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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