THE ISLAMIC JUDICIAL SYSTEM

THE ISLAMIC  JUDICIAL SYSTEM

MIAN ASHRAF ASMI ADVOCATE HIGH COURT

Man is a social being by nature. He cannot live perpetually on his own, completely independent of others. People are interdependent. Consequently, friction arise between them when their personal interests come into conflict with each other, or when what they perceive as their individual rights infringe upon those of others. Conflicts between them inevitably break out. In some cases, one party to the conflict might be strong and aggressive while the other is weak and condescending, incapable of defending his rights.

Because of this, it becomes necessary for there to be a way to prevent people from oppressing one another, to ensure that the weaker members of society receive justice, and to determine right from wrong when issues get complicated or uncertain. This can only be realized through a judge that has the power to give legal verdicts in cases of dispute.

For this reason, we find that the existence of a judge is considered by Islamic law and the laws of all the other revealed religions to be both a religious obligation and a necessity of human life. Allah says:

We have sent Messengers with clear proofs, and sent down with them the Scripture and the Balance that mankind can establish justice.

Islam – the religion that Allah wants for mankind from the time that He sent Muhammad (may he peace and blessings of Allah be upon him) until the Day of Judgment – shows great concern for the judicial system and those appointed to carry out its responsibilities. Islam prescribes for it many legal injunctions. How else could it be, when Islam is the religion of mercy, equality, and justice? It is the religion that comes to free people from worshipping Creation and bring them to the worship of Allah. It is the religion that comes to remove people from oppression and iniquity and bring them to the highest degree of justice and freedom.

Allah’s Messenger (peace be upon him) was the greatest of judges. He used to act in the capacity of judge in the city of Madinah, which was the first Islamic state. He used to appoint people to be judges in other cities. Among these were `Utâb b. Asyad who was sent to Mecca, `Alî b. Abî Tâlib and Mu`âdh b. Jabal, both of whom were sent to Yemen.

In the era of the Rightly Guided Caliphs, the head of state continued to be the one to appoint judges, govern their affairs, protect their independence, and keep the governors and political appointees – and even the Caliphs – subject to the judges’ verdicts. `Umar b. al-Khattâb, the second Caliph, was the first person to make the judge an independent entity, distinct from the Caliph and the governors.

In this way, the judicial system continued to evolve throughout the early Islamic era, during the Umayyad era, and well into the Abbasid era. The office of Chief Justice came into being at this time. The Chief Justice became responsible for appointing and removing judges. He was responsible for supervising their behavior and monitoring their performance. The first person to be appointed to this post was the justice Abû Yûsuf, the student of the great jurist Abû Hanîfah (may Allah have mercy on them both). Thereafter, this office became widespread throughout the Muslim lands. It continued to exist up to the fall of the Ottoman Empire.

The names of many just judges have been preserved in Islamic History. Their names have become like synonyms for justice and integrity. Many pages in the history books are devoted to the lives and careers of eminent judges like Iyâs b. Mu`âwiyah, Shurayh b. `Abd Allah, al-`Izz b. `Abd al-Salâm and others who applied the teachings of Islam in the best possible manner. They give us a living example of how a Muslim judge is supposed to conduct himself.

We should mention, since we are discussing the Islamic judicial system, that Islam sets down broad guidelines and basic principles concerning the affairs of life and rarely concerns itself with the particular details of life. This is so these guidelines can stay relevant for every time and place. One of these guidelines is that establishing justice among people is an obligation that has to be carried out. As for the manner of achieving this objective, this has not been detailed by the sacred texts. This has been left for the people of each generation to deal with in a way most suited to their unique set of circumstances. The only condition is that whatever methods are chosen must not run contrary to Islamic Law.

In the pages that follow, we shall present the most important elements of the Islamic judicial system.

Defining the Judicial System and its Legal basis

The judicial system in Islam is a system for deciding between people in litigation with the aim of settling their disputes in accordance with the injunctions of the Divine Law, injunctions that are taken from the Quran and Sunnah.

All of the Messengers of Allah (may the peace and blessings of Allah be upon them) acted as judges. Allah says:

And remember David and Solomon, when they gave judgment concerning the field when people’s sheep had browsed therein at night, and We were witness to their judgment. And We made Solomon to understand the case. And to each of them We gave good judgment and knowledge.

Allah also says:

O David, verily we have placed you as a vicegerent on Earth, so judge between people in truth, and do not follow your desires for it will mislead

you from the path of Allah. Verily, those who stray from the path of Allah have a severe punishment because they forgot the day of reckoning.

Prophet Muhammad (peace be upon him), who came with the final and eternal Message, was ordered by Allah to pass judgment in disputes just as he was ordered to spread the word of Allah and call people to Islam. This is mentioned in the Quran in a number of places. Allah says, for instance:

- So judge (O Muhammad) between them by what Allah has revealed and do not follow their vain desires, but beware of them lest they turn you away from some of what Allah has sent down to you.

- And if you judge (O Muhammad), judge between them with justice. Verily, Allah loves those who act justly.

-But no, by your Lord, they shall have no faith until they make you (O Muhammad) judge in all their disputes and find in themselves no resistance against your decisions and accept them with full submission.

The Sunnah also provides for the legal basis of the Islamic judicial system. It is related by `Amr b. al-`As (may Allah be pleased with him) that the Prophet (peace be upon him) said: “If a judge gives a judgment using his best judgment and is correct, then he receives a double reward (from Allah). If he uses his best judgment but makes a mistake, then he receives a single reward.”

Allah’s Messenger (peace be upon him) said: “You should not wish to be like other people, except in two cases: a man who Allah has given wealth and he spends it on Truth and another who Allah has granted wisdom and he gives verdicts on its basis and teaches others.”

Many scholars have related to us that there is consensus among Muslims on the legal status of the judicial system in Islam. Ibn Qudâmah says: “The Muslims are unanimously agreed that a judicial system must be established for the people.”

A judicial system is a necessity for the prosperity and development of nations. It is needed to secure human happiness, protect the rights of the oppressed, and restrain the oppressor. It is the way to resolve disputes and ensure human rights. It facilitates enjoining what is right, forbidding what is wrong, and curbing immoral behavior. In this way, a just social order can be enjoyed by all sectors of society, and every individual can feel secure in his life, property, honor, and liberty. In this environment, nations can progress, civilization can be achieved, and people are free to pursue what will better them both spiritually and materially.

Oppression is an unfortunate human characteristic. If people were completely just, judges would never work and would have no purpose.

 

 

The Islamic Ruling Concerning the Judiciary

The jurists agree that the duties of the judge are an obligation that must be carried out by society. If some members of society carry out this duty, it is sufficient for everyone. If, on the other hand, everyone neglects it, then everyone in society is sinful.

The proof that these duties are obligatory comes from the Quran:

O you who believe! Stand out firmly for justice.

It is only necessary for a small number of individuals to perform judicial duties since judicial concerns come under the broad duty of enjoining what is right and forbidding what is wrong. It is not obligatory for every individual to carry out this duty as long as some people are doing so.

The affairs of the people will not be correct and upright without a judicial system. It is, consequently, obligatory for one to exist, just like it is necessary to have a military. Ahmad said: “People have to have a judicial authority or their rights will disappear.”

The duties of the judiciary include enjoining what is right, helping the oppressed, securing people’s rights, and keeping oppressive behavior in check. None of these duties can be performed without the appointment of a judiciary.

Consequently, their appointment is obligatory on the basis of the following juristic principle: “Whatever is needed for a legal obligation to be carried out is also obligatory.”

This is the general ruling regarding the judiciary. On the individual level, the ruling may differ, depending on the individual’s circumstances. It is obligatory for a person who is capable of performing these duties to do so when there is no one else available who is qualified. It is disliked for a qualified person to take the post, if someone else is available who is more qualified to do so. It is forbidden for a person to take the post if he realizes he is not capable of doing so or because he knows that he is easily tempted to be unjust. If a person is one of a number of equally qualified candidates, then it is permissible for him to assume the post of judge or to decline it.

The great jurist, Mâlik, was asked: “Can a man be forced to accept the post of judge?”

He answered: “Yes, if there is no one else to fill the post.”

He was then asked: “Even if this means beating him or imprisoning him?”

Mâlik replied: “Yes.”

The Qualifications of a Judge

The jurists have given us a number of qualifications that a judge should meet so that he will be able to properly perform his duties. They are:

1. Maturity: A minor cannot be appointed as a judge. If he is appointed, then his decisions will not be binding. Allah’s messenger (peace be upon him) ordered us to seek refuge from the rule of children. Ahmad relates that Allah’s Messenger (peace be upon him) said: “Seek refuge with Allah from the rule of children and the leadership of children.” Refuge is only taken from harmful things. Thus, appointing children to official posts is a harmful practice. Also, a minor does not have custody over himself, so how can he be granted authority over others by being appointed to the post of judge or, for that matter, any other official post?

A judge needs not only to have a sound mind and body, he needs to be deeply insightful and have opinions of high quality. It is not necessary for a judge to be advanced in years. He must fulfill all the other necessary qualifications and be at least past the age of puberty, even if he is very young. It is related that the Caliph al-Ma’mûn appointed Yahyâ b. Aktham as the judge of Basra when he was eighteen years old. Some people criticized his appointment, so al-Ma’mûn wrote to Yahyâ asking him how old a judge should be. Yahyâ wrote back, saying: “I am as old as `Itâb b. Usaid was when Allah’s Messenger (peace be upon him) appointed him as judge over Mecca.”

At the same time, being older is desirable, because it increases the dignity and prestige of the judge. The jurists consider these traits desirable for a judge.

2. Sanity: It is not permissible for an insane or mentally challenged individual to hold the position of judge. Likewise, a person whose judgment is impaired on account of old age or sickness should not act as a judge. This qualification is comparable to that of maturity. In fact, it is even more serious than age. If such a person is appointed as judge, then his decisions will not be binding. The jurist al-Mâwardî writes:

This condition is unanimously agreed upon. To meet this qualification, a person’s mind must be sound enough for the person to be legally accountable for his actions. He must be intelligent and able to perceive what is necessary to be able to discriminate between things. He must not be absent-minded and neglectful. He must be intelligent enough to see difficult situations clearly and solve difficult problems.

3. Freedom: A judge must enjoy complete freedom. He should not be a slave at all, not even a slave in the process of buying his freedom or a runaway slave. If such a person is appointed to a judicial post, his decisions will not be binding.

The reason for this is that a slave does not have complete custody over himself, so he should not be put in a position of authority over the affairs of others. A slave is liable to work for the interests of his master. Moreover, the judicial post is a position of honor and prestige that must be able to deter hardened criminals and deviants. This will not happen if the judge is a slave. This, at least, is the view of the majority of jurists. The jurist Ibn Hazm sees that the appointment of a slave is acceptable. His argument is that a slave’s testimony is acceptable, and the qualifications for a judge, in his opinion, are the same as the conditions for accepting a person’s testimony.

4. Islam: A judicial post is a post of binding, legal authority. An unbeliever should not be given such authority over a Muslim. Allah says:

Allah will never grant the disbelievers a way over the believers.

Moreover, a judge must apply the injunctions of Islamic Law, and this is, in itself, a religious act.

Carrying out a religious act requires faith on the part of the one performing it. It also requires fear of Allah to ensure that no deviation takes place in carrying out its injunctions. This is not possible for a Non-Muslim, because he does not believe in Islam in the first place. His disbelief is likely to cause him to purposefully violate Islamic injunctions or disregard them completely.

There is no disagreement among the jurists about this condition with regard to a judge appointed to pass judgment over Muslims. As for a judge appointed to deal exclusively with cases concerning Non-Muslims, most jurists insist that he still be Muslim, because they consider Islam to be a necessary qualification at all times. The jurists of the Hanafî school of law permit the appointment of a Non-Muslim judge to decide cases between Non-Muslims living in an Islamic state. They argue that competency to act as a judge is similar to the competency to give testimony. A Non-Muslim living in an Islamic state is competent to give testimony for or against other Non-Muslims; thus, he is competent to sit in judgment of them.

The fact that he is a judge exclusively for Non-Muslims in no way diminishes his authority or status, just like the appointment of a Muslim judge to deal with a certain group of Muslims does not take away from his authority.

The jurist al-Mâwardî sees the appointment of Non-Muslim judges for Non-Muslims to really be an executive appointment in the guise of a judicial one. He argues that the Non-Muslims have the option to take their disputes to the Muslim courts. In this case, the Muslim courts will decide whether or not they want to intervene. Allah says:

So if they come to you (O Muhammad), either judge between them or turn away from them.

If, on the other hand, they take their dispute to their own courts, then and only then, must they adhere to their court’s decision. This is because of a deliberate choice on their part. Before making such a choice, they were not compelled to accept the decision of their own courts.

5. Male gender: This is considered by a great number of scholars to be a necessary qualification. They consider it impermissible for a woman to be appointed as a judge. If she is appointed, the one who appointed her is a sinner and her appointment is void. Her decisions are not binding, even on issues where her testimony would be accepted. Their proof is the statement of the Prophet (peace be upon him): “A people will never be successful if they put a woman in charge of their affairs.”

A woman is not allowed to be appointed as the highest political authority, that of leading the state. Nor can she be a provincial governor. For this reason, it has never been related that the Prophet (peace be upon him) or any of his successors among the Rightly Guided Caliphs ever appointed a woman as a judge or a provincial governor. If it were permissible, it would have occurred at least once in at least one province.

Another argument advanced to support this view is that a judge must mix freely in the company of men, including jurists, witnesses, and disputants, whereas a woman is generally not permitted to mix with men unnecessarily, because of the harm that might come to her on account of it.

The jurists of the Hanafî school of law permit a woman to act as judge, but do not permit her to preside over cases involving capital crimes that require prescribed legal punishments or retribution. The reason for this is that her testimony is not acceptable in such cases.

The jurist Ibn Jarîr al-Tabarî does not consider being male a qualification at all. In his opinion, a judge who passes a verdict in a case is no different than a jurist who gives a decision on a matter of law. Since a woman can perform the latter function, she can therefore be a judge in any capacity. This opinion is also held by the jurists of the Zâhirî school of law.

6. Upright character: Most jurists recognize this qualification as a condition for every position of binding, legal authority. This means that a judge must perform all the obligatory religious duties, be honest, have apparent integrity, be free from sinful and licentious behavior, keep away from dubious activities, conform to social norms, and be a model of good behavior in his religious and worldly affairs. It is not permissible to appoint an immoral person to a judicial post, because being a judge is one of the greatest trusts that a person can be given.

7. The capacity for independent juristic reasoning: A judge should be capable of deriving the Law from its sources. He must have sufficient knowledge of the Quran and Sunnah to know where to find both general and specific legislations. He must know where to find the texts that clarify ambiguous ones. He must be able to differentiate between abrogated rulings and the texts that abrogate them. He must know which parts of the Sunnah have unquestioned validity and be able to differentiate between complete and incomplete chains of narration and the quality of the narrators. He must be knowledgeable in the Arabic language and its grammar. He must have knowledge of the points of consensus and disagreement in matters of Islamic Law from the time of the Prophet’s Companions onwards. He must be capable of juristic analogy.

8. Full sensory perception: What is required is the ability to see, hear, and speak. According to most scholars, this qualification is a necessary condition for being appointed as a judge. A deaf person may not be appointed as a judge, because he is not able to hear others when they speak. A blind person may not be appointed, because he cannot distinguish the plaintiff from the defendant by sight, nor the one admitting another’s right, nor the witness from the one being witnessed for or against. A person

who cannot speak may not be appointed, because he cannot pronounce judgment and his sign language will not be understandable to the majority of people.

As for the soundness of the rest of his body, it is preferred but not required. The reason it is preferred is that it increases the prestige of the one who holds the post. This prestige, in and of itself, is preferred but not required. Thus, a judge may be crippled, an amputee, or blind in one eye. The same may be said for someone who has difficulty speaking, weak hearing, or limited sight, as long as the needed abilities are present.

It is proper to mention that a judge can only acquire his position through political appointment from the highest political authority or his appointed representatives. This helps to preserve Muslim unity and prevent civil strife. A judicial post is, without doubt, a political post; thus, it is not permissible for anyone but the supreme political authority to appoint someone to this position except in the most severe extenuating circumstances. For instance, if there is no political authority in a certain area, it becomes up to the people of knowledge who live there to appoint a judge to deal with their disputes. If a political leader comes into existence in the area later on, his permission will be necessary for the judge to retain his post.

Likewise, a judicial post can have a general jurisdiction or a specific one. It is possible for a judge to have jurisdiction over all the Muslim territories and over all types of cases. It is also permissible for the political authority to appoint a judge to a particular locality or limit his jurisdiction to a certain type of case, like judging between Non-Muslims. In either situation, the judge will not be allowed to preside over cases outside of his jurisdiction or outside of his specialty. The limits of his jurisdiction can be based on time, locality, or type of case.

Court Officials

A judge needs a number of other people to assist him in carrying out his duties. Among these officials are the following:

1. Advisory council: A judge must select for himself a number of scholars and other eminent people whose advice he can seek when deliberating on cases. He should be able to consult them on matters of Islamic Law, benefiting from them what injunction may be appropriate to apply in this case or that. This consultation is recommended, even if the judge is a scholar himself. `Umar b. al-Khattâb used to consult with the leading and most scholarly Companions like `Alî b. Abî Tâlib and `Abd Allah b. Abbâs (may Allah be pleased with them all).

The purpose of consultation is to ensure that the judge is aware of all the pertinent information that pertains to the case or that could affect his decision, information that he might otherwise have overlooked or forgotten. He also gets the benefit of hearing the verdicts that they suggest. The members of the advisory council should be capable of independent juristic reasoning and should all be of good character. This is so they will be able to assist the judge in determining the verdict in accordance with Islamic Law.

2. Court clerk: He is the one who sits before the judge and records everything that the judge dictates to him. The jurists recommend that the court clerk be of good character and have sufficient knowledge of Islamic Law.

3. Bailiff: He is the one who brings the litigants before the judge for him to decide their cases. His job is to assure that their cases are attended to in the proper order. This may be on a first-come first-serve basis, or on a predetermined system where certain types of cases take precedence.

4. Court usher: Among his responsibilities is that of informing the public of the times that the court is in session and the times when the judge takes his recesses. He has the responsibility of informing the judge of those who wish to have an audience with him, so that the judge can decide whether or not to receive them.

5. Translator: The judge may appoint one translator or more of good character. If a translator is needed for a certain language and none is employed by the courts, then a reliable and trustworthy translator may be brought in from outside. Two translators are preferable than one. A woman of good character can act as translator if necessary. Their job is to translate the statements of the plaintiff, the defendant and the witnesses for the judge if the judge does not understand their language.

6. Officer of the court: He is the one who stands at the head of the judge and orders the litigants to rise when it is time for them to leave the courtroom. He is a police officer who works to protect the judge and ensure the safety of the courthouse.

7. Court witnesses: These people can be summoned to the courtroom to witness the testimony of the litigants, memorize it, and present it to the courts when necessary. They should be of good character, sufficient to qualify them to act as witnesses.

8. Warrant officers: Their job is to bring the litigants into the courtroom if others have a claim over them. They should be religious and trustworthy.

9. Court investigators: These are people of good character chosen by the judge whose identities are not disclosed to the public. Their job is to vouch for the character of witnesses who they are asked about.

10. Disciplinary officers: These are a group of men of decent standing who are present in the courtroom to restrain people, litigants or otherwise, if they exhibit unruly behavior in the courtroom. They have the right to remove unruly people from the courtroom if they persist in their misconduct. These officers are also part of the police force.

11. Expert witnesses: These are people of good character chosen by the judge who have expertise in various fields that are needed by the court. This would include appraisers of value, land surveyors, and others.

12. Jailor: Among his duties is to report to the judge on a daily basis what goes on in the prisons.

This is order to ensure that no one is wronged and that no one remains imprisoned longer than he should.

It should also be mentioned that some of these officials are selected by the judge himself, like the members of the advisory council, the court investigators, and the court witnesses. Others are appointed by the state, like the court clerk, bailiff, and court usher. The court officials receive their pay from the state treasury according to the duties that they perform and their level of expertise. The judge should monitor the activities of his officials to assure that they conduct themselves properly and fulfill their duties.

The Independence of the Judiciary

Islamic Law, through the sacred texts and through its basic principles, prohibits the governing officials from interfering with or influencing the decisions of the court in any way. Islamic Law, in its general principles and individual statutes, seeks to realize its primary objective of establishing justice on the foundation of monotheism. Monotheism is not just lip service. It is realized through actions that verify the profession of faith. These actions must entail carrying out the commandments of Allah and preventing what Allah has prohibited. This is a collective responsibility of Muslim society. This requires that Allah’s commands and prohibitions be applied as the standards of truth and justice. Whatever Allah has commanded is truth and justice and whatever He has forbidden is falsehood and oppression. Consequently, prohibiting what Allah has forbidden is truth and justice.

There are numerous verses in the Quran that command justice and forbid oppression. Allah says:

- Verily, Allah enjoins justice, doing good, and spending on one’s relatives, and forbids licentious deeds, wrongdoing, and transgression. He admonishes you, so perhaps you might take heed.

- And let not the hatred of others dissuade you from justice. Be just, that is nearer to piety; and fear Allah. Verily, Allah is well acquainted with what you do.

- And if you judge (O Muhammad), judge between them with justice. Verily, Allah loves those who act justly.

- And whoever does not judge by what Allah has revealed, they are the disbelievers.

In the hadîth, Allah’s Messenger relates: “Allah says: ‘O My servants, I have prohibited oppression upon myself and made it prohibited between you, so do not oppress one another.”

These are but a few of the sacred texts that show the obligatory nature of judging with justice and with what Allah has revealed. This is a general command, equally applicable to the one who governs and the one who is governed. The political power in Islam is

bound by Allah’s Law. There is no obedience due to the government if it requires disobedience to Allah’s Law. This is the way our pious predecessors acted upon Islamic Law. The political leaders are merely appointed to the affairs of state. The true ruler is Allah. The Caliph or leader is but one of the Muslims, equal with the others. The Muslims are the ones who select him and place him in authority. They can monitor his activities. He must consult with them. If he violates Islamic Law and acts against the welfare of the people, they can have him removed from office.

In the past, the political leaders of the Muslim state understood that justice – by which the heavens and the Earth are kept right – is the basis for governing in Islam.

`Amr b. al-`As said: “There is no political leadership without men. There are no men available without wealth. There can be no wealth without a prosperous civilization. Civilization cannot prosper without justice.”

The Caliph `Umar b. `Abd al-`Azîz wrote to one of his functionaries who sought permission to fortify his city: “Its fortification is achieved through justice and through removing oppression from its streets.”

Sa`îd b. Suwayd said in one of his addresses in the city of Homs: “O people, Islam has an impenetrable wall with a secure gate. Its wall is the truth and its gate is justice. Islam will remain inviolable as long as the political authority is stern. This sternness is not by whip or sword, but by judging with truth and applying justice.”

For this reason the Rightly Guided Caliphs and the leaders of the Islamic state worked hard to bestow every possible dignity and honor on the judiciary and strove to protect it from all outside interference. They did this to ensure truth and justice. Therefore, they did not attempt to turn the court rulings to their favor or the favor of those they liked.

They, themselves, adhered to the decisions of the judiciary, respected them, and carried them out. They accepted the verdicts of the judge. Even when the rulings were against their own selves, they would dutifully carry them out. The history books are full of narrations where the Rightly Guided Caliphs and later Muslim governors were involved in litigation with others and the judges who they themselves appointed ruled against them. In some cases, the Caliph knew what the truthful outcome should be, but still allowed the case to go to court in order to set an example of conduct for those who would come after them. They would also do this to test the strength of the appointed judges in the face of such a situation where their adversary might even be a Jew or other Non-Muslim.

The judges, themselves, were no less concerned about these things than the governors were. The judge in his courtroom was an imposing and well-respected figure. He would not sway from the truth on account of criticism. He would treat the prince and the pauper equally. The history books give us some examples of this.

Al-Ash`ath b. Qays entered upon the judge Shurayh while he was in his courtroom. Shurayh greeted him and bade him sit next to him. At this time, a person came in with a

case against al-Ash`ath. Shurayh then said: “Stand up and take the defendant’s seat and address the other.”

Al-Ash`ath said: “On the contrary, I will speak to him from here.”

Shurayh then said: “Will you stand on your own, or must I bring someone in who will make you stand?” At this point, he stood up and took his place as ordered.”

Abû Yûsuf – one of history’s most extraordinary judges - has a case brought before him where a man claimed that he owned a garden that was in the possession of the Caliph. Abû Yûsuf had the Caliph appear in court and then demanded that the plaintiff bring his proof. The plaintiff said: “The caliph misappropriated it from me, but I have no proof, so let the Caliph take a solemn oath.”

The Caliph then said: “The garden is mine. Al-Mahdî purchased it for me but I find no contract for it.”

Abû Yûsuf bade the Caliph thrice to testify under oath, but the Caliph would not do so. At this point, Abû Yûsuf ruled in favor of the plaintiff.

The Caliph, Abû Ja`far al-Mansûr, once wrote to Siwâr b. `Abd Allah, the presiding judge in Basra: “Look at the land that so-and-so the general and so-and-so the merchant are disputing about and give the land to the general.”

Siwâr wrote back: “The proof has been established before me that the land belongs to the merchant. I will not take it from him without proof.”

Abû Mansûr wrote back: “By Allah, besides Whom there is no other god, you will not take it from the merchant without right.” When the judge’s letter had reached him, he had said: “I have filled it, by Allah, with justice, and my judges have begun to refuse me with the truth.”

Islam did not stop at prohibiting the political leadership from interfering with the decisions of the judge. It went further, providing other guarantees to ensure that the judiciary would remain strong and independent.

Since the judge holds such a prominent and serious position in society – being that he is the one who decides between others in their disputes – it is necessary for him to enjoy the respect and trust of the people so that they will be content in accepting his judgments as just. A judge will not be able to attain this public esteem except with some concrete proof of his character.

He provides this proof through his good conduct that must be free of eccentricities and through his unyielding adherence to justice when passing judgment. The jurists stress this point and discuss the types of behavior and work that a judge should stay away from. Without doubt, the things that they mention are not exhaustive, but are merely given by way of example.

 

A Judge’s Behavior and Conduct

The general rule of thumb for a judge’s behavior and conduct is that it should be acceptable to the public and not open up opportunities for people to doubt his integrity and impartiality.

The following are among the things mentioned by the jurists:

1. He is not allowed to engage in business: The great jurist al-Shâfi`î said: “It is disliked for him (i.e. the judge) to engage in buying and selling, because it is feared that he will receive unfair advantages or excess.” The problem is that if he engages in commerce, it cannot be assured that he will not receive favors and preferential treatment from some people that might, in turn, cause him to give preferential treatment to them in the courtroom. All other forms of commercial dealings should be considered in the same light as buying and selling.

2. He is not permitted to accept gifts: A judge should never accept a gift from one of the litigants, because this puts him under suspicion of partiality. In truth, it is disliked for a judge to accept a gift from anyone, whether he be a litigant or not.

When `Umar b. `Abd al-`Azîz refused a gift, it was said to him: “The Prophet (peace be upon him) used to accept gifts.” At this, `Umar said: “These things were gifts for the Prophet (peace be upon him), but they are bribes for us, because the Muslims used to seek nearness to the Prophet (peace be upon him) with gifts on account of his prophethood.”

Another difference is that the Prophet (peace be upon him) was divinely protected from error, so what is feared from others who receive gifts was not feared from him.

All forms of benefit that a judge may receive from another person under his jurisdiction should be treated in the same way as gifts.

3. He should not engage in any socially unacceptable behavior: Added to what has been mentioned already, a judge is supposed to be dignified, venerable, and distant from anything that might injure his reputation or be unseemly for a judge to get involved in. He should not socialize excessively with others. This protects him from being affected by them, which could compromise his impartiality. Likewise, he should not stay away from public gatherings where his attendance is appropriate.

He should avoid jesting and making other people laugh, whether he is in their company or they in his. All of this can detract from the dignity and venerable status that a person needs to have as a judge.

Likewise, when he speaks, he should maintain the highest standard of speech possible, free from errors and defects. It should also be free from the ridicule of others and haughtiness.

In order to maintain the appearance of judicial independence, it is not permitted in Islamic Law, according to the majority of jurists, for the political authority to remove a just judge from office unless the public welfare requires it. A valid reason might be to appease a large sector of the population or to appoint another person who is much more qualified for the post. If a judge is removed without a valid reason, then his appointment remains intact.

Material factors have a great influence over the lives of people. Islamic Law takes this into consideration when dealing with the issue of preserving the independence of the judiciary.

A judge must be totally preoccupied with the duties of his office. He is prohibited from earning an income through commerce, and furthermore has to maintain the highest standards of decorum and decency in his frequent dealings with other people. These things are all necessary in order for him to earn the respect of others and maintain his judicial independence. These being his circumstances, he must receive a salary from the public treasury commensurate with his standard of living so he will not be forced to earn an income in a manner that is inappropriate for a person of his standing.

The jurists have stated that a judge should receive a salary from the public treasury. Ibn Qudâmah, in his discussion on the income of a judge, mentions the different views of the jurists then writes:

The correct view is that it is permissible for a judge to take a salary for his services in any situation, because Abû Bakr (may Allah be pleased with him) was given a salary of two silver pieces a day when he became Caliph. We have already mentioned that `Umar (may Allah be pleased with him) gave salaries to Zayd, Shurayh, and Ibn Mas`ûd. If salaries are not provided, the judicial system would be overturned and there would be no way to preserve the rights of the public.

 

Termination of the Judge’s Term of Office

There are a number of ways that a judge can be removed from his post. The most important of these are as follows:

1. Removal of the judge by the political authority or a representative thereof: This is allowed for the political authority in certain cases. A judge can be removed if the political authority finds:

1. another person who is more qualified for the post.

2. that the judge in office is incompetent.

3. that the judge admits to purposeful injustice.

4. clear evidence demonstrating the willful injustice of the judge.

`Umar b. al-Khattâb (may Allah be pleased with him) removed Sharhabîl b. Hasanah from his judicial post. Sharhabîl asked him: “Did you remove me from my post because you are displeased with me?” `Umar replied: “No, but I found another who is as decent as you are, but better in performing his duties.” Sharhabîl then said: “O Commander of the Faithful, being removed from one’s post by you is a shameful thing, so tell the public the reason why you did so.” `Umar then did as Sharhabîl requested.

2. Bad character: If a judge commits certain sinful deeds that remove from him the legal requirements of good character –drinking, for instance, or any other major sin – then his appointment is automatically terminated. Ibn Qudâmah writes:

If the judge’s circumstances are changed through immoral behavior, loss of sanity, debilitating illness, or loss of one of the necessary qualifications for being a judge, he must be removed from office because of that, and the political authority has no alternative but to remove him.

3. Apostasy: Islam is a necessary condition for a judge to be appointed and for him to remain in office. For this reason, a judge’s appointment is automatically terminated the moment he leaves Islam.

4. Insanity: More precisely, if a judge loses his aptitude to be held legally accountable, he is no longer suitable for his judicial post.

5. Complete loss of hearing, sight, or the faculty of speech: The majority of jurists agree that if a judge is afflicted with the loss of any of these faculties, he loses his post as judge.

6. Debilitating illness: If a judge is afflicted with an illness from which he is not expected to recover, and this illness makes him incapable of performing his duties, then he loses his position as judge.

7. Expiry of term of office: If the political authority appoints a judge for a one-year term, then his term of office comes to an end after one year. Likewise, if he is appointed to decide on a specific case or set of cases, then his term of office ends when he finishes rendering verdicts for those cases.

8. Resignation: A judge may be relieved of his duties if he tenders his resignation and the political authority approves it.

9. Death: Death nullifies the legal capacity to act in any way whatsoever. Thus, the judge’s term of office ends immediately upon death.

 

 

 

Litigation and Presenting Evidence

A judge does not deliberate on people’s disputes unless they are brought before the court in the form of a lawsuit. The manner in which a judge hears a case is referred to as the principles of hearing a case. Likewise, a case is proven before a judge in certain, recognized ways, known as the procedures of evidence.

The reason for all of these procedures and principles is to make the judicial process orderly and familiar to the litigants. They also make the process of arriving at the truth – and ensuring that people receive what is rightfully theirs – clearer, more certain, and free from pitfalls and unnecessary delays. These principles also ensure that cases are heard as soon as possible.

It should be pointed out that the cases that take priority, without a special request, are those concerning people in prison, out of fear that someone is being imprisoned who does not belong there. Their cases should be heard quickly, so that their guilt or innocence may be determined and the innocent ones can be set free.

Thereafter, the judge, without a special request, looks into cases concerning the executors of the estates of orphans and the insane, and those presiding over bequests to the poor. He affirms the executorship of those who are trustworthy and capable, provides assistance to others who are weak, and removes people of bad character from their positions as executors.

He then looks into cases involving lost property that a previous court decision demanded to be saved. The judge decides which things should be sold and their price kept for their owners and which things should be retained in their original form.

The lawsuit and the conditions for its validity:

A lawsuit is a claim presented by a plaintiff in front of a judge, whereby he informs the judge that he has a right over the defendant that he demands be restored to him and that he wishes for the judge to rule in his favor against the defendant. There is no specific wording required for this claim. The general rule here is that any wording that conveys the meaning given in the definition above is acceptable, valid, and will be entertained by the judge if the following conditions are met:

1. The plaintiff and defendant are both in possession of their rational faculties.

2. The right being claimed by the plaintiff is clearly recognizable, is addressed by law, and falls under the jurisdiction of the courts.

3. The right being claimed is not rationally or practically impossible. An example of a rationally impossible claim is where a person claims paternity over another who happens to be older than he is. An example of a claim that is practically impossible is where a person who is well known to be extremely poor claims to have loaned another a substantial sum of money.

4. The claim, if substantiated, must entail some sort of necessary obligation on the part of the defendant. Thus, if a person claims, for example, that he is poor and that another person in his neighborhood is wealthy and then demands a portion of the other’s wealth on that basis alone, then his claim will not be entertained by a court of law, because such a claim, if substantiated, does not place the defendant under any legal obligation to pay the plaintiff anything.

Courtroom etiquette:

Before discussing how a case is presented before a court of law, we should mention that the courtroom is a place of seriousness, sobriety, and respect. It is not a place for frivolous behavior, protracted speeches, and bad manners. This applies to the litigants, the witnesses, and everyone else present in the courtroom. When the judge takes his seat, he should be in a presentable state, completely prepared to hear the cases that will come before him and to consider all the evidence that will be presented to him. For this reason, the Prophet (peace be upon him) said: “No one should judge between others when he is in a state of anger.”

The Prophet (peace be upon him) mentioned anger specifically, but his statement can be extended to every other state of mind that might have a similar effect. On this basis, the jurists have ruled that the judge should be free from severe hunger of thirst, excessive joy or grief, and extreme worry. He should not be in need of relieving himself or be overly tired. All of these things can compromise his mental state and his ability to properly consider the testimony of the litigants.

The judge should not let his gaze wander. He should speak as little as possible, limiting himself to the relevant questions and answers. He should not raise his voice except when necessary to check impertinence. He should keep a serious expression at all times, but without showing anger. He should sit in a calm and stately manner. He should neither jest nor speak about matters unrelated to the case at hand.

He should present himself in a manner that commands the respect of others, even in his manner of dressing and grooming.

The litigants should not speak unless the judge addresses them, asks them a question, or gives them permission to speak. When one of the litigants is given permission to speak, the other must listen quietly and not interrupt him. When the first litigant is finished speaking, the other may then ask the permission of the judge to address the court. If permission is granted, he may speak. Otherwise, he should remain silent.

The judge must listen to the litigants without showing any sign of annoyance. He should not cut them off unless they start shouting. He should then reproach them until they quiet down.

 

 

 

Taking a case before the judge:

A lawsuit must be brought before the court that has the jurisdiction to hear it. This is usually the court that presides over the defendant’s place of residence. Because of this, the plaintiff should take his case to the court that has jurisdiction over the defendant’s place of residence.

The plaintiff should state his case orally. He must arrive at the courthouse and wait for the bailiff to take him before the judge when it is his turn. When he goes into the courtroom, the judge will then ask the plaintiff to present his case.

It has become customary for the court clerk to record for each case the names of the plaintiff and the defendant, the claim itself, and the names of the witnesses, and then place each case in a file. The case files are collected and presented to the judge every month. The judge then investigates the character of the witnesses for every case in preparation for it.

Generally, it is the plaintiff who takes the case to court if he is competent to do so, that is, if he is a rational adult who has not been placed under the custody of another due to mental incapacity or for some other reason.

It is permissible for the plaintiff to appoint someone else to take the case before the court on his behalf, as long as the plaintiff is legally competent to make such an appointment.If the plaintiff is not legally competent to act on his own behalf, then his guardian must take the case to court for him.The jurists have clearly stated that it is permissible for a person to appoint someone else to represent him in court, whether or not that representative is paid for his services.If, however the representative offers his services without pay, it is considered an act of charity that he is required to see through until the end.

The plaintiff, his representative, or his legal guardian is the one who brings a civil case to court. As for a criminal case, it is brought to court by the public prosecution that seeks criminal punishment for the perpetrator of the crime. This is because criminal activity falls in the domain of what is prohibited by Islamic Law; thus, criminal activity is sinful and detrimental for both the individual and for society at large. Islamic Law commands that detrimental and degrading activity be removed from society, and it is the responsibility of the political authority to apply all the necessary and lawful measures needed to do so. One of these measures is to appoint an official body to represent the public in prosecuting criminal offences before the court of law. The activity of this official body is carried out on behalf of society at large as well as on behalf of the victim of the crime.

The hearing:

Before the judge can hear the testimony of the plaintiff and defendant, he must subpoena the defendant to appear in court. The defendant can be forcibly brought to court if he refuses to come of his own accord. When both litigants are present in the courtroom, the

judge must put them both on an equal footing, seating them both before him in a way that he can clearly hear their testimony and they can easily hear him.

It is the responsibility of the judge to treat the litigants equally in every possible way. This includes the way he looks at them, addresses them, and deals with them. He should not smile at one and frown at the other. He should not show more concern for one than he does for the other. He should not address one of them in a language that the other cannot understand if he is able to speak in a language known to both litigants.

It does not matter who the litigants are. The judge must put them on an equal footing, even if they are father and son, the Caliph and one of his subjects, or a Muslim and a disbeliever.

The judge begins by exhorting the litigants not to give false testimony. He then proceeds to ask the plaintiff to present his case and orders the court clerk to record it. If the case is invalid, the judge will then throw it out of court. If it is valid, the defendant will then be asked to respond. The defendant’s response will fall under one of the following three categories:

1. Acknowledgment: If the defendant acknowledges the plaintiff’s claim, his acknowledgment will be recorded and he will be ordered to fulfill the plaintiff’s claim.

2. Denial: If the defendant denies the plaintiff’s claim, then the plaintiff is requested to prove his case by producing his witnesses or presenting other evidence. If he fails to do so, or if his evidence is unacceptable, then the defendant will be asked to take an oath. If the defendant does so, the plaintiff’s case will be rejected. If the defendant refuses to do so, then the judge will rule in favor of the plaintiff.

3. Refusal to testify: If the defendant refuses to testify, the judge will rule in favor of the plaintiff.

Generally, court hearings are open to the public. If, however, the judge sees it in the best interest of those concerned to exclude the public, he may do so, even to the exclusion of the court officials, keeping before him only the litigants themselves. This is allowed in cases where the issue at hand is of a nature best kept secret, like scandalous behavior between men and women. It is also allowed in absurd situations that could incite the public to laughter if they were to attend.

Proving a case:

When a person takes his case before the court, he will first be asked to present his case. Then the defendant will be questioned. If he acknowledges the plaintiff’s claim, the judge will rule in favor of the plaintiff. If he denies it, then the judge will ask the plaintiff to bring his evidence (witnesses, for example). If the plaintiff successfully proves his case, then the judge will rule in his favor. If he fails to do so, the defendant will be asked to testify under oath. If he does so, the judge will rule in the defendant’s favor. If the defendant refuses to do so, the judge will rule in favor of the plaintiff who will be asked

to give his statement again under oath. This will be dealt with in greater detail later on, Allah willing.

A case may be decided through the defendant’s confession, evidence provided by the plaintiff (like witnesses of good character), or by the defendant’s oath. There are also other means of establishing a case. These are dealt with in the books of Law and Judicial Procedure. We shall deal briefly with each of these:

1. Confession: This is to admit someone else’s right over oneself, even if this right will only come into existence in the future. The confession should include wording that clearly establishes the other’s right. For example: “I owe so-and-so a thousand dollars.” An unambiguous gesture or a statement in writing can substitute for a verbal confession if the defendant is incapable of speech.

A confession is the strongest type of proof. Its validity is established by the Quran and Sunnah. In spite of this, it is limited in scope to the confessor himself. No one else is can be held liable on account of his confession, because he is responsible only for himself.

The one who gives a confession must be a sane adult and must not be under duress or intoxicated. The confession itself must not be rationally or legally impossible. For example, if a person admits paternity of another who is older than himself or if the son of a deceased person admits to deserving a share of inheritance equal to that of his sister’s share, these confessions will be invalid. The first one is invalid because it is rationally impossible; the second because it runs contrary to the laws of inheritance.

Another party may only benefit from the confession if he is a person who is legally eligible to the rights that it entails. Otherwise, the confession will not benefit him. For example, if a person confesses that he owes so much money to an animal or a building, that animal or that building will receive no benefit from it, because they are incapable of owning money unless there is a statutory entity involved like an endowment or a corporation.

If the beneficiary of the confession is entitled to receive the benefits, it must not be established that the one who gave the confession lied when he did so.

If all these conditions are met, the one who gave the confession is legally liable for whatever it entails of transfer of property of retribution. Retracting his confession at this point will do him no good, unless he had confessed to a crime having a prescribed legal punishment, like fornication or theft. If he retracts his confession, he will not be liable for the punishment. Nevertheless, any property that he confessed to stealing must still be returned.

2. The testimony of witnesses: This is a true statement given in form of testimony establishing someone’s right upon another. It is termed evidence, because it makes evident what is actually going on and shows the truth in a matter under dispute. For the testimony of a witness to be accepted, it must fulfill the following conditions:

A. The witness must be a sane, adult Muslim of good character whose testimony is not suspect on account of being a relative or enemy of one of the litigants. He must also have direct knowledge of the matter that he is testifying about.

B. The claim must be one already presented by the plaintiff. This is to avoid a person acting simultaneously as a witness and a plaintiff. The exception to this is where the witness is acting as an officer of the Hisbah (a government agency that maintains public morality and commercial fair play) and the claim is in the domain of Allah’s rights – criminal cases like the punishment for fornication, drinking, theft, and highway robbery – and not in the domain of civil disputes.

C. The plaintiff must call the witness to testify. The witness cannot be called by someone else.

D. The judge must give the witness permission to testify.

E. The witness must use the words “I testify…” at the beginning of his testimony. Other phrases like “,em>I know…” and “I realize…” are unacceptable.

F. The witness must limit his testimony to exactly what the plaintiff claimed.

G. The witness must state specifically what he is testifying. It is not acceptable for him to say something like: “I testify to what the other witness testified to.”

H. The witness must relate to the judge exactly what he saw or heard without offering any inferences, because such inferences are part and parcel of the judgment that is in the exclusive domain of the judge and the result of his deliberations.

I. If the judge has doubts about the witnesses, he has the right to separate them and question them individually. If they differ, their testimony will become invalid. If their testimony is the same, it will be accepted if the good character of each of them has been properly established.

J. The number of witnesses must reach the number required by law for the case at hand. For example, the minimum number of witnesses required for establishing an act of fornication is four Muslim men of good character.

As for the rest of the criminal offences, like slander, theft, highway robbery, drinking, and apostasy, as well as for cases of retribution, a minimum of two male witnesses of good character is required. For marriage, divorce, resumption of marriage and similar issues, the testimony of two men or one man and two women is needed.

For matters relating to property, like debt, property damage, blood money, and commercial transactions, it is agreed by the jurists that at least two male witnesses or one male and two female witnesses are required.

To establish parentage, nursing, or defects on a woman’s body, the testimony of women alone is sufficient.

3. Knowledge of the judge: The question is: is it allowed for a judge to base his decision on knowledge that he has from before the case is brought before him? For example, a judge heard a man divorce his wife, and then the case is brought to court with the man claiming he did not divorce her. The answer is that a judge is not allowed to pass judgment on this basis, because Allah’s Messenger (peace be upon him) said:

You come to me with your disputes, and perhaps some of you present your cases more eloquently than others; so, if I give a judgment in his favor because of his testimony whereby he takes what rightfully belongs to his brother, then I am merely giving to him a piece of the fire of Hell, so he should not take it.

This hadîth makes it clear that the judge may only use the evidence legally recognized in a court of law, like confession and the testimony of witnesses. He may not pass judgment on the basis of his personal knowledge.

4. Factual evidence: The jurists recognize factual evidence as a means of establishing a case and as a basis for passing judgment. Some of them have made unambiguous statements to the effect that this form of evidence can be relied upon. Others have based legal judgments upon such evidence without openly stating that such evidence is valid. For this reason, the Mâlikî jurists allow the punishment of fornication to be given to an unmarried woman who becomes pregnant and the punishment for drinking to be given to a person who regurgitates wine.

Passing Judgment

We have already mentioned that the judge takes for himself a council of scholarly advisors to consult when deliberating on a case. This consultation is encouraged, even if the judge is an eminent scholar in his own right, because of the guaranteed benefits that it provides. They may be able to point out to him details of the case that he had overlooked.

Moreover, the judge is supposed to be prompt in offering his judgment after the case with all its evidence is presented to him, he consults his advisors, and the outcome becomes clear. The purpose for appointing a judge in the first place is to resolve people’s disputes and put an end to their conflicts. The quicker a proper judgment can be given, the quicker people can receive what is rightfully theirs.

The judge – or the clerk of the court under his direction – records in writing the details of the case and the evidence of both litigants in an official report. When the verdict is added to it, it becomes part of the court register. Two copies are then made of it.

It is preferable for the judge to invite the litigants to settle the issue between themselves amicably before pronouncing the verdict, even if he has already arrived at the correct verdict. If they agree to settle it themselves, then it is better for him not to pronounce the verdict unless it becomes clear that their reconciliation is hopeless. The reason for this is that a court decision is likely to bring about hatred and resentment between the litigants, so the judge should make every effort to avoid it whenever possible.

The judicial system in Islam has unique features that have never occurred in any other judicial system in history, past or present, or even those that might exist in the future. The judicial system in Islam enjoys an absolute purity and brilliant simplicity, free from complications and unnecessary formalities and far removed from being domineering and authoritarian. It allows the litigants the freedom to defend their rights without fear of reprisal. It is also distinguished by the exemplary conduct of is judges who fear Allah and hope to avoid His punishment in the Hereafter.

An hour of justice is better than sixty years of worship. The Andalusian king al-Muntasir Billah, said: “The greatest calamity that can afflict the kingdom is not as serious as what afflicts it when a just judge dies, because the death of one of the generals or ministers does not affect the life of the masses the way that the death of a just judge does.”

We are still discussing the Islamic judicial system and its most salient feature: justice. It would be nice to close off this article with the following story that shows the concern Islam has for justice, even in dealings with Non-Muslims in times of war.

`Umar wrote to his appointee in Iraq to appoint a judge especially for the people there (similar to an appellate judge of today). He appointed for them a judge by the name of Jamî` b. Hâdir al-Bâjî.

This judge heard the people’s complaints about a general named Qutaybah. The judge ordered the Muslim army to evacuate Samarqand and have the inhabitants of Samarqand return to their fortresses. Then Qutaybah would openly declare war on them before attacking. If they then refused to obey, he would attack them viciously.