Caliphate, Featured, Judiciary, Ruling

The Caliphate’s Judiciary

dar-al-adl

The Caliphate’s judiciary is responsible for issuing judgments that are enforced by the state. It settles disputes between people, prevents whatever may harm the rights of the community and also settles disputes between people and any person who is part of the government whether this is the Caliph, his cabinet, civil servants or any other official.1

There is no separation between shari’a courts and civil courts as we find in some Muslim countries today. The basis of the judiciary is shari’a the same as all other institutions of the state. The non-Muslim citizens (dhimmi) will have their own courts for settling issues related to their religions such as marriage and divorce, but in societal matters they will use the courts of the state and be treated the same as Muslims with full access to equal justice.

Contrary to anti-Islamic propaganda shari’a courts are not kangaroo courts. Judges are carefully chosen and have to fulfil more stringent conditions than judges in western judiciaries. Witnesses, both Muslim and non-Muslim, must be just for their evidence to be considered which is not a condition found in other judiciaries. Islam views punishment as a last resort, instead relying on self-accountability and god consciousness (taqwa) to deter someone from committing the crime in the first place. Western countries have ever increasing crime rates because their populations hold secular liberal values which are an antithesis to self-accountability and taqwa. Without these high Islamic values, western states have to resort to more authoritarian measures to prevent crime such as snooping on private citizen’s communications under the guise of security.

Types of Judges

There are three types of judge in the Caliphate.2

  1. Qadi (judge) – responsible for setting disputes between people
  1. Qadi Hisbah (inspector) – responsible for settling any breach of law that may harm the rights of the community
  1. Qadi Mazalim(Government Investigations Judge) – responsible for settling disputes between the people and the government

Conditions of a Judge

The following conditions are necessary before anyone takes up the post of Qadi or Qadi Hisbah. The Qadi can be a man or a woman.

  1. Muslim
  2. Free
  3. Mature
  4. Sane
  5. Just (‘Adl)
  6. Faqih (learned scholar)
  7. Aware of how to apply shari’a rules to different realities3

As for the Qadi Mazalim this post is not only judicial but political as well and is a ruling position within the state. This means being male is a condition for this post. Due to the complex nature of ruling and the variety of potential issues the Mazalim Judge needs to pass judgment upon then the condition of mujtahid (legal scholar) is another requirement for this position.

Legal Principles

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 ﷺ said: “It is the plaintiff who should provide the evidence, and the oath is due on the one who disapproves.”4

The burden of proof required to convict someone of an offence in an Islamic Court is far higher than in the West. The court does not accept circumstantial evidence as a legal proof, and only trustworthy witnesses, whether Muslim or non-Muslim are allowed to give testimony.

Many miscarriages of justice have occurred in western countries due to flawed forensic evidence or due to convicted criminals giving testimony. Confessions are investigated to ensure they were not extracted under duress or torture as is prevalent in Muslim countries today.

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 some time, the leaders here in Basra used to appoint a judge at the central Mosque, and they called him the judge of the Mosque. He used to judge in disputes involving sums not exceeding twenty Dinars and two hundred Dirhams, and he used to impose maintenances. He would not exceed his boundaries nor the duties entrusted to him.”5

The Caliphate cannot suspend habeas corpus by interning any of its citizens. It is has been reported on the authority of Abdullah ibn Zubayr in the hadith book Abu Dawood: “The Messenger of Allah has ordered that the two disputing parties should sit before a judge.”6

There is no trial by jury in the Caliphate where unqualified citizens take on a judicial role examining evidence to determine whether someone is guilty or not. The Qadi alone passes the final judgement based on shari’a.

Therefore any citizen whether Muslim or non-Muslim must be brought before a judicial court and their case investigated by a judge. The detaining of ‘foreign terror suspects’ without trial for years in some cases would never happen in a Caliphate.

Head of the Judiciary

In origin the Caliph is head of the judiciary but he can appoint a Qadi ul-Qudah (Chief Justice) to run the judiciary on his behalf. The Qadi ul-Qudah has the power to appoint and remove all judges in the state including the Qadi Mazalim if he was assigned this power.

The conditions for the Qadi ul-Qudah are the same as those of the Qadi Mazalim.

Is the judiciary independent?

There are two types of judicial independence. These are 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.7

The Caliphate’s judiciary enshrines both institutional and decisional independence which prevents the judiciary becoming a tool for corruption in the hands of corrupt rulers.

The Independent High Court

The Caliphate has an institutionally independent high court called the Court of Unjust Acts (Mahkamat ul-Mazalim). It is presided over by the most eminent and qualified judges in the state and granted extensive powers by the shari’a. It has the power to remove any official of state regardless of his role or rank, including the governor, mayors and even the Caliph.

The Mazalim Court is in the capital at the heart of government and investigates any government oppression that occurs from the Caliph, his assistants and any other government official. The court also checks all legislation, administrative laws and constitutional amendments to ensure they conform to shari’a and will arbitrate in disputes between the Caliph and the Majlis.

Ordinary citizens who have a serious complaint against any official or ruler can register it with the Mazalim Court.

What is unique about the Mazalim Court 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 including to ensure their conduct conforms to shari’a and no oppression is committed against the people.

The executive counterbalance to the power of this Court is by the Caliph in principle having the power to appoint and remove the Chief Justice and any judges below him. The Caliph can either give his Chief Justice the power to appoint all the mazalim judges or the Caliph himself can appoint them.8

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.9

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.”10

dar-al-adl

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

Are Mazalim Judges free to make independent judicial decisions?

The shari’a explicitly states that a judge must give an honest, knowledgeable and unbiased judgement on a case.

The Prophet ﷺ 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.”11

The shari’a also specifies how the judge should act within the judicial court sitting.

The Messenger of Allah ﷺ 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.”12

Al-Mawardi explains some of the specific qualities needed by the Mazalim Judge 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.”13

To ensure the Mazalim Judge is free from political influence the shari’a has restricted the executive powers of the Caliph regarding the judge’s removal from office. If the Mazalim Judge is currently investigating a case against the Caliph, Assistant Caliphs or the Chief Justice then the Caliph cannot remove the Mazalim Judge from his post. The evidence for this is the shari’a principle, ‘the means that leads to haram (something forbidden) is itself haram.’14

Can the Caliph pardon crimes?

There is no concept in the Caliphate of a ‘pardon’ for crimes committed and where a sentenced has been passed 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.15 Either way such an incident can never take place in the Caliphate.

Court of Appeal

Once a judge has passed a judgement on a matter then in origin this ruling cannot be overturned by anyone in the state including the Caliph.16

However, there is an appeal process for those judgements which someone believes have been made on a basis other than shari’a 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 would be overturned. The Mazalim Court is the appeal court for such cases.17

Can the Caliph overturn a ruling by the Mazalim Court?

The Caliphate’s judiciary is responsible for issuing judgments that are enforced by the state. Therefore, once the Mazalim Judge has issued a judgement against the Caliph it must be enforced by the institutions of state such as the army, police or Treasury (Bait ul-Mal). The Caliph cannot overturn the ruling under any circumstances and he will be forced if necessary to submit to it.

As an example if the Caliph introduced a new taxation to build a grand, new mosque to celebrate his 60th birthday, as King Hassan in Morocco did when he spent $800 million on the Hassan II mosque in Casablanca, then the Mazalim Court has the power to scrap this taxation. The Treasury would be forbidden from imposing this taxation and the Caliph would have no power whatsoever in this matter.

In many Muslim countries today the Treasury is used as private bank account by the corrupt rulers who waste millions on palaces while their people live in abject poverty. Compare this to the rightly guided Caliph Umar ibn al-Khattab and his relationship with the Treasury.

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-Bal and seek a loan from him. Often he might be in difficulty and the man in charge of the treasury would come to him, seeking repayment of the debt and would oblige him to pay it, and ‘Umar would try and avoid him until he received his allowance (for being Caliph) and so pay his debt.18

Many examples exist within Islamic history to illustrate the decisional and political independence of judges within the Caliphate. In the time of Imam Ali, the fourth Caliph, his chief judge was Qadi Shurayh.

The Qadi Shurayh said: When Ali was setting out to Siffin (for battle), he found that he was missing a coat of armour of his. When the war was over and he returned to Kufah (Caliphate capital), 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.” … Shurayh said, “Speak Amir al-Mumineen (leader of the believers).” He said, “Yes. This armour which the Jew has is my armour; I did not sell it nor did I 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 Hasan (Ali’s son) will witness that the armour is mine.” Shurayh said, “A son’s witness is not acceptable on behalf of his father.” Ali said, “A man from the Garden (referring to Hasan), and his testimony is not acceptable? I heard the Prophet ﷺ 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.”19

In the time of the Abbasid Caliphate, it is narrated that Caliph al-Ma’mun (813 – 833CE, 191AH), used to personally sit in the Mazalim Court on Sundays. On one such day a woman 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.20

Impeachment

The Assistant Caliphs are accountable not only to the Caliph but also the Majlis. They can be removed if the Majlis passes a vote of no-confidence in them. This also applies to the provincial governors and mayors but not the Caliph.

The Caliph is the state and is the pillar maintaining stability. His removal has huge political and economic implications to the society. Therefore, his impeachment cannot be performed by the Majlis. It must be performed by the Supreme Court which is the Mazalim Court. This is the only institution within the state that has the power to remove the Caliph. The Caliph has no power to remove any judge which is investigating him. His removal must be because he contradicted one or more of the seven contractual conditions mentioned earlier leading to the Bay’ah contract either becoming void (batil) or defective (fasid). If the Bay’ah contract is still valid then no impeachment will take place and the Caliph will remain in office. The example below illustrates this point.

The Prophet Muhammad ﷺ gave the third Caliph Uthman bin Affan a prophecy, that he would be given a cloak and when people come to take it off him he shouldn’t take it off. Uthman ruled for twelve prosperous years but in the last few months of his rule he faced a rebellion where people wanted him removed from office for malicious reasons. The Bay’ah contract remained valid and the reasons given for removing him were invalid. Unfortunately, the rebels assassinated Uthman when he refused to break the Bay’ah leading to years of civil war and unrest.

 

Notes

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. 205

3 Ibid, p. 208

4 Al-Baihaqqi

5 Abu’l-Hasan al-Mawardi, ‘Al-Ahkam as-Sultaniyah,’ (The Laws of Islamic Governance), Ta Ha Publishers, p. 111

6 Abu Dawood

7 A Legal framework primarily used in the US for discussing the judicial branch of government

8 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ Op.cit., p. 221

9 Al-Maqreezi, ‘Al-Sulook Ila Ma’arifati Douwal Al-Mulook,’ (The way to know the States of the kings)

10 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

11 Abu Dawood, Book 24, Number 3566: Narrated Buraydah ibn al-Hasib

12 Baihaqi, Darqutni, Tabarani

13 Abu’l-Hasan al-Mawardi, ‘Al-Ahkam as-Sultaniyah,’ (The Laws of Islamic Governance), Ta Ha Publishers, p. 116

14 Taqiuddin an-Nabhani, ‘The draft constitution of the Khilafah State. The Introduction and the incumbent reasons,’ translation of Muqadimatud-Dustur Aw al-Asbabul Mujibatulah, Article 15

15 CBS News, 27 December 2006, http://www.cbsnews.com/stories/2006/12/27/politics/main2299880.shtml

16 Taqiuddin an-Nabhani, ‘The Ruling System in Islam,’ Op.cit., p. 212

17 Ibid.

18 Jalal ad-Din as-Suyuti, ‘History of the Khalifahs who took the right way,’ translation of ‘Tarikh al-Khulafa,’ Ta Ha Publishers, p. 139

19 Ibid, p. 193

20 al-Mawardi, Op.cit., p. 128