Судебная система (75-95)
- Категория: Судебная система (75-95)
Статья 81: Судья имеет право выносить приговор лишь в зале суда. При этом свидетельские показания и клятвы не принимаются во внимание, если они были исполнены за пределами зала суда.
Article 81: The judge can only give a verdict in a court session, and any evidence and oaths can only be considered in the court session.
Its evidence is what is narrated by ‘Abd Allah Bin Al-Zubayr who said,
«قَضَى رَسُولُ اللَّهِ أَنَّ الْخَصْمَيْنِ يَقْعُدَانِ بَيْنَ يَدَيِ الْحَكَمِ»
“The Messenger of Allah commanded that the two litigants sit in front of the judge (between his hands) .” (reported by Ahmad and Abu Dawud with the wording from Abu Dawud). This narration explains the form in which judgement is carried out and it is a lawful form in itself. There must be a specific form in which the judicial process be conducted, which is for the two disputing parties to sit before the ruler, and this would be the court session. Therefore, this is a condition for the validity of the judicial process i.e. it is imperative that there be a specific assembly where the judgement is to be conducted for it to be a valid judgement and this would be for the two disputing parties to sit before a ruler. This is supported by the narration of Ali (ra) when the Messenger of Allah said to him:
«يَا عَلِيُّ، إِذَا جَلَسَ إِلَيْكَ الْخَصْمَانِ فَلاَ تَقْضِ بَـيْـنَهُمَا حَتَّى تَسْمَعَ مِنَ الآخَرِ كَمَا سَمِعْتَ مِنَ الأَوَّلِ»
“O ‘Ali, When two litigants sit in front of you, do not decide till you hear what the other has to say as you heard what the first had to say.” (reported by Ahmad), which also explains the specific form with his words
إذَا جَلَسَ إِليكَ الخَصْمَانِ
“when two litigants sit in front of you”. So the court session is a condition for the validity of the judgement, and in the same manner it is a condition for the consideration of the oaths, due to the words of the Messenger
«وَلَكِنَّ الْيَمِينَ عَلَى الْمُدَّعَى عَلَيْهِ»
“and the oath is upon the one who was accused (defendant)” (agreed upon from Ibn Abbas), and he would not have this attribute, the attribute of being accused, except in a court session. In the same manner, there would be no consideration for evidence unless given in a court session, due to the words of the Messenger
«الْبَيِّنَةُ عَلَى الْمُدَّعِي»
“The onus of proof is upon the claimant (plaintiff)” (reported by Al-Bayhaqi with an authentic chain as Ibn Hajar said), and this attribute would not be given except in the court session.