Definition
The Khilafah’s judiciary is responsible for issuing judgments that are enforced by the state. Its responsibility covers three main areas:
1. Settling disputes between people
2. Preventing whatever may harm the rights of the community
3. Settling the disputes between people and any person who is part of the government, whether the Khaleefah, his cabinet, civil servants or any other person.1
Types of Judges
There are three types of judges each responsible for one of the areas above.2
1. Qadi (judge) – responsible for setting disputes between people
2. Muhtasib (inspector) – responsible for settling any breach of law that may harm the rights of the community
3. Qadi Mazalim (Government Investigations Judge) – responsible for settling disputes between the people and the government
The Qadi
The evidence for the Qadi is derived from the actions of the Prophet (saw) when he appointed Mu’adh ibn Jabal to Yemen as a Qadi.
Narrated Mu’adh ibn Jabal: Some companions of Mu’adh ibn Jabal said: When the Messenger of Allah (saw) intended to send Mu'adh ibn Jabal to the Yemen, he asked: “What will you do if a matter is referred to you for judgement?” Mu’adh said: “I will judge according to the Book of Allah.” The Prophet asked: “What if you find no solution in the Book of Allah?” Mu’adh said: “Then I will judge by the Sunnah of the Prophet.” The Prophet asked: “And what if you do not find it in the Sunnah of the Prophet?” Mu'adh said: “Then I will make Ijtihad to formulate my own judgement.” The Prophet patted Mu’adh’s chest and said “Praise be to Allah who has guided the messenger of His Prophet to that which pleases Him and His Prophet.”3
There are seven conditions for the post of Qadi.4 These are:
1. Muslim
2. Free
3. Mature
4. Sane
5. Just (‘Adl)
6. Faqih (learned scholar)
7. Aware of how to apply the rules to the events
Therefore the Qadi can be a man or a women.
The Qadi can only pass judgment in a judicial court. This is derived from the following hadith.
Narrated Abdullah ibn az-Zubayr: “The Messenger of Allah has ordered that the two disputing parties should sit before the judge.”5
The Presumption of Innocence exists in an Islamic judicial court where the defendant is innocent until proven guilty. The responsibility of providing the evidence is on the plaintiff (the one who initiates the law suit) not the defendant. This is derived from the following hadith.
The Messenger of Allah (saw) said: “It is the plaintiff who should provide the evidence, and the oath is due on the one who disapproves.”6
Different types of courts can be established depending on the case. There can be specialist courts for financial disputes or family disputes. There can also be different levels of courts depending on the nature of the crime. Al-Mawardi mentions the following example from Basra in Iraq.
Abu ‘Abdullah Az-Zubayri said; ‘For sometime, the ‘Umara here in Basra used to appoint a judge at the central Masjid (Al-Masjid Al-Jami’), and they called him the judge of the Masjid. He used to judge in disputes involving sums not exceeding twenty Dinars and two hundred Dirhams, and he used to impose Nafaqah (maintenances). He would not exceed his boundaries nor the duties entrusted to him.’7
The Muhtasib
The evidence for the Muhtasib is derived from the following hadith.
The Messenger of Allah (saw) passed by a heap of food. As he put his hand inside it his fingers got wet, so he said to the vendor: “‘What is this?’ He said; ‘It was dampened by the rain O Messenger of Allah.’ He (saw) said; ‘Why don’t you put it on the top so that people can see it? He who cheats does not belong to me.’”8
The Prophet (saw) passed a judicial judgement on the trader that he must display the damp food on top so that people can see it. The Muhtasib is an inspector who traditionally went around the markets checking the weights and measures and investigating the traders’ transactions.
The conditions of the Muhtasib are the same as those for the Qadi.
The Muhtasib is not restricted to financial transactions but his remit is any violation of the right of the community such as someone playing loud music at night and disturbing the neighbours. Any crimes witnessed by the Muhtasib that fall under the Hudood (penal code) or Jiniyat (criminal law) are outside his remit. These cases would be investigated by the Qadi in a judicial court.
There is no plaintiff or defendant when the Muhtasib gives his judgement only a right of the community has been violated. Therefore the hadith that restricts judgement to a judicial court does not apply to the Muhtasib. The Muhtasib can give judgement anywhere within the jurisdiction assigned to him.
Police officers will accompany the Muhtasib who will carry out the punishment issued by the Muhtasib such as an on the spot fine for dropping litter.
The Qadi Mazalim
The evidence for the Qadi Mazalim is derived from the following verse of the Holy Qu’ran.
“O you who believe obey Allah and obey the Messenger and those in authority from amongst you. If you disputed over a matter refer it to Allah and the Messenger.”9
If any dispute arises between the citizens of the state and those in authority then it must be referred to Islam. This necessitates the appointment of a special Qadi that passes judgement on disputes arising with those in authority.
The unjust acts perpetrated by the state are called Mazlema. This is derived from the following hadith.
Anas reported: “Prices soared during the time of the Messenger of Allah (saw) so they said to him; ‘O Messenger of Allah why don’t you introduce pricing?’ He said; ‘Verily Allah is the Recipient, the Extender of wealth, the Provider, and the Pricer, and I hope that I will meet Allah (swt) without having anyone accusing me of having perpetrated a Mazlema against him be it in blood or in money.’”10
Pricing is where the state intervenes to control the prices of goods in the event of high inflation. The Prophet (saw) described the act of pricing as a Mazlema.
The conditions of the Qadi Mazalim are the same as those of the Qadi except two extra conditions are added.
1. Male
2. Mujtahid (jurist)
The post of the Qadi Mazalim combines judicial and ruling responsibilities so this restricts the post to men. The nature of the crimes committed by the state requires a Qadi who can address any new issue that arises by the state. Therefore the Qadi Mazalim must also be a mujtahid.
The Post of Qadi Mazalim is discussed in the section below on judicial independence.
Head of Judiciary
The Qadi ul-Qudah (Chief Justice) is head of the judiciary. He has the power to appoint and remove all judges in the state. There are exceptions to this concerning the Qadi Mazalim which are explained in the judicial independence section below. The Khaleefah is the one who appoints the Qadi ul-Qudah and removes him.
The conditions for the Qadi ul-Qudah are the same as those of the Qadi Mazalim.
Judicial Independence
There are two types of judicial independence. Institutional and decisional independence. Institutional independence means the judicial branch is independent from the executive and legislative branches. Decisional independence is the idea that the judge should be able to decide the outcome of a trial solely based on the law and case itself, without letting the media, politics or other things sway their decision.11
The Khilafah’s judiciary enshrines both institutional and decisional independence to a level that far exceeds any of the democratic states today.
Institutional independence
The Khilafah has an independent high court called the Court of Unjust Acts (mahkamat mazalim). It is presided over by the most eminent and qualified judges (Qadi Mazalim) in the state and granted extensive powers by the Shari’ah. It has the power to remove any official of state regardless of their role or rank, including, most importantly, the Khaleefah if he persists in pursuing a path that lies outside of the terms of his Bay’ah.
Ordinary citizens who have a complaint against the state can register it with the Court. The Council of the Ummah can also refer disputes arising between itself and the Khaleefah to the Court.
What is unique about the Court of Unjust Acts, compared to other judicial courts, is that the Government Investigations Judge (Qadi Mazalim) has investigatory powers and does not require a plaintiff to register a complaint before launching an investigation. This court will therefore constantly monitor the actions of all officials of the state and the legislation adopted to ensure it conforms to Shari’ah and no oppression (mazlama) is committed against the people.12
The executive counterbalance to the power of this Court is by the Khaleefah in principle having the power to appoint and remove the Chief Justice and any judges below him. The Khaleefah can either give his Chief Justice the power to appoint all the mazalim judges or the Khaleefah himself can appoint them.13
In the times of the Sultans of Egypt and Ash-Sham the Court of Unjust Acts was known as the ‘House of Justice’ (Dar al-‘Adl). The Sultan Al-Malik Al-Salih Ayyub appointed deputies to act on his behalf in the house of justice, where they sat to remove the Mazalim, and to gather the witnesses, judges and the Faqihs.14
Nasser O. Rabbat, Professor of Islamic Architecture at MIT describes the historical workings of the Dar al-‘Adl.
This unique institution, which may be best translated in today’s context as “palace of justice,” was initially conceived for the qada al-mazalim service that is, for the public hearings held once or twice each week and presided over by the ruler himself or his appointed deputies to review and redress grievances submitted by his subjects. The earliest known dar al-‘adl (pl. dur al-‘adl) was built ca. 1163 by Nur al-Din Mahmud ibn Zanki is his capital Damascus, and the last one was constructed by the Mamluk Sultan al-Nasir Muhammad ibn Qalawun (r. 1294-1341, with two interruptions) at the Citadel of the Mountain (Qal’ at al-Jabal) in Cairo in 1315 (it was rebuilt in 1334). Three more dur al-‘adl are known to have been constructed between these two dayes: one in Aleppo in 1189 by al-Zahir Ghazi, the son of Salah al-Din, one by al-kamil Muhammad in the Citadel of Cairo ca. 1207, and one by al-Zahir Baybars in 1262 on the slope of the spur upon which the Citadel of Cairo was built. After this no more dur al-‘adl seem to have been built until modern times, then the palace of justice was introduced.15
Decisional independence
The Shari’ah explicitly states that a judge must give an honest, knowledgeable and unbiased judgement on a case.
The Prophet (saw) said: “Judges are of three types, one of whom will go to Paradise and two to Hell. The one who will go to Paradise is a man who knows what is right and gives judgment accordingly; but a man who knows what is right and acts tyrannically in his judgment will go to Hell; and a man who gives judgment for people when he is ignorant will go to Hell.”16
The Shari’ah also specifies how the judge should act within the judicial court sitting.
The Messenger of Allah (saw) said: “Whoever Allah tests by letting him become a judge, should not let one party of a dispute sit near him without bringing the other party to sit near him. And he should fear Allah by his sitting, his looking to both of them and his judging to them. He should be careful not to look down to one as if the other was higher, he should be careful not to shout to one and not the other, and he should be careful of both of them.”17
Al-Mawardi explains some of the specific qualities needed by the Qadi Mazalim due to his important position within the state.
Judicial investigation of wrongs or abuses is concerned with leading those who have committed wrongs to just behaviour by instilling fear in them, and with dissuading litigants from undue obstinacy in their disputes by instilling a feeling of respect. Thus among the qualities demanded of the judicial investigator is that he be of imposing stature, that he ensures action follows his words, that he commands great respect, is manifestly correct in his keeping within moral bounds, restrained in his appetites, and possessed of great scrupulousness: he needs to have the strength of the law-enforcement officers, and the firmness of the qadis in their judicial tasks and to combine the qualities of these two types of person, so that by the majesty of his bearing he is able to execute any command with respect to both parties.18
To ensure the Qadi Mazalim is free from political influence the Shari’ah has restricted the executive powers of the Khaleefah regarding the Qadi’s removal from office. If the Qadi Mazalim is currently investigating a case against the Khaleefah, Delegated Assistant (Mua’win ut-tafweedh) or the Chief Justice (Qadi al-Qudah) then the Khaleefah cannot remove the Qadi Mazalim from his post. The evidence for this is the Shari’ah principle, ‘the means that leads to haram is itself haram.’19
A question may arise that if the Qadi Mazalim issues a judgement against the Khaleefah can the Khaleefah abuse his authority and overturn the ruling?
There is no concept in the Khilafah of a ‘Pardon’ for crimes committed as exists in the west. The US constitution allows the President to Pardon all crimes except impeachment.
Article II, Section 2 states that the President: shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.
This gives the US President huge judicial power in overturning court rulings or even preventing prosecutions from taking place. The most famous ‘misuse’ of this power was by Gerald Ford in 1974. After Richard Nixon resigned from office due to the Watergate scandal his Vice-President Gerald Ford assumed the Presidency. In a televised address to the nation on 8 September 1974 President Ford gave Nixon a full and unconditional pardon for his part in the Watergate scandal, hence preventing any further judicial proceedings against him. Critics claimed that this was a ‘corrupt bargain’ between the two men. Nixon would resign giving Ford the Presidency in return for Ford giving Nixon a full pardon.20 Either way such an incident can never take place in the Khilafah.
Once a judge (qadi) has passed a judgement on a matter then this ruling cannot be overturned by anyone in the state including the Khaleefah.21
Having said this, there is an appeal process for those judgements someone believes have been made on a basis other than Shari’ah or when new evidence comes to light that places doubt over the original witness testimonies. For example if a witness in a murder trial later admits he lied or the real murderer confesses then this judgement will be overturned. The Court of Unjust Acts is the appeal court for such cases.22
The Khilafah’s judiciary is responsible for issuing judgments that are enforced by the state. Therefore once the Qadi Mazalim has issued a judgement against the Khaleefah it MUST be enforced by the institutions of state such as the army, police or state treasury (Bait ul-Mal). The Khaleefah cannot overturn the ruling under any circumstances and he will be forced if necessary to submit to it.
As an example if the Khaleefah introduced a new taxation to build a grand, new mosque to celebrate his 60th birthday, as King Hassan in Tunisia did when he spent $800 million on the Hassan II mosque in Casablanca, then the Court of Unjust Acts has the power to scrap this taxation. The Bait ul-Mal (State Treasury) would be forbidden from imposing this taxation and the Khaleefah would have no power whatsoever in this matter.
Ibn ‘Umar said that when ‘Umar ibn al-Khattab was in need, he used to go to the man in charge of the bait ul-mal and seek a loan from him. Often he might be in difficulty and the man in charge of the public treasury would come to him, seeking repayment of the debt and would oblige him to pay it, and ‘Umar would be evasive to him. Then often ‘Umar would receive his stipend and so pay his debt.23
Many examples exist within Islamic history to illustrate the decisional and political independence of judges within the Khilafah.
The Qadi Shurayh said: When Ali was setting out to Siffin, he found that he was missing a coat of armour of his. When the war was over and he returned to Kufah, he came across the armour in the hands of a Jew. He said to the Jew, “The armour is mine; I have not sold it or given it away.” The Jew said, “It is my armour and it is in my hand.” He said, “Let us go to the Qadi.” Ali went first, sat beside Shurayh and said, “If it was not because my opponent is a Jew, I would have sat beside him in the gathering, but I heard the Prophet (saw) saying, “Humiliate them, since Allah has humiliated them.” Shurayh said, “Speak Amir al-Muminin.” He said, “Yes. This armour which this Jews has is my armour; I did not sell it and I did not give it away.” Shurayh said, “What do you say Jew?” He said, “It is my armour and it is in my possession.” Shurayh said, “Do you have any evidence Amir al-Muminin?” He said, “Yes. Qanbar and al-Hasan will witness that the armour is mine.” Shurayh said, “A son’s witness it not acceptable on behalf of his father.” Ali said, “A man from the Garden, and his testimony is not acceptable? I heard the Prophet (saw) saying, ‘Al-Hasan and al-Hussein are the two lords of the youth of the people of the Garden.’” The Jew said, “The Amir al-Muminin brought me before his Qadi, and his Qadi gave judgement against him. I witness that this is the truth, and I witness that there is no god but Allah and I witness that Muhammad is the messenger of Allah, and that the armour is your armour.”24
In the time of the Abbasid Khilafah, it is narrated that Khaleefah al-Ma’mun (813 – 833CE, 191AH), used to personally sit in the court for grievances on Sundays. On one such day a women in rags confronted him complaining that her land had been seized.
Al-Ma’mun then asked her: “Against whom do you lodge a complaint?” She replied: “The one standing by your side, al-‘Abbas, the son of the Amir of the Believers.” Al-Ma’mun then told his Qadi, Yahya ibn Aktam, (while others say that it was his wazir Ahmad ibn Abi Khalid), to hold a sitting with both of them and to investigate the case – which he did in the presence of al-Ma’mun. When the women raised her voice and one of the attendants reprimanded her, al-Ma’mun said: “Leave her, for surely it is the truth which is making her speak, and falsehood which is causing him to be silent,” and he ordered that her land be restored to her.25
Draft Constitution Articles governing the Khilafah’s Judiciary 26
Article 66
Judgeship is the pronouncement of the verdict in a binding way. It settles the disputes among people, prevents that which harms the community's rights and eliminates the disputes arising between people and members of the ruling apparatus – rulers and employees – including the Khaleefah and those of lesser rank.
Article 67
The Khaleefah is to appoint a chief judge authorised to appoint, discipline, and dismiss judges within the administrative regulations. The chief judge must be a mature Muslim male who is sane, just and a jurist. The remaining employees of the courts come under the domain of the directorate that administers the court's affairs.
Article 68
There are three types of judges. They are:
1. The judge who settles the disputes among people in transactions and punishments;
2. The muhtasib who settles the violations of the community's rights; and
3. The judge of the Court for the Unjust Acts (Mahkamt ul-Mazalim) who settles disputes between people and officials of the State.
Article 69
All judges must be qualified by being Muslim, mature, free, sane, 'adl, and a jurist being aware of how to apply rules to incidents. Judges of Mahkamt ul-Mazalim must additionally be qualified with being male and a mujtahid, i.e., a person capable of making ijtihad.
Article 70
The judge and the muhtasib 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 cases. On the other hand, the judge of the Mahkamt ul-Mazalim must be given a general appointment to pronounce judgement on all problems, but in terms of location he may be appointed to a particular location or all over the State.
Article 71
The courts should be comprised of only one judge who has the authority to pronounce verdict. One or more judges are however permitted to accompany him with only the authority of advising and assisting. They have no authority to pronounce verdict and their opinion is not binding on the judge who has the sole authority to give judgement.
Article 72
The judge cannot pronounce verdict except in a court session. Evidence and oaths are not considered except in a court session as well.
Article 73
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 authorised to judge the other cases.
Article 74
There are no courts of appeal or cassation, because all judgements are of equal standing. Thus, once the judge has pronounced the verdict it becomes effective and no other judge's decision can overturn it, unless he judged with other than Islam , disagreed with a definite text in the Qur'an, Sunnah or Ijma'a as-sahabah or it appeared that he judged in contradictory to a true reality.
Article 75
The muhtasib is the judge who investigates all cases, in the absence of an individual litigation, involving the rights of the public that are non-criminal and not involving the hudud (i.e., the punishments.)
Article 76
The muhtasib has the authority to judge upon violations, wherever is the location one he acquired knowledge of these violations without the need to hold a court session. A number of policemen are put at the muhtasib's disposal to carry out his orders and to execute his verdicts immediately.
Article 77
The muhtasib has the right to appoint deputies to himself, that possess the same qualifications as the muhtasib, and to assign them to various locations where they exercise the same authority as the muhtasib in the location and the cases assigned to them.
Article 78
The judge of the Mahkamt ul-Mazalim is appointed to remove all unjust acts, committed by the Khaleefah, governor(s), or any official of the State, that have been inflicted upon anyone – whether that person is a citizen or not – living in the domain of the State.
Article 79
Judges in the Mahkamt ul-Mazalim of Injustice are appointed by the Khaleefah or the chief judge. As for their accounting , disciplining and dismissal, this is carried by the Khaleefah, the Mahkamt ul-Mazalim or the chief judge if authorised by the Khaleefah to do so. However, it is not allowed to dismiss him during his investigation in an unjust act against the Khaleefah, mua'win ut-tafweedh or the chief judge.
Article 80
There is no limit on the number of judges that can be appointed for the Unjust Acts. The Khaleefah can appoint as many as he may deem necessary to eradicate the unjust acts. 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 on the judge authorised to pronounce the verdict.
Article 81
The Mahkamt ul-Mazalim has the authority to dismiss any ruler, governor and official of the State, including the Khaleefah.
Article 82
The Mahkamt ul-Mazalim has the authority to investigate any case of iniquity, whether it be connected with officials of the State, the Khaleefah's deviation from the divine rules, interpretation of the legislative texts in the constitution, canons and divine rules within the framework adopted by the Khaleefah or the imposition of a tax, etc.
Article 83
The judicature of the Unjust Acts is not restricted by a court session or the request of the defendant or the presence of the plaintiff. It has the authority to look into any case of injustice even if there is no plaintiff.
Article 84
Everyone, both defendant and plaintiff, has the right to appoint a proxy, whether male or female, Muslim or not, to act on his or her behalf. There is no distinction in this matter between the mandator and the proxy. The proxy has the right to be appointed on a salary according to the terms agreed upon between the mandator and his or her proxy.
Article 85
It is permitted for the one who holds office, such as the Khaleefah, wali, official, muhtasib and judge of the Court for the Unjust Acts, or persons who have been vested with a specific responsibility, like a custodian or guardian, to appoint a person to his position as a proxy – within the bounds of his authority – for the purpose of appearing on his/her behalf as the plaintiff or defendant, and for no other reason.
References
1 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ translation of Nizam ul-Hukm fil Islam, Khilafah Publications, Fifth Edition, p. 202
2 Ibid, p. 204
3 Abu Dawood, Book 24, Hadith 3585
4 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ Op.cit., p. 208
5 Abu Dawood, Book 24, Hadith 3581; Musnad Ahmed
6 Al-Baihaqqi
7 Abu’l-Hasan al-Mawardi, ‘Al-Ahkam as-Sultaniyah,’ (The Laws of Islamic Governance), Ta Ha Publishers, p. 111
8 Sahih Muslim on the authority of Abu Hurayra
9 Holy Qur’an, Chapter 6, Surah An-Nisa’a, Verse 59
10 Musnad Ahmad
11 A Legal framework primarily used in the US for discussing the judicial branch of government
12 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ Op.cit., p. 220
13 Ibid, p. 221
14 Al-Maqreezi, ‘Al-Sulook Ila Ma’arifati Douwal Al-Mulook,’ (The way to know the States of the kings)
15 Nasser O. Rabbat, ‘The Ideological Significance of the Dar al- Adl in the Medieval Islamic Orient,’ International Journal of Middle East Studies, Vol. 27, No. 1 (Feb., 1995), pp. 3-28
16 Sunan Abu-Dawud, Book 24, Number 3566: Narrated Buraydah ibn al-Hasib
17 Baihaqi, Darqutni, Tabarani
18 al-Mawardi, Op.cit., p. 116
19 Taqiuddin an-Nabhani, ‘The draft constitution of the Khilafah State,’ Op.cit., Article 15
20 CBS News, 27 December 2006, http://www.cbsnews.com/stories/2006/12/27/politics/main2299880.shtml
21 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ Op.cit., p. 212
22 Ibid.
23 Jalal ad-Din as-Suyuti, ‘History of the Khalifahs who took the right way,’ translation of ‘Tarikh al-Khulafa,’ Ta Ha Publishers, p. 139
24 Ibid, p. 193
25 al-Mawardi, Op.cit., p. 128
26 Taqiuddin an-Nabhani, ‘The draft constitution of the Khilafah State. The Introduction and the incumbent reasons,’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah