Justice of Islam – Independence of Judiciary

Conqueror of Superpowers & Most Powerful Man in the World
Summoned to Court and Ordered to Fix a Gutter

The concept of the independence of the judiciary is as old as Islam. Many, many centuries before the west began to theorize this concept, the courts of Islam acted independently of the executive. This concept is grounded in the Qur’aanic command of justice. The Qur’aan Majeed commands:

‘O People of Imaan! Become the establishers of justice, witnesses for Allah even though it be against yourselves or your parents or your relatives. If he be a wealthy or a poor person, then (know that) Allah is closer to both of them. Therefore, do not follow (your) desire in (the matter of) enforcement of justice.’ (Surah Nisaa, Aayat 135)

The Rulers of Islam (the Khulafa and the Sultans) had practically demonstrated the independence of Islam’s judicial system. Besides the Khulafa-e-Raashideen, even worldly kings and Sultans upheld the principle of justice. Mighty rulers of Islam would immediately submit to the summons of the Qaadhi (Judge) and unhesitatingly stand trial in exactly the same way as an ordinary citizen would. The following episode illustrates the Islamic system of justice and the independence which the judiciary enjoyed from the very inception of Islam.

Hadhrat Umar (radhiyallahu anhu) is no stranger to even non-Muslims. The two superpowers of the age — the Roman and Persian empires — were defeated and brought to their knees by Hadhrat Umar (radhiyallahu anhu). His very name would send shivers down the spines of emperors and kings.

The home of Hadhrat Abbaas (radhiyallahu anhu), the paternal uncle of Rasulullah (sallallahu alayhi wasallam) was adjacent to Musjid-e-Nabawi. Water from the gutter would splash into the Musjid causing distress to the musallis. During his Khilaafat, Hadhrat Umar (radhiyallahu anhu) ordered the removal of the gutter. The gutter was removed during the absence of Hadhrat Abbaas (radhiyallahu anhu).

On his return to Madinah, when he saw what had happened, Hadhrat Abbaas (radhiyallahu anhu) was furious. He hastened to the court of the Qaadhi and complained about the action of Ameerul Mu’mineen, Hadhrat Umar (radhiyallahu anhu).

Hadhrat Ubay Bin Ka’b (radhiyallahu anhu) was the Chief Qaadhi. He immediately summoned Hadhrat Umar to court to answer the charge. On the appointed day, Hadhrat Umar, the Ruler of the Islamic Empire, attended the Qaadhi’s court with profound humility and simplicity. On his arrival at the court, Hadhrat Umar (radhiyallahu anhu) had to wait outside for quite some time due to the Qaadhi’s other engagements. Finally Hadhrat Umar (radhiyallahu anhu) was called inside. Hadhrat Umar on entering attempted to say something. But the Qaadhi silenced him.

Qaadhi: ‘It is the right of the plaintiff to speak and present his case. Be silent.’

Hadhrat Abbaas: ‘My home from the very beginning was adjacent to Musjid Nabawi during the time of Rasulullah (sallallahu alayhi wasallam) as well as during the Khilaafat of Hadhrat Abu Bakr (radhiyallahu anhu). But now Ameerul Mu’mineen has demolished the gutter and threw it away. I am considerably distressed by this action. I want justice.’

Qaadhi: ‘Ameerul Mu’mineen! What have you to say?’

Hadhrat Umar: ‘Undoubtedly, I had it removed. I am responsible for it.’

Qaadhi: ‘You were supposed to refrain from such unjust interference in the home of another person without his consent. Why did you do it?’

Hadhrat Umar: ‘Your honour, Sometimes water from the gutter would splash in the Musjid causing distress and inconvenience to the musallis. I therefore ordered its removal. I am of the opinion that I had acted correctly. I did not commit any crime.’

Qaadhi: (Addressing Hadhrat Abbaas): ‘What do you say in response?’

Hadhrat Abbaas: ‘Your honour, Rasulullah (sallallahu alyhi wasallam) had himself, marked out the foundations of my home with his knife. After the house was built, Rasulullah (sallallahu alayhi wasallam) ordered that the gutter be fixed in the very place where it was. Rasulullah (sallallahu alayhi wasallam) instructed me to mount on his blessed shoulders and attach the gutter. Inspite of my refusal out of respect, Rasulullah (sallallahu alayhi wasallam) vehemently insisted. In compliance I stood on the blessed shoulders of Rasulullah (sallallahu alayhi wasallam) and did as he had commanded. I attached the gutter on the position from where Ameerul Mu’mineen had ordered its removal.’

Qaadhi: ‘Do you have any eye witnesses?’

Hadhrat Abbaas: ‘Not only one or two, but many.’

Qaadhi: ‘Present them now so that this matter could be resolved.’

Hadhrat Abbaas (radhiyallahu anhu) went outside and after sometime returned with several witnesses from among the Ansaar. They all testified that they were eye witnesses to the episode. Meanwhile the greatest Ruler on earth, Hadhrat Umar (radhiyallahu anhu) stood humbly staring at the ground. Then he spoke.

Hadhrat Umar: ‘O Abul Fadhl (Hadhrat Abbaas)! For Allah’s sake forgive me. I was totally unaware that Rasulullah (sallallahu alayhi wasallam) himself had ordered the construction of the gutter in its position. If I had been aware, I would not have ordered the removal of the gutter even by error. What right do I have to remove the gutter which Rasulullah (sallallahu alayhi wasallam) himself had ordered?’

(Consider the destruction of the homes and relics of Rasulullah-sallallahu alayhi wasallam — and the Sahaabah sacrilegiously perpetrated by the Saudi regime which trample on the rights of people by usurping their lands and paying them a pittance, then selling the usurped land for exorbitant prices to the wealthy members of the family)

Hadhrat Umar: ‘Amends could be made by you mounting onto my shoulders and replacing the gutter on its original position.’

Qaadhi: ‘Yes, O Ameerul Mu’mineen! This is the demand of justice. You have to do this.’

Soon the people saw the powerful Khalifah who had defeated Qaisar and Kisra (the Roman and Persian emperors), standing by the wall with Hadhrat Abbaas (radhiyallahu anhu) mounted on his shoulders fixing the gutter to its position.

After completing the work of the gutter, Hadhrat Abbaas (radhiyallahu anhu) alighted and pleaded: ‘O Ameerul Mu’mineen! What has transpired was to reclaim my right. Now that I have acquired by right as a result of your love for justice, I seek forgiveness from you for this disrespect. I wholeheartedly give as Waqf my house in the Path of Allah Ta’ala. You have the right to demolish it and include it in the Musjid. May Allah Ta’ala accept my contribution.’

Independence of the judiciary from the executive is largely an empty slogan of the votaries of western democracy. In the annals of history there is no example to compare with the episode which appears on this page.

Islam has practically demonstrated the meaning of equality in front of the law. No monarch, governor, ruler, president, prime minister, cabinet minister, etc. could be ushered to court to stand as an ordinary citizen in front of the judge in the manner in which the Rulers of the Islamic Empire had demonstrated.

Hadhrat Umar (radhiyallahu anhu) was not an isolated case. Islamic history bears ample testimony to the fact that even not so pious Muslim monarchs answered the summons of the Qaadhi without hesitation and stood on the same level as the plaintiff.

Those who pipe the tune of western democracy in which the independence of the judiciary is supposed to be a fundamental principle cannever hope to present the glittering examples of justice by an independent judiciary flaunted by Islamic autocracy known as Khilaafat.

Despite the slogan, it is a momentous struggle for an ordinary citizen to succeed in hauling a high government official of the democratic system to court. Public outcries and media pressure may succeed in activating the principle of the independence of the judiciary and that all men are equal in front of the law. But in a democracy, this is not normal nor in any other system of government.

It is only Islamic Autocracy which can be proud of the distinction of the true independence of the judiciary — a system in which true justice and fair play reign. The Islamic autocratic system is divine. In a true Islamic system of government, fear for Allah Ta’ala permeates the administration. The Ruler is not the maker of laws. He merely dispenses the divine laws of Allah Ta’ala. He is not an unjust despot like the presidents of democracies.

Although it is claimed that the president is ‘democratically’ elected, he is far from being a ‘democrat’. A glance at the presidents of the ‘democratic’ countries will convince the keen observer that all presidents of republics and democracies are cruel, unjust despots who are at the helm for personal glory and monetary gain.

Notwithstanding the flowery language which adorns constitutions and preambles, the irrefutable fact is that while the law will prosecute an ordinary citizen for a crime, cast him into a squalid cell, and haul him to court, similar treatment cannot be meted out to Mr. President of a ‘democratic republic’ irrespective of the notoriety of the crime which the despot may commit.

The hollowness of the slogans of democracy is manifest in practical every day life. The high sounding phrases of human rights, equality, justice and the like are designed for public consumption at forums of hypocritical display.

[Mujlisul Ulama]

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