Independence of the judiciary in Islamic jurisprudence

The origin of this book is a doctoral thesis submitted by Dr. Muhammad bin Abdullah Ibrahim Al-Suhaim - former judge at the Criminal Court in Riyadh - to the College of Sharia at Imam Muhammad bin Saud Islamic University in Riyadh, on 18-6-1433 AH, and he obtained a grade of excellence with first-class honors and a recommendation for publication. The first edition of this book was issued by Ibn Al-Jawzi Publishing and Distribution House in the Kingdom of Saudi Arabia in 1436 AH. The importance of studying the topic of the independence of the judiciary in Islamic jurisprudence is highlighted from several aspects, most notably as follows: Its authentic involvement in the issue of judiciary, whose status is well known, and being a principle on which it is based, and a guarantee for achieving justice through it; therefore, the explicit mention of the independence of the judiciary in every constitution. Protecting the strength and prestige of the judiciary, which decisively discourages any attempt to negatively influence it. Demonstrating the status of Islamic judiciary, its precedence, and its exclusive guarantee of independence in a practically ideal and precise manner, exposing the flaws of all earthly legislation; so that the Sharia of Islam — as Allah willed — remains the final ruler in all times and places. This highlights the virtues of religion and calls for its implementation worldwide, and addresses fabricated doubts about it. What the duty of clarification and advice necessitates is the need to clarify the true comprehensive image of the independence of the judiciary, especially amid system revolutions, media stirring such topics, and opening the door for both the knowledgeable and the unknowing to intervene, to prevent misconceptions and remove confusion. It also highlights the strenuous efforts made by Islamic jurists in defining the boundaries of Islamic judicial independence and tracking its details, illuminated by the guidance of the two revelations; forming a jurisprudential treasure worth highlighting and praising, especially since, to the best of my knowledge, this treasure has not been collected in a scientific thesis that gathers its scattered parts and clarifies its issues. **Divisions of the book:** The study included an introduction, a preface, four chapters, and a conclusion containing the most important results. The introduction covered: the importance of the topic, reasons for choosing it, its objectives, the methodology followed in the research, and its plan. The preface discussed: the reality of the judiciary, its ruling, and its objectives. The first chapter was dedicated to studying the reality of judicial independence and its ruling. The second chapter dealt with guarantees of judicial independence. The third chapter addressed obstacles to judicial independence. The fourth chapter examined the impact of judicial independence. The conclusion summarized the most important results reached in the study, including: - The concept of judicial independence is the exclusive authority of the judge to issue rulings on facts according to Shariah, based on his own ijtihad, without interference or influence from others. - Independence is a principle on which the judiciary is built, and it is a means to achieve the purpose of justice for which the judiciary was legislated. - The ruling that judicial independence is obligatory applies unless independence leads to a flaw in achieving justice, whether actual or perceived, or if the judge’s ruling contradicts jurisdiction; in which case it is prevented. - Among the purposes of Shariah for judicial independence: establishing the sovereignty, justice, prestige, strength, and integrity of the judiciary. - The financial sufficiency of the judge is a guarantee of judicial independence required from the state treasury, and the minimum amount is that which can be achieved through lawful means of financial independence. - It is forbidden for the judge to take fees from litigants unless out of necessity; such as not having a livelihood assigned from the state treasury, or if that livelihood does not suffice his needs and those he supports. - It is permissible for the judge to trade himself if needed, or through an agent unknown to him, even if there is no necessity; otherwise, it is based on the likelihood of causing harm through trading, which makes it forbidden if harm is realized, permissible if it is absent, and disliked if in doubt. - The judge’s ijtihad (independent reasoning) is a guarantee of his independence, and this ijtihad must be consistent throughout all judicial procedures: understanding the facts, estimating evidence, describing the incident, determining the appropriate Shariah proof, and issuing rulings. - Regulating the judiciary into multiple types based on four considerations, which may combine or be separate, and these are: comprehensiveness, subject, school, and obligation. There is no disagreement except regarding obligation, which appears to be invalid. - The judge’s stance on codification depends on the view of obligation and the judge’s ijtihad. If the judge is an ijtihadist, he must follow what his ijtihad leads to — by consensus of scholars. If he is a muqallid (imitation), his dealing with codification is like his dealing with other jurisprudential opinions, and the most correct is to follow the opinion of whom he finds most trustworthy in religion and knowledge. - The judge must refer to experts in matters outside his expertise, which does not conflict with independence, as it is a way to ensure the correctness of his judgment. - Contradiction of the judge with the jurisdictional competence is a barrier to independence; as it is a justification for intervention in his judgment through suspension and cassation, except what the ruler permits or if the judgment falls within a previous jurisdiction that the judge was unaware had changed. - It appears from the condition of judges that they are safe, just, and honest; based on the original justice of the Muslim — according to those who see that — and favoring apparentness over the primary presumption that Muslims are unjust. - The original presumption is that the judge is not suspected, but there are circumstances where suspicion is strengthened, which prevents independence; as the judge is prevented from judging in these cases, and interference in his judgment is permissible. These circumstances include: judging relatives (parents, children, spouses) excluding in-laws, judging someone with a clear personal interest that benefits him in this world, judging an enemy with obvious worldly hostility, judging based on his knowledge, or judging when there are factors that prevent understanding or distract his mind. The presence of suspicion in these matters does not necessarily eliminate integrity and justice. - It is disliked for the judge to judge in matters he has issued a fatwa on before the case is brought before him. - The comprehensive enforcement of judgments requires that Islamic judiciary encompass all disputes, bringing people under its authority and their submission to it, and that its rulings be enforced on them and against them without exception. - The basis of judicial ruling is clarity, and it is only replaced by evidence proving the absence of the necessary attributes of appointment or obligation in this ruling. - The interpretation of a judicial ruling — when its ambiguity is established — can only be done through its source if it remains within the jurisdiction of the judiciary; otherwise, the responsible entity for interpretation is a judicial individual or group determined by the ruler, which is a consequence of the independence and its effects.