LAW AND JUSTICE

WEEK 7 (22 MAY - 26 MAY 2023)

CONTENT

1. DEFINITION OF JUSTICE
2. RELATIONSHIP BETWEEN LAW AND JUSTICE
3. TYPES OF JUSTICE
1. Substantive
2. Procedural / Formal
3. Distributive
4. Remedial
5. Other types of Justice = Retributive, Reformative

4. JUSTICE IN ISLAM

​

LESSON PLAN

DEFINITION

• Justice, like Law is a difficult term to define. �
• According to Institutes of Justinian : justice is “ the constant and perpetual will to render each his due”. �
• Ross defined justice as “ the correct application of law, as opposed to arbitrariness”.�
• Worsley stated that “justice among men involves an impartial and fearless act of choosing a solution for a dispute within a legal order, having regard to the human rights which that order protects”.

The importance of Justice in understanding the purpose of Law

• Lord Wright :

“ the guiding principle of a judge in deciding cases is to do justice; that is, justice according to law, but still justice. I have not found a satisfactory definition of justice….what is just in any particular case is what appears just to the just man, in the same way as what is reasonable appears to be reasonable to the reasonable man ”.

​

• Ehrlich :

“ Justice has always weighted the scale solely in favour of the weak and the prosecuted. A just decision is a decision based on grounds which appeal to a disinterested person; it is a decision which is rendered by a person who is not involved in the conflict of interest, or which, even though it be rendered by a person involved in the conflict, nevertheless is such as a disinterested person would render or approve of “.

​

• Lord Lloyd :

“ conceptions of justice may vary from age to age ……it is indeed the attainment of equality, not to preserving of inequality, that modern moral and legal philosophy treat as the vital function of justice “.

RELATIONSHIP BETWEEN LAW AND JUSTICE

• Justice is said to be the supreme purpose or end of law.
• According to Plato, justice consists in the harmonious relations between the various parts of the social organism;

- Every citizen must perform his duty in his appointed place;

• Perform whatever functions his nature is best suited for,
• Platonic justice signifies that members of each class must attend to their own business and not to meddle in the business of others,
• Justice a paramount virtue to be administered under the rule of man rather than the rule of law.

According to Aristotle :�

• Justice consists of equality and demands that the things of this world be equally distributed;
• That distribution be maintained by law,
• Readjusting and compensating where the balance has been disturbed,
• Corrective – guarantees, protects and maintain distribution against illegal attacks, administered by the judge,
• Distributive – meted out by the legislator and consists of distribution of offices, honor and goods to the community

- Justice a required virtue to lead an excellent life.

LAW = JUSTICE?

• Justice is probably the ultimate goal towards which the law should strive, but it is not necessary that the law will always produce ‘justice’ in every single case.

​

• Justice can be seen as applying the rules in the same way to all people, but even this may lead to perceived injustices. Rigid application of law may sometime lead to injustice.

​

Case for Illustration: London & North Eastern Railway Co. Berriman [1946] AC 278

​

• Facts: A railway worker was killed whilst oiling the track. No look out man had been provided. A statute provided compensation payable on death for those 'relaying or repairing' the track only.

​

• Held: The oiling activity did not come into under the phrase ‘relaying or repairing’. Unfortunately, the widow of the deceased railway worker was entitled to nothing.

TO BE CONTINUED…

Any questions…???

​

TYPES OF JUSTICE

1) SUBSTANTIVE JUSTICE

This concerns with the content of a law or rule, and measures it against a “higher” or more fundamental set of principles such as fairness, justice and morality. In other words, the legal principles created by Parliament and the courts need to be regarded as ‘just’.

1. Fairness – means behaviour that is fair and reasonable. The concept of fairness is closely related to a number other moral concepts e.g., equality, impartiality and justice. It centres on how people are treated especially the requirement that like should be treated alike, in the absence of significant differences between them.

• Article 8 of the Federal Constitution – all persons are equal before the law and entitled to the equal protection of law.
• Clause (1) does not proclaim that all persons must be treated alike but that persons in like circumstances must be treated alike.

2. Justice – in the sense of fairness, justice act as a moral value that permeates all areas of social activities, and it is ultimately for the law and legal system to enforce principles of fairness.

• Article 7 of the Federal Constitution – protection against retrospective criminal prosecution and repeated trials .
• Clause (2) – a person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and retrial ordered by a court superior to that by which he was acquitted or convicted.
• In Malaysia, appellate criminal courts including the Federal Court, have power under existing law to order a new trial.

3. Morality – may be described as a set of values, beliefs or tenets which governs a person’s or group’s behaviour.

- Article 11 of the Federal Constitution – freedom of religion

- Clause (2) – no person shall be compelled to pay any tax the proceeds of which are specially allocated in whole or in part for the purposes of religion other than his own.

• This clause does not restrain payments out of consolidated funds for religious purposes, for such a payment is not special allocation of the proceeds of a tax.
• A Christian cannot refuse to pay income tax on the ground that it goes into consolidated fund that subsidizes building of mosques, but he has a constitutional right to refuse to pay zakat since it is allocated specially for Muslims.

2) PROCEDURAL / FORMAL JUSTICE

Procedural justice is the opposite of substantive justice. This type of justice concerned with making and implementing decisions according to fair processes and procedures that ensure "fair treatment." This requires rules, principles and machinery for the due application of law to all persons without fear or favour within the system.

1. The Doctrine of Natural Justice – refers to the fundamental need for fairness in the judicial process.

• This doctrine has been extended to the decision makers acting not only in a judicial capacity but also to those acting in a quasi-judicial capacity.
• 2 basic rules of Natural Justice :
1. No man should be a judge in his own cause (nemo judex in res sua)
2. Both sides have a right to be heard (audi alteram partem)

2. The Rule of Law – it forms one of the cornerstones of democratic states and in those with written constitutions it is often guaranteed.

• No person is above the law; even governments are subject to law and required to conduct its activities in accordance with duly established legal rules rather than by way of arbitrary or discretionary means.

Meanings :

• No one can be punished except for a breach of law
• No one is above the law

The rule of law depends upon an active and powerful judiciary that is wholly independent of the legislative and executive organs.

However, that judiciary cannot function effectively without an active, vigilant and independent Bar.

​

3) DISTRIBUTIVE JUSTICE / ECONOMIC JUSTICE

Essentially, this type of justice is exercised in the distribution of honour, wealth and other divisible assets of the community. It is about fairness in what people receive.

• May be allotted among its members in equal or unequal shares.
• Equal must be treated equally, unequal, unequally.

Corrective justice stands in contrast to “distributive” justice.

• Concerned with the restoration of a disturbed equilibrium.
• Parties will be treated as equals.

4) REMEDIAL JUSTICE / CORRECTIVE JUSTICE

Concerns with the remedy provided for breach of a legal rule.

• The ordinary person looks to the judge or the legislator to provide the remedy where a wrong is committed.
• The judge adopts the “reasonable man” test to decide what the ordinary person would expect of the law.
• The word “remedy” implies resolution of disputes as in civil law where the wrong doer pays compensation to the victim so as to put him or her into the position that he or she would have been in if the wrong was never committed.

SUMMARY

OTHER TYPES OF JUSTICE

Retributive Justice

​

• This type of justice concerns with the principle of punishment. It seeks to punish wrongdoers objectively and proportionately.�
• The intention of this type of justice may be to deter the perpetrator or others from future wrong-doing.�
• In reality, the victims and those who care about them may held a revenge against the criminal offender. Certain revenge can be far more severe than reparation as the hurt party seeks to make the other person suffer in return. In such cases 'justice' is typically defined emotionally rather that with intent for fairness or prevention.

• Apart from 4 types of justice, there are also other types of justice that could be found in law as follows:

Case for Illustration: Public Prosecutor v Jackki bin Zainudin [2010] MLJU 2041 (High Court)

​

• Facts: The respondent was charged with three counts of raping his own sister in law who was aged 15 years and 8 months old at the material time. The Session Court Judge imposed, among others, the sentence of whipping of 10 lashes.�
• Issue: Whether 10 lashes of whipping inadequate?�
• Held: Considering the absence of physical violence and coercion, the punishment was adequate. Nevertheless, the court note that, “the purpose of whipping, as provided in the Criminal Procedure Code, is retributive and preventive. It is a just dessert for a violent criminal act. It is also intended to instill fear in others who may be tempted to commit such crimes“.

Reformative/ Restorative Justice

​

• Instead of merely punishing the offender, reformative theory of justice emphasizes on rehabilitative sentencing.

​

• It focuses on the ultimate goal of punishment where it is to reform the offender as a person, so that he/she may become a normal law-abiding member of the community once again.

​

• It is normal for human to make mistake. Thus, he/she shall deserve second chance.

​

​

Case for Illustration: Public Prosecutor v MNZG & Anor (children) [2022] MLJU 2173 (Magistrate Court, KL)

​

• Facts: A child was charged for the offence of possessing drug.
• Held: The judge ordered the child to be sent to Henry Gurney School. It was held as follows:

​

“[34] Based on the authorities cited above, I am of the view that a rehabilitative sentence would befit the child most in order for the child to become a good citizen. The child is only a few months away from turning 18 and entering into adulthood. It is high time that the child takes full responsibility upon his actions and face the consequences of his mistakes.

…

[44] Both of the court advisers, after giving a stern warning and advice to the child, advised this court that the child be sent to Henry Gurney School to rehabilitate the child as they believed the child needs to be placed in an environment conducive to his reformation as well as to repress further crime. The child is just a step away from adulthood and if he is not reformed now, it might be too late for him to change his ways and inadvertently this will jeopardize his future.”

JUSTICE IN ISLAM

Justice in Islam is the quality of being morally just and merciful in giving to every man his due.

An-Nisaa:58: Indeed, Allah commands you to return trusts to their rightful owners; and when you judge between people, judge with fairness. What a noble commandment from Allah to you! Surely Allah is All-Hearing, All-Seeingْل

​

Islamic justice is much higher than all other systems of justice or any other human law for it searches the inner most motives.

• Justice constitutes the noblest act of devotion and the most important duties after belief in God.
• Justice holds society together and transforms it into one brotherhood.

​

MEANING OF JUSTICE IN ISLAM

- Placing something in its rightful place where it belongs.

• Giving equal treatment to others.
• To give a person what he rightfully deserves.
• Everybody is equal before the law regardless of rank or wealth.
• The judge in Islam should not be influenced by government or political considerations.

• In Islam, justice is a moral virtue and an attribute of human personality, as it is in the Western tradition.
• Justice is close to equality in the sense that it creates a state of equilibrium in the distribution of rights and duties, but they are not identical. Sometimes, justice is achieved through inequality, like in unequal distribution of wealth. 
• The Prophet of Islam declared:

“There are seven categories of people whom God will shelter under His shade on the Day when there will be no shade except His. (One is) the just leader.” (Saheeh Muslim)

• God spoke to His Messenger in this manner:�“O My servants, I have forbidden injustice for Myself and forbade it also for you. So, avoid being unjust to one another.” (Saheeh Muslim)�
• Thus, justice represents moral rectitude and fairness, since it means things should be where they belong.

THE IMPORTANCE OF JUSTICE

• The Qur’an considers justice to be a supreme virtue. It is a basic objective of Islam to the degree that it stands next in order of priority to belief in God’s exclusive right to worship (Tawheed) and the truth of Muhammad’s prophethood.
• God declares in the Quran:

“God commands justice and fair dealing...” (Qur’an 16:90)

• And in another passage:

“O you who believe, be upright for God, and (be) bearers of witness with justice!...” (Qur’an 5:8)

• One may conclude that justice is an obligation of Islam and injustice is forbidden. The centrality of justice to the Qur’anic value system is displayed by the following verse:

“We sent Our Messengers with clear signs and sent down with them the Book and the Measure in order to establish justice among the people…” (Qur’an 57:25)

TEXTUAL EVIDENCE ON JUSTICE

• The Qur’anic standards of justice transcend considerations of race, religion, color, and creed, as Muslims are commanded to be just to their friends and foes alike, and to be just at all levels, as the Qur’an puts it:�“O you who believe! Stand out firmly for justice, as witnesses to Allah, even if it be against yourselves, your parents, and your relatives, or whether it is against the rich or the poor...” (Qur’an 4:135)

• According to another Quranic passage:�“Let not the hatred of a people swerve you away from justice. Be just, for this is closest to righteousness…” (Quran 5:8)
• With regards to relations with non-Muslims, the Qur’an further states:�“God does not forbid you from doing good and being just to those who have neither fought you over your faith nor evicted you from your homes...” (Qur’an 60:8)
• In the view of the Qur’an, justice is an obligation.

• In the Malaysian High Court’s case of Malayan Banking Bhd v Ya' kup bin Oje & Anor [2007] 6 MLJ 389, Hamid Sultan JC took the opportunity to explain on the concept of justice in Islam while dealing with a case relating to Islamic banking as follows:

“[17] Islam not only represents a religion but also a complete way of life. The golden thread of Islam is justice. Justice is Supreme. It is not an understatement to say that the primary object for the creation of the universe is to uphold justice and truth.

…

[23] Thus, the concept of justice in Islam is seen to be Supreme. Without justice, Islamic virtues cannot be successfully applied and practiced. Whatever transaction, whether it is commercial or private or whatever decision, whether political or private, there is a duty imposed on all Muslims to come to a just conclusion, within the tenets of Quranic injunctions and Islamic world view. This makes it more important for a Muslim adjudicator not only to comply with the positive laws but the judicial ethos necessarily needed to comply with the Islamic injunctions.”

Thank you for your attention.

Any questions?

END