Neither Sheikhs Nor Judges

EDITORIAL

Corrupt politicians are bad enough for any country. Corrupt judges are even worse, because the justice system is supposed to be the place where problems are resolved. But the very worst situation is when corrupt politicians and corrupt judges work together to subvert the law. This is what happened in the case of Haatuf journalists who were jailed on President Rayale’s order which was rubber stamped by Somaliland’s courts. No doubt, President Rayale’s conduct was shameful, but that of the judges was even more so. Through their behavior, the judges not only committed a great injustice but they have made a mockery of the idea of an independent judiciary. Now everyone can see that there is no such thing as an independent judiciary in Somaliland.

Separation of powers between the executive, the legislative and judicial systems is one of the ways in which society tries to ward off the possibility of dictatorship. The idea is that the various power centers will check and balance each other, so that no single branch of government concentrates too much power in its hands. This is on the institutional level. But in the end, it is people who run institutions, and that is why the quality of the people who run the institutions is important.

Islamic jurisprudence acknowledges the impact of the personal factor on the justice system and lays guidelines for judges before and after they are appointed as judges. In his book “al-Qada fi al-Islam”, Dr Muxammad Cabd al-Qadir Abu Faris mentions some of these principles:

A judge should not be involved in other activities such as commerce, so it won’t affect his decisions.

A judge should not decide cases when he is angry.

A judge should have a clerk and a translator.

A judge should consult people of knowledge and experience.

A judge’s attire should be well kept.

A judge should follow the order of cases (for example the case of a stranger should be settled before that of the locals because the stranger may be in a hurry to leave town, and if his case is delayed, he may miss the court date and justice would not be served).

When listening to a case, a judge should treat disputants the same way and should not speak to one harshly and the other gently (let alone showing bias in his decisions).

As soon as a judge is appointed, he should order an investigation into the cases of people who are in prison, and if they deserve to stay in jail he should keep them in jail, but if he thinks they are innocent he should release them (he should not let people rot in jail just because they were there before he became a judge. Now they are his responsibility and he must look into their cases).

A judge should not handle a case against someone with whom the judge had a conflict.

Islamic law lays down certain conditions under which a judge could be removed from his position. Some of these conditions are: taking bribes, becoming seriously ill or engaging in immoral activities.

The Prophet Mohammed (peace be upon him) highlighted the pivotal importance of judges in Islamic society and the consequences of their actions in his saying: “There are three types of judges, two will go to hell and one will go to heaven: a man who knows what is right and judges accordingly will go to heaven, a man who judges cases based on ignorance will go to hell, a man who knows what is right but deliberately makes unjust decisions will go to hell.” (Al-Qudat thalathah, Ithnan fi al-nar wa-waxid fi al-jannah, rajul calima al-xaq faqada bih fa-huwa fi al-jannah, wa-rajul qada lil-nas cala jahl fa-huwa fi al-nar, wa-rajul carafa al-xaq fa-jar fi al-xukm fa-huwa fi al-nar).

Why are we discussing the connection between Islam and law? Answer: in order to underline how far the judges involved in the Haatuf case, particularly Mohammed Ali Hirsi (Chief Justice of the Supreme Court), Faysal Abdillahi Ismail (Hargeisa Regional Court Judge) and other members of the Supreme Court (Mahamud Hirsi Farah, Sh. Mohammed Abdi Naaleeye, Sh. Isman Ismail Ahmed and Yasin Hasan Ismail) have strayed from the basic ethics of their profession. In their handling of the Haatuf case, these men showed that they squarely belong to the last category in the prophet’s hadith, the category of those who deliberately subvert justice. The irony of ironies is that some of them carry the title sheikh in front of their names, while others claim to have studied the Sharia, but their conduct proves that they neither deserve to be called sheikhs nor judges.

Source: Somaliland Times

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