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responsibility for the case of the Islamic Democratic Society
LIABILITY OF DEMOCRACY Islamic courts in society

A lecture delivered at Oslo, Norway on 22-2-2009 conference is organized by the Pakistan Welfare Union’s cooperation with the Ministry of Foreign Norwegain Affairsby P. Justice Mian Saqib Nisar, Judge, Lahore High Court

DEMOCRACY and Islam

In addition to political theory, democracy, political analysts have been described as a government form that power belongs to the people by the free election system . Although there is no universally accepted term, but there are two fundamental principles of democracy, but the definition covers. First, that society as a whole (national) members have equal access to power and, secondly, that all members (citizens) enjoy universally recognized human rights, the first principle should be considered based on equality and liberty second. On the equality of all citizens, including consultations result is a natural consequence of the adoption of decisions in cases arising between them. So, the question must be considered is: Where Islam stands in this? Consultations in the affairs of the Muslim community process was required as the Holy Quran ordains:

(I) O: Muslims to resolve their issues (management) “mutual consultation (al-Shura: 38)

(ii) The prophet is the management of affairs advice (Al-Imran: 159).

Islam and the sovereignty of God Almighty, jackets, which are used by all Muslims. The status of head of state (Caliph) is not more than the fact that viceregency power, which the general body of Muslims has been delegated to trust a person (Caliphate) which they were elected, as one among them, and this work. The Holy Prophet (PBUH), his death bed was called for his followers to name his successor, but he refused to do so was based on a consultative process as for the above command of the Holy Quran, that all the other three caliphs were elected to the procedure is completely similar to the first principle of democracy, the choice of representatives of the people. It may be noted that all (Ummah) of the Muslim community to participate in this process, because there is no assurance in this area and thus, all members of society have equal access to power, the democracy of Islam is certainly the appropriate time (ie, `1400 years) was not even aware of Western culture. However, it can be argued that each society may have your system to choose their representatives in the goals of management, which may be very different from other democracies in the system of the United States, United Kingdom, the French, Russia and China are fundamentally different in nature, where democracy is direct government elections, while for others it is for an indirect franchise, so that the right to vote are qualified by education and tax standards, since there are no other conditions. Also, Islamic society, there is no strict and clear system has been ordained into the state constitution and was left to the Muslim community to develop its own system that is suitable for your needs, but essentially relies on consultation. Currently, many Muslim states such as Malaysia, Bangladesh, Egypt, Indonesia, Iran, Pakistan, Syria, Turkey is a republic, such as the United States, France, Germany, etc., all of which the supreme power is vested in the people or their elected representatives .

2. Addressing the proposal according to the “freedom” which is similar to the concept of “liberal democracy” where citizens generally enjoy the freedoms and liberties, it also means that the due process and equality before the law segments in today’s society can be proud of taking the time to Magna Carta (1215), Rights Bill (1689) and the UN Charter (1948), but Islam has formulated and established the fundamental human rights, some 1400 years ago, when no society can even comprehend them. This will be provided on behalf of my discourse, if I do not go to the farewell sermon of the Holy Prophet (PBUH), which is called the “Khutba-e-Wida Hajjatul, delivered 633 Notice of Arafat near Mecca, simple, and it is perfect and eternal in the Charter of human rights and responsibilities. Each word in this sermon is a man from slavery and degradation and the release should make him aware of his destiny, the Holy Prophet (PBUH) said (part of it is played): –

O people! know that your blood, your property and your honor are sacred and inviolable until you appear before the Lord (God Almighty). Those who were entrusted with anything at all to play for the person who kept with him, Beware!. who commits a crime is solely responsible for it. Neither is. son responsible for his father’s crime, as well as a father responsible for his son’s crime. Is wrong and you will not hurt.

O people! fear Allah concerning women. You have to take them (as wives) on the security of Allah, they have certain rights over you. It is incumbent on you to honor their spouses’ rights and do not make any ill-manners and act (to them).

O people! Truly, your Lord is one and your father is one. All of you belong to ancestors of Adam, there is no superiority of Arab non-Arab and non-Arab than the Arab, nor white nor black, neither black nor white.

equality rule, as explained in the sermon include conceiveable absolute rule of equality for all people with no faith-based distinction of caste, religion, creed, social, economic or political status. As in the foregoing, I am compelled to mention racial discrimination meted only a few decades ago, the Black community in America, the most liberal democratic societies in the world, Martin Luther King Jr., in his autobiography first says the incident, which according to him had a profound impact on his development, he said, “The second incident occurred when I was about six years of age from three years I had a white playmate who was about.. My age we always felt free to to play our childhood games together he does not live in our community, but it is usually about every day .. fathers owned store across the street from our house six years, we both entered. School of individual schools, of course I remember how our friendship began break, when we entered the school , it was not my desire, but its climax was when he told me one day that his father insisted that he would play. I’m not. I will never forget what it was a big shock to me. I immediately asked my parents about the motive for such a statement. “There was complete segregation of the American Society of apartheid, schools, hospitals, restaurants, clubs, public places and transport. Black Americans were not even allowed to attend white space reserved for buses. On December 1, 1955 Mrs. Rosa Parks, an old black lady refused to leave the White male when asked to move back to the conductor, the result was the arrest of its seats. When the club is “white,” was displayed signs proclaim “Negroes and dogs not allowed”. The right to vote was to give Blacks for the first time on his tireless struggle for the Voting Act of 1965, which is facing a strong reaction to the white South in the form of violence. How can we forget the South African atrocities, rampant apartheid and Nelson Mandela, who faced a maximum imprisonment of political misery in human history? Contrary to the above, any of the Muslim society, everyone, including minorities, denial, enjoy the following rights 2 , which is now considered to be foundational of modern democracies: –

1. Autobiography of Martin Luther King, JR.

Edited by Claybome Carson

2. Fundamental Rights of Islam

* The right to live with their amplitude,

* The right to equality;

* The right to freedom

* Right to a name

* The right to raise their voice against oppression

* The right to adopt any religion and the protection of the same

* The right to freedom

* The right to privacy;

* by the right

* Right participate and become involved in political affairs State

* The right to refuse to accept any dictation on anything that is prohibited by law and their religion;

* The right to protection available to women, old, infirm, disabled, injured, sick individuals, society as well as non-Muslims

* The right to protection of modesty and chastity, and all women, regardless of their caste and religion

* The right to economic security for the poor and needy;

* Nothing is not responsible for any subsequent measure (for criminal liability), and one can not be prosecuted because of concerns

What else is happy and all the blessings of a civilized democratic society, which, as compared to the Islamic system can be found lacking?

Both the ALA Maulana Maudoodi

In addition to the above, there is another important feature of Islamic society, because leaders of the government collecting enough democracy, while keeping those who govern are accountable, is essential to democracy, if the government people to work . According to Quranic teachings, the leaders are not left to manage on their own whims and desires of the basis and of mutual consultations and according to the Qur’an and Sunnah teachings. Islamic leaders are responsible citizens of the land by the Al-Nisa-458, the Koran mandates the release of their leaders have confidence in those who are entitled to it. Accountability have been set out in Abu Bakar, the first caliph of the words, “If I follow the right path, follow me, if I deviate from the correct path to correct me, that we are not keen on.” Of course, the role and responsibilities of people within the Islamic society was much more than choosing a leader of the Islamic political system. In this context, it is well established that the Islamic law and society forward for equality, representation, freedom, and that “liberal democracy, as well as testing. Therefore, without any fear of contradiction can be unequivocally stated that, for all intent and purposes of Islam and democracy are compatible. Here I would like to state specifically that there is a deliberate campaign is published in two basically incompatible and always at odds with one another. This is a campaign to promote the vested interests that seek to address the sustainability of democracy in the Islamic secularism touchstone. between secularism and democracy is a distinct relationship discourse at all, but suffice it to say that democracy and secularism are not synonymous, and it’s just a popular myth and false belief that one can not survive without the other. As long as the fundamental ideals of democracy allowed to flourish in society, democracy exists, whether it be secular or theocratic state is completely without relevance.

IN case:

3. The whole judicial role, it can be said that the State is acting within its legislative, executive and judicial authorities and in any other way. legal authorities shall have primary responsibility in public policy and legislation, including diction and create rights and nationals of, or state boundaries of acceptance, as the executive authority of the setup is entrusted with the management and running of state affairs, pursuant to a permissible limits as set by law. Although the function of the judiciary, one of the the best definitions of status by Griffith, CJ and Parker Co. v. Moorehead 3 , where he said that the judiciary is “the power which every sovereign authority must decide between her body, or between it and its subjects that are concerned with life, liberty or property. “As distinguished from the legislative power, which is to declare what the law should be the judicial power is the power to declare what the law is or was. It is one of the characteristics of the judicial power, that it is associated with past and present, but not in the future. Courts foundational pillar of the state structure, without which a stable and civilized society and the existence of the State can not be started. The importance of the body can be recognized for what Lord Chief Justice Marshall (USA) once said: “The judicial government, without care, without a legitimate means of ingratiating himself with the same people are the weakest part of the Citadel, but at the same time be based on the existence of the State. “The next opportunity for a lawyer said:

3. 8 CLR 330, 357.

” Advertising, sir, to a judge, he must pass between the government and human rights, which the government prosecutions: .. Among the most powerful person in the Community, and the poorest and most unpopular is the last importance that these duties, he must comply with very correct. I need to push this? Do not need every man feels that his personal safety and property security depends on the integrity of that? Judicial Department comes home in its effects on everyone fireplace. He runs his property, his reputation, his life, it all Is not it up to the last degree important that he should be a perfectly and completely independent, with no influence or control him but God and your conscience …. I always thought, from my earliest youth till now, the biggest problem in the heavens when the damage angry ungrateful and sinning people were ignorant, corrupt or a dependent judiciary.

There can be no better description of the importance of the judicial organ of state position, which is vital and important part of any democratic society, that it should have a strong and independent judiciary, because it is a forum in which not only solves the ordinary, and criminal civil disputes inter se and the state of things, but they also protect from the legislative and executive bodies of the excess to verify and protect their rights in regard to infringement of the above citizens. This can be repeated in the society, even if it can be applied to the elected representatives and local human rights , but the lack of an effective judicial system can not be termed to be the path of democracy. In Islam, the divine justice is a cardinal rule and based on a fundamental and absolute, pure and unqualified term “independent judiciary.” democracies and the best systems in the world, the judiciary has no authority to invite the public and the head before him, when he holds office, but that’s the beauty of the Islamic system, the caliph (Islamic head of state) has no such immunity does not, or privilege, and can be tried for civil and criminal liabilities, even the term of office. The present examples of Hazrat Umar, the second caliph Hazrat Ali and the fourth Caliph can be determined. Once, Hazrat Umar bought a horse, he paid the price, but on his first run since the fall, the animal broke his leg in a horse caliph wanted to go back and get your money back, but the seller refused, the matter went to court and was decided before Hazrat Umar. Also, between Hazrat Ali and the Jew (the minority community in the Islamic society) dispute the decision went against Hazrat Ali, because he could not prove his claim, which would otherwise have been true, because then his opponent found himself. When the two countries, when Hazrat Umar appeared as a witness, he was the witness stand in the window just like any ordinary witness and not given to any protocol. It postulates how independent the judiciary of the Islamic society.

4. In Islamic society, a complete hierarchy of the courts and the installation with different levels of competence, the chief judge of the State is known as the “Kazakh-ud-Qazat, like any other judicial system in vogue but has a modern democracy and, if the Muslim society, from anywhere, including public rights of citizens are violated and the court applied the legal mechanism comes into motion, and the courts dispense justice in the Qur’an, Islamic law is the basis of which is the main source of law, and if the solution is not there, Sunna, which is tradition (the Holy Prophet (PBUH) or the interpretation that it offers all the sayings) of the Holy Prophet (PBUH) and the second source line, and if the problem still can not be resolved between the two above, the resort’s grounds, may be had “IJMA, which is defined as “agreement” between lawyers Muhammad’s followers (Peace Be Upon Him) to a certain age on a point of law, and such lawyers as well as can be judged necessary. If there is no answer to the claim of the Koran, Sunna and Ijma, it can be achieved ” ijtihad, which literally means to seek to do and how to apply the jurisprudence of this period of his faculties lawyer in the light of all the rights that is the Koran, Sunna and Ijma authorities to find out the probability of law. In other words, ijtihad is the deduction for legal matters cases where there is no explicit text or rule is determined by the capacity Ijma.

5. In addition to the award of the Court’s role in Islamic society, qualifications and criteria for appointing a judge (Qazi) is very important and very important, because such standards represent a what is necessary for him to justice. The letter, Hazrat Ali (the fourth Caliph), conveyed the instructions of Malik-e-Ashtar, Governor of the province, upon the appointment of qualified judges and their behavior, and this is the main piece of advice, which emphasized the sanctity and the basic principles institution from which the entire judicial system of Islamic society. the role that courts can play a set, the letter reads as follows: –

“As far as the issue of justice is a cone-headed, you must be very careful when choosing judges also have to select people and a great character high caliber and worthy of record they should have the following qualifications ..:

(i) an abundance of disputes and the complexity of cases should not make them lose their temper;

(ii) when they realize they made a mistake in its decision not claim that it is trying to justify it;

(iii) when the truth is clear to them, or when the right path opens up before them, they do not consider that below their dignity to correct the error or cancel the wrong done them

(Iv ) they are not corrupt, covetous or greedy

(v) They should not be satisfied with a simple survey or inspection file, but they should meticulously go through all the pros and cons, they must examine every aspect of the problem carefully, and when and where they find doubtful and ambiguous points, they must stop, go over the details, clear points, and then continue your decision

(vi) they must attach the greatest importance to reasoning, arguments and evidence

(Vii ) They should not get tired of lengthy discussions and arguments;

(viii) They must exhibit patience and perseverance in scanning the information, the test shall be reported as true, and sifting fact from fiction and when truth is revealed to them, they must communicate their decisions without fear of benefit or interest

(ix) They are not a vanity and conceit, the compliments and praises are showered on them

(X), they should not be misled by flattery and courtship;

He also asked his letter: “But there are a few people with such properties after you have selected the following men to act as your judge, to make it a point to go through some of their decisions and to check their hearing and:. –

(i) to pay them handsomely so that their needs are fully met, and they do not need to beg or borrow or refer to corruption

(ii) to grant them such prestige and position of their state, so that no one of his courtiers or officers can drive in fear or prejudice;

(iii) Let the judiciary be above every executive pressure or influence in kind over the fear or favor, intrigue or corruption.

To analyze this issue in particular stringency, before his appointment as the state has been corrupted by, and serves as the asset-grasping opportunists who were lewd, greedy and angry, and sin which accumulated wealth and pleasures himself from the government nod. “

Pakistan’s perspective:

6th Islamic state and society. This is a Federal Republic, which is known as the Islamic Republic of Pakistan and governed by a written Constitution, enforced in 1973. Objectives Resolution as Grund rate of the Constitution, the resolution was adopted by the Constituent Assembly in Pakistan, 1949 / 3.12. It is in the constitutional history of Pakistan, a guide for the fact that the first time, the ideological basis for the country. objectives of the resolution are included in the 1973 Constitution, under Article 2, which postulates: –

(A) States have the powers and authority over the elected representatives of the people.

(B) of democracy, freedom, equality, tolerance and social justice principles formulated by Islam must be fully respected.

(C) Muslims must be enabled if you want to their individual and collective life in the areas of training and in accordance with the requirements of Islam as laid down in the Holy Quran and Sunnah.

(d) adequate provision must be made for minorities to profess and practice their religions and develop their culture.

(E) Fundamental rights must be guaranteed, including equality of status and opportunities before the law, social, economic and political justice, and freedom of thought, expression, belief, faith, worship and association, according to law and public morality.

(f) adequate provision must be to protect the legitimate interests of minorities and backward and depressed classes.

(G) the independence of the judiciary shall be fully guaranteed.

7. The legal system is based on Pakistan’s Parliament (Majlis-e-Shoora ), which consists of a National Assembly (Lower House), which according to the territorial constituencies, the members are directly elected by the electoral college of adult voters, which, in the special seats for women and non-Muslims, in addition to minority communities in Pakistan, a double voting right, after a general election of their representatives and others. the Senate (upper house) has an equal representation of all four units of the Pakistan connection, and some federal capital, Islamabad areas. Parliament is the supreme body and is a powerful system for determining the laws and public policy, but in light of the fundamental rights enshrined in the Constitution. These rights, inter alia: “to ensure that the arrest and detention, slavery, forced labor, etc., are prohibited for human dignity and privacy is inviolable, freedom of assembly and association, freedom of speech, freedom to practice religion and to manage religious institutions , property rights, equality of citizens, including those not based on sex-based discrimination. According to Article 8, any law must be public, which opposes limits or abridges the fundamental rights and / or are inconsistent or interfere with them. It is specifically mentioned in Article 4 of the Constitution states that enjoy legal protection and should be handled in accordance with the law is the inalienable right of every citizen, wherever he may be, and any other person, this time in Pakistan.

In addition to its deployment in the context of executive Prime Minister, the Chief Executive of the country, who is elected among the membersof the National Assembly and shall have the right to appoint cabinet ministers of parliament, which is based on the rule of “collective responsibility” cabinet. The top executive body has the right to run the affairs of the Federation, and is obliged to regulate and manage public affairs, which was found in the Constitution and the law. The third major pillar of the State Courts, which consists of two levels of subordinate courts established under Article 175 of the Constitution and the highest judicial instance, the High Court in each province and the Supreme Court of Pakistan with the provisions. Recently, the High Court for the federal capital, Islamabad, was also determined. Both of these courts (High Courts and Supreme Court) is a constitutional forum in which, inter alia, an extraordinary writ jurisdiction to protect and guarantee the fundamental rights of citizens and provides them with judicial power, which is the rule, checking the excesses and abuses of executive authority and / or also consider that the State legislation (even if it is the highest law-making) does not exceed its jurisdiction the authority of the legislative process, as it was found that, under the Constitution. the Supreme Courts in Pakistan, despite the unprecedented attacks on its independence, is dispensingjustice to the people of Pakistan. In addition High Courts and the Supreme Court of Pakistan also has a Federal Shariat Court which has jurisdiction to hear and determine whether a law is repugnant to Islamic injunctions, and in some cases, criminal acts, as well as within its jurisdiction. Islamic state and society and its the judiciary’s role is similar to any first-class system of democracy in the world, a celebration of the decisions of human rights has been granted by the courts, which include Civil liberties, freedom of expression, social, economic and political justice.

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