The Judge’s Decision is Final

There are no appeal courts and there is no court 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 never and under no circumstances reverse it. The sentence of the judge cannot be reversed except by him personally and no other judge could do this. The evidence for this is derived from the general consensus of the Sahabah, for Abu Bakr judged in some cases according to his own ijtihad while ‘Umar did not agree with him, and he did not reverse his judgements; ‘Ali disagreed with ‘Umar’s ijtihad but did not reverse his sentences; ‘Ali differed with Abu Bakr and ‘Umar but their sentencing was never reversed. The people of Najran came to ‘Ali and said to him: "O Amir 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. "

This is why there are no courts of appeal in Islam, nor are there courts of cessation. 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 (scholar) 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 the rule by the Shari‘ah, and judges by a rule of disbelief, his judgement would be false, and also if he judged by a rule that contradicts the Shari‘ah (i.e. if he did not have an evidence or even a doubtful evidence), and there were texts that contradicted him, then the judgement of the ruler or the judge should be rejected for the Messenger of Allah (saw) said, "Anything that is not derived from our teaching is a reject." And the one who has the power to reject it would be the judge of the madhaalim (see later).

The Qadi Muhtasib (or Qadi Hisba)

The function of this judge is related to conveying the Shari‘ah rule by way of compulsion in whatever may harm the common interest. This type of institution is also known as the hisba, and it carries out a specific task within the Islamic State, which is the controlling of the traders and skilled workers lest they cheat in their trade or work or in their products, or lest they wrongly use the weights and measures or any other type of action that may affect the public rights.

As for the evidence of this judiciary, this is highlighted in the hadith of the heap of food : It has been reported in Sahih Muslim on the authority of Abu Hurayrah that the Messenger of Allah (saw) passed by a heap of food, as he put his hand inside it his fingers got wet, so he said to the vendor: What is this? He said : It was dampened by the rain O Messenger of Allah. He (saw) said : Why don’t you put it on the top so that people can see it? He who cheats us is not one of us.

So this was a public right on which the Messenger of Allah looked into, and judged that the wet food should be displayed at the top to prevent cheating. And this applies to all the common 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, as they are disputes between people in the first place.

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 in any place; he does not need to be in a judiciary court. He will have at his disposal a number of police officers to execute his orders and apply the sentence on the spot. A judiciary court would not be required for the muhtasib to look into the case at hand as he passes the judgement the moment he is sure that it took place, and he has the power to judge in any place and at any time, be it in the market, in the house, or while riding in the car both day or night.

This is so because the evidence that confirms the need to have a judiciary court in order to deal with a case does not apply to the muhtasib, for the hadith which confirmed such condition states: 'If the two disputing parties sat before you', and this is not applicable to the judge of hisba, for there is no plaintiff and no defendant, there is only a public concern that has been violated, or a violation of the Shari‘ah. Besides, when the Messenger of Allah (saw) looked into the case of the heap of food, he was at the time walking in the market and the food was displayed for sale, he (saw) 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 judiciary court.

The muhtasib can be given the right to select deputies in lieu of him. They should fulfil the requirements of the muhtasib, and he is allowed to assign them to different places. These deputies would have the power to carry out the duties of the hisba in the areas they have been assigned to and in the cases they have been delegated for. These deputies must be appointed as full judges, holding all the mandatory powers given to a judge.

The legal requirements for those whom the judge appoints as his deputies are: They must be Muslims, free, just, mature and faqihs (learned scholars) in the matters they are assigned to deal with, i.e. they must have the same requirements of the muhtasib for they are also judges like him.

The Qadi Madhaalim

The judge of madhaalim is a judge appointed to lift every madhlama (unjust act) perpetrated by the state against any person, whether this person were a citizen of the state or a person living under its authority, and whether this madhlama were perpetrated by the Khaleefah or those working under him be they rulers or civil servants.

This is the definition of the judge of madhaalim and the origin of the judiciary of madhaalim is derived from reports attributed to the Messenger of Allah (saw) when he described the unjust acts perpetrated by the ruler while ruling over the subjects as being a madhlama. Anas reported: "Prices soared during the time of the Messenger of Allah (saw) so they said to him: O Messenger of Allah why don't you introduce pricing? He said: Verily Allah is the Recipient, the Extender of wealth , the Provider, and the Pricer, and I hope that I will meet Allah (swt) without having anyone accusing me of having perpetrated a madhlama against him be it in blood or in money." He (saw) therefore judged the pricing as being a madhlama, for if he had done it, i.e. introduced pricing, he would have acted without authority.

The madhaalim (unjust acts) were mentioned in the hadith of the Messenger of Allah (saw) where he said: "If I took money from someone, here is my money, let him take from it, and if I whipped the back of someone, here is my back, let him retaliate." This indicates that complaints against the ruler, or the wali or the civil servant should be submitted to the judge of madhaalim, and the Judge of madhaalim would convey the Shari‘ah rule by way of compulsion.

He (saw) also made the issues that affect the common rights which the state organises for the people as part of the madhaalim, such as the irrigation of farming lands by common water in turn; the Messenger of Allah (saw) looked into the dispute over irrigation that took place between Al-Zubayr ibn al-Awwam and a man of the Ansar; he (saw) witnessed it personally and said to Al-Zubayr: "You irrigate first O Zubayr and then the Ansari." Therefore, any madhlama that occurs on any person, whether perpetrated by the ruler, or occurring as a result of the state’s organisation or orders, would be considered as a madhlama, as gathered from the two ahadith. The matter would be then referred to the Khaleefah to deal with it or to whoever the Khaleefah appoints as judge of madhaalim to deal with such matters in lieu of him.

The Mandatory Powers of the Judge of Madhaalim

Accounting the Rulers:

The judge of madhaalim has the mandatory powers to remove any ruler or civil servant, and he also has the right to remove the Khaleefah. The judge of madhaalim has the right to remove the rulers, for the ruler is appointed by a contract, known as the appointment contract (bay‘at al-In‘iqad). It is important to understand that the court of madhaalim does not act on behalf of the Khaleefah, but is an independent court that is there to remove any madhlama implemented by the state on any of its citizens. So if a madhlama occurred in the wilayah of a certain governor, the court has the right to remove that madhlama it may have to remove that governor from office, even if the Khaleefah does not agree with the judgement.

As for its powers to remove the Khaleefah, this would also be a judgement aimed at removing a madhlama, for if a situation arose that necessitated his removal, or a situation as a result of which he should be removed, then his stay in office would be a madhlama, and it is the court of madhaalim that judges the removal of a madhlama, so it orders his removal. Therefore, the judgement of the court of madhaalim to remove the Khaleefah would be a judgement aimed at removing a madhlama. This is a principle mechanism that Islam has defined for regulating and accounting the ruler.

The court of madhaalim has the powers to look into any madhlama, whether the madhlama were perpetrated by government employees, or related to the contradiction of the Shari‘ah by the Khaleefah, or the various Shari‘ah rules adopted by the Khaleefah, or related to the imposing of a tax or any other matter. This is so because the Messenger of Allah (saw) refused to fix the prices when the Sahabah requested him to do so after the prices had soared, and he (saw) considered price fixing as being a madhlama. This proves if the action of the ruler contradicted what was right, or violated the Shari‘ah rules, it would be considered a madhlama. The Messenger of Allah (saw) was a ruler over the Muslims and their head of state.

Furthermore, every action that is part of the government business, performed by any member of the government, if this action was in contradiction of what is right, or if it violated the Shari‘ah rules, it would be considered a madhlama, for that person would be a deputy to the Khaleefah, acting on his behalf according to the task assigned to him within the ruling system. Therefore, the hadith about the pricing indicates that the offence committed by the Khaleefah is a madhlama.

To look into a text from the constitution or the canon, would be to look into the order of the authorities (Sultan), since the constitution and the canon represent the basic laws and since the laws represent the order of the Sultan, this is also included in the hadith about the pricing, for it would be like looking into the Khaleefah’s actions; and besides, Allah (swt) says,

"If you dispute about something refer it to Allah and the Messenger." [TMQ 4:59],

i.e. if you disputed with the people in authority about a matter, and this dispute was about an article in the constitution or an article of the law, then it would be a dispute between the subjects and those in authority about a rule of Shari‘ah, then it must be referred to Allah and His Messenger, which means to refer it to the court of madhaalim, i.e. to the judgement of Allah (swt) and His Messenger (saw).

As for the mandatory powers given to the judge of madhaalim to look into the imposing of a tax, this is derived from the hadith of the Messenger of Allah (saw) where he said, "If I took money from anyone, here is my money, let him take from it." And he (saw) also said: "And I hope to meet Allah Azza wa Jall without having anyone claiming a madhlama against me, whether in blood or money." If the Khaleefah took money from the subjects unlawfully, it would be a madhlama, therefore the court of madhaalim has the right to investigate tax affairs for it is money taken from the subjects. Its investigation of tax collections would be with the aim of ruling whether those taxes are lawfully imposed by Shari‘ah on the Muslims, such as the money taken to feed the needy, which would not be a madhlama; or with the aim of ruling whether those taxes are not imposed by the Shari‘ah, such as the monies taken to build a dam that is not considered to be essential which would therefore be a madhlama and would have to be removed. This is why the court of justice has the power to look into the taxes.

In the judiciary of madhaalim, the court sitting is optional, and the summons of the defendant is not necessary, nor is the presence of a plaintiff; the court of madhaalim has the right to look into a madhlama even if nobody filed a claim.

This is so because the evidence that confirms the need for a judiciary court to look into a case does not apply for the court of madhaalim for it is not always necessary to have a plaintiff. The court of madhaalim looks into the madhlama even if nobody filed a claim, and because it is not always necessary to summon the defendant, for it concentrates on the madhlama; therefore the necessity of a judiciary court, which is deduced from the ahadith of the Messenger of Allah (saw): "The two disputing parties sit before the judge." and: "If the two disputing parties sat before you.", does not apply to the court of madhaalim. Therefore, the court of madhaalim reserves the right to look into the madhlama as it occurs without any restrictions such as time, place or court sitting.

The Conditions Required for the Position of Judge

Anyone taking up the post of judge must be :

1) Muslim

2) Free

3) Mature

4) Sane

5) Just (‘adl)

6) Faqih (learned scholar), able to apply the rules to the situations

7) They must have the faculty of the three main senses - sight, hearing and speech.

For the person who takes up the judiciary of madhaalim, in addition to the conditions mentioned, he must also be male and a mujtahid (legist), just like the supreme judge (Qadi al-Qada‘a), for his post is in fact judiciary and rule where he judges the ruler and executes the Shari‘ah upon him. Therefore he must be male in addition to the other conditions for the post of judge .

As well as being faqih he should also be a mujtahid, for part of the madhaalim that he could be required to look into is whether the ruler has ruled by other than what Allah has revealed, i.e. ruled by a law that has no Shari‘ah evidence to back it, or in case the evidence he used does not relate to the event, and only the mujtahid can deal with such madhlama. 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 also should be a mujtahid.

The Appointment of Judges

It is permitted to appoint the judge and the muhtasib in a general capacity, to judge on all matters all over the country. It is also permitted to appoint him in a specific capacity, where the specification could either be geographic or according to a certain type of judiciary. This would be in accordance with the actions of the Messenger of Allah (saw), for he appointed ‘Ali ibn Abi Talib as judge over Yemen, and Mu‘adh ibn Jabal as judge over an area of Yemen; he also appointed ‘Amr ibn al-A'as as judge in one specific matter. This is as far as the muhtasib and the judge of disputes are concerned.

As for the judge of madhaalim, it is permitted to appoint him for the whole country or to confine him to a specific area, for the Messenger of Allah (saw) appointed Rashid ibn Abdillah as Amir of the judiciary and the madhaalim over the imara where he was appointed. As for the confining of the judge of madhaalim to certain matters, this is forbidden, for the Messenger of Allah (saw) did not do so, and because his duty would be to look into the complaints of the people and remove their causes, thus specialisation would not be feasible, for the complaints cannot be partitioned. Also, in addition to him being a judge looking into the madhaalim, he is also a ruler in removing the causes of the madhaalim, and the rule cannot be partitioned. Thus the ruler does not specialise in the rule, i.e. he cannot be confined to ruling over certain matters and be restricted from ruling over other matters, he can only be confined to an area.

When someone is appointed as ruler and he acquires the mandatory powers and the authority to look into all matters, it is forbidden to restrict and categorise his duties of rule. The same applies to the judge of madhaalim - his appointment would be general as far as the judiciary is concerned. It is however permitted to confine him to a specific area just as for the confinement of the wali to a special wilayah. This would not be a partition of his rule but a specification of the wilayah, and no matter where the wilayah is to be and no matter what its type, the rule of that wilayah cannot be partitioned. The judge of madhaalim would be appointed similarly over the wilayah of madhaalim, and this wilayah is general, therefore it would be wrong to partition the domain of his wilayah. This serves as evidence that he should not be appointed except with a general appointment as far as the judiciary of madhaalim is concerned.

Qadi al-Qada‘a - The Judge of Judges

This is a further type of judge who is appointed by the Khaleefah, but who is not concerned with the issues of the disputes that form the basis of jurisdiction of the other types of judges. Rather this judge and his department are responsible for appointing all the judges on behalf of the Khaleefah, and ensuring their conduct and qualifications are correct and in accordance with the Shari‘ah.

In this way, the Qadi al-Qada‘a would verify that any judge fulfils the conditions necessary for his authority to be valid. He would also look into any areas of injustice or misapplication of the Shari‘ah that any of the judges may have been involved in, and he has the authority to correct and expel any judges involved in corruption.

How the Judges are Removed

The judiciary is one of the Islamic contracts, and any contract in Islam has two contractors. One is the Islamic State, represented by the Khaleefah, and the other is the judge himself. The contract is manifested by an offer and acceptance.

Accordingly, the position of the judge will be valid as long as the conditions of the contract exist. Given this, there are three ways in which a judge can be removed from authority:

a) The Khaleefah removes him - this may be directly, or through the institution of the Qadi al-Qada‘a.

b) The judge resigns.

c) The judge loses one of the conditions to be judge, e.g. he becomes blind or becomes untrustworthy.

Punishments

Here are the basic outlines of the structure of the Judicial system of the Islamic State. Their details provide comprehensive guidelines for both the structure and function of the judiciary, in such a way as to ensure that the objectives of justice under Islam are fulfilled. However, it is not only by means of guidance and clarification of the divine rules that the system maintains its integrity. It has at its disposal the means of effectively enforcing the decisions and judgements that are arrived at by the courts - the punishment (al-‘Uqubat).

Conclusion

The judiciary in the Islamic State was the richest source of jurisprudence and judicial works of any period of man. The libraries of Baghdad and Kufah (capitals of the Islamic State) boasted collections of tens of thousands of books and articles covering all aspects of legislation in the daily affairs of man, and the study of fiqh (Islamic law). Such was the extent of study and regard for this crucial aspect of the deen of Islam.

Sadly today this legacy has been all but lost to the minds of Muslims and non-Muslims throughout the world. Nowhere is the Justice of Islam prevalent as the ruling force and as a result, the world is engulfed in turmoil, where justice can be bought and abused by any who own the power to do so. Only when Islam is implemented again in its entirety, will the world return to the glorious state it enjoyed under the Khilafah.