Fatwa and Opinion from Council of Theologians of South Africa
(The following is an image of the original 6 page letter dated 6th December, 2010)
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This page will be updated regularly as we receive written Verdits and Opinions from prominent Muslim Scholars around the world on violations of Human Rights by Saudi Arabia The Responsibility of a Muslim Judge
Judges: A Heavy BurdenIn Islam, Allah سبحانه وتعالى has placed a heavy burden on those who assume this position of authority and has declared severe consequences for those judges who knowingly issue the wrong verdict or issue a verdict based on ignorance. RasulAllah صلى الله عليه وسلم said the following about judges, all of which are recorded in Abu Dawud: "He who has been appointed a judge has been killed without a knife."
"If anyone seeks the office of judge among Muslims till he gets it and his justice prevails over his tyranny, he will go to Paradise; but the man whose tyranny prevails over his justice will go to Hell."
"Judges are of three types, one of whom will go to Paradise and two to Hell. The one who will go to Paradise is a man who knows what is right and gives judgment accordingly; but a man who knows what is right and acts tyrannically in his judgment will go to Hell; and a man who gives judgment for people when he is ignorant will go to Hell."
Islam Guarantees Justice
Contrary to the current world in which we live, the justice that Islam provides is unparalleled by any other way of life for many reasons including the following:
1. Certainty in Belief - The basis of Islam requires us to be rationally convinced of the existence of Allah سبحانه وتعالى, the Prophet Muhammad صلى الله عليه وسلم as His messenger and the Quran as His message. As a consequence, we know for certain that when we die, we will be resurrected on The Day in which each person will care only about his or her own affairs: Allah سبحانه وتعالى revealed:
1. Certainty in Belief - The basis of Islam requires us to be rationally convinced of the existence of Allah سبحانه وتعالى, the Prophet Muhammad صلى الله عليه وسلم as His messenger and the Quran as His message. As a consequence, we know for certain that when we die, we will be resurrected on The Day in which each person will care only about his or her own affairs: Allah سبحانه وتعالى revealed:
يَوْمَ يَفِرُّ الْمَرْءُ مِنْ أَخِيهِ
وَأُمِّهِ وَأَبِيهِ
وَصَاحِبَتِهِ وَبَنِيهِ
لِكُلِّ امْرِئٍ مِّنْهُمْ يَوْمَئِذٍ شَأْنٌ يُغْنِيهِ
"The Day man will flee from his own brother, his mother, his father, his wife, his children: each of them will be absorbed in concerns of their own on that Day." [‘Abasa, 80:34-37]
Furthermore, Allah سبحانه وتعالى will hold us accountable for each and every one of our actions. Allah سبحانه وتعالى revealed:
فَمَن يَعْمَلْ مِثْقَالَ ذَرَّةٍ خَيْرًا يَرَهُ
وَمَن يَعْمَلْ مِثْقَالَ ذَرَّةٍ شَرًّا يَرَهُ
"Whoever has done an atom's-weight of good will see it, but whoever has done an atom's-weight of evil will see that." [Az-Zalzala, 99:7-8]
Being accountable for each action ultimately means that every action that we do not do according to the book of Allah سبحانه وتعالى will make us deserving of His anger and punishment.
Therefore, the reason a Muslim judge will be extremely concerned about issuing the correct judgment is due to his fear of Allah سبحانه وتعالى. That is, he knows with certainty that his judgments will be recorded by the angels and he knows with certainty that he will be held accountable for each judgment he issued by the Lord of the Worlds. His judgment will thus be based on none other than the Hukm Sharai' as Allah سبحانه وتعالى has revealed:
وَأَنِ احْكُم بَيْنَهُم بِمَا أَنزَلَ اللّهُ
"And judge between them by that which Allah has revealed." [Al-Maaida, 5:49]
2. The Accused is Innocent until Proven Guilty - The Presumption of Innocence exists in a Shariah court where the defendant is innocent until proven guilty. The responsibility of providing the evidence is on the plaintiff (the one who initiates the lawsuit) and not the defendant. The Prophet صلى الله عليه وسلم said: "It is the plaintiff who should provide the evidence, and the oath is obliged on the one that contests." [Al-Bayhaqi]
In the above narration, RasulAllah صلى الله عليه وسلم explained that the burden of proof is on the one making the claim. If he has no proof, yet makes an accusation, then the defendant can make an oath upon his position and in that manner have the accusation rejected by the Judge. This serves as evidence that the defendant is innocent until proven guilty.
3. Avoiding Punishment in the Case of Doubt - One of the principles of the Islamic Judicial System is that it is better to release a guilty person than to punish an innocent person. The Prophet صلى الله عليه وسلم said: "Avert the hudud from Muslims as much as you can. So if there is a way out for him, let him off. For verily, it is better for the Imam to error in pardon than to error in punishment." [Al-Bayhaqi]
Ultimately there is no escape from justice. If a guilty person avoids punishment in this world, he or she will answer before Allah سبحانه وتعالى on the Day of Judgment. However, a court that implements the Hukm of Allah سبحانه وتعالى will spare him or her of punishment at the slightest doubt of his or her guilt.
4. No Bias - There can be no bias of any kind from the judge settling the dispute. The court system implementing the Ahkam Shariah will be established in a way to ensure that both parties are equally able to communicate their point of view to the judge. RasulAllah صلى الله عليه وسلم said: "If two men come to you do not give a judgment for one of them until you have heard what the other has had to say, then you will be able to judge." [Tirmidhi & Ahmad]
"Whoever Allah tests by letting him become a judge, should not let one party of a dispute sit near him without bringing the other party to sit near him. And he should fear Allah by his sitting, his looking to both of them and his judging to them. He should be careful not to look down to one as if the other was higher, he should be careful not to shout to one and not the other, and he should be careful of both of them." [Baihaqi, Darqutni, Tabarani]
Furthermore, the judge will have to ensure that he or she is in the correct frame of mind in order to be able to listen to the arguments and issue a judgment in the most fair and equitable manner. RasulAllah صلى الله عليه وسلم has said: "A judge should not judge between two persons while he is in an angry mood." [Bukhari]
Justice in Islam: Past and Present
Together, all the aspects of the justice system in Islam provide a fair, thorough and expedient process at settling disputes. The past has shown us many instances that attest to this claim. For example, during the Khilafah of Ali (ra), there was a situation in which Ali's (ra) coat of armour was missing. He saw that a Jew had it in his hands and so he demanded the armour back. The Jewish man refused, stating that it was his. Both of them went to a Qadhi (judge) by the name of Shurayh. Qadhi Shurayh said about the case, "Speak Amir al-Muminin." He said, "Yes. This armour which this Jew has is my armour; I did not sell it and I did not give it away." Shurayh said, "What do you say Jew?" He said, "It is my armour and it is in my possession." Shurayh said, "Do you have any evidence Amir al-Muminin?" He said, "Yes. Qanbar and al-Hasan will witness that the armour is mine." Shurayh said, "A son's witness is not acceptable on behalf of his father." Ali said, "A man from Paradise, and his testimony is not acceptable? I heard the Prophet صلى الله عليه وسلم saying, ‘Al-Hasan and al-Hussein are the two lords of the youth of the people of Paradise.'" The Jew said, "The Amir al-Muminin brought me before his Qadi, and his Qadi gave judgment against him. I witness that this is the truth, and I witness that there is no god but Allah and I witness that Muhammad is the messenger of Allah, and that the armour is your armour." Despite the fact that the plaintiff was the Khalifah of the Muslim Ummah, Qadhi Shurayh did not give him a favorable verdict!
إِنَّ اللّهَ يَأْمُرُكُمْ أَن تُؤدُّواْ الأَمَانَاتِ إِلَى أَهْلِهَا وَإِذَا حَكَمْتُم بَيْنَ النَّاسِ أَن تَحْكُمُواْ بِالْعَدْلِ
"Verily! Allah commands that you should render back the trusts to those, to whom they are due; and that when you judge between men, you judge with justice." [An-Nisaa', 4:58]
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The Duty and Responsibility of a Muslim Ruler or State- The duty of an Islamic state is to establish Salah and Zakah.
- Promote the right and forbid the wrong.
- The state is responsible for the welfare of all its citizens - Muslims and non-Muslims alike.
- It must guarantee the basic necessities of life.
- All citizens of the Islamic state shall enjoy freedom of belief, thought, conscience and speech.
- Every citizen shall be free to develop his potential, improve his capacity, earn and possess.
- A citizen shall enjoy the right to support or oppose any government policy which he thinks right or wrong with the following in mind.: The Islamic state is duty bound to implement the laws of the Qur’an and the Sunnah. The Qur’an strongly denounces those who do not decide their matters by Allah’s revelations (5:42-50).
- The Islamic state shall ensure a fair distribution of wealth. Islam does not believe in equal distribution as it is against the law of creation.
