This is an excerpt from the book ‘Citizenship and Accountability of Government: An Islamic Perspective’ by Mohammad Hashim Kamali.

The maẓālim jurisdiction, which has already been discussed to some extent, originated in the notion that the principle of the rule of law can be compromised if the judges themselves, princes, ministers and powerful members of the community tried to circumvent the law, or violate and defy it for their selfish ends, in which case the Shari’ah courts may be powerless to bring them and their departments to book and enforce the court decisions on them. The need was therefore felt for the creation of a powerful jurisdiction that could apply more expedient procedures in the interest of accountability in government, especially with regard to disputes arising between the citizen and state. One of the basic objectives of the maẓālim jurisdiction was to subjugate the government itself to the rule of law and ensure that state organisations and men of authority and influence did not compromise the objectivity of justice and accountability in governance.

Al-Rifa’i has described the maẓālim as ‘a specialized jurisdiction that operates side by side, yet separately, from the regular judiciary in order to adjudicate disputes and grievances wherein one or both parties possesses influence and power that may arise from holding a government position or other sources of influence.’[1] According to Muhammad Salam Madkur, the maẓālim jurisdiction ‘is a judicial office that ranks above those of the qadi and the muhtasib and combines a degree of executive power with judicial authority in order to settle grievances brought before it by members of the public against government officials, governors and rulers, princes, army commanders and the judges themselves.[2]

The maẓālim jurisdiction dates back to the early Abbasid period. The head of the maẓālim court, known as wali al-maẓālim, was selected from among outstanding individuals of knowledge and piety who possessed the qualifications of a qadi at least. The phrase wiliyat al-maẓālim refers to the jurisdictional authority and powers of this organization, which was otherwise known as diwan al-maẓālim.[3] The sphere of authority and jurisdiction of wali al-maẓālim exceeded that of the qadi. The general sessions of the maẓālim court, which were held on certain appointed times, were attended by the disputing parties, deputies and assistants of the wali al-maẓālim, judges and government officials concerned with the case, the jurists (fuqaha’) who could be consulted on the occasion, clerks, and witnesses. The procedure did not always necessitate an adversarial process and witnesses did not have to testify for or against a litigant but more so in order to vindicate the truth.

Al-Mawardi and al-Farra have both listed about ten varieties of disputes, all of which fell under the maẓālim jurisdiction. Of these certain types of disputes, namely those which consisted of complaints against corruption and abuse of power by provincial governors, tax disputes and excesses of tax collectors, and abusive practices of record keepers in government departments. These disputes did not depend on a private claim because they were public rights issues and affected general interest (maslahah) of the community as a whole. Yet private individuals could also lodge a complaint against official abuse: in pecuniary and property-related matters such as pay disputes, usurpation (ghasb) of private property, disputes over private endowments (awqaf ahliyyah), grievances over delay in the enforcement of court decisions, public morality offences, offences against religion and acts that obstructed due performance of ibadat, as well as disputes arising between private parties, the maẓālim proceedings usually began with a claim or complaint by the aggrieved party.[4]

Basic authority for the establishment of wiliiyat al-maẓālim could be found in the Qur’an, and also the Sunnah of the Prophet, who is noted to have received complaints against officials, just as was the case under the Pious Caliphs after him, although no specific tribunal by this name existed at that time. Justice being the cardinal objective of Islam, the Qur’an is effusive in its condemnation of injustice and oppression (zulm) just as it is overtly supportive of efforts that fight oppression in the quest for Justice.[5] This can also be said of the Sunnah of the Prophet, who said, for example, in a renowned hadith:

“When the people see an oppressor committing acts of injustice and they fail to take him by the hand (and stop him), they will all share the same predicament as God has enacted for the oppressor.”[6]

The precedent of Companions, especially that of the caliph Umar b. al-Khattab is supportive of an uncompromising attitude that the Islamic government must take against official abuse wherein government employees violated the rights of the people. Numerous instances and cases of official malpractice wherein government officials were taken to task for their abusive practices were earlier discussed. The literature suggests, however, that fighting official abuse was seen as an integral part of the administration of justice, and no specialized jurisdiction had existed for this purpose in the early period of Islam.

The caliph Ali b. Abu Talib is noted for having entertained public grievances but he too did not assign a particular duty or venue for hearing cases. The Umayyad ruler, Abd al-Malik b. Marwan (d. 86/705), was the first to assign a day of the week for the purpose of receiving complaints in matters which the courts of justice found difficult to deal with. When the caliph Marwan could not be present, he assigned Ibn Idris ai-Awdi to sit for him. Later the caliph Umar b. Abd al-Aziz zealously followed that precedent. The Abbasid caliph al-Mahdi (780 CE), al-Hadi and Harun al-Rashid followed suit. AI-Muhtadi was the last to keep up the precedent and, towards the end of the second century hijrah, he established for the first time a jurisdiction known as diwan al-maẓālim. Viziers in the capital and governors in the provinces were occasionally authorised by the Caliph to sit in the Diwan al-Maẓālim.

In the latter part of the Abbasid period, the caliph’s authority to review the maẓālim grievances was exercised, in the outlying areas by the Sultan, whether or not the power had been delegated to him by the caliph. The maẓālim became an important organ of the Abbasid state at around mid-third/ninth century. It was according to al-Mawardi, an attempt to combine ‘the legal authority of the judge with the political authority of the ruler.’[7] It was essentially a judicial authority that was above that of the qadi and the muhtasib (officer in charge of hisbah) and could adjudicate in disputes by applying methods that the qadi could not apply due to the constraints of judicial procedure. The maẓālim was empowered to issue orders addressed either to the qadi or the muhtasib, but neither of the latter two could issue orders on the wali al-maẓālim. The qadi was also authorised to issue orders on the muhtasib but the latter did not possess judicial authority of the kind that would entitle him to issue binding orders.[8] The main functions of the maẓālim jurisdiction may be elaborated as follows:

(1) To look into issues and grievances at its own initiative without there being a litigant to start a case. Powers of this type, which were not available to the regular judiciary, were effectively used to monitor oppressive conduct of governors, tax collectors and state officials. In the case of unwarranted levying of tax, extortion and usurpation of property by state officials, the maẓālim had powers to issue orders for their return to their lawful owners and take appropriate measures against the officials concerned.

(2) General inspection of official records and works of secretaries in charge of documentation.

(3) Grievances that could not be effectively addressed by the qadi or the muhtasib, or where decisions made by the latter had failed to be implemented.

(4) To monitor profiteering and monopolistic activities by wealthy individuals who could distort the food supplies or prices in the market place.  The regular judiciary was not best suited to direct supervision of this kinds and due to procedural requirements could not take swift measures to counteract transgression and abuse at the time when they actually took place.[9]

(5) Supervision of religious endowments (awqaf), both public and private, to ensure that they operated in accordance with the state objectives of the waqf.

Al-Mawardi has recorded the following illustrations of cases that fell within the ambit of maẓālim jurisdiction, even before the establishment of a separate jurisdiction by this name:

It is reported that a man from the Yemen approached the Caliph Umar b. Abd al-Aziz with a complaint against Walid b Abd al-Malik, the previous caliph (d 86/705), that the latter had usurped his landed estate. The caliph heard the grievance and asked the registrar of land to check the register of the safi (chosen) landed estates, and it turned out that the land in question was taken by the then caliph Walid b Abd al-Malik. Umar b. Abd al-Aziz consequently instructed the registrar to strike the name of the previous caliph and transfer the land to its owner and also to compensate the owner for expenses he had incurred as a result.[10]

In another case, it is reported that the Abbasid caliph al-Ma’mun (d. 198/813) had assigned Sundays for the maẓālim disputes, which he received himself. On one such occasion, a woman wearing shabby clothes approached him with a grievance. She began praising the caliph for his attention to the weak and the oppressed. The caliph turned to her and said (the exchange seems to have occurred in the form of a poignant poetical expression by the plaintiff and the caliph both-as Mawardi’s record indicates) that it was time for prayer and asked her to return on the following Sunday. She did, and the caliph asked her if she had an opponent. To this the woman responded that indeed she had and it was the caliph’s son, Al-Abbas b. Amir al-Mu’minin. The caliph then instructed his qadi, Yahya b. Aktham and his minister, Ahmad b. Abi Khalid, to look into the case. Then a meeting followed in which the caliph himself and the plaintiff were present and the latter expressed herself forcefully that the prince al-Abbas had wrongfully usurped her property. The caliph listened but did not adjudicate in the matter, as his own son was a party to the dispute. As to the suggestion by a courtier that the plaintiff should lower her tone of voice, the caliph said, ‘Let her speak. The strength of her voice may be due to the truth of her grievance.’ The caliph then issued an order that her property be returned to her.

The fact that the caliph handed over the case initially to his judge and minister was due to the involvement of his son. He knew that he could not adjudicate in favour of his son but that it was permissible· for him to adjudicate against him. This being the case, as Mawardi explained, the caliph issued the final judgment himself.[11]

Recourse to the maẓālim jurisdiction in both of these cases was evidently due to the involvement of powerful figures that could evade enforcement of judgment by the regular judiciary. The case that follows below presented somewhat of a different situation, which is that the case was actually extra-judicial and as such did not formerly fall within the jurisdiction of regular courts.

It is reported that a woman came to the caliph Umar b. al Khattab and addressed him: ‘O Commander of the Faithful! My husband fasts during the day and prays during the night, and I hate to complain to him as he engages himself in worshipping God Most High.’ The caliph’s response to this was simply to say: ‘What a good husband you have-ni’mah al-zawju zawjak!’ The woman repeated her case and the caliph also gave the same response until Ka’b b. Sur al-Asadi told the caliph that this woman had a grievance against her husband for neglecting her in regard to his marital obligations. The caliph then assigned Ka’b b. Sur al-Asadi to adjudicate over the case on the basis of his own understanding of it. Ka’b then summoned the husband and informed him of his wife’s complaint. The husband is reported to have said: ‘Was it concerning food and maintenance?’ The judge heard the parties and then addressed the husband: ‘God Most High has permitted you to marry up to four wives simultaneously. So you may have three nights in which you worship your Lord and the fourth night for you to share with your wife.’ Having heard of this, the caliph Umar was pleased and praised Ka’b’s understanding of the case and his judgment. Ka’b was subsequently appointed as qadi of Basra.[12]

Mawardi commented that the judgment in this case was basically over a matter that did not necessarily call for a judicial decision, and the judgment that was in fact issued was in the nature of a permissible· rather than imperative ruling (hukman bi’l-ja’iz din al-wajib). For division of time (qasm) is not applicable in a monogamous marriage, but the judge premised his decision on it nevertheless.[13]

The maẓālim jurisdiction acquired prestige and prominence during the second phase of the Abbasid rule around the early third/ninth century. Leading officials paid greater attention to petitions, and complaints from the people and exercised greater self-restraint in handling their rights and properties.[14]

In modern times, it seems that adoption of the principle of separation of powers in most of the constitutions that Muslim countries have promulgated favour the establishment of a powerful judiciary that operates independently from the other organs of state. This has effectively placed the Supreme Court at the helm of the judiciary, and all other tribunals are consequently made subservient to the supervising authority of the Supreme Court. The Supreme Court thus to all intents and purposes acquired the powers that were exercised by the maẓālim jurisdiction in earlier times. This should not mean, however, that there is no room for a maẓālim tribunal to ensure and enhance accountability in government. There are constitutions and laws as we know, but it would appear that most Muslim countries have fallen short on accountability and the principle of government under the rule of law. A powerful maẓālim jurisdiction with a clear constitutional mandate and role to promote accountability would therefore be advisable even if it were accountable to the Supreme Court. A basic line of jurisdictional division between the regular judiciary and the maẓālim may be drawn when the latter is envisaged as an administrative tribunal that is concerned primarily with official abuse and disputes brought by the people against the government. They would leave the regular judiciary in charge mainly of disputes among people wherein the government itself is not a party to the litigation.

The only maẓālim jurisdiction, or Diwan al-Maẓālim, that currently operates is in Saudi Arabia where it functions concurrently with the Shari’ah judicial system but in effect supersedes it. The Saudi Diwan al-Maẓālim is not required to decide in accordance with the Shari’ah; its procedure is simple, and its judges include lawyers with a modern background, factors which ensure flexibility of the kind that is not available in the Shari’ah court procedures of Saudi Arabia.[15] In many of the contemporary states of the Middle East the functions of Diwan al-Maẓālim have on the other hand been wholly or partially assumed by various other agencies such as the Majlis al-Dawlah (state council) in Egypt, Majlis Shura al-Dawlah in Syria and Lebanon, and Mahkamat al-Qada’ al-Idari in Iraq. Syria and Lebanon had in fact followed the Ottoman model where it used to be called Shura-e-Devlat (and occasionally as Shura). Only in Saudi Arabia the organisation continues to be known by its original nomenclature as Diwan al-Maẓālim.[16]

Diwan al-Maẓālim in Saudi Arabia operates as an administrative jurisdiction side by side with the Shari’ah Courts which are courts of general jurisdiction in that country, both enjoying independent status in their respective spheres. Under the royal decree of 1373/1954, the head of Diwan al-Maẓālim who holds a ministerial rank is directly accountable to the King with a measure of supervision by the Cabinet. Under the royal decree of September 1974, Diwan al-Maẓālim was made independent of the Cabinet and has retained that status ever since. This decree also specified the basic procedure of Diwan al-Maẓālim in respect of complaints that it receives over official abuse of power. Within two weeks of receiving a complaint the Head (Ra’is) of Diwan al-Maẓālim submits a report on the case to the King and a copy to the Prime Minister.[17]

Several other decrees were issued since on the regulatory and procedural aspects of Diwan al-Maẓālim but a measure of uncertainty remained concerning its independent status as the highest administrative court in the land. This was eventually determined under the royal decree (no. 2918) of 1402/1983 which ensured its independence from the ubiquitous jurisdiction of the Shari’ah Courts. The head or Diwan al-Maẓālim who is appointed by the King has powers to issue orders directed to government departments and he alone is the point of reference regarding the employees of Diwan al-Maẓālim and the determination of its regulatory procedures.

The head of Diwan al-Maẓālim is assisted by a number of deputies, an administrative affairs committee, an advisory committee, an enquiry board, a disciplinary committee and a general council. Under the 1982 regulations the professional cadre of Diwan al-Maẓālim has been granted total security of office and its members cannot be deposed or dismissed, after confirmation into office, at any time during the entire length of their service.[18] Should there be a legitimate case of disability or abuse of power, the member concerned may be recommended by the Administrative Committee for early retirement to the King. Persons who fail on three consecutive occasions to achieve promotion to the next rank may likewise be subjected to the same procedure.

Being an administrative court, the Diwan al-Maẓālim in Saudi Arabia acts only in cases where the state is a party to the dispute and claims that involve abuse of power against individuals. The Saudi system bears much similarity in this regard to the French administrative court. The Diwan al-Maẓālim has no powers to act as an appeal jurisdiction against the decision of the Shari’ah Courts, just as it has no powers to hear complaints in cases relating to the exercise the sovereign power of the state. Cases of this nature also fall beyond the jurisdiction of the Shari’ah Courts. The Diwan al-Maẓālim may however, entertain cases referred to it by the Cabinet in the sphere, for example, of private international law that may involve judicial decision of a foreign court that is considered enforceable in Saudi Arabia.[19]

Notes

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[1] Al-Rifa’i, al-Qada’ al-Idari, 85

[2] Muhammad Salam Madkur, al-Qada’ fi’l-Islam, I, 141-also quoted in Bayati, al-Nizam al-Siyasi, 286

[3] Unlike other courts which were usually called mahkamah, this was designated as a diwan, which literally signifies a prominent organisation of office.

[4] Mawardi, al-Ahkam al-Sultaniyyah, 81; Abu Ya’la al-Farra, al-Ahkam al-Sultaniyyah, 77

[5] Cf. Quran, 7:44;3:182;16:118, and 21:47

[6] Abu Dawud and At-Tirmidhi, https://sunnah.com/riyadussalihin:197

[7] Al-Mawardi, al-Ahkam, 77-80; al-Qarafi, al-Ihkam, 167; Hasan Ibrahim Hasan, al-Nuzum al-Islamiyyah, 295; al-Sayed, Social Ethics of Islam, 157; Hitti, History of the Arabs, 10th edn., 322; Ja’far, Wiliyat al-Mazalim, 19f; badawi, Ikhtisasat, 545

[8] Mawardi, Ahkam, 243

[9] For fuller detail, of the functions of diwan al-mazalim see al-Tamawi al-Sultat al-Thalath, 320ff; al-‘Ili, Hurriyyat, 630ff; al-Sayed, Social Ethics of Islam, 156′ Ja’far, Wiliyat al-Mazalim, 23f

[10] Mawardi, Ahkam, 82

[11] Id., 84-85

[12] Id., 92

[13] Id., 93

[14] Ja’far, Wiliyat al-Mazalim, 22

[15] Layish, ‘Saudi Arabian Legal Reform,’ The American Journal of Oriental Studies, 1987, 290; al-Sayed, Social Ethics, 156

[16] Cf. al-Rifa’i, al-Qada’ al-Idari, 87

[17] Cf. Ja’far, Wiliyat al-Mazalim, 57f

[18] Id., 84

[19] Id., 100; Sata, al-Usul al-Islamiyyah li’l-Qanun al-Idari, 190