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Appointment of non-Muslim judge in Islamic court

Published: 27/08/2011 08:07:00 PM GMT
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Can a non-Muslim be appointed judge in an Islamic judicial system?


Answered by

the Fatwa Department Research Committee - chaired by Sheikh `Abd al-Wahhâb al-Turayrî

An Islamic court system exists to carry out the Law of Allah. This court is, therefore, a religious and not a secular institution. In fact, when a judge applies the injunctions of Islamic Law, he is engaged in an act of worship.

Carrying out a religious act requires faith on the part of the one performing it. It also requires fear of Allah to ensure that no deviation takes place in carrying out its injunctions. It is not possible for a non-Muslim to carry out this duty faithfully, because he does not believe in Islam in the first place. His disbelief is likely to cause him to willfully violate Islamic injunctions or disregard them completely.

Moreover, in a state with official Islamic courts, the Islamic judge holds a post of binding, legal authority. A person who does not believe in Islam should not be given such authority over a Muslim in matters directly related to his faith. Allah says: “Allah will never grant the disbelievers a way over the believers.”

There is no disagreement among the jurists about this condition with regard to a judge appointed to pass judgment over Muslims. As for a judge appointed to deal with cases concerning Non-Muslims, many jurists, including the jurists of the Hanafî school of law, permit the appointment of a non-Muslim judge to decide cases between Non-Muslims living in an Islamic state.

They argue, quite convincingly, that competency to act as a judge is similar to the competency to give testimony. A non-Muslim living in an Islamic state is competent to give testimony for or against other non-Muslims; thus, he is competent to sit in judgment of them.

The fact that he is a judge exclusively for non-Muslims in no way diminishes his authority or status, just like the appointment of a Muslim judge to deal with a certain group of Muslims does not take away from his authority.

The Shâfi`î jurist, al-Mâwardî, makes the observation the appointment of a non-Muslim judge for non-Muslims to really be an executive appointment in the guise of a judicial one. He argues that the non-Muslims have the option to take their disputes to the Muslim court. In this case, the Muslim court will decide whether or not they want to intervene or refer the case to the non-Muslim court. Allah says: “So if they come to you (O Muhammad), either judge between them or turn away from them.”

However, if they opt to take their dispute to their own courts, then their court’s decision becomes binding on them. This is because they chose to take their case before that court deliberately and freely. Before making such a choice, they were not compelled to accept the decision of their own courts.

And Allah knows best.

Source: Islam Today




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