Thursday, August 25, 2011

RULE OF LAW AND ISLAMIC FINANCE

STANDARDISATION, JUSTICE AND THE RULE OF LAW: WHERE IS DISPUTE SETTLEMENT IN ISLAMIC FINANCE?
As Ibn Khaldun, the outstanding Muslim social scientist put it many centuries ago, a man cannot live except in a civil society because he cannot survive in isolation. Demands of life could not be fulfilled unless he co-operates with others, and the others need him to fulfill their basic needs too. The gathering of people in a particular place or locality leads to urbanization which is the essence of hadharah or civilization. Civilized people need systems to conduct their daily activities and to settle disputes arising as between them. Life without dispute settlement mechanisms is a form of anarchy by definition.

In the contemporary world however, multiplicity in legal systems is a fact of life that no informed observers and students of law can ignore. The numerous systems and rules applied and followed worldwide testify to the fact that everywhere justice is sought after at whatever price. Nevertheless, the biggest question to answer is not related to what particular system that is followed but what justice it brings to real lives of the people. In the end, it is justice in itself that is sought after by nearly all irrespective of race, colour or place of abode. The quest for justice is a never-ending endeavor of the human race of all ages. Islam as a religion is very vocal about the need to uphold justice. In the Quran Allah Almighty says:

“ O ye who believe! Stand out firmly for justice, as witness to God, even against yourselves, or your parents, or your kin, and whether it is (against) rich or poor: for God best protects both. Follow not the lusts ( of your hearts), lest ye swerve, and if ye distort (justice) or decline to do justice, verily God is well-acquainted with all that ye do.”
(Al-Quran 4: 135)

It is of interest to compare the above Islamic notion of justice with the so-called distributive and remedial justice of Aristotle, the natural justice of Anglo-American Common Law and the formal justice of the Roman Law. Whatever description that may be attributed to all of the above notions, one certain thing is that each system seeks to define justice and provide solutions to human problems which involve rights and obligations and the associated phenomena related therein.
One of the most important elements needed for justice to be done is the existence of an independent judiciary that seeks to settle disputes arising in the society. No law can be effective in rendering justice unless the means through which it is delivered and made applicable is supported by just process and procedure. Granted all of that, the rule of law is thus established where law reigns supreme; nothing is done or rendered except in accordance with clear provisions of law as interpreted and explained by competent and independent judges.

In the context of judicial independence the most pertinent aspect is to see whether the establishment of the judiciary itself reflects sincere regard for principles of justice. One legitimate question to ask is: to what extent, the established court system or judiciary is subject to constraint and limitations that would seek to influence its task in administering and upholding justice or whether there are constitutional provisions that guarantee its independence?. If there are in fact such constraint and limitations, whether they are justified in the context of an overall effort to establish harmony in society founded upon the noble concept of justice that is supposed to maintain workable balance with regard to competing interests and rights?.

It has been said time and again that, the judiciary is the true guardian of justice in any society such that any weakness in its roles and functions vis-a-vis other organs of the state will adversely affect the whole system of value and justice. Likewise, any deterioration in people's confidence about the independence of the judiciary will in most cases lead to instability and chaos that will sometimes be difficult to control. Therefore it is very important to realize that the duty to maintain an independent judiciary is vital to the survival and progress of any nation. Efforts must always be made to strengthen the image and dignity of the judicial system and its functionaries.

In a wider context, apart from perception held by local masses about their judiciary, international public opinion is sometimes very active in shaping the kind of image a judiciary of a certain country has. Undoubtedly, these days no country stands in isolation and immune from the scrutiny of interest groups, lobbyists and international media in particular. However there are several dangerous elements present in the current debate about democracy and the rule of law and with it the notion of independence of the judiciary.

With the ensuing move towards globalization, there seems to be efforts by some quarters to impose certain values as "universal" forgetting the facts that in reality, people are different, their habitats and upbringing are different and the levels of their civilizations are also different. If certain universal values are to be accepted by the entire world, these values must be universal enough to be accepted by all. Certainly there are values that we universally have no argument about them like:
1. one is presumed to be innocent unless proven guilty
2 . Everyone has the right to be heard,
3. the notion of right to fair hearing,

4. the right to provide defense of oneself upon accusation.


However, there are values that people may disagree about, in the context of prevailing local customs and religious belief. International conventions thus for instance recognize freedom of religion as one of the basic fundamental rights of each and every individual. Hence to force someone to abandon the creeds or rules as found in and taught by his religion is actually a denial of the right to religious freedom granted to him in the first place.

Islam for one, is a religion that is very clear about law and order as it comes with a well-embracing concept of shariah or divine law supplemented with what is known as jurist law or fiqh jurisprudence. Therefore, for Muslims, justice is both the question of religion and temporal necessity. As such the duty to administer justice is considered part of religious observance of the believers not less valuable than their worldly affairs for that matter.

Although Islam propagates sacred values as dictated by the Shariah or the divine law, yet in actual fact the Shariah itself contains both the elements of rigidity and flexibility at the same time. It is rigid when it deals with fundamental values like justice, tolerance, equity, respect for the elderly, fair distribution of property, prohibition of certain major criminal acts, just to mention a few, but still it is very flexible with respect to the way in which these principles or values are to be implemented. That flexible part of the Shariah (fiqh jurisprudence) may change with the change in time and place thereby allowing accommodation to take place for the sake of justice and equity.

Universal values, if they were to be respected, must be flexible enough that they can accommodate local circumstances, yet still relevant in a wider context. The irony is that sometimes in the pursuit of universal principles and values we forgot about the need to adjust ourselves to local circumstances and needs, thereby compromising our true quest for justice.

Independence of the judiciary is also related to the need to maintain freedom for judges to act within their powers as established by law. In order to curb unwarranted monopoly of power in a state, the doctrine of separation of powers was propounded whereby the three organs of the state ( legislative, executive and judiciary) are supposedly segregated such that each will act as a check on the others, culminating in the appearance of the notion of check and balance in constitutional thinking.

Additionally the judiciary is also empowered with judicial review over actions by executive agents to ensure that discretion is properly exercised. In practice however, such noble aim has been the most difficult task to achieve given the dominance of the executive branch in a day to day running of the state, not to mention the fact that in most cases, judges, especially at the highest level, are normally appointed by the head of the executive.

Apart from issues relating to appointment of judges, what we mean by the term independence of the judiciary is that judges who are so appointed should be able to exercise their unfettered discretion in the interpretation of laws and administration of justice, and that they are not influenced by anyone in discharging their duties as adjudicators for disputes. Only when this aim is achieved that the major condition of rule of law is fulfilled thus ensuring that justice is done and liberty established. The process that leads to the above noble aim is related, among others, to issues surrounding modes of appointment of judges, judicial tenure, removal of judges, judges’ salaries and also qualifications of judges.


1 comment:

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