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ISLAMIC MEDICAL EDUCATION RESOURCES 04

0005-ETIQUETTE OF THE JUDGE (ADAB AL QADHI)

Background reading material for medicine & fiqh panel discussion held at the Kulliyah of Medicine, International Islamic University, Kuantan on 13th May 2000 by Professor Omar Hasan Kasule Sr.

OUTLINE

1.0 ATTRIBUTES OF THE JUDGE (KS 425 Bukhari K93 B16)

A. Civil Status

B. Character

C. Knowledge

D. Health

E. Communication

 

2.0 COURT ETIQUETTE

A. Psychological And Emotional State

B. Equal Treatment Of The Litigants

C. Physical Facilities

D. Scheduling Of Hearings

E. Length Of Hearing

 

3.0 JUDICIAL BIAS

A. Biased Judge, Al Qadhi Al Jair

B. Bribery And Influence

C. Nepotism

D. Personal Interest

E. Others

 

4.0 FINANCIAL COMPENSATION

A. Obligation Of Judgeship

B. Payment For The Services Of The Judge, Ajr Al Hukm

C. Payment To The The Judge, Ajr Al Qadhi

 

5.0 JUSTICE and MERCY

 

1.0 ATTRIBUTES OF THE JUDGE (KS 425 Bukhari K93 B16)

A. CIVIL STATUS

Muslim male

Legally competent

Legally responsible, mukallaf

Full civil liberties (ie not imprisoned or confined in any way)

 

B. CHARACTER

UPRIGHT CHARACTER, ‘ADL

 

BALANCED PERSONALITY

 

LACK OF PERSONAL AMBITION FOR THE POSITION OF QADHI

Avoiding working as a qadhi, al tahayyub min wadhiifat al qadhi (KS 426: Tirmidhi K14 B1)

 

Ibn Omar refused position of judgeship, rafdh Ibn Omar al qadha (KS 426 Tirmidhi K13 B1, Ahmad 1:66)

 

Position of Salman al Farisi about judgeship, mawqif Salman al Farisi min al qadha (KS 426: Muwatta K3 H77)

 

Appointing those who do not seek judicial office, (KS 426 Tirmidhi K13 B1; Nisai K49 B4, Ibn Majah K13 B1, Ahmad 3:118, 220; Ahmad 5:181

 

KNOWLEDGE

Ability to use ijtihad to extract legal rulings from their original sources and not following others, taqliid

 

D. HEALTH

Sound hearing

Sound sight

 

E. COMMUNICATION

Ability to communicate verbally

 

2.0 COURT ETIQUETTE

A. PSYCHOLOGICAL and EMOTIONAL STATE

No judgment in a state of anger (MB 2204; KS 425: Bukhari K93 B13, Muslim K30 H16, Abudaud K23 B9, Tirmidhi K13 B7, Nisai K49 B18, 32; Ibn Majah K13 B4; Ahmad 5:36-39, 46, 52; Tayalisi H860)

 

No judgment when in physiological stress for example due to hungerm thirst, physical exhaustion, mental exhaustion, irritating weather

 

No judgment when in stress due to disease such as pain, anxiety, depression

 

B. EQUAL TREATMENT OF THE LITIGANTS

The litigants are equal in status before the judge (KS 426: Abudaud K23 B8, Ahmad 4:3)

No judgement before listening to both sides in the dispute (KS 426: Abudaud K23 B6, Tirmidhi K13 B5, Zaid  H 680, Ahmad 1:90, 90, 111, 150; Tayalisi H125)

 

Judging by justice, ‘adl (p 342 2:213, 4:35, 4:58, 4:65, 4:105, 5:42-45, 5:47-49, 5:95, 21:78-79, 38:22, 38:26, 42:10)

 

No intercession by anyone for one of the litigants

 

C. PHYSICAL FACILITIES

The court should not be held in the mosque because some litigants are insane with behavior inappropriate for a mosque

 

The atmosphere of the court should command respect: tranquil, sombre, and with gravity

 

The judge should have a secretary to record the proceedings. The secretary must be a Muslim with the ability to record all proceedings fully and accurately

 

D. SCHEDULING OF HEARINGS

First come first served basis

 

E. LENGTH OF HEARING

The judge can postpone the hearing to consult others

Decisions can be postponed when not sure

 

3.0 JUDICIAL BIAS.

A. BIASED JUDGE, al qadhi al jair

Being a judge is a difficult responsibility (KS 426: Abudaud K23 B1, Ibn Majah K13 B1

Description (KS 426: Abudaud K23 B2, Ibn Majah K13 B2)

Accountability of the judge on the Last Day (KS 426: Ahmad 1:340, 6:75, Tayalisi H1546

Reward and punishment for judges (KS 426: Abudaud K23 B2, Tirmidhi K13 B1, Ibn Majah K13 B3)

 

B. BRIBERY and INFLUENCE

A judge can not receive gifts from litigants or potential litigants

A judge can not accept entertainment

A judge can not borrow articles for temporary use

 

C. NEPOTISM

Judge can not decide cases involving close relatives

Judge can not decide cases involving his associates in business

 

D. PERSONAL INTEREST

 

4.0 FINANCIAL COMPENSATION

A. OBLIGATION OF JUDGESHIP

The position of judge is a communal obligation, fardh kifai. If one person discharges the responsibility, the rest of the community is absolved from the responsibility. If nobody discharges the responsibility, the whole community is committing a sin.

 

The ruler may appoint a judge

 

Any two disputants can reach mutual agreement to select a knowledgeable person to be a judge between them

 

B. PAYMENT FOR THE SERVICES OF THE JUDGE, ajr al hukm

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 spend seeking sustenance for himself and the family

 

Ajr al hukm (KS 426: Bukhari K96 B21; Muslim K30 H15; Abudaud K23 B2; Tirmidhi K17 B2; Nisai K49 B3; Ibn Majah K13 B3

 

C.  PAYMENT TO THE THE JUDGE, ajr al qadhi

Ajr al qadhi (KS 426 Ahmad 2:187, 210; Ahmad 4:198, 203, 205; Ahmad 5:26, 414; Tayalisi H78

 

D.

 

E.

 

5.0 JUSTICE and MERCY

A. JUSTICE FOR ENEMIES, al adl ma’a al khusuum

 (p. 794 2:194, 5;2, 5:8, 5:42, 16:126, 22:60, 42:40, 60:8)

 

B. CHANGE OF MIND

The judge can change his decision on conviction if he gets new evidence from the Qur’an or sunnat or when additional witnesses are called

 

C.

 

D.

 

E.

 

DISCUSSION

Age of the judge and intellectual competence in view of development of dementia

Judge as a witness

Medical assessment of physical fitness for the position of a judge: vision and hearing

Psychiatric assessment of mental health of the judge

Personal physician of a judge as a litigant

Professor Omar Hasan Kasule sr. May 2000