Appellate in Islamic Sharia - a subsection of my MD thesis

A sample section from:

Comparative study between Islamic Fiqh and Egyptian Law

Thesis for Master Degree

Prepared by

Lecturer In Sharia Dept. Dar El Ulum Cairo Univ.

Supervision

Prof. of Islamic Sharia - Dar El Ulum – Cairo Univ. and Faculty Agent for

Education and Student Affairs

Prof. and Head of Procedure dept. Faculty of Law – Cairo Univ.

1436 AH – 2015 AD

This section consists of two subsections as follows:

4-2.1. The Islamic Legitimacy of Appellate

4-2.2. The intellectual legitimacy of appellate.

Objecting to Judicial decrees

3

Chapter 4 Objecting to Judicial Decrees

through Appellate Process

4-2.1. LEGITIMACY OF APPELLATE IN ISLAMIC SHARIA

Can the Islamic state apply the double-hearing judicial principle? In other words: Is

it legitimate in Islamic Sharia to repeat hearing the case in front of higher court and

higher judges for no reasons but to trying to reach the maximum possible justice? Have

all Islamic scholars agreed on the answers of these questions? Have any of the previous

or actual Islamic regimes applied something similar to that?

This subsection tries to answer these important questions.

There is a notable disagreement among Islamic scholars on the appellate concept

based on the double-hearing principle. There are two viewpoints among them as follows:

The first viewpoint is of the majority of ancient scholars1 and some few modern

scholars2. Those scholars insist on the non-legitimacy of the appellate except for

the cassation, i.e. when the decree is strongly and clearly against Islamic

sources.

In modern Islamic jurisprudence, this opinion is almost confined to two schools:

o The followers of Hizb Ut Tahrir (Liberation Party)3 whose project of

Islamic constitution states that: «There is no appeal courts, as there is only

one judicial level. Therefore, once any judge pronounces his judgment, it

will be definitely executive. Other judges has no authority to overturn the

first-instance decree, unless it opposes any peremptory text of Quran, the

Prophet tradition, or the consensus of his companions»4.

o The school of Prof. Muhammad Naeam Yaseen5 and his followers. “In the

man-made laws,” Yaseen said: “it is allowed to challenge the first-instance

judgment upon the request of the litigant”. “This is allowed” he added

“even if the litigant has no new evidence to introduce to appeal court”.

“This is against the Islamic jurisprudence” he concluded6.

The second point of view is rather preferred by most of contemporary scholars.

Those refuse or re-interpret the ancient opinion stating that the judgment once it

is correctly issued, it couldn‟t be repeated or heard again.

Thus, most of Saudi7 and Egyptian

8 Islamic scholars see no religious objection

1 Ibn māzah, Op. Cit. Vol.: 3, P: 109; Qarāfy, Op. Cit. P: 80; As Suyūty, Jawāhir Al ûuqūd, Op. Cit. Vol.:

2, P: 293; Ibn Qudāmah, Al Mughny Op. Cit. Vol.: 10, P: 50. 2 Nabahany, Muqaddimat Al Dustor (Introduction to the Constitution), Dar Al Ummah, 6

th edition, n.d, P.

160; Yaseen, Ħujjiyat Al ħukm Al Qađā‟y (The authority of Judicial judgment), a paper in the Kuwaiti

yearly journal of Law, 6th year 1982, edition no. 3, P: 140. 3 Hizb Al Tahrir (Liberation Party) is a political Islamic party that is not belonging to any state in the

world, as they think that all of the actual states are infidel (Kāfir). The party also seeks to re-found the

Islamic State (Al Khilāfah) in the Arab World. The booklet of Hizb Al Tahrir, without editor, 1985. P:

2-30. 4 Art. 78.

5 Yaseen, Op. Cit. P: 140.

6 Yaseen, Ibid..

7 Aal Khunein, Muhammad Saad, Al Kāshef Fī Sharħ Niđām Al Murafa‟āt El Sa‟udi (The revealer,

interpretation of the Saudi procedure code), Dar Ibn Farhun editor, Vol. 2, P: 486; Abdel Tawwāb, Op.

Cit, P: 471; Solaimān, Op. Cit, P: 308. 8 Wasel, Op. Cit. P: 262; Othmān, Op. Cit. P: 559.


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in the double-hearing process.

How was each of those opinions Juristically justified? This is what we will study is

this subsection according to the following plan:

The evidences of the appellate legitimacy under Sharia law from the viewpoint

of contemporary scholars.

The evidences of the appellate non-legitimacy from the view point of the ancient

scholars and whoever follow them.

Considering the preponderant opinion.


5



4-2.1.1: EVIDENCES OF APPELLATE LEGITIMACY IN SHARIA:

According to Islamic Jurisprudents1, there are many evidences that the double-

hearing legitimacy could be inferred from. Those evidences are as follows:

1- From Holy Quran:

Holy Quran mentions a judicial story of Dawūd and Sulyman (PBUT) in the

following two verses:

و ولكا ءاثينا حكها ٧٨ وداوۥد وسليمو إذ يكهان ف ٱلرث إذ نفشت فيه غنم ٱلقوم وكنا لكههم شهديو ﴿ هنها سليم ففه 2﴾...وعلها .

The meaning of these verses is as follows:

“And We bestowed the same favor upon Dawūd and Sulyman: Remember the

occasion when the two were judging a case regarding a field into which the goats of other

people had strayed at night, and We were watching their conduct of the case. At that time

We guided Sulayman to the right decision, though We had bestowed wisdom and

knowledge upon both of them…”3.

In the interpretation of the these verses, it is said that the goats of one person entered

into the field of another at night. The latter complained to Prophet Dawūd who decided

that the goats should be given to the owner of the field. When the litigants passed by

Prophet Sulyman who were sitting outside, he had different opinion; that the goats should

be given to the owner of the field to benefit them up to the time that the owner of the

goats repairs the field as before4.

Prof. Allam5 inferred from these verses that the double-hearing principle is

legitimate in Islamic Sharia, as the case has been heard again by the Prophet Sulayman (PBUH).

But there are some problems in the indication of these verse to the double-hearing principle:

Firstly and foremost: The story is related to a previous Sharia before Islam. The Islamic Usoulists

6 (jurisprudents) have differed about the previous Sharia in the two

following opinions: The previous Sharia isn‟t originally a source for Islamic jurisprudence

7

except for the rules approved by Islamic Sharia. This opinion seem to be the right one, as it is based on what‟s mentioned in Quran: ﴿ جعلنا ننكم شعة وننهاجا

﴾لك 8

It means: “for each nation of you We have made a proper Law and a way of

1 Wasel, Op. Cit. p: 262; Othman, Op. Cit. P: 571; Aal Khunein, Op. Cit. Vol. 1, P. 525; Daf‟ullaah, Op.

Cit. P: 97; Allam, Op. Cit. P: 160. 2 (21:78-79)

3 Maududy Translation, Op. Cit. (21:78-79).

4 Qutuby, Op. Cit. Vol. 11, P:307; Shawkany, Fatħ Al Qadeer, Op. Cit. Vol. 3, P: 567.

5 Allam, Op. Cit. P: 160.

6 Ash Shirazy, Ibrahim Ibn Ali, Al Luma‟ (The illuminations), dessimintation of Mohie Ed Din Mesto and

Yusuf Budaiwy, Dar Al Kalim editor, Damascus, Syria, 1st edition, 1995. P: 136-137; Razy, Op. Cit.

Vol. 3, P: 266F. 7 Aamedy, Op. Cit. Vol. 4, P: 169-182.

8 (5: 48)


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life”. The previous Sharia is originally a source of Islamic jurisprudence unless it is

overruled by opposing rules in Islamic Sharia. It is worth mentioning that most of jurists stated a rule opposing to the double-hearing rule

1.

Secondly: According to the story, Sulayman (PBUH) was still young boy. The concept of appellate is based on hearing the cases of less experienced judge by the more experienced one/s. The verses distinguish between the science and the understanding. The first may come with the experience, while the latter may happen to the less experienced person. The Holy verse says: « ه و نهاففه حكها ءاثينا ولكا سليم وعلها » meaning: “We

made Sulayman understand the case, though We had bestowed knowledge and wisdom upon both of them”.

Since the verse focuses on the understanding more than the knowledge, and since the understanding may occur to whom is less experienced and less knowledge, it would be against the appellate concept

2. It means that the first decision of a young judge may be

more correct than the decision of the old and experienced one. Ibn Al Araby in his interpretation of these verses says that Sulayman did not

overrule his father‟s judgment, rather Dawūd himself did that (this corresponds with the civil petition, as it must be in front of the same court). He also confirmed that: hearing cases again by another judges is against Islamic rules

3.

Thirdly: As it is clarified in the second chapter of this thesis, the more preponderant viewpoint is that this case indicates the civil petition for review not the appellate. In civil petition there must be a strong and new factual reason that „if the first-instance judge would have known it, he should have changed his decision‟

4. In appellate there is no

reason to accept the objection. It is only based on the satisfaction of the litigants5. In the

goats case, Dawūd approved the solution of Suliayman and said: “May Allah grant you the right understanding, son!”

6. This means that if Dawūd would have known that factual

solution, he would have changed his judgment. 2- From authentic Hadith: There is an opinion

7 among Islamic scholars inferring the double-hearing principle

from the Hadith of Bukhari which says: The Prophet (PBUH) says: “As two ladies with their two babies were together, the

wolf has gone with one of their babies. Both of the ladies claimed that the existing baby was hers, so they submitted their dispute to the judgment of the Prophet Dawūd (PBUH) who decided that the older lady should take the existing baby. On leaving the court they passed by Sulayman (PBUH) and told him the judgment. “Give me the existing baby” Sulayman (PBUH) said “I‟ll bisect him into two pieces”. “No, please don‟t do!” the younger lady shouted “May Allah have mercy on you!”. Then he decided that she should

take the baby”8.

But, there are some issues in the indications of this Hadith to the appellate as

1 Sarakhsy, Op. Cit. Vol. 16, P: 83-85; Ash Shafe‟y, Op. Cit. Vol. 7, P: 98F; Ibn Farhun, Op. Cit. Vol. 1,

P: 78F; Buhuty, Op. Cit. Vol. 6, P: 326. 2 Hindi, Ahmad, Mabda‟ Attaqaadi Alaa Darajatan (the double-hearing principle), Dar Al Jameah Al

Jadidah, Alexandria, Egypt, 2009, P: 24; Allam, Op. Cit. P: 4; Daf‟ullaah, Op. Cit. P: 97. 3 Ibn Al Arabi, Op. Cit. Vol. 3, P: 266.

4 Esmail Omar, Op. Cit. P: 198; Daf‟ullah, Op. Cit. P: 115.

5 Meccelle, Op. Cit. Art. 1839; Saudi Legal Civil Procedure Code, Art. 185.

6 Qurtuby, Op. Cit. Vol. 11, P: 307; Shawkany, Op. Cit. Vol. 3, P: 576.

7 Daffullah, Op. Cit. P: 89.

8 Bukhari, Op. Cit. Vol. 4, P: 244.


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follows: It is related to a previous Sharia. This point has been discussed within the

previous evidence. Most of Islamic scholars don‟t classify this story in the double-hearing, rather

they classify it in the cassation1.

Qurtuby, who refused to classify this story under the cassation cases, supposes that it may be a case of changing the decree due to the change of factual reason

2. This seem to be the best interpretation according to what has

been discussed in the second chapter of this study “Civil Petition”. In this evidence also, there is a meaning that opposes the concept of double-

hearing principle, i.e. the judgment of Dawūd (PBUH) would have been heard by a higher judge. Appellate is based on hearing the case by a higher and experienced judge

3, not by a younger and less experienced one as

Sulayman (PBUH). 3- The well-known Hadith of Zubia

4:

Some Islamic jurisprudence scholars mentioned this Hadith as an evidence of the

appellate5. It was narrated by Ali Ibn Abi Tālib (May Allah be pleased with him). “I was

sent as a judge to Yemen” he said “when people dug a Zubia for the lion. The lion was

successfully hunted, but when many people came to see it, they pushed each other, so

four men of them fall in the Zubia and were killed by the lion”.

As the people start squabbling about the responsibility of the accident and who

should pay the blood money, Ali (MABPWH) offered them a judgment that was pending

upon their acceptance, otherwise they pass by another higher adjudication (of the Prophet

PBUH). Since Ali‟s judgment was not acceptable from all litigants, the case was

transferred to the Prophet (PBUH) who confirmed the first-instance judgment6.

However, there is a huge disagreement on the certainty of that hadith. Some of

Hadith scholars consider it as doubtful7, some others consider it good Hadith

8, while

some of them consider it as authentic Hadith9.

The disagreement about that Hadith lies in the narrator of the second layer before

Imam Ali (MABPWH) called Ħanash Ibn Al Mu‟tamir. Although Hadith scholars agree

on his honesty, some of them see that he hasn‟t good memory. All the rest of the

narrators in the chain of the Hadith are men of the authentic according to Haithamy10

.

1 An Nisā‟y, Op. Cit. Vol. 4, P: 627; Othman, Op. Cit. P: 571; Aal Khunein, Op. Cit. Vol. 1, P. 525.

2 Qurtuby, Op. Cit. Vol. 11, P: 313.

3 Hindi, Ahmad, Op. Cit. P: 24; Allam, Op. Cit. P: 4; Daf‟ullaah, Op. Cit. P: 97.

4 Zubiah (زبية): means in Arabic a hidden hollow for hunting wild animals. Himyary, Shams Al Olum,

Op. Cit. Vol: 11, P: 7365. 5 Wasel, Op. Cit. p: 262; Allam, Op. Cit. P: 5F; Aal Khunein, Op. Cit. Daf‟Ullaah, Op. Cit. P: 87.

6 Abu Dawūd, Op. Cit. Vol. 1, P: 109; Shāfe‟i, Al Umm, Op. Cit. Vol. 8, P: 448; Ibn Abi Shaibah, Op. Cit.

Vol. 15, P: 52; Hanbal, Op. Cit. Vol. 1, P: 411; Baihaqy, Op. Cit. Vol. 8, P. 111. 7 Ibid..

8 Buseiry, Ahmad Ibn Aby Bakr (died 840 AH), Itħāf Al Khiyara Al Mahara (Amazing the benevolent

and clever), Dar Al Watan editor, Riyadh, 1st edition, 1999, Vol. 5, P: 391; Albany, Op. Cit. Vol. 2, P:

478. 9 Shakir, Ahmed, The dissemination of Šaħiħ Aħmad (the authentic traditions collected by Imam Ahmad,

Vol. 1. P. 411 footnote. 10

Haithamy, Ali Ibn Abi Bakr, Bughiat Al Rā‟id (The pioneer hope), disseminated by Darwish, Abdallah

Muhammad, Dar Al Fikr, Beirut, 1994, Vol. 6, P: 448 F.


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Anyhow, Shawkany has commented perfectly that controversy and validated the

Hadith of Zubia for many reasons as:

The Hadith scholars agree on Ħanash‟s honesty and disagree only on his

memory.

Those who invalidated him did not report anything more than saying for

example what Bukhary and Nisā‟y said: “they talk about him”.

Abu Dawūd validated him.

Ibn Ħajar explained the two reasons of invalidating Ħanash, i.e.: the delusions

and dropping the first transmitter. Since the memorizers have reported all these

cases, we have no any serious reason to invalidate that Hadith1.

Therefore, the opinion validating Zubia Hadith is clearly stronger than the other

opinion invalidating it. Even if the contrary is true, this indicates that both opinions have

to be considered Islamic2. Therefore, it‟s not true to claim that there is only one opinion

in Islamic Sharia regarding this point, or to claim that there is no appeal in Islam3. The

Islamic moralities in this jurisprudence disagreement is to adopt the right persuasive

viewpoint without accusing the other viewpoint or calling it infidel.

After discussing the validation of Zubia Hadith, it would be important discussing its

indication to the appellate.

The Hadith of Zubia has a direct and explicit indication to the double-hearing

concept for the following reasons:

a. The first-instance judgment is pending upon the acceptance of the litigants, i.e.: if

they accepted it, the judgment would be executable and if any of them didn‟t

accept it, it would be transferred to the higher court.

b. The transfer to the higher court was voluntary, i.e.: the appellant would not asked

to give valid legal reasons for the appellate.

c. The transfer was not made to a lower or similar judicial level, rather it was made

to a higher court.

These three factors are found in the Hadith of Zubia and also found in the appellate

rules in (ECPC) Egyptian Civil Procedure Code4.

However, there is one factor that may contraindicates the double-hearing principle in

the Hadith of Zubia; that the case was in an exceptional situation, i.e.: the litigants were

about to fight5, as the appellate was not reported in other cases.

1 Shawkany, Muhammad Ibn Ali (died 1250 AH), Al Sail Al Jarrar (The huge flood), Dar Ibn Hazm, 1

st

edition, n.d. P: 891. 2 Ibn Taymia, Ahmad, Majmuat Al Fatāwa (group of advisory opinions), dissemination of Amer Al

Jazzar and Anwar Al Baz, Dar Al Wafaa editor, Mansura, Egypt, 2005, Vol. 20, P: 129-135; Ibn

Taymia, Ahmad, Raf‟ Al Malam „an Al A‟immah Al A‟laam (Barring the blame from famous Imams),

editor: the general presidency of the administrations of scientific researches, Riyadh, KSA, n.d. P: 18

Ff; Al Traiqy, Abdullah Ibn Abdul Muhsen, Al Inkar fi Massa‟il Al Khilaf (the strict prohibition in

disagreement questions) academic essay in Islamic research journal, version 47. Vol. 1, P: 204-212. 3 El Nabahany wrote: “Thus, there is no appeal court in Islam”, Op. Cit. P: 160; also Yaseen said: “This is

what man-made laws differ from Islam”, Op. Cit. P: 140. 4 ECPC, Art. 219 – 221; Abul Wafa, Ahmad, Op. Cit, P: 858.

5 In that Hadith Ali (MABPWH) said: “people carried weapons and were about to fight, so I said to them

„Are you going to kill 200 people for 4 persons?‟”. Abu Dawūd, Op. Cit. Vol. 1, P: 109.


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Also, it is notable that the double-hearing system was not applied in the period of the

Hadith, otherwise there was no need to make the agreement on it between Ali

(MABPWH) and the litigants, as it is found in the text of the Hadith: “I will adjudicate”

Ali said “then if you accept my judgment it will be applied, otherwise you will be

transferred to the Prophet (PBUH)”.

4- The judgment of the companion Ibn Mas‟ūd (MABPWH):

Wakea‟ mentioned: “A man was brought to Ibn Mas‟ūd (MABPWH), as he was

found with a woman together inside her robe (a wide and long garment for women). As

there was no adultery evidence, Ibn Mas‟ūd decided to flagellate him forty times and to

publish a libel against him. The family of that man complained to Omar (MABPWH), the

Caliph. Omar asked him and approved his decision”1.

Many scholars mentioned this tradition as an evidence on the double-hearing

principle2.

However, there are some issues in the indication of that tradition as follows:

Islamic Jurists (Usūlists) differed about the jurisprudential opinions of Prophet

companions. The more correct viewpoint is that they are not jurisprudence

sources3. Prof. Othman has confirmed this in his comment on that tradition,

saying: “An opinion of a companion is not an evidence even if it said by two

companions”4. Perhaps the story is famous enough to be considered as tacit

consensus.

This case shouldn‟t be classified under the appeal, rather it should be classified

under the cassation for the following reasons:

o The basic rule of the appeal is that it is a right of the litigants to be re-

adjudicated before applying of the first-instance judgment5. However, the

punishment in this case according to the decision of Ibn Mas‟ūd

(MABPWH) was directly applied after the judgment. It was before the

complaint in front the higher court (Omar MABPWH).

o The complainants did not mention that Ibn Mas‟ūd didn‟t give them the

chance to appeal, rather they claimed that the judgment is not correct. They

may thought that Ibn Mas‟ūd made a punishment similar to the penalty of

fornication. Since there is no clear evidence of fornication, they may

thought that his judgment of flagellation and libel is legally incorrect6.

o If we suppose that Ibn Mas‟ūd has made a mistake in implementing his

decree first, the family of the accused would have mentioned that in their

1 Wakea‟, Op. Cit. Vol. 14, P: 419; Abur Razzaq, Op. Cit. Vol. 7, P: 401F; Hathamy, Majma‟ Az

Zawayed, Op. Cit. Vol. 6, P. 416F. Hathamy mentioned that the narrators of this tradition are men of the

authentic Hadith. 2 Wasel, Op. Cit. P: 263; Allam, Op. Cit. P: 6-162, Daf‟ullah, Op. Cit. P: 90F.

3 Ammey, Op. Cit. Vol. 4, P: 182Ff.

4 Othman, Op. Cit. P: 599.

5 Art. 210-219, Egyptian Procedures Civil Code, Art. 197 Saudi Legal Procedure Code; Aal Khunein, Op.

Cit. Vol. 2, P: 305; Omr, Op. Cit. P: 935-937. 6 Some Islamic jurists clarified that Ibn judgment was an upbraiding punishment. The judge has the

authority to determine that kind of punishment, either the flagellation, the prison, paying a fine.

Asqalany, Op. cit. Vol. 12, P: 178; Ibn Hazm, Op. Cit. Vol 12, P:421.


10



complaint. Also, Omar would have at least admonished Ibn Mas‟ūd for

executing his decision before letting the accused appeal. But, what has been

reported in the tradition is that Omar has praised his judgment.

o In this case, pending the decree execution is more necessary than in the

case of Zubia, as the latter decree is related to money. Money can be given

back if the decree appears incorrect. In the case of Ibn Mas‟ūd‟s judgment,

the flagellation and libel can‟t be remedied. Therefore, there were an

insistence on not pending the case for a second hearing.

Thus, this evidence proves the contrary of what the scholars supporting the appeal

try to prove, because it indicates that there was no appellate concept and the litigants had

to go directly to the cassation court. We may understand from this case that there was a

tacit consensus from the Prophet‟s companions on that the double-hearing system was not

applied in that period. Also, we haven‟t found anyone of jurisprudents saying that Ibn

Mas‟ūd had mistaken to apply the judgment before allowing the accused to appeal.

5- The message of Omar to Abi Mūssa (MABPWT):

` Some scholars infer the legitimacy of the double-hearing principle from a

message of Omar Ibn Al Khattab during his Caliphate to Abu Mūssa Al Ash‟ary, his

governor and his judge in Kufa. The text of that written message reported by some Hadith

narrators.

The part of the message claimed to indicate double-hearing principle is as follows:

“A decree that you have ruled yesterday, then you have been guided to a better one

today, it should never impede you to decide the right, Because the right is old. Revising

the right is better than persisting in error”1.

For the validation of the text, jurisprudents have differed about it. Ibn Hazm

extremely disagreed on its validation2, but Ibn Taymya and Ibn Al Qayyem defended

against his attack3. It seems that they are more correct, as the text has been commonly

used by jurisprudents.

As for the text indication, there are two interpretations as follows:

Either it means that the judge should change his decision from one

jurisprudence viewpoint to another (of an acceptable discretions or variances),

Or he should change the legally incorrect decision.

There is an agreement among Islamic scholars on the latter case4, but it is relating

the cassation not the appellate. According to this interpretation, the judge should overrule

his previous mistaken decision and re-adjudicate correctly in the case.

For the first interpretation, most of Islamic jurists5 says that the judge could only

1 Ibn Shabbah, Op. Cit. Vol. 2, P: 775; Ibn Taymya said about that message: “Its chain of narration is

confirmed”, Minhaj Ahl As Sunna, Op. Cit. Vol. 6, P: 71; Ibn Alqayyim, Op. Cit. Vol. 2, P: 158. 2 Ibn Hazm, Ali Bin Ahmad, Al Ihkam Fi Usul Al Ahkam (The perfection in the source of rules),

dissemination of Muhammad Shakir, Dar Al Afaq Al Jadidah, n.d. Vol. 7, P: 145-148. 3 Ibn Taymya said about that message: “Its chain of narration is confirmed”, Minhaj Ahl As Sunna, Op.

Cit. Vol. 6, P: 71; Ibn Alqayyim, Op. Cit. Vol. 2, P: 158. 4 Ibn Qudamah, Op. Cit. Vol. 10, P: 51.

5 Ibn māzah, Op. Cit. Vol.: 3, P: 109; Qarāfy, Op. Cit. P: 80; As Suyūty, Jawāhir Al ûuqūd, Op. Cit. Vol.:

2, P: 293; Ibn Qudāmah, Al Mughny Op. Cit. Vol. 10, P: 50; Ibn Al Qayyim, Op. Cit. Vol. 1, P: 86F.


11



apply his new viewpoint on the following cases. This means that the change is not

applicable for preceding cases.

Omar, himself, when he changed his jurisprudence opinion, he refused to apply his

new viewpoint on a previous case of a similar situation1.

Anyhow, both interpretations are related to repeat hearing the case on front of the

same judge, so it couldn‟t be an evidence for hearing the case by higher appeal court.

1 Aber Razzaq, Op. Cit. Vol. 10, P: 249; Bayaqy, Op. Cit. Vol. 6, P: 255, Zahaby, Op. Cit. Vol. 2, P: 346.

Zahaby validated this tradition saying that its narration is good.


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4-2.1.2: EVIDENCES OF NON-LEGITIMACY OF APPELLATE IN ISLAMIC SHARIA:

Some scholars1 has inferred that the appellate is not legitimate way of objecting judicial

decrees in Islamic Sharia. Their unique evidence in this is the consensus of Islamic Jurists

that no judge has the authority to change or cancel the previous decision of other judge

except for the evident illegality cases.

They supported their viewpoint by the famous Islamic rule stating the “Discretion

shouldn‟t be cancelled by another discretion”2.

Also in this regard, Nabahany3 has mentioned various traditions related to the Prophet‟s

companions as follows:

The phrase of Ali (MABPWH) to the Christian delegation of Najran: “I will not

change the judgments of Omar”4.

Omar‟s famous judgment in inheritance when he changed his jurisprudence

opinion and refused to apply his new viewpoint on a previous case of a similar

situation5.

Another tradition of Omar (MABPWH) when someone told him the judgment

that has been pronounced by Ali and Zaid ((MABPWT) in his case. Omar told

him that he has different viewpoint in this case. The man asked Omar why he

doesn‟t rule his viewpoint owing to his higher judicial authority. Omar told him

that this is a case of different discretion, so he can‟t overrule the first judgment6.

Qarafy has confirmed that consensus and said: “thus, it is prohibited to overrule any

discretionary judgment by anyone”7.

Prof. Zidan inferred from the same consensus the second judicial rule in his dissertation

in Islamic Judicial System8. Also prof. Allam and prof. Othman confirmed the same

meaning9.

To discuss this consensus on prohibiting the cancellation of previous decrees of other

judges (except for the evident illegality cases), we have to check firstly its validation and

then discuss its indication as follows:

Firstly: the validation of the consensus:

There is no complete consensus on that rule, as Ibn Qudamah has mentioned two valid

interpretations of Imam Malik words in Mudawah (The Manuscript). He also referred to

the disagreement of Aby Thawr on this point, i.e. Abu Thawr think that a judge has the

authority to cancel whatever he find mistaken, either in discretionary cases or in the one-

1 Nabahany, Op. Cit. P. 160; Yaseen, Op. Cit. P: 140

2 Qarāfy; Op. Cit. P: 80Ff; This rule was a basic rule in the Mecelle (the Ottoman civil code), Art. 16.

3 Nabahany, Op. Cit. P. 160, Nabahany, Nidham Al Islam (Islamic System) Dar Al Ummah, 6

th edition,

n.d. P: 190. 4 Ibn Abi Shaybah, Op. Cit. Vol. 16, P: 65; Dhahaby, Op. Cit. Vol. 8, P: 4113. Dhahaby invalidated that

tradition. 5 Ibn Abdel Barr, Op. Cit. Vol. 2, P: 854; Ibn Alqayyim, OP. Cit. Vol. 1, P: 74.

6 Aber Razzaq, Op. Cit. Vol. 10, P: 249; Bayaqy, Op. Cit. Vol. 6, P: 255, Zahaby, Op. Cit. Vol. 2, P: 346.

7 Qarafy, Al Ihkam, Op. Cit. P: 41F.

8 Zidan, Op. Cit. P: 226.

9 Allam, Op. Cit. P: 165; Othman, Op. Cit. P: 563.


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viewpoint cases1. Regardless the correct opinion here, this could be enough to say that

there is no consensus2.

Secondly: The indication of the consensus:

It seems that this consensus doesn‟t indicate the prohibition of double-hearing principle,

as it is only related to what the judge should do when he hear a case for the second time.

It indicates the Islamic rules that should be followed by the judge in appellate, not

prohibiting the appellate itself.

In other expression, the consensus indicates the following:

When the judge thinks that the first-instance judgment is evidently legal, he

should confirm it,

When he thinks it is evidently illegal, he should cancel it and pronounce the

correct rule,

When he see that the first-instance judgment is relating to discretionary

jurisprudential opinion of the first judge, he should confirm it even if he has

different opinion in the case.

Therefore, there is no indication in the above mentioned consensus prohibiting the

appellate. This might give another different meaning of appellate than what‟s found in the

man-made laws. The appellate in man-made laws is based on giving the appeal court a

complete discretion authority on the case, but in Islamic Sharia the appeal court‟s

authority should be limited by the discretion of the first judge whereas it is not evidently

illegal.

This understanding was found in the appellate of Ottoman Civil Code as has been stated

in Mecelle: “If the sentenced is not convinced of the decree and requests another hearing,

the case should be examined as follows:

If the decree corresponds with the legitimate rules it should be confirmed,

If it does not correspond with the legitimate rules it should be cancelled”3.

Also this concept of appellate is found in the appellate system of Saudi Legal Civil Code

which states that:

“If the appeal court found the decree as a result matching the legislative rules, it should

confirm it”4.

1 Ibn Qudamah, Op. Cit. Vol. 10, P: 50.

2 Sheikh Eleish, Op. Cit. Vol. 8, P: 350F.

3 The Mecelle, Art. 1839.

4 Saudi Legal Civil Code, Art. 191.


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4-2.1.3: CONSIDERING THE PREPONDERANT OPINION

From the above mentioned study we could say that it is not possible to infer the appellate

from the following evidences:

Evidence Reason why it doesn’t indicate the appellate

The Judgments of

Dawūd and

Sulayman

mentioned in the

Qur‟anic verses and

in authentic Hadith.

The more preponderant viewpoint is that they indicate the civil

petition for review. In civil petition there must be a strong and

new factual reason that: „if the first-instance judge would have

known, he should have changed his decision‟. In appellate there

is no reason is required to accept the objection. It is only based on

the satisfaction of the litigant.

The tradition of Ibn

Mas‟ūd related to

the man found with

a woman inside her

robe.

The implementation of the decree have preceded the second

hearing without any objection from the Caliph, the companions,

or any following jurist. In appellate the rule is to postpone the

implementation till the decision of the high court is pronounced

or the deadline of the objection is over.

The message of

Omar (MABPWH)

guiding the judges

when changing their

jurisprudence

viewpoints.

If is relating the discretionary viewpoints, the judge should not

apply his new viewpoint in preceding cases, rather he should

apply it in new cases. This is what Omar himself has done in a

famous inheritance case.

On the other side, it also not possible to infer the non-legitimacy of appellate in Islamic

Sharia from the above mentioned consensus because the following reasons:

Some Islamic jurists have dissenting opinion and were enough to infringe that

consensus.

Also that consensus was not related to the appellate, but it indicates what the

judges of the appellate should do during the appellate case. It indicates that they

should not overrule the correct judgment even if it is related to a discretionary

opinion.

Thus, there would be logical defects in the inference of legitimacy or non-legitimacy of

the appellate in Islamic sharia from all the above mentioned evidences except for the

Hadith of Zuiba.

The indication in that Hadith is very clear and free of the defects mentioned above.

However, the only issue in the Hadith of Zubia is that it is was relating an exceptional

accident and were not applied as a general rule in its time period.

But the appellate rule could be one of the rules that the Islamic Sharia allowed it

generally to be applied later when the governing system is available. Many Islamic rules

has this feature.


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There is an example that both the scholars (those allowing or the others negating the

appellate) may agree. This example was that the judge was obliged to apply his own

legislative rule in the beginning of Islamic system1. However, most of Islamic jurists now

think that the legal system (where there are common rules for all judges) is also correct in

Sharia2. The legal system was not applied in most of Islamic ages. Most of jurists

confirmed that the judge has not to follow any general law or rule, but his personal

jurisprudence opinion. They also said „if the governor insists on a general law, judges has

to disobey him and if he made this a condition in judge recruitment, the recruitment is

invalid‟3.

This in modern Islamic jurisprudence has been changed. The Meccele of Ottoman Law

states that: “If the Sultan ordered a rule in a discretionary issue, no judge can apply

different opinion otherwise, his decision would not be executable”4.

Also, Saudi Legal Civil Law states that: “The accused can request cassation of the appeal

decrees if the reason is one of the following: 1- The decision is against the rules of

Islamic Sharia or the rules stated by the governor in consistently with Islamic Sharia…”5.

In addition The constitution project of Liberation Party states that: “The Caliph has the

authority to adopt discretionary jurisprudence opinions and make them general rules. In

this case, those rules must be the only applicable rules and all people must follow them”6.

It is noteworthy that Liberation Party infer this rule also from the consensus, although it

was not applied and was widely refused from scholars in the beginning of Islamic ages.

This means that there are some rules, Islam has only drown outlines for them or

mentioned something that could refer to their legitimacy, while in the practical

application they were not existents, because legal system has not developed yet and there

was also a proportional lack of cases and more of jurist judges.

1

Abu Zaid. Op. Cit. P. 46; Shathry, Op. Cit. P: 22; Islamic research Journal, permanent committee for

Islamic Research & Verdicts, KSA, Vol. 1, version 32, P: 32Ff. 2

Zarqa, Op. Cit. Vol. 1, P: 214-220; Zidan, Op. Cit. P: 207-215. 3

Abu Zaid. Op. Cit. P. 46; Shathry, Op. Cit. P: 22. 4 Meccelle, Op. Cit. Art. 1801.

5 Saudi Legal Civil Procedure Code, Art. 193.

6 Nabahany, Introduction of the constitution, Art. 2.