It's been over seven months, with 45,000+ civilians killed in P41estine the majority of whom are women and children. Similarly with Muslims worldwide (Burma, Kashmir, Uygurs in East Turkestan etc..), and the silence of "Muslim" rulers is deafening. The only solution is for Muslims to mobilize their armies and unite under a single umbrella of Khilafah, which is the promise of Allah SWT. If you are in a position of power, please raise your voice. If you can't do much, please consider donating to Palestine Red Crescent Society or any other charity organisations which you truly trust, JazakAllah khairan.

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Islamic Ruling System

Islamic Ruling System (94)

 

 

The first edition of the book The Ruling System was written in the early 1950’s CE.Western culture had a great effect on the minds of the educated sons of the Muslims. One of its effects, which dominated their thinking, was that Islam is a spiritual religion that does not have a system that can solve the problems we face today, that there was no ruling system for the state, and the state that Islam had was merely religious and spiritual.

 

Those undertaking the work for Islam used to call for it with general thoughts that were not crystallised. They lacked the clarity in showing Islam as a complete system for life, state and society. They used to call for a return to Islam in an open and general manner without them having a clear vision in their minds as to what the systems of Islam were or the manner in which they were going to restore the ruling by Islam. The fact that ruling by what Allah has revealed could not be restored without the Khilafah was absent from their da’wah. That is why establishing the Khilafah and reinstating the ruling by what Allah has revealed did not find a place in their program of work.

 

At such a time a structure undertook the study of the situation of the Ummah at her present time and the condition she had reached. And it studied her history, power and the authority she had in the State that was the leading state in the world. It was a state that was established on the Islamic ‘aqeedah and Ahkam Shar’iah that emanate from it and which the State apply, implement and convey it as a Message to the world. Then this structure undertook an aware study of Islam from its original sources in the Qur’an and Sunnah and came to the following conclusion that Islam is a complete and comprehensive system that solves all of life’s problems. So it wrote books explaining all of this in a general manner without touching upon the details. Thus it wrote books on the systems of Islam, such as the ruling, economic and social system. And in writing these books it observed the practical aspect so that the Muslims realise that Islam is a practical ideology and a complete system fit for implementation, so that they adopt its systems and work to bring it back in the realm of life via the establishment of the Khilafah State. The Khilafah State is the only method for applying these systems in the reality of life.

 

The understanding of these thoughts and systems expanded. This was owing to the structure conveying them to the Muslims, continuously discussing and talking about them, and by referring to their sources to crystallise them. All of this was in order to establish them in the realm of life. These thoughts and concepts were no longer confined to being only broad guidelines or just giving a general picture; especially after Islam had become the expectation of Muslims and their object of hope in rescuing themselves from the situation they were in. This was after realising that Islam was the complete and comprehensive system that solves all of life’s problems. Likewise it became an incentive for them to learn more details of the Khilafah State that they work to establish and to know more details about the systems of Islam which the Khilafah State would implement upon them. This was the incentive for us to expand these books and enrich them with many details that hitherto were not present in the first edition.

 

Regarding the third edition of the book The Ruling System, we worked to expand it and demonstrate in a detailed manner the reality of the Khilafah State, its apparatus and tasks and whatever relates to it. We elucidated how the form of ruling in Islam is unique and distinct, differing with all other ruling systems existent in the world. In addition, we have set forth the principles of ruling in detail and the apparatus of the Khilafah State, the method and styles of appointing a Khaleefah. Also, we explained that the Khilafah State is a human state and not a divine state. We also mentioned the Mu’awinoon (Assistants) and their mandatory powers, and the ruling regarding Shura (consultation) and its mandatory powers. And we presented the clarification that it is obligatory to implement Islam completely and comprehensively and that it is forbidden to implement its rules gradually. Similarly we have shown how it is forbidden for the State to be a police state and when obedience to the ruler is obligatory and when it is forbidden, and when we are obliged to unsheathe the sword in his face and that we are obliged to account him in every instance. In the third edition we missed the chance of giving the reference for the Ahadith and confining to the text mentioned in the books of hadith. In taking many of the Ahadith we used to rely on the texts mentioned in the trustworthy and recognised books of fiqh (jurisprudence) but the books of fiqh would sometimes transmit a hadith by meaning only or just confine itself to a portion of the hadith that it used as an illustration or evidence. So when the third edition went out of print we undertook the task of finding the references of all the Ahadith mentioned in the book and we mentioned from where each hadith had been taken and we confined to the text stated in the books of hadith. We excluded every hadith whose authenticity or suitability as a proof was not assured for us. Likewise we are convinced of all the reports cited in the books from their sources. Any report we were not sure of or if we found it to be weak, we omitted it from the book. Similarly we corrected certain concepts and rules as a result of the discussions and reviews. As a result, the book came out in this form, which we present to the Muslims.

 

We pray to Allah that He grants in this book much goodness and that He quickly honours the Muslims by establishing the Khilafah State so that what has been mentioned in the book is put in application and implementation. Verily, for Allah that is not a hard matter.

 

15th of the sacred month of Muharram 1417 AH

 

1/6/1996 ‘

 

Abdul Qadeem Zalloom

 

 

 

11.7 Qadhi of Mazaalim

The Qadhi Al-Mazaalim is a judge appointed to remove every Mazlema (unjust act) perpetrated by the State against any person, whether this person was a citizen of the State or a person living under its authority, and whether the Khaleefah or those working under Him perpetrated this Mazlema, be they rulers or civil servants.

This is the definition of the judge of Mazaalim. The origin of the judiciary of Mazaalim is derived from reports referred to the Messenger of Allah (pbuh), where He described the unjust acts perpetrated by the ruler while ruling over the subjects as being a Mazlema. Anas reported:

“Prices soared during the time of the Messenger of Allah (pbuh) 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.’” [Narrated by Ahmad]

He (pbuh), therefore judged pricing as being a Mazlema, for if He had done it, i.e. introduced pricing, He would have acted without a due right given to him. He (pbuh) also made the issues that affect the public rights that the State organises for the people as part of the Mazaalim, such as the irrigation of farming lands by common water in turn. The Messenger of Allah (pbuh) looked into the dispute over irrigation that took place between Az-Zubayr Ibnul-’Awwam and a man of the Ansar. He (pbuh) witnessed it personally and said to Az-Zubayr;

“You irrigate first O Zubayr and then let the water go to you neighbour.” Therefore, any Mazlema 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 a Mazlema, as gathered from the two Ahadith. The matter would be referred to the Khaleefah to deal with or to whomever the Khaleefah appoints as Qadhi al-Mazaalim to deal with such matters on his behalf.

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11.6 The mandatory powers of the Muhtasib

The Muhtasib has the power to judge on the offence as soon as He learns about it, and this could take place on the spot and at any location. He does not need to be in a judicial court. He will have at his disposal a number of police staff to execute his orders and to apply the sentence on the spot.

A judicial court would not be required for the Muhtasib to look into the case at hand, He passes the judgement the moment He is sure that the offence took place, and He has the power to judge at any place and at anytime, whether in the market, in the house, while riding or in the car during the day or night. The evidence that confirms the need to have a judicial court in order to deal with a case does not apply to the Muhtasib, because the Hadith that confirmed this condition states;

“If the two disputing parties sat before you.”

This is not applicable to the judge of Hisba, as there is no plaintiff and no defendant, rather, there is a public right that has been violated, or a violation of the Shar’a. Besides, when the Messenger of Allah (pbuh) 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 (pbuh) 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 Hisba do not require a judicial court.

The Muhtasib has the right to select 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 Hisba in the areas to which they have been assigned, and in the cases for which they have been delegated.

This depends on whether the appointment of the Muhtasib includes a clause that gives Him power to appoint deputies, i.e. to delegate deputies who would act on his behalf, in case the Khaleefah made his appointment. If the appointment was however made by the Qadhi al- Qudhah (Supreme judge), then beside the previous condition the appointment of the Qadhi al-Qudhah must include a clause that gives Him power to allow the judges that He appoints to delegate others to act on their behalf, i.e to give them the right to have deputies. If the Qadhi al- Qudhah did not have such power, then He would not be in a position to approve such a delegation, thus the Muhtasib would not be allowed to have deputies, i.e. He would not have the right to delegate. The power of the judge to delegate on his behalf, whether it be the Muhtasib, the Qadhi (judge) or the Qadhi al-Mazaalim, is not in the hands of the judge unless the Khaleefah allows Him to do so; or if the permission to recruit judges and to allow those appointed to delegate were given to the Waali of the judiciary, i.e. the Qadhi al-Qudhah. This is because the judge is appointed to the judiciary, i.e. a specific type of judiciary, which is the Hisba. Therefore, if He were not given the right to delegate, i.e. the right to appoint a deputy for himself, He would not then possess the mandatory power to appoint anyone. This applies to both the Qadhi and the Qadhi al-Mazaalim, for each of them would be appointed to the judiciary according to the appointment clause. Thus they do not possess any extra power, i.e. they would have no right to appoint judges, unless this formed part of the appointment contract. He would not also have the right to appoint deputies to perform the duties of Hisba on his behalf, unless this was part of his contract. The same applies to the Qadhi al-Qudhah. As for the permissibility of appointing deputies, this is derived from the Messenger of Allah’s action, for He (pbuh) was called upon to look into a case, and He appointed someone to act on his behalf. This was what happened in the incident of the desert Arab who came to the Messenger of Allah (pbuh) and informed Him that his son was working for a man and He committed adultery with the man’s wife, so He asked Him for the verdict. The Messenger of Allah (pbuh) said at that incident:

“Go O Unays (a man from Aslam) to this man’s wife, if she admitted guilt then stone her.” [Narrated by Bukhari and Muslim by way of Abi Hurayrah, Zayd bin Khalid al Juhani]

This indicates that the judge could send a deputy to judge on his behalf in a case He assigns to him. The same applies to the Muhtasib, as He is also a judge. However, the judge must allow his deputy to deal with the case as a whole, i.e. He must be allowed to look into the complaint and pronounce judgement himself if the appointment to deputise were valid. This is because the judiciary is the conveying of the rule by way of compulsion, so in this context it cannot be partitioned, and therefore He cannot appoint Him to merely investigate without judging. The appointment must be complete so that He becomes a judge and his judgement becomes valid. However, even if He sometimes did not actually pronounce a judgement, his work would still be valid, for 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, i.e. He must be appointed as a full judge, holding all the mandatory powers given to a judge. The same applies to the Muhtasibin 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, that is if He has been given the power to appoint deputies. The legal requirements for those whom the judge appoints as his deputies are: They must be Muslim, free men, just, mature and Fuqaha (learned scholars) in the matters they are assigned to deal with, i.e. they must have the same requirements as the Muhtasib, because they are also judges like him.

 

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11.5 Al-Muhtasib

The Muhtasib is the judge that deals in all the cases that concern the public rights and which do not have a plaintiff, as long as these cases do not fall under the Hudood (penal code) and the Jinayat (criminal law).

This is the definition of the judge of Hisba, a definition that is deduced from the Hadith relating to the heap of food when the Messenger of Allah (pbuh) discovered dampness in the heap of food, so He ordered that the damp food be displayed on the top so that people could see it. This was a public right on which the Messenger of Allah (pbuh) looked into, and judged that the wet food should be displayed at the top to prevent cheating. This applies to all the public rights or interests that are of this nature. It does not include the penal code or the criminal law, for they are not of the same sort, and they are disputes between people in the first place.

 

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11.4 The forming of tribunal courts

It is forbidden to have more than one judge presiding over a tribunal and having power to render judgement. It is permitted for one or more judges to be present with Him but they would not have the right to judge. They attend so as to be consulted or to voice an opinion, and their opinion would not be binding.

This is because the Messenger of Allah (pbuh) never appointed two judges to deal with one matter, rather He (pbuh) appointed one judge for one matter. Besides, the judiciary is the pronouncing of the Shari’ah rule by way of compulsion, and the Shari’ah rule concerning the same Muslim person cannot vary, for it is the rule of Allah, and the rule of Allah is one. It is true that its interpretation may vary, but concerning the Muslim from the practical side it remains one and it never varies. His interpretation would be the rule of Allah as far as He is concerned, and any other interpretation is not the rule of Allah (swt) that would apply to him, although in his opinion it is considered a Shari’ah rule. Whatever Taqleed (imitation) He adopts and acts upon is considered to be the rule of Allah (swt) as far as He is concerned, while any other Taqleed would not apply to him. When the judge pronounces the rule of Allah in the matter at hand by way of compulsion, this pronouncement must be one, for it is the pronouncement of the rule of Allah (swt) by way of compulsion. Thus it would be acting upon the rule of Allah (swt), and the rule of Allah (swt)from a practical point of view does not vary, even if the understanding does vary. Therefore, it is forbidden to have more than one judge, for it is impossible for the rule of Allah (swt) to vary. This is as far as the individual case is concerned, i.e. the tribunal or court. 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 Khaleefah, so it is like the deputyship where plurality is permitted, thus it would be permitted to have several judges in one area. If the disputing parties could not agree on which tribunal 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.

The judge can only rule in a judicial court, and the evidence and the oath can only be considered in the judicial court.

This is because it has been reported on the authority of ‘Abdullah Ibnuz-Zubayr who said;

“The Messenger of Allah has ordered that the two disputing parties should sit before the judge.” [Narrated by Abu Dawood and Ahmed] This Hadith demonstrates the form, in which the judicial process should be conducted, and it is a lawful form in itself, i.e. there must be a specific form in which the judicial process is to be conducted, which is for the two disputing parties to sit before the judge, and this would be the judicial court. Therefore, this is a condition for the validity of the judicial procedure, i.e. that there ought to be a special place where the judgement is to be conducted for it to qualify as a legitimate judgement, and this would be for the two disputing parties to sit before a judge. This is backed by the Hadith of Ali (rta) when the Messenger of Allah (pbuh) said to him:

“O Ali, if two disputing parties sat before you, do not judge for in favour of either of them until you hear what the other party has to say as you have heard the first one.” It also indicates a special form where He (pbuh) said;

“If two disputing parties sat before you.” Therefore, the judicial court is a must if the judgement is to be valid, and is also a must for the oath to be considered. This is because the Messenger of Allah (pbuh) said;

“The oath must be given by the defendant.” [Narrated by Al- Bukhari on the authority of Ibnu Abbas] He would not be considered as defendant except in a judicial court. The same applies for the evidence. It cannot be considered except before a judicial court, for the Messenger of Allah (pbuh) said;

“It is the plaintiff who should provide the evidence, and the oath is due on the one who disapproves.” [Narrated by Al-Baihaqqi]

He also cannot be considered a plaintiff except before a judicial court.

It is permitted to have various levels of courts according to the type of cases. Thus it would be permitted to have some judges confined to dealing with specific cases to a certain extent, and to refer other cases to other courts.

This is because the Khaleefah delegates the judiciary and it is just like the deputyship, with no difference at all. In fact, the judiciary is one form of deputyship, which can be general and can also be specific. Therefore, it would be permitted to have a judge appointed to deal in specific cases only, in which case He would not be allowed to deal with cases other than those cases specified. It is also 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 tribunal, and Muslims had this in the past. Al-Mawardi wrote in his book entitled Al-Ahkam As-Sultaniyya;

“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.’” The Messenger of Allah (pbuh) delegated others on his behalf in the judiciary; He (pbuh) appointed ‘Amru Ibn al-‘A‘as to look into one case, and He appointed Ali Ibnu- Abi Talib over the judiciary in Yemen with powers to look into any case. This indicates that it is permitted to have a specific and general judiciary.

There are no courts of appeal and there are no courts of cessation, so the judiciary, as far as the method by which the cases are treated, is one and the same. If the judge pronounced a sentence, it would become binding, and the sentence of another judge would not under any circumstances reverse it. This is the case unless the sentence disagreed with a definite text from the book of Allah, or the Sunnah of His Messenger or the Ijma’a of as-Sahabah.

Thus, the sentence of the judge cannot be reversed by himself or by any other judge, if it (the original judgement) is based on Zanni (probable) evidence from the Book or the Sunnah. Evidence about the fact that the sentence of the judge derived from a Zanni evidence cannot be reversed is the general consensus of the Sahabah. This is because Abu Bakr judged in some cases according to his own Ijtihad while ‘Umar did not agree with him, and He did not reverse his sentences. Ali disagreed with ‘Umar’s Ijtihad but never reversed his sentences; Ali differed with Abu Bakr and ‘Umar but their sentences were never reversed. The people of Najran came to Ali and said to him:

“O Ameer of the believers, your book is in your own 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 judged in the Musharraka (shared inheritance) to abrogate the rights of brothers from the father’s side. 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. He also judged differently in relation to the grandfather and He never reversed any of the earlier sentences. As for what has been reported about Sharih having judged in the case of two paternal cousins, one of them was one of the mother’s brother, that the estate should go to the brother, this was referred to Ali so He said; Bring me the man. 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 have prior rights against each other.” [TMQ Al-Anfal: 75] Allah (swt) 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 An-Nisa: 12],

He then reversed his sentence. Ibn Qudamah replied with regards to this in his book Al-Mughni in the subject of al-Qadaa (The Judiciary), page 56, chapter nine by saying;

“It has not been proved, in our view, that Ali reversed his sentence. Even if it was proved that He did so, then Ali (rta) possibly thought that Sharih disagreed with the text of the Book in the Ayah wich He mentioned, so He reversed it.” What has been confirmed is that the Sahabah had on some occasions judged in some matters according to their own Ijtihad, and the Khaleefah used to disagree with them. This happened in the times of Abu Bakr, ‘Umar and Ali, and never did any of them reverse the others’ judgement. What has also been confirmed is that ‘Umar passed contradictory and different sentences in relation to one single issue, and He executed all the sentences and never reversed the first judgement by the second one despite the difference between the two. It has been confirmed that ‘Umar said about this:

“That judgement was for that case and this judgement is for this one.” This serves as evidence that the sentence of the judges should not be reversed. Ibnu Qudama wrote in Al-Mughni:

“And if his Ijtihad has changed without contradicting a text or a general consensus, or if his Ijtihad differed from the Ijtihad of those before him, He should not reverse it just because it is different, for the Sahabah have in fact consented on this course of action.” However, if He changed his Ijtihad before pronouncing the verdict, then He can judge with the new Ijtihad.

Furthermore, the evidence about the prohibition of the plurality of judges, also serves as evidence about the prohibition of reversing the judge’s sentence. This is because the rule of Allah is one and does not vary, and the rule of Allah regarding one matter, once enacted means that it has been executed, so it would be wrong to reverse it. When the judge passes a verdict on a case, He would be putting the rule of Allah into application, and then its execution becomes compulsory. Therefore, it should never be reversed, as this would mean the reversal of Allah’s rule and that is forbidden. Thus the judge cannot reverse his own judgement, nor can anyone else reverse his judgement, for the rule of Allah does not vary, and its reversal would be, in addition to being the reversal of the rule of Allah, a variation of the rule of Allah (swt) and that is forbidden.

As for the report concerning the letter of ‘Umar bin Al-Khattab which He sent to Abu Moussa in which He wrote;

“Do not allow a sentence you passed yesterday, which you reviewed and gained the right guidance, prevent you from returning to the truth, for the truth is old, and to return to the truth is better than to continue with the falsehood.” Supposing that the letter were genuine, it would represent the word of ‘Umar, and it is not a Shari’ah evidence. It would be wrong to say that the Sahabah kept silent about this and that this indicates that a general consensus took place, for the silence can only be considered to be a general consensus if the event was well known, related to a rule that concerns all the people, and which the Sahabah would have knowledge of, and also the like of which is usually rejected by Shari’ah for they do not remain silent over a Munkar. However, this type of letter was addressed to a specific judge and it was not a general address. Although it became famous afterwards, it was not a famous event known to the Sahabah at that time. Besides, it did not contain anything that is usually rejected, because it contained nothing that Shar’a condemns. Furthermore, what ‘Umar meant in his 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 reverse yesterday’s judgement. That is why ‘Umar wrote ‘to return to the truth’ and He did not write 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 the judgement can lawfully be reversed. This is why in Islam there is nothing called judicial precedent, i.e. in such and such case the sentence was 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 and even by the same judge. As for the case itself, the rule of Allah would have been applied to it, therefore the judge would be forbidden from reversing that rule or changing it. This is why there are no courts of appeal in Islam, and nor are there any courts of cassation. The judiciary, from the adjudication point of view, should be of the same level. The Shari’ah principle states; ‘The Ijtihad does not reverse another Ijtihad.’ So no Mujtahid could serve as an authoritative source for another Mujtahid, thus it would be forbidden to have Tribunals that reverse the sentences of other Tribunals.

However, if the judge abandons ruling by the Shari’ah and judged according to a rule of disbelief, or if He judged by a rule that contradicts a qat’i (definite) text form the kitab and Sunnah or the Ijmaa’ of the Sahabah, or He issued a verdict that contradicts with the reality, such as if He judged on somebody as a deliberate killer, then the real killer appeared. In such cases, the verdict of the judge is reversed. This is because the Messenger of Allah (pbuh) said;

“Anyone who invented something in our matter (Deen) that which is not from it, it would be rejected.” [Narrated by Al-Bukhari and Muslim on the authority of ‘Aiesha]

It was also narrated by Jabir bin ‘Abdullah:

“…a man committed adultery with a woman, so the Prophet (pbuh) ordered, that He be lashed. Later on He was informed that He was married, so He ordered that He be stoned.” Malik bin Anas also narrated, that He said;

“I got knowledge that a woman was brought to ‘Uthman (rta), where she gave delivery after six months so He ordered her to be stoned, Ali (rta) said to him: ‘It is not valid to be stoned, because Allah (swt) says;

“The carrying of the (child) and his weaning (Fisal) is a period of thirty months” [TMQ Al-Ahqaf: 15] and He (swt) says;

“The mother shall give suckle to their children for two whole years, for them who desire to complete the term.” [TMQ Al-Baqarah: 233] Thus the pregnancy period is six months, so she should not be stoned.’ Accordingly ‘Uthman (rta) ordered that she be brought back, but He found that she had already been stoned.” Abdur Raziq narated from Al-Imam Ath-Thawri that He said;

“If a judge gave a verdict opposite to the Book of Allah or the Sunnah of the Messenger of Allah (pbuh) or anything where there is an Ijma’a over it, then another judge after Him may reverse it.”

And the one with the mandatory powers to reverse these sentences is the qadi Mazaalim.

 

 

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11.3 The appointment of judges

It is permitted to appoint the judge, the Muhtasib (judge of public rights) and the Mazalim in a general capacity, to judge in all matters all over the State. It is also permitted to appoint them in a specific capacity, whether geographic or according to a certain type of judiciary. This would be in accordance with the action of the Messenger of Allah (pbuh). He (pbuh) appointed Ali Ibnu Abi Talib as judge over Yemen, and Mu’az Ibnu Jabal as judge over an area of Yemen, and He also appointed ‘Amru Ibn al-‘A‘as as judge in one specific matter.

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11.2 The conditions required for the post of judges

Anyone taking up the post of a judge must be a Muslim, free, mature, sane, just a Faqih (learned scholar), and aware of how to apply the rules to the events. The person who takes up the judiciary of Mazaalim, in addition to the conditions mentioned must also be male and a Mujtahid (jurist), just like the Qadhi al-Qudhah (Supreme judge). This is because this post is in fact a combination of judicial and ruling responsibilities, for He judges over the ruler and executes the Shari’ah upon him. Therefore He must be male in addition to the other conditions for the judge post, one of which is to be a Faqih. Furthermore, He has to be a Mujtahid, because as part of the Mazaalim He may be required to look into whether the ruler has ruled by other than that which Allah has revealed, i.e. ruled by a law that has no Shar’a evidence to back it, or in case the evidence He used does not relate to the event. It is only the Mujtahid who can deal with such Mazlama. Therefore if He were not a Mujtahid, He would be judging on something He knows little about or has no knowledge at all, and that is forbidden. Therefore, in addition to the conditions of the ruler and those of the judge, He should also be a Mujtahid.

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11.1 Types of judges

There are three types of judges: One is the Qadhi, and He is in charge of settling the disputes between people over transactions and penal codes. The second is the Muhtasib, who is in charge of settling any breach of law that may harm the right of the community. The third is the judge of Mazaalim, who is in charge of settling disputes between the people and the State.

These are the three types of judges. The evidence about the judge, who settles disputes between people, is derived from the actions of the Messenger of Allah (pbuh), and from his appointment of Mu’az Ibnu Jabal over an area of Yemen. The evidence of 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 saying of the Messenger of Allah (pbuh), for He said;

“He who cheats us is not one of me”, part of a Hadith narrated by Ahmad on the authority of Abu Huraira. He (pbuh) used to challenge the cheaters and punish them. Qays Ibnu Abi Gharza Al Kanani reported: “We used to buy cargo in Madinah and we would call ourselves brokers, so the Messenger of Allah (pbuh) came out to us and called us with a better name, He (pbuh) said;

‘O traders, verily the selling entails foolish talk and the taking of oaths, so do mix it with Sadaqah.’”

Ahmad narrated from Abi Minhal

“Zayd Ibnu Arqam and Al-Bara’ Ibnu Azib were partners, so they both bought some silver with cash on the spot and by credit. This news reached the Messenger of Allah (pbuh), so He ordered that the deal settled in cash there is no harm in it, and where it is sold in credit it must be rejected.” All this is within the judicial remit of the Hisba. Calling the judiciary that settles the disputes that may harm the right of the community as Hisba is in fact a technical term referring to a specific task carried out in the Islamic State, ie. Controlling the traders and skilled workers lest they cheat in their trade, or their work or their products, or forcing them to use the rights weights and measures, or any other type of action that may harm the community. These are the very types of actions that the Messenger of Allah (pbuh) demonstrated, ordered to be observed, and personally applied judgement upon, as mentioned in the Hadith of Al-Bara’ Ibnu Azib, where He ordered both parties to abstain from selling silver by credit. Therefore, the evidence about the Hisba is from the Sunnah. Moreover, Rasool ul-Allah (pbuh) appointed Said bin Al-’Aas on the market of Makkah after the conquest, as it came in the book of ‘At- Tabaqat’ of Ibn Sa’d and in the book of ‘Al-Istee’aab’ of Ibn Katheer. ‘Umar bin Al-Khattab also appointed Al-Shifa, a woman from his clan, who was called Umm Sulaiman bin abi Hatmah, as a market judge (inspector) i.e. a judge of Hisba. He appointed, as well, ‘Abdullah bin ‘Utbah over the market of Al-Madinah, as it was reported by Malik in his ‘Muwatta’ and by Ash-Shafi’i in his ‘Musnad’. He would personally deal with the judiciary of the Hisba, and go around the markets just like the Messenger (pbuh) used to do. The Khaleefah continued to undertake the Hisbah till the time of Al-Mahdi who made a special department for the Hisbah, thus becoming one of the branches of the judiciary structure. At the time of Ar-Rasheed, the Muhtasib used to go around the markets, checking the weights and measures, and look into the traders’ transactions. The evidence for the judge of Mazaalim (unjust acts), is derived from Allah’s (pbuh) saying;

“If you dispute about something refer it to Allah and the Messenger.” [TMQ An- Nisa’: 59]

This came immediately after Allah’s (swt) saying;

“O you who believe obey Allah and obey the Messenger and those in authority from amongst you.” [TMQ An-Nisa’a: 59]

Therefore, any dispute between the citizens and the people in authority should be referred to Allah and His Messenger i.e. to the rule of Allah. This necessitates the presence of a judge to give judgement on this dispute, and this is the judge of Mazaalim. This is because part of what is included in the definition of the Mazaalim (unjust acts) court is the dispute between the people and the Khaleefah. So the evidence on the judicialcourt of the Mazaalim is the action and words of the Messenger (pbuh). However, the Messenger of Allah (pbuh) did not appoint a specific judge for the Mazaalim over the whole State, nor did the Khulafaa’ Ar-Rashidoon after him, for they used to undertake the Mazaalim themselves, as was the case with Ali Ibnu Abi Talibin He did not however have a specific time or a special method for the Mazaalim, He simply dealt with a Mazlama (an unjust act case) as it happened, so it was just part of his general duties. This approach remained the same until the days of ‘Abdul Malik Ibnu Marwan; He was the first Khaleefah to introduce a specific time for the Mazaalim. When He could not deal with a matter himself, He used to refer it to his judge to deal with it. Then the Khaleefah began to appoint deputies to look into people’s complaints, and a special system was then introduced for the Mazaalim, which was known as the “House of Justice” (Dar ul-’Adl). It is permissible to have a special judge for Mazaalim, because anything that falls under the mandatory powers of the Khaleefah, He is allowed to appoint deputies to perform that duty on his behalf. It is also permissible to have a specific time and a specific style, because all of this falls under the Mubah (allowed).

 

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11 Judiciary

The Judiciary is responsible for delivering the verdict for the purpose of enforcing it. It settles disputes between people, prevents whatever may harm the rights of the community and also settles the disputes between people and any person who is part of the ruling structure, whether they are rulers or civil servants, the Khaleefah or any other person. The origin of the judicial system and its validity is the Book and the Sunnah. As for the Book, Allah (swt) says;

“And judge between them by that which Allah has revealed.” [TMQ Al-Mai’dah: 49]

And He (swt) also says;

“And if they were invited to Allah and His Messenger to judge between them...” [TMQ An-Nur: 48]

As for the Sunnah, the Messenger of Allah (pbuh) was himself in charge of the Judiciary and He judged between people. Al- Bukhari narrated about A’isha, wife of the Messenger of Allah (pbuh), that she said;

“Utba Ibnu Abi Waqqas told his brother Sa’d bin Abi Waqqas that the child of Zuma’a belongs to him, so keep Him with you. In the year of the conquest, Sa’d took Him and said, ‘The child is my nephew, and He (his brother) has entrusted Him to me.’ Abd ibn Zuma’a stopped 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 (pbuh) and Sa’d said ‘O Messenger of Allah! He is my nephew and my brother has entrusted Him to me’ and ‘Abd bin Zuma’a said, ‘He is my brother and a son born to my father on his bed.’ The Messenger of Allah (pbuh) said, ‘The child is for the bed and for the fornicator is stoning.’”

The Messenger of Allah (pbuh) used to appoint the judges. He appointed ‘Ali as 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.” He (pbuh) also appointed Mu’az as a judge over Al-Janad. This indicates the legacy of the judiciary. As for the method of judicature carried out by the Messenger (pbuh), it can be deduced from the Hadith of ‘A’iesha that Sa’d and Abd Ibnu Zuma’a disputed over the son of Zuma’a. Each one claimed that He was his. The Messenger of Allah (pbuh) informed them of the divine rule that the son of Zuma’a was the brother of Abd Ibnu Zuma’a, and that the child belongs to the one on whose bed it is born. Therefore, his (pbuh) judgement was information about the divine rule and then He enforced it upon them, and thus ‘Abd Ibnu Zuma’a took the child. This is the evidence that gives the definition of the Judiciary and this definition serves as a description of the reality. However, since it is a divine reality, and since the divine definition is in fact a divine rule, it therefore requires evidence from which it is to be deduced, and this Hadith serves as an evidence for the definition of the judiciary.

Some people defined the functions of the judiciary as being the ‘settling of the disputes between people’. However this definition is deficient on the one hand, and on the other hand it is not a description of the reality of the judiciary as reflected in the Messenger of Allah’s actions and sayings. This definition is merely a manifestation of what may or may not arise from the judiciary. For the judge may render a judgement on the case without necessarily settling the dispute between the parties. Therefore, the comprehensive and exclusive definition would be the one mentioned at the beginning of this chapter i.e. the one deduced from the Ahadith.

Moreover, this definition includes the judgement between people, and this is mentioned in the Hadith of ‘A’eisha. It also includes the Hisba (public order) which means: ‘Conveying the divine rule for the purpose of enforcing it regarding that which causes harm to the rights of the community.’ This is highlighted in the Hadith of the heap of food. It has been reported in Sahih Muslim on the authority of Abu Hurayra that the Messenger of Allah (pbuh) 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 (pbuh) said; ‘Why don’t you put it on the top so that people can see it? He who cheats does not belong to me.’” It also includes the Mazaalim (unjust acts), because they are part of the judiciary and not part of the ruling, since they are complaints against the ruler. The Mazaalim would be defined as: ‘Delivering of the divine rule by way of compulsion with regards to the dispute that may arise between the citizens and the Khaleefah or any of his Wulah or employees, or any conflict between the Muslims about the interpretation of any of the Shar’a texts used in order to judge by them and to rule according to them.’ The Mazaalim (unjust acts) were mentioned in the Hadith of the Messenger of Allah (pbuh) regarding the fixing of prices where He said;

“And verily I hope that I will meet Allah Azza wa Jall without having anyone claiming against me a Mazlama (complaint) I inflicted on him, be it of blood or funds.” [Narrated by Ahmad on the authority of Anas] This indicates that complaints against the ruler, or the Waali or the civil servants should be submitted to the judge of Mazaalim, and the Judge of Mazaalim would deliver the divine rule by way of enforcement. Therefore the definition would include the three areas of judiciary reflected in the Ahadith and actions of the Messenger of Allah (pbuh). These are: settling disputes between people, preventing whatever may harm the rights of the community and the settling of disputes between the citizens and the rulers, or between the citizens and the civil servants within their duties.

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10.3 The Khaleefah should make enquiries about the works of the governors

The Khaleefah should inquire about the actions of the Waali and He should monitor them closely. He should appoint someone, who can check their state of affairs and carry out inspections. The Khaleefah should also meet with all of them or some of them from time to time and listen to the complaints of the subjects against them.

It has been confirmed that the Messenger of Allah (pbuh) would examine the Wulah when appointing them, as He did with Mu’az and Abu Moussa. He used to explain to them how they should conduct their duties, as He did with ‘Amr bin Hazm. He also drew their attention to some important matters as He did with Aban bin Sa’id when He appointed Him Waali over Bahrain and said to him:

“Look after Abd Qays and honour their leaders.” Likewise it has also been confirmed that He (pbuh) used to hold the Wulah accountable, inspect their situation and listen to news brought to Him about them. He (pbuh) used to ask the Wulah to account for the revenues and expenses spent. Al-Bukhari and Muslim narrated on the authority of Abu Humaid Al-Sa’idi who said;

“The Messenger of Allah (pbuh) appointed Ibnul-Utbiyya as ‘Amil in charge of Sadaqat of Banu Saleem. When He returned back to the Prophet (pbuh) and He accounted him, He said; ‘This is for you and (this is a gift) that was presented to me.’ So the Messenger of Allah (pbuh) said ‘Why did you not remain in your father’s and mother’s home so that your gift comes to you if you spoke the truth.’ Then the Messenger of Allah (pbuh) stood on the pulpit, addressed the people praised, Allah (swt) and said; ‘What about a State official whom I give an assignment and who comes and says; ‘This is for you and this has been presented to me as a gift?’ Why didn’t He remain in the house of his father or the house of his mother so that his gift be presented to Him if He is truthful? By Allah, any one of you will not take anything from it (Sadaqah) unlawfully but will bring it on the Day of Judgment, carrying on his neck a camel that will be growling, or a cow that will be bellowing or a sheep that will be bleating.’ Then He raised his hands so that I could see the whiteness of his armpits. Then He said twice; ‘O Allah, I have conveyed your command.’”

‘Umar used to closely monitor the Wulah, and He appointed Muhammad Ibnu Maslama to examine their state of affairs and inspect them. ‘Umar used to gather the Wulah during the Hajj season to review their performance and to listen to the complaints of the subjects about them, and He also used to discuss with them the affairs of the Wilayaat and ask about their own conditions. It has been reported that ‘Umar once said to people around him; “‘Would you say that my duty would be fulfilled if I appointed over you the best from amongst you, and ordered Him to be just?’ They said; ‘Yes.’ He said; ‘No. Not until I had checked his performance, and seen whether or not He did what I had ordered Him to do.’ ‘Umar was known to be strict when accounting the Wulah and the ‘Aamileen. He would even remove some of them on just a suspicion without conclusive evidence. He even used to remove a Waali on the slightest doubt that did not even reach the level of suspicion. He was asked about this one day and He said; ‘It is easy to swap an Ameer for another so as to amend the people’s affairs.’” However, despite his strictness with them He used to give them a free hand and safeguarded their reputation in ruling. He used to listen to them and consider their argument. If He liked an argument He would show his approval and conviction of it and would shower the ‘Amil with praise afterwards. Oneday news reached Him about his ‘Amil Umayr Ibnu Sa’d who had said while over the pulpit of Homs; “Islam will remain formidable as long as the authority is strong. And the strength of the authority does not come about with the killing by the sword or the lashing by the whip, but with the judging by the truth and the upholding of justice.” Upon hearing this ‘Umar said; “I wish I had a man like Umayr Ibnu Sa’d to help me with the Muslims’ affairs.”

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10.2 The mandatory powers of the of the Governor

The Waali has a mandate to rule and to supervise the activities of the various departments within his Wilayah, and this is done on behalf of the Khaleefah. So the Waali enjoys all the powers within his Wilayah except the funds, the judiciary, and the armed forces. He has the Imarah over the people in his Wilayah and is responsible for supervising all matters relating to the Wilayah. However the police would be under his command in terms of the execution only and not in terms of the administration.

This is because the Waali is a deputy of the Khaleefah in the place where He appoints him. He has the same mandatory powers that the Khaleefah has, and He is like the Mu’awin in terms of general supervision (Wilayah ‘Aammah) if his Wilayah were general, i.e. if He was given general supervision in that place. He would have a specific supervisory role, and in matters related to those for which He was appointed, if his Wilayah was specific (Wilayah Khaassah); then in such a case He would have no mandate to examine other matters. The Messenger of Allah (pbuh) used to appoint some people in an unrestricted Wilayah over ruling, others in a general Wilayah (Wilayah ‘Aammah) covering everything, and others to a specific area and with a specific Wilayah. He (saws) sent Mu’az to Yemen and taught Him how to procced. Al-Bayhaqqi, Ahmad and Abu Dawood narrated on the authority of Mu’az that

“The Messenger of Allah (pbuh) said to him, when He (pbuh) sent Him to Yemen; ‘How would you rule if a case was presented to you?’ He said; ‘By the Book of Allah.’ He (pbuh) said; ‘What if you do not find it (the verdict) there?’ He replied; ‘I would judge by the Sunnah of Allah’s Messenger.’And He (pbuh) said; ‘What if you do not find it there?’ He said; ‘I would exert an opinion (perform Ijtihad), saving no effort.’ Upon this the Messenger of Allah (pbuh) put his hand on my chest and said; ‘Praise be to Allah Who has guided the Messenger of the Messenger of Allah (pbuh) to what Allah and His Messenger love.’” He (pbuh) also sent Ali bin Abi Talib to Yemen without instructing him, because He was confident about his knowledge and competence. When He (pbuh) appointed Mu’az He assigned the Salah and the Sadaqah to him. He (pbuh) appointed Farwa bin Musayk as an ‘Amil over Murad, Muzhij and Zabeed and He sent with Him Khalid bin Sa’eed in charge of the Sadaqah. All this demonstrates that the Waali has all the mandatory powers of ruling, as is evident by the instructions given to Mu’az and not given to ‘Ali. It also demonstrates that the Messenger of Allah (pbuh) gave some Wulah general Wilayah over the Salah and the Sadaqah, while He gave others a specific Wilayah covering the Salah only, or the Sadaqah only.

However, although the Khaleefah is permitted to appoint a Waali in a general Wilayah, or in a specific one, it has also been confirmed from the general Wilayah given to Mu’awiya that He managed to become independent of the Khaleefah during the days of ‘Uthman, and ‘Uthman’s authority over Him was not apparent. In the wake of ‘Uthman’s death He caused the Fitna (civil strife) due to the mandatory ruling powers given to Him over everything in Ash-Sham. This was also the case during the decline of the Abbassid Khulafaa’ where the Wilayaat became independent and the Khaleefah’s authority over them was reduced to having Dua’a (supplications) performed for Him and the currency engraved with his name. Therefore, giving a general Wilayah causes harm to the Islamic State. Thus, the Waali should be given a restricted Wilayah in a way that would prevent Him from becoming independent of the Khaleefah. Since the main factors contributing to a breakaway would be the armed forces, funds and the judiciary, because the armed forces represent the power, the funds represent the “life blood” and the judiciary demonstrates the safeguarding of the rights and the execution of the penal codes. Therefore the Wulah should be given a specific (Khassah) Wilayah that excludes the judiciary, the armed forces and the funds, Delegating these to the Waali would encourage a potential breakaway and this would undermine the State’s authority. However, because the Waali is a ruler, and because He ought to have the executive power, the police would be under his command, and his Imarah would cover the police force as well as all other domains within the Wilayah, except for the three departments mentioned above. Since the police force is part of the armed forces, its administration should remain under the army command. Nevertheless it would be at the Waali’s disposal in terms of execution.

The Waali is not obliged to report back to the Khaleefah on the tasks He performs according to his Imarah unless if He chooses to do so. If an unusual matter were to arise, He should inform the Khaleefah and wait for his instructions, and then execute what the Khaleefah ordered. If He felt that the matter could not wait and needed immediate action, He should deal with the matter immediately, and then inform the Khaleefah stating his reasons for not consulting Him before taking action.

Regarding the difference between the delegated assistant and the Waali in terms of the necessity that the assistant reports to the Khaleefah on every action He performs, while the Waali needs not to do so, this is because the delegated assistant is a deputy of the Khaleefah himself and a Wakeel (representative) for him, and He performs the Khaleefah’s actions. Hence if the Khaleefah were to pass away the assistant would be removed. This does not apply to the Waali, because the Waali is neither his Wakeel nor deputy for Him personally or does He perform his actions. Therefore, He is not removed once the Khaleefah passes away.

The Messenger of Allah (pbuh) appointed his Wulah without asking them to report back to Him about the duties they performed, and they did not report back to him. They performed their duties on their own initiatives, each one of them ruling over his Imarah as they deemed fit. That was the case with Mu’az, ‘Attab Ibnu Usayd, Al-Ala’ Ibnul-Hadhrami and all his other Wulah. This demonstrates that the Waali does not have to report back to the Khaleefah about any of his duties. In this aspect, He differs from the Mu’awin, as the Mu’awin must report back and consult the Khaleefah in every task He performs, whereas the Waali is not obliged to do so. The Khaleefah in turn must examine every action undertaken by the Mu’awin, but He is not obliged to do the same with the Waali, although He enquires about the situation of the Wulah and review information about them. Therefore, the Waali has an unrestricted course of action within his Wilayah. This is why Mu’az said to the Messenger of Allah (pbuh) when He was sent to Yemen:

“I will exert my own opinion.” This serves as a proof that the Waali does not need to report back nor consult the Khaleefah, but exerts his own opinion. He can consult the Khaleefah and ask for his opinion on important matters, but when it comes to matters that are not important, He would not consult Him lest people’s affairs were delayed. If an unusual matter were to arise, He should refer it to the Khaleefah, because the appointment of the Wilayah is that the Khaleefah delegates to the Waali the Imarah of a country or province over its entire people to carry out the ordinary duties. If an inordinary matter were to arise, He should report to the Khaleefah, unless He feared that some mischief might occur due to the delay in dealing with the matter, in which case He should act at once and then notify the Khaleefah of that matter.

The time period of Wilayah for the person should not be a lengthy period. It would be best to relieve Him if He became established or if people became attracted to his personality.

The Messenger of Allah (pbuh) used to appoint Wulah for a period of time and relieve them, and no Waali remained at his Wilayah during the whole era of the Messenger of Allah (pbuh). This indicates that the Waali should never be appointed permanently, but only for a short spell after which He is removed. However, evidence about the length of this period i.e. whether it should be long or short, has not been determined by the actions of the Messenger of Allah (pbuh). All that is related to this matter is that the Messenger of Allah (pbuh) did not keep a Waali at his post during the whole of his life. It has been established as a fact that He (pbuh) used to appoint the Wulah and then relieve them. However, the Fitna that shook the Ummah was caused by the lengthy period of Mu’awiya’s Wilayah over Ash-Sham during the times of ‘Umar and ‘Uthman. This leads us to the conclusion that a lengthy period of Wilayah could harm the Muslims and the State. This is why the period of Wilayah should not be long.

The Waali should not be transferred from one Wilayah to another, because although his appointment is of a general nature, it is over a specific area. Thus, He should be relieved first and then reappointed.

This was clear from the actions of the Messenger of Allah (pbuh), where He used to remove the Wulah. It has not been reported that He used to transfer a Waali from one place to another. Besides, the Wilayah is one of the types of contracts that are convened with explicit words. So within the contract of Wilayah over a province or a country, the area over which the Waali is to govern must be determined, and He would have the mandate of ruling as long as the Khaleefah does not remove him. If He were not removed from that area He would remain a Waali over it. However if He were transferred to another place this would not remove Him from his first position nor would it make Him a Waali over the new place. This is because his removal from the first place requires a clear word stating that He was removed from the Wilayah there. Appointing Him over the place where He had been transferred requires a new contract of appointment as a Waali specific to that place. This is why the Waali is not transferred from one place to another, but is relieved of his duties from one place and then given a new Wilayah over the new place.

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