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Judicial System in Islam

SYSTEMS OF ISLAM

REAL CHANGE

HUKM OF ALLAH
Quran:

Sunnah

MORE FROM QURAN

DEFINITION

ADMINISTRATION

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


Attributes

Simplicity Speed Competence Nature of dispute


Rules of Evidences Rules of witnesses

Deliverance

What is the correct punishment for a crime? Can a crime be pardoned? Can one be immune from crime?

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

Organization

JUSTICE

JUSTICE

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

DEVINE

MAN MADE

Islam
Revealed by Al Knowing Allah (swt)

Pakistan, USA, etc.


Made by interest groups, lobbyists, political parties, pressure groups and others specialist in creating consent.

TYPES OF JUSTICE

ISLAM

MAN MADE

Allah (swt) alone is the one with the power and authority to define an act as crime (Halal and Haram). Theft is Haram but when will an act 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 to reflect designed consent. Different nations have devised different mechanisms to define lawful and unlawful (Haram and Halal). Riba/intrest/sood are lawful. LFO; Giving military bases, air space, intelligence to an enemy was legislated to be lawful. NRO; Murders, rape, abduction, loot, plunder, theft and all other heinous acts

CRIME

ISLAM

MAN-MADE

Securing

Individual or Society When was it decided to cut one person off from his family and friends and punish him for life to be civil and just.

Three strikes and your out 86 years for allegedly injuring some one

CORRECT AMOUNT OF PUNISHMENT

ADMINISTRATION
Speedy Simple competent

NATURE 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

TYPES OF JUDGES
Qadi;

responsible for settling disputes between people. responsible for settling any breach of law that may harm the rights of the community.

Muhtasib;

Mazalim

Qadi; responsible for settling

disputes between the people and the government

QADI
Settles dispute between people

Simple Quick Competent

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.

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

MUHTASIB
Protecting the right of the community

He can give judgment anywhere within the jurisdiction assigned to him. There is no plaintiff or defendant when the Muhtasib gives his judgment when ever a right of the community has been violated. his remit is any violation of the right of the community such as playing 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.

MUHTASIB

MAZALIM COURTS
Settles disputes between the citizens of the state and government

The Khilafah state has an independent 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 Shariah. The unjust acts perpetrated by the state are called MAZLEMA. And hence the name MAZALIM Courts

MAZALIM COURTS

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 a path 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 and the Khalifah to the Court. What is unique about the Court of Unjust Acts is that the Qadi Mazalim has investigatory powers and can open an investigation without a plaintiff. The court constantly monitors the actions of all officials of the state and all adopted laws to ensure it conforms to Shariah and that no oppression (mazlama) is committed against the people.

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

ORGANIZATION
Qadi ul-Qadah 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. The Khalifah is the one who appoints or removes the Qadi ul-Qudah.

QUALIFICATIONS

Qadi
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

Muhtasib
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

Qadi Mazalim
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 Male Mujtahid

INDEPENDENCE OF JUDICIARY

Institutional independence
Khalifah

cannot remove Qadi Mazalim when under investigation

Decisional independence
No

Immunity No Pardon No Appeal

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 Abul-Hasan al-Mawardi, Al-Ahkam as-Sultaniyah, (The Laws of Islamic Governance), TaHa Publishers, p. 111 8 Sahih Muslim on the authority of Abu Hurayra 9 Holy Quran, Chapter 6, Surah An-Nisaa, 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 Maarifati 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 alKhulafa, 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 Mujibatula

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