"The Caliphate and Imamate in Islamic Thought" Series
By Writer and Thinker Thaer Salama – Abu Malik
Episode Seventy-Three: Islam's View of the Separation of Powers - Part 2
As for the separation between the (Executive Authority) and the (Judicial Authority), Islam does not make the judicial authority separate from the executive authority. Often, the judge combined his authority in the judiciary with other executive functions, such as leading the army. In any case, I believe that the separation of the executive authority from the judicial authority is one of the matters whose decision was left to the authority holder. If he sees that the separation between them is the way to ensure the integrity of the judiciary, he separates. If he believes that combining them in one body is faster in implementing judgments, he combines.
The Messenger of God, peace and blessings be upon him, appointed judges. He appointed Ali as judge of Yemen and advised him as a reminder of how to judge, saying to him: "If two men bring a case to you, do not judge for the first until you hear the words of the other, and you will know how to judge." Narrated by al-Tirmidhi and Ahmad. In a narration by Ahmad with the wording: "If two disputants sit before you, do not speak until you hear from the other as you heard from the first." Likewise, the Prophet, peace and blessings be upon him, appointed Mu'adh bin Jabal as a judge over al-Janad. Each of them is evidence of the legitimacy of the judiciary.1
It is known that (Omar bin Al-Khattab), may God be pleased with him, separated2 the task of judging from other tasks and functions. He made Abu Al-Darda' a judge in Medina, Shuraih for judging Kufa, Abu Musa for judging Basra, and Uthman bin Qais for judging Egypt, and did not combine any other task with their judging and linked them to himself directly, and did not give the governors any authority over them. The judicial authority may be independent of the governors, but it is not independent or separate from the Caliph, who is the head of the executive authority.3 This is because the judiciary has powers that must be granted by the person with the authority (i.e., the Caliph) to them, just as the person with the authority, i.e., the Caliph, has powers granted to him by the original person with the authority, i.e., the nation. Dealing with the interests of the people requires powers to be able to do so, and these powers are given to the judge by the person with the authority. When the judge rules in a case, the ruler is the one who implements the judgments of his judiciary, which also includes considering cases of grievances; because they are part of the judiciary, as they are a complaint against the ruler, and they, i.e., grievances, are: (reporting the legal ruling as binding in what occurs between the people and the Caliph or one of his assistants or governors or employees, and in what occurs between Muslims from disagreement in the meaning of a text from the texts of the Sharia that is intended to be judged according to it and ruling accordingly). Grievances were mentioned in the Prophet's hadith on pricing, as he said: "...and I hope to meet God, and no one demands from me a grievance that I have wronged him in blood or money." Narrated by Ahmad through Anas, which indicates that the matter of the ruler or governor or employee is raised to the judge of grievances in what someone claims is a grievance, and the judge of grievances informs of the legal ruling as binding.4 So the judiciary has a binding effect on the executive authority in its rulings!
﴿O you who have believed, be persistently standing firm in justice, witnesses for Allah, even if it be against yourselves or parents and relatives. Whether one is rich or poor, Allah is more worthy of both. So follow not [personal] inclination, lest you not be just. And if you distort [your testimony] or refuse [to give it], then indeed Allah is ever, with what you do, Acquainted.﴾ (135) An-Nisa.
However, Islam includes guarantees for the independence5 of the judiciary,6 including: the competence of the judge, the financial sufficiency of the judge,7 protecting the status of the judiciary8 (to achieve the sovereignty of the judiciary, its justice, its prestige, its strength, its integrity), the judge's ijtihad,9 the reasoning of judgments, and preventing interference in the judiciary.10 Details of these provisions are found in the books of hadith, jurisprudence, and biographies.
1- The organs of the Caliphate state in governance and administration, Hizb ut-Tahrir.
2- Ubadah bin Al-Samit took over the judiciary in Palestine, and Muawiyah was its governor on behalf of Omar bin Al-Khattab, may God be pleased with them. Muawiyah disagreed with Ubadah bin Al-Samit on something, and Ubadah denounced him for that, so Muawiyah was harsh to him in his words. He said to him: I will not live with you in one land and left Palestine and returned to Medina. Omar said to him: Return to your place, may God curse a land in which you and your likes are not present, and wrote to Muawiyah: (You have no authority over Ubadah). Thus, Omar bin Al-Khattab prevented the executive ruler of Palestine (Muawiyah bin Abi Sufyan) from interfering in the judiciary and deprived him of his authority in the face of the judge and made the relationship between the judge and the Caliph direct. See: Dr. Hamid Muhammad Abu Talib: Islamic Judicial Organization, p. 47. See also: Independence of the Judiciary in the Islamic Judicial Organization, A. Mustafa Abd al-Hamid Dallaf, p. 6.
3- See: Issues 28 and 29 of Al-Waie Magazine
4- The organs of the Caliphate state in governance and administration, Hizb ut-Tahrir
5- Independence varies to: internal self-independence, which means: separating the judiciary from the judge's personal inclinations that may disrupt the purpose of justice (anger, for example: the Prophet's saying, peace and blessings be upon him, "No judge should judge between two people while he is angry" Al-Bukhari, and to external independence related to preventing the interference of others and their influence on the judge. External independence includes functional independence, which means: the judge carrying out his judicial duty without interference or influence from any party, and also includes organic independence, which means: allocating the judiciary to a separate authority from the rest of the authorities.
6- See: Independence of the Judiciary in Islamic Jurisprudence, PhD thesis, Dr. Muhammad bin Abdullah bin Ibrahim Al-Suhaim.
7- Ali bin Abi Talib, may God be pleased with him, sent a letter to his governor in Egypt in which he said: And give him (i.e., the judge) in the giving what removes his illness and reduces his need for people and give him from the status you have, what no one else from your inner circle aspires to, so that he may be safe from the assassination of men for him with you) See: Independence of the Judiciary in the Islamic Judicial Organization, A. Mustafa Abd al-Hamid Dallaf, p. 8.
8- Protecting the status of the judiciary is one of the guarantees of its independence. This protection is manifested in granting immunity to the judge, which includes restricting his appointment by the Imam or his deputy, and not transferring a case that has entered into his jurisdiction without a legitimate reason, and the continuation of his jurisdiction without transfer or dismissal except at his request or a legitimate interest that requires it, even if the status of Imamate is removed from the Imam for any reason, and not suing the judge in a lawsuit of his injustice in judgments except after bringing evidence, and the need to verify the complaint against the judge even if it is repeated, and that this verification be in the best way leading to the interest and preventing harm. Among the things in which the protection of the status of the judiciary is manifested - also - is restricting the pleading to the judicial council in which the jurisdiction is restricted; in accordance with this jurisdiction, and preserving the judiciary from trivialization, and preserving judgments from interference with annulment and suspension. Likewise, the strongest protection for the status of the judiciary is the implementation of judgments; as that is the origin in it, which is carried out exclusively by the Imam or his deputy, explicitly or customarily, and that no one has the right to suspend it except the one who is ruled in his favor in the rights of humans in the event of his pardon, which is considered legally, or the Imam in discretionary judgments that are purely the right of God - Glory be to Him - if there is a legally considered interest in that.
9- The judge's ijtihad is one of the guarantees of his independence, and that ijtihad is consistent in all judicial processes: understanding the event, evaluating the evidence, describing the event, determining the appropriate legal evidence, and issuing judgments.
10- See some important details in a summary of a PhD thesis: Independence of the Judiciary in Islamic Jurisprudence on the Alukah website.
