The Mandatory powers of the Qadi ‘Aam
All the cases have to be judged in court sessions where the evidence is presented to the qadi. Since sovereignty belongs to Allah (swt), there is no concept of jury. The evidence is presented to the judge who then judges on the basis of the Qur’an and Sunnah. It is forbidden to have more than one judge presiding over the case and having the power to render judgment. However it is permitted for other judges to be present with him. Their role would merely be to counsel or voice an opinion, but their opinions would not be binding. This is so because the Messenger of Allah (saw) never appointed two judges to deal with one matter, but only one judge for one matter, which indicates that it is forbidden to have two or more judges to look into one matter.
The judge can only rule in a judicial court and any evidences or oaths can only be considered in the judicial court. This is so because it has been reported on the authority of ‘Abdullah ibn al-Zubayr who said, "The Messenger of Allah has ordered that the two disputing parties should sit before the judge." This hadith demonstrates the form in which the judiciary should be conducted: The two disputing parties should sit together before a judge, and this would be in a judicial court.
It is permitted to have various levels of court according to the type of case. Thus it would be permitted to have some judges confined to dealing with specific cases to a certain extent and to refer other cases to other courts.
This is so because the judiciary is a delegation from the Khaleefah and it is just like the deputyship. In fact the judiciary is a form of deputyship, which can be general, where the judge would have authority to consider a wide variety of matters; or it can be specific, with the judge specializing in only a few matters. Therefore, it is permitted to have various levels of tribunal as Muslims had in the past: Al-Mawardi wrote in his book entitled al-Ahkam al-Sultaniyya:
"Abu ‘Abdullah al Zubayr said: For a while, the Amirs here in Basra used to appoint a judge at the central mosque (al-Masjid al-Jami‘), they called him the judge of the mosque, he used to judge in disputes involving sums that do not exceed twenty dinars and two hundred dirhams, and he used to impose the maintenances. He would not exceed his boundaries nor the duties entrusted to him."
Different areas of authority of the Qadi ‘Aam
There are ten areas where the jurisdiction of the Qadi ‘Aam may apply. These are:
1. Judge of disputes between people, e.g. over ownership of property (Munaza‘at).
2. Judge of Rights (Huquq).
3. Judge of guardianship, e.g. over the orphan, the child who is not mature, the child’s money etc. (Wilayah)
4. Judge of trusts e.g. goods given up for use by people for the sake of Allah like mosques, fields etc. (Awqaf)
5. Judge of implementation of the will, i.e. inheritance (Tanfeedh al-wasiya).
6. Judge who is waliy amr (guardian) of people who do not have waliy amr, e.g. single women who want to marry etc. (Tazweej al-ayama)
7. Judge for establishing hadud punishments (‘Iqamat il hadud).
8. Judge for looking after the interests of the people, i.e. public interest like if the people were to dispute about building a railway in the area etc. (An nazar fi masalih al-nass)
9. Judge who looks into the character of the witnesses - he has a special court, which verifies the eligibility of the witnesses (Tasaffahi shuhud).
10. Judge to solve disputes between the weak and the strong (Taswia fil hukmi bain al-quwi wal-daeef).
There is also a special type of judge who looks into the domestic disputes, i.e. between the husband and wife.
The Judge’s decision is Final
There are no appeal courts and there is no court of cessation, so the judiciary, as far as the method by which the cases are treated, is one and the same. If the judge pronounced a sentence, it would become binding, and the sentence of another judge would never and under no circumstances reverse it. The sentence of the judge cannot be reversed except by him personally and no other judge could do this. The evidence for this is derived from the general consensus of the Sahabah, for Abu Bakr judged in some cases according to his own ijtihad while ‘Umar did not agree with him, and he did not reverse his judgments; ‘Ali disagreed with ‘Umar’s ijtihad but did not reverse his sentences; ‘Ali differed with Abu Bakr and ‘Umar but their sentencing was never reversed. The people of Najran came to ‘Ali and said to him: "O Amir of the believers, your book is in your own hands and your pardon is with your own tongue. He said: Woe to you, ‘Umar was rightly guided and I will not reverse a judgment pronounced by ‘Umar. "
This is why there are no courts of appeal in Islam, nor are there courts of cessation. The judiciary from the adjudication point of view should be of the same level. The Shari‘ah principle states: "The ijtihad does not reverse another ijtihad." So no mujtahid (scholar) could serve as an authoritative source for another mujtahid; thus it would be forbidden to have tribunals that reverse the sentences of other tribunals.
However, if the judge abandons the rule by the Shari‘ah, and judges by a rule of disbelief, his judgment would be false, and also if he judged by a rule that contradicts the Shari‘ah (i.e. if he did not have an evidence or even a doubtful evidence), and there were texts that contradicted him, then the judgment of the ruler or the judge should be rejected for the Messenger of Allah (saw) said, "Anything that is not derived from our teaching is a reject." And the one who has the power to reject it would be the judge of the madhaalim.
The Judge’s decision is Final
There are no appeal courts and there is no court of cessation, so the judiciary, as far as the method by which the cases are treated, is one and the same. If the judge pronounced a sentence, it would become binding, and the sentence of another judge would never and under no circumstances reverse it. The sentence of the judge cannot be reversed except by him personally and no other judge could do this. The evidence for this is derived from the general consensus of the Sahabah, for Abu Bakr judged in some cases according to his own ijtihad while ‘Umar did not agree with him, and he did not reverse his judgments; ‘Ali disagreed with ‘Umar’s ijtihad but did not reverse his sentences; ‘Ali differed with Abu Bakr and ‘Umar but their sentencing was never reversed. The people of Najran came to ‘Ali and said to him: "O Amir of the believers, your book is in your own hands and your pardon is with your own tongue. He said: Woe to you, ‘Umar was rightly guided and I will not reverse a judgment pronounced by ‘Umar. "
This is why there are no courts of appeal in Islam, nor are there courts of cessation. The judiciary from the adjudication point of view should be of the same level. The Shari‘ah principle states: "The ijtihad does not reverse another ijtihad." So no mujtahid (scholar) could serve as an authoritative source for another mujtahid; thus it would be forbidden to have tribunals that reverse the sentences of other tribunals.
However, if the judge abandons the rule by the Shari‘ah, and judges by a rule of disbelief, his judgment would be false, and also if he judged by a rule that contradicts the Shari‘ah (i.e. if he did not have an evidence or even a doubtful evidence), and there were texts that contradicted him, then the judgment of the ruler or the judge should be rejected for the Messenger of Allah (saw) said, "Anything that is not derived from our teaching is a reject." And the one who has the power to reject it would be the judge of the madhaalim.
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