Conditions of an Islamic Judge

Anyone taking up the post of judge in the Islamic judiciary must satisfy the following conditions: -

1) Muslim
2) Free
3) Mature
4) Sane
5) Just (‘adl)
6) Faqih (learned scholar), able to apply the rules to the situations
7) They must have the faculty of the three main senses - sight, hearing and speech.

For the person who takes up the judiciary of madhaalim, in addition to the conditions mentioned, he must also be male and a mujtahid (legist), just like the supreme judge (Qadi al-Qada‘a), for his post is in fact one of judiciary and of ruling, where he judges the ruler and executes the Shari‘ah upon him. Therefore he must be male in addition to the other conditions for the post of judge .

As well as being faqih he should also be a mujtahid, for the madhaalim could be required to look into whether the ruler has ruled by other than what Allah has revealed, i.e. ruled by a law that has no Shari‘ah evidence to back it, or in case the evidence he used does not relate to the event, and only the mujtahid can deal with such madhlama. Therefore if he were not a mujtahid, he would be judging on something he knows little about or has no knowledge of at all, and that is forbidden. Therefore, in addition to the conditions of the ruler and those of the judge, he should also be a mujtahid.

The Appointment of Judges

It is permitted to appoint the judges and the muhtasib in a general capacity, to judge on all matters all over the country. It is also permitted to appoint him in a specific capacity, where the specification could either be geographic or according to a certain type of judiciary. This would be in accordance with the actions of the Messenger of Allah (saw), for he appointed ‘Ali ibn Abi Talib as judge over Yemen, and Mu‘adh ibn Jabal as judge over an area of Yemen; he also appointed ‘Amr ibn al-A’as as judge in one specific matter. This is as far as the qadi muhtasib and the qadi ‘Aam are concerned.

As for the judge of madhaalim, it is permitted to appoint him for the whole country or to confine him to a specific area, for the Messenger of Allah (saw) appointed Rashid ibn Abdillah as Amir of the judiciary and the madhaalim over the imara where he was appointed. As for the confining of the judge of madhaalim to certain matters, this is forbidden, for the Messenger of Allah (saw) did not do so, and because his duty would be to look into the complaints of the people and remove their causes, this specialization would not be feasible, for the complaints cannot be partitioned. In addition to him being a judge looking into the madhaalim, he is also a ruler in removing the causes of the madhaalim, and the rule cannot be partitioned. Thus the ruler does not specialize in the rule, i.e. he cannot be confined to ruling over certain matters and be restricted from ruling over other matters, he can only be confined to an area.

When a ruler is appointed and he acquires the mandatory powers and the authority to look into all matters, it is forbidden to restrict and categorize his duties of rule. The same applies to the judge of madhaalim - his appointment would be general as far as the judiciary is concerned. He can, however, be confined to a specific area just as for the confinement of the wali to a special wilayah. This would not be a partition of his rule but a specification of the wilayah, and no matter where and what type of wilayah it is, the rule of that wilayah cannot be partitioned. The judge of madhaalim would be appointed similarly over the wilayah of madhaalim, and this wilayah is general, therefore it would be wrong to partition the domain of his wilayah. This serves as evidence that he should not be appointed except with a general appointment as far as the judiciary of madhaalim is concerned.

Qadi al-Qada‘a - The Judge Of Judges

This is a further type of judge who is appointed by the Khaleefah, but who is not concerned with the issues of the disputes that form the basis of jurisdiction of the other types of judges. Rather this judge and his department are responsible for appointing all the judges on behalf of the Khaleefah, and ensuring their conduct and qualifications are correct and in accordance with the Shari‘ah.

In this way, the Qadi al-Qada‘a would verify that any judge fulfils the conditions necessary for his authority to be valid. He would also look into any areas of injustice or misapplication of the Shari‘ah that any of the judges may have been involved in, and he has the authority to correct and expel any judges involved in corruption.
How the Judges are Removed
The appointment of a member of the judiciary is one of the Islamic contracts, and any contract in Islam has two contractors. One is the Islamic State, represented by the Khaleefah, and the other is the judge himself. The contract is manifested by an offer and acceptance.

Accordingly, the position of the judge will be valid as long as the conditions of the contract exist. Given this, there are three ways in which a judge can be removed from authority:

1) The Khaleefah removes him - this may be directly, or through the institution of the Qadi al-Qada‘a.

2) The judge resigns.

3) The judge loses one of the conditions to be judge, e.g. he becomes blind or becomes untrustworthy.