The "Caliphate and Imamate in Islamic Thought" Series
By the writer and thinker Thaer Salama - Abu Malik
Episode Seventy-Two: The Islamic View of the Separation of Powers – Part 1
As for the Islamic view on the subject of the separation of powers1, it can be summarized as follows:
As we have previously shown, the Legislator revealed the rulings so that people would act justly, and this is a great objective of Sharia, and therefore the Legislator surrounded it with what guarantees its achievement.
Since the affairs of the state cannot be conducted, the interests of the people cannot be taken care of, and their affairs cannot be managed except by one authority, the state is one authority and not several authorities. In Islam, you find that the judiciary is not an authority because the judge does not dispose of people's interests, but rather informs the ruling as a matter of obligation. He is informing of the ruling even if it is binding and not disposing of people's interests. The one who takes care of people's affairs is the authority, i.e. the Islamic government only, and legislation belongs to God Almighty. Therefore, the Shura Council is not a council for legislation and enacting laws, but for taking opinions, so there is no multiplicity of authorities! Authority means and its concept: disposing of people's interests!
Even if we hypothetically assume that the judiciary is an authority, and the executive is an authority, then we say that the guarantee of achieving the objectives of Sharia is not only achieved through the mechanism of separation of powers, but is achieved through surrounding those authorities with a fence of rulings that guarantee the proper application of it. The judge, for example, does not have a mechanism for separating his work from the executive authority, for example, is not a guarantee for performing his work correctly, but rather the guarantor for his performance of his work in the correct manner is his performance of his work in accordance with the system of legislation, which surrounded his work with a fence of rulings that show him how to judge with justice, and Islam set out highly accurate rules for deriving rulings and applying them to facts, which forms a disciplined method of ijtihad for the judge, and warns him against the consequences of judging with injustice. The Messenger of God, may God bless him and grant him peace, said: «Judges are of three types: two judges are in Hell, and one judge is in Paradise. A judge who judges unjustly, and he knows it, is in Hell. A judge who judges unjustly, and he does not know it, is in Hell. A judge who judges justly is in Paradise.» A raised hadith, and so on, rulings are a fence, and there are also important considerations that we will detail in a little while, God willing, that guarantee the judge’s good performance of his work, and non-interference in it, and what would achieve the objectives of Sharia.
The noble Messenger, may God bless him and grant him peace, used to send people to the Islamic regions on a mission to rule or judge. He sent Muadh to Yemen, as in the famous hadith, "How will you judge if a judgment is presented to you?" I said, "I will judge according to the Book of God ... etc." What I see in portraying the relationship between the (legislative authority), the (executive authority), and the (judicial authority) is that the (legislative authority), in its general rules that are not subject to interpretation, is completely separated from the executive and judicial authorities. This authority does not have the right to change those general rules, nor to alter them, because legislation is only for God Almighty alone.
As for matters of interpretation, considering that the Caliph - who is the head of the executive authority - is the shepherd responsible for his flock, and he is the guardian whose obedience God has made obligatory, he alone is the one with the authority to adopt rulings when disagreement occurs in interpretation2. And the Imam's command removes the dispute. Yes, he consults with scholars and discusses controversial jurisprudential matters with them, but in the end he is the one who decides.
1- http://www.hizb-ut-tahrir.info/ar/index.php/radio-broadcast/radioarchive/15672.html
2- As for the Islamic view on the subject of the separation of powers, it can be summarized as follows:
As we have previously shown, the Legislator revealed the rulings so that people would act justly, and this is a great objective of Sharia, and therefore the Legislator surrounded it with what guarantees its achievement.
