MOST of the recent western legal concepts such as supremacy of law, equality before 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. Here is a brief look at some of the main features of administration of justice in Islam.

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.” (4: 105)

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.

The Prophet was known for his fair and impartial administration of justice. Along with Muslims, non-Muslims would also come to him for settlement of their disputes and he would adjudicate in accordance with their laws. 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.” (4:135) “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.” (5:8)

The extent to which impartiality is expected of a judge is also well illustrated in the story concerning Caliph Umar. He once had a lawsuit against a Jew. When both parties went before the judge, the latter rose in his seat out of deference to Umar. Umar looked upon this act of deference to one party as an unpardonable judicial weakness.

4. Judicial independence: In Islamic legal system, judiciary is independent of executive control. Judges can perform their functions without any interference and none can influence the course of justice with his authority or wealth. The following portion of a letter that was written by Caliph Ali to one of his governors, excellently explains the notion of independence of judiciary in Islam:

“Select for your Chief Judge one from the people who by far is the best among them; one who is not obsessed with domestic worries; one who cannot be intimidated; one who does not err too often; one who does not turn back from the right path once he finds it; one who is not self centred or avaricious; one who will not decide before knowing full facts; one who will weigh with care every attendant doubt and pronounce a clear verdict after taking everything into full consideration; one who will not grow restive over the arguments of advocates; one who will examine with patience every new disclosure of facts; one who will be strictly impartial in his decision; one whom flattery cannot mislead; one who does not exult over his position.

“But it is not easy to find such men... Once you have selected the right man for the office, pay him handsomely enough to let him live in comfort and in keeping with his position, enough to keep him above temptations. Give him a position in your court so high that none can even dream of coveting it, and so high that neither backbiting nor intrigue can touch him.”

Since law, in Islam, stands at the apex of social organisation, those who administer the law must likewise be elevated and kept free of all executive control.

5. Free administration of justice: In Islamic legal system, justice is administered free of cost. All citizens, regardless of their financial status, can get justice without incurring any expenses in the form of court fee, stamp duty, etc.

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.

THE installation of a Hamas government led by Ismail Haniya in occupied Palestinian territories is an event which will resonate throughout the Middle East and could alter the region’s political landscape. The overwhelming victory of Hamas early this year poses a formidable challenge to those involved in making peace between the Palestinians and Israelis. Any impulsive move can unleash a new cycle of bloodshed with uncertain consequences.

After the death of Yasser Arafat, when elections to the presidency saw Mahmood Abbas emerge as the new Palestinian leader in January 2005, the US and Israel held preliminary talks with Abbas. But the peace process did not move forward because Israel was not interested. During his visit to Washington, Abbas was advised by President Bush to democratize the Palestinian Authority by holding free and fair elections as the PA’s image had been badly tarnished with reports of massive corruption and incompetence.

The elections were duly held and to the surprise and dismay of the principal actors in the peace process, Hamas, regarded as a terrorist Islamic party by the US and the EU, scored an overwhelming victory, winning 76 seats in a house of 130. Its stunning victory has posed a major dilemma for President George Bush who, despite having repeatedly advocated democracy as a long-term solution to a volatile Middle East, has declined to accept the popular Palestinian will, and has severed contacts with Palestinian authorities. Canada has followed suit and the EU has also joined their ranks, warning that annual assistance amounting to 500 million euros would be cut off, unless Hamas “abandons violence, recognizes Israel and embraces the roadmap for peace”. Hamas leader Khalid Mashal has observed, “The day Hamas won the Palestinian democratic elections, the world’s leading democracies failed the test of democracy.”

The EU threat to cut off economic assistance is a blatant form of political blackmail by countries claiming to be the champions of democracy and human rights. The EU statement underlined that “future assistance to any future government would be reviewed by donors against the government’s commitments to the principles of non-violence, recognition of Israel and acceptance of previous agreements and obligations including the roadmap.”

This position is an endorsement of Israel’s freeze of the payment of $50 million collected by Israel on PA’s behalf in the form of revenues and custom duties on Palestine-bound goods transiting through Israel. The amount is used for the payment of salaries to civil servants, numbering 140,000.

The financial squeeze will have a devastating impact on the Palestinian economy according to a World Bank study. The Palestinians depend heavily on international assistance amounting to about $1.3 billion every year. If the money due to the PA is halted, the Palestinian economy will contract by 24 per cent this year and unemployment would jump to 36 per cent, the report warned. The percentage of people living below the poverty line would increase to 62 from 44 this year.

Contrary to international press reports, Hamas has shown considerable flexibility. Its leader Khaled Mashal has offered the EU “to initiate a dialogue without preliminary conditions and in spirit of neutrality”. There is, however, no likelihood that the EU or the US would relax their financial stranglehold. The conditions for the restoration of financial help are totally unacceptable to Hamas, as they amount to a betrayal of Palestinian rights enshrined in UN resolutions and international law.

In a newspaper article that has been quoted extensively in the international media, Khaled Mashal explained Hamas’s philosophy and ideology. Couched in conciliatory terms, it reiterated that the conflict was not religious but political. He urged the US and EU to use “the success of Hamas to open a new chapter and to understand better a movement that so far has been seen largely through the eyes of the Zionist occupiers of our land”. He offered an olive branch to Israel — “if you are willing to accept the principle of a long-term truce, we are prepared to negotiate the terms. Hamas is extending a hand of peace to those who are really interested in peace based on justice.”

These words have, however, fallen on deaf ears, and the US and Israel have stepped up their campaign to isolate Hamas. Recognizing that denying funds to Hamas was vital to their strategy, US secretary of state Condoleezza Rice visited Cairo and Riyadh, urging the Arabs to follow the EU and US and deny funds to Hamas. She failed in that objective but intense diplomatic pressure still continues to deprive Hamas of political and financial support. To counter these moves, the Hamas leadership has visited Moscow, Ankara, Damascus and Tehran, among other capitals.

The visits were successful and have raised the prospects of financial aid at least for the short-term. Mashal has reminded Arab and Muslim nations “you have a responsibility to stand by your Palestinian and sisters, whose sacrifices are made on behalf of all of you”. The annual Arab League summit was convened on March 28 to discuss the situation, but which proved a tame affair. Nine major Arab leaders including President Hosni Mubarak and King Abdullah did not attend. Hamas had urged that the annual Arab subsidy of $55 million be raised to $100 million to enable the newly-formed government to face the financial challenge, but apparently under pressure from the US the leaders balked at the demand.

Hamas has an impressive and extensive record of providing health, education and other welfare services to the impoverished Palestinians in the occupied lands. This record helped it defeat Fatah, generally perceived to be corrupt and incompetent. Its government has to live up to the expectations of the electorate. The odds are overwhelming. Israel supplies Palestinian territories with electricity and water and it collects taxes and custom revenues on their behalf, which have now been frozen. Israel also controls nearly all access into and out of the Palestinian areas.

Israeli Premier Olmert has threatened that there being no negotiating partner, Israel would move unilaterally to impose final borders with the Palestinians. Should Olmert pursue this policy, being fully supported by the US, the consequences would be dire. Haniya in an article has warned that “Olmert’s unilateralism is a recipe for conflict”. Palestinians have for long suffered from and resisted Israel’s policy of occupation, colonization, assassinations, border closings detentions and expropriation of Arab lands. Israel’s rejection of their democratically elected Hamas government could reignite the situation.

The Palestinian issue, unfortunately, has been totally distorted in the West. It is no longer an issue of aggression and occupation, of national rights and human rights, of violation of UN resolutions and usurpation of Arab lands. The Palestinian struggle, that seeks an end to Israeli occupation, is condemned as Islamic terrorism.

If the situation persists and the financial squeeze continues, the only prospects are of more gruesome violence reminiscent of the second Intifidah, when from 2000 until last year, 3,982 Palestinians and 1,084 Israelis were killed.

Former US President Carter has rightly concluded “The pre-eminent obstacle is Israel’s colonization of Palestine. Presently isolated, without access to the air, sea or the West Bank, Gaza is a non-viable economic and political entity. The future of the West Bank is equally dismal. Especially troublesome is Israel’s construction of huge concrete dividing walls in populated areas. The wall is designed to surround a truncated Palestine completely. This wall will never be acceptable to Palestinians.”

Israel and the US remain adamant to pursue the policy of boycott of Hamas and keep it out of the political process. The financial squeeze may not work as in the interim period Muslim countries may come to the rescue, although the Arab League’s response has been tepid, if Israel follows through with its threat of unilateral measures and boycott of Hamas. While Hamas has rejected the demand to alter its charter or extend recognition to Israel, it has maintained a moderate stance. Prime Minister Ismael Haniya has called on Israel to accept and respect the choice of the Palestinian people. He declared “we want stability, calm and a complete just and lasting peace”. These expectations, unfortunately, will remain an illusion, since Israel will never risk the emergence of Hamas as the negotiating party.

The writer is a former ambassador.