Q1. The principle/concept of Dissenting judgment is relevant in a way via the principle of Ijma in Islamic Law and thus it can as well be said that the situation is the same under the common law. Discuss the correctness or otherwise of the statement with relevant textual and judicial authorities (if any)
Islam as a legal system has its sources on which reliance is placed for any legal decisions and verdict. One of these sources is Ijma which means the consensus of Scholars. Likewise in conventional law, matters are settled by the Judiciary. The members of the Judiciary have the right to declare their respective independent opinion regarding any issue places before them. In the course of any discrepancy, minority opinion is tagged Dissenting Judgement. The question centers on the relationship between Ijma as a source of Islamic Law and Dissenting Judgement regarding its binding nature.
Ijma literally means resolution or consensus agreement on a subject matter. It has been technically defined as the consensus agreement by Muslim Jurists of certain generation over certain legal matters in the Muslim community. Islamic law has all-encompassing and all subsuming principles. However, there are some issues that may arise which there may not be any direct dictates from Quran and Hadith. Therefore, there is a reason to pass verdict on such matter. The matter will be subject to the league of Muslim Scholars for deliberation, any agreed opinions of these Scholars are considered reliable and valid so far it has its stake in Quran and Sunnah through Ijtihad. This source of Islamic law has Quranic and Traditional authorities on its validity and authenticity.
In Suratul Nisa (4: 59), “If you have differed among anything, then refer it to Allah (The Book) and His Messenger (The Sunnah)”. Also, Quran 4: 80, “Whoever obeys Prophet (PUBH), he indirectly obeys Allah”. In his Tradition, Prophet (PBUH) said: “My people will never agree on erroneous things”. In the light of these authorities, any ijma must be in accordance with Quran and Hadith but anything short of this amount to an opinion by Ra’y.
Ijma has been divided into two, namely Ijma Qawli and Ijma Sukut. On the first division, it is also referred to as Explicit Ijma in which all Scholars expressly state the same opinion either in a gathering or in separate occasions but the opinion is same while the second division which is also called Tacit Ijma, it is verdict giving by some Muslim Jurists of a particular generation but other Jurists of that period neither acknowledge it nor reject the verdict. Asides this, Ijma as a source of Islamic law has conditions for its validity which read thus;
a. People who participate in the deliberation must be Mujtahidun. Mujtahidun are the people who can perform Ijtihad (Islamic Legal Reasoning). This means that all the conditions for the Mujtahid must be possessed by the scholars whose Ijma will be acted upon.
b. Ijma must be unanimous opinion of all Scholars of that time. It simply means that the scholars must maintain an opinion regarding a matter that ijma is carried on.
c. The Scholars or Jurists must be Muslim.
d. The Ijma must be after the death of the Prophet.
e. All the Jurists must belong to a generation.
f. Ijma can only be done on rule of law.
g. Any analogy based on Ijma must have been inferred from Sanad (Primary Sources of Sharia)
It is important to note that all these conditions are conjunctive which means the absence of anyone will make such opinion or verdict not to be referred to as Ijma.
On the other end, Dissenting opinion or judgement in common law means the minority judgment in any legal proceeding. By the provision of section 294 of the constitution of Federal Republic of Nigeria 1999 as amended, every justice of supreme court or court of appeal in any legal proceeding has right to state their opinion in writing independently of other justices' view. In that regard, There can be different opinions or judgements in a suit but the judgement of the court is the majority Judgement as it is held in FIRSTBANK OF NIGERIA PLC ANOR V. FIRSTCITY MONUMENT BANK ANOR, Suit No. CA/L/371/2008.
Comparatively, Ijma and Dissenting Judgement do not share the same boundary. They are two parallel lines that will not meet. This is because Ijma even literally means resolution or agreement without any deviation whatsoever, but Dissenting opinion is derived from deviation that occurs in a suit which is not binding and not the judgment of the court. However, there are instances where Muslim Jurists will have different opinions, the opinion will be classified to majority and minority opinions. In its case, majority opinion is found to be more correct and just, but the fact that an opinion is minority opinion does not make a wrong one, it is just an attestation to the fact that man will have different perceptions considering their background and prevailing circumstances. Minority Opinion in Islamic law can be used as a basis for a verdict so far it is reasonable and justifiable in the warranting circumstances. In common law, Dissenting opinion is a probable authority where court have the discretion to abide by it because it is not the judgment of the court. Like minority opinion in Islamic law, although it is not binding, Court can adopt minority opinion in any other cases as circumstances demand.
In conclusion, the statement above as regards the relevance of Dissenting opinion to ijma in my view is not correct because literally, Ijma means having a resolution on a subject matter. So, where there is more than one resolution, the unanimous nature of that opinion is not achieved. Even under common law, Dissenting Judgement will affect the judgment of court from being unanimously held. However, a Dissenting opinion does not affect the major opinion because the two opinions can be applied in the warranting circumstances where justice demands.
ALLAH KNOWS BEST!
No comments:
Post a Comment