Policy for a Judiciary that Secures Sure and Swift Justice, Without Discrimination
August 2013 CE - Ramadan 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.

A. 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 (saw), Islam is characterized by its swift and fair justice with many examples, such as RasulAllah (saw) personally inspecting the markets and judging upon fraud and cheating. Also Islam not enforcing punishment in the case of doubt, rather only with firm Shariah testimony, for RasulAllah (saw) said,

"ادْرَءُوا الحُدُودَ عَنِ المُسْلِمِينَ مَا اسْتَطَعْتُمْ، فَإِنْ كَانَ لَهُ مَخْرَجٌ فَخَلُّوا سَبِيلَهُ، فَإِنَّ الإِمَامَ أَنْ يُخْطِئَ فِي العَفْوِ خَيْرٌ مِنْ أَنْ يُخْطِئَ فِي العُقُوبَةِ"

"Repel the punishment from the Muslims as much as you can, so if there is a way out clear the path for it, for it is better for the Imam to make an excuse in pardon than make a mistake in punishment" [Tirmidhi]. Also, the cutting the hand of the thief not being performed in the Year of Famine, if the stealing was to alleviate the starvation, as Sirkhisi mentioned in "Al-Mabsoot" from Makhool (ra) that RasulAllah (saw) said, «لَا قَطْعَ فِي مَجَاعَةِ مُضْطَرٍّ» "There is not cutting in the compelling famine" and this is what Omar (ra) did during the famine. Also, the example of a Jew winning the case of the shield against the Khaleefah Ali (ra) 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 western nations to revise their legal and ruling frameworks, for example Shariah influenced France's Napoleonic Code, Britain's Magna Carta and the US Constitution.

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 "Caliphate".  The Shariah was abolished firstly under the Western occupation, that began in the eighteenth century, and then through the abolition of the Khilafah "Caliphate" in 1342 AH corresponding to 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 Pakistan, it is British law, including the Criminal procedure Code (CrPC) which was originally written in 1898, that defines crime, trial and punishment. People sense that privileged people escape punishment whilst the weak in society are falsely implicated in cases, with prolonged court cases sometimes exceeding decades. So today the judiciary is characterized by might is right and justice delayed, justice denied and people avoid them as much as possible.

B. Political Considerations: Judiciary secures the interests of the elite group

The elite group within the military and political leadership secures 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 (swt) and His Messenger (saw). 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 Pakistan today it is regarded as anti-state activity, disturbance of the public order or terrorism. Thus, under democracy, kufr laws secure the benefit of the ruling elite and their entourage, as they actually make the law, irrespective of the commands and prohibitions that Allah (swt) has revealed. Moreover this elite group is protected from prosecution through judicial immunity of the rulers, as well as ordinances such as the National Reconciliation. So the Musharraf-Aziz regime was free to execute the orders of America and only Musharaf was brought to court after that, whilst the Kayani-Sharif regime continues betraying Pakistan, without any challenge or threat from the judiciary.

C. Legal Injunctions: Settling the disputes, securing the rights and accounting the rulers

C1. Unlike democracy, in Islam, it is Allah (swt) Who has revealed the laws regarding the crime, its testimonial evidence and punishment. Allah (swt) said,

[أَلَا يَعْلَمُ مَنْ خَلَقَ وَهُوَ اللَّطِيفُ الْخَبِير]

"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 "Caliphate". 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. And the one who judges by other than Islam is in Hellfire, Rasullah (saw) said in the authentic hadith,

"الْقُضَاةُ ثَلَاثَةٌ: وَاحِدٌ فِي الْجَنَّةِ، وَاثْنَانِ فِي النَّارِ، فَأَمَّا الَّذِي فِي الْجَنَّةِ فَرَجُلٌ عَرَفَ الْحَقَّ فَقَضَى بِهِ، وَرَجُلٌ عَرَفَ الْحَقَّ فَجَارَ فِي الْحُكْمِ، فَهُوَ فِي النَّارِ، وَرَجُلٌ قَضَى لِلنَّاسِ عَلَى جَهْلٍ فَهُوَ فِي النَّارِ"

"The judges are of three types: one is in heaven, the other is in fire. As for the one who is Jannah, he is the man who knows the truth and judges by it, whereas the one who knows the truth and aggrieves it in judgment, he is in fire. And the man who judges for the people on ignorance is also in fire." [Abu Dawud]

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 (ra) 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 (saw) 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 (saw) said,

"فمَنْ كنتُ جلدتُ لهُ ظهراً فهذا ظهري فليَسْتَقِدْ منه، ومَنْ كنتُ شتمتُ لهُ عِرضاً فهذا عِرضي فليَسْتَقِدْ منه، ومن كنتُ أخذتُ لهُ مالاً، فهذا مالي فلْيَسْتَقِدْ منه"

"Whoever I had whipped his back here is my back, let him retaliate! Whoever I had cursed his honor, here is my honor let him curse it!  Whoever I had taken some money from him here is my money, let him take from it." It further states in Article 87, "The judge of the Court of Injustices (Madhalim) is appointed to remove all injustices which have been inflicted upon any person who lives under the authority of the State ... irrespective of whether the injustice was committed by the Khalifah or anyone below him from the rulers and civil servants." And in Article 88, it states, "The judge of the Court of Injustices (Madhalim) is appointed by the Khalifah, or by the Supreme Judge. However, he cannot be removed during his investigation of a Madhlamah against the Khalifah, or the executive assistants, or the Supreme Judge; rather the power to remove him in these circumstances is for the Court of Injustice Acts (Madhalim)."

C2. Not only does Islam prevent might being right, for the mighty is the one on truth, Islam establishes swift justice. Uniquely Islam has no appeal system, with endless circuits in courts of various levels. For once the rule of Allah has been established in a matter, the case is concluded. The only situation of annulment is if the judgement contradicts that which Allah has revealed or it was clear that he contradicted the reality of the case.

Hizb ut Tahrir states in its Introduction to the Constitution Article 83, "There is no court of appeal, and no court of cessation, so the judiciary, as far as the method by which the cases are treated, is of a single level. If the judge pronounced a verdict, it would become binding, and it cannot ever be annulled by the verdict of another judge unless he ruled by other than Islam... or it became clear that he gave a verdict that contradicted the reality of the situation.

In addition to the Judges of Mazalim and the general Judges, Islam has the Judge of Hisbah, a judge that will secure the rights of the community, even when there is not plaintiff who has noticed the usurping of the right granted by Islam.

In its Introduction to the Constitution, Hizb ut Tahrir states, in Article 84, "The Muhtasib is the judge who investigates all cases, in the absence of an individual litigation, involving the rights of the public that do not involve the Hudud (proscribed punishments) and criminal acts." It further states in Article 85, "The Muhtasib has the authority to judge upon violations as soon as he learns of them, irrespective of the location and without the need to hold a court session. A number of policemen are put at his disposal to carry out his orders and to execute his verdicts immediately."

C3. Not only does Islam secure swift justice, it secures sure justice by its rigorous procedures for establishing crime. For punishments, Islam stipulated Shariah testimonies which are Shahadah (eye witness), Yameen (oath), Iqrar (confession), Mustanidat-e-Khateyiah (documentary evidences), and these all have Shariah evidences for them. Regarding circumstantial evidences, which are used freely as evidence for conviction in Western law, are used in Islam for the sake of familiarization only and not in the place of firm testimony.  So, when RasulAllah (saw) asked the dying female slave, who had slayed you and she pointed to a Jew, he did not accept her statement as testimonial evidence. He (saw) used it for familiarization, not for conviction and the Jew who was only killed after his confession. Islam, the Deen of Mercy, repelling the punishment in doubt, for there is no punishment without the firm Shariah testimony. RasulAllah (saw) said,

"ادْرَءُوا الحُدُودَ عَنِ المُسْلِمِينَ مَا اسْتَطَعْتُمْ، فَإِنْ كَانَ لَهُ مَخْرَجٌ فَخَلُّوا سَبِيلَهُ، فَإِنَّ الإِمَامَ أَنْ يُخْطِئَ فِي العَفْوِ خَيْرٌ مِنْ أَنْ يُخْطِئَ فِي العُقُوبَةِ"

"Repel the punishment "Hadd" from the Muslims as much as you can, so if there is a way out clear the path for it, for it is better for the Imam to make an excuse in pardon than make a mistake in punishment" [Tirmidhi]. As for the Discretionary Punishments (Ta'zeer), forensic evidences can be taken to establish the crime. For example the examination by the doctor or midwife in the case of rape, in order to enforce the Ta'zeer of fifteen years imprisonment, public lashing and exile for the rapist, if there is not Shariah testimony to perform the Hudd punishment.

C4.  Regarding punishment, after firmly establishing the crime took place, Islam has stipulated exemplary punishment that act as a deterrent to others from committing crime, whereas the Western punishments have led to ever increasing crime, as well as huge prison populations. Under the kufr system, Pakistan's prisons have become schools to teach criminals how to evade capture in the future. Moreover, their punishment is not known to society, as it is behind the walls of the prison, so far from being a deterrent, the current punishments ensures the promotion of crime. This is far from that which Islam has stipulated where the punishment "Hadd" is only implemented after Shariah testimony and when it is confirmed, punishment "Hadd" is carried out publically to deter others and discourage them, for example, the cutting of the hand of the thief takes place publically, such that the entire community is witness to this punishment. Thus there were only a few cases of cutting the hand of the thief under the Khilafah "Caliphate" in over a thousand years of the implementation of Shariah, whereas the current man made laws are exceed this many times this in a single day! Thus the crime rate in the Khilafah "Caliphate" was so low it allowed the people to live in peace and security.

Moreover, not only are the punishments a restraint and deterrent for others to abstain from crime, they also secure the one who is punished by the Khilafah "Caliphate" state, from the most severe punishment, that of the Hereafter. RasulAllah (saw)  said,

"بايعوني على أن لا تشركوا بالله شيئاً، ولا تسرقوا ولا تزنوا...فمن وفي منكم فأجره على الله، ومن أصاب من ذلك شيئاً فعوقب به فهو كفارة له، ومن أصاب من ذلك شيئاً فستره الله عليه إن شاء غفر له، وإن شاء عذبه"

"Give me the bayah on condition that you do not associate anything with Allah, you do not steal and do not commit zina ...So whoever fulfills among you, his reward is with Allah, and whoever does anything of that and is punished for it, then it is expiation (kaffara) for him. And whoever does anything of that and Allah conceals him upon it, if He wills He will forgive him and if He wills, He will punish him." [Bukhari]

Note: Please refer to the following articles of Hizb ut Tahrir's Introduction to the Constitution for the complete evidences from Quran and Sunnah: 77, 83, 84, 85, 87, and 88. To view relevant articles of the constitution for the Khilafah "Caliphate" state, please visit this web link: http://htmediapak.page.tl/policy-matters.htm

D. POLICY: The Khilafah "Caliphate" is a beacon of justice because it implements Islamic Laws

D1. Laws that secure the rights of all citizens of the state, regardless of race, gender, school of thought or religion

D2. A sure and swift process of establishing crime, ensuring the innocent are not convicting whilst settling the disputes promptly

D3. Punishments that act as a restraint and deterrent upon others, as well as an expiation for the most severe of punishments, that of the Hereafter.