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ISLAMIC MEDICAL EDUCATION RESOURCES 04

29.3 ETIQUETTE OF THE JUDGE, adab al qadhi

By Professor Omar Hasan Kasule Sr.

29.3.1 ATTRIBUTES OF THE JUDGE

The judge must be a Muslim, male, legally responsible, mukallaf, with full legal competence, ahliyyat kaamilat, and full civil liberty, of upright character, ‘adl, of mature and balanced personality, with no ulterior motives, sufficiently educated and knowledgeable about the Law, able to use ijtihad to extract legal rulings from original sources, physically and psychologically healthy, of sound hearing and sight, able to communicate verbally in the language used in the court.

 

29.3.2 COURT ETIQUETTE

Judgment is not made when the judge is in a state of anger, physiological stress, physical or mental exhaustion. The litigants are equal in status before the judge. No judgment is made before listening to both sides in the dispute. A judge will have to excuse himself if his personal physician or a member of his family is one of the litigants. The atmosphere of the court should command respect: tranquil, somber, and with gravity. The secretary records proceedings. Cases are scheduled on a first come first served basis unless there is an emergency situation. The judge should not be hasty in judgment. He can change his decision if he gets new evidence

 

29.3.3 JUDICIAL BIAS.

A judge cannot receive gifts, entertainment, or borrow from anyone in the community because one of them could become a litigant at some time in the future.. Judge cannot decide cases involving close relatives, business associates. Judge cannot decide cases involving his associates in business

 

29.3.4 FINANCIAL COMPENSATION

The position of judge is a communal obligation, fardh kifai. The ruler may appoint a judge. Any two disputants can reach mutual agreement to select a knowledgeable person to be a judge between them. The position of the judge is a communal responsibility that carries no financial compensation. Payments are made to the judge in lieu of the time that could have been spending seeking sustenance for him and the family.

 

29.3.5 JUSTICE and MERCY

The judge must be objective and just even if he is presiding over a trial of opponents. The judge must maintain due equilibrium between the requirements of justice and mercy. The impact of the judgment and the punishment on the accused and the family must be considered alongside with the requirements of justice.

(c) Professor Omar Hasan Kasule Sr. 2004