The Doctrine Of Separation Of Powers And Its Relationship With The Concept Of Judicial Independence In Islam

Mohd Badrol, Awang and Aminuddin, Mustaffa and Mohd Lotpi, Mohd Yusob (2014) The Doctrine Of Separation Of Powers And Its Relationship With The Concept Of Judicial Independence In Islam. JOURNAL OF ISLAMIC LAW REVIEW, 10 (1). pp. 121-134. ISSN 0973-2918

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Abstract

Under the separation of powers doctrine, the common understanding is that there should be three branches of government, the legislative branch, the judicial branch and the executive branch. Each branch should be distinct from one another and no branch should exercise power over another branch and no individual person should be a member of more than one branch. Issues relating to the status of the doctrine under the Syari‘ah, whether is it a must to subscribe to that doctrine and that any failure of any given state or country to implement the doctrine is necessarily a bad thing in itself and would vitiate the independence of the judiciary are rarely asked. This paper discusses the status of the doctrine from the western and Islamic point of views and then proceeds to relate and define the relationship of the doctrine with the concept of independence of judiciary in Islam. The study finds the application of the doctrine is not compulsory and it is not right to say that failure to implement the doctrine is necessarily a bad thing in itself and would tarnish the independence of the judiciary.

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