The Internal Security
Article 70
The Department of Internal Security is responsible for everything
related to security, and prevents anything that threatens the internal
security. It protects the security of the land through the police, and does not
resort to the Army except by the order of the Khalifah. The head of this
department is called the (Manager of Internal Security). This department has
branches in the provinces, each of which is called (Section of Internal
Ssecurity) and the head of the section is called the Police Chief, Sahib al-Shurtah,
in the province.
The Department of
Internal Security is responsible for anything pertaining to internal security
and headed by the manager of internal security. This department would have a
branch in each province called the internal security section, which will be
headed by the Police Chief in the province who will be under the responsibility
of the governor in terms of execution. He would follow the Department of
Internal Security pertaining to administration; a matter that would be organised
by a special law.
The Internal
Security Department is the department responsible for administering everything
linked to security. It takes charge of maintaining security within the country
through use of the police force. This is the main means to maintain security.
Hence, it is permissible for the Internal Security Department to use the police
at any time, in any way it likes, and its orders must be implemented
immediately. However, if the police require the help of the armed forces, a
request is submitted to the Khalifah. He can order the Army to help the
Internal Security Department or to provide it with a military force to help it
in maintaining the security, or he can issue any order he sees fit. He is also
entitled to refuse such requests and demand that the police carry out the task
themselves.
Article 71
The police (shurtah) have two branches: the military police, who
are under the command of the Amir of Jihad, in other words, the war department,
and the police who are under the control of the Ruler to protect the security,
and they are under the authority of the Department of Internal Security. The
two branches have specific training and specific culture in order for them to
carry out their responsibilities in the best manner.
Police forces are
divided into two parts: the military police and the police that work under the
command of the Ruler, who must have a special uniform and special signs
specific for keeping security.
Al-Azhari said: “shurtah
of any thing is its best. This includes shurat because they are the best
soldiers. It is also said that shurtah are the first group that come
ahead of the Army. It is also mentioned that they are called shuratan
because they have signs that characterise them, in terms of uniform and
status”, this is also chosen by al-Asma’i. It is also mentioned in al-Qamus:
“Shurtah, where the individual is called shurat, would mean the
first battalion that attend the war and is ready for death, it is also the
helper of the governors; and they were called so because they announced
themselves through signs that characterise them.”
In regards to the
military police, which is one of the divisions of the Army that has its sign, it comes ahead of the
Army to control its matters, it is a part of
the Army and follows the Amir of Jihad; in other words, it
follows the war department.
Regarding the
police that are put under the service of the rulers, they follow the Department
of Internal Security. Al-Bukhari narrated from Anas: “That Qays Ibn Sa’d
used to be in front of the Prophet
in the position of the policeman towards the Amir”. What is meant here is Qays
Ibn Sa’d Ibn ’Ubadah al-Ansari al-Khazraji. Al-Tirmidhi narrated it with the
wording: “Qays Ibn Sa’d used to be in front of the Prophet
in the position of the policeman for the Amir. Al-Ansari
said: It means he was one of the people that discharged his issues”.
The Khalifah
is allowed to make all the police that are responsible for internal security
part of the Army, in other words, that they are placed within the war
department, and he is also permitted to make an independent department, in
other words, an internal security department.
In this article it
is adopted that this section will be independent; in other words, the police
that are placed under the service of the rulers to protect their security must
follow the Internal Security Department as an independent organisation that
answer directly to the Khalifah like other State organisations. This is
due to the narration from Anas mentioned previously about Qays Ibn Sa'd, and
following the independence of the four departments related to Jihad as mentioned before. Each one of
them would follow the Khalifah, rather than to be left all together as
one organisation.
Thus the shurtah would follow the Department of
Internal Security.
Article 72
The most prominent issues that threaten the internal security that are
under the responsibility of the Department of Internal Security to treat are:
apostasy, rebellion and banditry, attacks on people’s wealth, attacking people
and their honour and co-operating with the people of suspicion who spy for the
belligerent disbelievers.
The function of the
Department of Internal Security is to protect the internal security of the
State and the actions which could lead to a threat to internal security are
many including:
Apostasy from
Islam, rebellion against the State manifested in destructive activities and
actions of sabotage such as strikes or the occupation of vital centres of the
State, and aggression against private, public, or State property. It might also
be through rebellion against the State by use of arms.
Other actions which
undermine internal security include banditry, in other words, highway robbery,
and attacking people to rob their wealth and killing them.
Similarly, the
attack on the property of people by theft, looting, robbery, misappropriation,
as well as attacks on people through assault, injuring, and killing, in
addition to attacks on their honour through lying, slandering and rape.
One of the other
tasks of the Internal Security Department is to deal with suspicious people and
protecting the Ummah and the State
from their danger and harm.
These are the most
important actions that could threaten the internal security. The Department of
Internal Security protects the State and the people from all these actions.
Therefore, whoever is declared an apostate, and is sentenced to death if he did
not repent, then this department executes the death sentence. If those who
declare apostasy are a group, then they have to communicate with them and ask
them to return to Islam, and the State should not punish them if they repent,
return to Islam and abide by the Shari’ah rules. If however, they insist
on apostasy, then they are fought against. If they are small in number and the
police force alone is able to fight against them, then they must proceed to do
so, but if they are large in number and the police force is unable to overpower
them, then they have to request the Khalifah to provide them with
additional military force to help them. If this military force is not
sufficient, then they must ask the Khalifah to order the Army to provide
them with assistance.
This is concerning
apostates. However, in regards to people who rebel against the State, if they
do not use arms and limit themselves to destruction and sabotage by strikes,
demonstrations, occupation of vital centres of the State, along with aggression
against private, public and State properties through demolition, then the
Internal Security Department restricts itself to using the police force in
order to prevent such destructive actions. If it is not able to prevent the
aggression, it requests the Khalifah to provide it with a military force
in order to stop the destruction and sabotage from those who rebelled against
the State.
However if the
people who rebel against the State use weapons and were able to establish
themselves in an area and became a force that the Department of Internal
Security is unable to subdue, and it was unable to eliminate through the use of
the police force alone, then it requests the Khalifah to provide it with
a military force or an army force, depending on its need in eliminating the
rebellion. Before it fights against them, the department should communicate
with them to see what complaints they may have. It should ask them to return to
obedience and the Jama’ah and to surrender their arms. If they respond
favourably and return back, then the State should hold back from fighting them.
If they reject and insist on rebelling, then it fights against them in order to
discipline them and not to annihilate and destroy them. It fights against them,
so that they turn back to obedience and give up rebellion and surrender their
arms.
In regards to those
that use violence, such as the highway robbers, who attack people, forcibly
obstruct the highways, steal property and kill, the Department of Internal
Security will dispatch a police force to pursue them and impose the relevant
punishment upon them, which may be killing and crucifying, amputating their
opposite limbs or deporting them to another place, according to the verse:
“The punishment of those who fight against
Allah’s Messenger and who walk in the land with corruption is that they should
be killed or crucified, or their opposite hands and legs should be amputated,
or they should be deported from the land.” (TMQ
5:33).
The fighting
against these people is not like fighting against rebels who fight against the
State. Fighting against the rebels is to discipline them while fighting against
the highway robbers is to kill and crucify, so they are fought against when
they fight and when they turn back. They are treated as outlined in the verse.
Whoever killed and took property, he is killed and crucified; and whoever
killed and did not take property, he is killed but not crucified; and whoever
took property without killing, his hand and leg will be amputated from opposite
sides without killing; and whoever raised arms and scared the people and did
not kill or take property, he is only exiled from his area to another place or
country far away from the State.
The Department of
Internal Security restricts itself to using the police force in maintaining
security. It does not use other than the police force except when the police
force is unable to maintain internal security. In that case, it requests the Khalifah
to provide it with a military force or an army, according to what is
required.
With regards to
aggression against property by stealing, misappropriation, robbing or looting;
or aggression against lives by use of force, wounding or killing; or aggression
against honour by lying, slandering, or rape, the Department of Internal
Security prevents these things by its vigilance, guards and patrols, and also
by implementing the verdicts of the judges against those who perform aggression
against the property, lives and honour. All this requires the use of the police
force alone.
The police are entrusted with keeping the public order,
supervision over the internal security and carrying out all aspects of
implementation. This is due to the mentioned narration from Anas who reported
that the Messenger
used to keep Qays Ibn Sa’d before him like a
police chief. This indicates that police are stationed before the rulers, which
means they undertake whatever the rulers want of the execution force for
implementing the Shari’ah, keeping order and protecting security. This
is in addition to conducting patrols, which involves patrolling during the
night to pursue thieves and arrest wrongdoers and the wicked. ’Abd Allah b.
Mas’ud (ra) was a leader over the night patrols at the time of Abu Bakr (ra).
Umar bin Al-Khattab (ra) used to take charge of night patrols by himself,
taking his servant in his company and sometimes ’Abd al-Rahman b. ’Awf (ra).
Therefore, it is wrong that some Islamic countries make the owners of the shops
appoint guards at night to guard their houses, or appoint guards given by the
State at the cost of the owners of the shops. This is because this work is part
of the night patrolling which is the duty of the State and of the functions of
the police. So, people are not charged with it and nor charged with its costs.
With regards to
dealing with the suspicious people who are the people that pose harm and danger
to the State entity, to the community or to the individuals; these types of
suspects must be pursued by the State. Whoever, from the Ummah has
knowledge of any of these must report it. The evidence for this is what
al-Bukhari and Muslim reported from Zayd b Arqam when he said: “I was in
an expedition, and heard ’Abd Allah b Ubay say: Do not spend upon those with
the Messenger of Allah
so as
to disperse away from him; and if we return, the precious will expel the
humiliated, I mentioned that to my uncle Umar, who mentioned it to the Prophet
, so he called upon
me and I told him….”. In the narration by Muslim, “I came to the Prophet
and informed him of that”. Ibn Ubay was well known for
going back and forth to the disbelievers who were at war with the Muslims, and
his relations with them such as those with the Jews around Madinah and the
enemies of Islam. Here, it is required
to closely examine upon the context of this example so as not to mix it with
espionage on the citizens, which is prohibited due to His (swt) saying: “And
do not spy” (TMQ 49:12);
therefore, spying is only limited to the suspects.
The suspicious
people are those who go back and forth to the belligerent disbelievers, either
practically or in terms of their ruling (in other words potentially), and that
is because spying is allowed on the belligerent disbelievers as part of the war
policy, and for preventing harm from falling upon Muslims. Additionally, the Shari’ah
evidences in this subject include all the belligerent people. This is because
if they were actual belligerents, then the obligation of spying on them is
quite clear. If they were potential belligerents, then spying on them is
allowed for war is expected with them at any time.
Thus any citizen
that frequently visits the warring disbelievers would be under suspicion due to
his contact with those we are permitted to spy on, in other words, the
belligerent disbelievers.
The details of this
issue will be as follows:
1. Spying on the
actual belligerent disbelievers is obliged upon the State; a matter which,
besides the above mentioned evidences, is emphasised by the rule: “that
which is necessary to perform an obligation is itself obligatory.” This
is because the knowledge of the force of the enemy, its plans, its objectives
and its strategic locations and the like are necessary to defeat the enemy.
This is undertaken by the War Department, and it includes the citizens that
make contact with the actual belligerent disbelievers, since in origin there is
not usually contact between the citizens and the belligerents, as the relation
between them is a relation of war.
2. Spying on the
potential belligerent disbelievers is allowed; and it is obligatory upon the
State to prevent any harm, such as, when it is feared they would help the
actual belligerents or join them. The potential belligerent disbelievers are of
two types:
The first: The potential belligerent disbelievers in their
country whom the War Department would spy on, and it would be the War
Department who was responsible for spying upon them.
The second: The potential belligerent disbelievers that enter
our country, such as the ambassadors, the covenants and their like. These have
to be put under observation and spying by the Internal Security Department.
The Department of
Internal Security takes charge of surveillance and spying on the citizens who
frequently visit the officials amongst the potential belligerent disbelievers
or their representatives in our country. The War Department also takes charge
of the citizens who frequently visit the officials amongst the actual
belligerent disbelievers or their representatives in their own country. This
however requires two conditions:
The first: There should appear clear evidence through
surveillance, carried out by the War Department and Internal Security of the
officials amongst the potential belligerent disbelievers or their
representatives that the frequent visits to these disbelievers or their
representatives, inside or outside the State, are not natural and attract
attention.
The second: Whatever is discovered by the two departments has
to be presented to the judge of hisbah; and then the judge of hisbah rules
upon the matter.
If such a case
arises then it is allowed for the Department of Internal Security to spy on
those citizens that make such frequent visits to the officials amongst the
potential belligerent disbelievers or their representatives in our country. It
is also permitted for the War Department to spy on the citizens that make
frequent visits to the officials amongst the potential belligerent disbelievers
and their representatives in their own country. These are the evidences related
to all of this:
1. Spying on Muslims is haram as stipulated in
this verse. Allah (swt) says:
“And do not spy on each other…” (TMQ
49:12)
This is general
prohibition of spying and it has to continue as general unless there is
specific evidence. This is confirmed by the narration reported by Ahmad and Abu
Dawud with a chain from Al-Miqdad and Abu Umamah when they said: “The
Messenger of Allah
said:
If the leader looked for suspicion amongst the people, he would ruin them”. Therefore, spying on a Muslim
is prohibited. This rule also applies on the people of the Dhimmah from
the citizens of the State. Thus spying is prohibited upon the citizens, Muslims
and non-Muslims.
2. Spying on actual
belligerent disbelievers, such as those who are at war with us and on the
potential belligerent disbelievers, such as those who enter our country with
covenant or under our protection like ambassadors and others, or the actual
belligerent disbelievers in their own country, is allowed. It is in fact
obligatory to spy on the actual belligerent and on the potential belligerent in
case of harm.
The evidences are
clear in the life of the Messenger of Allah
, which are as
follows:
• It was reported
in the Sirah of Ibn Hisham about the expedition of ’Abd Allah b. Jahsh
(ra), where he ordered him to travel for two days without opening the letter he
wrote for him. After ’Abd Allah b. Jahsh (ra) travelled for two days he opened
the letter of the Messenger of Allah
and read it. It read “If you read this
letter of mine, travel till you reach Nakhlah that comes between Makkah and
Ta’if, where you camp and monitor Quraysh from there and collect for us their
news.”
It was reported in
the Sirah of Ibn Hisham regarding the events of the battle of Badr that
Ibn Ishaq said: “The Messenger of Allah
and Abu Bakr rode till they met a sheikh from the Arabs.
He asked him about Quraysh and about Muhammad and his companions and any
information he got about them. The sheikh said I will not inform you till you
tell me from where are you? The Messenger of Allah
said, if you tell us, we would tell you. He said, is this
for that? He said: yes. The Sheikh said: … I was informed that Quraysh had left
in such and such day. If the one that informed me said the truth, then they
would be in such and such place, naming the place where Quraysh is. When he
finished his news, he said: From where are you? The Messenger of Allah
said: Water, and they then turned away from him. He said,
the sheikh was saying: From water, or from the water of Iraq? Then the
Messenger of Allah
returned back to his companions. When night fell, he sent
’Ali Ibn Abi Talib, Zubayr Ibn Al-’Awwam and Sa'd Ibn Abi Waqqas together with
some of his companions (may Allah be pleased with them) to the Water of Badr to
seek the news from there, in other words, to spy upon Quraysh”
• Ibn Ishaq also
reported that Ibn Hisham mentioned under the title: “Basbas Ibn ’Amru and ’Uday Ibn Abu Al-Zaghba' spy for news”, till
he said, “’Uday and Basbas heard that (meaning: heard that which the two maids said
at the Water regarding the news of Quraysh). So, they jumped onto their two
riding camels and went to the Messenger of Allah
where they informed him of that
which they heard”.
Though these
evidences were regarding Quraysh, which was an actual belligerent, the rule
applies to the potential belligerent since war is expected with them. The only
difference is that spying is obligatory in the case of the actual belligerent
because the war policy for defeating the enemy requires that. It is however
allowed regarding the potential belligerent because war is expected with them.
If there is possible harm from them, in other words, it is expected they might
help the belligerent or actually join them, then spying on them becomes
obligatory as well.
Thus, spying on the
belligerent disbelievers is allowed for Muslims and obligatory upon the State
to provide. This is due to the order of the Messenger of Allah
to do so as mentioned above. It
also comes under the rule: “That which is necessary for performing an
obligation is itself obligatory”.
If some citizens,
whether Muslims or non-Muslims,
frequently visited the belligerent disbelievers, whether they were actual or
potential belligerents, in our country or in their country, then these are
suspects and hence it is allowed to spy on them and follow their news. This is
because they frequently visit those whom it is allowed to spy on and because
harm is expected from them on the State if they spied for the advantage of the
disbelievers.
However, to allow
spying on such citizens, the above mentioned two conditions must be verified,
and so if those two conditions were not met, then it is prohibited to spy upon
the citizens irrespective of whether they were Muslims or from the people of Dhimmah
due to the explicit texts regarding that which have been mentioned previously.
The War Department
takes charge of spying on the citizens that frequently visit the actual
belligerent, as well as on the citizens that frequently visit the officials
amongst the potential belligerent and their representatives in their own
country. The Department of Internal Security takes charge of spying on the
citizens that frequently visit the officials amongst the potential belligerent
disbelievers and their representatives in our country.
The Foreign Affairs Department
Article 73
The Department of Foreign Affairs is in charge of all the affairs
connected to the relations of the Khilafah state with the foreign
states, whether from the political angle, or economic, industrial, agricultural
and trade aspects, or postal, cable and wireless connections and so on.
The
Foreign Affairs Department undertakes the responsibility of all foreign affairs,
pertaining to the relation of the Khilafah State with foreign states,
whatever these affairs and relations may be, whether they are related to the
political aspect and what it entails in the forming of pacts, peace treaties,
ceasefires, negotiations, appointing ambassadors, sending messengers and
delegates, and establishing embassies and consulates, or relations that are
related to matters that are economic, agricultural or are to do with trade, as
well as postal communications or wire and wireless communications and so on.
All of these matters are run by the Foreign Affairs Department, because they
are concerned with the relations of the Khilafah State with other
States.
The
Messenger
used to establish foreign relations with other
states and entities, as was explained in the section regarding the executive
assistant. He
sent ‘Uthman b. ‘Affan (ra) to negotiate with
Quraysh just as he
negotiated with the delegates of Quraysh. He
sent delegates to the kings and he
received the delegates of kings and amirs
and concluded pacts and peace treaties. Similarly, his
Khulafaa’ used to establish political
relations with other states and entities. They would appoint people to carry
these actions out on their behalf, on the basis that whatever action a person
can perform by himself, he can delegate it to some other person to carry it out
on his behalf.
Due to
the complications of international life, and the vastness and variety of
international political relations, we adopt that the Khalifah should
delegate an institution within the state specific to the international
relations where the Khalifah follows its work as he does with any other
ruling and administrative institutions in the state, whether directly or
through the executive assistant, in accordance with the related Shari’ah
rules.
The Department of Industry
Article 74
The Department of Industry is in charge of all the affairs connected to
industry, whether heavy industry such as the manufacturing of engines,
machines, vehicles, materials and electrical equipment, or light industry.
Similarly, whether the factories are of the public property type or they are
included in the private property and have a relationship to the military industry.
All types of factories must be established upon the basis of military policy.
The department of
industry is the department that takes charge of all the affairs related to
industry, whether they pertain to heavy industry like the manufacturing of motors,
engines, vehicles, materials, and electrical equipment, or light industry; and irrespective of whether the factories were public or private
property which have a
relationship with the military industries. The factories in all sectors must be
based on the war policy. This is because Jihad and fighting require an army,
and in order to fight this army requires weapons. In order that these weapons
be of the highest level and fully available, it is necessary to have an
industry within the State, particularly the military industry, due to its strong
relationship with Jihad.
In order that the
State becomes independent of other countries and does not become influenced by
any of them it should manufacture and develop its own weapons by itself. This
makes it independent and in continuous possession of the most advanced and
strongest weaponry, regardless of the level of development and advancement of
weapons. It would also have at its disposal all that it needs of weapons to
intimidate both the evident and potential enemies, as Allah (swt) says: “Make
ready for them all you can of (armed) force and of horses tethered, that
thereby you may dismay the enemy of Allah and your enemy, and others beside
them whom you know not. Allah knows them.” (TMQ 8:60)
As such the State
would have its own will, produce the weapons that it needs and develop them
continuously so that it owns the strongest and most developed weapons in order
to intimidate all the evident and potential enemies. Therefore it is a duty
upon the State to manufacture weapons by itself and it is not allowed to depend
upon other states, because this allows other states to control it, its will,
its weapons and its fighting.
It is quite clear
in the world today that the states which sell weapons to other states do not
usually sell every weapon, particularly the most developed weapons. They do not
even sell weapons except with certain conditions that cover their utilisation. They will
not sell them except in quantities that they, rather than the purchasing
countries, decide. This gives the state which sells arms, authority and
influence over the state which buys the arms, enabling it to enforce its own
will upon the purchasing state, particularly if it was involved in a war. In
that case it would need more arms, spare parts and ammunition, which would
increase its dependence on the state which exports its arms and increase its
submission to another state’s demands. This allows the state which exports arms
to control it and its will, especially in times of war and in times of great
need for arms and spare parts. Hence such a state would make itself, its will
and its entity hostage to the state that exports arms to it.
Therefore, for all
these reasons, the State has to independently manufacture its own arms and
everything it requires for its war machine and spare parts. This can’t be
achieved unless the State possesses heavy industry and started to build
factories which produce heavy industry, both military and non-military alike.
Thus it is necessary that the State have factories for producing all types of
atomic weapons, rockets, satellites, airplanes, tanks, mortars, naval ships,
armoured vehicles and
all types of heavy and light weapons. It is necessary that it have factories
which produce machines, motors, materials,
and electronics, and factories which have a relation with public
property and light factories which have relation with the military or war
industries. All this is required by the duty of preparation which is obliged
upon the Muslims by the saying of Allah (swt): “Make ready for them
all that you can of (armed) force.” (TMQ 8:60).
Since the Islamic
State conveys the message of Islam by Da’wah and Jihad, it should
be a state which should be continually ready to carry out Jihad. This
requires the existence of heavy and light industry built upon the basis of its
war policy. Thus in case it wanted at any time to transform these factories for
military purposes, it would easily do so at any time. Therefore all the
industry in the Khilafah State should be based on the war policy, and
all the factories, which produce the light and heavy industries, should be
based on this policy, so that it becomes easy to transform their production to
military production at any time the State requires.
The Judiciary
Article 75
The Judiciary is the pronouncement of the rule that becomes binding. It
settles the disputes between the people and prevents that which harms the
community’s rights, or it eliminates the disputes arising between people and
members of the ruling system – both rulers and civil servants – from the Head
of State downwards.
The origin of the judiciary and its legitimacy is the Book and the Sunnah.
As for the Book, the words of Allah (swt) “And rule between them by what
Allah has revealed” (TMQ 5:45),
and His (swt) words “And when they are called by Allah and His Messenger
to judge between them” (TMQ
24:48). As for the Sunnah, the Messenger
used to undertake the judiciary by
himself and judge between the people, such as what Bukhari narrated from Aaisha
(ra), the wife of the Prophet
, that
she said “‘Utba b. Abi Waqqas told his brother
Sa’ad Bin Abi Waqqas that the child of
Zuma’a is his, so keep him with you. In the year of the conquest, Sa’ad took
him and said “The child is the son of my brother, and he has entrusted him to
me”. ‘Abd b. Zuma’ah stood up to him and said “He is my brother, the son born
to my father, and he was born on his bed”. So they both rushed to the Messenger
of Allah
and Sa’ad said “O Messenger of
Allah! He is son of my brother and he has entrusted him to me.” And ‘Abd Bin
Zuma’ah said “He is my brother and a son born to my father on his bed.” The
Messenger of Allah
said “The child is for the bed
and for the fornicator is stoning””. And the Messenger of Allah
used to appoint judges; he
appointed ‘Ali (ra) as the judge over Yemen and he
gave him instructions about how to
judge by saying “If two disputing men come to you do not give a judgement
for one of them until you have heard what the other has had to say, and then
you would know how to judge” reported by Al-Tirmidhi, and Ahmad, and in
the report of Ahmad with the wording “If two disputing men come to you,
do not speak until you have heard the second as you heard from the first”.
The method of adjudication carried out by the Messenger
can be deduced from the narration
of Aaisha (ra) that Sa’ad and ‘Abd Bin Zuma’ah disputed over the son of
Zuma’ah, so each one of them claimed that he was his. The Messenger of Allah
informed them of the Shari’ah
rule that the son of Sawda bint Zuma’ah was the brother of ‘Abd Bin Zuma’ah,
and that the child belongs to the one on whose bed it is born. Therefore, his
judgement was information about
the Shari’ah rule which he then enforced upon them, and so Abd Bin
Zuma’ah took the child. This is the proof for Article 75, which gives the
definition of the judiciary, and this definition serves as a description of the
reality. However, since it is a Shari’ah reality, and since the Shari’ah
definition is in fact a Shari’ah rule, it therefore requires evidence
from which it is to be deduced, and this narration serves as an evidence for
the definition of the judiciary found in this article.
Some people defined the judiciary as being the “settling of disputes
between people”, and this definition is deficient from one angle, and from
another angle it is not a description of the reality of the judiciary as
reflected in the Messenger of Allah’s
actions and sayings. Rather, this
definition is merely an explanation of what may or may not occur from the
judiciary. The judge may rule upon the case and not settle the dispute between
the parties. Therefore, the comprehensive and exclusive definition would be the
one mentioned in this article and it has been deduced from the narrations.
Also, this definition includes the judgement between people, and this is
mentioned in the narration of Aaisha (ra). It also includes the Hisbah
(public order) which is: “Conveying the Shari’ah rule for the purpose of enforcing it regarding that which
causes harm to the rights of the community”. This
is what has been narrated in the narration of the heap of food. It is narrated
in Sahih Muslim on the authority of Abu Huraira that the Messenger of
Allah
passed by a heap of food and put his hand inside it, and his
fingers became wet, so he said to the vendor “What is this O owner of the
food?” He said “It was dampened by the rain O Messenger of Allah” He
said “Why don’t you put it
on the top so that people can see it? He who cheats is not from me” and
in the report in Ahmad and Ibn Maja and al-Darimi “whoever cheats us is
not from us”.
It also includes the Madhalim (injustices), because they are part
of the judiciary and not part of the ruling, since they are complaints against
the ruler. The Madhalim is defined as “Conveying the Shari’ah rule
for the purpose of enforcing it regarding the disputes which occur between the
people and the Khalifah, his governors or civil servants, and regarding what
occurs between the Muslims due to differences in the meaning a text from the
Shari’ah texts used in order to judge by them and to rule according
to them.” The Madhalim were mentioned in the narration of the Messenger
of Allah
regarding the fixing of prices
where he said “And verily I hope that I will meet Allah without having
anyone claiming against me a Madhlamah (injustice) I inflicted on him
in blood or wealth” reported by Ahmad from Anas
Bin Malik, and in his
words “Whoever I took wealth
from, then here is my wealth he should take from it, and whoever’s back I
whipped, here is my back so he should take recompense from it” reported
by Abu Ya’la from al-Fadl Bin ‘Abbas. Al-Haythami said that ‘Ata’ b. Muslim, who is
in the chain of Abu Ya’la, has been considered trustworthy by Ibn Hibban and
others, whereas others have weakened him, and the rest of the narrators are
trustworthy. This indicates that the issue of the ruler, governor or civil
servant is raised to the judge of the Court of Injustices (Madhalim) in
any claim of an injustice, and the judge of the Court of Injustices (Madhalim)
conveys the Shari’ah rule which would be binding.
Based upon this, the definition would encompass the three types of
judiciary reflected in the narrations and actions of the Messenger of Allah
. These are the settling of disputes between people, preventing whatever
may harm the rights of the community and the settling of the disputes between
the subjects and the rulers, or between the subjects and the civil servants in
their work.
Article 76
The Khalifah appoints a supreme judge to the judiciary from the
male, adult, free, Muslim, sane, just people who know jurisprudence, and if he
was given the power to appoint and remove the Madhalim judge, and had
the power of judgement in the Madhalim, then he would have to be a Mujtahid.
He would have the power to appoint judges, discipline them, and remove them as
part of the administrative systems. As for the remainder of the civil servants
of the courts, they are connected to the Department Manager who is responsible
for the courts’ affairs.
The origin is that the Khalifah can appoint governors to a
specific governorship upon one of the issues in all the parts of the State,
just as he can appoint a governor to a specific governorship upon one of the
issues in a specific location, similar to how he can appoint a governor to a
general governorship in a specific location. So, just as the Khalifah
can empower a leader for Jihad, and one for hajj, and one over
the land taxes, he can also empower a leader for the judiciary. He can give
that leader the right to appoint judges, remove them and discipline them, in
the same way that he can give the leader of Jihad the right to appoint
Majors and Corporals over the soldiers, and discipline them and remove them.
Due to this it is permitted for the Khalifah to appoint a Supreme Judge,
or in other words, a leader over the judiciary. This Supreme Judge, or leader
of the judiciary, would be a ruler and not a civil servant, since he is a
governor who has undertaken a governorship - in other words ruling - just like
any leader or governor over any of the issues. However, he is not considered to
be an assistant for the Khalifah in the judiciary because he was given a
specific appointment, in other words in all the issues of judiciary, and so his
appointment is in the judiciary and does not go beyond that. As for the
assistant, he is given a general appointment in all the issues, so the Khalifah
can seek his help in all issues, unlike the Supreme Judge who can assist in the
judiciary alone.
It is not confirmed that the Messenger
appointed a Supreme Judge,
in the same way that it is not confirmed that any of the righteous guided Khulafaa’
appointed a Supreme Judge. There is nothing that indicates that the judiciary
in the territories used to have deputies who would carry out the judiciary in
the towns and villages, neither in the time of the righteous guided Khulafaa’,
and not even by the time of the Ummayads. The first appointment of a supreme
judge by the Khalifah was at the time of Harun al-Rashid, and the first
judge to be given this description was the judge Abu Yusuf, the famous Mujtahid,
who was a companion of Abu Hanifah. Accordingly, it is permitted for the Khalifah
to appoint a judge who is given the power to appoint and remove judges; so it
is from the permitted actions.
Based upon this it is permitted for the Khalifah to appoint a
“Supreme Judge”. However, his pre-conditions are the same of those of the judge
and the ruler, since he is a judge and a ruler since he has been given the
power to appoint judges and to adjudicate in court cases. In other words, it is
a condition for the Supreme Judge to be male, adult, free, Muslim, sane, just,
and from the people who know the jurisprudence, since the condition of
capability in this case means that he should know jurisprudence since his work
is responsibility over the judiciary in addition to his powers of judging. The
Messenger
has blamed whoever judges with
ignorance and informed us that they would be from the people of the hellfire;
he
said “And a man who judges
for the people based upon ignorance, then he is in the hellfire” (reported by the authors of the Sunan
and al-Hakim who authenticated it from Buraydah). From this evidence it is has
been made a condition that the judge should be from the people who know the
jurisprudence. The Supreme Judge should be a Mujtahid if he was given
the power to appoint and remove the Madhalim judge, and the powers to
judge in the Madhalim, since such a judgement requires Ijtihad as is explained in article 78.
As for what is mentioned in the article about the appointment of civil
servants for the courts, these people are employees and the evidence for the
permission of their appointment is the evidence for the hiring of an employee.
Article 77
The Judges are of three types: One is the Judge (qadi), and he
undertakes settling the disputes between people over transactions and penal
codes. The second is the Muhtasib, who undertakes the settling of any
breach of law that may harm the rights of the community. The third is the judge
of the Court of Injustices (Madhalim), who undertakes the settling of
disputes between the people and the State.
This article explains the types of judiciary. The evidence about the
judge that settles disputes between people is derived from the actions of the
Messenger of Allah
, and from his appointment of Mu’adh b. Jabal (ra) over an area of Yemen.
As for the evidence for the judiciary regarding the settling of disputes
which endanger the rights of the community, where the judge is known as the muhtasib,
this is confirmed by the action and words of the Messenger of Allah
, for he said “Whoever cheats is not from us” (reported by Ahmad and Ibn Maja from
Abu Hurayrah). He used to confront the cheaters and punish them. Qays b. Abi
Gharzah al-Kanani reported “We used to buy cargo in Madinah and we would
call ourselves brokers, so the Messenger of Allah (saw) came out to us and
called us with a better name, he (saw) said: ‘O you gathering of traders, truly
selling entails foolish talk and the taking of oaths, so mix it with charity’” (reported by the authors of the Sunan
and al-Hakim who authenticated it, and Al-Tirmidhi said it is Hasan Sahih). And it is narrated
that al-Bara’ b. ‘Azib and Zayd b. Arqam were partners, so they both bought
some silver with money on the spot and by credit. This news reached the
Messenger of Allah
, so he
ordered “What was by money
is permitted, and what was by credit must be rejected” (reported by Ahmad from al-Minhal).
All of this is the judiciary of hisbah.
Calling the judiciary that settles the disputes that may harm the right
of the community as Hisbah is in fact a technical term referring to a
specific task carried out in the Islamic State, which is the monitoring of the
traders and skilled workers in order to prevent them from cheating in their
trade, work, or products, forcing them to use measurements and scales and
preventing anything else that may harm the community. These are the very types
of actions that the Messenger of Allah
demonstrated, ordered to be
observed, and undertook in settling their issues, as is clear from the
narration al-Bara’ b. ‘Azib, where he
prevented both parties from
selling silver by credit. Therefore, the evidence about the Hisbah is from the Sunnah. In the same manner,
these evidences include that the Messenger of Allah
appointed Sa‘id b. al-‘As over the Makkan
market after it had been conquered as is mentioned in al-Tabaqat of Ibn
Sa’d, and in al-isti’ab of Ibn Abdul Birr. And
Umar Bin al-Khattab (ra) appointed al-Shifa, a woman from his clan, as a market
judge (inspector), in other words a judge of Hisbah, as he also
appointed ‘Abd Allah b. Utba[YUN1] over the market of Madinah, as reported by Malik in al-Muwatta
and al-Shafi’i in his Musnad. He personally used to also deal with
the judiciary of the Hisbah, and would go around the markets just like
the Messenger
used to do. The Khulafaa’
went on carrying out the Hisbah until when al-Mahdi came he established
a special department for the Hisbah, making it a part of the
institutions of the judiciary. At the time of al-Rashid, the Muhtasib
(judge of Hisbah) would go around the markets, checking the weights and measures for any
cheating, and to look into the traders’ transactions.
The proof for the judiciary that is called the Judge of the Court of
Injustices (Madhalim), is the action of the Messenger
since he appointed Rashid b.
‘Abd Allah as a judge for the Court of Injustices (Madhalim), and
additionally he
said “Whoever I took wealth
from, then here is my wealth he should take from it, and whoever’s back I
whipped, here is my back so he should take recompense from it” reported
by Abu Ya’la from al-Fadl Bin ‘Abbas. Al-Haythami said that ‘Ata b. Muslim who
is in the chain of Abu Ya’la has been considered trustworthy by Ibn Hibban and
others, whereas others have weakened him, and the rest of the narrators are
trustworthy. This is nothing other than the judiciary of the injustices (Madhalim),
because it is encompassed by the definition of the judiciary of injustices (Madhalim),
which is the investigation into what occurred between the people and the Khalifah. Therefore the evidence for the judiciary of
injustices (Madhalim) is the actions and words of the Messenger
. However, he
did not make a judge specific to
the injustices (Madhalim) alone for all the areas of the State, and the Khulafaa’
after him proceeded in the same manner, in that they used to deal with the
injustices (Madhalim) as occurred with ‘Ali Bin Abi Talib (ra) – but he
did not make it during a specific time or with a particular style, rather the
injustice (Madhlamah) would be looked into as it occurred, and so it was
part of the overall actions. The situation remained the same until the days of
‘Abd al-Malik b. Marwan, who was the first Khalifah to deal with the
injustices (Madhalim) separately at a specific time with a particular
style, so he used to designate a specific day, and would look into the
injustices, and subsequently if anything was difficult for him he would pass it
to his judge who would rule upon it. After that, built upon this system, the Khalifah
would appoint a delegate who would look into the injustices raised by the
people, and the Court of Injustices (Madhalim) became a specific apparatus,
and used to be called “Dar al-‘adl” (the House of Justice). This is
permitted from the angle of appointing a judge who is specific for it, since it
is permitted for the Khalifah to appoint someone as a delegate to
undertake his work in all the mandatory powers that he has and it is permitted
from the angle of specifying a particular time, and style, since it is from the
permitted issues.
Article 78
Whoever undertakes the responsibility of judgement must be a Muslim,
free, adult, sane, just, a faqih (person who knows jurisprudence/Fiqh),
and aware of how to apply the rules to the events. And the person who
undertakes the judiciary of injustices (Madhalim) in addition to
the conditions mentioned, must also be male and a Mujtahid (capable of
deriving his own Fiqh/conducting Ijtihad).
Its evidence is what was mentioned previously for the evidence for the
Supreme judge, except that it is not a condition in the judge who settles the
disputes and the judge of hisbah to be male, rather it is permitted for
the judge to be a woman, since it is not a position of ruling but rather a
judge, in other words they convey the Shari’ah rule while they are not
the one who implements it. Accordingly, the narration “A people who appoint a woman over their command will
never succeed” reported by
al-Bukhari, does not apply, since it is regarding governorship which is ruling.
And the reason for the narration was when the people of Persia were ruled by a
woman; it is narrated from Abu Bakrah who said “When the Messenger of
Allah
was
notified that the people of Persia were ruled by the daughter of Kisra he said
‘A people who appoint a woman over their command will never succeed’” (reported by al-Bukhari). So the
reason for the words of the narration was a specific subject which was
mentioned explicitly in the text of the narration, which is ruling, in other
words authority, and the judiciary is not an authority. Accordingly the
narration is specific to ruling and does not encompass the judiciary, and that
is for two reasons:
Firstly, the text which is related in a specific subject is
like the text which is an answer to a question, and so it is necessary to make
it specific to the issue of the question or event, and it is not correct for it
to be general in all issues, because the question is reflected in the answer,
and because the words are in a specific subject it is necessary to limit them
to that subject, since the word of the Messenger
is connected to the question or event, and so
the rule is connected to that. This is different than if the Messenger
had said that initially (not in response to an
event) in which case it would be general and connected to the generality. As
for if his
word is a comment upon a specific event, or an
answer to a specific question, then the situation is different. If the text, in
other words the words of Allah (swt) or the words of the Messenger
, were definitely
connected to a question or event, then the rule is connected to that without
any doubt. This is with respect to the subject that either came from a question
or event. And it is not with respect to the questioner or whom the event
occurred upon, since the consideration in both of them is given to the
generality of the words and not to the specific cause. And this is why there is
a difference made between the cause and the subject, so the consideration is to
the generality of the words and not to the specific cause, since the words are
not connected to the cause, and so they remain upon their generality. This is
different to the event or question, in other words different to the subject
which was included by the event, or the subject which was included by the
question, since the words are definitely connected to it, and there is no doubt
in that, since the narration was only for its sake, or due to it, and due to
this it is specific to the subject, and not general. Accordingly the narration “A
people who appoint a woman over their command will never succeed” is
specific to ruling, and does not encompass the judiciary.
This is the first
reason. As for the second reason, the words “over their command”
are from governorship, and this is the governorship of the command, and the
judge is not a governor, and is not a governor for the command. Accordingly the
judge does not come under this narration, so the narration does not encompass
the judiciary.
This is from the
angle of the indication of the narration and as for the angle of the permission
for a judge to be a woman, the judge is an employee like the rest of the civil
servants. And it is permitted for an employee to be male or female; “If they suckle the
children for you, give them their due payment” (TMQ 65:6). The judge is appointed to
undertake an action according to the Shari’ah, or in other words to
inform the two disputing parties of the Shari’ah rule which would be
binding upon them, and he is not appointed in order to implement the Shari’ah.
Due to this the definition of the employee would apply to him, since it is a
contract upon a service for compensation, which is opposite to the ruler since
the definition would not apply to him, since he is not contracted over a
specific service, rather he is given the command to execute the Shari’ah,
and for this reason it is not permitted for a ruler to be a woman because he is
a governor of a command (wali amr). It is permitted for the judge to be
a woman, since the judge is an employee and not a ruler.
With regards to the rest of the conditions for the judge, their proofs
were discussed in the section about the conditions of the Khalifah.
Similarly the evidence for the condition that they be a faqih (to know
jurisprudence) is the narration “The judges are of three kinds”
until he
said “and the man who judges
between people based upon ignorance, then he is in the hellfire”
(reported in the Sunan and authenticated by al-Hakim from Buraydah).
This is for the judiciary of hisbah and the judiciary that
resolves the disputes between the people, where it is permitted for the judge
to be a woman. As for the judge of the Court of Injustices (Madhalim),
it is a condition that he is male, like the Supreme Judge, because his work is
both ruling and judging, since he rules upon the ruler, and implements the Shari’ah
upon him, and for that reason it is a condition that he is male along with
the rest of the conditions of the judge, of which being a faqih is one.
However, in addition to that, it is a condition that he should be a Mujtahid,
because as part of the injustices (Madhalim) he may be required to look
into whether the ruler has ruled by other than that which Allah (swt) has
revealed, or in other words has ruled by a law that has no Shari'ah
evidence, or to look into whether the evidence he used does not apply to the
event. This type of injustice (Madhlamah) can only be dealt with
by a Mujtahid, since if he were not a Mujtahid, he would be
judging on something he knows little about or has no knowledge about at all,
and that is forbidden and not permitted. Therefore, in addition to the conditions of the ruler and
those of the judge, he should also be a Mujtahid.
Article 79
The qadi, the muhtasib and the Madhalim judge may
be given a general appointment to pronounce judgement on all problems
throughout the State, or alternatively they can be given an appointment to a
particular location and to give judgement on particular types of cases.
The evidence is the actions of the Messenger
, since he appointed ‘Ali b. Abi Talib (ra) as a judge for Yemen as
reported by Ahmad with an authentic chain from Ali (ra) who said “The
Messenger of Allah sent me to Yemen. I said O Messenger of Allah, you send me
to a people who are older than me and I am young and not insightful in
adjudicating. So he
placed his hand on my chest and
said O Allah! Make his tongue firm and guide his heart. O Ali, if two disputing
people come to you, do not judge between them until you have listened to the
second as you listened to the first, so if you did that the judgement would
become clear to you. After that was said to me, I did not differ or become
confused on a case again”. He
appointed Mu’adh as a judge over a
part of Yemen, Abu Umar b. ‘Abd al-Barr mentioned in al-Isti’ab “Ibn
Ishaq said: The Messenger of Allah made a brotherhood between Mu’adh Bin Jabal
and Ja’far b. Abi Talib, they witnessed al-Aqaba and Badr and all of the
events, and the Messenger of Allah sent him to al-Janad in Yemen to teach the
people Quran and the Shari’ah of Islam, and to judge between them, and to
collect the Sadaqah from the workers…”
He
appointed ‘Amru b. al-‘As to give
judgement in one particular case. Ibn Qudamah mentioned in al-mughni saying
“From ‘Uqbah b. Amir who said: Two disputants brought their dispute to
the Messenger of Allah, and so he said – Judge between them. I said: You have
priority over me to do that. He
said: Even so. I said: On what should I
judge? He said: Judge, and if you are correct you will have ten rewards and if
you made a mistake you will get one reward”. Ibn Qudamah said, and
Ahmad reported the same narration with a chain whose men were all authentic to
‘Uqbah b. Amir from the Prophet
, except that he
said “And if you did
Ijtihad and were correct you will have ten rewards, and if you did Ijtihad and
you made a mistake you will get one reward”.
Article 80
The courts should be comprised of only one judge who has the authority
to pronounce judgement. One or more judges are permitted to accompany him,
however they do not have the authority of judgement but rather the authority of
consulting and giving their opinion, and their opinion is not considered
binding.
Its proof is that the Messenger
did not appoint two judges to one
case, but rather he would appoint a single judge for the single case, which
indicates the impermissibility of having a multiplicity of judges in a single
case. Additionally, the judiciary is the informing of the Shari’ah rule
which is then binding, and the Shari’ah rule for the single Muslim is
not multiple, since it is the rule of Allah (swt), and the rule of Allah (swt)
is one. It is correct that there could be multiple understandings of it, but
concerning the Muslim from the angle of action according to it, the Shari’ah
rule is singular and is never multiple. So anything other than what he
understood to be the rule of Allah (swt) concerning oneself is not the rule of
Allah (swt) for him, though it is considered in his view to be a Shari’ah
rule. Whatever he took by imitation (taqlid), and then acted upon, is
considered to be the rule of Allah (swt) concerning him, and anything else is
not the rule of Allah (swt) for him. When the judge informs him of the rule of
Allah (swt) concerning him, and this is binding upon him, it is necessary that
this notification be singular since it is informing him of the rule of Allah
(swt) which is binding for him, and so in reality he is acting according to the
rule of Allah (swt), and the rule of Allah (swt) in the situation of practical
action is not multiple, even though there may be multiple understandings.
Accordingly it is not correct for there to be multiple judges, since it is
impossible for the rule of Allah (swt) to be multiple.
This is with respect to the single case, or in other words in a single
courtroom. As for the country, it is permitted to have two separate courts
dealing in all types of cases in one area, because the judiciary is delegated
by the Khalifah, so it is like the proxy where plurality is permitted
and thus it would be permitted to have several judges in one area. If the
disputing parties could not agree on which court they should take their case to
or which judge should look into their case, the choice of the plaintiff would
outweigh that of the defendant and the case would be given to the judge of his
choice, as he would be seeking his right and this outweighs the defendant.
Article 81
The judge can only give a verdict in a court session, and any evidence
and oaths can only be considered in the court session.
Its evidence is what is narrated by ‘Abd Allah Bin al-Zubayr who said, “The
Messenger of Allah
ruled that the two disputers
should sit between the hands of the ruler” (reported by Ahmad and Abu
Dawud with the wording from Abu Dawud). This narration explains the form in
which judgement is carried out and it is a lawful form in itself. There must be
a specific form in which the judicial process be conducted, which is for the
two disputing parties to sit before the ruler, and this would be the court
session. Therefore, this is a condition for the validity of the judicial
process i.e. it is imperative that there be a specific assembly where the
judgement is to be conducted for it to be a valid judgement and this would be
for the two disputing parties to sit before a ruler. This is supported by the
narration of Ali (ra) when the Messenger of Allah
said to him “O ‘Ali if two
disputing parties sit before you then do not judge between them until you
listened to the second as you listened to the first” (reported by Ahmad), which also
explains the specific form with his
words “if two disputing
parties sit before you”. So the court session is a condition for the
validity of the judgement, and in the same manner it is a condition for the
consideration of the oaths, due to the words of the Messenger
“and the oath is upon the one who was accused” (agreed upon from Ibn Abbas),
and he would not have this attribute, the attribute of being accused, except in
a court session. In the same manner, there would be no consideration for
evidence unless given in a court session, due to the words of the Messenger
“The burden
of proof is upon the plaintiff” (reported by
al-Bayhaqi with an authentic chain as Ibn Hajar said), and this attribute would
not be given except in the court session.
Article 82
It is permissible to vary the grades of courts in respect to the type of
cases. Some judges may thus be assigned to certain cases of particular grades
and other courts to be authorised to judge the other cases.
Its evidence is that the judiciary is delegated by the Khalifah
and it is just like proxy, with no difference between them. The judiciary is
one form of proxy, and it is permitted for proxy to be general or specific. Therefore,
it would be permitted to appoint a judge to deal in specific cases only, and
prohibited from dealing with any other ones. It is permitted to appoint another
judge to look into all sorts of cases including those mentioned, even in the
same location, or to look into cases other than those mentioned. Therefore, it
is permitted to have various levels of courts, and Muslims had this in the
first era. Al-Mawardi wrote in his book entitled al-Ahkam al-Sultaniyyah: “Abu ‘Abd Allah al-Zubayr said: ‘The leaders here in
Basra used to appoint a judge at the central mosque, and they called him the
judge of the mosque. He used to judge in disputes involving amounts below
twenty Dinars and two hundred Dirhams, and he used to impose maintenance (nafaqah).
He would not exceed his boundaries and nor the duties entrusted to him’”. The
Messenger of Allah
delegated others on his behalf in
the judiciary in a single case such as when he delegated ‘Amru b. al-‘As, and
he
delegated others on his behalf in the judiciary in all of the cases in a
particular province as he did when he delegated ‘Ali b. Abi Talib (ra) over the
judiciary in Yemen. This indicates that it is permitted to have a specific and
general judiciary.
Article 83
There is no court of appeal, and no court of cassation, so the
judiciary, as far as the method by which the cases are treated, is of a single
level. If the judge pronounced a verdict, it would become binding, and it
cannot ever be annulled by the verdict of another judge unless he ruled by other
than Islam, or contradicted a definite text from the Quran, Sunnah or Ijmaa’
of the companions, or it became clear that he gave a verdict that
contradicted the reality of the situation.
This article explains that the ruling of a judge cannot be annulled,
neither by himself nor by any other judge. The evidence that the ruling of the
judge is not annulled is that the companions had an Ijma’ upon it. Abu
Bakr (ra) ruled in the issues according to his Ijtihad, and Umar (ra) differed with him and did not annul his
rulings, and Ali (ra) differed with Umar (ra) in his Ijtihad and did not annul his rulings, and Ali (ra) disagreed with
both Abu Bakr (ra) and Umar (ra) and did not annul their rulings. The people of
Najran came to ‘Ali (ra) and said “O leader of the believers, the judgement is
in your hands and your pardon is with your own tongue”. He said: “Woe to you,
Umar was rightly guided and I will not reverse a judgement pronounced by Umar.”
It has been reported that Umar (ra) judged that in the shared
inheritance, the rights of brothers from the father’s side are abrogated. He
then ordered that they have a share, and then said “That sentence applies to
that case and this sentence applies to this one”, and he executed both
sentences despite the contradiction. This was mentioned by Ibn Qudamah in al-Mughni
and al-Bayhaqi from al-Hakam Bin Mas’ud al-Thaqafi. He also judged
differently in relation to the grandfather and he never reversed any of the
earlier sentences, as is mentioned by al-Bayhaqi in al-Sunan al-Kubra.
As for what has been reported about Shurayh[YUN2] having judged in the case of two paternal cousins, where
one of them was one of the mother’s brothers, that the estate should go to the
brother, this was referred to Ali (ra) who said “Bring him to me”. When he came
he said to him “Where in the Book of Allah did you find this?" He said
Allah (swt) says “But kindred by blood are nearer to one another” (TMQ 8:75), so ‘Ali (ra) said to him “Allah
also says “If the man or woman whose inheritance is in question has left
neither ascendants or dependants, but has left a brother or sister, each one of
the two gets a sixth” (TMQ
4:12), and he then reversed his ruling as is mentioned in some
narration. Ibn Qudamah replies to this in al-Mughni in the chapter of
the judiciary saying “It is not confirmed that Ali reversed his ruling, but if
it was confirmed it may be that Ali was certain that he contradicted the text
of the Quran in the verse which he mentioned and therefore he voided his
ruling”. It is confirmed that the companions used to rule in issues according
to their Ijtihad and that the Khalifah
used to differ with them in their Ijtihad in the eras of Abu Bakr (ra),
Umar (ra) and ‘Ali (ra), and none of them would annul the rulings of the other.
And it is confirmed that Umar (ra) ruled by opposite and different rulings in
single issues, and would execute all of the rulings and not reverse the first
ruling by the second one even though they were contradictory, and it is
confirmed that he said regarding this “That sentence applies to that case and
this sentence applies to this one” (mentioned by Ibn Qudamah in al-Mughni and
al-Bayhaqi from al-Hakam b. Mas’ud al-Thaqafi). This indicates the
irreversibility of the judge’s rulings. Ibn Qudamah said in al-Mughni: “As
for if his Ijtihad changed without
contradicting a text or an Ijma’, or if his Ijtihad
differed from the Ijtihad of those
before him, he should not reverse it just because it is different, for the
companions have an Ijma’ on that”.
As for what has been narrated from the message of Umar Bin al-Khattab
(ra) to Abu Musa from his words “Do not allow a judgement you passed
yesterday, which you reviewed and gained the right guidance, prevent you from
returning to the truth, for the truth is qadim (old), and to return to the
truth is better than to continue with the falsehood” as reported by
al-Bayhaqi in al-Sunan from Sa‘id Bin Abi Burda[YUN3] , and Khatib al-Baghdadi in al-Tarikh from Sa‘id
Bin Abihi, and al-Daraqutni from Abu ’l-Malih al-Hathali, what was intended in
the letter was if you passed a judgement yesterday and then realised that it
was wrong, do not let this stop you from changing it and passing a different judgement in another
case. It does not mean that you should annul yesterday’s judgement. That is why
Umar (ra) said “to return to the truth” and he did not say to
reverse your judgement. To return to the truth means to abandon the wrong
opinion and adopt the right one. Therefore, the letter does not serve as
evidence that it is permissible to annul a judgement. This is why in Islam
there is nothing called judicial precedent. In other words, there is no place
to say that in such and such a case the judgement would be so and so. If a
certain verdict was passed on a particular case, that verdict does not oblige
anyone else to judge accordingly. It is rather permitted to pass a different
judgement on a similar case by a different judge if he thinks that the new
ruling is more correct. As for the case itself, the rule of Allah (swt) would
have been applied to it, therefore the judge would be forbidden from annulling
that rule or changing it. This is why there are no courts of appeal in Islam,
and nor there is any court of cassation. The judiciary, from the point of view
of process, should be of the same level. The Shari'ah principle states: “Ijtihad
is not annulled by another Ijtihad.” So no Mujtahid could serve as
an authoritative source for another Mujtahid, and thus it would be
forbidden to have courts that annul the judgements of other courts.
However if the judge did not rule by the
Islamic Shari’ah rules, and ruled by Kufr, or by what contradicts
a definite text from the Quran, Sunnah or Ijma’ of the
companions, or what contradicts the reality of the situation, such as giving a
ruling of Qisas as a result of killing someone, and then the real killer
became apparent, then in these situations and similar the rule of the judge is
nullified. This is due to the words of the Messenger of Allah
“Whoever
introduces into our issue something that is not from it, then it is rejected” (reported by al-Bukhari and Muslim from Aishah(ra)). And it is
reported by Abu Dawud from Jabir “A man committed fornication with a
woman, so the Messenger ordered he should be lashed, then he was told that he
was married, and so he ordered him to be stoned” and Malik Bin Anas
reported in al-Muwatta “A woman who gave birth, after six months was
brought to ‘Uthman Bin ‘Affan and so he ordered her to be stoned, and so Ali
said to him – That is not to be applied upon her, Allah said in His Book “and
the bearing of him and the weaning of him is thirty months” (TMQ 46:15) and He said “Mothers shall
suckle their children for two whole years; (that is) for those who wish to
complete the suckling” (TMQ 2:233) and the pregnancy is six
months and so she is not to be stoned, and so ‘Uthman sent for her but she had
already been stoned”. And ‘Abd al-Razzaq reported from Imam
al-Thawri “if a judge ruled in contradiction to the Book of Allah, or the Sunnah of the Messenger of Allah
, or something agreed upon, then the judge after him should nullify it”.
The one who has the power to nullify these rulings is the judge of the Madhalim.
Article 84
The muhtasib is the judge who investigates all cases, in the
absence of an individual litigation, involving the rights of the public that do
not involve the hudud (proscribed punishments) and criminal acts.
This article is the definition for the judge of the hisbah, and it
is taken from the narration regarding the heap of the food, since the Messenger
found dampness in the heap of the
food and ordered that it should be placed on top of the food so that the people
could see it. Accordingly, these were the general rights of the people that the
Messenger
was looking into and judged upon
by ordering the moist food to be placed on the top of the heap in order to
remove any cheating. This encompasses all of the rights which are of this type,
and does not encompass the hudud and criminal acts, since they are not
of this nature, and because the origin here is the disputed issues between
people.
Article 85
The muhtasib has the authority to judge upon violations as soon
as he learns of them, irrespective of the location and without the need to hold
a court session. A number of policemen are put at his disposal to carry out his
orders and to execute his verdicts immediately.
This article clarifies that a judicial court would not be required for
the muhtasib to look into the case at hand, rather he passes the
judgement upon the offence the moment he is sure that it took place, and he has
the power to judge at any place and at anytime, whether in the market, in the house, while riding on the
back of an animal or in the car, or during the day or night. This is because
the evidence that confirms the need to have a judicial court in order to rule
upon a case does not apply to the muhtasib, because the narration which
confirmed this condition states “that the two disputers should sit
between the hands of the ruler” and “if the two disputing parties
sat before you” (reported
by Ahmad from Ali (ra)). This situation does not exist with the judge of the hisbah.
For there is no plaintiff and no
defendant, but rather there is a public right that has been violated or there
is a violation of the Shari’ah. Also, when the Messenger of Allah
looked into the case of the heap
of food, he
was walking in the market at the
time and the food was displayed for sale. He
did not summon the vendor to
him, but as soon as he detected the offence he dealt with it on the spot. This
indicates that the cases of hisbah do
not require a judicial court.
Article 86
The Muhtasib has the right to appoint deputies for him. They
should fulfil the requirements of the muhtasib, and he is allowed to
assign them to different places. Those deputies would have the power to carry
out the duties of the Hisbah in the areas to which they have been
assigned, and in the cases for which they have been delegated.
This article is restricted by whether the appointment of the muhtasib included
the right to appoint delegates for him; or in other words the right to appoint
others. This is if he had been appointed by the Khalifah. However, if
the appointment was made by the Supreme Judge, the clause must be approved
first, and in addition to this, the appointment of the Supreme Judge must
include a clause that gives him power to allow the judges that he appoints to
delegate others to act on their behalf, in other words, to give them the right
to have deputies. If the Supreme Judge did not have such power, then he would
not be in a position to approve such delegation, thus the muhtasib would
not be allowed to have deputies; in other words, he would not have the right
to delegate. The power of the judge to delegate on his behalf, whether it be
the muhtasib, the qadi (judge) or the judge of the Court of
Injustices (Madhalim), is not in the hands of the judge unless the Khalifah
allows him to do so or if the permission to recruit judges and to allow those appointed to
delegate were given to the Governor of the Judiciary, in other words, the
Supreme Judge. This is because the judge is appointed to the judiciary, in
other words a specific type of judiciary, which is the hisbah.
Therefore, if he were not given the right to delegate, in other words the right
to appoint a deputy for himself, he would not then possess the mandatory power
to appoint anyone. This applies to the qadi and the judge of the Court
of Injustices (Madhalim), for each of them would be appointed to the
judiciary according to the appointment clause, and they do not possess any
other power, in other words they do not have the power to appoint judges unless
it was mentioned in the contract of their appointment. For this reason, he does
not have the right to appoint deputies to perform the duties of hisbah
on his behalf, unless this was part of his contract. The same applies to the
Supreme Judge.
As for the permissibility of appointing deputies, this is because when
the Messenger of Allah
was presented with a case,
he appointed someone as a delegate for himself. Accordingly, in the incident of
the desert Arab who came to the Messenger of Allah
and informed him that his
son was working for a man and he committed adultery with the man’s wife and
asked him for the verdict, the Messenger of Allah
said at that incident, “Go
O Unays (a man from Aslam) to this man’s wife, if she admitted guilt then stone
her,” (agreed upon from
Abu Hurayrah and Zayd Bin Khalid), which indicates that the judge can send a
delegate on his behalf to judge upon an issue that he has specified for him,
and in the same way this can be for the muhtasib since he is a judge.
However, the judge must allow his deputy to deal with the case as a whole; in
other words, he must be allowed to look into the complaint and pronounce
judgement himself, if the appointment to deputise is to be considered valid.
This is because the judiciary is the conveying of the rule which is then
binding, so in this context it cannot be split, and therefore he cannot appoint
him to merely investigate without judging but rather the appointment must be
complete so that he becomes a judge and his judgement becomes valid. Even if he
did not actually pronounce a judgement, his work would be valid, since it is
not a condition for him to act as a judge - a judge could look into a case, and
before completing his work and pronouncing his judgement, he could be relieved
of his duties, and then the case would be referred to another judge who would
pass judgement. The same applies to the judge’s deputy - it is not a condition
for him to pass judgement, but he must be given the right to investigate and
pass judgement when appointed; in other words, he must be appointed as a full
judge, holding all the mandatory powers given to a judge. The same applies to
the muhtasib - he appoints deputies with powers to investigate and judge
in the cases he assigns for them, or in the areas in which he places them, if
he has been given the power to appoint deputies. The conditions for those whom
the judge appoints as his deputies are that they must be Muslim, free, just,
adult and possessing knowledge of jurisprudence in the issues which he will be
looking into; in other words the deputy of the muhtasib has the same
conditions as the muhtasib since they are both judges.
Article 87
The judge of the Court of Injustices (Madhalim) is
appointed to remove all injustices which have been inflicted upon any person
who lives under the authority of the State, irrespective of whether the person
is from the subjects of the State or not, and irrespective of whether the
injustice was committed by the Khalifah or anyone below him from the
rulers and civil servants.
This article has the definition of the judge of the Court of Injustices
(Madhalim) and the basis for the Judiciary of Injustices (Madhalim)
is what was narrated from the Prophet
when he described any act
carried out by the ruler on other than the truth while ruling over the subjects
as being an injustice (Madhlamah). Anas reported: “Prices soared
during the time of the Messenger of Allah
so they said to him ‘O Messenger
of Allah why don't you fix the prices?’ He said 'Truly Allah is the Recipient,
the Extender of wealth, the Provider, and the Pricer, and And verily I hope
that I will meet Allah without having anyone claiming against me a Madhlamah (complaint) I inflicted on him
in blood or wealth,'” (reported by Ahmad). So he
considered price fixing as an
injustice (Madhlamah), because if he
had done it he
would have done something that he
had no right to do. In the same
manner, he
also made the issues that affect
the public rights which the State organises for the people as part of the
injustices (Madhalim), such as the irrigation of farming lands by common
water by taking turns. The Messenger of Allah
looked into the dispute over
irrigation that took place between al-Zubayr Bin al-‘Awwam (ra) and a man of
the Ansar. He
witnessed it personally and said
to al-Zubayr (ra): “You irrigate first O Zubayr and then the Ansari,” (agreed upon and the wording is from
Muslim). Therefore, any injustice (madhlama) that occurs against any person, whether perpetrated by the ruler,
or as a result of the State’s organisations or orders, would be considered as
an injustice (madhlama), as understood from the two narrations. The
matter would be referred to the Khalifah to rule upon it or whoever
deputises for the Khalifah from the judges of the Court of Injustices (Madhalim).
Article 88
The judge of the Court of Injustices (Madhalim) is appointed by
the Khalifah, or by the Supreme Judge. His accounting, discipline and
removal are done by the Khalifah or by the Supreme Judge if the Khalifah
had given him the powers to do so. However he cannot be removed during his
investigation of a Madhlamah against the Khalifah, or the
executive assistants, or the Supreme Judge; rather the power to remove him in
these circumstances is for the Court of Injustice Acts (Madhalim).
The judge of Madhalim
is appointed by the Khalifah, or by the Supreme Judge. This is
because the Madhalim is part of the judiciary, for they are the
conveying of the Shari’ah rule by way of enforcement, and all the types
of judges must be appointed by the Khalifah. This is confirmed by the
Messenger of Allah’s
actions since he
used to appoint the judges as was explained
previously. All this means that it is the Khalifah who appoints the
judge of Madhalim, yet the Supreme Judge could appoint the judge of Madhalim
if the Khalifah made provisions for this in his appointment clause.
It is allowed for the main court of injustices (mahkamat al-Madhalim) in
the centre of the State to examine only the Madhalim that occurred from
the Khalifah, his assistants and the Supreme Judge. However, the
branches of the court of injustices in the provinces examine the Madhalim that
occur from the governors and the other State employees. The Khalifah has
the right to give the Central Court of Injustices the authority of appointment
and removal of the Madhalim judges in the branch Madhalim courts
that come under its authority in the provinces.
The Khalifah
is the one that appoints and removes the members of the main court of
injustices in the centre of the State. As for the removal of the head of the
central court of injustices - in other words the Madhalim judge
responsible in examining the removal of the Khalifah - it should in
principle be the right of the Khalifah to remove him, as it is he who
has the right to appoint him like all the judges. However, it is possible, if
the power of removing the judge were left to the Khalifah during a case,
then this power would lead to something prohibited. In such a situation the
principle of “the means that leads to something prohibited (haram) are
prohibited” would apply. The strong likelihood of such a scenario arising
is enough for applying this principle.
This situation is
when there is a case against the Khalifah or his assistants or his
Supreme Judge (in case the Khalifah was given the mandatory power of
appointing and removing the Madhalim judge). This is because keeping the
mandatory power of removing the Madhalim judge in the hands of the Khalifah
in this case would influence the verdict by the judge and accordingly it would
limit the capability of the judge to remove the Khalifah or his
assistants if deemed necessary. This mandatory power of removing the judge in
this case is a means for haram, or in other words leaving it in the hand
of the Khalifah in this case is prohibited.
As for the remaining cases, the rule remains as it is; in other words, the
power of removing the Madhalim judge is left to the Khalifah,
just like his appointment.
Article 89
There is no limit to the number of judges that can be appointed for the
Court of Injustice Acts (Madhalim), rather the Khalifah can
appoint as many as he may deem necessary to eradicate the Madhalim (injustice
acts), whatever that number may be. Although it is permitted for more than one
judge to sit in a court session, only one judge has the authority to pronounce
a verdict. The other judges only assist and provide advice, and their advice is
not binding.
The evidence that the judge of the Court of Injustices (Madhalim)
can be more than one is that the Khalifah is permitted to appoint one or
more deputies to act on his behalf. However, if there are a number of judges of
the Court of Injustices (Madhalim), their power to look into the
injustices (Madhalim) cannot be divided, so each one of them would have
the right to look into the cases of injustices (Madhalim). The Khalifah
is however allowed to specify a judge for the Court of Injustices (Madhalim)
in one province, or to specify him to a certain type of case, because he has
the right to give a general governorship over the injustices (Madhalim)
or a specific governorship if he wished. He can give a governorship over the
whole of the State, or over a city or region, as he sees fit.
As for the fact that when the judge of the Court of Injustices (Madhalim)
looks into a case he should look into it on his own, this is because of what
was mentioned earlier regarding the prohibition of having numerous judges in a
single case, while it is permitted to have more than one judge in the same
area. However, it is permitted for other judges of the Court of Injustices (Madhalim)
to sit with him in court in a consultative capacity only, and they would not
participate in the verdict. This is referred to his contentment and choice – so
if he did not prefer that and opposed their sitting with him then they would
not do so, since no one who distracts the judge from looking into his work
should sit with him. However, if he left the court session he should consult
them in the issue.
Article 90
The Court of Injustice Acts (Madhalim)
has the right to remove any ruler or civil servant in the State, in the same
way that it has the right to remove the Khalifah, if the elimination of
the Madhlamah required this removal.
This article clarifies the powers of the Court of Injustices (Madhalim)
with respect to removal of the rulers, since the ruler is appointed by a
contract, known as the Contract of Assignment which is also called the Contract
of Empowerment. The Khalifah has the right of the governorship which is
the ruling, and he has the right of empowerment which is the appointment, and
the empowerment is a contract that can only be completed with direct wording.
Therefore the removal of the ruler appointed by the Khalifah would be a
termination of that contract, and the Khalifah undoubtedly reserves that
right since the Messenger
appointed the governors and
removed them. The righteously guided Khulafaa’ also appointed the
governors and removed them. In the same manner the Khalifah could also
delegate to those whom he appointed the right to appoint and remove. However, the Court of
Injustices (Madhalim) does not have the right to remove the rulers on
behalf of the Khalifah, for it does not act on his behalf in appointing
and removal; it rather acts on his behalf in looking into the injustices (Madhalim).
So if the presence of that ruler in his province was an injustice (madhlama),
the court has the right to remove that injustice (Madhlamah); in other
words, it has the right to remove that ruler from office. Therefore, its power
to remove the rulers is not done on behalf of the Khalifah, rather it is
only removing the injustice (Madhlamah), and accordingly those who have
been ruled upon to be removed are removed even if the Khalifah is not
pleased with it, since his removal in this situation is the ruling upon the
removal of an injustice (Madhlamah), and this applies to everyone
including the Khalifah, since the ruling of the judge is a ruling for
everyone.
As for its powers to remove the Khalifah, in the same manner it is
ruling upon the removal of an injustice (Madhlamah), since if one of the
circumstances where the Khalifah is removed automatically or
necessitated his removal occurs, then his remaining in office would be an
injustice (Madhlamah). And it is the Court of Injustices (Madhalim)
which rules upon the removal of the injustices (Madhalim), so it is
the one who rules upon his removal. Therefore, the judgement of the Court of
Injustices (Madhalim) to remove the Khalifah would be a judgement
aimed at removing an injustice (Madhlamah), and so if removal of the Madhlamah
necessitated his removal, the judgement for his removal would be given.
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