JUSTICE – A SACRED TRUST* By Hon. (Barr) Sadiq Ibrahim Dasin LL.B (Hons.) UniMaid, LL.M (ABU, Zaria), BL Former Speaker Adamawa State House of Assembly Member, Fufore/Gurin Constituency I am humbled by your invitation to be guest lecturer here today and I feel highly honored for being so invited. I wish however to raise some queries right from the onset about the topic and why your Association found me worthy of such a great honour. One, I am not a well known person in the legal circle. Two, I live in the north eastern corner of Nigeria, a zone better known for its poverty rate occasioned by low literacy level, unfriendly climate and recently, insurgency. Three why, if I may ask, would I be invited to deliver a paper in the university located in the nation’s capital; a place where, as will be expected, better legal minds are readily available? Nonetheless I most pleased, for the choice, for me of the topic justice which though technical in nature, has coincided with one subject I always want to speak on. * Being a paper delivered at the 9th Annual National Conference of Nigeria Association of Muslim Law Students, at the New Law Theatre, University of Abuja on Wednesday 26th February, 2014. Permit me therefore to begin by saying that I first encountered the difficulty on how the term justice should be defined, as early as my few days in the class as a law student. The then Dean Faculty of Law in the University of Maiduguri, (where I bagged my first degree) Professor Niki Tobi, JSC (as he then was) who taught me Law 100 had in the course of his lectures one day, told us the story of a judge in England who boarded a taxi in London and asked the driver to take him to the High court of justice. The taxi driver, according to justice Tobi, told the judge that he did not know where that was even though he was a London taxi driver. But when the judge described the building and where it was located, the driver exclaimed oh! you mean the High Court? The judge then smiled and nodded as if to say I understand what you mean. Here we are with a judge who is a legal mind and an ordinary person, a taxi driver who disagreed apparently, on what justice means; though it seems they both understood what it is. In this paper, we shall try to define what is justice, what is sacred, what is trust, on whose shoulder does this trust lie and who is the beneficiary of this trust? What then is Justice The word justice is a vague or nebulous concept and perhaps devoid of any definite or universally accepted definition. Just as the term reasonable man or the term public policy, the word Justice is on everyone’s lips nowadays, and may signify almost anything1. For this reason I will not want to attempt a definition of my own but rather set out to examine the subject matter through some attempts at the definitions by others as set out below:- The Oxford Dictionary of Law2 defines justice as:- A moral ideal that the law seeks to uphold in the protection of rights and punishment of wrongs. This is what the Oxford Advanced Learner’s Dictionary3 called the fair treatment of people. Perhaps it is because of the difficulty in finding a universal definition for the term that makes the famous American Jurist Russel Kirk to observe that:- All confusion about the meaning of the word “justice” notwithstanding, the latest edition of encyclopedia Britannica contains no article under the heading “justice” 4 He then concluded that he stands by the speech of Daniel Webster at the funeral of Justice Joseph Story in 1845 at which he said:- “Justice is the ligament which holds civilized beings and civilized nations together”5 So many intractable conflicts are fought over the concept of Justice but defining exactly what that concept means is very difficult. Sometimes Justice is defined in terms of equality-everyone should get or have the same amount, regardless of how hardly they work or that they put in; Other people define Justice in terms of equity-people should get benefit in proportion to what they contributed to producing those benefits and conversely, people should suffer costs in proportion to the harm they have done others; which yields the concept of retaliation. Still other people believe in equity with a bottom safety net level which protects people who, because of misfortune or disability, are unable to work or even help themselves.6 Three observations can be made here and disposed off. One, it is clear from the foregoing that the term Justice has had different meanings to different people at different times in history. Two, instead of trying to find a universal definition of Justice we may proceed from here on the assumption that all of us here present, I suppose, entertain some notion of what Justice signifies. Three, from the classical idea of justice through Plato, Aristotle, the Roman jurists of the Natural Law concept to the era of Greek philosophers, early Christian philosophers to the philosophers of the Islamic jurisprudence, justice is universal flowing from or connected with God or a god. Justice is therefore something considered holy or sacred, very important and worthy of protecting and preserving. If what we understand by the term justice is that it is universal, the question to ask is, is justice sacred? The word sacred means set apart or dedicated to religious use especially to God; holy; emanating from God; entitled to veneration or worship; not to be violated, breached, etc.7 Sacredness of Justice-General Despite the non universality of its definition, one thing is however clear, which is that it is understood right from the classical era of Plato, Aristotle and the Norman jurists up to the emergence of the Sharia and to the modern concept of the term, that every theory of justice seems to me to be founded on religious doctrines-Hebraic, Christian, Islam, Hindu, Buddhism. This clearly indicates that all civilizations are unanimous in the believe in some form of a supreme being; a fountain, from which justice flows or originated from. As Russel Kirk puts it:- The sanction of justice will be found, ultimately in religious insights as to the human condition and particularly in revelations. Our so called western concepts of justice are derived from the decaloque Platonic religious philosophy and the teachings of Christ.8 This conforms with the concept of justice in Islam that all sovereignty belongs to Allah alone and that it is from Allah that all the laws of Islam initiated9. This shows clearly that justice is sacred trust driven from religious doctrines and it is therefore universal. The Harvard Law School, one of the professional graduate schools of the Harvard University located in Boston, Massachusetts recently exhibited a Qur’anic verse conspicuously on the signboard at the gate of the School. As one approaches the school one cannot lose sight of the metallic writing on the wall of the entrance which reads:- O you who believe! Stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, your parents, and your relatives, or whether it is against the rich or the poor.10 This is in the Christian dominated America and the writing is still there as I speak to you now.11 This signifies the universality of justice. Having determined what justice and what its sacredness connote, the question may be asked, on whose shoulder does this sacred trust lie? Everybody cannot be placed on the position of delivering justice, although everybody would participate in seeing that justice is done. The person on whose shoulders the responsibility of doing justice lies is the judge. The means to deliver justice by the Judge, are not however left at the whims and caprices of him alone. The society (at least as far as the Common Law is concern) has set down rules by standards of which we can discern how this justice can best be delivered by the Judge. And of course derogation to the set rules breeds injustice. In recent times most legal systems have recognized the sacredness of Justice culminating in the Universal Declaration of Human Rights which was adopted by the UN General Assembly on 10th December, 1948 with the recognition of the inherent dignity of all members of the human family as the foundation of freedom, Justice and peace in the world12 The sacredness of Justice here is based on two age old cardinal principles by which we can determine whether or not justice is done in a judicial process in the determination of any given case. These cardinal principles are the doctrine of Fair Hearing and the concept of Rule of Law. Fair Hearing The concept of fair hearing is of great antiquity and universality embodied as a requirement of natural justice. According to the Oxford Dictionary of Law13 natural Justice means rules of fair play, originally developed by the courts of equity to control the decisions of inferior courts and then gradually extended (particularly in the 20th century) to apply equally to the decision of administrative and domestic tribunals and of any authority exercising an administrative power that affects a person’s status, rights, or liabilities. Any decision reached in contravention of natural justice is void as ultra vires. There are two principal rules. The first is the rule against bias, ie against departure from the standard of even-handed justice required of those who occupy judicial office-nemo judex in causa sua; no man may be a judge in his own cause. This means that any decision however fair it may seem, is invalid if made by a person with any financial or other interest in the outcome or any known bias that might have affected his impartiality. The second rule is known as audi alterem partem: hear the other side. It states that a decision cannot stand unless the person directly affected by it was given a fair opportunity both to state his case and to know and answer the other side’s case. The rule was demonstrated as early as 1723 in an English case.14 In the case Dr. Bentley was removed from the University of Cambridge and deprived of his academic degrees without given an opportunity to be heard. In nullifying the decision, Fortescue J. , declared that:- The objection of want of notice can never be got over. The laws of God and man both give the party an opportunity to make his defence, if he has any. I remember to have heard it observed by a very learned man upon such an occasion, that even God himself did not pass sentence upon Adam before he was called upon to make his defence. ‘Adam’ (says God) where art thou? Hast thou not eaten of the tree, whereof I commanded thee that thou shouldest not eat?’ And the same question was put to eve also. Attesting to the universality of the principles of natural justice and its applicability in Nigeria, Kairbi-Whyte, JSC in Adeniyi vs Governing Council of Yaba College of Technology15 stated that:- They are universal principles of ancient origin and common to mankind. They were recognized by the ancient Greeks and Romans, enshrined in the Holy Bible, and culture and philosophy of justice. It is, indeed, as asserted by Coke, a principle of divine justice. Rule of Law The second cardinal principle of justice is the concept of Rule of Law. Rule of Law simply means supremacy of law. The equality of all citizens before the law- a feature attributed to Professor Dicey in his exposition of the UK constitution in his Law of Constitution, 1885. Rule of law, according to Dicey, embodied three concepts; i. The absolute predominance of regular law, so that the government has no arbitrary authority over the citizen; ii. The equal subjection of all (including officials) to the ordinary law administered by the ordinary courts; and iii. The fact that the citizen’s personal freedom are formulated and protected by the ordinary law rather than by abstract constitutional declarations. Whatever the shortcomings, and there are many, of Dicey’s thesis, it has laid a solid foundation on which the attitude of constitutional law, not only in Britain, but the world over is laid. Thus here in Nigeria judges have often conjured the rule of law concept to caution government on the conduct of its administration. Thus in Re Mohammed Olayoni & others,16 the judge commented thus:- “if we are to have our actions guided and restrained in certain ways for the benefit of society….. then whatever status, whatever post we hold, we must succumb to the rule of law. The alternative is anarchy and chaos.” The Rule of Law as a cardinal principle of justice is a dynamic concept and as society develops, and as the task of government becomes more complicated, lawyers, politicians and administrators must be prepared to adopt the concept to new situations. The important thing to note is that state power is the greatest antagonist against which the rule of law must be forever addressed. Moreover, in order to satisfy the rule of law ideal, law in any society at all should be aimed at protecting the weak and the under-privileged members of society against those who can exercise physical, economic and industrial force17. And, as it was said, the whole aim of law should be to enhance social, economic, political, cultural etc. progress in the community. It is only in this way that one may be able to talk of an egalitarian society where everyone has equal access to justice and equal justice prevails18 Meaning of Justice in Islam In the Islamic worldview, justice denotes placing things in their rightful place. It also means giving others equal treatment. In Islam, justice is also a moral virtue and an attribute of human personality, as it is in the Western tradition. Justice is close to equality in the sense that it creates a state of equilibrium in the distribution of rights and duties, but they are not identical.19 The Quran, the sacred scripture of Islam, considers justice to be a supreme virtue. It is a basic objective of Islam to the degree that it stands next in order of priority to belief in God’s exclusive right to worship (Tawheed) and the truth of Muhammad’s prophet hood. God declares in the Quran: “God commands justice and fair dealing...”20 And in another passage: “O you who believe, be upright for God, and (be) bearers of witness with justice!...”21 Therefore, one may conclude that justice is an obligation in Islam and injustice is forbidden. The centrality of justice to the Quranic value system is displayed by the following verse: “We sent Our Messengers with clear signs and sent down with them the Book and the Measure in order to establish justice among the people…”22 The phrase ‘Our Messengers’ shows that justice has been the goal of all revelation and scriptures sent to humanity. The verse also shows that justice must be measured and implemented by the standards and guidelines set by revelation. Islam’s approach to justice is therefore comprehensive and all-embracing. Equality in Justice in Islam The Quranic standards of justice transcend considerations of race, religion, color, and creed, as Muslims are commanded to be just to their friends and foes alike, and to be just at all levels, as the Quran puts it: “O you who believe! Stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, your parents, and your relatives, or whether it is against the rich or the poor...”23 According to another Quranic passage: “Let not the hatred of a people swerve you away from justice. Be just, for this is closest to righteousness…”24 The Quran views itself as a scripture devoted mainly to laying down the principles of faith and justice. The Quran demands that justice be met for all, and that it is an inherent right of all human beings under Islamic Law. The timeless commitment of the Quran to the basic standards of justice is found in its declaration: “And the Word of your Lord has been fulfilled in truth and in justice. None can change His Words.” 25 Quite unlike in the Common Law, in Sharia, to render justice is a trust that God has conferred on the human being and, like all other trusts, its fulfillment must be guided by a sense of responsibility beyond mere conformity to set rules. Thus, the Quran states: “God commands you to render trusts to whom they are due, and when you judge between people, judge with justice…” 26 The reference to justice which immediately follows a reference to fulfillment of trusts indicates that it is one of the most important of all trusts. Justice is therefore sacred. Most of the recent western legal concepts such as supremacy of law, equality before the law, judicial independence and impartiality, juristic personality, legal representation, presumption of innocence, etc, were never alien to Islam. Muslims can take just pride in the fact that from the beginning their judicial system was placed on lines that in substance are no different from those of the best systems of today. The main features of administration of justice in Islam are: 1. Supremacy of law: In Islamic legal system, no ruler and no official can claim to be above the law. No acts, procedures, and decisions of any authority, howsoever high it may be, can be valid and binding as to the people they affect, save to the extent they are in consonance with the law. 2. Equality before law: The Quran and the Sunnah, which are the primary sources of Islamic law, put great emphasis on equality. Consequently, in Islamic legal system there cannot be one law for the ruler and one for the subject; one for the powerful and one for the weak; one for the rich and one for the poor. Government authorities enjoy no special privileges or immunities from the application of law. Even the Prophet of Islam did not consider himself or his family above the law. Instead of claiming any immunity from the law, he laid down the rule that even the head of the state may be challenged, in both official and private capacity, in the court. The following statement of the Prophet (PBUH) which he made while deciding the case of a noble woman who had committed theft, demonstrates it all: “Verily those who were before you were destroyed because when a noble man from among them committed theft, they passed no sentence on him. By Allah, had Fatima, the daughter of Muhammad, committed theft, I would have cut off her hand.” Also, during the course of his last sermon, the Prophet publicly offered to the community that if he owed anything to anyone, or had done any harm to anyone’s life or property, he was available to answer for it. 3. Judicial impartiality: The Quran says: “Surely We have revealed the Book to thee with truth that thou may judge between people by means of what Allah has taught thee. And be not one pleading the cause of the dishonest.”27 It is agreed that the occasion of the revelation of the above-given verse was a dispute between a Jew and a Muslim, in which the Prophet decided against the Muslim. The Muslim, supported by his tribe, had falsely accused the Jew of theft. In a time when help was sorely needed for the defence of Islam, a verdict against a man supported by his tribe meant the loss of that tribe. But such considerations did not carry any weight with the Prophet and he cleared the Jew of the charge. Thus, the verse lays down that dishonesty must be punished, and the balance of justice must be held equal between friends and foes and between Muslims and non-Muslims. He strictly observed the Quranic instructions regarding equality before law, and never made any distinction between litigants on the basis of religion or relations. The Quran says: “O you who believe, be maintainers of justice, bearers of witness for Allah, even though it be against your own selves or (your) parents or near relatives — whether he be rich or poor... And if you distort or turn away (from truth), surely Allah is ever Aware of what you do.”28 In another verse, Allah says: “O you who believe, be upright for Allah, bearers of witness with justice; and not let hatred of a people incite you not to act equitably. Be just; that is nearer to observance of duty. And keep your duty to Allah. Surely Allah is aware of what you do.”29 Conclusion In Islam, the concept of justice is more comprehensive, vital, and sacred than in any other system of life. It is one of the fundamental objectives of the Islamic state to provide justice. Not only justice is considered to be a trust, a sacred responsibility, which is to be performed in conformity with the provisions of the Quran and the Sunnah; but the dispensation of justice also constitutes one of the most important acts of devotion. 1. Russel Kirk, The meaning of Justice; the Heritage Lecture, Mandate for Leadership 111, p.17 2. Oxford Dictionary of Law, Oxford University Press 6th Edition (2006) 3. Oxford Advanced Learners Dictionary, New 8th Edition (2010) 4. Russel Kirk, The Meaning of Justice; the Heritage Lecture, Mandate for Leadership 111 , p.24
Posted on: Sun, 03 Aug 2014 22:03:49 +0000
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