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_19 _January _2015åÜ ÇáãæÇÝÞ 19-01-2015ã, 04:51 PM
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.
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. 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.
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.
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.
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.
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. 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.
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.
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.