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ISLAMIC MEDICAL EDUCATION RESOURCES 04

0103-ETIQUETTE OF THE JUDGE, (ADAB AL QADHI)

Lecture for 3rd year medical students on 24th March 2001 by Professor Omar Hasan Kasule Sr.

OUTLINE

A. ATTRIBUTES OF THE JUDGE (KS 425 Bukhari K93 B16)

Civil status

Character

Personal ambition

Knowledge

Health

Communication:

 

B. COURT ETIQUETTE

Psychological and emotional balance of the judge

Equal treatment of the litigants

Physical facilities:

Scheduling of hearings:

Length of hearing:

Change of mind

 

C. JUDICIAL BIAS.

Biased judge, al qadhi al jair

Bribery and influence

Nepotism

Personal interest

 

D. FINANCIAL COMPENSATION

Obligation of judgeship

Payment for the services of the judge, ajr al hukm

 

E. JUSTICE and MERCY

Justice for enemies, al adl ma’a al khusuum

Balance of justice with mercy

 

A. ATTRIBUTES OF THE JUDGE (KS 425 Bukhari K93 B16)

CIVIL STATUS

The judge must be a Muslim male who is legally responsible, mukallaf. He must have complete legal competence, ahliyyat kaamilat. He must have full civil liberties ie not imprisoned, confined, or restricted in any way.

 

CHARACTER

The judge must be of upright character, ‘adl. His personality must be mature and balanced. Being a judge is a difficult responsibility (KS 426: Abudaud K23 B1, Ibn Majah K13 B1). Only those with the stamina to perform this difficult task should be appointed to be judges.

 

PERSONAL AMBITION

The best judge is one who has no personal ambition or ulterior motives for seeking the position of judgeship. The best of judges are those who avoid the office of judge, al tahayyub min wadhiifat al qadhi (KS 426: Tirmidhi K14 B1). Ibn Omar refused the position of judgeship, rafdh Ibn Omar al qadha (KS 426 Tirmidhi K13 B1, Ahmad 1:66). Salman al Farisi had a disinterested position about judgeship, mawqif Salman al Farisi min al qadha (KS 426: Muwatta K3 H77). Only those who do not seek judicial office should be appointed (KS 426 Tirmidhi K13 B1; Nisai K49 B4, Ibn Majah K13 B1, Ahmad 3:118, 220; Ahmad 5:181)

 

KNOWLEDGE

The judge must be sufficiently educated and knowledgeable about the Law. They must have the ability to use ijtihad to extract legal rulings from their original sources and not be followers of others, muqallid.

 

HEALTH

A judge must be physically and psychologically healthy. He must be of sound hearing and sight.

 

COMMUNICATION:

The judge must be able to communicate verbally in the language used in the court.

 

B. COURT ETIQUETTE

PSYCHOLOGICAL and EMOTIONAL BALANCE OF THE JUDGE

Judgment is not made when the judge is 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). The judge cannot make judgment when in physiological stress for example due to hunger, thirst, physical exhaustion, mental exhaustion, or irritating weather. In the same way no judgment is carried out when the judge is in stress due to disease such as pain, anxiety, or depression

 

EQUAL TREATMENT OF THE LITIGANTS

The litigants are equal in status before the judge (KS 426: Abudaud K23 B8, Ahmad 4:3). No judgment 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). There is no consideration of the status of the litigants apart from 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 is allowed by anyone for one of the litigants

 

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, somber, 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

 

SCHEDULING OF HEARINGS:

Cases are scheduled on a first come first served basis unless there is an emergency situation that requires an immediate judicial decision.

 

LENGTH OF HEARING:

The judge should not be hasty in judgment under pressure of time. He can postpone the hearing to consult others or to obtain more facts about the case or legal sources. The judge can postpone issuing judgment when not sure.

 

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. JUDICIAL BIAS.

BIASED JUDGE, al qadhi al jair

The sunnat has mentioned the biased judge (KS 426: Abudaud K23 B2, Ibn Majah K13 B2). Judges will face accountability on the Last Day (KS 426: Ahmad 1:340, 6:75, Tayalisi H1546. There will be reward and punishment for judges according to their performance (KS 426: Abudaud K23 B2, Tirmidhi K13 B1, Ibn Majah K13 B3)

 

BRIBERY and INFLUENCE

A judge cannot receive gifts from litigants or potential litigants. A judge cannot accept entertainment from any litigant. A judge cannot borrow articles for temporary use from the litigants. Since anybody in the community could become a litigant at anytime in the future, the judge should be careful not to accept gifts from anybody whether a litigant or not.

 

NEPOTISM

Judge cannot decide cases involving close relatives. Judge cannot decide cases involving his associates in business.

 

PERSONAL INTEREST

A judge should not preside over a trial whose outcome affects his personal interests.

D. FINANCIAL COMPENSATION

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.

 

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 spending seeking sustenance for him and the family. The sunnat has provided guidelines on compensation of judging ajr al hukm (KS 426: Bukhari K96 B21; Muslim K30 H15; Abudaud K23 B2; Tirmidhi K17 B2; Nisai K49 B3; Ibn Majah K13 B3) and the salary of the judge, ajr al qadhi (KS 426 Ahmad 2:187, 210; Ahmad 4:198, 203, 205; Ahmad 5:26, 414; Tayalisi H78).

 

E. JUSTICE and MERCY

JUSTICE FOR ENEMIES, al adl ma’a al khusuum

The judge must be objective and just even if he is presiding over a trial of opponents (p. 794 2:194, 5:2, 5:8, 5:42, 16:126, 22:60, 42:40, 60:8)

 

BALANCE OF JUSTICE WITH MERCY

The judge must maintain due equilibrium between the requirements of justice and mercy

Professor Omar Hasan Kasule Sr. March 2001