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