The Caliphate has an independent supreme court called the Court of Unjust Acts (Mahkamat ul-Mazalim) also known as the Diwan al-Maẓālim. It is presided over by the most eminent and qualified judges in the state and granted extensive judicial powers and some executive powers by the shari’a. It has the power to investigate any official in the state regardless of their role or rank including the Caliph himself. If the only way to remove the mazlama (injustice or wrongdoing) is through removal of the official or ruler, then the Mazalim Court can issue a fatwa of impeachment against that officer of the state.

What follows is an excerpt from Abu l-Hasan al-Mawardi’s famous work Al-Ahkam as-Sultaniyah (The Laws of Islamic Governance), which became the de facto guide on how to run an Islamic government and was referred to by the ulema and rulers of the Abbasid caliphate, Sejjuk Sultanate and future sultanates and emirates including the Ottoman Caliphate.

The Courtroom

Al-Mawardi says, “When the person charged with investigating cases of wrongdoing (Mazalim judge) takes up office, he should appoint a specific day on which he can investigate the claims of the litigants so that he may devote the remaining days to his responsibility for administration and organisation – except if he is one of the officers responsible solely for incidents of wrongdoing, in which case he is charged with investigation every day. He should be of pleasant demeanour and have good companions. The courtroom where his investigations are carried out should be composed of five categories of personnel: they indispensable for without them the investigations cannot proceed:

1- Guards and Officers, to bring the powerful before him, and to put the audacious in their place

2- Qadis and Judges, so that he may make enquiries as to the rights and claims established by them, and so that he may know what happens between litigants at their tribunals

3- Fuqaha (jurists), so that he may have recourse to them in difficult cases, and may ask them about doubtful or problematic points

4- Scribes, in order that they may record what happens between litigants, and what rights or claims against them are decided upon

5- Witnesses, so that they may attest to any right he recognises, or any judgement he orders to be carried out.”

If the court investigating wrongdoing is composed of all of these five above-mentioned categories, the person responsible may begin to carry out his investigations.”[1]

The Mazalim Court’s 10 areas of Jurisdiction

Any abuse of power by the rulers towards their citizens
Extortions made by agent-collectors when collecting taxes
Registration of the diwan-officials[2]
Claims of deficiency, delay or negligence towards those receiving benefits.
Restitution of things seized by force
Surveillance of the Waqf-institutions[3]
Requirement for a higher and more powerful court to pass judgement[4]
Requirement for a powerful court to prevent acts which the muhtasib (inspectors) are unable to
Public acts of worship are respected
Arbitration between two disputing parties and judgement between two litigants[5]

Al-Mawardi says, “There are ten areas covered by his investigation into wrongdoing:

1- Any abuse of power by the rulers towards their citizens

He investigates any abuse of power by rulers towards their subjects, and brings them to account for the injustice of their actions; this is a necessary part of investigation and is not dependent upon a petition from a plaintiff.

Thus he examines the behaviour of governors and enquires after their state in order to strengthen their case if they are equitable, to restrain them if they go beyond the limits, and to replace them if they are unjust. It is reported that ‘Umar ibn Abd al-‘Aziz gave a khutbah, which was his first, to the people at the beginning of his khilafah, in which he said, “I recommend to you that you have taqwa of Allah, as He does not accept other than this and does not make welcome other than its people. There are certain governors who do not give what is true and right, its due such that justice may be bought from them, and they spread falsehoods about them in order that ransoms be given to them. By Allah, if I had not revived a sunnah which had died, or caused to die a false practice which had come into being, I would not have cared to live for a moment. When you put your hereafter in order, your dunya will be in order. A man who is separated from Adam by nothing but death, is already submerged in death.”

2- Extortions made by agent-collectors when collecting taxes

Extortions made by agent-collectors when exacting the taxes on wealth and property – in this case he should have recourse to the laws of justice contained in the diwans (treasury registers) of the imams: he should ensure that the people are treated accordingly, that the agents apply the directives accordingly, and that they investigate any overestimations – if these amounts have been paid to the treasury, they should be returned, and if the agents themselves have taken them, he makes them return the money to their owners.

It is recounted that one day, while al-Muhtadi[6] was holding an audience for the repression of abuses, various petitions regarding the coins known as Khusroes were made to him; when he enquired about them, Sulayman ibn Wahb replied: ‘Umar ibn al-Khattab (ra) had imposed on the inhabitants of as-Sawad[7], and of the areas around it to the east and west which he had conquered, payment by instalments of the kharaj tax in silver and gold; the dirhams and the dinars were minted with the weight of Khusroes and of Caesar[8], and the people of these regions would pay the money they had, according to the number required, without considering the disparity in weight between the various coins.

Then the people became corrupt[9] and those who had to pay the kharaj would give Tabari coins[10], which were four daniq, and would keep the wafi[11] money of full weight, which had the weight of a mithqal[12]. When Ziyad became governor of Iraq, he exacted payment in wafis and imposed payment in Khusroes.

The agents of the Bani Umayyah continued the practice until ‘Abd al-Malik began his rule. The latter examined the difference between the two weights, and assessed the weight of the dirham at five and a half mithqals, leaving the mithqal as it was.

Later, al-Hajjaj began to demand payment in Khusroes, something which was annulled by ‘Umar ibn ‘Abd al-‘Aziz but which was reinstated by those after him, until the time of al-Mansur.

When, however, as-Sawad was destroyed, al-Mansur[13] put an end to payment in silver of the kharaj due on the wheat and the barley, and transformed it into a proportional tax in kind. These two grains are the most common in as-Sawad, and he left the few other grain-crops, dates and fruit-trees to be assessed in accordance with the kharaj, which is still now exacted in Khusroes and provisions.’

Al-Muhtadi then said, “May Allah guard me from imposing an unjust measure on the people, be it from long ago or the recent past – relieve the people of it!”

Hasan ibn Makhlad said that this abolishment of the Amir al-Mumineen’s represented an annual loss of 12 million dirhams to the treasury. Al-Muhtadi replied that he, “would establish what was right and remove an injustice, even if it were to the detriment of the treasury.”

3- Registration of the diwan-officials

Registration of the diwan-officials (kuttab), since they occupy positions of trust: in this way the wealth of the Muslims may be correctly administered, both in its collection and in its distribution. Thus he has to investigate the nature of what has been entrusted to them, and if there is any excess or deficiency with respect to any incoming or outgoing funds, then he applies the corresponding laws and takes the necessary measures regarding all irregularities.

It is narrated that al-Mansur, may Allah be pleased with him, on learning that a group of his scribes (kuttab) had made falsifications and alterations in the di wan ordered them to be brought before him and punished; one of them uttered the following lines as he was being whipped:

O Amir of the Believers! may Allah prolong your life in prosperity and power. We seek protection in your forgiveness, for if you grant us protection, it is by virtue of your being able to afford safety to the whole world. As for us, we are merely scribes who have made mistakes so forgive us for the sake of the noble recording angels.

Thereupon he commanded them to be released, and he bestowed gifts on the young man and treated him in a most generous way, as he had manifested his sense of trust and shown his nobility.

For these three types of abuse, it is not necessary for the one investigating to wait for someone to lodge a complaint.

4- Claims of deficiency, delay or negligence towards those receiving benefits.

Claims of deficiency, delay or negligence towards those receiving provision. In these cases, he should refer back to his diwan in order to establish the obligation and justice of any payment, and to see whether it continues to be paid to them; he should examine if officials have made short-payments in the past or have prevented payment: if the officials in charge have taken the funds, he should recover the sum from them, if not, he meets the loss from the treasury.

One of the army commanders wrote to al-Ma’mun[14], saying that the army had mutinied and engaged in pillage; the latter wrote to him saying “If you had been just they would not have mutinied, and if you had given them their full due, they would not have pillaged;” he then relieved him of the command and awarded them the provisions owing them.

5- Restitution of things seized by force

Restitution of things seized by force; these may be divided into two types:

A. The first of these are those seized by the authorities, that is those taken by unjust governors, such as property taken from its owner either out of greed or out of hostility towards its owner. As soon as the person responsible for putting a stop to abuses comes to learn of this during his investigation, he should order its restitution without waiting for anyone to lodge a complaint with him. If, however, he does not learn of anything in his investigation, his taking action is dependent on the owner lodging a complaint. In the case of a claim, he may consult the diwan in question: if he finds that mention is made of a property which has been seized from its owner, he acts accordingly and orders its restitution without needing any (further) proof in the matter; his finding mention of it in the diwan being sufficient.

Thus it is related that ‘Umar ibn ‘Abd al-‘Aziz, may Allah have mercy on him, went out one day to the prayer and found himself confronted by a man who had journeyed from the Yemen to make a claim and who recited the following:

You have called a confused person to your door who has suffered an injustice and who has come to you from a far-off country.

The Khaleefah asked him: “What is your complaint?” He replied: “al-Walid ibn ‘Abd al-Malik has taken my lands from me.” The Khaleefah then said: “Muzahim! Give me the register of confiscated lands whose title is still being settled.” He then found the following: “Abdallah al-Walid ibn ‘Abd al-Malik has confiscated the lands of such and such a person.” He then said: “Delete this from the register and record that his land has been restored to him, and that double the amount which he draws from it be given to the claimant.”

B. The second kind of property seized by force is that taken by powerful individuals and who dispose of it with violence and coercion, as if they were the owners. Its restitution is dependent on a complaint on behalf of their true owners, but they may only be recovered from those who have seized them in one of four circumstances:

i. either by way of an admission and confirmation by the one who took it;

ii. on the basis of information possessed by the person responsible for setting right the abuse, in which case he may give judgement in accordance with what he knows;

iii. by means of witnesses who testify to the improper seizure or to the victim’s right to ownership;

iv. the corroboration of accounts, which exclude all possibility of collusion by the witnesses: as witnesses may testily to the ownership of goods, the person responsible for setting aright the abuse, has all the more cause to base his judgement on a concordance of statements.

6- Surveillance of the Waqf-institutions

The surveillance of Waqf-institutions. They are either of a general or of a particular kind:

A. As for the general, he should begin by examining these waqfs even if there has been no complaint against them – in order that he might have them run in the manner appropriate to them, and so that they are administered in accordance with the conditions stipulated by the waqf-donors. This, however, he may only do if he knows of them from one of three sources:

i. from the diwan-registers of the authorities responsible for the enforcing of judgements;

ii. from the diwans of the Sultan which contain descriptions of standard practices or mention of such institutions by name;

iii. from ancient manuscripts on the subject which appear to be correct, even if there is no mention of witnesses – lack of litigation concerning these waqf would mean that there was no need for witnesses. The scope of such decision-making is thus larger than in the waqf-cases of a particular kind.

B. As for waqfs of a particular kind, his inspection of them is dependent upon receipt of a complaint from interested parties who have differences of opinion – given that these waqfs have been set up for the benefit of specific parties. In the case of a dispute, he should proceed according to the law before a judge in any establishment of rights; he may not have recourse to the diwan of the Sultan, nor to any proof afforded by ancient manuscripts lacking any attestation by just witnesses.

7- Requirement for a higher and more powerful court to pass judgement

The execution of those judgements which qadis (judges) have suspended because of their own weakness and incapacity in applying them to the party against whom judgement has been made – because of the latter’s strength and power, or because of the superiority of his position and standing.

As the person responsible for redressing the abuse (Qadi Mazalim) is stronger and more capable of executing an order, he should carry out the judgement against the person in question either by taking away what he possesses, or by coercing him into giving up what he owes.

8- Requirement for a powerful court to prevent acts which the muhtasib (inspectors) are unable to

The inspection of whatever the muhtasib-inspectors have been unable to undertake in matters of public good: thus concerning the open practice of something illicit which they are too weak to prevent, transgressions committed on public highways which they cannot stop, or violation of rights which they do not have the means to put an end to, he applies Allah’s judgement, may He be exalted, to them, and orders that they be forced to respect this judgement.

9- Public acts of worship are respected

He sees that the public acts of worship are respected, like the jumu’ah prayer, the ‘Eids, the Hajj, and the jihad, and that there is no deficiency or omission regarding any aspect of them, for the rights and obligations of Allah, may He be exalted, have priority concerning their fulfilment and execution.

10- Arbitration between two disputing parties and judgement between two litigants

Arbitration between two disputing parties and judgement between two litigants, although he is not to depart from the demands of the law and its consequences in his investigation, and he may not pronounce judgement between them by other than that by which judges and qadis judge. Many a time judgement in cases of abuse causes ambiguity for those responsible for their investigation, and so they in turn transgress in their judgements and go beyond the appropriate limits.”[15]

Notes

[1] Abu l-Hasan al-Mawardi, The Laws of Islamic Governance, translation of Al-Ahkam as-Sultaniyah, Ta Ha Publishers, p.120

[2] In modern times these would be senior officials and heads working in government departments

[3] Assets that are donated, bequeathed, or purchased for being held in perpetual trust for general or specific charitable causes that are socially beneficial

[4] This would include appeals from lower courts

[5] This would be restricted to disputes related to government

[6] The Abbasid Caliph who ruled 869-870 CE

[7] Arable lands of Iraq

[8] The Islamic State minted silver dinars according to the weight of the Persians (Khusroes), and minted gold dinars according to the weight of the Byzantines (Caesar). The Messenger of Allah ﷺ said: “The weight is the weight of the people of Makkah, and the measure is the measure of the people of Madinah.” [Sunan an-Nasa’i 4594, https://sunnah.com/nasai:4594] Al-Baladhri narrated from Abdullah bin Th’alaba bin Sa’eer who said: “Heraclian Dinars came to the people of Makkah in Jahiliyyah as came Dirhams of al-Furs al-Bughliyya (Persians), and when they traded with them they considered them only as ore.”

[9] Put simply the governors were over-taxing the farmers in Iraq by demanding payment in large silver dirhams (wafi) as opposed to the Islamic (Khusroes) silver dirham which weighed less, so they would receive more silver than they should have.

[10] The Tabari Silver Dirham is ascribed to Tabaristan where it was minted. It weighed 4 Daniqs. The Islamic silver dirham (Khusroes) weighs 6 Daniqs

[11] The Wafi (Kasravi) dirham and weighed 8 daniqs so was of a higher value than the Islamic dirham which is referred to here as Khusroes dirham.

[12] A silver mithqal is equivalent to 8 daniqs

[13] Second Abbasid Caliph who ruled 754-775 CE

[14] The seventh Abbasid Caliph who rule 813-833 CE

[15] al-Mawardi, Op.cit., p.121