بسم الله الرحمن الرحيم
Hizb
ut-Tahrir / Wilayah Pakistan has issued a Publicized Policy Position (PPP)
regarding ensuring a judiciary that is free from corruption and discrimination,
secures the rights of the people, and is strong to hold the rulers to account.
Preamble:
The current man-made system of judiciary ensures that might is right and
justice is delayed
The
most profound and detailed jurisprudence in human history is that of Islam.
From the time of RasulAllah (saw) Islam is characterized by its swift and fair
justice. Examples such as RasulAllah (saw) personally inspecting the markets
and judging upon fraud and cheating, the mercy of allowing the adulterer to
escape as he fled and thus revoked his confession, the precision with which
Omar (ra) established the case of adultery, his application of the Islamic
ruling of not punishing the one who steals for basic needs during the time of
famine, the example of the Jew winning the case of the shield against the
Khaleefah Ali (ra) because the Judge refused the witness of the son of the
Khaleefah, and so on are embedded in the hearts and minds of the Muslims. The
corner stone of Islam's judiciary was fair, swift and sure justice. Moreover,
Shari’ah was a standard for world civilization for thirteen centuries,
inspiring the Western nations to revise their legal and ruling frameworks, for
example Shari’ah influenced France's Napoleonic Code, Britain's Magna Carta and
the US Constitution.
However,
settling the disputes, accounting the rulers and securing the rights of the
people is now in an appalling state in the Muslim World since the abolition of
the Shari’ah which was implemented through the Khilafah. The Shari’ah was
abolished firstly under the Western occupation, that began in the eighteenth
century, and then through the abolition of the Khilafah in 1924 CE. Since then
the criterion has become the human mind in defining the issue of crime,
conviction and punishment. Now the Muslim World implements kufr laws, with a selective
implementation of Islam. This has led to oppression upon the citizens,
regardless of their school of thought, gender, religion and race. In Pakistan,
it is British law, including the Criminal procedure Code (CrPC) which was
originally written in 1898, that defines crime, trial and punishment. The
people sense that privileged people escape punishment whilst the weak in
society are falsely implicated in cases, with prolonged court cases sometimes
exceeding decades. So today the judiciary is characterized by might is right
and justice delayed, justice denied and people avoid them as much as possible.
B.
Political Considerations: Judiciary
secures the interests of the elite group
The elite groups
within the military and political leadership secure their interests and those
of their colonialist masters through the judiciary. Democracy allows them to
decide what should be legalized and what should be declared a crime and the
judiciary as the law enforcer merely enforces the will of the elite group.
However in Islam, the crime is that which has been made a crime by Allah (swt) and
His Messenger (saw). So, that which is regarded as forbidden in a hadith or an
ayah is regarded as a crime and is punished. So, whilst Islam sees imposing
General Sales Tax and Income Tax as a crime, Democracy enforces usurping of
people's private property through such taxation, which is then used to benefit
the colonialists through interest payments on loans and the ruling elite
through financial corruption. In Islam, energy is a public property and
privatization is not allowed as it usurps the community right to benefit from
our energy resources. However in Democracy, privatization is legal and actively
promoted benefiting the ruling class and their entourage. In Islam accounting
the ruler and exposing any collaboration with the enemy is a duty, whereas in
Pakistan today it is regarded as anti-state activity, disturbance of the public
order or terrorism. Thus, under democracy, kufr laws secure the benefit of the
ruling elite and their entourage, as they actually make the law, irrespective
of the commands and prohibitions that Allah (swt) has revealed. Moreover this
elite group is protected from prosecution through judicial immunity of the
rulers, as well as ordinances such as the National Reconciliation. So the Musharraf-Aziz regime was free to execute the
orders of America and only Musharaf was brought to court after that, whilst the
Kayani-Sharif regime continues betraying Pakistan, without any challenge or
threat from the judiciary.
C.
Legal Injunctions: Settling the
disputes, securing the rights and accounting the rulers
C1. Unlike Democracy,
in Islam, it is Allah (swt), Who has revealed the laws regarding the crime, its
testimonial evidence and punishment. Allah (swt) said: “Should not He Who has created know And He is the Most Kind and
Courteous, All-Aware.)” [Surah al-Mulk: 14] Islam is the firm basis of the
judiciary in the Khilafah. Ignorance (Jahl) is other than Islam, including the
British law, French penal codes and all other forms of kufr. The judge, whether
he is a man or women, Hanifi or Jafari, must be knowledgeable in Islam for he
or she will judge by it. RasullAllah (saw) said: “A man who passes judgement on the people in
ignorance will be in Hellfire” (reported in the Sunan and authenticated by
Al-Hakim from Buraydah).”
So in Islam, as it is the will of Allah that is imposed through the
judiciary there is no favouritism or privilege based on power or status or any
other matter. The rights of the weak are restored to them, regardless of their
race, status, gender, school of thought or religion. Abu Bakr as-Siddique (ra)
affirmed to the people
upon becoming the Khaleefah, “The weak amongst you is strong before me till I
return to him his right, Allah willing and the strong amongst you is weak
before me till I take the right from him Allah willing.” Moreover, when
it was requested that a woman who committed theft be pardoned because she was
from a noble family, RasulAllah (saw)
warned the Muslims by
saying: "The people before you were ruined because when a noble person
amongst them committed theft, they would leave him but if a weak person amongst
them committed theft, they would execute the legal punishment on him. By Allah,
were Fatimah, the daughter of Muhammad, to commit the theft, I would have cut
off her hand.'' [Bukhari]
There is no immunity
for the ruler in his violation of Islam and any ruler, be it the Khaleefah or a
Wali, that seeks guidance from IMF, ISAF, UN or the US State Department will be
brought for immediate trial. Moreover, even the Khaleefah has no right to remove the judge
over his case once it is under process, a far cry from Nawaz Sharif and
Musharraf's tussles with the judiciary.
In its Introduction to the Constitution, Hizb ut-Tahrir has
adopted in Article 77, “In a narration by Tabarani in al-Mu’jam Al-awst by
al-Fadhl bin al-Abbas narrated that the Prophet (saw) said: “Whoever I
had whipped his back here is my back, let him retaliate! Whoever I had cursed
his honor, here is my honor let him curse it! Whoever I had taken some
money from him here is my money, let him take from it.” It further states
in Article 87 “The judge of the Court of Injustices (Madhalim)
is appointed to remove all injustices which have been inflicted upon any
person who lives under the authority of the State ... irrespective of whether
the injustice was committed by the Khalifah or anyone below him from the
rulers and civil servants.” And in Article 88, it states, “The judge of
the Court of Injustices (Madhalim) is appointed by the Khalifah,
or by the Supreme Judge. However, he cannot be removed during his investigation
of a Madhlamah against the Khalifah, or the executive assistants,
or the Supreme Judge; rather the power to remove him in these circumstances is
for the Court of Injustice Acts (Madhalim).”
C2. Not only does Islam prevent might being right, it also
secures swift justice. Uniquely Islam has no appeal system, with endless
circuits in courts of various levels. For once the rule of Allah has been
established in a matter, the case is concluded. The only situation of annulment
is if the judgement contradicts that which Allah has revealed or it was clear
that he contradicted the reality of the case.
Hizb ut-Tahrir states in its “Introduction to the Constitution,” Article
83 “There is no court of appeal, and no court of cessation, so the
judiciary, as far as the method by which the cases are treated, is of a single
level. If the judge pronounced a verdict, it would become binding, and it
cannot ever be annulled by the verdict of another judge unless he ruled by
other than Islam... or it became clear that he gave a verdict that contradicted
the reality of the situation.
In addition to the Judges of Mazalim and the general Judges, Islam has
the Judge of Hisbah, a judge that will secure the rights of the community, even
when there is not plaintiff who has noticed the usurping of the right that
Islam granted.
In its Introduction to the Constitution, Hizb ut-Tahrir states, in Article
84 “The Muhtasib is the judge who investigates all cases, in the
absence of an individual litigation, involving the rights of the public that do
not involve the Hudud (proscribed punishments) and criminal acts.” It
further states in Article 85 “The Muhtasib has the authority to
judge upon violations as soon as he learns of them, irrespective of the
location and without the need to hold a court session. A number of policemen
are put at his disposal to carry out his orders and to execute his verdicts
immediately.”
C3. Not only does
Islam secure swift justice, it secures sure justice by its rigorous procedures
for establishing crime. Regarding testimonial evidence, whilst Islam stipulates
certainty or the least amount of doubt for conviction, the Western criterion
freely allows the use of circumstantial evidence for conviction. Thus the
mixture of Islam and kufr in Pakistan, has led to tens of thousands of wrongful
convictions in Pakistan's history. And throughout the world there have been
hundreds of thousands of wrongful convictions under the prevalent kufr rule.
Islam stipulated Shahadah (Eye witness) Yameen (Oath) Iqrar (confession)
Mustanidat-e-Qatayiah (Documentary evidences), such as official documents and
signed documents. Circumstantial evidences are allowed for the sake of
familiarization only. So, when the RasulAllah (saw)asked the dying slave
lady, who killed you and she pointed to a Jew, he did not accept her statement
as testimonial evidence. He (saw) used it for familiarization, not for
conviction and the Jew who was only killed after his confession. Islam, the
Deen of Mercy, outweighs that it is better for the guilty to go free in this
life rather than the innocent be convicted. As for the Discretionary
Punishments (Ta'zeer), forensic evidences can be taken to establish the crime.
For example the examination by the doctor or midwife in the case of rape, in order
to enforce the Ta'zeer of fifteen years imprisonment, public lashing and exile
for the rapist.
C4. Regarding punishment, after firmly establishing the crime took place, Islam has stipulated exemplary
punishment that act as a deterrent to others from committing crime, whereas the
Western punishments have led to ever increasing crime, as well as huge prison
populations. Under the kufr system, Pakistan's prisons have become schools to
teach criminals how to evade capture in the future. Moreover, their punishment
is not known to society, as it is behind the walls of the prison, so far from
being a deterrent, the current system ensures the promotion of crime. This is
far from that which Islam has stipulated. As an example, in Islam, the cutting
of the hands of the thief takes place with a stringent criteria and exact
evidence. For example, it does not take place if the thief is stealing to
secure basic needs. However, when punishment does take place it is done
publically, such that the entire community is witness to this punishment.
Under the Khilafah in over a thousand years of the implementation of Shari’ah,
only a few hundred hands were cut, on average after several years, if not
decades, whilst the crime rate was negligible and the citizens lived in security.
Moreover, not only are the
punishments a restraint and deterrent for others to abstain from crime, they
also secure the one who is punished by the Khilafah state, from the most severe
punishment, that of the Hereafter. RasulAllah (saw) said: “Give me the bay’ah on condition that you do not associate anything with
Allah, you do not steal and do not commit zina …So whoever fulfils among
you, his reward is with Allah, and whoever does anything of that and is
punished for it, then it is expiation (kaffara) for him. And whoever
does anything of that and Allah conceals him upon it, if He wills He will
forgive him and if He wills, He will punish him.” [Bukhari]
Note: Please refer to the following articles of Hizb ut Tahrir's Introduction
to the Constitution for the complete evidences from Quran and Sunnah: 77,
83, 84, 85, 87 and 88. To see relevant articles of the constitution for the
Khilafah state please visit this web link: http://htmediapak.page.tl/policy-matters.htm
D.
POLICY: The Khilafah is a beacon of
justice because it implements Islamic Laws
D1. Laws that secure
the rights of all citizens of the state, regardless of race, gender, school of
thought or religion
D2. A sure and swift
process of establishing crime, ensuring the innocent are not convicting whilst
settling the disputes promptly
D3.
Punishments that act as a restraint and deterrent upon
others, as well as an expiation for the most severe of punishments, that of the
Hereafter
Hizb
ut-Tahrir
27th
Ramadhan, 1434 AH
Wilayah
Pakistan
5th
August, 2013 CE
Or,
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