An Introduction to the Islamic Judiciary see earlier discution concerning this topic. The Qadi The evidence for the Qadi is derived from the actions of the Prophet (saw) when he appointed Mu’adh ibn Jabal to Yemen as a Qadi. Narrated Mu’adh ibn Jabal: Some companions of Mu’adh ibn Jabal said: When the Messenger of Allah (saw) intended to send Mu’adh ibn Jabal to the Yemen, he asked: “What will you do if a matter is referred to you for judgement?” Mu’adh said: “I will judge according to the Book of Allah.” The Prophet asked: “What if you find no solution in the Book of Allah?” Mu’adh said: “Then I will judge by the Sunnah of the Prophet.” The Prophet asked: “And what if you do not find it in the Sunnah of the Prophet?” Mu’adh said: “Then I will make Ijtihad to formulate my own judgement.” The Prophet patted Mu’adh’s chest and said “Praise be to Allah who has guided the messenger of His Prophet to that which pleases Him and His Prophet.”3 There are seven conditions for the post of Qadi.4 These are: 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 Therefore the Qadi can be a man or a women. The Qadi can only pass judgment in a judicial court. This is derived from the following hadith. Narrated Abdullah ibn az-Zubayr: “The Messenger of Allah has ordered that the two disputing parties should sit before the judge.”5 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 (saw) said: “It is the plaintiff who should provide the evidence, and the oath is due on the one who disapproves.”6 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 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.’7 The Muhtasib The evidence for the Muhtasib is derived from the following hadith. 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 does not belong to me.’”8 The Prophet (saw) passed a judicial judgement on the trader that he must display the damp food on top so that people can see it. The Muhtasib is an inspector who traditionally went around the markets checking the weights and measures and investigating the traders’ transactions. The conditions of the Muhtasib are the same as those for the Qadi. The Muhtasib is not restricted to financial transactions but his remit is any violation of the right of the community such as someone playing loud music at night and disturbing the neighbours. Any crimes witnessed by the Muhtasib that fall under the Hudood (penal code) or Jiniyat (criminal law) are outside his remit. These cases would be investigated by the Qadi in a judicial court. There is no plaintiff or defendant when the Muhtasib gives his judgement only a right of the community has been violated. Therefore the hadith that restricts judgement to a judicial court does not apply to the Muhtasib. The Muhtasib can give judgement anywhere within the jurisdiction assigned to him. Police officers will accompany the Muhtasib who will carry out the punishment issued by the Muhtasib such as an on the spot fine for dropping litter. The Qadi Mazalim The evidence for the Qadi Mazalim is derived from the following verse of the Holy Qu’ran. “O you who believe obey Allah and obey the Messenger and those in authority from amongst you. If you disputed over a matter refer it to Allah and the Messenger.”9 If any dispute arises between the citizens of the state and those in authority then it must be referred to Islam. This necessitates the appointment of a special Qadi that passes judgement on disputes arising with those in authority. The unjust acts perpetrated by the state are called Mazlema. This is derived from the following hadith. 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 Mazlema against him be it in blood or in money.’”10 Pricing is where the state intervenes to control the prices of goods in the event of high inflation. The Prophet (saw) described the act of pricing as a Mazlema. The conditions of the Qadi Mazalim are the same as those of the Qadi except two extra conditions are added. 1. Male 2. Mujtahid (jurist) The post of the Qadi Mazalim combines judicial and ruling responsibilities so this restricts the post to men. The nature of the crimes committed by the state requires a Qadi who can address any new issue that arises by the state. Therefore the Qadi Mazalim must also be a mujtahid. The Post of Qadi Mazalim is discussed in the section below on judicial independence.
Posted on: Tue, 10 Sep 2013 11:43:40 +0000