The Ruling of Defending Oneself in the Court of Taghout !

We are going to take in hand the matter of the ruling of defending oneself in the court of Taghout while trying to declare our position regarding the matter Insha'Allah (with the will and the permit of Allah). It is because the comment of the ignorant regarding the matter has prolonged and the time to stop it has arrived. There is a saying that is attributed to Ali (ra): "Ilm used to be a spec, it is the ignorant that enlarged it."

There are mainly two Baatil (falsehood) views regarding the matter. Some try to legalize the act by claiming that it is Ja’iz (permissible) to defend oneself others on the other hand claim that no matter what happens one shall not speak a single word in order to not falling into Kufr.

As we had mentioned many times before there is no such type of Kufr in Islam as "the Kufr of defending oneself" instead there is a type of Kufr in Islam as "seeking the judgment of Taghout". Although, it is crystal clear that defense is a part of the Muhakama (judgment) process and again although, it is crystal clear that it is Kufr just as seeking the judgment of Taghout is Kufr; in our times, which Jahl (ignorance) is widespread regarding the Ilm of Tawhid, because people that attribute themselves to Islam do not know the reality of Muhakama bi’t Taghout (seeking judgment from the Taghout) and the Illah (reason) that make it Kufr; judgment related matters such as "bearing testimony, defense and appealing to the high court" have been treated as if they were not a part of the judgment process, and as if they were not Kufr as the judgment itself is Kufr. Therefore, the ignorant people of our era separated all these judgment related processes and started discussing each of them and their Hukm (ruling) individually. Therefore, in the presence of these ignorant people, there occurred the Aqidah (creed) of defense, the Aqidah of appealing to the high court etc. and those parties that claim it to be Kufr or not, started debating something that they do not posses the knowledge of its reality. Whereas, instead of all these debates and disputes that are sourced from speech regarding Allah Ta’ala without having Ilm, without guidance and without a book of enlightenment; if one would learn the fundamental matters and the terms regarding Asl’ud Din (Bases of the Religion i.e. Islam) none of these would trouble anyone and none would have not experienced any of these troubles. Wallahu A’lam (and Allah knows)!

Our foremost aim in this Risalah (pamphlet) is to canalize those who debate over the parts of the judgment process such as defense, appealing to the high court etc. to the essence of the matter namely Muhakama bi’t Taghout then to the Da’wah (call) of the Anbiya (pl. Nabi; Messengers) namely Tawhid. Even though the title of our topic is "The Ruling of Defending Oneself in the Court of Taghout" with this opportunity, we would like to declare that we do not have consent to the attempt of the ignorant to divide Tawhid into pieces and crumbs. Also we would like to declare that after taking in hand, summarizing and closing the topic which is discussed by the ignorant who has no knowledge of the Din, we will not further discuss such a matter which is full of ignorance. Tawfiq (success) is from Allah.

Clarifying the Self-Defense in the Court and Refuting Those Trying to Legalize It !

After this preface, we will take in hand the terms "Mudafaa" or "Murafaa" which mean, "defense" that the debate is about and try to define them both in the terminologies (as legal definitions) of the man made laws and the Shari’ah (Islamic Law).

In the terms of the man-made laws, the legal definition of the term Plea is as follows: "The defendant's statement pleading; guilty or not guilty, in answer to the charges, a declaration made in open court."

In the terms of the man-made laws, the legal definition of the term the right of plea is as follows: "The right of self-defense, plea of the lawyer or the person as a defendant or a plaintiff in the presence of court and the authorities of judgment."

In the terms of the man-made laws, the legal definition of the term defendant is as follows: "In criminal cases, the person accused of the crime. In civil matters, the person or organization that is being sued. The person against whom a lawsuit is filed is usually called the defendant."

In the terms of the man-made laws, the legal definition of the term plaintiff is as follows: "The person who initiates a lawsuit by filing a complaint."

As seen, the contemporary man-made laws defined; Mudafaa (defense) as defendant or the plaintiff as answering to clear himself from the accusation in the presence of the court whether it is performed by the person himself or by his attorney to whom he gave the power of attorney to. From this description plea is an inseparable part of court procedure. We defined all these -court related- terms accordingly to the laws of the man-made systems so that it becomes clear what they refer to in the presence of the courts of the man-made laws. It is because we aware that we all live in the abode of the Kuffar and we all come face to face with the courts of the Kuffar -in our daily life-, administrated according to the man-made laws. Therefore, all will understand the source of the debate over committing self-defense in the courts of Taghout, administrated according to the man-made laws. Indeed this is also the definition of the term Mudafaa in Islamic law and it means; the right of plea of Muddaa Alayh (the defendant) in the presence of the court.

"The term Muhakama is mentioned in a Hadith as a part of a prayer of Rasulullah (saws) during Tahajjud (Night Prayer) which both Bukhari and Muslim have transmitted. According to the narration when Rasulullah (saws) got up at night to offer Tahajjud, he used to say:
وَإِلَيْكَ حَاكَمْتُ "I take You as a judge.."

Ayni explained this term in the following manner in his Sharh to Sahih of Bukhari, Umdat’ul Qari:
وَإِلَيْكَ حَاكَمْتُ I take You as a judge!.. meaning I left the Hukm (ruling) of all who reject the Haqq (truth) and I choose You (o Allah) as a judge between us and not other than You; which the Ahl Jahiliyyah (the People of Ignorance i.e. Pre-Islamic times) appeal to the Hukm from idol, soothsayer, fire and etc., (...) Muhakama, is taking the issue to the judge." The quote from Badr ad-Din al-Ayni ends here. (Umdat’ul Qari, 7/167)

In the terms of the man-made laws, the legal definition of the term Muhakama (seeking judgment) is as follows: "Both parties having been judged by the judge, solving the disagreement between both parties by the hearings and trials in a manner of accepting testimony and other evidence, to reach a verdict or decision."

Therefore in both the Shari’ah and the man-made laws which is Kufr; Muhakama is consisting of the both parties namely defendant and the plaintiff. Therefore, in order for a case to occur in Muhakama –unlike some deem- it is not a necessity for one to apply the court himself or his attorney as a plaintiff. If a Muddai (plaintiff; could be the state itself or anyone) sued him and applied to the court then he attended the court as a Muddaa Alayh (defendant) in order to defend himself by bringing many evidences then there occurs the procedure of Muhakama. In terms of the Muhakama evidences would be bringing a Shahid (witness), Yamin (taking an oath), Bayyinah (proof), Inkaar (rejection), Iqraar (affirmation and confession) and even Sukut (silence) according to the many scholars. Ibn’ul Qayyim (rahimahullah) explained it in length, the methods of giving a ruling for the case.

[Many scholars accept the silence of the defendant as Inkaar (rejection) on the other hand some of the scholars accept it as rejecting the Yamin (taking an oath). Some among them stated that when the defendant keeps silent he will be forced to speak by the judge. (Refer back to Hashiyat’ul Qalyubi wa Umara, 4/337 for the view of the Shafiite and refer back to al-Mubdi, 8/288 for the view of Hanbalites) According to this keeping silent in the court room does not mean rejecting the case and the judgment as some people of today deem. Since in both the Shari’ah and the man-made laws the silence of the defendant is accepted as one defending himself.]

In short, whoever attends the courts will be accounted as the one who attended the Muhakama regardless of being a defendant or a plaintiff. All the terms we mentioned above such as Bayyinah, defense etc. are Muhakama related terms. Whoever performs any of it will be accounted as a defendant furthermore he will have attended the court that judgment regarding him took place. As it was mentioned in the Hadith: "Bayyinah (proof) is for the plaintiff and Yamin is for the defendant…"

This is what we meant when we said, there is no such type of Kufr in Islam such as "the Kufr of defending oneself in the court" or "the Kufr of bearing witness in the court". It is because all of these are the inseparable parts of the court procedure both in the Islamic Shari’ah and the laws of man-made systems. One who debates whether or not bearing witness and/or defending oneself in the court after declaring seeking judgment from Taghout being Kufr then –unless he has bad intentions- he must be ignorant of the meaning of Muhakama and can not comprehend it. A Muslim would not have entered such gathering and if it ever happened that he is entered into such gathering by force he would reject the judgment openly otherwise it would be a proof regarding his acceptance of the Muhakama which is no doubt Kufr. After rejecting the Muhakama of Taghout he would not have performed any act that indicates his acceptance of the Muhakama as a defendant.

When it comes to the matter whether or not it is accounted as Asl’ud Din; just as Muhakama bi’t Taghout is an act that invalidates Asl’ud Din, everything that Muhakama bi’t Taghout necessitates such as the acceptance of being a defendant or plaintiff is also Kufr, which invalidates Asl’ud Din. As we had mentioned above; the reason many people fall into mistake regarding the matter is that they do not know the reality of Muhakama bi’t Taghout. Even if they claim to reject Muhakama bi’t Taghout and declare that it is Kufr’ul Akbar (Major Disbelief) they commit it without knowing its reality and their claim of Iman (faith) is not valid unless it is done with certainty. It is understandable that no one has to know every detail of the procedure of the court of Taghout however things that we mention and speak about are not very detailed matters. They are the fundamental elements of Muhakama and Jahl regarding these in most cases caused by not knowing the reality of Muhakama bi’t Taghout. Wallahu A’lam!

When it comes to declaring Takfir upon the one who is taken to the court by force, if this person had not rejected the court that he was taken by force, no matter what he had done, he would have been accounted as the one who accepted the court of Taghout and sought the judgment from Taghout. However if he had rejected the court openly and had not performed anything that indicates his acceptance of the trial then declaring Takfir upon him is bounded by his acts during the case. The individual who has rejected the judgment yet acted upon any act that is accounted as his acceptance to the court as a defendant then he became Kafir.

However there is no room for baseless claims –as many deem- such as stating even a single word other than rejecting the court in the courtroom is Kufr per se. The truth is any act or statement that indicates ones acceptance of Muhakama bi’t Taghout, is Kufr. Whereas, without having the intention of being a defendant in the courtroom, for the sake of belying the opponent or the judge or declaring a truth, after rejecting the Muhakama the speech of the person in a manner that does not indicate acceptance of the Muhakama is not accounted as Kufr and there is no proof for claiming it so.

The matter has gone off track so much that there are some people here and there who began to question: "If I say to the judge, you are lying, am I a Kafir?" or the person who is accused of being a member of so-called Islamic terrorist groups asking when he says: "I am distant from the court of yours and I am distant from being a member of so-called Islamic terrorist groups, am I a Kafir?" which is a statement of honor.

It should be known by everyone that the individual who openly declared his rejection of the court and his being distant from taking place in the court as a defendant or plaintiff then stated such statements; there occurs possibilities in his act and some may befall into Kufr with it, some may not, since there are possibilities in his acts and statements. While rejecting the accusation he performed an act or stated a statement in the manner of a defendant in the courtroom then he became Kafir due to his acceptance of the Muhakama bi’t Taghout. Someone else would have rejected the accusation after rejecting the Muhakama, in a manner that does not indicate his acceptance of the court by rejecting it in a manner that is not accounted as defense; he would have not committed Kufr. For this reason, without knowing the reality of his acts and statements, the true nature of his performance, definite Hukm can not be given. There is also possibility for an individual to become Kafir in the Baatin (inwardly) when he commits an act or states a statement in which there is no Kufr in Dhahir (outwardly) however, his intention was to defense himself.

It would be great to mention that people in our age that debate whether self-defense in the court is Kufr or not, do not accept the fact that the Muhakama has to openly be rejected. Because of their Baatil Aqidah they state statements of Ifrat (excess/exaggeration) and Tafrit (neglecting its true meaning). Meaning; both parties who claim self-defense in the court is Kufr and those who claim other wise, speak about a person who goes to the court and takes his place as a defendant without openly rejecting the court and bring objections to it. Therefore, each act and statement of his in the court would be considered as self-defense at the same time as Muhakama.

However the situation that we mention here is different than this scenario. This person in our scenario; rejects the court openly and declares his being distant from the procedure and the judgment and that he is not taking his place in the court as a defendant nor plaintiff. Therefore, with his state of rejection his situation becomes a scenario differing from others because he declared that none of his acts/statements should be accounted as Muhakama. For this reason, statements/acts of such person –other than open indication as acceptance of the court- cannot be accounted as Muhakama and he cannot be made to accept it by force.

In short as in all matters one shall not be in rush to give the ruling of Kufr to the acts/statements that are Khafi (obscure/hidden) and possibilities in it. This is in contrary to the acts/statements, which are accounted as Muhakama according to both the Shari’ah and Urf (custom). In such case, Takfir would have been declared upon the doer without doubting.

The following should not be overlooked. There are two matters in it: The first being: the Kufr of seeking judgment from Taghout and defending oneself as a result of it. The second is: determination of whether or not the person committed Kufr. Determination of whether or not the person sought judgment from the Taghout does not indicate the doubt regarding the Kufr of Muhakama bi’t Taghout. This is the dead end for many people.

Here is the scenario: A person who is Muslim in Asl (origin) had been taken to the court by force and we do not know what he had done there. We know that there is no such type of Kufr "entering into the court room" instead there is a type of Kufr "Muhakama bi’t Taghout (seeking judgment from Taghout)". Therefore it should be investigated and made clear what the person did who had been taken to the court; did he commit Muhakama as it is the first and foremost aim for the defendant to be there or did he distant himself from the gathering and reject the court? If it becomes clear that he rejected the court then further investigation should be done in order to find out whether or not he acted/stated anything that invalidates his rejection, which in return indicates his acceptance of the court.

Such matters are not matters that the ignorant folk can speak over. Especially regarding the situation and the acts/statements of his, which carry possibilities of a Muslim who had openly rejected the court. It is not an easy task to declare a Muslim -who had rejected the court openly- to be Kafir by his acts/statements that carry possibilities. In such case only the Ahl’ul Ilm (the People of Sacred-knowledge) should listen to him and find out the result; whether or not he committed Kufr. Even they may not be able to determine his Hukm (ruling) and leave it to Allah. Every individual who claims to be Muslim should ponder upon the reality of Muhakama. Unless they learn the Asl, they would not be able to comprehend the matter. Wallahu A’lam!

The Issue of "Sukut (Silence) of the Defendant" and Refutation of Those who Claim that Stating Even a Single Word Other than Rejecting the Court in the Courtroom is Kufr per se...

We previously stated the following regarding the matter of Sukut (the silence) of the defendant:
[Many scholars accept the silence of the defendant as Inkaar (rejection) on the other hand some of the scholars accept it as rejecting the Yamin (taking an oath). Some among them stated that when the defendant keeps silent he will be forced to speak by the judge. (Refer back to Hashiyat’ul Qalyubi wa Umara, 4/337 for the view of the Shafiite and refer back to al-Mubdi, 8/288 for the view of Hanbalites) According to this keeping silent in the court room does not mean rejecting the case and the judgment as some people of today deem. Since in both the Shari’ah and the man-made laws the silence of the defendant is accepted as one defending oneself.]

Now with the permit and beneficence of Allah we would like to go in deep and explain in detail, with quotations, regarding what the matter of the Sukut (silence) of the defendant in the court means in both the Shari’ah and the man-made laws.

There is a so-called Madhhab that has been innovated in the recent years who claim that; even if a single word is uttered in the court of the Taghout, even if it is to reject the court or even if it is the word of the one who had already rejected the court openly, indicates the acceptance of the court therefore it is Kufr per se. These people also divide into two camps: Some of them claim that one has to keep silent after rejecting the court in order to not fall into Kufr others on the other hand claim that utterance even if it is for the sake of rejecting the court makes one a Kafir.

The Baatil of the Madhhab belonging to those who claim that one should keep silent in all cases and should not even reject the court and that there is no need to reject the court openly is crystal clear. For this reason, we are going to mostly take the other claim in hand in which it is claimed that after rejecting the court nothing should be uttered and any word that is uttered after rejecting the court causes one to be Kafir therefore in order to abstain from committing Kufr after rejecting the court one should keep silent during the entire court hearing. According to their claim, a person who rejected the court openly became Kafir if he spoke after his rejection even if it was for the sake of neither self-defense nor accepting the court. Even if it was for the sake of; rejecting the claim of Kufr, Bid’ah, the Fisq against him that was directed to him in the court, or even if it was for the sake of; not keeping silent against the Dhulm (injustice) in the court that is committed against him. So according to their claim; the person who speaks and rejects the claims of the court becomes Kafir due to acceptance of the court and defending himself in the court. The reason they makes such claims is that they hold on to the claim that in Islamic law, rejecting accepted as a way of defense and therefore rejecting their claims is acceptance of the court.

It is generally true that the statement of the person who uses the defensive methods such as self-defense in the court is acceptance of the court. However as we mentioned above, these people who inspire each other with flowery/plausible discourses by way of deception, forget the fact that we are speaking regarding the state of the one who rejected the court openly and declared his rejection regarding being a defendant or plaintiff in the court. Therefore, he is the one who openly declared already that none of his acts/statements is to be accepted as acts/statements of the defendant/plaintiff.

Even if this was the case, these people attribute to him an Aqidah by commenting the deed of the person who rejected the court openly and force him to accept an Aqidah that he denied. Moreover, they claim that after rejecting the court he performed something that contradicts it by not keeping silent or by rejecting the claims of the court. Many people treat such flowery/plausible discourses as something good and accept it without thinking and pondering upon it. Whereas these people who attain their Aqidah by debating with the ignorant Kuffar in the gatherings of arguments innovated Usoul (methodology) without doing a detailed research on the term of Muhakama and without pondering upon it. If they had done a proper research they would have realized that their claim of Sukut (silence) being the only way of salvation from the Kufr is the same as Inkaar (rejection), Iqraar (affirmation and confession) and other than them among the ways of defense in the court and that Sukut is also a part of the procedure of Muhakama. Moreover, while passing a verdict or declaring one the judge would consider both the speech and/or the silence of the defendant.

We are going to quote some statements that will shed light on the matter. However, let us declare that our intention is not giving detailed explanations regarding the ruling in Islamic Fiqh (jurisprudence) of Sukut in the Islamic court. Those who want to know more about the ruling in Islamic Fiqh (jurisprudence) regarding Sukut in the Islamic court shall refer back to the Fiqh books. Our mere intention is to bring the conduct of the scholars regarding Sukut in the court to the attention. The views of the Ulama (pl. Alim; scholars) of the Four Madhhahib (pl. Madhhab; Hanbali, Shafii, Maliki and Hanafi) regarding the person who is silent in the court is as follows:

Ibn Qudamah (rahimahullah) narrated the view of Hanabilah as follows:
وَكُلُّ مَوْضِعٍ قُلْنَا: يَسْتَحْلِفُ الْمُدَّعَى عَلَيْهِ.فَإِنَّ الْحَاكِمَ يَقُولُ لَهُ: إنْ حَلَفْت، وَإِلَّا جَعَلْتُك نَاكِلًا، وَقَضَيْت عَلَيْك. ثَلَاثًا، فَإِنْ حَلَفَ، وَإِلَّا حَكَمَ عَلَيْهِ بِنُكُولِهِ إذَا سَأَلَهُ الْمُدَّعِي ذَلِكَ
فَإِنْ سَكَتَ عَنْ جَوَابِ الدَّعْوَى، فَلَمْ يُقِرَّ وَلَمْ يُنْكِرْ، حَبَسَهُ الْحَاكِمُ حَتَّى يُجِيبَ، وَلَا يَجْعَلُهُ بِذَلِكَ نَاكِلًا. ذَكَرَهُ الْقَاضِي، فِي الْمُجَرَّدِ.وَقَالَ أَبُو الْخَطَّابِ: يَقُولُ لَهُ الْحَاكِمُ: إنْ أَجَبْت، وَإِلَّا جَعَلْتُك نَاكِلًا، وَحَكَمْت عَلَيْك. وَيُكَرِّرُ ذَلِكَ عَلَيْهِ، فَإِنْ أَجَابَ وَإِلَّا جَعَلَهُ نَاكِلًا، وَحَكَمَ عَلَيْهِ؛ لِأَنَّهُ نَاكِلٌ عَمَّا تَوَجَّهَ عَلَيْهِ الْجَوَابُ فِيهِ، فَيُحْكَمُ عَلَيْهِ بِالنُّكُولِ عَنْهُ، كَالْيَمِينِ
"In every issue that we say; the Muddaa Alayh (the defendant) shall be asked for Yamin (take an oath), the Haakim (judge) will tell him thrice: (In order to reject what is attributed to) if you perform Yamin (it is good) if not then I will account you as the one who rejects performing Yamin and I will rule against you!.. If he (Muddaa Alayh i.e. the defendant) performs Yamin (it is good) if not then he (Haakim i.e. judge) will rule against him as the one who rejects performing Yamin. This is the case when the Muddai (plaintiff) requested.
If he (Muddaa Alayh i.e. the defendant) keeps silent on responding to the claim against him, neither he affirms nor he rejects then the Haakim will imprison him until he responds (whether affirms or rejects) and the Haakim will not account him as the one who rejects performing Yamin. This was mentioned by Qaadi in al-Mujarrad. Abu’l Hattaab said: the Haakim will tell him: Respond or otherwise I will account you as the one who rejects performing Yamin and I will rule against you!.. The Haakim will repeat it to him. So if he does not respond to it then he will account him as the one who rejects performing Yamin and he will rule against him!.. It is because he rejected to perform Yamin in a matter that he is asked to respond. So he will be given a judgment that is the same for the one who rejects performing it as it is in the case of the Yamin." [Ibn Qudaamah, al-Mughni, 10/79, Cairo, 1968]

As clearly seen, there are two views in Hanbali Madhhab regarding the one who keeps silent and does not respond in the court. Some among them consider it as rejecting the Yamin which is upon the defendant and therefore he will be accounted as guilty in the matter that plaintiff claims due to not performing the Yamin that which drops the guilt from him; on the other hand there is also the view that the defendant will be imprisoned until he responds. No matter what the case is; in both scenarios silence is accepted as a part of the procedure of Muhakama since the Haakim does not treat the silence of the defendant as an ordinary act but he treats it as something that which the Hukm (ruling) is built upon. Whether the Haakim rules him as the one who rejects performing the Yamin or he will imprison him until he responds.

Mawardi among the Shafiite says:
من امتنع عن الإقرار والإنكار قد يقول: لا أقر ولا أنكر، أو يسكت فلا يجيب؛ فيجري عليه حكم الناكل
"Whoever abstains from Iqraar or Inkaar by neither stating his affirmation or rejection, or the one who keeps silent without responding will be applied with the Hukm of Naakil (i.e., the one who rejects performing the Yamin)." [Ibn Rifaa, Kifayat’un Nabih, 18/236]

The view of the Maliki Madhhab quoted in the book "ash-Sharh’ul Kabir" as follows:
(وَإِنْ لَمْ يُجِبْ) الْمُدَّعَى عَلَيْهِ بِإِقْرَارٍ وَلَا إنْكَارٍ (حُبِسَ وَأُدِّبَ) بِالضَّرْبِ (ثُمَّ) إنْ اسْتَمَرَّ عَلَى عَدَمِ الْجَوَابِ (حَكَمَ) عَلَيْهِ بِالْحَقِّ؛ لِأَنَّهُ فِي قُوَّةِ الْإِقْرَارِ (بِالْحَقِّ بِلَا يَمِينٍ) مِنْ الْمُدَّعِي؛ لِأَنَّ الْيَمِينَ فَرْعُ الْجَوَابِ وَهُوَ لَمْ يُجِبْ
"If defendant does not respond regarding his Iqraar or his Inkaar he will be imprisoned and discretionary crime against him will be performed by the way of beating him. If he persists on not responding, then Hukm is given regarding him with the right (of plaintiff, which he claims) against him. Hence it is in the ability of Iqraar (with the right without Yamin) is from the plaintiff since the Yamin is part of the response and he did not respond." [Ahmad ad-Dardir, ash-Sharh’ul Kabir ala Mukhtasar’il Khalil, 4/151]

The Maliki scholars account the silence of the defendant as rejection of performing Yamin and acceptance of the accusations against him.

Badraddin al-Ayni narrated the view of Ahnaf as follows:
فقال بعض أصحابنا: إذا سكت المدعى عليه سأل القاضي: هل به خرس أو طرش؟ فإذا قالوا: لا، جعله ناكلا، وقضى عليه، ومنهم من قال: يحبس حتى يجيب، والأول هو الصحيح
"So some of our Ashaab (i.e scholars of Hanafi Madhhab) said: When Muddaa Alayh (defendant) keeps silent the Qadi would ask: Is there dumbness or deafness in him? If they say: No! (There is no dumbness or deafness on him). Then the Qadi account him as the one who rejects performing Yamin and he would rule against him. Some among our Ashab said: He will be imprisoned until responds. The first view is Sahih (sound)." [Ayni, al-Binaya, 9/329]

Some of the Hanafi scholars accounted Sukut (silence) as Inkaar (rejection) of the accusation. Kasani stated clearly that Sukut shall be ascribed to Inkaar. [Badai’us Sanai, 6/255]

This is a view that was also narrated from the Shafii scholars. The author of an-Najm’ul Wahhaj narrated this view from some of the Shafii scholars. [4/440]

Therefore, there are three different views among the scholars of the Four Madhhab regarding the meaning of Sukut by the defendant:

1- The defendant who keeps silent will be accounted as the one who rejects the Yamin therefore accepted the guilt.

2- The defendant who keeps silent will be accounted, as the one who rejects the guilt therefore it will become obligatory for the plaintiff to prove his claim.

3- The defendant who keeps silent will be imprisoned and put under pressure until he responds.

As clearly seen, Sukut is an element of the procedure of Muhakama in the presence of the scholars and verdict is given to the one who speaks in the court and the one who keeps silent in the court. This is also the same for the man-made laws. Regarding the silence of the defendant there are different views. Among them is the acceptance of silence as evidence of guilt, also admissible silence not being accounted as guilt. Depending on the state, this fact does differentiate.

Therefore, Sukut (silence) in man-made laws, just as it is in the Shari’ah, is sometimes taken in consideration and sometimes not, however in both system of laws Sukut is sometimes accepted to carry the same ruling with the ruling of speaking. The reason we give this cursed man-made laws as evidence is because it is according to these courts that the courts of today are legislated according to.

It becomes crystal clear that those who separated the state of the one who speaks and the state of one who keeps silent, those who claim that these two states are different states, the person who speaks/rejects the allegations becomes Kafir without being any restriction and the person who keeps silent does not fall into Kufr due to not defending himself, are in great error. Hence keeping silent in the court is also a part of the procedure of Muhakama and it is known as "the right to remain silent/right to silence". Moreover even rejecting the judge is accounted as a part of procedure of Muhakama and it is written down as the defense of the defendant. Along with this the silence of the defendant is considered as the defendant utilizing "the right to remain silent/right to silence" and rulings are built upon it.

If the matter is taken in hand with such shallow logic, there is no salvation from committing Kufr since both the speech and silence of defendant is accounted as self-defense in the courts. Indeed this is Baatil because Allah Ta’ala would not have placed a burden greater than one can bear. The Illah (reason) for Muhakama bi’t Taghout being Kufr is the acceptance of the ruling of the Taghout by the one who seeks judgment of Taghout. There is no place for declaring Takfir upon an individual, who declared rejection of the court openly, did not utter/act any statement/action that contradicts with it, just because the Taghout considers his acts/statements as defense in the courts.

The individual who is taken to the court of the Taghout by force must reject the court openly and declare that none of his statements/acts shall be considered as his defense. His speech or silence in this state will be evaluated according to his Niyyah (intention). If he commits any of this in the court in order to defend himself and accept the court, in this case he becomes Kafir and if he commits any of this in the court for any other reason than defending himself and acceptance of the court then he will not become Kafir. Any other Kalaam (speech) regarding the matter is commenting on the Muhal (impossible) and hollow discussions. Wallahu A’lam!..

In our era everyone; from truck drivers, to roadman, to street punks, without differing scholar from the ignorant… speak about matters of Din. We witness all these people who had not read even a single book, who know not Din or Dunya (worldly life); neither Shari’ah nor man-made laws, debating regarding the ruling of the matter of self-defense in the court. They started debating regarding sophisticated terms such as; Muddai Alayh, self-defense, Muhakama etc. and without comprehending the meanings, they are giving Fatwa (religiously verdict), declaring Takfir upon each other, naming Iman as Kufr and Kufr as Iman.

How many of them would understand these narrations we quoted from the scholars. Whereas these are tough matters that were discussed by scholars therefore there is no room for the ignorant to pass judgments. We do not condemn anyone by his profession and career or his statue in the society or his academic title. However, the ignorant people should know their limit and should not speak regarding matters that go beyond their limits.

We are not scholars but we know our limits. The lay people should learn what Muhakama bi’t Taghout is, enough to be Muslim and reject it. However if they start to debate regarding the detailed matters of Muhakama and give verdicts, declaring Takfir upon others, naming deeds that are not Kufr as acts of Kufr or permitting open Kufr, then this is destruction and calamity. Wallahu’l Musta’an (Allah is the One to Whom the help is sought)!

Written by Brother Abdulhakim Hanif

INSHA'ALLAH TO READ SIMILAR ARTICLE CLICK:

• Ruling of Seeking Judgement from the Taghout & Getting Rid of the Doubts Concerning it !