Adab Al-Qadi

ADAB AL‑QADI

By TANZIL‑UR‑RAHMAN M.A., LL.B., Advocate, Karachi

`Adab al‑Qadi' is a term that is constituted of the two words 'Adab' and `Qadi'. The word `Adab' literally means civility and decorum. It indicates modes of behaviour and discipline of the mind and manner in the conduct of one's life by which he is trained in any excellence or profession. It sets forth praiseworthy qualities and dispositions of a man in profusion and demands of him to shun those aspects of conduct that are evil. ^Lanes Arabic‑English Lexicon, London 1863, Book I, Part I, pages 34‑35^. `Qadi' in common parlance, means a `Judge'. In modern legal context, the word `Judge' denotes a person or a body of persons officially designated as judge or judges, empowered bylaw to adjudicate and deliver, in any legal proceeding, civil or criminal, judgment, which is final if not appealed against. ^Pakistan Penal Code, 1860, S. 19.^ In Mujallah, Qadi has been defined as a person who is appointed by the sultan to adjudicate claims and disputes between people and parties according to Shara ^Ottoman Majallah; S. 1785:^.' In Shara, a Qadi is a person who is appointed by the ruler to determine the disputed rights and liabilities of the litigants, civil or criminal, and to adjudicate in the matters of marriage, divorce, maintenance and inheritance, to look after the interests of orphans and to manage public trusts. The term "Adab al‑Qadi", as a whole, therefore, means the etiquette and the rules of discipline or code of conduct, which a judge has to maintain in the performance of his duties as, a judge.

Islam in the first and foremost place, enjoins a Qadi to administer justice. "And when ye judge, between men, judge with justice", says the Qur'an (IV .58). ^The Holy Qur'an, Surat al‑Nisa', Verse 58:^ At another place, the Qur'an tells us that God addressing the prophet David, had asked him to deal out justice among men. "O'. David, we did indeed make thee a vicegerent on earth, so judge thou among men in truth (i.e. justice) and don't follow thou thy desires." (XXXVIII:26)^The Holy Qur'an, Surah Sa'ad, Verse 26:^ Again, the Qur'an addressing the .believers in general calls upon them to be always fair in dealing with the affairs of men. Whenever a believer is called upon to give evidence he should be particular that no indignation against a person, however provocative or justifiable in itself, should incite him to deviate from the path of justice. God bids that justice, which is the highest form of piety, be dealt out evenly (V:9). ^The Holy Qur'an, Surat‑al‑Maidah, Verse 9:^ Al‑Sarakhsi describing qada, as the best form of worship has stated "after faith in God, there is nothing more obligatory than a just decision."^AI‑Sarakhsi, Shams al‑Din (d. 482 A. H.) al‑Mabsul: (Carlo. 1324 A. H.) Vol. XVI, page 59^

In pre‑Islamic Arab society there existed a tribal system of judiciary. Generally, the head of the tribe used to act as a judge in matters of disputes among his people. There also used to be `hakams' in the tribes who used to act as such and decide the matter laid before them according to their intelligence, wisdom and custom. ^Arif al‑Kindi, A1‑Qada fi'1 Islam. (Damascus, 1361 A.H.), page 6.^ There were also arbiters (hakams) in inter‑tribal disputes: In the early days of Islam the contesting parties used to bring their disputes and differences for decision before the Prophet. There is a famous hadith' quoting the Prophet as saying, "Many of you come to me and I give decision. It may happen that sometimes one party is more eloquent than the other and thereby obtains a decision against his brother. Such a person obtains, (instead of a decision in his favour), a piece of fire. He ought not to accept it. ^Al‑Nasal, Sunan, (Arabic) (Karkhana‑i‑Tijarat‑i‑Kutub; Karachi) Vol. II, page 265.^ The Prophet, assigning the duties of qada' of Yaman to Mu'adh b. Jabal, inquired of him as to how he would proceed with the decision in cases before him. Mu'adh replied: "By the guidance of Kitab Allah". The prophet said, "if you do not find anything to guide you in Kitab Allah, what would you do then?" Mu'adh replied, "The guidance would then be taken from the Sunnah of the Prophet". The Prophet next inquired, "What would you do if you do not find any provision either in Kitab Allah or in the Sunnah?" Mu'adh replied, "I would, then, come to a decision by my own lights". It is said that the Prophet placed his hand on his breast and said, "Thank Allah who showed the true light to my representative and made him adhere to the, principles to which I am agreeable.^Abu Daud, Sunan, (Arabic) (Karkhana‑i‑Tijarat‑i‑Kutub, Karachi) Page 505.^ A number of other traditions of the Prophet are also narrated but barring few they generally deal more with the moral aspect of human conduct than with the particular rules of the administration of justice. Abu Bakr, could not get time to set up a , separate branch of judiciary. The wall performed the functions of a qadi as well. It was only during the time of 'Umar that the judiciary came to be separated from the executive. Qadis were appointed and judicial powers were assigned to them. ^Ibn‑i‑Khuldun, Muqaddimab, English Translation, Rosenthal, Vol. I, page 452.^ The letter of 'Umar, said to have been written by him to Abu Musa al‑Ash'ari, for the first time distinctly lays down the principles of administration of justice in Islam. Ibn i‑Qayyim, while discussing the letter in his book I'lam‑al‑Mawaqqi in has considered the principles contained in the said letter to be the basis of the Islamic administration of justice and a code for the qadi.^Mohammad ibn Abu Bakr Ibn‑Qayyim. I'lam al. Muwaqqein, (Delhi 1314 A. H.) Vol. 1; pages 30‑31^

The right of appointing a qadi vests in a sultan. It is rather obligatory on him to appoint Qadis. ^al‑Kasani, Bada `i' al‑Sana `i' (Egypt, ‑1328 A. H,) Vol. VII, page 2^ He may, however, delegate his power to a wall of a province. The appointing authority must see that a highly eligible person alone is put into the office of a qadi. The Prophet enjoins, "He, who confers a post on some one in preference to a better qualified person, betrays the trust placed in him by God, His Prophet and the Muslim Community." ^Bayhaqi, al‑Sunan al‑Kubra (Deccan) chapter on Amarat.^ It is enjoined that: A qadi must be a sane, wise, just and honest Muslim, he should be fully conversant with correct procedure and law; must be. capable of deciding disputes according to the tenets of the Shara; he must not be a minor; he must not be hot tempered, blind or deaf; and he must possess the necessary qualifications of a witness. ^Burbamuddin al‑Marghinani (d. 593 A. H.) Al‑Hidayah (Delhi 1375 A. H.) English Translation by Charles Hamilton (Lahore 1957 A. D.) Page 304. Ottoman, Majallah, Ss. 1792‑94.^

Whether a woman is considered competent to be appointed as a qadi is a controvertial question among the different schools of Islamic law. Malik, al‑Shafi'i and Ahmad b. Hanbal are reported to be of the opinion that a woman is incompetent to hold the post of a qadi, while Abu Hanifah takes a different view. According to the latter a woman can be appointed to act as qadi only in those matters wherein the evidence of a woman is held as admissible in law, vie., in cases other than those of hudud and qisas. Tabri is said to be of the opinion that the Qada of a woman is competent in all matters. The view of the former that a woman is incompetent to hold the post of a qadi draws its support from the fact that qada' is a part of imamah, for which according to them, a woman is not eligible. ^al‑Mawdrdi (d. 450 A. H ) Ahkam al‑Sultainyah (Egypt 1298) Pages 61‑62 Ibn‑i‑Rushd (d. 595 A. H.) Bidayat‑al‑Mujtahid (Egypt 1379 A. H.) Vol. II Page 460^. In this respect, the contrary view of Abu Hanifah is more liberal.

At Shafi'i considers it absolutely necessary that a qadi be a mujtahid i.e., capable of exercising independent and original thinking in legal questions, whereas according to Abu Hanifah to be a mujtahld is merely considered commendable. The post classical view is that if Qadi is a mujtahid, it is merely preferable but not indispensible ^Burhamuddin al‑Marghinani (d. 593 A. H.) Hidayah (Delhi 1375 A. H.) English Translation by Charles Hamilton (Lahore 1957 A. D.), page 334.^ What is really required of him is that he ought to be, beyond all doubt, a person of high integrity and trust‑worthiness. He must possess wisdom, intelligence and deep knowledge of the provisions of fiqh and sunnah."

While coming to decisions in cases before him a Qadi has to bear in mind both the commandments of God and the teachings of the Prophet. Where there is no hadith, applicable to the point, the qadi has to rely on the ijma of the Companions. If he finds a difference of opinion among them on the point in question he should choose the best view. If the qadi fails to find an ijma of the tabin or Successors, he must decide accordingly. In the event of difference of opinion among the tabiun, he must choose the best view. ^Fatwa‑i‑Alamgiriyah (Arabic) (Cawnpore) Vol. III, pages 143‑144.^ In case he is not a mujtahid he must seek a fatwa. After getting one suitable to the case, he must come to the decision in accordance with that fatwa.

Where there is no nass or clear text either from the Qur'an or the Sunnah, (of the Prophet and his Companions by ijma) a qadi ought to resort to ijtihad employing qiyas. The fear of committing error must not deter him from this recourse. If a qadi, in his ijtihad commits error, according to Abu Hanifah, there is no harm done. A qadi's endeavour to reach the truth by employing the process of ijtihad, is a sufficient credit for him. It is said that the Prophet told 'Amr b. at. 'As that in resorting to ijtihad there were two rewards, one for the effort of ijtihad and the other for achieving what was attempted, by having recourse to ijtihad. If in that process some error creeps in there is no sin laid upon him. ^Abu‑Daud, Sunan (Arabic) (Karkhana‑i‑Tijarat‑i‑Kutub, Karachi), page 503.^

A court‑room should be spacious and open. The Qadi's seat should be so arranged as to have the faces of the litigants towards the Qiblah. ^Fatwa‑i‑Alamgiriyah (Arabic) (Cawnpore), Vol. III, page 148.^

A qadi, while entering the court‑room, may give a general salutation to all present in the court. After taking his seat, no offering of a particular salutation should take place between him and the litigants. If someone in particular does salute him, he, in his discretion, may reply wa alaykum al‑salam and say nothing more. ^Ibid,, page 147^

A Qadi ought to conduct his day's business in open court. It is desirable that before entering the court room, he offers two or four rak ats of nafi prayers seeking from God wisdom and courage in ad?ministering justice. ^Ibid.^

A qadi must not engage himself in his judicial work during a state of anger and fury. ^Al‑Bukhari, Sahib, (Delhi 1357 A. H.), Part XXXIV, pages 1059‑60.^ He must abstain from such engagements till he regains his normal state. He is, likewise, forbidden to act when he has over‑fed or is hungry. ^Fatawa‑i‑Alamgiriyah (Arabic) Cawnpore, Vol. III, page 150.^

A Qadi should lend his support to, the parties in effecting a compromise between themselves. No compromise, however, can be allowed to be made if it, has the effect of turning a halal act into a haram. ^Abu‑Daud, Sunan, (Arabic) (Karkhana‑i‑Tijarat‑i‑Kutab, Karachi), page 506^ Such a compromie, if effected, would be ab initio null and void.

In Islamic law, powers, duties and rules of conduct connected with the office of qada have not been laid out in a regular form. They were laid out and defined by different caliphs in their time as and when required. The principles have been deduced from the cases laid before, and decided by, different qadis of their time which were accepted and approved by long practice and usage. Muslim jurists, in pursuance of the attainment of the objective of justice, have also laid down general instructions and elaborate rules which are to be observed by a qadi. These are termed "Adab al‑Qadi", and can be found in any comprehensive work of fiqh e.g. al‑Sarakhsi's al‑Mabsut, al‑Kasani's Bada i al‑Sana'i, al‑Marghinani's al‑Hidayah, Ibn Rushd's Bidayat al‑Mujtahid; al‑Hilli's Shara'i al‑Islam al‑Nasafi's Kanz‑al?Daqa'iq, Radd al‑Muhtar by Ibn Abidin, the Fatawa‑i‑Alamgiri and the Ottoman Majallah. Besides, the works on Akham al‑qada also deal with this subject, for instance, al‑Hukkam by Abu 'I‑Abbas Ahmad Bakhtiyar al‑Wasiti, Lisan al‑Hukkam by Abu `1‑Walid known as Ibn al‑Shahnah, Moin‑al‑Hukkain by Muhammad A1 Husaini, Al Qadi fil Islam by Arif al‑Kindi, T'arikh al‑Qada' fi 'I‑rslam by Mahmud b. Muhammad b. Urnus al‑ Qada' fi 'I‑Islam by Sayyid Muhammad Sangalchi and, perhaps, the most exhaustive book on the subject, Jami al‑Fusulayn by Muhammad b. Isra'il known as Ibn Qadi Samawanah. In the following pages we intend to summarize the rules enumerated in the above works with special reference to al‑Mabsut of al‑Sarakhsi.

A qadi should show no fear or favour in the exercise of his powers or performance of his duties He must not be influenced by feelings, aspira?tions or resentments of the parties concerned. This would deter him from doing justice and make him incur the displeasure of God. If a qadi, after delivering judgment, finds in the light of Qur'an, sunnah or ijma that he has erred m coming to a decision, it becomes incumbent upon him to revise his earlier decision, in as much as reversion to truth is better than the retention of falsehood.

If a qadi finds himself hesitant or reluctant to come to a decision on certain points involved in the case before him, he should postpone his decision till he is definite and clear about them.

The role of a qadi must be such as to enhance the prestige and dignity of the court, to impress the litigants, and to make them desist from exceeding their proper limits, but he must not behave in a manner which may deter the litigants from presenting their cases with an unintimidated exposition of arguments.

A qadi should give no precedence to any litigant, however, high or low his station in life may be. However, travellers and persons hailing from far off places may be given precedence.

A qadi; on the presentation of a complaint before him, should give enough time to the plaintiff to produce his witnesses in support of his claim and on the close of the plaintiff's case, the defendant should be provided the opportunity of meeting the plaintiff's case. In the process of deciding a case a qadi should allow neither haste nor delay. Haste affects adversely the defendant's defence, while delay prejudices the plaintiff. The procedure and the time should be as far as possible evenly balanced between the contesting parties.

A qadi, on the presentation of a case and the appearance of the parties before him, must acquaint himself, first, with the facts of the case. He should, then, proceed to give a patient hearing to the parties and their witnesses. He should carefully listen to the statements of the witnesses made before him, as it often happens that the truth hovers on the tip of the tongue of the witnesses under examination. It is said that, according to Abu Hanifah and Muhammad al‑Shybani, a qadi must not converse with a witness when he appears before him for deposing. He should hear carefully whatever the witness deposes and take it down with accuracy. Abu Yusuf, however, is stated to have said, "There is no harm if a qadi counsels the witness as to how he should depose. It is possible that on appearance the witness is over‑awed by the grandeur of the court and that he is not able to' speak out the truth unless advised .by the qadi." He maintains that to give evidence is worthiness and worthiness has got to be helped. It is proper and befitting if a qadi, on such occasions, lends support to a witness.

A qadi, on the occasion of a party taking oath, must counsel him properly. He must, for the purpose, appoint an appropriate place like the court room. mosque or some other solemn place. He should administer the special oath only after offering high praises to Almighty God in a manner that the party taking the oath may, at heart, be impressed with the solmtlity of the occasion and the Majesty of God and thereby may find the path of truth.

Rules that are incumbent to be followed by a qadi.

A qadi is bound to observe the following rules:‑

(i) He should be dressed properly. Prior to Abu Yusuf being elevated to the office of the chief justice there was no prescribed dress for a qadi. Abu Yusuf prescribed the dress which, thereafter, consisted of a long gown with wide sleeves open on shoulders and a' turban whose ends lay on both shoulders. The chief justice used to wear a shawl, in addition.

(it) He should maintain an attitude of giving no preference to one over the other. He should, in fact, treat all equally in every respect. He must make the contesting parties sit in court in front of him. His treatment and 'respect, in words or deeds, must equally be shown to all.

(iii) He should accept no gift from the litigants.

(iv) He must not go to any feasts provided by the litigants.

(v) He must not talk, in private or in chambers, to one party alone.

(vi) He should not sit in‑judgment over the cases of his relations, such as his father, grandfather, son, grandson or wife, and of his partner, friend or hireling.

(vii) He should not allow the litigants to enter his house.

WHAT A QADI SHOULD AVOID

A qadi should avoid the following acts, deeds and things, which have been termed by fuqaha as detestable (Makruh):‑

(i) A qadi should not invite to a feast any one of the disputing parties. He is, however, permitted, to invite both the parties, in case of necessity.

(il) A qadi should not be harsh with the witnesses. His harshness may stand in the way of their stating the truth. Likewise, he should not intervene too often, while the witnesses are deposing before him. He can, however, put certain questions by way of obtaining clarifications of the points involved. The ijma permits a qadi to go to the length of rebuking a witness, if and when necessary.

(iii) In case the qadi is a party in a litigation he should not make a personal appearance in Court. He may appoint agent to represent and act for him in Court in his defence or otherwise, as the case may be,

WHAT A QADI MUST AVOID

The following are the rules regarding those acts which a qadi must refrain from committing.

(1) A qadi should refrain from advising any of the parties to the suit contesting before him. He should abstain from acting' in a manner that may favour one to the prejudice of the other. He should not hinder and stop or cause to hinder or stop any of the parties coming forward in Court to make an admission or confession in the case before him.

(2) A qadi, should not, in Court, indulge in laughter or humour. He should not address a party to the suit in a language not known to the other party of the suit.

(3) A qadi should not consult or seek advice from some one present in Court. Neither should he consult one of the parties to the suit. It would dishearten the party not consulted and might lead that party to accuse the qadi of favouring its (party's) opponent in the case.

(4) A qadi should not, in Court, engage himself in making purchases or sale. He, while in Court, should not, indeed, indulge in any other affair.

(5) A qadi should, in no event, accept any bribe. The Prophet is reported to have said, "Accursed is the giver and the receiver of bribe". There is another hadith to the effect that bribe‑giver and bribe‑taker both would go to Hell. Bribery may assume different forms. It may be in the form of waqf, sadaqah, sale with nominal price (bai muharabah). The object of all these offerings, directly or indirectly, is to seek the favour of the qadi. Although then acceptance of hadiyyah in general is permissible, a qadi must abstain from it, in as much as it may be suspected of being a bribe and the' high office of a qadi may be tarnished. Khassaf, a great mujtahid of the fourth. century of Hijrah, was of opinion that a person accepting a present before being inducted to the office of a qadi, must refuse to accept the gift after taking charge of the office. The, normal acceptance of a gift' from near relations is, however, not prohibited.

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