Judicial System in of Islam

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R EAL CHANGE


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HUKM OF ALLAH

Quran:

Sunnah


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MO R E F R OM QU R AN


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J USTICE

DEFINITION ADMINIST R ATION

What is Justice? What is a crime? When is it a crime? How is crime proven?

Rules of Evidences Rules of witnesses

What is the correct punishmentfor a crime?

Can a crime be pardoned?

Can one be immune fromcrime?

Attributes Simplicity Speed Competence

Deliverance Nature of dispute

Between individual andindividual

Between individual and Society Between individual and State

Organization


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J USTICE

JUSTICE is the opposite of ZULM.And Zulm is depriving one of his/her

RIGHT


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TYPES OF J USTICE

DEVINE MAN MADE

IslamRevealed by Al Knowing Allah (swt)

Pakistan, USA, etc.Made by interest groups, lobbyists,political parties, pressure groups andothers specialist in creating consent.


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C R IME

ISLAM MAN MADE

Allah (swt) alone is the one withthe power and authority to definean act as crime (Halal and Haram).

Theft is Haram but when will anact be called theft

Only if Not one of the three Nisab is met 2 witnesses from the people of Adl Taken from a secured place

Not needy Not from next of kin

Institutions are established toreflect designed consent.Different nations have deviseddifferent mechanisms to definelawful and unlawful (Haram andHalal).

Riba/intrest/sood are lawful. LFO; Giving military bases, air

space, intelligence to an enemywas legislated to be lawful.

NRO; Murders, rape, abduction,loot, plunder, theft and all otherheinous acts


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ADMINIST R ATION

Speedy Simple

competent


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NATU R E OF DISPUTES

Between individual and individual Between individual and Society Between individual and State

Accordingly there are 3 types of judges

Qadi Khasoomat

Muhtasib

Qadi Mazalim


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TYPES OF J UDGES

Qadi ; responsible for settling disputesbetween people.

Muhtasib ; responsible for settling anybreach of law that may harm the rightsof the community.

Mazalim Qadi ; responsible for settling disputes between the people and thegovernment


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QADI

Different types of courts can be established depending on the case. There can be specialist courts for financialdisputes or family disputes. There can also be differentlevels of courts depending on the nature of the crime.

Settles dispute between people

There can also be different levels of courts depending on size of the claim.

SimpleQuick

Competent


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MUHTASIB

He can give judgment anywhere within the jurisdiction assignedto him.

There is no plaintiff or defendant when the Muhtasib gives his

judgment when ever a right of the community has beenviolated.

his remit is any violation of the right of the community such asplaying loud music at night, blocking traffic, selling fraudulently,

etc. Police officers will accompany him who will carry out the

punishment issued by the Muhtasib on the spot . the Hudood (penal code) or Jiniyat (criminal law) are outside his

remit.

Protecting the right of the community


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MUHTASIB


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MAZALIM COU R TS

The Khilafah state has an independent courtcalled the Court of Unjust Acts (mahkamat

mazalim). It is presided over by the most eminentand qualified judges ( Qadi Mazalim) in the stateand granted extensive powers by the Shariah.

The unjust acts perpetrated by thestate are called MAZLEMA. Andhence the name MAZALIM Courts

Settles disputes between the citizens of the state and government


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MAZALIM COU R TS It has the power to remove any official of state regardless of their role or

rank, including, most importantly, the Khalifah if he persists in pursuing apath that lies outside of the terms of his Bayah.

Ordinary citizens who have a complaint against the state will be registered

with the Court.

The Council of the Ummah can also refer disputes arising between itself andthe Khalifah to the Court.

What is unique about the Court of Unjust Acts is that the Qadi Mazalim hasinvestigatory powers and can open an investigation without a plaintiff.

The court constantly monitors the actions of all officials of the state and alladopted laws to ensure it conforms to Shariah and that no oppression(mazlama) is committed against the people.


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Dar al-Adl as represented by Robert Hay in his Illustrations of Cairo (1840).


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O R GANIZATION

Qadi ul- Qadah The Qadi ul- Qudah (Chief Justice) is head of the

judiciary. He has the power to appoint andremove all judges in the state. There areexceptions to this concerning the QadiMazalim.

The Khalifah is the one who appoints orremoves the Qadi ul- Qudah.


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QUALIFICATIONS

Qadi1. Muslim

2. Free

3. Mature4. Sane

5. Just (Adl)

6. Faqih (learnedscholar)

7. Aware of how toapply the rules tothe events

Muhtasib1. 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

Qadi Mazalim1. Muslim2. Free3. Mature

4. Sane5. Just (Adl)6. Faqih (learned

scholar)7. Aware of how to

apply the rules tothe events

MaleMujtahid


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INDEPENDENCE OF J UDICIA R Y

Institutional independence Khalifah cannot remove Qadi Mazalim when under

investigation

Decisional independence No Immunity No Pardon No Appeal


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R EFE R ENCES

1 Taqiuddin an-Nabhani, The Ruling System in Islam, translation of Nizam ul-Hukm filIslam, Khilafah Publications, Fifth Edition, p. 2022 Ibid, p. 2043 Abu Dawood, Book 24, Hadith 35854 Taqiuddin an-Nabhani, The Ruling System in Islam, Op.cit., p. 2085 Abu Dawood, Book 24, Hadith 3581; Musnad Ahmed6 Al-Baihaqqi7 Abul-Hasan al-Mawardi, Al-Ahkam as-Sultaniyah, (The Laws of Islamic Governance),TaHa Publishers, p. 1118 Sahih Muslim on the authority of Abu Hurayra9 Holy Quran, Chapter 6, Surah An-Nisaa, Verse 5910 Musnad Ahmad11 A Legal framework primarily used in the US for discussing the judicial branch of government12 Taqiuddin an-Nabhani, The Ruling System in Islam, Op.cit., p. 22013 Ibid, p. 221


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14 Al-Maqreezi, Al-Sulook Ila Maarifati Douwal Al-Mulook, (The way to know the States of thekings)

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. 11619 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 theincumbent reasons, translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatula

Judicial System in of Islam

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