Question: Is
it permissible to act as a defense lawyer in our lands? A reputable professor
we know of is also a well-known lawyer in the country, and even appears on
television because of his reputation. He acts as a defense lawyer for oppressed
clients. We would like to ask the brothers if taking on such a role is
permissible. Also, does the Hukum Shari’ee differ with regards to acting as the
state prosecution (prosecution, district attorney, crown attorney) versus
acting as the defense? Furthermore, if the defense lawyer is convinced that his
client is in the right, but he finds much difficulty in attaining the just
verdict except through un-Islamic means, such as a bribe for example, is this
permitted, as long as his intention is to restore the client’s rights?
Answer:
As for the role of the
lawyer:
1. It is not permissible to act as the state prosecution
(prosecution, district attorney, crown attorney), since this role involves
representing the state in terms of law and accusations. As long as the state
does not implement Islam, representing it is not permitted and there is no
excuse for a state prosecutor to undertake this work. It is Haram.
2. It is permissible to act as a defense lawyer, as long as the focus
of the work is defending the oppressed and restoring people’s Islamic rights to
them. It is not permissible to defend “rights” dictated by man-made law and not
set by Islamic law.
For example, if someone is
thrown in prison for speaking the truth, Islam defends him and would free him
from prison; therefore, the work of the defense lawyer to remove the oppression
from him and free him from prison is Wajib and correct.
In another example, if
someone had something stolen from him, Islam would return his stolen goods;
therefore, it is permissible for the defense lawyer to represent him and return
his stolen goods.
In another example, if
someone sells his house for a down payment and the remainder through a payment
plan, but the buyer ends up only paying the down payment and refuses to pay the
remainder or denies owing it, despite the fact that he bought the house and is
living in it. In this case, Islam would restore the seller’s rights from the
buyer and therefore, it is permissible for the defense lawyer to represent the
seller to restore the outstanding amount owing from the buyer.
Thus, the work of the
defense lawyer to remove oppression and to restore Islamic rights to their
owners is a correct act.
On the other hand, if the
“legal right” is set by man-made law and contradicts Islamic law, then it is
not permissible to defend these rights:
For example, if someone
owns shares in a joint stock company (or a PLC/LLC) – which we already know is
formed on a Baatil (invalid) contract – and when the time comes to distribute
the dividends to the shareholders, someone notices that his share of the
dividends is less than what it should be. In this case, it is not permissible
to represent this client, since this “right” is set by man-made law and
contradicts Islamic law. The company structure is Baatil (invalid) and
everything that is produced by this company, including profits/dividends, is
rejected by Islamic legislation. Therefore, it is Wajib upon the Muslim to
remove himself from such a company structure.
In another example, if
someone had deposited his money in a bank and was earning a set amount of
interest on it, but when the bank paid out the interest amount, he found that
he received less than what was owing to him of interest. In this case, it is
not permissible to represent this person and restore his “rights” to him, since
this “right” is set by man-made law, which permits Riba banks and contradicts
Islamic law. Therefore, it is Wajib upon the Muslim to cancel this Riba
contract with the bank.
Thus, the work of a defense
lawyer is valid if it is for the purpose of removing oppression and restoring
an established Islamic legal right to the rightful owner. In contrast, it is
not permissible to work as a defense lawyer if this lawyer will fight for
rights established by man-made laws that contradict Islamic legislation.
As for a defense lawyer
that – according to Islamic law – takes illegal measures to restore established
Islamic legal rights to their owners, such as bribery – even if his intention
was to restore people’s rights through this act, this is not permissible. Bribery
is Haram, regardless of whether the end goal is just or unjust. This is because
Islamic evidences that forbid bribery are not based only on a legislative
reasoning (‘Illah) of attempting to achieve unjust goals. These evidences are
also general (‘Aam) and not specific (Khaas) to unjust goals alone. This is
clear in the following texts:
It is narrated in Ahmed,
Abu Dawood, Al-Tirmithi and Ibn Majah, that Abdullah bin ‘Amr (ra) said: The
Messenger of Allah (saw) said: “May the curse (La’nah) of Allah be on the one
bribing and the one accepting the bribe.” It was also narrated by
Ahmed that Thawban said: “The Messenger of Allah (saw) cursed the one
bribing, the one accepting the bribe and the Raa’ish, meaning the one who acts
as a mediator between the two.” These Ahadith are general (‘Aam) and
incorporate all forms of bribery, whether done with the intention of seeking
justice or seeking injustice. These texts are also not based on a legislative
reasoning (‘Illah) that the impermissibility of bribery is due to an intent of
seeking unjust goals; the texts do not mention any sort of legislative
reasoning (‘Illah) at all and such reasons (‘Illal) cannot even be derived from
any other text related to the topic either.
Therefore, a defense lawyer
is not permitted to bribe anyone, even if his intentions were to enable the
restoration of people’s rights during – what he perceives to be – difficult
circumstances otherwise.
29th of
Safar, 1430 Hijri
24. 02. 2009
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