Mechanisms for Protection and

Enforcement of Human Rights in Islam

By R. K. Salman, Shamrahayu A Aziz
20.1 INTRODUCTION

As mentioned in the previous chapter, Islam recognises and safeguards human

rights. Islam has a specific system to ensure the full enjoyment of rights as it is
paramount to the development and survival of human dignity. Hence, it is the
responsibility of the Islamic authority to protect and promote human dignity and
reduce to the barest minimum conditions that may hinder the guarantee of
human rights.1 It is against this background that certain State institutions are
established to accomplish this feat. It provides strategies for the protection and
enforcement of human rights. These institutions, which we consider as
mechanisms in the protection and enforcement of human rights, include the
judiciary, which is established to solve legal disputes; the Hisbah system that
ensures public order and the institution of Al-Mazalim that maintains justice
between the leaders and the led. This chapter attempts to discuss these various
kinds of human right mechanisms. It emphasises on their role and functions
regarding protection and enforcement of human rights.

20.2 THE JUDICIARY AS A HUMAN RIGHT PROTECTION MECHANISM

The judiciary is an independent administrative system in the Islamic government

which is oriented to solve all types of legal disputes among various litigants. The
judicial system is also structured to ensure the establishment of justice among
people, stop oppression and punish the oppressors.2 The establishment of the
judiciary was mainly based on the divine guidance from the Qur’an. It was first
indicated in the dispute between the two sons of Prophet Adam (AS), Qabil and
Habil, where the Prophet (indirectly) sat as a judge.

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There are verses in the Qur’an indicating the establishment of a judiciary as a
mechanism to preserve justice, as one of the ingredients in the protection of
human rights. For instance, the Qur’an says to the effect that, "O you who
believe, obey Allah and obey the Messenger and those in authority from among
you. If you disputed over a matter refer it to Allah and the Messenger.”3 In
another verse, it says to the effect, "We sent Our Messengers with clear signs and
sent down with them the Book and the Measure in order to establish justice
among the people ... "4 The Qur’an also says, "Surely We have revealed the Book
to thee with truth that thou may judge between people by means of what Allah
has taught thee. And be not one pleading the cause of the dishonest.”5 Similarly,
in another verse, the Qur’ an says to the effect, "Say: I believe in the Scripture,
which God has sent down, and I am commanded to judge justly between you ...”6
We also find that the Qur’ an says, "And the Word of your Lord has been fulfilled
in truth and in justice. None can change His Words."7

With these clear verses from the Qur’ an we can conclude that the judiciary
stands at a very comfortable place in the Islamic system and it has the main duty
to respect human dignity and to implement justice. Thus the establishment of
judiciary simultaneously respects and will function as a mechanism to protect and
enforce human rights.

20.2.1The Islamic judiciary or tribunal

The Islamic judiciary or tribunal stood at a place where justice is dispensed by the
Qadi in the Islamic administration of justice. It is better for the Qadi to listen to
parties in a forum that does not belong to them. Thus, the Qadi can pass
judgement in a judicial court where he feels comfortable and protected by the
authority which appointed him. This is derived from the following Hadith. It was
reported on the authority of Abdullahi ibn az-Zubayr that; “The Messenger of
Allah has ordered that the two disputing parties should sit before the judge.”8 It
therefore becomes a condition for the validity of the judicial procedure in Islam
that there ought to be a place where parties are heard and judgement delivered.
That place maybe called a court or tribunal depending on the case at hand.
Prophet Muhammad (SAW) in his life time, adjudicated between Muslims,

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Muslims and non-Muslims; and between government and individuals in a
designated place.

The expansion of Islam increased the administrative works of Prophet

Muhammad (SAW) during the hey-days of Islam. Thus, it was incumbent on the
Prophet to appoint Qadi to adjudicate in other jurisdictions. An example of this
can be found when Prophet Muhammad (SAW) posted Ali b Abi Talib as judge to
Yemen. The Prophet (SAW) was reported to have instructed Ali that: "When the
litigants appear before you, do not decide for one until you hear the other. It is
more likely that by doing so the reasons of a judgement will become clear to
you."? The Prophet (SAW) also appointed Muaz Ibn Jabbal as a judge and sent
him to Yemen.10 The Caliphs also appointed judges during their various reigns and
reiterated to them the importance of justice between parties to a dispute. This
could be gleaned from the comprehensive letter sent by Caliph Umar Ibn al-
Khattab to one of the assigned judges -Abdullah bin Qays.11

In the practice of human rights, a statement of Prophet (SAW) in the case of a

noble woman who had committed theft should be noted. A companion requested
for a lesser sentence for the noble woman. The Prophet, however, was unhappy
and he had this to say:

Verily, those before you were destroyed because when a noble man
from among them committed theft, they passed no sentence on him.
By Allah, had Fatimah, the daughter of Muhammad committed theft,
I would have cut off her hand.

20.2.2Independence of judiciary in Islam

When we say "judicial independence", the question that may arise is

independence from what. In a lay man's answer, the judiciary should be free from
any other organs of government - the legislature and most importantly should be
independent from the executive. From another perspective, the judiciary is also at
liberty to make decisions. It is noted in all jurisdictions that the executive is the
most powerful organ of government which may have influence even in the
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workings of the judiciary. Thus, in order for the judiciary to be able to carry out its
functions properly (including the function to protect and enforce human rights) it
should be independent from the executive.

The courts must be institutional and decisional independence. Institutional

independence means the judicial branch is independent from the executive and
legislative branches. Decisional independence is the idea that judges should be
able to decide the outcome of a trial based solely on the law and case itself,
without letting the media, politics or other things sway their decision.12 In the
event of encroachment of human rights by the State, the judiciary would be the
referee to decide on the conflict. Thus, the judiciary should be free from executive
influence in order for it to deliver a free, fair and just decision involving the
executive. The judiciary therefore, must be free from the executive.

In the exercise of its function as a protector of human rights, judicial

independence is indeed the most vital aspect. This is due to the fact that, in
reality, most violations of human rights are done by the executive. Only if the
judiciary is independent, the general public would feel secure that their rights are
protected.

Apart from being independent, the court must also be given specific powers and
jurisdictions within which it will operate in order to protect and promote human
rights. This additional rider becomes necessary in view of the dual judicial systems
in operation in many Islamic countries today. With the advent of imperial powers,
judicial systems operate under civil courts and Shari’ah Courts. In a number of
Muslim and non-Muslim States, Shari’ah courts are part of the judicial system.13
Jurisdictions of Shari’ah Courts in Muslim States, however, are restricted to family
law matters except in two countries.14 For example, in the Philippines, the
Supreme Court15 for long has held that Shari’ah Courts are not on equal footing or
identical with regular courts.16 The implication of this is that unless specifically
given the jurisdiction to try issues bothering human rights, the Shar'iah Court will
continue to be stripped of the duty to protect and promote Islamic human rights.

It is to be noted that there exists another inherent feature of the judicial system
which may not permit it to be a major institution of protecting and promoting
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Islamic human rights. The feature is that the court lacks competence to
commence settlement of disputes unless such disputes are referred to it. The
court also lacks investigative power over a dispute unless such a dispute is
formally lodged before it, even when the judge is aware of such dispute. Thus,
where the human right of an individual is fringed, the court is incompetent to
delve into it where such individual has not approached the court for remedies or
redress. However, once the matter is brought, or appears before it, courts are
expected to deliver the right to the rightful owner.

20.3 INSTITUTION OF WALI-AL-MAZALIM

Traditionally, the theory of an Islamic State assumes that States will carry out
their responsibility and by so doing every citizen will enjoy his/ her guaranteed
rights under Islamic law without the need to claim tor them. This is also based on
the assumption that leaders of Islamic States would always do their best to
protect the interest of the individual as well as the State. This indeed was the
situation during the life of Prophet Muhammad and his rightly guided Caliphs. In
this period, human rights were observed and enjoyed as part of the Islamic legal
and religious ideals.17 To protect against the excess of the appointed authorities,
especially the infringement of human rights, the office of Mazalim was created.
The office was officially known as Wali al-Mazalim. It is a novel office which is
neither a court nor Hisbah in the strict sense, but a mixture of the two.18

Wali al-Mazalim is a public office in Islam which, by bringing into play the coercive
authority of the ruler and the adjudicative function of the judge, may enforce a
just solution on the parties to a dispute. 19 It is an office which combines the high-
handed power of the Sultan with the “nasafa” or justice of the judge.20 It is
headed by a Mazalim who is charged with the responsibility of investigating
complaints of maladministration against public authorities.21 The system was first
established by Caliph Umar Ibn Khatab.22 It was consolidated by Caliph Hazrat Ali.
23
Caliph Ali personally presided over the special Mazalim Court where cases
against the administration were examined and people, irrespective of rank,
status, wealth or position lodged complaints against any public officers.24 The

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office was later influenced by the Byzantine system of administration where it
was known as agoranomos (Inspector of Markets).25

During the dynasties of Umayyad and Abbasid, many lacunas were created
between the ideals of the law and realities of the time. This, off course, was due
to many social and political developments within the Islamic State. The period
witnessed gross violations of human rights of individuals. The judges (of the
Shari’ah Court) could not handle complaints because most of such complaints
involved high and powerful officials of the State. To curb the vices, a Complaint
Court (known as the Mazalim) was formally instituted. It was instituted to "ensure
the government is under the rule of law in that abuse of power by influential
persons and State dignitaries did not escape the law due merely to their capacity
at resisting it ... and was first and foremost an administrative tribunal which
looked into disputes between the citizens and the State."26 The Wali al-Mazalim
was institutionalised during the Umayyad period under which Caliphs personally
sat in the court and listened to a series of complaints against civil servants. During
the Abbaside period the office gained more recognition and its jurisdiction was
widened to include religious and ethical functions besides its original jurisdiction
of attending to complaints against government authorities.27 It was practised in
Baghdad, Mahdi and Muhtadi. The Caliphs headed this administrative court in
person.28 In Nigeria, ample reference was made to Wali al-Mazalim by Uthman
Dan Fodio Abdullahi29 and Sultan Bello in their various treatises on the
government as one of the important offices in the administrative structure of the
State. They equally adopted and used the system during their reign. 30

Generally, the jurisdiction of Mazalim includes injustice suffered directly as a

result of an act of the ruler or one of his deputies; complaints against
governmental agency or officials which involve corruption or misappropriation of
property belonging to an individual; complaints against irregularities in the public
records kept by registrars, clerks and accountants; complaints against
irregularities in administering lands dedicated as waquf; and complaints from
stipend holders.31 The other jurisdictional aspects of Wali al-Mazalim are
complaints against misappropriation of property of another person, complaints

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regarding matters which normally fall within the jurisdiction of Muhtasib, and
complaints concerning any dispute between individuals.32

These responsibilities, functions and powers given to the Mazalim give sufficient
justification for the belief and assumption that in the theory and practice of early
Muslim societies there was a positive administrative method to protect the public
against bureaucratic sins of omission and commission.33 Its influence can be seen
in the first proposal in 1879 and establishment of the Egyptian Constitutional
Court of 1946.34 Today, however, Wali al-Mazalim is no longer found in most
Islamic countries.35 Nonetheless, the positive role played by this institution to
protect and promote rights in the Islamic legal history deserves mention in this
work. However, if revived, it could still function well in the modem day system in
countries whose State religion is Islam. If properly instituted and carefully used, it
will curb the stem of human rights abuses in the government circle. That is, it
could stand as a good vehicle for curbing human rights abuse by public officials
who are immune from prosecution (whether civil or criminal) under the immunity
clause of the modern constitutions.

20.4 HISBAH INSTITUTION

Another mechanism which Islamic States have used to protect and promote
human rights in Islam is Hisbah. Hisbah is an Arabic word which connotes one of
the major principles of the Islamic religion and ethnics- enjoining what is good
and forbidding what is bad, or expressed in Arabic: al -amr bil-maruf wal-nahy 'an
al-munkar. This principle has developed over time into an Islamic institution
which is charged with the responsibility of supervising social, political and
economic behaviours in an Islamic state. The origin of Hisbah could be traced to
the injunctions of the holy Qur’an wherein Allah informs Muslims that "Ye are the
best of peoples, evolved for mankind, enjoining what is right forbidding what is
wrong."36 Allah further prescribes that Muslims must choose among their
community people that carry out this duty when He says "Let there arise out of
you a band of people inviting to all that is good, enjoining what is right, and
forbidding what is wrong: They are the ones to attain felicity."37 However, Allah
says those who fail to enjoin what is good and forbid what are bad but

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transgressors and their acts are regarded as evils, This is succinctly put thus:
"Many of them dost thou see, racing each other in sin and rancour, and their
eating of things forbidden. Evil indeed are the things that they do. Why do not the
rabbis and the doctors of law forbid them from their (habit of) uttering sinful
words and eating things forbidden? Evil indeed is their works.'?38

In complying with these injunctions, the holy Prophet Muhammed directed his
followers to this noble admonition. Prophet Muhammed told his people that: "If
some people commit sins and if there are other persons among them who can
prohibit them and still they do not do it, soon punishment from Allah will fall on
all of them."39 Thus, to serve as a good role model "Prophet Mohammed was said
to have physically observed these injunctions. He administered the principle of
Hisbah in several situations. For example, it was reported that "once the Prophet
saw a man selling foodstuffs (wheat) and it pleased him. He then placed his hand
unto the interior of the wheat and found moisture in it. He asked the merchant:
Why are there wet things in it? He said: Rain melted them. The Prophet then said:
why did not you put the wet part above so people can see it. He who defrauds us
is not of us.”40 With this action, the Prophet has shown the fundamental and basic
ingredient of Hisbah, which is to encourage which is good and forbid which is bad.
The Prophet equally assigned this duty of Hisbah on some people when it was
apparent that the administrative works became expansive due to the expansion
of the Islamic empire. What is unique however is that, historically, the Prophet is
regarded as the first Muhtasib in Islam.

After the demise of the Prophet, the duty of Hisbah fell on the Caliphs and this
they did directly or by appointing some other trustworthy people to do. It should
be noted that as a result of expansion in the Islamic empire and conquest of many
cities and towns, the Hisbah experienced developments by benefiting from other
forms of civil institutions already in existence in the conquered areas. Thus,
Hisbah became an independent office and subsequently a separate Islamic
institution. While Hisbah is in full practice in Saudi Arabia till today, it is being
practised with modifications in some Islamic States whereas it has become extinct
in others. What is important from this short historical analysis are that firstly, the

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institution of Hisbah is rooted in the injunctions from the holy Qur’an and Sunnah
of the Prophet. And secondly, the concept of Hisbah takes two terms.

The first form is regarded as general or voluntary Hisbah. Under this category,
every individual takes responsibility for promoting what is good and forbidding
what is evil in any aspect of the community life, be it religious, ethical or political.
This voluntary action originates from the Qur’anic injunction as well as the
tradition of the Prophet. The Qur’an says: "The believers, men and women, are
protectors one of another: They enjoin what is just and forbid what is evil: They
observe regular prayers, practise regular charity, and obey Allah and His
Messenger, on them will Allah pour His mercy: for Allah is Exalted In power,
wise."41 While the Prophet was reported to have said: "Whosoever among you
sees an act of wrong should change it with his hands. If he is not able to do so,
then he should change it with his tongue. If he is not able to do so, then With his
heart and this is the weakest of faith."42 Hence, in its broader sense, it is an
obligation for all Muslims to encourage what is good and forbid what is evil
without obtaining any permission or authority from anybody.

The second form of Hisbah is that which is institutionalised. It is a form whereby

an appointment of an agent is made by the Islamic State to carry out the duty of
Hisbah. In the alternative, the government sets up an institution called Hisbah
under the head or chairman known as Muhtasib. And it is saddled with the
responsibility of inspecting all strata of the society with a view to seeing that evil
doers are corrected or punished accordingly. It is the second form of Hisbah that
is our concern; hence focus would be on that form of Hisbah institution.

20. 4. 1 Modern Hisbah institution

As has been noted earlier, the precept of Hisbah was first exhibited by Prophet
Muhammed himself while the same was assigned to some other righteous people
like al-‘As b Umayyah and ‘Umar b Al-Khattab in Mecca and Medina respectively
when his personal and official engagements increased. Again, all the first four
rightly guided Caliphs took charge of Hisbah but later transferred the same to
provincial governors due to massive expansion of the Islamic empire. For
example, history has it that Caliph 'Umar assigned to his provincial governors the
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position of Muhtasibs.43 This trend shows the transformation of Hisbah due to
changing conditions and situations. In the same manner, due to industrial
revolution and massive economic, social and political changes the world over; it is
strongly believed that Hisbah should no longer be one-man activities neither
should it be one-man affairs with few assistants moving from one domain to the
other. Therefore, there is a need to evolve a modern Hisbah institution at a
natural pace.44 There is a need to shift from traditional Hisbah to modern Hisbah
which will take care of ever increasing economic, social and political activities
which are popularly referred to as first, second and third generation rights in the
modern international human rights law.

The modern Hisbah envisaged here could be: i) Hisbah established by the
government and attached to existing government agencies like Anti-Corruption
Commission, National Audit Department, Human Rights Commission, or Local
District Councils.45 In this direction, it is important for the government to
empower these agencies to do their jobs independently in order to comply with
the Hisbah principles. Uniquely, this mechanism does not require erecting new
structures thereby obviating the necessity of spending huge sums of money on
structure and infrastructures that would have been needed.46 However, as
plausible as this institutional structure may be, there remain some disadvantages
that may provide justification for its non-adoption. Firstly, where there is
integration of Hisbah in the government agencies, there is a tendency that there
will be conflicts of interest and the problem of superiority of one over the other.
This is because most of these agencies deal with mundane affairs, hence,
mundane functions in most cases will clash with religious of Hisbah and in order
to resolve the conflict, each party will likely claim superioirity over the other.
Secondly, in a secular nation or State which has not declared any religion as the
State religion, integration of Hisbah and non- religious matters operating in the
same domain will be a marriage of inconvenience.

It is against this backdrop that a broad and distinctive Commission or Board on

Hisbah akin to a Human Rights Commission is proposed to be the most ideal in all
circumstances and situations. It will be ideal for the government to establish a
Commission or Board with offices compartmentalised into various aspects of
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human endeavours. Each department is expected to be staffed with specialists in
the areas of its specialisation. Also each department will be headed by an
Assistant (technically qualified staff) or HOD working hand in hand with the
overall boss - Muhtasib. The envisaged modern Hisbah Board or Commission will
be composed of councll or board members who are versed or knowledgeable in
the field of Shari’ah and fiqh and who come from different trades or walks of life.
These members will oversee the works and conduct of the Hisbah. All members of
the Board or Commission and its' staff will be subjected to regular training in their
areas of work.47 If this is put in place, the Board or Commission will be capable of
performing its expected functions to the fullest.

20.4.2Functions and powers of Hisbah

The hisbah institution is established for the purpose of complying with the
injunctions of Allah and the Prophet which enjoin what is good and forbid what is
bad. This function has been interpreted widely by jurists and classical Muslim
scholars48 who have written on the subject. Their wide interpretation was
intended to cover all prevailing social vices of the time. The interpretation based
on the then situations may not be relevant today because social vices at that time
have changed both in magnitude and style. What is clear, however, is that the
unique purpose of enjoining what is good and forbidding what is evil pervades all
time and ages. Thus, the said purpose can still be interpreted not only to match
the prevailing circumstances but also to correct the prevailing social vices in
general and protect human rights endowed man by Allah. It is from this
perspective that the following three basic functions of the hisbah institution are
highlighted.

The first major function of hisbah is to oversee the proper organisation of and
facilities for the observance of Ibadat. The function of the general overseer
includes adequate maintenance of mosques, appointment of imams,
arrangement of daily prayers, Friday prayers and ‘ld prayers. In the same token,
the institution of hisbah ensures the observance of many other obligations of
Shari’ah and takes serious objections to their violations in society.49 The
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institution does this by preaching, advising, reprimanding or referring to
appropriate authority. This function is relevant to the modern society where
mundane affairs have taken away high moral standards and the acts of Ibadat out
the mind of many. It is strongly believed that the relevance of this function will
surpass many ages to come.

Another major function of the hisbah institution is the maintenance and

implementation of justice in society. This entails insistence on fair play among
different economic factors to minimise possibilities of exploitation of the
economy - such as checking manipulation of prices, monopolistic collusion,
supplies and productions.50 It also includes checking and correcting excesses of
the judiciary, the police and other law enforcement agencies. In order to maintain
justice, the hisbah institution equally gives advice and organises workshops for
other government institutions as well as financial institutions. It also intervenes in
private disputes and offers amicable settlements between individuals, individual
and organisations and between employers and employees.

Lastly, the institution of hisbah engages in the inspection of and maintenance of

public utilities. The hisbah does this by carrying out regular inspections of the
whole town to ensure the optimal hygienic condition of the town is sustained;
where necessary, it involves in the evacuation of garbage and sewage. Again, this
function includes inspection of schools, hospital, roads and bridges with a view to
calling on the appropriate authorities in relation to their conditions and providing
adequate repairs. It also entails inspection of the water board, electricity board,
as well as roads and buildings under construction. This assists in ensuring that the
utilities are supplied and constructions are in compliance with minimum
standards. Obviously, a need for constant availability of these services on a large
scale is essential these days as earning a livelihood is part and parcel of human
rights.

The above functions are all encompassing; they encapsulate the civil and political
rights, economic social and cultural rights or what the Western writers classified
as first, second and third generation rights. Above all, they take adequate care of
religious matters of ‘IbÉdÉt. In other words, the institution of hisbah functions in

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various ways. It takes care of both worldly affairs and religious rites. It is therefore
argued that if properly managed, the hisbah institution will not only protect
Qur’anic concepts of human rights but it will be an institution to promote them.
However, to enable the Board or Commission to accomplish the enumerated
functions, it must be headed by a leader appointed by the government upon
meeting certain requirements or qualifications. This leader is referred to as the
Muhtasib. He is responsible for the overall activities of the Commission or Board.
The next questions are who is a Muhtasib and what are his qualities or
qualifications?

20.4.3The Muhtasib

The Muhtasib technically, means a person who engages in or propagates the

principles of enjoining what is good and forbidding what is evil. The first known
Muhtasib in Islamic history is the Holy Prophet himself this name he bore while
answering the clarion call of the injunctions of the Qur’ an. As the Islamic empire
expanded, the Muhtasib became the holder of the office of hisbah who came in
direct contact with the people frequently in the market and other places to
admonish them to do good, forbid them from doing evil and punish those found
to engage in evil acts. Today, in line with the concept of modern Hisbah, a
Muhtasib is an officer appointed by the State to man the affairs of the Hisbah
institution. He is in charge and oversees the activities of the institution. This
institution is entrusted with the maintenance of public morals and standards in
the State; the standards encompass social, economic political and religious
matters. 51

He is expected to be a Muslim, male and mature. He works with his technically

trained staff as his assistants who investigate the affairs of different crafts and
trades; they as well give specialised advice in their areas. The Muhtasib has wider
powers but he exercises them sensibly. He is empowered to advise, reprimand,
rebuke, imprison or expel people from the town. He does these through the
instrumentality of his staff or the court as the case may be. The code of conduct
for a Muhtasib provides a system of checks and balances.52 As a rule, the
behaviour of a person to be punished should obviously be against the injunctions

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of the Shari’ah before the Muhtsasib can intervene. In the same token, he should
not engage in ijtihad to punish. Rather, he “should forbid them from only those
actions on which there existed a consensus from the Umma”53

Generally, the nature of the Muhtasib’s tasks is comprehensive. It comprises

practically all aspects of society as well as everything in day-to-day life. This is not
restricted to fellow human beings, but also extended to interpose in damages
caused by animals. Cases of environmental pollution are not excluded too.
Administration of judiciary is another area of concern to the Muhtasib. Again, all
other appointees of the State who act on behalf of the State are also accountable
to the AI-Muhtasib.54 However, before his appointment to the post of Muhtasib,
he must possess some qualifications or qualities, such as maturity in all
ramifications, knowledge of Shari’ah, pious, possess the knowledge of social
customs and kindness, patience and boldness.55 Some of these qualities are
elaborated below.

(a) Maturity

A would-be Muhtasib must be someone who is known for his exhibition of utmost
sense of maturity. This includes being a male Muslim with a high degree of
integrity, insight, reverence and social status in the society. By corollary, he must
be a man well known in the society, because if he is not such he would not have
had integrity or commanded respect in his society. Most importantly he must be a
man who has passion for community development.

(b) Knowledge of Shari’ah

A potential Muhtasib must be learned in the area of Islamic law. He is expected to

be well read or versed in Islamic jurisprudence - fiqh. With this in place, he is
familiar with principles of Islamic law, how to apply them and when to apply
them. Through this knowledge he must be familiar with the existing ijtihad. This
will enable him to appreciate what has been forbidden and what are allowed in
Islam. His knowledge of ijtihad will enable him to apply adequate measures to a
sudden or urgent situation without necessarily waiting for advice from other
people and at the same time without transgressing his duty.

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(c) Piety

The knowledge of Shari’ ah and ijtihad is one thing, the ability to have fear of God
to apply them is another. Therefore apart from the knowledge of Shari’ah, a
Muhtasib must be pious. Piety and fear of God is necessary for the Muhtasib in
order to prevent him from excessive use of his office. His piety will also enhance
his ability to do justice between the complainant and the respondent while
attending to their matters. It is the same piety that will continue to prompt him to
set good examples for others to emulate and his words will not contradict what
he preaches. 56 For Allah says of such pious person: "Do ye enjoin right conduct on
the people, and forget (to practise it) yourselves, and yet ye study the Scripture?
Will ye not understand?”57 Thus, piety is as important as knowledge of Shari’ah
for a successful implementation of hisbah by a Muhtasib.

d) Knowledge of Social Customs and Mores

Akin to the above mentioned qualities of Muhtasib is the adequate knowledge of

social customs and mores in his community. It is important that the Muhtasib has
a fair knowledge of trades, crafts and many professions prevalent in his
community. The rudimentary knowledge of many areas of human endeavours will
enable him to understand and appreciate complaints brought before him and
tactics usually employed by professionals.

(e) Kindness and Patience

A Muhtasib also needs to be kind and patient to all people at all times. His
kindness, patience and humility will endear him to his community. This will also
enable the parties to have confidence in him when he is approached for justice.
This quality will assist him in his basic duty of enjoining what is good and
forbidding what is bad. And with it he will not exceed limits of the Shari’ah. For
the Prophet said; "He who is not patient and kind in enjoining good and
forbidding evil shall not enjoin good and forbid evil. "58 Therefore, according to Al-
Ghazali, kindness and patience are necessary qualities of a Muhtasib. It is
therefore incumbent upon him to exhibit this quality before and after his
appointment.

Human Rights Law: International, Malaysia and Islamic Perspective (Eds.) Abdul Ghafur Hamid,
(Malaysia: Sweet & Maxwell, 2012) p. 356
(f) Boldness and Confidence

Lastly, boldness and confidence have been recommended as part of the qualities
to be looked for in a Muhtasib.59 Hence, a would-be Muhtasib must be bold and
confident. If he is bold and confident he would be able to say the truth at all times
and to whosoever it is, be it leaders or the led. But if he is not bold, he will not
have sufficient courage to say the truth openly neither will he have confidence to
confront leaders who engage in forbidden acts. It was reported that during the
hey-days of Islam, the then leader of Damascus was searching for a Muhtasib and
a man was recommended to him. He invited the man to his palace and asked him
some questions. After the successful interview of the man the leader appointed
him as the Muhtasib. Upon his appointment, the Muhtasib said to the leader: "If
this is so, then rise from this mattress and remove this cushion, for they are of
silk; and take off this ring, for it is of gold; and the Prophet has said 'These two are
forbidden to males of my nation and lawful to its female.'" The leader then did
what the new Muhtasib ordered him to do and said; "You are indeed bold and
you have added another quality to the qualities of a Muhtasib."60 Following this
analysis of the qualifications of a Muhtasib, it is submitted that such qualifications
are necessary to sustain the modern hisbah institution. If a Muhtasib possess
these qualifications, they will assist him in effectively directing the institution to
carry out its functions efficiently thereby achieving the goals of its establishment.

From the analysis above, it is clear, firstly, that hisbah originates from religious
injunctions from Allah to mankind. Thus, it could be argued that hisbah is God's
given institution for the benefit of mankind. Secondly, hisbah, as an injunction in
Islam is directed to all and sundry. That is, although the expansion of State and
complicated governance require setting up hisbah institutions, an individual can
engage in enjoining what is good and forbid what is bad. Lastly and most
importantly, hisbah takes care of religious as well as mundane affairs. In this
regard the mundane affairs entail human, animal and environmental.

20.5 CONCLUSION

Human Rights Law: International, Malaysia and Islamic Perspective (Eds.) Abdul Ghafur Hamid,
(Malaysia: Sweet & Maxwell, 2012) p. 356
It is not in doubt that Islam has made adequate provisions for human rights. Not
only that, enough measures and mechanisms are in place to protect and promote
them. Such mechanisms are among those discussed above, namely the Shari'ah
Court, the Mazalim, and the hisbah. Today, however, most of these institutions
have become extinct even in most States where Islam is the State religion. These
institutions have been taken over by modern democratic institutions, though
most of them are borrowed from Islamic institutions. These institutions need to
be revived and sustained by the Islamic States for the protection and promotion
of rights in Islam.

Amongst these institutions, the one that is most capable of promoting, protecting
and enforcing human rights (perhaps, due to its multi-dimensional functions) is
the hisbah. The hisbah, which is rooted in the Qur'anic injunctions and Sunna of
the Prophet, is capable of protecting rights if its functions are properly carried
out. The functions of the hisbah permeate all aspects of human, animal and
environmental life. The rights of each of these categories should be protected
according to Shari'ah, order, norms (urf) and socially accepted practices.
Management and control of economic activities at large are included in the
general functions. Therefore, well implemented principles of hisbah will lead to
good governance in the government as well as business organisations. This will
inevitably enhance integrity, efficiency and effectiveness in both the public and
private sectors in particular and also all aspects of human rights in general.
Notes

1 AA Said, "Protection and Practice of Human Rights in Islam" Universal Human Rights, vol
1, No 1 (1979), p 69.

2 For further reading on the general functions of the Islamic judiciary, see for example,
Abi al-Hasan Ali bin Muhammad bin Habib al-Mawardi, al-Ahkam al-Sultaniyyah ((n.p.):
Dar al-Fikr, 1960), pp 70-71; Abdul-Rahman al-Sheha, Human Rights in Islam and.
Common Misconceptions, available online at
http://www.islamland.com/Media/Books/HumanRightsinIslam.pdf (Assessed on
November 11, 2010), P 93.

3 Al-Qur’an 4:59.

Human Rights Law: International, Malaysia and Islamic Perspective (Eds.) Abdul Ghafur Hamid,
(Malaysia: Sweet & Maxwell, 2012) p. 356
4 Al-Qur’an 57:25.

5 Al-Qur’an 4: 105.

6 Al-Qur’an 42:15.

7 AI-Qur’an 6:115

8 Abu Dawood, Book 24, Hadith no 3581; Musnad Ahmad.

9 Mohammad Hashim Kamali, Freedom, Equity, and Justice in Islam (Kuala Lumpur: Ilmiah
Publishers Sdn Bhd, 1999), p 177.

10 Abdul-Kareern Newell, Accountability in the Khilafah. Available at http://www.khilafah.

com/index.php/the-khilafah/judiciary/466-an-introduction-to-the-islamic-judiciary
(Assessed on November 25,2010).

11 Abdul-Rahman al-Sheha. n 2 above, P 93; See also Tirmizi Hadith no 3472.

12 Hizb ut-Tahrir, "Khilafah State Organisations, translation of Ajhizat dowlah ul-Khilafah

(Beirut: Dar ul-Ummah, 2005), p 103.

13 Some of these States include Bahrain, Brunei, Ethiopia, Gambia, Indonesia, Iraq, Jordan,
Kenya, Lebanon, Malaysia, Palestine, Philippine, Qatar, Singapore, Somalia, Sri-Lanka,
Sudan, Syria, UAE, Morocco, Oman, Nigeria, Pakistan, and Saudi Arabia.

14 The first exception is Saudi Arabia, where Shari’ah Courts have general and residual
jurisdiction. That is, the jurisdiction covers all matters that have not been assigned to
any other tribunal. The second exception is Malaysia. In Malaysia, jurisdiction of the
Shari’ah Court extends to religious offences which as well could be deemed to be issues
of public law.

15 See the Philippine cases of Re Bar Matter No 702 (May 12,1994) and Tampar v Usman
(1991) 200 SCRA 652.

16 Michael Mastura. "A Reappraisal of the Administration of Islamic Law in the Philippines"
in Ahmad Mohamed Ibrahim & Abdul Monir Yaacob (eds), The Administration of Islamic
laws (Kuala Lumpur: Institute of Islamic Understanding Malaysia (IKIM), 1997), P 75.

17 Mashood A Baderin, n 1, p 97.

18 Syed Khalid Rashid, Islamic Law Perspectives of Alternative Dispute Resolution (ADR): A
proposal for establishment of ADR for Muslims presented to professor Ahmad Ibrahim,
Dean of Kulliyyah of Laws IIUM, 1991.

Human Rights Law: International, Malaysia and Islamic Perspective (Eds.) Abdul Ghafur Hamid,
(Malaysia: Sweet & Maxwell, 2012) p. 356
19 Ml Khalid, "Wali al-Mazalim or Muslim Ombudsman" Journal of Islamic and
Comparative Law, vol 6, (1976), p 1.

20 Ibn Khaldoun, AI-Muqaddima, 3rd edn (Beirut: n.p.,1974), p 7.

21 Shad Saleem Faruqui, "Principles and Methods for Enforcing Accountability in the Public
Sector", Ph. D Thesis (International Islamic University Malaysia, 1994), p 286.

22 Lukman Thaib, The Notion of State in Islam (n.p.: Quill Publisher, 1990), p 77.

23 Shaukat Ali, Administrative Ethics in A Muslim State (Lahore: Pakistan Publishers, 1975),

p29.

24 Ibid.

25 Ibid.

26 Mohammad Hashim Kamali, "Appellate Review and Judicial Independence in Islamic

Law" in C Mallat (ed), Islam and Public Law: Classical and Contemporary Studies
(London: Graham and Trotman, 1993), p 62.

27 Al-Mawardi, Ahmad b Muhammed, AI-Ahkam al-Sultaniya wa-al-Wilayat al Diniya

(Beilut: -al-Kutub al-‘Ilmiya, 1985), p 314.

28 Shad Saleem Faruqui, n 21 above, p 287.

29 He was a jihadist and Islamic reformer in the old Northern part of Nigeria.

30 Ml Khalid. n 19 above. p 3.

31 These are similar to functions of Modern Ombudsman or Public Complaints Bureau. See
for example functions of the Malaysian Public Complaints Bureau, at http://www.pcb.
gov.my/soalan%20lazim/FAQ.pdf (Assessed on November 29,2010).

32 MI Khalid, n 19 above, pp 4-5.

33 Joseph Schacht, Modes of Expression of the Cultural Tradition (Chicago: University of

Chicago Press, 1955), p 74.

34 HAR Gibb and H Bowen, Islamic Society and the West, vol 1, Part 2 (London: Oxford
University Press, 1975), p 130; see also Enid Hill, Majilis al-Dawla: The Administrative

Human Rights Law: International, Malaysia and Islamic Perspective (Eds.) Abdul Ghafur Hamid,
(Malaysia: Sweet & Maxwell, 2012) p. 356
 Courts of Egypt and Administrative Law" in C Mallat (ed) Islam and Public La: Classical
and Contemporary Studies (London: Graham and Trotman,1993), p 210

35 Syed Khalid Rashid, n 18 above, p 42.

36 AI-Qu’ran 3:110.

37 AI-Qur’an 3:104.

38 AI-Qur’an 5:62-3.

39 Al-Ghazali, Ihya' Ulwn al Din, vol 2 (Cairo: n.p., 1967), p 93.

40. MN al-Albani (ed), Mukhtasar Sahih Muslim, 3rd edn (Damascus: n.p., 1977), p 251.

41 Al-Qur’an 9:71.

42 Mukhtasar Sahih Muslim, n 40 above, p 16.

43 Ali Muttaqi, Kanz al-Ummal (Hyderabad: Da'ira al-Ma'arif al-Nizamiyyah. 1313 AH), P
176 as quoted by Muhammad Akram Khan in Ibn Taymiya, Institution of Hisbah, n 44
below.

44 Al-Shaykh al-Imam Ibn Taymiya, Public Duties in Islam: The institution of Hisbah,
translated by Muhtar Holland (United Kingdom: The Islamic Foundation, 1983), p 148
(hereinafter referred to as Ibn Taymiya, Institution of Hisbah).

45 Amalina Abdullah, "Harking Back to Hisbah" Accountant Today, April 2010. Available at
<http://wcoa2010kualalumpur.com/at/at/2010/04/04.pdf> (Accessed on October
28,2010).

46 Ibid.

47 Ibn Taymiya, Institution of Hisbah, p 148.

48 See for example fun Khadun, The Mugaddimah, translated by F Rosenthal, vol 1, 2nd
edn (New York: n. p., 1967); Nicola Ziadeh, Urban Life in Syria Under the Early Mamulks
(Beirut: n.p., 1953); Nicola Ziadeh, Damascus Under the Mamluks (Norman: n.p., 1964);
Ira Lapidus, Muslim Cities in the Later Middle Ages (Cambridge: n.p., 1960); Sa'id al-
Afghani, Aswaq al-‘Arab, 2nd edn (Damascus: n.p., 1960); Nicola Ziadeh, Al-Hisbah wal-
Muhtasib fil-Islam (Beirut: n.p., 1963); AI- Shayzari, Nihayat al- Rutbah fi Talab al-
Hisbah, SB Al-Arini (ed), 2nd edn (Beirut: n.p., 1969); Ibn al-Ukhuwwah, Ma'Ilm al-
Qurban fil Ahkam al Hisbah, M Sha'ban & S Muti'ri (eds), (Cairo: n.p., 1976); al-Husayni
Musa, "The Institution of Hisbah in Early Islam", The Islamic Review and Arab Affairs

Human Rights Law: International, Malaysia and Islamic Perspective (Eds.) Abdul Ghafur Hamid,
(Malaysia: Sweet & Maxwell, 2012) p. 356
 (London: n.p., 1969); and al-Mawardi, 'Ali b Habib al Hasan, Ahkam al-Sultaniyyah
(Cairo: Dar al-Fiker, 1983).

49 Ibn Taymiya, Institution of Hisbah, p 140.

50 Ibid.

51 Al-Husayni Musa. "The institution of Hisbah in Early Islam", The Islamic Review and Arab
Affairs (London: n.p., 1969), p 126.

52 lbn Taymiya, Institution of Hisbah, p 138.

53 Ibid.

54 The Islamic World Net, Hisbah Institution, available at < http://www.islamic-world.net/

economics/hisbah.htm > (Accessed on October 27, 2010).

55 Ibn Taymiya, Institution of Hisbah, p 137.

56 Al- Shayzari, Nihayat al- Rutbah fi Talab al-Hisbah, SB Al-‘Arini (ed), 2nd edn (Beirut:
n.p., 1969), p 6.

57 AI-Qur'an 2:44.

58 Al-Ghazali, Ihya' Ulum al Din, vol 2. (Cairo: n.p., 1967), p 93.

59 Nicola Ziadeh, Urban Life in Syria Under the Early Mamluks (Beirut: n.p., 1953), p 54.

60 Al- Shayzari, n 56 above, pp 7-8.

Human Rights Law: International, Malaysia and Islamic Perspective (Eds.) Abdul Ghafur Hamid,
(Malaysia: Sweet & Maxwell, 2012) p. 356

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