What is judicial system of an Islamic state. Discuss qualification for a
qazi in Islamic law? (2004/S, 2006/A)
Q. What are the qualifications of a qazi in an Islamic state? Discuss. (1994, 1996, 1997)
Q. Discuss the judicial system of an Islamic state. (1997, 2005/S)
1. Introduction
Justice is the foundation of states. The importance of thejudiciary in political construction is very prominent. It performs certain functions which are so very necessary for the life and happiness of the citizens. In Islamic law,administration of justice is called siyasha or shariyah. It deals with the enforcement of law as well as policies in an Islamicstate.
2. Judicial system in an Islamic state
There are three categories of institutions through which the siyasha or shariyah of the Islamic state is implemented,
(i) Mazalim courts
(ii) Court of the Qazi
(iii) Court of the Muhtasib
(I) Mazalim courts
This is the highest category of courts. They deal with appellate matters as well as with those that are beyond thejurisdiction of the Qazi. All rights of state are adjudicated by these courts and these courts are not bound by the strict requirements of procedure and qualifications of witnesses etc.
(II) Court of the qazi
The qazi deals with Hudud, Qisas and Tazir where the requirements provided in the Shariah about withnesses and procedure are strictly followed. The qazi also deals with civil matters like contract, torts and also the personal law. He deals with the rights of Allah as well as the rights of the individual.
(III) Court of the Muhtasib
The Muhtasib courts are responsible for the enforcement of the general morality and the policies of the state in accordance with the Islamic norms.
3. Important features of Islamic judicial system
The Holy Prophet (Peace be Upon Him) was the first Qazi. When Islam established its state in Madina, he performed the functions of a judge in accordance with the divied laws. It was one of his duties to settle the disputes of the people.
Quran says:
Allah commandeth, that judge justly if you judge between mankind.” (Al-Nisa: 56)
Following are some important features of Islamic judicialsystem.
(I) Supremacy of law
Supremacy of law is the fundamental principle of Islamic judicialsystem. The Holy Prophet (Peace be Upon Him) established the example that even the head of the state could be sued in his private as well as public capacity. The principle that king can do no wrong” is alien to the Islamic concept of justice.
(i) Direction of Hazrat Umar (R. A)
Following directions have been issued by the second caliph of the Muslims Hazrat Umar, when he appeared before Qazi Zaid bin. To all qazis.
(a) To treat all the persons equally in law.
(b) Not to distinguish between relatives and others.
(c) To abstain from taking bribe.
(II) Independence of judiciary
It is the independence and impartiality of the judiciary which guarantees the peace of the state and satisfaction is totally independent and impartial.
(i) Separation on Judiciary from executive
In the time of Holy Prophet (Peace be Upon Him) the office of executive and the judiciary vests in him but after his death. Hazrat Abu Bakr separated judiciary from the executive and heappointed Hazrat umar as a Qazi.
4. Appointment of qazi
Qazi is a religious judge working under the guidance of Shariah. As far as his appointment is concerned, Quran has not laid down any specific procedure. He may be appointed in following ways.
(i) By the Iman, Caliph, Sultan or Governor
(ii) A non-Muslim ruler of Governor can also appointe a Qazi.
(I) Duration of office
The qazi hold his office at the discretion of the sultan who may dismiss him on suspicion or even without suspicion.
View of Abu Hanifa:
Abu Hanifa says that a qazi should not be allowed to hold office for more than a year.
5. Qualification of qazi
Following are the qualifications of a qazi.
(I) Competent as a witness
A qazi must possess the qualities of a witness viz.
(i) He must be a Muslim
(ii) He must be free
(iii) He must be a major
(iv) He must be sane
(II) Virtuous character
According to Shafiis he must also be of virtuous character but the Hanafis do not consider it a necessary condition.
(III) Mujtahid
According to Al-Shafi, a Qazi should be a Mujtahid but the Hanafi view that the judgment of layman is valid. The Hanafi hold that the function of qazi must be a Mujtahid.
(IV) Well versed in Islamic law
A qazi must be well-versed in Islamic law.
(V) Personal attributes
A qazi should have following personal attributes.
(i) He must not be short-tempered
(ii) He must not mixed freely with the people
(iii) He must have power of decision
(iv) He must have strong faith in Allah.
(VI) Juristic qualities
(i) A qazi must know the norms of justice
(ii) He must have the ability to maintain equity
(iii) He must be impartial
(iv) He must decide cases on the basis of evidence
(v) He must give his decision in detail
(vi) There should be no ambiguities in the decision
(vii) He must act gracefully
6. Status of woman as qazi
According to Hanafis a woman may be a qazi, if she possesses the prescribe qualifications, but she is not competent to pass orders of Hadd or retaliation as in these matters her evidence is not admissible.
7. Powers and jurisdiction of qazi
A qazi may be appointed for a limited time or with jurisdictionover a particular area. Similarly a particular class of cases may be excluded from his jurisdiction or he may be empowered to try only particular classes of cases.
(I) Power to appoint deputy qazi
A qazi may appoint a deputy qazi if he is empowered to do so by the Sultan, and he can also dismiss him.
8. Quasi judicial-duties of a qazi
Following are the quasi-judicial duties of a qazi.
(i) He must look after and protect the waqf property.
(ii) He is the custodian of the property and person of the minors, Lunatics, idiots and missing persons.
(iii) He has the power to appoint an administrator of the deceased.
(iv) He must appoint ideal person for his assistance.
9. Removal of qaz
A qazi may be removed from his office on the following grounds.
(i) If he become insane.
(ii) If he gives decision against the law.
(iii) If he involves in corruption.
10. Conclusion
To conclude, I can say, that it is a general rule that when we know how a state dispenses justice, we know with some exactness the moral character to which it can pretend. InIslamic state justice and dispensation of justice is given a very high place, both state as well as individual level.
Q. What are the qualifications of a qazi in an Islamic state? Discuss. (1994, 1996, 1997)
Q. Discuss the judicial system of an Islamic state. (1997, 2005/S)
1. Introduction
Justice is the foundation of states. The importance of thejudiciary in political construction is very prominent. It performs certain functions which are so very necessary for the life and happiness of the citizens. In Islamic law,administration of justice is called siyasha or shariyah. It deals with the enforcement of law as well as policies in an Islamicstate.
2. Judicial system in an Islamic state
There are three categories of institutions through which the siyasha or shariyah of the Islamic state is implemented,
(i) Mazalim courts
(ii) Court of the Qazi
(iii) Court of the Muhtasib
(I) Mazalim courts
This is the highest category of courts. They deal with appellate matters as well as with those that are beyond thejurisdiction of the Qazi. All rights of state are adjudicated by these courts and these courts are not bound by the strict requirements of procedure and qualifications of witnesses etc.
(II) Court of the qazi
The qazi deals with Hudud, Qisas and Tazir where the requirements provided in the Shariah about withnesses and procedure are strictly followed. The qazi also deals with civil matters like contract, torts and also the personal law. He deals with the rights of Allah as well as the rights of the individual.
(III) Court of the Muhtasib
The Muhtasib courts are responsible for the enforcement of the general morality and the policies of the state in accordance with the Islamic norms.
3. Important features of Islamic judicial system
The Holy Prophet (Peace be Upon Him) was the first Qazi. When Islam established its state in Madina, he performed the functions of a judge in accordance with the divied laws. It was one of his duties to settle the disputes of the people.
Quran says:
Allah commandeth, that judge justly if you judge between mankind.” (Al-Nisa: 56)
Following are some important features of Islamic judicialsystem.
(I) Supremacy of law
Supremacy of law is the fundamental principle of Islamic judicialsystem. The Holy Prophet (Peace be Upon Him) established the example that even the head of the state could be sued in his private as well as public capacity. The principle that king can do no wrong” is alien to the Islamic concept of justice.
(i) Direction of Hazrat Umar (R. A)
Following directions have been issued by the second caliph of the Muslims Hazrat Umar, when he appeared before Qazi Zaid bin. To all qazis.
(a) To treat all the persons equally in law.
(b) Not to distinguish between relatives and others.
(c) To abstain from taking bribe.
(II) Independence of judiciary
It is the independence and impartiality of the judiciary which guarantees the peace of the state and satisfaction is totally independent and impartial.
(i) Separation on Judiciary from executive
In the time of Holy Prophet (Peace be Upon Him) the office of executive and the judiciary vests in him but after his death. Hazrat Abu Bakr separated judiciary from the executive and heappointed Hazrat umar as a Qazi.
4. Appointment of qazi
Qazi is a religious judge working under the guidance of Shariah. As far as his appointment is concerned, Quran has not laid down any specific procedure. He may be appointed in following ways.
(i) By the Iman, Caliph, Sultan or Governor
(ii) A non-Muslim ruler of Governor can also appointe a Qazi.
(I) Duration of office
The qazi hold his office at the discretion of the sultan who may dismiss him on suspicion or even without suspicion.
View of Abu Hanifa:
Abu Hanifa says that a qazi should not be allowed to hold office for more than a year.
5. Qualification of qazi
Following are the qualifications of a qazi.
(I) Competent as a witness
A qazi must possess the qualities of a witness viz.
(i) He must be a Muslim
(ii) He must be free
(iii) He must be a major
(iv) He must be sane
(II) Virtuous character
According to Shafiis he must also be of virtuous character but the Hanafis do not consider it a necessary condition.
(III) Mujtahid
According to Al-Shafi, a Qazi should be a Mujtahid but the Hanafi view that the judgment of layman is valid. The Hanafi hold that the function of qazi must be a Mujtahid.
(IV) Well versed in Islamic law
A qazi must be well-versed in Islamic law.
(V) Personal attributes
A qazi should have following personal attributes.
(i) He must not be short-tempered
(ii) He must not mixed freely with the people
(iii) He must have power of decision
(iv) He must have strong faith in Allah.
(VI) Juristic qualities
(i) A qazi must know the norms of justice
(ii) He must have the ability to maintain equity
(iii) He must be impartial
(iv) He must decide cases on the basis of evidence
(v) He must give his decision in detail
(vi) There should be no ambiguities in the decision
(vii) He must act gracefully
6. Status of woman as qazi
According to Hanafis a woman may be a qazi, if she possesses the prescribe qualifications, but she is not competent to pass orders of Hadd or retaliation as in these matters her evidence is not admissible.
7. Powers and jurisdiction of qazi
A qazi may be appointed for a limited time or with jurisdictionover a particular area. Similarly a particular class of cases may be excluded from his jurisdiction or he may be empowered to try only particular classes of cases.
(I) Power to appoint deputy qazi
A qazi may appoint a deputy qazi if he is empowered to do so by the Sultan, and he can also dismiss him.
8. Quasi judicial-duties of a qazi
Following are the quasi-judicial duties of a qazi.
(i) He must look after and protect the waqf property.
(ii) He is the custodian of the property and person of the minors, Lunatics, idiots and missing persons.
(iii) He has the power to appoint an administrator of the deceased.
(iv) He must appoint ideal person for his assistance.
9. Removal of qaz
A qazi may be removed from his office on the following grounds.
(i) If he become insane.
(ii) If he gives decision against the law.
(iii) If he involves in corruption.
10. Conclusion
To conclude, I can say, that it is a general rule that when we know how a state dispenses justice, we know with some exactness the moral character to which it can pretend. InIslamic state justice and dispensation of justice is given a very high place, both state as well as individual level.
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