, and
assist him whenever he goes wrong.
 CONT
• Caliph Umar bin Khatttab happened to try commanding Muslim
women to lower their mahri (dowry). One of the women stood
firmly and warning him about taking away their right to mahri.
• In other scenario it is reported that, caliph Ally accepted the
judge’s decision against him. The dispute was between him and the
jew and the same was determined by Shuraikh al Qadhi.
 INSECURITY OF
TENURE FOR JUDGES
Having an efficient and independent judiciary cannot be guaranteed
if the judges can be deprived of their position at the head of
government’s pleasure.
The ruler’s power to appoint and remove judges at any time greatly
affected judiciary during the period of Umayyad and the early
Abbasid.
Judges were forced to comply with ruler’s instructions or to lose
their positions.
 APPOINTMENT OF
INCOMPETENT JUDGES
Incompetent person cannot discharge his duties efficiently. It is very
possible for the incompetent to fail to tackle strong cases
accordingly.
If for instance, the case involves government officials, the judge may
decline to adhere to proper rulings.
But if he is competent enough with all required qualifications, it will
not be difficult for him to deal with any case.
 CONT
• He will not let his emotional feelings to determine his decision.
• He will not let any kind of fear to pull him back in determining
disputes.