Questions of Islamic Jurisprudence

5-7-2003 | IslamWeb

Question:

I am a Muslim man living in USA, and am looking for an answer for some questions that I and other Muslims would like to know and to apply among our Muslim community.
1) If an Islaamic judge made a decision in a matter between two Muslims then one of them wanted to appeal the decision based on facts and documentation to be presented and considered by the judge which will affect the decision. How much time is allowed for such a person to appeal and to present what he has to the judge according to the Islaamic Jurisprudence?
2) If a judge is making a decision to solve a problem between two Muslims and the decision was to sell a property they are fighting about. Can the judge make the decision that the fighting people have to sell the property to someone else, and at the same time, same judge to broker and to sell that property himself?
3) If an Islaamic judge made a decision to solve a problem between some Muslims should the judge provide an explanation for his decision, or just make it with without any explanation or references to support his decision? Look forward to hearing from you at your earliest convenience.
Answer:

All perfect praise be to Allaah, The Lord of the Worlds. I testify that there is none worthy of worship except Allaah, and that Muhammad is His slave and Messenger. We ask Allaah to exalt his mention as well as that of his family and all his companions.

 

The scholars are of the opinion that when the plaintiff fails to present evidence for his claim and the defendant takes an oath, this entitles this defendant to have the judgement in his favor. But the majority of scholars believe that if the plaintiff presents new evidence, the case is considered again in the light of this new evidence.

Imaam Maalik may Allaah have mercy upon him adds a condition to the above, that the plaintiff must be unaware of that evidence at the time of pleading and at the time when the judge asked the defendant to swear or had forgotten that particular evidence at that time.

But Ibn Qudaamah may Allaah have mercy upon him gave as evidence backing the opinion of the majority of scholars what was reported from Caliph 'Umar may Allaah be pleased with him that he said: 'The just proof of the complainant has more right than a false swearing (perjury).' Al-Bukhari may Allaah have mercy upon him gave a chapter in his book the following title: "Chapter of the person 'Who presents a proof after the swearing.' He may Allaah have mercy upon him mentioned that Taawoos, Ibraaheem and Shurayh may Allaah have mercy upon them said: 'The just proof has more right than a false oath'. He also mentioned Um Salama's may Allaah be pleased with her narration that the Prophet sallallaahu `alayhi wa sallam ( may Allaah exalt his mention ) said: "You present your cases (for judgement) to me. Some of you might be more eloquent while presenting their evidence than their opponents. If I pass a judgement giving one of you some of his brother's right, it is as if I am giving him a portion of Hell. So, he should not take it".

Ibn Hajar may Allaah have mercy upon him said: 'The majority of scholars accept the proof'. Maalik may Allaah have mercy upon him said: 'If he is asked to swear while he does not know the proof and then comes to know it, then it is accepted from him. But if he knows it before hand and left it deliberately then he has no right'.

'As for the period in which he has the right to appeal, we do not know any limitation for it. But the jurists say that if the litigant asks the Judge to give him a period to present a contestation to the proof already presented, then the judge should grant him a delay to present the new evidence. The length of that period is decided by the judge.' [Ad-Dusooqee] The author of Asmal-Mutaalib said: 'He is given three days (for appeal)'.

Initially, it is not lawful for the judge to act as a broker in selling something over which two litigants are in dispute before giving his decision in the issue. But the jurists state that if there are some legal procedures like completing some evidence or having some information about the witnesses and if there is fear that the thing over which the people are litigating might decay then such thing should be sold and its price be kept with a trustworthy person until this issue is settled. They gave meat and fruits as examples of such things. But the judge should not be the direct seller of the thing to a third person as it is dislikeable for the judge to sell directly because some people might try to corrupt him and he might, in return, favor some of them unjustly.

Al-Haakim may Allaah have mercy upon him reported a narration that says: "No ruler who deals in trade can be just with his followers." Shurayh may Allaah have mercy upon him said: 'When 'Umar appointed me as a judge, he stipulated three conditions that I must observe: not to sell or buy, not to accept a bribe and not to pass a judgement while angry'.

Ashab, Maalik's pupil may Allaah have mercy upon them said that 'The judge - while in the court - should not sell or buy anything for himself or for others'. Ibn Farhoon may Allaah have mercy upon him considered this statement as implying reprehensibility of the things mentioned. But Khaleel may Allaah have mercy upon him was of the view that it implied their prohibition.

On the other hand, the judge must state the reasons and evidences before passing the decision or judgement in order to give the charged person the opportunity to contest the evidence and challenge the witnesses.
Those who wrote commentaries on Khaleel's book [Mukhtasar Khaleel]. Khaleel mentions that the judge should mention to the charged person the names of the witnesses and give him a delay if he wants to challenge the witnesses or provide new evidence.

Now, when the judge disproves the evidences of the charged person, he takes his final decision which settles definitely the matter in question.

Allaah knows best.

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