By Arif
M Khan
Shah
Walliullah (1703-62) in his classic fiqha-e-Umar (a book dealing with juristic
verdicts of second Muslim Caliph Umar bin Khattab), has reported two interesting
narrations. The first is a letter addressed to Abu Moosa Ash’ari, the Regent of
Basra, containing detailed instructions to ensure fair and expeditious
settlement of legal disputes. He says that when “you are seized of a dispute and
come to a conclusion then make no delay either in pronouncing the judgement or
its enforcement. You must take care that during the proceedings of the case
irrelevant and extraneous issues are not entertained as doing so does not
benefit the cause of justice.”
Secondly, he emphasised that “during the proceeding of the case, you
must conduct yourself in a manner that promotes cordial and fraternal feelings
among the contending parties. You are duty bound to uphold justice and due
process of law and leave no room for the parties to nurse any complaints,
otherwise the weak will lose faith in your verdict and others shall apprehend
oppression and injustice.
Then the
letter instructs that the onus of proof shall always lie with the plaintiff and
not the accused, who in the absence of any evidence can absolve himself by a
solemn affirmation. If the plaintiff produces evidence in support of his claim,
then given him his due, otherwise decided in favour of the respondent. This
procedure is more appropriate and meets the demands of
justice.
On the
question of curing any wrong judgement delivered through some mistake or under
some misapprehension of law or facts, the letter says, “If you have passed an
order today and later you realise the error then it diminishes not the dignity
of your officer to recall the order. You must always stand with the truth
because it is far more beneficial to return to truth by acknowledging the wrong
done than persist in the wrong one by mistake.”
The
communication lays down elaborated instructions with regard to the
qualifications for the persons who appear as witnesses and prohibits
admissibility of any evidence given by the persons falling in three following
categories.
· A person
who has been convicted earlier for a felony or
misdemeanour.
· A person
who was held to have given false evidence in any dispute
earlier.
· A person
who is accused of usurping the rights of others or breach of trust as a guardian
or superintendant of properties.
The
communiqué further said that what is hidden and secret belongs on the outcome of
the judicial proceedings. The legal verdict shall depend only on express
statements, evidence adduced and facts of the case. In another communication to
Abu Moosa Ashari, the Caliph laid down that “no person shall hold law court or
hear legal dispute except the authority established by law”. The reason being
that such authorities are supported by state power, and state power, when
applied correctly, is an effective deterrent against wrongdoers and false
witnesses.
This
position was further reiterated by Caliph Umar in his communiqué to Abdullah bin
Masood whom he had appointed as in-charge of education in Kufa. Ibn Masood was
regarded as an authority in Quranic sciences and one prophetic narration had
named him as one of the four teachers of Quran. Keeping in mind the erudition
and scholarship of Ibn Masood, people started flocking to him to seek his
verdict (fatwa) in matters of disputed and he willingly obliged them. On bearing
this news, the Caliph wrote a letter and asked if he has started settling legal
disputes despite the fact that he has not been vested withsuch
authority.
Ibn
Masood replied in the affirmative. The Caliph sent him a rejoinder directing
“leave this work for one who is competent to take care of the benefits and harms
associated with the administration of justice.”
The
above mentioned directives of Caliph Umar show the contrast between Islamic law
as administered in the first century, when a scholar of Ibn Masood’s standing
was not allowed to interfere into judicial affairs, and now, when unknown
persons claiming to be religious scholars issue sundry fatwas that arouse only
derision and ridicule.
The
author is a former union minister of India.
Source:
The Sunday Guardian, New Delhi
12:21 AM
Sultan Shahin
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