Justice delayed is injustice Dr A Q Khan Courtesy: The News Pakistan
- Dr A Q Khan
Monday, April 02, 2012
According to national and international reports, corruption is highest in the police and the lower levels of the judiciary. Thanks to the laxity of the lower courts, ordinary cases drag on for years, often until the complainants have passed away. There is no justice for the poor. Many crimes are recorded but still these cases drag on. Considering all this, one is reminded of the quick justice that used to be provided to the needy by a few qazis at a cost of no more than their meager salaries and a room, with a carpet to sit on.
A qazi, or munif, is a person ruling in accordance with the Sharia. He is appointed by the ruler. Since Islam does not differentiate between the religious and the secular, qazis traditionally had jurisdiction over all legal matters. His judgements were based on the Quran and Sunnah. This system was started during the lifetime of our Holy Prophet (PBUH) and continued in all Islamic countries until a few decades ago. In those days, Muftis and Fuqaha elucidated the principles of jurisprudence and laws and the qazi ensured that justice was done accordingly. In order to assist the qazi in enforcing his judgements, some Muslim rulers provided a small force (Shurtas), who had wide powers and nobody could disobey them.
The Abbasid Caliphs introduced the office of Qazi-al-Qazzat (chief qazi). He was not only advisor to the ruler but also kept an eye on the performance of the qazis. Besides judicial functions, the Qazi also administered religious endowments (awqaf), the execution of wills, the accreditation of witnesses, guardianship over orphans and supervision of enforcement of public morals.
The formal institution of qazi was established in 705 AD during the reign of the Umayyad Caliphs. By 750 AD religious laws were firmly defined for the qazi to follow. Essentially he was to be a Muslim, sane, not convicted of slander and educated in Islamic sciences. There was no exploitable system like nowadays and the qazi’s word was final. An institution known as “Muzalim” functioned like an appeal court to help parties settle their disputes. The shurtas enforced the decision of the qazi and were sometimes allowed to hear and decide criminal cases. The law-and-order situation during the reigns of Hazrat Umar (RA), Umar bin Abdul Aziz (RA), Caliph Harun-al-Rashid, Sultan Mahmood of Ghazni and Sultan Alauddin Khilji are golden chapters in Islamic history.
Hazrat Umar (RA) was the first to establish the office of qazi on a solid foundation. He defined qazis’ education, training and suitability in detail. His letter to the governor of Kufa, Abu Musa Ahsari, is detailed but brief and describes the functions of a qazi in providing justice to plaintiffs. During Hazrat Umar’s reign, Muslims ruled an area of about 500,000 square miles. The qazi system was such that there was never a whisper of the non-availability, or miscarriage, of justice and it was freely and instantly dispensed. (Please read Hazrat Umar’s judicial system in detail in “Al-Farooq” by Maulana Shibli Naumani.) There was hardly any burden on the state treasury. Most important of all, there were no cases left pending. A qazi-like system functions in China today. Justice is immediate and culprits are dealt with effectively and instantly. Saudi Arabia also has a highly efficient qazi system – no delays, no non-availability of justice and no favouritism!
Our present judicial system was introduced in 1861 with an Act to establish High Courts in Calcutta, Bombay and Madras, and, in 1866, in Lahore and Allahabad. There followed the appointment of session judges, magistrates, deputy commissioners, etc. The tail became a thousand times longer than the body itself, resulting in the present judicial mess. Judging by the functioning of this system, it is apparent that it is a total failure. The influential, the rich and those in authority manage to be cleared of all crimes or, after having served five or ten years in jail for corruption and bad governance, manage to get the highest posts. They openly ridicule and insult the superior judiciary and are not taken to task for doing so.
Those who embezzled millions are well able to pay lawyers of disrepute who drag cases on for years or see to it that their clients cleared of all charges. Taxpayers are paying billions to maintain the system and yet there is no law and order in the country, nor is fair and quick justice available to the common man. We have the examples of the Steel Mills, PIA, the Railways, NICL, the murder of two young boys in Sialkot, the murder of innocent foreigners in Kharotabad, kidnapping, torture and murder of innocent citizens by rogue intelligence agencies, the unlawful increases in gas, petroleum and electricity prices, the cancer of adulteration of edibles and medicines (especially life-saving drugs) and the open mockery and ridiculing of the superior courts before us. None of these issues have been dealt with in a stern manner. We, the older generation, witnessed British rule and how a Commissioner or a Deputy Commissioner kept law and order and provided quick justice. No cases were left pending and nobody dared ridicule the judiciary or disobey the law enforcing agencies.
Worst of all, punishment for Contempt of Court is just six months in jail. No wonder this is no deterrent – the looting can continue again afterwards. Contrast that to the punishment for other simple crimes.
• Bouncing of a cheque – three years with fine (Pakistan Penal Code 489-F).
• Disobedience to/obstruction of duty of a police officer – three years plus fine (152).
• Damaging a child’s milk tooth – one year (337-U).
• Uprooting the hair of any part of the human body – three years (5).
• Theft of a motorcycle or scooter – seven years plus fine (381-A).
• Cheating – one year plus fine (415).
• Hurting, killing or maiming an animal of the value of ten rupees – two years plus fine (428).
• Damaging or removing land markers – one year (434).
• Commitment for trial or confinement by person having authority who knows that he/she is acting contrary to law – seven years plus fine (220)
Contrary to these crimes, contempt of court should be punishable by lengthy jail terms and disqualification from all public/private offices for life (and not six months in a bungalow with VVIP facilities). If the present system is maintained, and that too with laxity and delays, people will lose faith in the judiciary and we would be right in thinking that the old qazi system was a thousand times better than the current one, which is costing us billions of rupees every year.
ABDUL WAHID OSMAN BELAL