An order to Maalik al-Ashtar--Governor of Egypt by Hazarat Ali (as)

These are the orders issued by the creature of Allah, Ali, the son Abu Taalib (a) to Maalik, the son of Ashtar when he appointed Maalik as the Governor of Egypt to collect Zakat there, to combat the enemies of Islam and Egypt, to work for the welfare of its people and to look after its prosperity.

I order you, Maalik, always to keep the fear of Allah in your mind, to give priority to His worship and to give preference to obeying His Commands over every other thing in life, to carefully and faithfully follow the commandments and interdictions as are given by the Holy Book and the traditions of the Holy Prophet (s) because the success of a man to attain happiness in this world and in the next depends upon these qualities, and a failure to achieve these attributes brings about total failure in both the worlds.

I order you to use your head, heart, hands and tongue to help the creatures of Allah because the Almighty Allah holds Himself responsible to help those who sincerely try their best to help Him. Allah has further ordered you to keep your desires under control, to keep yourself under restraint when extravagant and inordinate yearnings and cravings try to drive you towards vice and wickedness because usually your 'self' tries to incite and drag you towards infamy and damnation unless the Merciful Lord comes to your help.

Let it be known to you, Maalik, that I am sending you as a governor to a country which has seen many regimes before this. Some of them were benign, sympathetic and good, while others were tyrannical, oppressive and cruel. People will judge your regime as critically as you have studied the activities of other regimes and they will criticize you in the same way as you have censured or approved other rulers.

You must know that a good and virtuous man is known and recognized by the good that is said about him and the praise which Allah has destined him to receive from others. Therefore, make your mind the source and fountain-head of good thoughts, good intentions and good deeds. This can only be attained by keeping a strict control on your desires and yearnings, however much they may try to incite and coerce you. Remember that the best way to do justice to your inner self and to keep it out of harm is to restrain it from vice and from things which the 'self' inordinately and irrationally desires.

Maalik! You must create in your mind kindness, compassion and love for your subjects. Do not behave towards them as if you are a voracious and ravenous beast and as if your success lies in devouring them.

Remember, Maalik, that amongst your subjects there are two kinds of people: those who have the same religion as you have; they are brothers to you, and those who have religions other than that of yours, they are human beings like you. Men of either category suffer from the same weaknesses and disabilities that human beings are inclined to, they commit sins, indulge in vices either intentionally or foolishly and unintentionally without realizing the enormity of their deeds. Let your mercy and compassion come to their rescue and help in the same way and to the same extent that you expect Allah to show mercy and forgiveness to you.

Maalik! You must never forget that if you are a ruler over them than the caliph is the ruler over you and Allah is the Supreme Lord over the caliph. And the reality is that He has appointed you as the governor and tested you through the responsibility of this rulership over them.

Never think of raising yourself to such a false prestige that you can declare war against Allah because you cannot ward off His Wrath and you can never be free from the need of His Mercy and Compassion.

Do not feel ashamed to forgive and forget. Do not hurry over punishments and do not be pleased and do not be proud of your power to punish. Do not get angry and lose your temper quickly over the mistakes and failures of those over whom you rule. On the contrary, be patient and sympathetic with them. Anger and desire of vengeance are not going to be of much help to you in your administration. Never say to yourself, "I am their Lord, their ruler and all in all over them and that I must be obeyed submissively and humbly" because such a thought will unbalance your mind, will make you vain and arrogant, will weaken your faith in religion and will make you seek support of any power other than that of Allah . If you ever feel any pride or vanity on account of your sway and rule over your subjects then think of the supreme sway and rule of the Lord over the Universe, the extent of His creations, the supremacy of His Might and Glory, His Power to do things which you cannot even dream of doing and His control over you which is more dominating than that which you can ever achieve over anything around you. Such thoughts will cure your mental weakness, will keep you away from vanity and rebellion (against Allah), will reduce your arrogance and haughtiness and will take you back to the sanity which you had foolishly deserted.

Take care never to think of bringing yourself at par with Allah, never to think of matching your power with Him and contesting His Glory and ever to pretend that you possess might and power like Him because the Mighty Lord will always humble pitiless tyrants and will degrade all pretenders of His Power and Might. So far as your own affairs or those of your relatives and friends are concerned take care that you do not violate the duties laid down upon you by Allah and do not usurp the rights of mankind, be impartial and do justice to them because if you give up equity and justice then you will certainly be a tyrant and an oppressor. And whoever tyrannizes and oppresses the creatures of Allah, will earn enmity of Allah along with the hatred of those whom he has oppressed; and whoever earns the Wrath of Allah loses all chances of salvation and he has no excuse to offer on the Day of Judgement.

Every tyrant and oppressor is an enemy of Allah unless he repents and gives up oppression. Remember, Maalik! that there is nothing in this world more effective to turn His Blessings into His Wrath quicker than to insist upon oppression over His creatures because the Merciful Allah will always hear the prayers of those who have been oppressed and He will give no chance to oppressors. You must always appreciate and adopt a policy which is neither too severe nor too lenient, a policy which is based upon equity will be largely appreciated. Remember that the displeasure of common men, the have-nots and the depressed persons more overbalances than the approval of important persons, while the displeasure of a few big people will be excused by the Lord if the general public and the masses of your subjects are happy with you.

Remember, Maalik! that usually these big personages are mentally the scum of the human society, they are the people who will be the worst drag upon you during your moments of peace and happiness, and the least useful to you during your hours of need and adversity, they hate justice the most, they will keep on demanding more and more out of the State resources and will seldom be satisfied with what they receive and will never be obliged for the favour shown to them if their demands are justifiable refused, they will never accept any reasonable excuse or any rational argument and when the time changes, you will never find them staunch, faithful and loyal.

While the common men, the poor and apparently the less important section of your subjects are the pillars of Islam, they are the real assemblage of Muslims and the power and defensive force against the enemies of Islam. Keep your mind on their affairs, be more friendly with them and secure their trust and goodwill. But be careful in forming your contacts (whether with the most important persons or the commoners); keep such people away from you and think them to be the enemy of the State who are scandal-mongers and who try to find fault with others and carry on propaganda against them because everywhere people have weaknesses and failings and it is the duty of the government to overlook (minor) shortcomings. You must not try to go in search of those weaknesses which are hidden from you, leave them to Allah, and about those weaknesses which come to your notice, you must try to teach them how to overcome them. Try not to expose the weaknesses of the people and Allah will conceal your own weaknesses which you do not want anybody to know.

Do not give cause to the people to envy each other (man against man, tribe against tribe or one section of the society against the other). Try to alleviate and root out mutual distrust and enmity from amongst your subjects.

Be fair, impartial and just in your dealings with all, individually and collectively and be careful not to make your person, position and favours act as sources of malice. Do not let any such thing or such person come near to you who does not deserve your nearness and your favour. Never lower your dignity and prestige. Remember that backbiters and scandal-mongers belong to a mean and cunning group, though they pretend to be sincere advisers. Do not make haste to believe the news they bring and do not heed to their advice.

Do not accept the advice of misers, they will try their best to keep you away from acts of kindness and from doing good to others. They will make you frightened of poverty.

Similarly do not allow cowards to act as your advisers because they will make you timid in enforcing your orders, will scare you from handling important affairs boldly and will make your enterprises and invasions timid and timorous attempts. At the same time avoid greedy and covetous persons who would aspire to the position of acting as your counsellor because he will teach you how to exploit the community and how to oppress people to get their wealth. Remember that miserliness, cowardice and greed appear to be different wicked qualities but they all arise from the same evil mentality of having no faith and no trust in Allah. Your worst ministers will be the men who had been ministers to the despotic rulers before you and who had been a party o atrocities committed by them. Such persons should not be taken into your confidence and should not be trusted because they have aided sinners and have assisted tyrants and cruel rulers. In their stead you can comfortably find persons who are equally wise and learned but who have not developed sinful and criminal mentalities, who have neither helped the tyrants in their tyrannies nor have they assisted them to carry on their sinful deeds. Such persons will prove the least troublesome to you. They will be the most helpful. They will sincerely sympathise with you. If you take them in your confidence they will sever their connections with your opponents. Keep such people with you as your companions in your informal company as well as in official gatherings in audience. From amongst such honest and humane companions and ministers some would receive your fullest confidence and trust. They are those who can always speak out the bitter truth to you and unreservedly and without fear of your status, can refuse to assist you or associate with you in the deeds which Allah does not like His good creatures to commit. Select honest, truthful and pious people as your companions. Train them not to flatter you and not to seek your favour by false praises because flattery and false praises create vanity and conceit and they make a man lose sight of his real self and ignore his duties.

You should not treat good and bad people alike because in this way you will be discouraging good persons and at the same time emboldening the wicked to carry on their wickedness. Everyone should receive the treatment which his deeds make him deserve.

Try carefully to realize that a ruler can create goodwill in the minds of his subjects and can make them faithful and sincere to him only when he is kind and considerate to them, when he reduces their troubles, when he does not oppress them and when he never asks for things which are beyond their power. These are the principles which you should keep in mind and act upon. Let your attitude be such that they do not lose faith in you because a good faith on their part will reduce many troubles of administration and will relieve you of many worries and anxieties. And so far as your confidence and trust is concerned, let it rest with those people whom you have tested in difficulties and whom you have befriended, but you should always mistrust those people whom you have wronged or who have proved themselves undeserving, inefficient or unfaithful. Do not give up those practices and do not break those rules which good Muslims have evolved or introduced before you, which have created unity and amity among the various sections of the society and which have benefited the masses. Do not break them and do not introduce innovations because if you do away with those good rules and traditions, the reward of having introduced them will go to those who evolved them and the punishment of having despoiled them will be your lot.

You must know, Maalik, that the people over whom you rule are divided into classes and grades and the prosperity and welfare of each class of the society individually and collectively are so interdependent upon the well-being of the other classes that the whole set-up represents a closely woven net and reciprocal aspect. One class cannot exist peacefully, cannot live happily and cannot work without the support and good wishes of the other.

Amongst them there are the soldiers of the army of Allah who defend His cause, the next class is that of the secretaries of the State to whom duties of writing out and issuing special or general orders are assigned, the third group is of the judges and magistrates to administer justice, the fourth is of officers who maintain law and order and guard the peace and prosperity of the country. Then there are common men, the Muslims who pay the taxes levied by the government, and non-Muslims who pay the taxes levied by the government, and non-Muslims who pay tribute to the State (in lieu of taxes). Then comes the class of men who carry on various professions and trades and the last but not the least are the poor and the have-nots who are considered as the lowest class of the society. The Merciful Allah has fixed rights and duties of each one of them. They have been either mentioned in His Book or explained through the instructions of the Holy Prophet (s). A complete code of them is preserved with us. As far as the soldiers are concerned, they are by the commands of Allah a fortress and stronghold to guard and defend the subjects and the State. They are the ornaments of the ruler and the country. They provide power and protection to the religion. They propagate and preserve peace among mankind. In fact, they are the real guardians of peace and through them good internal administration can be maintained. The upkeep and maintenance of an army depends upon the taxes collected by the State out of which Allah has fixed for them a share. With this amount they provide for their requirements, maintain themselves and their arms in sound position to defend the religion and the cause of justice. The army and the common men (common citizens who pay taxes or tributes) are two important classes, but in a Welfare State their well-being cannot be guaranteed without proper functioning and preservation of the other classes, the judges and magistrates, the secretaries of the State and the officers of various departments who collect various revenues, maintain law and order as well as preserve peace and amity among the diverse classes of the society. They also guard the rights and privileges of the citizens and look to the performances of various duties by individuals and classes. And the prosperity of this whole set-up depends upon the traders and industrialists. They act as a medium between the consumers and the suppliers. They collect the requirements of the society. They exert to provide goods. They open up shops, markets and trading centres. Thus providing the consumers with their necessities, they relieve the citizens of the need of running after their requisites of life. Then comes the class of the poor and the disabled persons. It is absolutely necessary that they should be looked after, helped and well-provided for. The Merciful Allah has explained the ways and means of maintaining and providing for each of these classes. And everyone of this class has the right upon the ruler of the State that at least minimum necessities for its well-being and contented living are provided.

Remember, Maalik that Almighty Allah will not absolve any ruler from his obligations unless he sincerely tries his best to discharge his duties, invokes Allah to help him in their performance, remains steadfast and diligent on the path of truth and justice and bears all this whether the performance of these duties is congenial or hateful to him.

So far as the army is concerned its chief and commander should be a person who is most sincere and faithful to Allah, to the Holy Prophet (s) and to your Imam who is most pious, who is famous for his forbearance, clemency and gentleness, who is neither short-tempered nor does he get angry quickly, who sympathetically treats sincere excuses and accepts apologies, who is kind and compassionate with the weak, but severe against the strong and the powerful, who has no vindictiveness which might lead to violence or any inferiority complex or weak-mindedness which makes them helpless and dejected. To find and select such persons you should have contacts with pious and noble families with high ideals and exalted traditions, families well-known for their bravery and courage and generosity and magnanimity. They are the people who may be considered as sources of magnificence and sublimity of character and fountain-heads of piety and good deeds.

When you have found and selected such persons then keep an eye over them and watch them as parents watch their children so that you may find out if there appears any change in their behaviour. Treat them kindly and sympathetically. Do not grudge highest considerations to them (if they rightly deserve) and do not refuse small mercies. This kind of treatment will create reciprocal tendencies in them and they will trust you and will be faithful to you. Under the impression that you have paid enough attention to their major necessities and wants, do not close your eyes to their minor requirements and needs because small favours often bear better fruits though careful attention to major necessities is very important. Among the military officers those should receive your highest respect and consideration who pay most attention to the needs of the soldiers under their command who come forward to help the soldiers with their personal means and property so that the soldiers may lead a happy and contented life and may have full confidence of the future of their families and children.
If the soldiers are thus satisfied and are free from anxieties and care then they will bravely and wholeheartedly face the conflicts. Your constant attention towards the officers and soldiers will make them love you more and more. The thing which should most gladden the heart of a ruler is the fact that his State is being ruled on the principles of equity and justice and that his subjects love him. And your subjects will only love you when they have no grievance against you. Their sincerity and loyalty will be proved if they gather around you to support your government, when they accept your authority without considering it an unbearable burden on their heads and when they do not secretly wish your rule to come to an end. So let them have as many justifiable hopes in you as they can and fulfil as many as you reasonably can. Speak well of those who deserve your praise. Appreciate the good deeds done by them and let these good actions be known publicly.

The correct and timely publicity of noble actions and golden deeds creates more zeal in the minds of the brave and emboldens the cowards and the weaklings. You must know and realize the good deeds done by every single individual so that the credit of noble deeds done by one may not be given to another. Do not underestimate and underpay the good work done. Similarly do not overpay a work simply because it has been done by a very important person and do not let his position and prestige be the cause of overvaluation of the merit of his work and at the same time do not undervalue a great deed if it is done by a very ordinary person or a commoner. Let equity, justice and fairplay be your motto. When you are faced with problems which you cannot solve or with a difficult situation from which you cannot escape or when uncertain and doubtful circumstances confuse and perplex you, then turn to Allah and the Holy Prophet (s) because Allah has thus ordered those whom He wants to guide. 

--

Haider Ajaz 

(Advocate)

Munqabat on Imam Zamana (as)

Bail and Discretion

The judiciary seems convinced that unless it intervenes proactively, even the slender respect for the law that exists now can be lost.

The issue of bail is one of liberty, justice, public safety and burden of the public treasury, all of which insist that a developed jurisprudence of bail is integral to a socially sensitised judicial process.

– Justice V.R. Krishna Iyer in the Gudikanti Narasimhulu case (1977)

Society has a vital interest in grant or refusal of bail because every criminal offence is an offence against the state. The order… must reflect perfect balance between the conflicting interests, namely, sanctity of individual liberty and the interest of the society.

– Justice Dalveer Bhandari in S.S. Mhetre vs State of Maharashtra (2010)

THESE are especially harrowing times for those arraigned before courts for suspected crime. The judiciary has shown itself to be extremely tough, causing a lot of heart burning among those habitually deviant. A vast majority of Indians welcome this, because far too many criminals have been getting away with murder literally, because of either poor police investigation or the capacity of the accused to buy up or intimidate witnesses during a trial.

In a few States, ruling parties have been complicit in such misdeeds. On occasion, lack of integrity among trial court judges has also been a problem. The Supreme Court and High Courts seem more than convinced now that unless they intervened proactively, things could go out of control, and even the slender respect for the law that we see often could totally snap. This is why the higher judiciary has shown itself to be aggressive and has sent a decisive signal down its hierarchy that it will not brook inconsistent rulings or unjustified lenience towards those suspected of or charge sheeted for crime.

The subordinate judiciary has been quick to respond with some unusual rigour in dealing with criminal matters brought before it. Substantial terms of imprisonment by trial courts and their ready endorsement by appellate courts mark a distinct trend that shows the Indian judiciary in good light. A lenient sentence of six months to a molester and a rash and negligent automobile driver who has killed several on the road could be things of the past. This decisive change of stance towards offenders should have a positive fallout by way of deterring potential offenders. Victims of crime should in particular be happy, especially those who have seen aggressors going scot-free right before their eyes.

There is, however, a flip side to the new phenomenon. There is an unexpressed feeling among some that the judiciary is possibly too harsh and insensitive. The enormous adulation that the judiciary has received from the media is cited by them as a distraction that needs a cautious and balanced response while giving rulings in the future. Those who plead for such a corrective are in a woefully small minority. They, however, cannot be ignored if India is to be regarded as a civilised nation, one that is characterised by mercy and poise. Any criticism of the judiciary is not exactly a popular line to plug at a time when the whole nation is in a rage over successive scams and people in high places making unbelievable quantities of money at the cost of the taxpayer. Somebody has to bring to the notice of the judiciary that there is a school of thought in the country that stands for moderation, even if it means undeserved lenience to those guilty or suspected of crime.

Something that is germane to the debate on perceived distortions in judicial approach to the current venality in the country is the amount of discretion enjoyed by the courts while responding to petitions for bail. The press is lapping up recent events with great relish to the point of being cruel to those locked up as a result of stern judicial orders. Not a word of dissent or disapproval of court orders has been heard, something that would have revealed a certain logical evaluation of such orders. This is a disturbing turn of events that needs introspection.

The current law on the subject of bail as incorporated in the Criminal Procedure Court (CrPC) gives courts a wide discretion in respect of those held in judicial custody or who apprehend custody. A chronology of decisions since the beginning of the Republic in 1950 is revealing. The pendulum has swung from the lax and liberal approach to bail requests to the somewhat harsh regimen now. This should send shivers down the spine of many in public life who, until the other day, took the judiciary lightly to the point of being furtively sarcastic and disrespectful. It is an entirely different matter that some members of the judiciary themselves have given quarter to such irreverence towards them. The current Chief Justice of India, S.H. Kapadia, has done enough to drive home the message that he is no respecter of personalities and that he will come down heavily on anyone straying from the path of virtue, even if he or she belongs to the judiciary.

One of the earliest pronouncements on the philosophy that should guide judges while disposing of bail applications was by Justice V.R. Krishna Iyer. His plea for a concern for fundamental rights, especially the right to individual freedom, which needed to be blended with protection of public safety, set the tone for judgments for several decades to come.

It was the accepted proposition that as long as an applicant for bail posed no threat to the lives and property of others, he deserved a lot of consideration. Combined with this was the need for an undertaking that he or she would in no way tinker with the processes of law, such as destruction of vital evidence that may not have come to the notice of the police or prosecution or intimidation of those who were expected to depose before the court during the trial. If this criterion was fulfilled to the satisfaction of the court, it invariably granted bail.

Of course, such an order came with a few restraints on the accused, and a prescription that he or she should appear before the police at prescribed intervals of time. Once the trial began, the accused was required to attend every hearing without fail, unless there were convincing reasons for absence on a particular day. Such a bail application was made invariably after the accused had been arrested or charge-sheeted. The implication was that none could move the court on mere apprehension of arrest. Then came the concept of “anticipatory bail” in the form of Section 438 in the new CrPC of 1973. The objective was to take care of situations in which an individual feared being taken into custody by the police in response to a frivolous complaint by a vengeful adversary. This was a welcome relief to those who had suffered shame and ignominy at the hands of unscrupulous members of society.

Voluminous case law has been built around the theory making anticipatory bail a weighty concept that courts could use with great care to protect innocent individuals. Distressingly, however, some judges began diluting the benefit of Section 438 by making it mandatory for hapless applicants to subject themselves to periodic appearances at police stations or courts. There was also a stipulation by some courts that an anticipatory bail would cease the moment a charge sheet was filed in a case. This possibly curtails the freedom of an individual, which was not contemplated by the lawmakers.

The whole subject came up for a review by the Supreme Court in the Sibbia case (1980) when the court said: “Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions. And it will be strange if… we cut down the discretion so wisely conferred, by devising a formula which will confine the power to grant anticipatory bail within a straitjacket.”

The Sibbia ruling implied that judges need not feel fettered by narrow concerns and that they should interpret the law liberally so that no innocent person is denied what is due in the form of an anticipatory bail. This was the line of argument by the defence counsel in arguing for anticipatory bail of a Congressman, S.S. Mhetre, who was accused of involvement in a murder in 2009 and whose plea for anticipatory bail was turned down by the Bombay High Court.

In allowing the appeal, the Supreme Court (Justices Dalveer Bhandari and K.P. Radhakrishnan) went largely by the Sibbia ruling and said that any limitation on the validity of an anticipatory bail was not envisaged by the legislature. At the same time, the Mhetre judgment laid down that the discretion vested in the court should be exercised with great care and circumspection.

All recent court rulings on bail generally should be viewed against the backdrop of the Mhetre ruling. The courts have enormous discretion in granting or refusing bail. It is this discretion that possibly explains the varying standards applied in considering bail applications.

The point is whether differing perceptions have a deleterious impact on justice. It is difficult to assess the impact because of the hugely varied circumstances that surround each case. This is why we need a clinical study by legal scholars on how bail applications are disposed of and whether discretion is exercised by courts under pressure from the media and a demanding public.

--

Regards to:-

R.K. RAGHAVAN

Thanks,

Haider Ajaz

(Advocate)