BOOK XVI. ADMINISTRATION OF JUSTICE BY THE COURT.
TERMS OF ISLAMIC JURISPRUDENCE.
1784. The phrase
administration of justice embrace the judgement and the duties of the judge.
1785. The judge is a person appointed by the Sovereign for the
purpose of dealing with and settling actions and disputes arising between the
people in accordance with the terms of law.
1786. The judgement consists of the stopping and settlement of
disputes by the judge. Judgements are of two classes.
The first class consists of the Court giving judgement whereby the person
against whom the judgement has been given is forced to give up the subject
matter of the action as where he orders the thing claimed to be given. This
class of judgement is called an obligatory judgement, or a judgement for
something which is due.
The second class consists of the Court forbidding the plaintiff to bring an
action as where it informs the plaintiff that he has no right to bring an
action, and that he is forbidden to do so. This class of judgement is called a
judgement by way of dismissal.
1787. The subject matter of the judgement consists of the
obligation imposed by the Court upon the party against whom judgement is given.
Thus, an obligatory judgement consists of recognising the right of the
plaintiff, and in an action by way of dismissal consists of obliging the
plaintiff to give up his action.
1788. The losing party is the person against who judgement is
1789.The successful party is the person in whose favour judgement
1790. Arbitration consists of the parties to an action agreeing together to select
some third person to settle the question at issue between them, who is called an
1791. A deputy defendant is an agent appointed by the Court to
represent a defendant who fails to appear in Court.
CHAPTER I. JUDGES.
SECTION I. QUALITIES REQUISITE IN A JUDGE.
1792. The judge must be intelligent, upright, reliable and firm.
1793. The judge must have a knowledge of Islamic Law and jurisprudence and of the
rules of procedure, and must be able to decide and settle actions in accordance
1794. The judge must be of perfect understanding. Consequently,
any judicial act performed by a minor or an imbecile or a blind man or a person
so deaf that he cannot hear the statements of the parties when speaking loudly,
SECTION II. CONDUCT OF JUDGES.
1795. The judge must abstain from any act
or deed of a mature injurious to the dignity of the Court, such as engaging or
selling, or making jokes while in Court.
1796. The judge may not accept a present from either of the parties.
1797. The judge may not accept the hospitality of either of the parties.
1798. The judge must abstain from any act during the trial likely to arouse suspicion
or cause misunderstanding, such as receiving one of the parties alone in his
house, or retiring with one of them with his hand or his eye or his head, or
speaking to one of them secretly or in a language not understood by the
The judge must be impartial towards the two parties. Consequently, the judge
must observe complete impartiality and equality towards the two parties in
everything relating to the trial of the action, such as causing them to sit down
during the course of the trial, and when looking towards or addressing them and
this whether one of the parties is a person of high rank and the other of low
SECTION III. DUTIES OF JUDGES.
1800. The judge is the
representative of the Sovereign for the purpose of carrying of the trial giving
1801. The jurisdiction and powers of the judge are limited by
time and place and certain matters of exception.yvT
(1). A judge appointed for a period of one year may only give judgement during
that year. He may not give judgement before the year commences or after the
(2). A judge appointed for a certain district may give judgement in any place in
such district. He may not, however, give judgement elsewhere. A judge appointed
to give judgement in a particular Court may only give judgement in that Court.
He may not give judgement elsewhere.
(3). If an order is issued by the sovereign authority that actions relating to a
particular matter shall not be heard in the public interest, the judge may not
try such action. Action, the judge may be authorised to hear certain matters
only in a particular Court and no other. The judge may only try those cases he
is authorised to hear and give judgement thereon.
(4). An order is issued by sovereign authority to the effect that in a certain
matter the opinion of a certain jurist is most in the interest of the people,
and most suited to the needs of the moment, and that action should be taken in
accordance therewith. The judge may not act in such a matter in accordance with
the opinion of a jurist which is in conflict with that of the jurist in
question. If he does so, the judgement will not be executory.
1802. If two judges are appointed jointly to hear and give
judgement in an action, one of them alone may not try such action and deliver
judgement. If he does so, the judgement is not executory. (See Article
1803. If there are various judges in one particular place, and
one of the parties desires the case to be tried by one judge and the other
wishes the case to be tried by another, and a difference of opinion occurs
between them in the matter, the judge selected by the defendant shall be
1804. If a judge is removed from his post, but the news of his
removal is not communicated to him for some time, any cases heard and decided by
him during that period are valid. A judgement issued by him after the news of
his removal has been communicated to him is invalid.
1805. A judge who is duly authorised may appoint a person as
deputy judge and may dismiss him. He may not do so, if he is not duly
authorised. If he himself is dismissed or dies, his deputy is not likewise
dismissed. (See Article 1466). Consequently, if a judge in a certain district
dies, the action in that district dies, the action in that district shall be
tried by the deputy of the deceased judge, until the arrival of a new judge.
1806. The judge may decide a case on evidence heard by the judge.
Thus, if the judge has heard evidence in an action and communicates it to his
deputy, the latter may give judgement without rehearing the evidence. Similarly,
if the deputy of a judge is authorised to give judgement, he may hear evidence
on a certain matter and refer it to the judge, and the latter may give judgement
thereon without rehearing the evidence. If a person who is not authorised to
give judgement, however, but only to hear evidence for the purpose of
investigating and inquiring into a matter, refers a question to the judge the
latter may not give judgement, but must hear the evidence himself.
1807. A judge of the district may hear actions relating to land
situated in another district. But as stated in the Book on Actions, the
boundaries thereof must be set forth as required by law.
1808. The person in whose favour judgement is given must not be
an ascendant or descendant or the wife of the judge, nor his partner, nor a
private employee in respect to the property which is the subject matter of the
judgement, nor a person who lives at the expense of the judge. Consequently, the
judge may not hear a case relating to one of such persons, nor give judgement in
1809. If the judge of a town or the persons connected with him as
stated in the preceding Article, are concerned in an action with any of the
inhabitants of such town, the case shall be heard by some other judge in the
town, if one is to be found there. If there is no other judge in the town, the
case may be tried by an arbitrator to be appointed by the parties, or, if the
judge is authorised to appoint a representative the case shall be heard by him
or in the case may be tried by the judge of an adjoining district. If the
parties do not agree to settle the matter in any one of the ways mentioned
above, they may ask the sovereign authority to delegate some person empowered to
deal with the question.
1810. In the hearing of actions, the Court shall deal with them
in order of priority. The Court may, however, expedite the hearing of an action
when it is in the interests of justice to do so.
1811. A judge may, when necessary, ask the opinion of some other
person on a point of law.
1812. A judge may not give judgement when in such a condition
that he cannot think clearly, as where he is in trouble, or suffering from
hunger or sleeplessness.
1813. A Judge may not delay a case unduly by reason of
investigations as to the facts.
1814. The judge is responsible for keeping a register in Court
and recording therein all judgements given and documents issued in such a manner
as to be free from any irregularity. In the event of the judge being removed, he
must hand over such register to his successor either personally or through some
person in whom he has confidence.
SECTION IV. THE HEARING OF AN ACTION.
1815. the judge must hold the trial
in public. He may not, however, reveal the nature of the judgement before it is
1816. When the parties are present in Court for the purposes of the trial, the judge
shall first of all call upon the plaintiff to state his case. If he has
previously reduced his claim to writing it shall be read over and confirmed by
the plaintiff. He shall then call upon the defendant to answer. Thus, he shall
inform the defendant that the plaintiff makes such and such claim against him,
and shall ask the defendant to reply
1817. If the defendant admits the claim, the judge shall give
judgement on the admission. If he denies, the judge shall call upon the
plaintiff for his evidence.
1818. If the plaintiff proves his case by evidence, the judge
shall give judgement accordingly. if he cannot prove it, he has a right to the
oath, and if he asks to exercise such right, the judge shall accordingly tender
the oath to the defendant.
1819. If the defendant swears the oath, or if the plaintiff does
not ask for the oath to be administered, the judge shall order the plaintiff to
give up his claim upon the defendant.
1820. If the defendant refuses to take the oath, the judge shall
deliver judgement based upon such refusal. If the defendant states that he is
prepared to swear an oath, after judgement has been so delivered, the judgement
shall remain undisturbed.
1821. The content of a judgement or of a document issued by the
judge of a Court in the ordinary way and which is free from any taint of forgery
or fraud, may be acted upon and judgement given thereon, without the necessity
for any proof by evidence.
1822. If the defendant persists in keeping silence and refuses to
answer either in the affirmative or negative, after being questioned as stated
above, his silence in considered to amount to a denial.
If he states that he neither confesses nor denies, his answer is considered to
amount to a denial.
In both cases the plaintiff shall be called upon to produce evidence.
1823. If the defendant instead of admitting or denying the plaintiff's claim,
puts forward a counter claim, action shall be taken in accordance with the
matter mentioned in the Book on Actions and book on Evidence.
1824. Neither party may interrupt the other while he is making a
statement. If he does so, he shall be prohibited therefrom by the Court.
1825. The Court shall provide a competent and reliable
interpreter for the translation of statements made by any person who does not
know the language of the parties.
1826. In the case of actions brought by relatives or in cases
where there is a possibility of the parties coming to a settlement, the judge
shall advise the parties one or twice to come to a settlement. If they agree, a
settlement shall be drawn up in accordance with the terms of the Book on
Settlements. If they do not so agree, the case shall be tried out.
1827. After the judge has concluded the trial, he shall give
judgement and make it known to the parties. He Shall then draw up a formal
judgement containing full reasons for the decision and orders given. A copy
thereof shall be given to the successful party and, if necessary, a copy to the
party losing the action.
1828. Once the judge is fully in possession of the facts and
reasons for the judgement, he may not delay promulgation thereof.
CHAPTER II. JUDGEMENTS
SECTION I. CONDITIONS ATTACHING TO A JUDGEMENT.
1829. No judgement may be issued unless an action has been
instituted. Thus, for a judge to give a judgement in any matter where the rights
of the public are affected, an action must have been brought by one person
against another in respect to that matter. Any judgement issued which is not
based upon an action is invalid.
1830. The parties must be present when judgement is given. That
is to say, the parties having been present during the hearing of the action,
must be present also when judgement is given. But if any person brings an action
against some other person and the defendant admits the claim, and leaves the
Court before judgement is pronounced, the judge may pronounce judgement in his
absence, based upon the admission. Again, if the defendant denies the
plaintiff's action, and the plaintiff comes into Court and brings evidence to
prove his claim, and the defendant leaves the Court before the enquiry as to the
credibility of the witness is commenced and before judgement is given, the judge
may proceed to the enquiry as to the credibility of the witness, and pronounce
judgement in his absence.
1831. If the defendant is personally present in Court after
evidence has been given in the presence of his representative, the judge may
give judgement against him on such evidence. On the other hand, if the
representative of the defendant is present and evidence has been given in the
presence of the defendant, the judge may give judgement against the
representative after hearing the evidence.
1832. If an action is brought against the whole of the heirs of a
deceased person, and the evidence has been given in the presence of one of them,
and such heir leaves before judgement is pronounced, the judge may give
judgement against any other heir who may be summoned to be present on such
evidence. There is no need for the evidence to be repeated.
SECTION II. JUDGEMENT BY DEFAULT.
1833. The defendant shall
be summoned to appear before the Court by the judge upon the application of the
plaintiff. If he fails to appear, either personally or through a representative,
in the absence of any valid excuse, he may be forced to appear.
1834. If the defendant fails to appear, either personally, or
through a representative, and it is not possible to bring him into Court, the
Court shall, on the application of the plaintiff, issue a summons to him on
three separate occasions to appear in Court, and, upon his failing to appear,
the judge shall inform him that a representative will be appointed for him, and
that the case for the plaintiff together with his evidence, will be heard. If
the defendant persists in his refusal to appear, either personally or through a
representative, the judge shall appoint a person as his representative in order
to safeguard his interests. The case for the plaintiff, together with his
evidence, shall then be heard in the presence of the representative, and, if
proved, judgement shall be issued accordingly.
1835. A judgement issued by default as mentioned above shall be
served upon the defendant.
1836. If a person against whom a judgement has been issued by
default appears in Court and shows that he has a defence to the plaintiff's
claim, his defence shall be heard and action taken as may be necessary. If he
has no defence to the claim, or if he brings a defence which fails, the
judgement given shall be put into execution.
CHAPTER III. RETRIAL.
1837. An action in respect to which a
judgement has validly been given, that is to say, a judgement which contains the
reasons and grounds therefor, may not be heard again.
1838. If any person against whom judgement has been given alleges
that such judgement is contrary to the rules of law and gives the reasons
therefor, asking for the case to be heard in appeal, the judgement, if found to
be in accordance with law, shall be confirmed. If not, the case will be heard in
1839. If the person against whom judgement has been given is dissatisfied with
such judgement, and asks for the rectification thereof, such judgement shall be
examined, and, if it is found to be in accordance with law, shall be confirmed.
If not, it shall be reversed.
1840. A defence may be valid before judgement and after
judgement. Consequently, if any person against whom judgement has been given,
shows that he has a sound defence thereto, and asks for retrial of the action,
his defence shall be heard in the presence of the person in whose favour
judgement has been given, and the matter tried out.yvT " Example :- A brings an
action against B alleging that a house in B's possession belongs to him, and
that he inherited it from his father and proves his case. Judgement is given in
his favour. B then sets up the defence that A's father sold the house to his
father and produces a valid title-deed. B's defence will be heard, and if
proved, the original judgement will be reversed and his action dismissed.
CHAPTER IV. ARBITRATION.
1841. Actions relating to rights
concerning property may be settled by arbitration.
1842. The decision of an arbitrator is valid and executory only
in respect to the persons who have appointed him, and the matters he has been
appointed to decide. He may not have reference to any person or deal with any
matters other than those included in the terms of reference.
1843. More than one arbitrator may be appointed, that is to say,
two or more persons may be appointed to give a decision in respect to one
matter. Both plaintiff and defendant may each validly appoint an arbitrator.
1844. In the event of several arbitrators being appointed as
above, their decision must be unanimous. One alone may not give a decision.
1845. The arbitrators may, if they are duly authorised thereunto
by the parties, appoint another person to act as arbitrator. They may not do so
1846. If the arbitration is limited as to time it ceases to be of
effect after the expiration of such time.yvT
Example:- An arbitrator appointed to decide a matter within a period of one
month as from a certain date, may only decide such matter within that period. He
cannot give a decision after the expiration of that month. If he does so, the
judgement will not be executory.
1847. Either of the parties may dismiss the arbitrator before he
has given his decision. If the parties have appointed an arbitrator, however,
and such appointment has been confirmed by a Court duly authorised thereunto,
the arbitrator is considered to be a representative of the Court and cannot be
1848. All decisions by arbitrators as regards the persons and
matter in respect to which they have been appointed are binding and executory to
the same extent as the decisions by the Courts concerning persons within their
jurisdiction. Consequently, a decision validly given by the arbitrators in
accordance with the rules of law is binding on all parties.
1849. A decision by an arbitrator, upon submission to a properly
constituted Court, shall be accepted and confirmed, if given in accordance with
law. Otherwise, it shall not be so confirmed.
1850. The parties appointing the arbitrators may authorise the
arbitrators, if they think fit, to make a settlement, and such arbitrators may
then make a valid settlement. Thus, if each of the parties appoint a person to
act as arbitrator with power to dispose of the matter in dispute by way of
settlement, and such arbitrators duly arrive at a settlement in conformity with
the terms of the Book on Settlements, such settlement and arrangement is binding
on both parties.
1851. Should an authorised person act as arbitrator in a dispute
and give a decision and the parties later agree to adopt his decision, such
decision is executory. (See Article 1453).
PROMULGATED BY ROYAL IRADAH, 26 SHAABAN, 1293.