The Nation's Confused Concept of Justice

Feb 12th, 2010 | By | Category: The Nation
Aafia Siddiqui in Court

Aafia Siddiqui in Court

Today’s editorial in The Nation about Aafia Siddiqui presents a confused concept of justice that is at once both self-contradictory and misinformed. The editorial referred to, “The verdict,” attempts to argue that the conviction of Aafia Siddiqui in an American court demonstrates that the justice system that tried her case is defective. It is not for this blog to say if Aafia is innocent or guilty. But The Nation‘s editorial is so riddled with misinformation that it is hard not to consider it as propaganda.

The Nation‘s editorial writers begin by condemning the American justice system as broken because it relies on a judge and a trial by jury.

The American justice system is supposed to be one of the things for which the War on Terror is being fought, but the trial itself shows it as defective, as allowing the fate of a human being to be placed in the hands of a jury of his or her peers, a jury which may well be influenced by reasons of state. The jury, composed of laymen, depends a lot on the summing up by the judge, who is supposed to be a legal professional, and thus likely to be influenced by the kind of reasons of state at work in Dr Afia’s case.

The Nation gets its facts all wrong. Actually, a trial by jury protects the accused from the influence of the state on a judge because the jurors are chosen randomly and are not subject to state control like a judge may be. Also, the judge is only present to oversee proceedings to ensure they meet the standards of openness and fairness.

But let us for a moment consider more closely what The Nation is saying. First, they say that a jury trial is defective because supposedly it can be influenced by reasons of state. Second, judges cannot be trusted because supposedly they can be influenced by reasons of state. So, The Nation wants to have a justice system with no judge and no jury. What kind of justice system is this?

Jury trials, please remember, are not an American invention. The concept of a trial by jury was actually borrowed from the Lafif in the Maliki school of classical Islamic law:

The precursor to the English jury trial was the Lafif trial in classical Maliki jurisprudence, which was developed between the 8th and 11th centuries in North Africa and Islamic Sicily, and shares a number of similarities with the later jury trials in English common law. Like the English jury, the Islamic Lafif was a body of twelve members drawn from the neighbourhood and sworn to tell the truth, who were bound to give a unanimous verdict, about matters that “…they had personally seen or heard, binding on the judge, to settle the truth concerning facts in a case, between ordinary people, and obtained as of right by the plaintiff.” The only characteristic of the English jury that the Islamic Lafif lacked was the “judicial writ directing the jury to be summoned and directing the bailiff to hear its recognition.” According to Professor John Makdisi, “no other institution in any legal institution studied to date shares all of these characteristics with the English jury.” It is thus likely that the concept of the Lafif may have been introduced to England by the Normans and then evolved into the modern English jury. However, the hearing of trials before a body of citizens may have existed in courts before the Norman conquest.

Does this mean that The Nation also rejects Islamic law as “defective”?

The Nation next compares the case of Aafia Siddiqui to that of Alfred Dreyfus’ treason conviction by a military court in France in 1894. But The Nation fails to realize that, despite being initially convicted improperly, Dreyfus was exonerated and reinstated as a major in the French Army in 1906, eventually ending his service as a Lieutenant-Colonel. Furthermore, The Nation adds that the Dreyfus affair proves that military courts are defective justice.

For the record, The Nation suggests the following are defective systems of justice:

  1. Jury trials (and, by extension, Islamic law)
  2. Judge trials
  3. Military trials

Again, dear readers, I must ask what is justice system is left?

While it is unfortunate that some people are incorrectly convicted in any type of trial, a proper legal system includes a set of processes by which these individuals can show their innocence and be exonerated, even after a conviction. This was the case with Alfred Dreyfus in France, and this is the opportunity for Aafia Siddiqui in America. In fact, the government has already vowed to provide a good defense for Aafia in the next stages of her trial. So what is The Nation complaining about?

Of course, The Nation does not offer some alternative legal system that is better. The editorial writers only accuse the system of being broken because it allows them to add fuel to the growing hysteria over this case.

The Nation‘s editorial writers even try to use Aafia’s being a woman and mother as proof that she should not be convicted, even though this has nothing to do with the accusations, the trial, or her conviction.  The Nation even suggests that there is some unique brutality on the part of the legal system that convicted Aafia because she is a woman and a mother.

She symbolises the might of the USA, and its relentlessness in punishing all its enemies, even if they are in the form of frail mothers of three. And it shows that it will not only punish women but also children it has decided to make an example of.

But do we not convict women and mothers here at home? In fact, under the Hudood Ordinances, women have been most unjustly tried and convicted in our own country. Particularly, we may remember the embarrassing case of Zafran Bibi – another women and mother – who was sentenced to death by stoning in 2002 for the crime of adultery. Actually, 80 percent of the women in our prisons are convicted under laws that penalize rape victims. Certainly this is not the so-called justice that The Nation would like to see. So what is this other justice system that they are advocating?

Of course, The Nation does not say what system of justice would be more fair. The editorial writers at The Nation only make accusations and weave wild conspiracies. This is because at The Nation, justice is only a convenient word for political posing.

The Nation‘s editorial ends with a strange conclusion:

“Dr. Afia is being tortured, and her kids have disappeared, so that Americans may escape the effects of terror.”

Honestly, I am not sure how to respond to this concluding sentence as it makes absolutely no sense. How would it protect Americans to torture and kidnap anyone? Actually, this would make Americans less safe as it would add fuel to the fire of jihadi propaganda. Or, perhaps that’s what The Nation intended in the first place.

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