Policy for a Judiciary that secure sure and swift justice
بسم الله الرحمن الرحيم
Policy for a Judiciary that secure sure and swift justice, without discrimination
August 2013 CE - Ramadhan 1434 AH
Hizb ut-Tahrir / Wilayah Pakistan has issued a Publicized Policy Position (PPP) regarding ensuring a judiciary that is free from corruption and discrimination, secures the rights of the people, and is strong to hold the rulers to account.
Preamble: The current man-made system of judiciary ensures that might is right and justice is delayed
The most profound and detailed jurisprudence in human history is that of Islam. From the time of RasulAllah صلى الله عليه و سلم Islam is characterized by its swift and fair justice. Examples such as RasulAllah صلى الله عليه و سلم personally inspecting the markets and judging upon fraud and cheating, the mercy of allowing the adulterer to escape as he fled and thus revoked his confession, the precision with which Omar رضی الله عنه established the case of adultery, his application of the Islamic ruling of not punishing the one who steals for basic needs during the time of famine, the example of the Jew winning the case of the shield against the Khaleefah Ali رضى الله عنه because the Judge refused the witness of the son of the Khaleefah, and so on are embedded in the hearts and minds of the Muslims. The corner stone of Islam's judiciary was fair, swift and sure justice. Moreover, Shariah was a standard for world civilization for thirteen centuries, inspiring the Western nations to revise their legal and ruling frameworks, for example Shariah influenced
However, settling the disputes, accounting the rulers and securing the rights of the people is now in an appalling state in the Muslim World since the abolition of the Shariah which was implemented through the Khilafah. The Shariah was abolished firstly under the Western occupation, that began in the eighteenth century, and then through the abolition of the Khilafah in 1924 CE. Since then the criterion has become the human mind in defining the issue of crime, conviction and punishment. Now the Muslim World implements kufr laws, with a selective implementation of Islam. This has led to oppression upon the citizens, regardless of their school of thought, gender, religion and race. In
B. Political Considerations: Judiciary secures the interests of the elite group
The elite group within the military and political leadership secure their interests and those of their colonialist masters through the judiciary. Democracy allows them to decide what should be legalized and what should be declared a crime and the judiciary as the law enforcer merely enforces the will of the elite group. However in Islam, the crime is that which has been made a crime by Allah سبحانه و تعالى and His Messenger صلى الله عليه و سلم. So, that which is regarded as forbidden in a hadith or an ayah is regarded as a crime and is punished. So, whilst Islam sees imposing General Sales Tax and Income Tax as a crime, Democracy enforces usurping of people's private property through such taxation, which is then used to benefit the colonialists through interest payments on loans and the ruling elite through financial corruption. In Islam, energy is a public property and privatization is not allowed as it usurps the community right to benefit from our energy resources. However in Democracy, privatization is legal and actively promoted benefiting the ruling class and their entourage. In Islam accounting the ruler and exposing any collaboration with the enemy is a duty, whereas in
C. Legal Injunctions: Settling the disputes, securing the rights and accounting the rulers
C1. Unlike Democracy, in Islam, it is Allah سبحانه و تعالى Who has revealed the laws regarding the crime, its testimonial evidence and punishment. Allah سبحانه و تعالى said, أَلَا يَعْلَمُ مَنْ خَلَقَ وَهُوَ اللَّطِيفُ الْخَبِيرُ “Should not He Who has created know And He is the Most Kind and Courteous, All-Aware.)” [Surah al-Mulk 67:14] Islam is the firm basis of the judiciary in the Khilafah. Ignorance (Jahl) is other than Islam, including the British law, French penal codes and all other forms of kufr. The judge, whether he is a man or women, Hanifi or Jafari, must be knowledgeable in Islam for he or she will judge by it. RasullAllah صلى الله عليه و سلم said, وَرَجُلٌ قَضَى لِلنَّاسِ عَلَى جَهْلٍ فَهُوَ فِي النَّارِ “A man who passes judgement on the people in ignorance will be in Hellfire” (reported in the Sunan and authenticated by Al-Hakim from Buraydah).”
So in Islam, as it is the will of Allah that is imposed through the judiciary there is no favouritism or privilege based on power or status or any other matter. The rights of the weak are restored to them, regardless of their race, status, gender, school of thought or religion. Abu Bakr as-Siddique رضي الله عنه affirmed to the people upon becoming the Khaleefah, “The weak amongst you is strong before me till I return to him his right, Allah willing, and the strong amongst you is weak before me till I take the right from him Allah willing.” Moreover, when it was requested that a woman who committed theft be pardoned because she was from a noble family, RasulAllah صلى الله عليه و سلم warned the Muslims by saying ...إِنَّمَا أَهْلَكَ الَّذِينَ قَبْلَكُمْ أَنَّهُمْ كَانُوا إِذَا سَرَقَ فِيهِمْ الشَّرِيفُ تَرَكُوهُ وَإِذَا سَرَقَ فِيهِمْ الضَّعِيفُ أَقَامُوا عَلَيْهِ الْحَدَّ وَايْمُ اللَّهِ لَوْ أَنَّ فَاطِمَةَ بِنْتَ مُحَمَّدٍ سَرَقَتْ لَقَطَعْتُ يَدَهَا "The people before you were ruined because when a noble person amongst them committed theft, they would leave him, but if a weak person amongst them committed theft, they would execute the legal punishment on him. By Allah, were Fatimah, the daughter of Muhammad, to commit the theft, I would have cut off her hand.'' [Bukhari]
There is no immunity for the ruler in his violation of Islam and any ruler, be it the Khaleefah or a Wali, that seeks guidance from IMF, ISAF, UN or the US State Department will be brought for immediate trial. Moreover, even the Khaleefah has no right to remove the judge over his case once it is under process, a far cry from Nawaz Sharif and Musharraf's tussles with the judiciary.
In its Introduction to the Constitution, Hizb ut-Tahrir has adopted in Article 77, “In a narration by Tabarani in al-Mu’jam Al-awst by al-Fadhl bin al-Abbas narrated that the Prophet