Absolute Justice For All: The Islamic Judicial Magna Carta Of Omar, In the 7th Century AD

It was promulgated 500 years before Magna Carta was issued in 1215. Magna Carta was extracted by British nobles from King John on behalf of human rights for his subjects. Omar Ibn Al-Khattab, the second to succeed the Prophet Muhammad, as the second of four Enlightened Caliphs, had a sense of absolute justice.

With law being basically an equalizer, the motto "Justice Is the Pillar of Governance" was Omar's creed. Unsurprisingly, it appears on the wall of every Arab court behind the judge's bench. In Arabic it says: "Al-Adl Asas Al-Mulk."

With our present world in disarray, especially in these waning days of jihadism, I opted for translating Omar's judicial creed from Arabic into English.

And for a suitable location for that first-ever translation, I annexed it to my book, recently published by Amazon. The book's full title is "War on Jihadism By Ideology: The New Islamic Religious Revolution." That publication has been dedicated to Al-Azhar in Cairo, and to its Grand Imam, Dr. El-Taiyeb.

Of course, Omar's judicial creed is the very anti-thesis of the catastrophe for justice and human rights summed up in one word: "Guantanamo." For it reads as follows as instructions for a nominee for a judgeship in Kofa, Iraq:

Here follows its full text:

• "From Omar To Abu-Musa Al-Ashaari: Peace Be Upon You!! 
• Know that judging is a firm religious duty, and a tradition observed. Be sure to understand the pleadings delivered before you. And when you reach a decision based on evidence, implement it. For there is no use in speaking about what is right if it lacks execution.
• Maintain a neutral face while on the bench, performing the role of a judge. This ensures that the powerful shall not aspire to your siding unjustly with them. Nor shall the powerless despair of your rendering justice unto them.
• The burden of proof is upon the plaintiff. And those impeaching that evidence should take a solemn oath that their denial has merit.
• Conciliation is permissible between litigants (referred to in general as Muslims). That is unless it is on a basis disapproved by Islamic jurisprudence, or denying what is permitted under that jurisprudence.
• Do not hesitate to review and amend a judgment which you might have reached the day before, only to discover, through your sense of fairness, that it was in error. That is because what is right does not age by the passage of time, as nothing could invalidate an obvious right.
• Returning to the zone of what is rightfully just supersedes any continuation down the path of what is unjust. And if someone claims a right that has not been uncovered before a proof was available, give them a time limit to provide such evidence. If they succeed, rule in favor of restituting to them those rights. But if they fail, they lose their cause. Thus no pretexts can stand, and no blindness to what is evident can prevail.
• Comprehension, comprehension of the pleadings in your court. Especially whatever is in those pleadings which is not based on text either in the Quran or in the Prophet’s tradition. In these situations, resort to prior cases decided by unanimity (ijmaa) or by analogy (quias). Educate yourself about those precedents, then make the judgments which seem to you to be supported by the Quran, as close as possible to the word of God, and nearest to the concept of fairness.
• People (the faithful) have a sense of what is right within their society. With the exception of those whose testimony had been previously impeached as false, or those previously convicted, or those whose sense of loyalty or family lineage is subject to doubt.
• Only God knows what people harbor in their bosoms, and He is the One who shields them from punitive measures. That is with the exception of situations where there is probative evidence and proven faith.
• You are hereby instructed to avoid becoming angry or anxious or bored, or upset by adversaries, or by turning your back upon issues of conflict. That is because good judging on issues of right and wrong is what God dictates to you, and is what you shall be remembered by.
• This is applicable to judges who are endowed with good will and who might rule even against themselves. It is the way prescribed by God for any relationship between a judge and his community.
• But those who resort to mere appearances which they know to be non-reflective of their true feelings, shall not be favored by God. Only honesty can be favored by God, and that is where God shall favor those who adhere to it, rewarding them in their livelihoods and through his limitless mercy.

Peace Be With You."

From the above, a global legal conclusion emerges. Equal protection of the law, otherwise referred to colloquially as "no one is above the law" is the substance of Omar's judicial decree. At that time, mid of the 7th Century AD, judging was integral to rulership.

Prior to the promulgation of Omar's judicial decree, which adorns the entrance to the Institute of High Judicial Studies in Abbasiyah (a Cairo district), the Prophet Muhammad had planted the seed of that concept.

In appointing Moaz Ibn Jabal judge for Yemen, to succeed the Prophet's cousin and protege, Ali Ibn Abi-Taleb, he urged the pursuit of a novel concept for finding the law. In summary, he urged that if the judge cannot discover the rule of law applicable to any case, in either the Quran or the Sunna, he should extrapolate it through common sense -in Arabic "Al-Hekmah." Thus the Prophet made Al-Hekmah the modus operandi of Al-Ijtihad, which in effect is the brain of Sharia (Islamic Law).

From the 7th Century (Omar's decree in Arabia) to the 13th Century (Magna Carta in England), to the 19th Century, when the U.S. Constitution embraces the same concept, the thread holding that legal necklace is one and the same. For the 14th Amendment, ratified on July 9, 1868 provides for "any person within its jurisdiction the equal protection of the laws."

So, never accept the ancient Roman saying: "In times of war, the law falls silent." It never does!!

Ibn Al-Khattab put his declared faith in "equality before the law" in practice. Not only was he one of only 17 men in his tribe (Quraish) who could write when Islam began, thus able to enhance the enforcement of his sense of justice. Omar was also a dedicated protector of minority rights.

He chided and punished his appointed governor to Egypt in 641 AD for injustice to an Egyptian Christian subject (a Copt). Omar's words, on that occasion, shall always stand as testimony to "justice is the pillar of governance." For he told the errant Governor: "Why do you enslave people who were born free by the very fact of their birth!!"


NOTE: This blog posting is now monthly, appearing at the end of each month. This pattern shall continue while I am writing my autobiography.

Getting to Know the State of Kuwait

While I was Secretary of the Board of UNITAR (The UN Institute for Training and Research), I was tasked with supervising a special study. It was (in short) "issues of Small States." Its drafter was an Eritrean scholar, friend of mine, by the name of Dr. Berhan Andemicael. Later, Berhan headed the NY Liaison Office of International Atomic Energy Agency (IAEA), as I moved from UNITAR to establish the first Peace Research Center within the then UN Department for Secretary Council Affairs.

This is the context of this monthly blog, entitled "Getting to Know the State of Kuwait." Reason: Kuwait is described by the Kuwaitis as a "Small State." I beg to differ. States, in my own definition, are neither big, mid-size, nor small. Each State from Monaco to Russia draws their description from two sources: The character of their people, and the contribution they make towards internal welfare, and external management of their foreign affairs.

With these parameters in mind, I have observed Kuwait through its presidency of the UN Security Council in February, as well as through its celebration of its Liberation Day on February 26, 2018. Not only did I observe both the Foreign Minister, Sheikh Sabah Al-Ahmad Al-Sabah, as well as the Kuwait Permanent Representative to the UN, Ambassador Mansour Alotaibi; my gaze roamed beyond, as a search light, shining a spot on the totality of that environment of a State, whose origins date back to the mid 17th Century.

As I peered through the fog of the endless practice of UN compromises, a requisite for Security Council complex drafting and passing of resolutions, I detected Kuwaiti calm and well modulated voice from the presidential chair. No screams, no shouts, no pointing of blaming fingers on issues, such as Syria, Yemen, Libya, Central African Republic, Palestine and ISIS.

The outward motion hummed on noiselessly. Its combustion engine was not that of a tractor, but of a Mercedes Benz. The goal was to move things forward, even through the boulders of big power rivalries seeking to score points, not necessarily moving towards the two principal objectives of the UN: peace and prosperity.

Not since the 1990s when UN Secretary-General Boutros Ghali issued his twin agendas, one for peace, the other for development, have I, as professor of international law and organizations, seen the likes of the Kuwait concept memorandum on energizing the peace and prosperity pillars on which the UN Charter of 1945 had been established. Seeing in it the spirit of a "small" but resilient State, I have assigned it a course of study for my spring intern from St. Francis College, New York City, Julia Cruet. Her successors (I only take one notable undergraduate each semester from St. Francis College -a class of one student!!), shall benefit by that historic concept paper introduced by Kuwait into the UN annals.

Beyond the UN realm, I came to discern in the public events organized by the Permanent Mission of the State of Kuwait to the UN, what I can only describe as "the of sinews resilience" of Kuwaiti Society. From that I learnt why the Iraqi invasion of Kuwait of 1990 had failed. That power grab by Saddam Hussein had collapsed, not only because of the collective military intervention by the UN. The roots of that failure, as I came to recently discover, grew deeper in the sands of Kuwait through a population that said: Saddam "you can burn our oil fields. But you shall not extinguish our 350 years of Kuwait ID!!"

How did I reach that conclusion? Not through fantasy of a person like myself who was born in the desert of an Egyptian province called Sharqiah, west of the two Suez Canals. But through:

• Their orchestra playing in the UN General Assembly Hall;
• Their songs evoking the transition from the "hard times," to "the blessed times of plenty;"
• Their diverse skin color which reminds me of the American and the Egyptian models;
• The engagement by Ambassador Alotaibi and his Deputy, Mr. Bader AlMunayekh of little Kuwaiti girls dancing to their native music;
• The teamwork of their diplomats who seem never to forget why they are in New York serving Kuwait and the world;
• The outward openness and affability of their ladies whether diplomats, spouses, advisers or local recruits;
• Their generosity writ large not only at the Mission; but also worldwide through the "Kuwait Development Fund." They have even contributed significantly in 2018 towards the rebuilding of Iraq;
• Their national dress, especially the head gear, black AQAL (thick cord) holding in place a snow white Kaffieyeh covering a man's head, and needing constant adjustment with a flourish;
• Their security guards who never fail to greet every permitted visitor with the equivalent of the song in Oklahoma: "Oh What a Beautiful Day!!"

I am finally getting to know the State of Kuwait through only two weeks of residence at the Permanent Mission.

So please note: Kuwait is not only a State; it is "a state of mind!!"