HISBAH INSTITUTION

Ini adalah sebahagian daripada assignment ethic, hisbah institution- in enjoining goods and forbidding evil. Sebenarnya ada beberapa point yang sepatutnya ditambah tapi memandangkan esok dateline submit, jadi malas nak translate dan cari bahan.

Antara point yang patut ditambah- kuasa yang terhad diberi kepada institusi hisbah. Contoh yang terdekat ialah kes JAWI v Jeslina Hashim. Atau adakah akta yang spesifik di Malaysia yang memperuntukkan bidang kuasa hisbah?

Institusi hisbah yang bercambah, hisbah yang terbahagi kepada Religious Enforcement Officer, polis, BPR dan lain2 lagi. Beberapa institusi ini tidak dikawal oleh satu institusi yang besar yang dipanggil hisbah

Hisbah (ombudsman) yang diamalkan di Banking and insurance mediation bureau, yang boleh dikaji dan diluaskan mengikut lunas-lunas syariah daripada diamalkan mengikut civil law. Sayang idea sudah ada (malah sudah diguna pakai), tapi tidak diaplikasi untuk mengikut cara islam.

Setakat ini belum ada buku yang membicarakan cabaran-cabaran dan dilema terhadap institusi hisbah, buku yang ada cumalah overview tentang operasi hisbah. Malah buku masterpiece tentang hisbah oleh ustaz auni, tidak ada translation ke dalam bahasa Inggeris. Begitu juga buku, karangan, Prof Mahmud Saedon. Kurangnya produktif dalam bidang penterjemahan, boleh menyebabkan perkembangan law di Malaysia statik.

(kalau saya terrer BI, sure dah lama saya translate buku2 tuh, dapat duit aper hehehe(gelak sin chan)

HISBAH INSTITUTION AND ITS DILEMMA
by : hudasoid

4.2.1 Non-fully implement the institution in the Muslim Society

With the advent of Western colonialism most of the Muslim institution underwent drastic modifications. Like many other institution, hisbah also declined in effectiveness. It either disintegrated into a number of departments or remained an ineffective appendage of the state organs. By the 19th century Persia, Turkey, Egypt and India had already transformed the hisbah function into a number of secular departments discarding its religious content as irrelevant. In Morocco the muhtasib's office existed even in the early part of the 20th century. In the present day Muslim societies the secular functions of the hisbah have been assigned to various departments of the government and the religious functions have been relegated to a secondary position. Saudi Arabia is perhaps the only Muslim state which has retained to this day the religious wing of hisbah intact to a large extent, although it too has distributed the secular function to different department and ministries[1]. While in Pakistan, the Hisbah bill was passed which regulates the jurisdiction, duties and roles of Muhtasib ( see Appendix I)

4.2.2 Muhtasib v Private Privacy
The inspection regime (al-Hisbah) is one of the Islamic government organs, whose duty is to popularize and expand “the good” and prevent “the evil” in the society. The inspection regime encompasses the entire public sphere. The inspector’s (al-Muhtasib) job is to inquire into matters of public sphere, and ensure that Islamic values and criteria prevail. The inspector can attempt cleansing the public sphere through: enforcing commanded actions; and certain recommended and permitted ones, wherein public interest; enforcing abandonment of prohibited activity and certain, repugnant and permitted, again, in the interest of the public; punishment (ta’zeer) of the offenders and violators, by extracting cash penalties, detention and physical punishment (i.e. flogging). The unlimited authority of the inspector is a serious threat to private sphere, and by relying on it; one could strip the public sphere of all freedom for individual activity.

However, this allegation is wrong. According to Imam Al-Ghazali, he stated that the wrongs within the muhtasib's jurisdiction are those that are manifest (zahir) and that the muhtasib is not permitted to investigate a wrong being committed at home behind closed doors. Ibn al-Ukhuwah added an important exception to this rule, however, when the situation involves an imminent crime the damage of which will not be remediable, the muhtasib may spy in order to investigate. The example given of such a situation is when someone the muhtasib believes to be reliable informs him that a man has retreated into seclusion with another man in order to kill him, or is alone with a woman in order to commit fornication. Therefore it is clear that, muhtasib only investigate in case of immanent danger.

While there may be occasions in which the muhtasib is allowed to spy upon, or enter, private homes, there is a clear rule as to how neighbors should treat one another. Ibn al-Ukhuwah provided that no one is permitted to peer into his neighbor's house from the roofs or windows[2]. There is no exception here for wrongs in progress or on the verge of being committed; a private individual has no right to breach the privacy of another. The muhtasib, as an appointed official, would be expected to have a certain level of education and skill and be knowledgeable of the rules contained in a manual such as Ibn al-Ukhuwah's. The muhtasib is therefore permitted a certain degree of discretion in intruding upon private space, whereas to permit this to all individuals would destroy the sanctity of the home.

In the case of sanctity of personal possession, if a Muslim openly displays or makes manifest the possession of wine, then the wine should be poured out and the Muslim punished. If the possessor is a zhimmi, then he should be punished for displaying it, but there is disagreement as to whether it also should be poured out, since wine is permissible for a non-Muslim[3]. These provisions indicate that, for the Muslim, consuming wine at home is considered wrong, but so long as it is done secretly and quietly the muhtasib does not have jurisdiction over the wrong. For the non-Muslim, possession and consumption of wine is permissible and not within the muhtasib's jurisdiction simply because it is not wrong. Open public display of wine drinking, however, is considered a wrong and is within the muhtasib's jurisdiction, both procedurally and substantively.

Appendix I

Hisbah Bill in Pakistan

A BILL to provide for the establishment of the institution of Hisbah in the North-West Frontier Province.
WHEREAS sovereignty over the entire Universe belongs to Almighty Allah alone and the authority to be exercised by the people of Pakistan through their chosen representatives within the limits prescribed by him is a sacred trust;
AND WHEREAS implementation of Islamic way of life revolves around Amer-bil-Maroof and Nahi-unal-Munkir and to achieve this objective it is necessary apart from other steps to establish an institution of accountability, which could keep a watch on securing legitimate rights of various classes of the society, including females, minorities and children and to protect them from emerging evils and injustices in the society;
AND WHEREAS it is further necessary to extend the jurisdiction of Mohtasib to Government’s administration and offices in order to have a check upon injustices, abuse of powers and other similar excesses;It is hereby enacted as follows:-

1. Short title, extent and commencement.
(1). This Act may be called the North-West Frontier Province Hisbah Act, 2005.
(2). It shall extend to whole of the North-West Frontier Province.
(3). It shall come to into force at once.

2. Definitions.—-In this Act, unless the context otherwise requires;-
(a)“Agency” means a Department, Commission or any office of Provincial Government, a Corporation or similar other institutions which the Provincial Government may have established or which may be working under its control, the Secretariat of the Provincial Assembly of the North-West Frontier Province, but does not include the High Court and the Courts working under its administrative control;
(b); “Amer-bil-Maroof” means fulfilling the obligations of enjoining the good as laid down in Holy Quran and the Sunnah;
(c); “Competent Court” competent court means court established under Criminal Procedure Code, 1898;
(d); “lawyer” means a lawyer having at least ten years experience in the profession of advocacy; (e); “Government” means the Government of the North-West Frontier Province;
(f); “Governor” means the Governor of the North-West Frontier Province;
(g); “High Court” means the Peshawar High Court, Peshawar;
(h); “Hisbah Police” means the Police Force deputed to work for the purposes of this Act;
(i); “mal-administration” includes all such decision, processes, recommendations, acts and deficiencies which-(i); is contrary to law, rules or regulations or is a departure from established practice or procedure, unless it is bonafide and for valid reasons; or(ii); is perverse, arbitrary, unreasonable, unjust, biased, oppressive or discriminatory; or(iii); is based on irrelevant grounds; or(iv); involves the exercise of powers or the failure or refusal to do so, for corrupt or improper motives, such as bribary, jobbery, favouritism, nepotism and administrative excesses; or(v); amounts to negligence, inattention, delay, incompetence, inefficiency and inaptitude in the administration or discharge of duties and responsibilities;
(j); “Mohtasib” means the Mohtasib of the Province or, as the case may be, the Mohtasib of a District or a Tehsil, appointed under this Act;
(k); “Nahi-anil-Munkar” means fulfilling the obligations of forbidding the evil as laid down in the Holy Quran and the Sunnah;
(l); “Office” means the office of Mohtasib established under this Act;
(m); “Province” means the North-West Frontier Province;
(n); “Provincial Advisory Council” means the Council established under this Act;
(o); “public servant” shall mean the persons defined in section 21 of the Pakistan Penal Code, 1860;
(p); “rules” means the rules made under this Act;
(q); “Scholar” means the holder of the certificate of Shahadat-ul-Aalmiah from any Institute recognized by the Higher Education Commission;
(r); “staff” means the staff of Mohtasib.

3. Appointment of Mohtasib.
(1). There shall be a Mohtasib for the North-West Frontier Province, who shall be appointed by the Governor of the North-West Frontier Province on the advice of the Chief Minister of the Province.
(2). The Provincial Mohtasib shall be a person who is a scholar and is eligible to be appointed as Alim Judge of the Federal Shariat Court.
(3). Before entering upon office, the Mohtasib shall take an oath before the Governor in the form set out in the Schedule A.

4.Tenure
(1). The tenure of the office of the Provincial Mohtasib shall be four years.
(2). The Mohtasib may, at any time, resign from his office by tendering resignation in writing.

5. Mohtasib not to hold office of profit, etc.
(1). The Mohtasib during his appointment shall not hold any office of profit or enter into any profession carrying the right to remuneration.
(2). The Mohtasib, during a period of two years after his retirement, shall not be eligible to contest election of the Parliament or a Provincial Assembly or of a Local Government:-Provided that this restriction shall not apply to an Acting Mohtasib or a Mohtasib replaced as a result of a Court’s decision.

6. Terms and conditions of service.
(1). The Provincial Mohtasib shall be entitled to the same privileges, allowances and pay as are admissible to the Alim Judge of the Federal Shariat Court.
(2). The Provincial Mohtasib may be removed from office on the ground of corruption or of being incapable of properly performing the duties of his office by reason of physical or mental inability. In such a case he shall be served with a show cause notice which will be replied to by the Mohtasib within seven days.
(3). On failure of the Mohtasib to reply within the stipulated period or the reply being found un-satisfactory, the order of removal of the Mohtasib may be issued.
(4). The Mohtasib, on his removal from office under sub-section (3), may, within thirty days of the order, appeal to the High Court, which will be heard by a Division Bench of the Peshawar High Court.
(5). Where a Mohtasib has been removed on the ground of corruption, he shall not be eligible, for a period of five years from the date of his removal, to be appointed in any Government Department or to become a member of the Parliament or a Provincial Assembly or a Local Government.

7. Acting Mohtasib
(1). If the Provincial Mohtasib, for any reason, is unable to attend his office temporarily, he will direct any District Mohtasib to act as Provincial Mohtasib.(
2). If the office of the Provincial Mohtasib becomes vacant for any reason, the Chief Minister shall direct any District Mohtasib to act as Provincial Mohtasib in addition to his own duties till appointment of a new Mohtasib.
(3). No Acting Mohtasib shall, in any case, be appointed for a period of more than three months.

8. Delegation of powers to District Mohtasib. The Provincial Mohtasib shall, in the prescribed manner, be competent to delegate his power to a District Mohtasib in writing.

9. Appointment of staff and terms of employment.—-Government shall determine the terms and conditions of service and pay and allowances in respect of the staff members of the Mohtasib.

10. Powers and duties of Mohtasib.—-The Mohtasib shall, on a written complaint of any person, or on reference from the High Court, the Supreme Court or the Provincial Assembly, or suo moto, shall have the power to-(a). enquire into the allegations of mal-administration against any Agency or its employees:Provided that no Government servant, during his service, shall be entitled, in relation to affairs of his employment, to lodge a complaint with the Mohtasib;(b). protect/watch the Islamic values and etiquettes at the provincial level;(c). watch the media established by Government or working under the administrative control of Government to ensure that its publications are useful to the propose of upholding Islamic values;(d). forbid persons, Agencies and authorities working under the administrative control of Government to act against shariah and to guide them to good governance.




[1] Nizam al-Hisba fil Islam, 'Abdul 'Aziz b. Muhammad, pp.189-218
[2] Ma'alim Al-Qurba, Ibn al-Ukhuwah, p.136
[3] Ibid,p.84