Ancient Oriental Cadi

ANCIENT ORIENTAL CADI

By Taki Ahmed Khan, M.A., Barrister-at-Law

Judge Dole observed in the case of Clarke versus Harlaysarile, Mut, Causaltry (123 FLD 499 at page 502) "we sit after all as an Appellate Court administering justice under the law not as an Ancient Oriental Cadi dispensing a rough and ready equity according to the dictates of his own unfettered discretion"

This sentiment was repeated by Judge Framfurther in the case of Terminiella versus Chicago (337 US I at page 11) when he wrote "this is a Court of Review not a Tribunal unbounded by rules. We do not sit like a Cadi under a tree dispensing justice according to considerations of individual expediency".

To American public, the above said judgments convey the picture of a Muslim jurist as if he coins legal rules with unbridled arbitrariness. Nothing is far from the reality. Muslim Judges have down the ages stuck closely to the sacred laws revealed in Qur'an or found in the Traditions. Every effort by the despotic Kings to deviate from the Injunctions of Islam has incited resistance. In the reign of Mamun-ur-Rashid (814 A.C to 833 A.C.) Mutazilas backed by the sovereign were in the ascendancy. They extolled reason against revelation. The King accepted the Mutazilas doctrine and sought to enforce it in his kingdom. Imam Ahmed Bin Hambal rejected the rationalism advocated by followers of Wasil Bin Atta and risked torture and imprisonment. Even when Imam Ahmed was being bashed he demanded, "bring something from Qur'an (to convince me)".

The rules of inheritance; marriage, divorce, wills and wakfs are extensive and fixed. The schools in which the Cadies were educated were spread over whole of the Muslim World.

In the year 1067 A.C. great Nizam ul Mulk Toosi, (C-1091 A.C) built Nizamieh College, Baghdad and in 1226 A.0 Mustansir built Mustansirieh College in Baghdad. Nizam ul Mulk also founded colleges at Herat and Neishapur (Iran). Salah-ud-Din Aubi (who ruled under the title of AI-Malik-an-Nasir) established a College at Jerusalem called Nasirieh. Salah-ud-Din's sister, Rabiyya Khatoon opened 2 colleges at Damascus called Rawahieh and Madrasaat-us-Sitt. In Mosul 5 colleges, the Nasrieh, the Izzieh, the Zainieh, the Nafisa and Alieh were built in the Abbasied period. Little wonder that Dozy wrote in his L'histoire des Musulmans d'Espagne, "in Spain every body knew how to read and write, whilst in Christian Europe save and accept the clergy, even persons belongings to the higher rank were wholly ignorant".

The study of law was popular among Muslims because the law regulated both the Private and public life of the Muslims. Authoritative works at law such as Hedaya and Sirajia were primary text books in Law Schools.

Judicial appointments were not sinecures but were made on account of probity and learning of the aspirant. The author of Siyasat Nama lays down the following criteria for a Cadi "he should be a gentleman from middle class. He must get handsome salary from the State to avoid any temptation for corruption. Since Cadies position in society is of utmost importance in that he declares the rights of the people, his decision should be amenable to Appeal and Review. It is the duty of the State to strengthen the hands of Cadi. Dignity of judicial office must be maintained. If anyone dares to disobey the Cadi's Order, he should be punished how so high, he may be. The contemnor must be forced to submit before the Court" (Siyasat Nama Chapter 6).

How the justice was administered by the Cadi and how sovereign submitted completely before the judicial verdict can be illustrated by citing a case from Spain. A son of Abdul Rehman-III attempted a revolt. He was condemned by a Full Court to suffer the penalty of death. His brother, who was heir-apparent threw himself with tears at his father's feet to rescind the sentence, passed by the Court. "As a father I shall shed tears of blood all my life" said the old Caliph of Cordova, "but I am a Caliph as well as a father; if I interfere in this case the empire will fall into pieces". The sentence of death was allowed to take effect. From that day, Abdul Rehman-III was never seen to smile. "Short History of the Saracens" by Syed Ameer Ali, Chapter XXVII page 510 foot note).

In his treatise on Government Nizam Ullah Toosi records a case wherein a Writ was issued at the instance of an old woman against the Governor of Neishapur to deliver possession of property allegedly appropriated-by the Governor to his own use. The Governor demurred that the 'suit property belonged to him and requested to Cadi to reconsider *the case. This time the Governor was summoned in person before the Court and was given corporal punishment for delaying the implementation of Court's order because, the Court said that its order had to be first put into effect and thereafter objection could be raised against it. It was necessary to do so to maintain the dignity of Court (Siyasat Nama Chapter 11).

In another case recorded in the same treatise, Ali Noshatgeen a General and close friend of Mehmood Gaznavi was caught by the City Magistrate in a booze who punished the General in accordance with Sharia before his men. "All the subordinates of the General watched their Commander receiving corporal punishment but nobody dared even to move his tongue" says reporter. Next day, the General showed his master Mehmood Gaznavi his lacerated back who laughed and said "if you would violate the law, you will be again dealt with in the same manner" (Siyasat Nama Chapter 6).

Lord Russell, a Judge of English Court of Appeal was also intercepted by a policeman in 1968 driving when drunk. The learned Judge was challaned, he appeared before a Magistrate in London and was fined.

This shows that civilizations in the healthy periods of their existence share the same values.

***

© 2020 PakistanLaw.pk, All rights reserved.