To my brother Abu Easa
I am grateful for your concurring remarks.
There is however a difference between the Western notion of separation of powers and the Islamic notion of an independent judiciary. As there is no legislature in Islam, the discussion is mainly about the judiciary and the executive. The Majlis al Ummah is primarily charged with advising the Khalifah and putting across the opinions of the ummah to the Khalifah. It has no legislative role.
Furthermore, the West has a baggage of tyranny and oppression by their monarchs and the church historically, a baggage Muslims do not share. We therefore do not necessarily need to take lessons from the likes of Locke, Hobbes, Rousseau and Mill. Our history is completely different from the West, and hence our solution must also be different.
As for the Islamic notion of the rule of law, the judiciary in Islam, whilst under the supervision of the Khalifah, is independent. I would not use the word “separate” because that, I believe, has a Western connotation. The scholars of the past, e.g. Imam Mawardi, did not say that the shari’ah court judges were separate but indicated that they were independent from the influence of the executive.
Finally, even in the West, the judiciary is actually under the direct supervision of the executive and not fully separate. Take the UK for example, where previously the Lord Chancellor used to appoint the judges. The Lord Chancellor was then a member of the Cabinet. Now, this role has changed to the Ministry of Justice which is also a government department. Ken Clarke MP is the Justice Secretary who is ultimately responsible for appointing judges now. In the USA, the President appoints the judges in the senior courts, hence not fully separate.
- Wakil Abu Mujahid
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