JILIL Vol 14 Issue 2 2018 - Article 2

Government by Judiciary in Islam:
The Islamic Theory of Judicial Power and Malpractice of Some Muslim Judiciaries
(Iran, Egypt, and Jordan)
Shams Al Din Al Hajjaji

Abstract:
This research argues that the Islamic theory of judicial power is based on full, and direct role of the people in the judicial power. Islam is based on the concept of government by judiciary. Under such a concept, the supreme/senior judge holds enumerated executive authorities in military power, taxation and foreign representation. The people’s role in any Islamic government starts with the appointment of the supreme judge, who enjoys the ultimate qualification as the legal jurist. The people also play a major role in overseeing judicial independence and accountability, both for judges as individuals, and for the judiciary as an institution. The people are an integral part to ensure the transparency of the judicial process, including its enumerated executive powers. However, the practice of the judicial systems of some Islamic countries differs from the Islamic theory of judicial power. The research offers three malpractices of Islamic judicial powers, they are: Iran, Egypt, and Jordan. In Iran, the research focuses on the role of the Faqih, as a supreme judge and leader. It presents the historical foundation, and the current practice of the unique theory of Wilayat al-Faqih (Vilayat al-Faqih in Persian), which gives the leader unlimited executive, and judicial powers to the Leader. In Egypt, the research tackles the issue of junior judges, and the misuse of powers. It includes the unregulated appointment process, inappropriate interference in judicial authority, misuse of judicial immunity, and the impeachment of non-compliant judges. In Jordan, the research is limited to the new Jordanian Constitutional Court, and the question of its legitimacy. Finally, the research recommends several reforms for these cases in order to comply with the Islamic understanding of judicial power.

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