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"The Muhtasib"
and the Attorney-General
The System of "Hisbah" in Islam
Islam has made it obligatory on Muslims to carry out the
restrictive ordinances of God and to defend His rights. By the system of "Hisbah",
Islam entrusted everybody with the defence of God's rights within the "principle
of enjoining good and forbidding evil". In order to have an idea about this
system, the duties of the people who volunteered to carry out their duties
expecting no return whatsoever but the pleasure of God, and the duties of the "Muhtasib",
a brief study of the Islamic legal system would be made.
The ruler or the Caliph of the Muslims had the supreme and general
authority on various aspects and functions of the Judiciary. It was his right to
try people in person, but when the Islamic State spread out and differences and
altercations increased in intensity and in number, the rulers appointed
competent judges to try the cases. At the beginning, it was within the
jurisdiction of the judge to arbitrate civil, criminal and administrative cases;
to execute people's wills; to get the singles married; to execute God's
restrictive ordinances; and to prevent attacks and aggression on the roads. But
it was a matter of difference among the jurisprudents whether the judge was
allowed to pass a judgement in a certain case in the absence of an adversary or
not. However, this subject is not to be dealt with here.
When civilization made its headway, the disputes increased consequently.
The State expanded further and as a result the judiciary was divided into three
categories, one for litigation, another to study complaints, and the third for
the "Hisbah". The Hisbah" was administered by a "Muhtasib", whole functions are
similar to those of our present time's attorney-general, but still of more vast
domains. By this division of authority, the judicature was entrusted with trying
the civil cases, the per sonallaw questions, the observance of God's restrictive
ordinances, and the minor offences for which punishment had been left to the
discretion of the judges. Also referred to him was any dispute the settlement of
which could not be reached except through witnesses or under oath. In other
words the judges had to hear the cases in which the claim. had not been very
clear even though these cases would come under other categories. Another
jurisdiction of the judge was the investigation in a dispute involving any
jurisprudential discretionary judgement.
The investigation in complaints was identical to our present
administrative judicial system. The judges of that category were entrusted with
investigation in people's complaints against any injustice done to them by the
State's officials or in cases where these officials declined to discharge their
duties or misused their power. The judges of this category were also required to
execute and to investigate the cases which the first category judges had failed
to do under the great influence of adversaries. For this reason, the judge of
complaints had to be selected from among those who enjoyed particular qualities.
He had to be of great solemnity and worthiness and of a high calibre. He
had also to be held by all the people in high esteem, known for his virtue and
probity and piety. He should not have to he covetous. He had to combine in
himself the powers of the protective force (Police) and the sagacity of judges.
The systm of investigating people's complaints was first initiated by the
Ummayad Caliph Abdel Malik Ibn Marwan The council for hearing complaints
consisted of representatives of five factions of people ; the security
protectors and defenders who were to preserve law and order; the judges and the
arbitrators who were to investigate the cases; the jurists who were to be
consulted on legal subjects; the clerks who were to record the statements of the
adversaries and the proceedings of the trial; and, lastly, the witnesses who
were to certify the bench's decisions and orders. Only when all these
representatives were present would the court sit for hearing.
The functions of the complaints' court were the following:
- 1- To inquisite rulers' or their agents' transgression on the people;
- 2- To inquisite the injustice done by the State's workers in collecting
revenues;
- 3- To keep an eye on the conduct of the employees of various departments
of the State lest they should misuse their power;
- 4- To attend to the poor and the needy and supervise their procurement of
their due share in livlihood and of their other rights;
- 5- To return to the real owners whatever the ruler or his agents had
usurped of their property;
- 6- To supervise the distribution of public and private endownment funds by
administrators of unalienable property to deserving people;
- 7- To execute the sentences which were passed by judges but remained
unexecuted due to failure of these judges to do so;
- 8- To investigate the failure of the "Muhtasib" in carrying out his own
duties such as an abomination or aggression the "Muhtasib" had failed to curb;
- 9- To see that apparent worships, such as Friday congregational prayers,
feasts prayers, pilgrimage to Mecca, "Jihad" (Holy War), were properly
observed; and,
- 10- To investigate any judicial issue which was feared not to have been
properly tackled by judges due to the great influence of litigants or of a
party to the case. In such a case the complaints council had to follow the
same procedures which had been followed by the former judges. There was no
objection to include in this council some of the former judges. After a little
while, the general judicature was separated from the "Hisbah" and a ` Muhtasib",
a public official, was appointed to look after the "Hisbah".
To explain further the Islamic system of the "His bah",we have to trace its
history and the religious basis on which it was founded.
The history of the "Hisbah" goes back to the days of the Prophet
Muhammad, may God's blessings and peace be upon him. Al-Bukhari quotes Nafei and
Ibn Umar,may God be pleased with them, as having stated that during the days of
the Prophet Muhammad, the Muslims used to purchase food grains from caravens,
while they were on their way before reaching their distination, but the Prophet
sent messengers to ask the sellers not to dispose of their commodities until
they reached the market [The practice was that a number of merchants used to setup at the entrance
of the city in which a public market was to be held. The merchants would
circulate false news about the low prices of commodities so that they would
purchase all the goods from those who would come to the market at lower
prices. These transactions were outlawed by the Prophet.].
As it was reported by Abou Umar Ibn Abdul Barr, the Prophet Muhammad had
appointed Said Ibn Said Ibn Al-As Ibn Umayyah administrator of the Mecca market-
place.
The Prophet Muhammad, and his Companions, set a good example. In
their bid to enjoin good and forbid evil, they themselves superintended
the market and on certain occasions they appointed administrators to do the job
on their behalf. But still the "Muhtasib" had no full or absolute powers to
exercise.
It was also reported that Umar Ibn Al-Khattab appointed Abdullah Ibn
Uqbah as an administrator of a market-place.
The system of the "Hisbah" was also known to the Fatimides in Egypt, and
the Ummayads in Andalusia. This system was mentioned, and hailed, by "Al-Hagari"
in his book "Nafhul Teeb" Usually, the "Hisbah" was concerned only with the
supervision of the precision of weights and measurements, the prices,
adulteration of food, fraud, cleanliness of roads, and disperssion of gatherings
in maltitudes. [The"Hisbah" in Islam,
by Ibrahim Al-Desuki Al-Shabawi. P. 103.]
The "Hishab", as defined by the Chief Justice Aboul Hasan Ali Ibn
Muhammad Ibn Habib Al-Basri Al-Baghdadi Al-Mawardi, who died in the Hegrite year
450, ["Al-Zkham Al-Sultaniya",
p. 240.] was
"to enjoin good if good is not done, and to forbid evil, if evil prevails". The
system was based on the Quranic verse : "And from among
you there should be a party who invite tgood and enjoin the right and forbid the
wrong"
[Surat Al-Imran (Family of
Imran) 103.] and on the Prophetic sayings
:"Whoever sees a mischief mueliminate it by his hand, and
if not possible, then by his tongue, and if not, by his heart and the last is
the weakest weapon".
The "Hisbah" is supposed to be the duty of every Muslim, man or woman,
because God has deputed all the Muslims, rulers and ruled, to see that His
rights are observed and safeguarded. The word "Hisbah" in Arabic implies"work
for the sake of God and not for the interest of anyone whatsoever." But though
the "Hisbah" is a duty, it is a duty which is to be discharged by some people,
and not by all. Prayers, for instance, are the duty of every Muslim, which he
has to perform otherwise he would be treated as sinner. To answer a greeting
could be made by only one person on behalf of a group to whom the greetings were
expressed. If the other members of the group will not answer the greeting, this
will not be accounted for. But some people may think little of discharging a
duty which is to be done by someone on behalf of others and the result would be
that the duty remains undone. It was for this reason that the post of the "Muhtasib"
was created and in this post he acted on behalf of the ruler. But even with the
presence of the "Muhtasib", any member of the Muslim commodity could file a
Hisbah" case, a right which was established before, and after, the creation of
this post. When the system was introduced, the "Muhtasibes" from among the
public were called "volunteers". In fact, such a man in the true sense of the
word was not a "volunteer", but a representative of the Muslim community who
spared everyone else that burdens of the post The "Muhtasib's" post was
identical to that of the present attorney-general and the duties of his agents
could be likened to those of the judicial police officers and in certain cases,
those of the "Deterrent Police", a force practising only in Western countries.
In these countries, the "Deterrent Police" are required to check crime before it
is committed and they are independent from the "Judicial Police", one of whose
duties is to in vestigate a crime after it is committed. The "Muhtasib's"
function could also be likened to that of a judge of summary justice who makes
preliminary investigation of a certain case and after having released that it
needed more testimonies and doctrinal disputation, he would refer it to a court
of competent jurisdiction.
The duties of the "Muhtasib" were numerous. In his capacity as a
caretaker of doing good, he had three obligations, one concerning God's rights,
the second the people's rights, and the third God's and His servants' joint
rights.
As for God's rights, the "Muhtasib" had to punish or censure any group of
Muslims, numbering forty or more, who would refrain from saying a Friday
congregational prayer. He had also to punish and blame any individual who was in
the habit of nonobservances of prayers.
As for people's rights, the "Muhtasib" had to look after the welfare of
the community. He had to see to it that his community was systemically receiving
drinking water or why the town's rampart was destroyed; why the city had
discontinued extending help to needy wayfarers; or why the town's mosque was
falling down. On such occassions, he had to take any suitable action to repair
damages or proceed in the relief w6rk even though he had to draw money from the
public treasury "Baitul Mal", if this institution had special funds for such.
The "Muhtasib" had also to help individuals retrieve their rights and get
their debts paid if he was asked to meddle. But he had no right to imprison
anyone, because for imprisonment there should be a legal sentence. But he had
the right to put the property of any indebtor under his custody. He also had no
right to fix allowances given by anyone to his kith and kin, Such a matter
required religious discretionary judgement which entirely fell under the
jurisdiction of judicature.
As regards the joint rights of both God and His servants, the "Muhtasib",
was entitled to ask parents who prevented their daughters from marrying good
husbands to reconsider the case to ask the masters to give their slaves their
due rights; to punish the divorced wives who violated the period of waiting; and
to punish whoever took a foundling under his care but showed carelessness in his
sustenance.
As for forbidding evil, the same three categories held good. Regarding
God's rights, the "Muhtasib", would, in the domain of worships, discipline
whoever said a prayer in loud voice while he was to say it otherwise, or whoever
increased his bows while performing prayers or prolonged the call for prayer. He
was entitled to reprove the beggars and whoever asked for charity whereas he had
enough of money for self-sustenance. He had to teach people not to be open to
suspicion as it had been ordained by the Prophet Muhammad who said:
"Avoid being suspected and do unsuspected things." For example, a male
should not say his prayers amidst females or talk with a woman in private at a
suspected place. One, moreover, must not make public his possession of wines. If
such a man was a Muslim, the "Muhtasib" would pour the wine over his head, and
if he was a "Zimmi" belonging to a Divine Book, he had to be punished.
[Punishment was imposed on whoever drank spirits and not on anyone found
to be in possession of wines.] The "Muhtasib"
was also required to prevent people from practising unlawful enjoyments.
In dealings, the "Muhtasib", was required to preclude any greed-to
unlawful marriage, sale fraud, and fraud in prices, measurements and weights.
As regards people's rights, the "Muhtasib" had to stave off aggression on
other people's property, conquering privacy,
demolition of common walls or fences and removal of trunks reclined to walls.
But in all these functions, the "Muhtasib" had to meddle at the request of a
neighbour, never on his own.
The "Muhtasib" was also authorised to supervise the work of workers and
to see that they were not derelict in their work; they did not cheat their
customers; or they did not do their work properly.
As regards the joint rights of God and man, the "Muhtasib" had to see to
it that a neighbour would not descry his other neighbour from stop of his house
and that no one who constructed a high building should leave the roof without
cover.
Moreover, the "Muhtasib" had to protect the "Zimmis" from any tresspass
by any Muslim.
From this brief survey it appears that the "Muhtasib" had many functions
to perform. Some of them were to be carried out on his own or when he was asked
to do so by any complainant. But when the matter would concern God and His
rights, he had to act swiftly, without complaint presented by anybody. Whenever
there was infrongement upon any person’s right, he was to act only when he was
asked to do so, because it was the right of any to pardon the transgressor. The
public, and the "Muhtasib's" assistants, were allowed to inform him of any
violation of law. In all the cases, the "Muhtasib" had to pry into them
personally and later pass on them the relevant religious judgement, If the
dispute was complicated, he would refer the matter to a judge. The "Muhtasib"
had sometimes a licence to apply the principles of a prevailing custom either in
the city or in the market place or any practice followed by the workers. He,
moreover, was to keep in view decency on roads; to protect passers-by from any
possible harm; to disband people's gatherings on markets; and to prevent
castration of human beings and animals.
These were the functions of the "Muhtasib" held a public post in the
State. While a judge was entrusted with investigaiton of the civil cases which
required evidences and great understanding of Islamic laws, the "Muhtasib" had
never been allowed to investigate a dispute over property, or to authenticate a
contract, or to verify an ownership deed. Moreover, it was the duty of the judge
to investigate cases of denial of rights serious disputes civil or criminal.
This entitlement was denied to the "Muhtasib"; he had not been authorised to
authenticate an evidence to prove disowned rights or to ask for an oath for
disaffirmation of a right this was the jurisdiction of the judge alone. While
the "Muhtasib" was to investigate only the cases which he himself came to know
or those which were brought to his notice by complaints, the judge could not
investigate but only the cases which were referred to him by adversaries or
witnesses.
Put had the jurisdiction of the "Muhtasib" repealed that of the public in
combatting crime? Had the volunteers continued to carry out their duty even with
the presence of the "Muhtasib"?
As a matter of fact, the "Muhtasib" was appointed to complement the role
of the public in the voluntarily tracing of offences. Before the post of the "Muhtasib"
was created, the public sought help from the rulers or the judges to correct a
situation where good was not enjoined and evil done. At times, the public were
to remove evil by themselves, when self-defence or others' defence were
involved, or when the need for protecting their own, or others' property arose.
Fearing that the public might fail to do their duty in enjoining good and
forbidding evil, the post of the "Muhtasib" was created, but without rescinding
the people's part in combating crime. In countries which saw no "Muhtasib",
cases of "Hisbah" are still being referred to courts. These cases include
separation between a husband belonging to a Divine Book and a Muslim wife, or
divorce of a fifth, or more, wife.
Islamic Law permits the public to fight crime directly, and the "Muhtasib's"
part was only complementary and not abolishment of the role. This principle is
still being adopted by the English Law. However, the public can refer to a court
any case requiring evidence and discretionary judgement they thought the "Muhtasib"
was unable to make. The public had also the right to refer to the judge any "Hisbah"
case involving God's right and this had to be done within the principle of
enjoining good and forbidding evil.
However, never at any stage of Islamic history had the functions of the "Muhtasib"
been defined. Sometimes, his jurisdiction was limited, and some other times,
boundless.
In studying these jurisdictions, the jurisprudents only set examples,
without going deep into the subject.
But could such examples be based on established rules ? Could we
distinguish between the jurisdiction of the"Muhtasib"and that of the judge, or
of the complaints administrator? Could this subject be studied objectively
rather than historically ? Would the punishment left to the discretion of the "Muhtasib"
for minor offences be the same like those imposed by a judge ? Was a crime
without any prescribed penalty left entirely to a "Muhtasib" ?
Like the "Muhtasib" the judge could pass a discretion verdict on a minor
offence. But what was the criterion between the discretions of the two
institutions ?
Historical studies showed that the `Muhtasib" had enjoyed several powers.
He combined under his authority the powers of the deterrant and the judicial
Police and that which gave him the right to pass judgement on the offences he
himself had detected. Secondly, it was for him to take action in cases of
summary justice which needed no delay had they been referred to a judge.
Thirdly, the "Muhtasib" was to pass a judgement on whatever situation he had
seen before him in cases of red-handedness where the evidence was clear
objectively and religiously. If the case lacked this condition, it had to be
referred to a competent judge. Lastly, under his jurisdiction, the "Muhtasib"
was to investigate civil, religious and certain criminal offences. His civil
jurisdiction, in fact, could be used as a basis for a civil prosecution, a
system Egypt is still lacking. However, the public prosecutor in Egypt is
carrying out the same duties of the "Muhtasib" in certain civil cases. He
immediately, and quickly, decides cases of free tenure or taking possession of
property. In minor criminal offences, some legislations allow any prosecutor to
issue a criminal writ, as in conmatters fall under the jurisdiction of a judge.
It is not surprising then to see that the "Muhtasib" combined under his
authority, but in certain cases, the functions of a prosecutor and those of a
judge. It is not also surprising to note that the "Muhtasib" was allowed to
investigate civil as well as criminal cases. But it is to be stated here that
when the "Muhtasib" or the judge had exercised their powers in cases of minor
offences for which punishment was left to their discretion, the investigation
and the punishment imposed on the offender had violated the legal principle that
no crime or no punishment he imposed without a lawful text prescribed before the
action entailing criminal responsibility. This is what is seen on the surface,
but the fact is contrary to that. All the minor offences are mentioned in the
Quran and the Prophetic sayings as well as in the unanimously agreed to
decisions by jurisprudents.
To enjoin good and forbid evil, for instance, is a matter which has not
been left by Islam to the jurisdiction of a judge. The Holy Quran has prohibited
the Muslims from assembling in front of a mosque after saying the Friday
congregational prayers. It says : "But when the prayer is
ended, disperse abroad in the land."[Surat Al-Jumah (The Congregation) : 10.]
The Quran orders that before entering a house,
permission for this must be obtained. It says : "O,
you who believe; enter not houses other than your house, until you have asked
permission and saluted their inmates."[Surat Al-Nur (The Light) :
27.]
Similarly the Quran prohibits espionage and
backbiting. It says: "And spy not nor let some of
you backbite others."
[Surat Al-Hujurat (The Apartments) 12.]
The Prophet Muhammad had asked people not to do harm to others or to linger on
the road except on certain conditions. Referring to the first case, the Prophet
said, "Do not do harm either to yourself or to anyone
else", and to the second case he ordered his
Companions " not to sit across a road". When he was
told that at times they had to sit, the Prophet said : "Then, give the road its
own right." They enquired in exclamation "But what right a road would have ?" To
this, he replied : "To answer the greetings ; to stave off harm ; to lower your
gaze; and to enjoin good and forbid evil".
These were only a fexamples of the principles enshrined in the
Quran and the Sunnah (Prophet's Sayings). To charge someone with a crime, the
judge the "Muhtasib" must not convict him on their own or out of personal
inclination. Similarly, the judge would never pass a sentence on an offence on
his own discretion or according to his own innovation. The verdict that he had
to give for such offences, such as correcting a certain situation, censure,
beating, flogging, imprisonment, banishment from the land, or keeping someone
under house detention. [In Surat Al-Nisa' (The Women), the verse 15 states :
"And as for those of your women who are guilty of an indecency, call to
witness against them four witnesses from among you; so if they bear witness,
confine them to the houses until death takes them away or Allah opens a
way for them."] these were all prescribed
by the Quran and Sunnah. The duty of the judge and the "Muhtasib" in such cases
was only to apply the already imposed penal ties for the offences adjudged by
legislators as crimes. There was a great authority they had to individualise the
penalty according to the prevailing circumstances. The new trend in positive
criminal jurisprudence has reduced the severity of law in minor and summary
cases. As regards traffic regulations which, according to Islam, were within the
jurisdiction of the "Muhtasib", the present executive authority is authorised to
incriminate and to decide the penalty and, sometimes, to execute the penalty
without referring the case to a judge.[This
is done either by criminal writs issued by assistant public prosecutors
,who, originally, are not judges, or by reconcilitation and payment of
fine on the spot without referring the case to a complete judge.] | |
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