Taken from the literature of Hizb ut-Tahrir

Criterion of Justice Prerequisites for justice

Defining a Crime Investigation Process of Conviction Punishment Who can Forgive Judicial immunity Independence of Judiciary Qualification of a Judge

Types of Qadhies Accounting the Ruler Swift Justice Judicial rights of non Muslim citizens (Zimmi) &

Foreigners Only Khilafah can provide Justice

Devine Human Mind

Basis for providing justice

Human mind

Freedoms Equality

Expression PersonalReligion Ownership

Same rights and duties for

Man & Woman

Race Gender Creed

The basis of equality can only produce justice if human beings are identical

In this case same rights and duties for every human being will produce justice

Science has proven that Man and Woman are similar in a lot of attributes but at the same time they differ in many others

They differ in terms of physiology, emotions, mental capabilities, hormones, child birth etc

Man is unable to precisely identify the commonalities and differences between man and woman and hence is incapable to assign precise rights and duties corresponding to their respective capabilities

Man Woman

Common Attributes

Attributes specific to Men

Attributes Specificto women

Capitalism gives a simplistic solution to this very complex human problem and declares that man and woman will be considered completely identical and thus will be assigned same rights, duties and roles

Asking a weak and a strong pupil of the same class to lift 40Kg weight may be equality but this is not justice given the abilities of the two students

Similarly same rights/duties for inherently different genders (man & woman) may be

seen as equality but definitely it cannot be seen as justice

The West also recognizes these differences and this is why men and woman compete separately in all types of sport

In the eyes of Islam and society Man and Woman are equal but they are different and hence must have different roles

When Woman happens to be a mother she has authority over man who happens to be his son

Man when assuming the role of father and husband has a leading role over his daughter and wife

Man

Woman

Complementary role of man and woman in society

Only Allah knows man and woman precisely and hence He alone can assign rights and duties for human being which match their abilities

In areas where man and woman have similar abilities their rights and responsibilities are also the same; such as praying, fasting, doing daw’a, giving charity, seeking Jannah by pleasing Allah etc.

But the attributes in which man and woman differ, their duties and rights also vary; such as providing for the family, Jihad, ruling, inheritance etc.

Once the children are grown up they are allowed to leave their parents at their own and take no responsibility of them under the pretext of “personal freedom”; but is this Justice?

Multinationals are allowed to own natural resources which Allah has created for all humans and sell them at inflated prices under the cover of “freedom of ownership” but is this not exploitation of the masses?

A man is legally allowed to humiliate or mock Allah, His messenger or Islam on the basis of “freedom of expression” but should this be allowed?

Can a Qadiyani or any cult be allowed to propagate falsehood and cause confusion about Islam under the guise of “freedom of religion”

A woman is allowed to sell her body by claiming “personal freedom” but is this our idea of a civilized world?

Mind cannot provide the correct basis for Justice

Only the Creator can provide the correct basis for justice, following which we can create a Just society

This inference is completely false that by implementing any system correctly one can serve justice to the people

Justice cannot be achieved until the following principles are not built on “just laws”Laws that define a CrimeLaws of InvestigationLaws related to witnesses and convictionPunishing the guilty as much as he deservesLaws related to forgiveness of the criminalLegal Immunity Independence of JudiciaryQualification of Judges

Khilafah Capitalism Laws related to all the above

points are derived from Qur’an and Sunnah

Laws related to above points are legislated by the parliament or by various commissions

Justice

PunishmentDefiningthe crime

InvestigationProcess of Conviction

Who canforgive

Capitalism:•Wa’da Maaf Gawah•Even a fasiq witness is acceptable•Circumstantial evidence acceptable

Khilafah:•Witness should be Adl•No concept of “Wada Muaf Gawah”

Judicial immunity

Capitalism:•Thief jailed for years

Khilafah:•Witness should be Adl•Burdon of proof is on •All the above is Haram

Capitalism:•President of Pakistan can forgive anything•Plea bargain

Khilafah:•Only the “worasa” can forgive a killer•Nobody can forgive a theft, rap, highway robbery

Capitalism:•Torture•Harassment• Jail for 1 year on suspicion•Entering homes without warrants•Spying

Khilafah:•All the above is Haram

Capitalism:•Propagation of Kufr religions

•Interest•GST•Private ownership of Oil, gas etc

Khilafah:•Islam consider all the above acts as Crimes

Capitalism:•President•PM•Governors•MinistersCannot be brought to courtKhilafah:•No citizen is above the law•Ambassadors and envoys enjoy diplomatic immunity.

Capitalism:•President can terminate any judge anytime

Khilafah:•Khaleefah cannot remove a Qadhi if he is in hearing a case against the Khaleefah

Capitalism:•No compulsion to be Adl (not fasiq)

Khilafah:•All Qadhies has to be Adl.•In addition Qadhi Mazalim should be a Mujtahid as well

Pressure from the ruler

Judge’s Qualifications

Khilafah• All the laws are derived from and all

procedural codes are built upon Qu’an and Sunnah

• Without sharii evidence Khaleefah or representatives cannot alter them

Capitalism• Laws and procedural codes related to

following issues are made either by the parliament or by various commissions

1. Allah (SWT) says: "And judge between them by that which Allah has revealed." [Al-Mai'dah: 49]

2. Criminal procedure Code (CrPC) was originally written in 1898 which defines crime and investigation.

3. Indian evidence Act of 1872 was changed it become Islamic “Qanun-e-Shahadat” by introducing Article 17. Its article 3 still reads as:

“Court shall determine the competence of a witness in accordance with the qualification prescribed by the injunctions of Islam as laid down in the Holy Qur’an and Sunnah for a witness, and, where such witness is not forthcoming, the court may take the evidence of a witness who may be available.”

Khilafah CapitalismAllah’s Ahkam define what is a crime and

what is permissible 1

The Elite group in the parliament will decide among themselves what should be legalised and what should be declared a crime

State cannot impose ban on trade under the pretext of protecting local industries. Hence there is no such crime as “smuggling”

Islam sees imposing GST, Toll Tax, Wealth Tax, Income Tax as a Crime

Import and export becomes a crime under the title of “smuggling” where as robbery is legalised under the names of GST, Toll Tax, Wealth Tax, Income Tax etc

State’s is responsible to protect the aqeedah of the people hence it is not allowed to publicly propagate any creed or ideology other than Islam.

Anybody dealing in Riba, or owning a public property secretly will be brought to justice.

Propagation of Kufr is legalised under the pretext of freedom of religion.

Riba is permissible and private ownership of public property is allowed under freedom of ownership.

Khilafah CapitalismHoarding of wealth is a crime People are free to use their money

or hoard them. It is not a crimeDrinking, fornicating, not covering

in public, mixed gathering etc all are crime

Under the strict definition of personal freedom all of these acts are perfectly legitimate.

Blasphemy is a crime Salman Rushdie is protected under freedom of expression

Jihad and ‘Suicide’ bombing against military targets highest form of reward in Islam

Terrorism in the eyes of the West

Islam consider maltreatment of prisoners of war, a crime

US considers Camp Xray legitimate

Only the Creator knows what is a crime and what is notIf the crime is not identified properly then justice can not be served

1. Ibnu Maja reported in his Sunan on the authority of Ibnu Abbas who said: “The Messenger of Allah (saw) said: “If I were to stone anyone without proof I would stone such and such woman.” The Prophet (saaws) said the above due to the fact that the woman was known to be an adulteress, as understood from the words of Ibn Abbas. If torturing was allowed to obtain a confession, that woman would have been tortured to confess. Hence, it is haram to inflict any kind of punishment before proving the guilt. Muslim narrated from Abu Hurairah that the Messenger (SAW) also said: "There are two types of the people of Hellfire I have not seen yet: some people who have whips like the tails of oxes by which they flog the people".

2. It is reported from Ibn Abbas "A man drank till he got intoxicated and was seen drunk by the people in the street. While, he was being taken to the Prophet (saaws), he escaped and entered the house adjacent to the Abbas house. Then Abbas held him. When the incident was reported to the Prophet (saaws), he laughed and said, "He did it?". He ordered no punishment to be carried out." The messenger (saaws) did not implement the punishment because the man did not confess nor was he proven guilty in the front of the Messenger

3. Allah I says: "O you who believe, avoid suspicion as much as possible, for suspicion in some cases is a sin, and do not spy on each other." [Al-Hujurat: 12] He (SAW) also said: "He who peeps into some people's house without their permission, it is allowed for them to gouge out his eye", narrated by Ahmed from Abu Hurairah. The Messenger of Allah (SAW) said: “Avoid suspicion, for suspicion is the gravest lie in talk, and do not be inquisitive about one another and do not spy on one another, and do not turn one's back to each other, do not hate each other, and be servants to Allah and be brothers” (narrated by Al- Bukhari and Muslim from Abu Hurairah)

Khilafah CapitalismCannot torture an accused or a suspect

1

Torture in Guantanamo Bay and Abu Guraib is a perfect example how legislation is done in Democracy to legalise crime

Cannot send anybody to jail just based on suspicion

If somebody is a habitual criminal and there are enough evidences against him then the court can allow his custody for limited time. And once that time expires he is free. He doesn't need to provide bond to free himself.

People are picked up only based on suspicion or on a false FIR. People are confined to jails based on laws such as Maintenance of Public Order (MPOs) and colonial Security Act of 1923

A man can be picked up and thrown in jail without any proof and legal proceedings for 1 year

Accused is innocent until proven guilty 2

Spying on the Muslims, watching them, chasing them and looking into their confidential and personal news is forbidden 3

In the US, according to Patriot Law, a person can be imprisoned without any proof just based on suspicion to have links with “terrorists”

Laws keep on changing according to what the “Elite Group” likes. Justice can never be served in such a system

So called civil liberties and freedoms have already been violated by the champions of the “Free World”. Yes they are “Free” to perpetrate injustice and oppression until the return of the alternative System - the Khilafah

1. It has been narrated by ‘Amr b. Shu’ayb on the authority of his father who narrated from his grandfather that the Prophet (saw) said: ‘The burden of proof lies on the plaintiff and the oath is to be sworn by the defendant.’ Al-Bayhaqi reported with a sound Isnaad (chain of narraters) that the Prophet (saw) said: ‘The burden of proof lies on the plaintiff and the oath is to be sworn by the person who denies.’

Khilafah CapitalismThe burden of proof lies on the

plaintiff the defendant doesn’t have to provided any proof his oath is seen to be enough

In general to prove any crime Shari’ah requires two Bayyinat (evidences). A Bayyinah is considered to be:

Shahadah (Eye witness)Yameen (Oath)Iqrar (confession)Mustanidat-e-Qatayiah (Documentary

evidences)

In the US the government doesn’t have to prove anthing to keep a person behind bars except for accusing the person with terrorism charges

In the Capitalist system rules continues to change according to the whims and desires of the elite group sitting in the parliament

1. Abdullah b. ‘Umar narrated that the Messenger of Allah (saw) said: ‘The testimony of two women is equal to one man.’ Abu Sa’eed al-Khudri narrated that the Messenger of Allah (saw) said, ‘Isn't the testimony of a woman equal to half of that of a man?’ It is narrated from Abu Sa’eed Al-Khudry that the Messenger of Allah said in a hadith: ‘isn’t the witness of the woman equivalent to half of the testimony of the man? We said, ‘Yes O messenger of Allah.’

2. ‘Uqbah b. Abi Harith, reported : “that he married Umm Yahya, the daughter of Abu Ihab. A black slave woman came and said: ‘I suckled you and your wife.’ He sad: I mentioned that to the Prophet (saw), but he turned his face away from me. I turned away, then I mentioned it to him. He said: How can you marry her after she (the blach woman) claimed she suckled both of you? So he forbade him from her.) In this hadith, the Prophet (saw) instructed the man to leave his wife based on the testimony of a single woman that she had suckled them.

3. It was reported by Al-Bukhari from Basheer ibn Yasaarclaimed that an Ansari man called Sahl ibn Aby Hatmah told him, “that some of his folk went to Khaiber, and they dispersed there, and found one of them killed. They said to the people amongst whom they found him, you killed our friend. They said, we did not kill, and know who killed. So they went to the Prophet (saw) and said: O Rasool Allah. We went to Khaiber, and found one of us killed. He said: It is a grave sin; it is a grave sin (al-kibr, al-kibr). He said to them: Bring testimonial evidence about his murder. They said: We do not have evidence. He said: Then they give an oath. They sad: We do not accept the oaths of Jews. The Messenger of Allah disliked that his blood becomes unavenged, so he paid his blood money (diyyah), as one hundred camels from the camels of the zakah (sadaqah).” This hadith indicates that the Messenger asked them for evidence about a murder happened amongst the Jews. This is because they sad to him: ‘We went to Khaiber, and found one of us killed’. Though he knew the incident took place in Khaiber, amongst the Jews, and within their tribe, he mentioned the evidence (bayyinah) without specifying that it must be from Muslims, with the presence of the indication (qareenah) that the incident was among the Jews. This indicates that if it came from the Jews he would have accepted it. This is confirmed by his offer to the claimants that Jews take an oath. It came in the narration of Sahl ibn Aby Hatmah; ‘ Thus, Jews releave you by fifty oaths; so they said how can we take oaths of kuffar people.’ The oath is one of the testimonial evidences (bayyinaat). This indicates that, regarding the the bayyinah of jinayaat, the non-Muslim witness is accepted, as well as his oath.

4. Allah (SWT) says: “When death approaches any of you, and you may bequest than take the testimony of two just (A’dl) men from your own folk or two others from outside (non-Muslims)” .

KhilafahA Muslim is by default trustworthy hence the witness doesn’t have to prove that he is

‘Adl (trustworthy) rather others have to prove that he is a fasiq or not qualified to be a witness

Qualification of Witness Sane Mature (Baligh) Ádl (Opposite of Fa’siq, or somebody who is not generally known as corrupt)

A Woman can be a witness in all matters including that of HudoodIn general the witness of one woman is half as that of man 1

But in matters where only women have access to, like childbirth, suckling, lineage etc Islam accepts testimony of a single woman as sufficient to pass a judgment 2

Non-Muslims are accepted as witnesses3 unless someone could prove that he is corrupt or not an upright person. His witness is accepted in all matters except Financial matters, Raju’, Divorce and Marriages, Wasiyyat (Will) and Moonsighting 4

1. It is reported by Ali (ra) he said the Messenger (saw) said: “Oh ali, if two people come to ask you to judge between them, do not judge to the first one unitl you hear the word of the second one in order to know how to judge” . (Ahmad, Abu Daud)

2. Allah (swt) says: "So when they fulfil their appointed term, either take them back on equitable terms or part with them on equitable terms, and take for witness two persons from amongst you endued with justice." T.M.Q [65-2].

3. Imam Jassas reports in “Ahkam ul Quran” and Ibn Taymiyya in his book “Al hisba fil Islam” that Umar punished and judged tazir for a scholar who gave false testimony. He shaved his hair, painted his face black, removed some clothes, put him on a donkey backwards and paraded him all day in front of the people.

Khilafah CapitalismA judge should not judge without

listening to both the parties 1

Islam gives the defendant the right to defend himself

The defendant and the complainant have the right to a lawyer of their own choice

In the wake of Oklahoma bombing the US government has wide powers to arrest detain and deport aliens based upon secret evidence -- evidence that neither the alien nor his attorney could view or refute

Prisioners at Camp Xray do not have the basic right to a lawyer

In the Capitalist system rules continues to change according to the whims and desires of the elite group sitting in the parliament

Witness should be Adl (just) 2

No concept of “Wada Muaf Gawah”False witness is punished 3

Even a fasiq witness is acceptableWa’da Muaf Gawah acceptedFalse witness is not accounted

Innocent people are implicated in crimes through false witnessesNo justice without correct laws relating to scrutiny of witness

Khilafah CapitalismIn cases of Hudood any shred of evidence which

produces doubt would evade a guilty verdictIn cases other than Hudood punishment is

pronounced based on Galabat-uz-Zaan (Most probable)

Once the verdict is pronounced the judgment is considered the Law of Allah on the issue and cannot be revoked by any other judge

Circumstantial evidence are acceptable

Scores of innocent people rot in jail for years or are hanged, as the principle of definite proof is not followed in the man-made system

No concept of jury. Judgment is not left to people who are ignorant of Shara’i ahkam and evidences

In American judicial system common people who are neither lawyers nor judges are made to pass a decision as happened in the infamous O. J. Simpson case in the US

How can the matter be left to incompetent people, ignorant about the law and matters related to legal decision making

1. The evidence of this article is reflected in the fact that the Messenger of Allah (saw) never appointed two judges for a single case. He always appointed one Qadhi for the one case. Besides the Judiciary is conveying the Shari'ah rule for implementation, and the Shari'ah rule with respect to a Muslim is not diverse. It is the rule of Allah and the rule of Allah is one. It is true that the understanding of the rule could be diverse. But with respect to a Muslim in terms of acting upon it, the rule is one and can never be diverse. Hence, whatever the Muslim understands as the Hukam of Allah it becomes the rule of Allah related to him. Any other understanding does not represent the rule of Allah as far as he is concerned, though in his view, it is still a valid Shara’i opinion, provided it is extracted through the process of Ijtihad. When the Qadhi conveys the rule of Allah pertaining to the case, for implementation, this judgment must be one, because it is the conveyance of Allah’s rule for implementation not merely conveying his opinion for an intellectual discourse. This means that in essence it is acting upon the rule of Allah, and the rule of Allah with regard to acting upon it, does not diversify, even if the understanding is diversified. Therefore, it would be wrong for the Qadhi to be more than one since this will diversify the rule of Allah.

Khilafah CapitalismThe verdict is passed by a single judge

based on what he finds to be correct 1

There could be other judges assisting the main judge

The majority or minority is not considered

There are Double benches and full benches

Sometime they contradict each other yet the final decision is based on the majority as happened in Z.A. Bhutto’s case

The truthfulness of the matter cannot be gauged by the number of people carry a certain view, rather it is gauged by the strength of the evidence

Khilafah CapitalismThe plaintiff has the priority to chose the

Qadhi in case there are more than one Qadhies in the specified court because he is the one who is seeking the justice

The registrar chooses which judge would hear the case.

The cases against the government are automatically funneled to the judges who are known to have inclinations towards the government

The powerful elite influence the registrar to send the case to the judge of their choice

In the Danial Perl case, the government not only moved the court to different location but she also changed the Judge after the case proceeding had already started, to get the desired judgment

1. It is narrated that Mohammed (saw) said that: “to free someone criminal is better than to punish someone innocent.”

Khilafah CapitalismThe principle of the Punishment System is

to, “prevent the punishment as much as possible” 1

Only Allah knows what is a “Just” punishment for a crime. He has divided punishments into four sub categories:Hudood

It is the Right of Allah (swt) and no one can forgive. Punishment is already decided by Allah such as in fornication, slandering etc.

Al-JynayaatIt is the right of the person and he/she can

forgive. The compensation is set by Allah not the person himself, e.g. money equivalent to 100 camels for unintentional killing etc.

Man decides what should be a “just” punishment

In America various states keep changing the punishment for a murderer. Alcohol was legal then made illegal and then legalized againWhen justice is not served it doesn’t teach the society a lesson and

the crime breads

Khilafah CapitalismIn matters related to the community and

State Allah has left it on the state to adopt a punishment keeping in view the gravity of the issue and its implications:Al-Ta’azir

This is considered “the right of the community”. It covers those issues which affect the society in every day life like, shouting in the streets and throwing rubbish onto the street etc. The state adopts the punishment for the crime.

Al-MukhalafatThis is the “right of the state”, and it covers the

issues which the state enacts such as breaking the speed limit, parking in no parking areas etc... Again, the state will adopt the punishment for the crime.

Man decides in these matters as well

Khilafah CapitalismThe aggrieved party can forgive the

criminal without bringing him to court. But if he is brought to court then the charges cannot be dropped and judgment will be passed by the judge. There are few exceptions to this rule e.g. death sentence etc.

The plaintiff can withdraw his/her case anytime he/she likes

If a person is brought to the court then he will be judged upon

No concept of legalised bribery (plea bargain)

Plea bargain is allowed

The rich gets off the hook since he has money to strike a deal with the government in the shape of plea bargains or bribery etc.

People like Nawaz Sharif loot and plunder and then legalize this money by giving a part of it as ransom

1. The ambassadors and their likes are excluded from this and the rules of Islam would not be implemented upon them, for they would be given diplomatic immunity. This is so because Ahmed reported on the authority of Abu Wa’il who said: “Abdullah said when Ibnul Nawwaha was killed: “This one and Ibnu Uthal had once come to the Messenger of Allah (saw) as envoys of Musaylima the liar and the Messenger of Allah (saw) said to them: “Do you bear witness that I am the Messenger of Allah?” They said: “We bear witness that Musaylima is the Messenger of Allah.” Upon this the Messenger of Allah (saw): “If I were to kill an envoy I would strike your necks.” Since then, a tradition has been established stipulating that the envoy does not get killed. As for Ibnu Uthal, Allah (swt) has taken care of him, as for this one he remained immune until Allah enabled us to slay him now.” This Hadith indicates that it is forbidden to kill the envoys who are dispatched by the Kuffar, and likewise all the other rules. However, this is exclusively applicable upon those who have the capacity of an envoy, such as the ambassador and the “Chargé d'affaires” and the like. As for those upon whom the capacity of an envoy does not apply, such as the Consul and the Commercial Attaché and the like, they would not have any immunity, for they do not have the capacity of an envoy. This matter should be referred to the convention, because it is a terminological expression whose reality should be perceived by way of looking into the convention, and it is part of establishing the Manat (reality) i.e. establishing whether they fit the description of envoys or not

2. Article 48(4) of constitution reads: The question whether any, and if so what, advice was tendered to the President by the Cabinet, the Prime Minister, a Minister or Minister of State shall not be inquired into in, or by, any court, tribunal or other authority.

Article: 248 Protection to President, Governor, Minister, etc

(1)The President, a Governor, the Prime Minister, a Federal Minister, a Minister of State, the Chief Minister and a Provincial Minister shall not be answerable to any Court for the exercise of powers and performance of functions of their respective offices or for any act done or purported to be done in the exercise of those powers and performance of those functions:

Provided that nothing in this clause shall be construed as restricting the right of any person to bring appropriate proceedings against the Federations or a Province.

(2) No criminal proceedings whatsoever shall be instituted or continued against the President or a Governor in any Court during his term of office.

(3) No process for the arrest or imprisonment of the President or a Governor shall issue from any Court during his term of office.

(4) No civil proceedings in which relief is claimed against the President or a Governor shall be instituted during his term of office…

Khilafah CapitalismNobody is above the law, even

the Khaleefah can be brought to court for his personal or administrative actions

Ambassadors and envoys enjoy diplomatic immunity 1

According to article 48(4) & 248 of the Pakistani Constitution the following people have judicial immunity and cannot be brought to court, inquired or imprisoned by any authority in disposing of their responsibilities 2

PresidentPrime MinisterGovernorChief MinisterFederal & Provincial MinistersMinister of State

Capitalism gives rise to legalized corruption. No wonder why everybody wants to be a Minster

1. The Khaleefah has the right to look into the Mathalim and he has the right to appoint a Qadhi of Mathalim and he also reserves the right to remove them. Hence in origin it is permitted for the Khaleefah to appoint and dismiss all Qadhies i.e. it is part of the Mubah actions of the Khaleefah. However, if the authority of removing the Qadis of Mathalim remains with the Khaleefah, and other charged with ruling, under all circumstances, then there is a high chance that the Qadhies wouldn’t be able perform there job such as removing the Kahleefah and other people in authority, if found guilty. Since the Qadhies of Mathalim could be removed before they could remove them; they could be even unable to look into the cases of Mathalim tabled against the Khaleefah. Hence, the competence of looking into some of the cases of Mathalim remains stalled or subject to the threat of removal against the Qadhies, and this leads to stalling the Shari'ah rules in one specific area. And the stalling even a single Shari’ah rule is forbidden. Thus, if the competence of removing the Qadis of Mathalim remained with the Khaleefah under all circumstance, this would become a means to the suspension of the Shari'ah rules in a specific aspect, which is Haram. Therefore according to the Shari'ah principle: “The means to Haram is forbidden.”, the Mubah action of the Khaleefah would become forbidden as it would lead to something which is Haram. This principle is deduced from Allah’s (swt) saying :"And do not insult those who call to other than Allah lest they insult Allah out of spite in their ignorance....." . [T.M.Q 6-108] Therefore, the Khaleefah, Muawin Tafweed or the Qadhi al Qudah (the Chief Judge) does not have the right to remove the Qadhi of Mathalim while he is in the process of hearing a case against them.

Khilafah CapitalismThe Qadhi could not be removed

if he is in the process of hearing a case against the Khaleefah, Muawin Tafweed or the Qadhi al Qudah (the Chief Judge) 1

The head of state has the authority to remove the judge any time. The perfect example was Nawaz Sharif’s tussle with the Chief justice Sajjad Hussain Shah

In the Khilafah system, Qadhi feels secure and free to serve justice

1. With regards to the Qadhi Hisba and Aamit is allowed for the women to be a Qadhi in these courts. As for the Qadi of Mathalim, he must be a man just like the Supreme Judge, because his job involves judging and ruling, for he passes judgement on the ruler and implement Shari'ah upon him, thus he must be a man, in addition to all other requirements of the Qadi which include the requirement of being Faqih. It is because “People who hand their affairs to a woman shall not succeed.”

2. Moreover, he should also be a Mujtahid because part of the Mathalim into which he looks is the possibility of the ruler ruling by other than what Allah has revealed, namely if he were to rule by a rule that has no Shari'ah evidence, or if the evidence he uses did not agree with the matter at issue; thus this type of Mathlama could only be looked into by a Mujtahid. If he were not a Mujtahid, he would be judging out of ignorance, and that would be forbidden. As the Hadith says “And a man who judged for people with ignorance, he is in hell-fire.” Hence, in addition to the requirements of the ruler and those of the Qadi, he should be a Mujtahid.

Khilafah CapitalismAll Qadies must have the following

necessary conditions for appointment: Sane Mature Muslim Adl (opposite of fasiq) Faqih (knowledgeable in Islamic Law)

A non-Muslim could be a judgeA judge doesn’t have to be Adl and

Faqih to implement British Law in Pakistan

For Qadhi Mazalim there are two additional conditions Male 1

Mujtahid 2

No such conditions in any level of judiciary in Pakistan

Qualifications such as Adl, Faqih and Mujtahid are not needed in the current colonial judicial system of Pakistan

1. Allah (SWT) says: "And judge between them by that which Allah has revealed." [Al-Mai'dah: 49]

Khilafah CapitalismAll the laws related to Judicial

system are derived from Qur’an and Sunnah and all procedural codes are built upon Qu’an and Sunnah

Without a shar’i evidence, these laws cannot be altered by neither the Khaleefah nor the representatives, to suit themselves to avoid justice

All laws and procedural codes related to judiciary are man made either through parliament or through various commissions etc

Pakistani justice system is a legacy of the British Colonial system

The Elite group in the parliament is the final authority to alter these laws who themselves are mostly involved in the persecution and injustices with the common people

The Qadhi judges based on Qur’an and Sunnah and nothing else1

The Judges have no option but to pass judgement based on what is legislated by the parliament

Laws given by Allah are free from any kind of bias hence provide justice where as “Elite Group” will always look for it’s own interest or the interest of the colonialist master

Qadhi is forced to rule according to what has been revealed by the Creator and hence the laws and the rights given by the creator to His creations do not change with the whims and desires of the rulers

1. Hisba means: 'Conveying the divine rule for the purpose of enforcing it regarding that which causes harm to the rights of the community.‘ This is highlighted in the Hadith of the heap of food. It has been reported in Sahih Muslim on the authority of Abu Hurayra 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 does not belong to me."

Khilafah CapitalismThere are three types of courts dealing with

different issues. No concept of higher or lower courts Qadhi Mohtasib Qadhi Aam Qadhi Mazalim

Different levels of courts Magistrate District Courts Session Courts High Courts Supreme Courts

Qadhi Mohtasib Deals with crimes committed against the

society and violations of the community’s rights such as cheating on the scales, encroachments etc 1

He may not sit in a court or place but he moves around in the society.

He has police officers accompanying him. He judges at the spot and passes judgement and punishment such as fines etc

1. The evidence for the judge who settles disputes between people, i.e. Qadhi Aam, is derived from the actions of the Messenger of Allah (saw), and from his appointment of Mu'az Ibnu Jabal over an area of Yemen.

2. The Mazalim (unjust acts) were mentioned in the Hadith of the Messenger of Allah (saw) regarding the fixing of prices where he said: "And verily I hope that I will meet Allah Azza wa Jall without having anyone claiming against me a Mazlama (complaint) I inflicted on him, be it of blood or funds" as narrated by Ahmad on the authority of Anas. The evidence for the judge of Mazalim (unjust acts), is derived from Allah (SWT) saying: "O you who believe obey Allah and obey the Messenger and those in authority from amongst you. If you dispute about something refer it to Allah and the Messenger." [An-Nisa: 59] Therefore, any dispute between the citizens and the people in authority should be referred to Allah and His Messenger i.e. to the rule of Allah. This necessitates the presence of a judge to give judgment on this dispute, and this is the judge of Mazalim. Evidence is also derived from the action of the Messenger of Allah (saw), for he (saw) appointed Rashid Ibnu Abdullah (ra) as judge of Mazalim.

KhilafahQadhi Aam 1

Settles disputes among the people in transactions and punishmentsJudges on crimes committed against the state includes Hudood and Ta’zeerat

Qadhi Mazalim 2

Judges upon disputes between the State/Rulers and the peopleComplaints against all judges and civil servantsJudges upon conflicts between the Muslims and the State about the interpretation

of any Shari'ah textsCan take suo moto action against the State and its machinery

1. The Khaleefah is removed from the Khilafah post in situations where he becomes out of the Khilafah bounds, thus the obedience would not become obligatory. This would be in case if he apostatises, becomes completely insane or falls prisoner in the hands of a powerful enemy from where he cannot deliver himself. However, there are other cases when his removal becomes incumbent but his obedience remains obligatory until he is actually removed through the process laid down by the Shari’ah. This would be the case if he becomes flagrantly Fasiq, becomes partially insane, for any reason is unable to bear the burdens of Khilafah or in case he is experiencing subjugation that prevents him from disposing of the interests of the subjects by his own opinion and within the boundaries of Shari'ah. In such cases he must be removed and should be deliberated in the Mathalim court and nowhere else.

2. 'Ubadah Ibnus-Samit reported: "The Messenger of Allah (SAW) called us and we gave him the Bai'ah (oath of allegiance). Among the injunctions he made binding upon us was to listen and obey to the Ameer in our pleasure and displeasure, in our adversity and prosperity, and giving (others) preference over ourselves, and not to dispute the authority with its people, he said: "Unless you see a flagrant disbelief on which you have clear proof from Allah," narrated by Muslim.

Khilafah CapitalismQadhi Madhalim can take sua

moto action against the injustices of the State

Can even impeach the Khaleefah if found guilty of crime for which Islam requires his impeachment such as becoming a fasiq, or ruling with kufr etc. 1

According to article 48(4) of the Pakistani Constitution President, Prime Minister, Governors, Federal & Provincial Ministers, cannot be brought to court or inquired by any authority in disposing of their responsibilities

Hence an important issue of impeachment of the ruler is not decided on the whims and desires of the people rather one of the most responsible citizen of the society, Qadhi Mazalim, passes a judgement based on rules laid down by the Shari’ah, not on his personal desires or grudges.

The ruling has to be very obvious for which there is a “Clear Daleel” from Qur’an and Sunnah. The whole Ummah is a witness over such a high profile decision, which even keeps the Qahdi Mazalim in check as well.2

Khilafah CapitalismThere are four types of crimes in islam:

Qadhi Mohtasib Qadhi Aam Qadhi Mazalim

Different levels of courts Magistrate District Courts Session Courts High Courts Supreme Courts

Qadhi Mohtasib Deals with crimes committed against the

society and violations of the community’s rights such as cheating on the scales, encroachments etc 1

He may not sit in a court or place but he moves around in the society.

He has police officers accompanying him. He judges at the spot and passes judgement and punishment such as fines etc

1. There is no Court of Appeal since court proceedings are only undertaken when the evidence is proven to be 100% definite. The ruling of the Qadhi cannot be revoked, be it by him or by any other Qadhi. Abu Bakr (ra) judged on certain issues according to his Ijtihad and Omar (ra) differed with him, but he did not revoke his rulings. Ali (ra) also differed with Omar (ra) in his Ijtihad, but he did not rescind his rulings. The people of Najran came to Ali (ra) and said to him “O Amir of the believers, your book is in your hands and your intercession is by your tongue.” He replied: “Woe to you! Omar was rightly guided and I shall never quash a ruling delivered by Omar.” It has also been reported that Omar (ra) has ruled in “Al-Mashrakah” (sharing inheritance) by excluding the brothers by two fathers; then in another case he included them in the share and said: “That was my ruling then and this is my ruling now.” When the Qadhi passes judgement in the case, he is in fact putting the rule of Allah into action, thus its execution becomes obligatory. Hence, it must not be quashed at all, because it would be a quashing the rule of Allah, and that is forbidden.

Khilafah CapitalismThe decision made by the Qadhi

is final and there are no appeals to higher courts 1

There are appeals starting from Magistrate to the Supreme court

Provides swift and speedy justice. The rightful owner doesn’t have to run from one court to the other

Speedy and free justice discourages corrupt from committing crime

The aggrieved party can take the Qadhi to the Madhalim courts if his judgmentcontradicts definite text in the

Qur'an, Sunnah or Ijma'a as-sahabah

or contradicts a true reality

The judge’s decision can be over-ruled by the superior court but he is seldom punished for his corruption

Keeps the Qadhi in-check from corruption

1. Allah (SWT) says: “And if you judge between people that you judge with justice.” [TMQ: 4-58] Also in His (SWT) says: “And let not the hatred of others to you to make you swerve to wrong and depart from justice. Be just, that is next to piety and fear Allah, for Allah is well acquainted with all that you do.” [TMQ: 5-8] It is also reflected in Allah (swt) saying pertaining the judgement between the people of the book: “If you judge, judge with equity between them; for Allah loves those who judge in equity.” [TMQ: 5-42] A Muslim who had killed a Jew was brought to the Messenger of Allah (saw), so he killed him and said: “We are the worthiest in fulfilling our oath.”

2. The Messenger of Allah (saw) approved the drinking of Khamr (alcohol) by the Jews and Christians as well as their rules for marriage and divorce. The Messenger's (saw) approval is a specification for the general evidence. Regarding marriage and divorce, the Messenger's (saw) approval applies only when both mates are Kuffar. In situations where the husband is a Muslim and the wife is a Christian or a Jew, the rules of the Shar'iyah must be implemented on them. It is not possible that the wife is a Muslim and the husband is a Kafir, because such a marriage is invalid by the saying of Allah (swt): "Then send them not back to the unbelievers. They are not lawful (wives) for the unbelievers, nor are the unbelievers lawful (husbands) for them."

3. Islam also outlined that the Zimmi enjoy the same justice we enjoy and that they should abide by the same rules which we abide by. As for abiding by that which we abide by, this is derived from the actions and sayings of the Messenger of Allah (saw). He (saw) used to exact the same punishment upon the Kuffar and the Muslims. The Messenger of Allah (saw) punished a Jew by killing him for killing a woman. A Jewish couple were brought to the Messenger of Allah (saw) because they committed adultery, so he ordered their stoning to death.

4. Allah (swt) says “There is no compulsion in the Deen” T.M.Q [2 -256]. and the Messenger of Allah (saw) said: “He who has embraced Judaism and he who has embraced Christianity, they should not be coerced away from their faith.” Hence, any action, which to them is considered as a matter of faith, we should not interfere with them and we should allow them to practise what they believe, even if this were not in our Deen part of Aqeedah matters. Also any action which the Messenger of Allah (saw) allowed them to perform, such as drinking alcohol, and getting married, we should also not interfere with them in regard to these actions.

Khilafah CapitalismAll people are equal before the Law.

The law provides justice to all irrespective of colour, race and creed1

In matters of food, clothing and marriage the non-Muslims are treated according to their religions within the limits allowed by Ahkam Shari’ah 2

In matters related to systems such as economic, social, ruling etc Islam is implemented on all citizens alike 3

Non-Muslims are allowed to follow their own beliefs and worships and they are not forced to accept Islam 4

US has passed discriminatory laws for alien residents such as bugging their phones etc.

A Muslim citizen is not allowed to marry more than one wife in the US

In certain Capitalist states Muslim women are not allowed to wear Hijab

UK law denies entry to under-18 wives

Only Islam can protect the rights of the all people living under the authority of the State irrespective of their colour, race, creed and nationality

Justice

PunishmentDefiningthe crime

InvestigationProcess of Conviction

Who canforgive

Above the Law

Pressure from the ruler

Judges Qualifications

To provide justice all the above 8 elements have to be built on “just” laws & principles

Judicial system has a direct relationship with the process of legislation i.e. Ruling System

Capitalist System can never serve justice since laws related to justice system are also legislated by the “Elite Group”. As most of them are involved in the persecution of the masses themselves, they would never legislate laws and procedures that would bring justice to people

Hence to provide justice to the people we will have to establish Khilafah where all the above 8 elements are derived from the sources given to us by the Creator which are neither biased in favor of the poor nor the rich

Khilafah

oTo implement Islam’s Judicial System we require its corresponding ruling system i.e. the Khilafah. In the Khilafah no one has the authority to change Allah’s laws or abrogated them

oDictatorship and Democracy cannot implement Islam’s Judicial System as man is the legislator in both these systems and the powerful can easily change the just laws of Islam in their personal interests to subjugate the rights of the weak and the poor

Decision making

Legislative Mubah(General issues)

Mubah(needing expertise)

Economic Ruling Social Judicial EducationForeignPolicy

The ruler

The ruler

The ruler

Decision making

Legislative Mubah(General issues)

Mubah(needing expertise)

Economic Ruling Social Judicial EducationForeignPolicy

Elite Group

Elite Group

Elite Group

Decision making

Legislative Mubah(General issues)

Mubah(needing expertise)

Economic Ruling Social Judicial EducationForeignPolicy

Khaleefah is final authority after discussing with experts

People Through their representatives decide based on majority

Allah’s Ahkam Are implementedderived from thesources, Qur’an,Sunnah, Ijma us SahabaQiyas