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Social security law

A Refereed Study
Court Clerk Conditions and Code
of Conduct in the Islamic
Jurisprudence
Dr. Ahmad Saalíh Al-Barraak*
* Member of Faculty, Princess Nourah bint Abur-Rahmaan Girls University, Riyadh. Court Clerk Conditions and Code of Conduct in the Islamic Jurisprudence
Introduction
All praise belongs to Allah, the Lord of all the worlds, and peace and blessings be upon our Prophet, Muhammad, his family and companions. One of the sublime objectives of the Islamic Sharee'ah is that it seeks to protect rights and prevent harms. Through the provisions of Sharee'ah human interests can be maintained and corruption and evil can be deterred. All this ultimately leads to communal stability and security and brings about happiness to all human beings. People in every community involve in disputes and differences; they differ in opinions, rights and many other aspects of life. If these disputes and differences are left to the judgment of litigants and their desires, if no constraints are placed to their extremes and if no rules are set forth to tame them, they will inevitably result in the spread of evil and corruption. Therefore, Islam addresses these natural differences and disputes through the judicial system with the aim of protecting human rights, lives and honour and realizing the public interests of communities and individuals alike. In view of the high position of the judicial system and the many duties entrusted to judges that largely depend on the requirements of people with regard to the settlement of disputes and litigations, judges have become in need of some persons who undertake some duties which are originally among the duties of the judiciary. These duties include documentation of proceedings, preparation of contracts, issuing notices and summons and preparing other related documents. All these duties are undertaken by the court clerk. In the following pages I will discuss the conditions and codes of conduct which court clerks should comply with and which equally apply to the notary public and other court officers. This paper consists of an introduction and five topics with some relevant issues which need to be elaborated on in different parts of this paper. Dr. Ahmad bin Saalih Al-Barraak
Topic One: Definition of the Court Clerk and his Post
I. Linguistic and Technical Definitions:
Linguistically speaking, the Arabic word "Kaatib"2 is derived from the
verb "kataba", meaning 'to write', and hence denotes the person who does the act of writing. Technically speaking, it denotes: 1. The person who undertakes writing of the proceedings of litigation in 2. The person of a legal capacity who writes proceedings and 3. The person who writes down the minutes of the sessions of court trials in the court's record which is used to document the proceedings of litigations, statements of litigants, testimonies, evidence, summons, notices and notifications. He also enters lawsuits in the record, writes the minutes of the court, types the judgments and carries out other court activities required by the judge.4 It seems to me that the first definition is the most proper one because the second definition is brief while the third one is a description of the duties of the court clerk rather than a definition of the post. II. The Court Clerk Post
As has already been stated under the third definition hereinabove, the
court clerk writes down the minutes of the sessions of court trials in the court's record which is used to document the proceedings of litigations, statements of litigants, testimonies, evidence, summons, notices and notifications. He also enters lawsuits in the record, writes the minutes of the court, types the judgments and carries out other court activities required by the judge.5 2 Al-Munjid, p. 671. 3 Al-Mu'jam al-Waseet, p. 775. 4 Judicial Organization in Saudi Arabia by Dr. Saud bin Duraib, p. 428. 5 Ibid, 428. Court Clerk Conditions and Code of Conduct in the Islamic Jurisprudence
In Minah Al-Jaleel we read, "The job of the court clerk is to write the proceedings of the litigation."6 A similar description is also given in Ash-Sharh Al-Kabeer.7 Topic Two: Types of Court Clerks
Court clerks can be of two types as follows: 1. The judge may have a clerk to write judgments, record lawsuits, evidence, declarations and the like. The court clerk is appointed by the judge to handle the affairs of Muslim litigants. Therefore, he should meet the conditions necessary for the post as will be detailed under the topic "Court Clerk Conditions" hereinafter.8 According to the new Law of the Judiciary, this post includes the notary public due to the fact that the duties assigned to the holder of this post have expanded. Therefore, this type of clerk has become independent from the judge. The duties of the notary public now include considering declarations and all other documents provided for in the special instructions outside the authority of general and partial courts. 2. The judge may have a clerk for his own business which has nothing to do with the affairs of the public. This type of clerk is not required to meet the conditions applicable to the one appointed by the judge for general public affairs. In Al-Um, Ash-Shaafi'ee writes, "The clerk chosen by the judge to handle the affairs of Muslims should be of legal capacity and acceptable testimony. He should be of good mental capabilities so that he may not be deceived, of good juristic background so that he may not be cheated as a result of his ignorance and he should be pious and free from avarice. However, if the clerk is appointed by the judge to handle his own business rather than that of the public, there is no objection to choose anyone he likes."9 In view of the expanding activities of people and trades and the development and diversity of disputes and litigations, some clerks are 6 See Minah Al-Jaleel, 8/291. 7 Ash-Sharh Al-Kabeer by Ibn Abi Umar printed with Al-Muqanna', 28/365. 8 In Saudi Arabia, the post is called "Proceedings Clerk". 9 Al-Um, 6/216; Hashiyat Qalyoobee and Umairah, 4/301-302 and Mughnee Al-Muhtaaj, 6/282. Dr. Ahmad bin Saalih Al-Barraak
appointed independent from the judge and court sessions with the duty to write contracts of sale, powers of attorney, releases and similar documents that have nothing to do with litigations. Topic Three: Legitimate Appointment of a Court Clerk
The Islamic Sharee'ah considers writing transactions that people exchange especially as related to rights, wills and the like very important for such an act of writing documents rights, protects and maintains liabilities and prevents potential disputes. Evidence from the Holy Qur'an and the Prophet's Sunnah supports writing of rights and covenants. This requirement is more applicable to the court clerk. In the Holy Qur'an we read, "O you who believe! When you deal with each other, in transactions involving future obligations in a fixed period of time, reduce them to writing Let a scribe write down faithfully as between the parties."10 In the above Qur'anic statement, it is clear that writing is very In the Prophet's Sunnah we are told that the Hudaibiyah Treaty11 was ordered to be written by the Prophet (peace and blessings be upon him). Moreover, the Prophet's act of appointing Zayd bin Thabit and others as clerks is a clear evidence supporting appointing a court clerk.12 Based on the above and as the duties of the judge have expanded to a great extent, the judge has become in need of some officers who help him in performing his duties and administering some of the actions that are part of his job. These duties are undertaken by the court clerk. Jurists argue that the judge is normally busy with deliberation on cases presented to him, and hence he cannot write the minutes of the session. 10 Surat Al-Baqarah: 282. 11 Reported by Al-Bukhaaree, Book of Conditions, # 2731 and # 2772, 2/281. 12 Reported by al-Bayhaqi in al-Sunan al-Kubra, 10/126, Book of Judge's Code of Conduct, Court Clerk Conditions and Code of Conduct in the Islamic Jurisprudence
In Badaa'i' As-Sanaa'i' we read, "Among them, namely the judge's conditions, is that the judge should appoint a clerk because he needs to write down lawsuits, evidence and declarations. He may not be able to write down these documents himself. Therefore, he needs someone to write them down for him."13 In Mu'een Al-Hukkaam we also read, "Including choosing a clerk to write for him the proceedings that take place in the court session."14 In Minah Al-Jaleel we read, "The judge by way of obligation appointed a clerk of legal capacity to write down the proceedings."15 In Tabsirat Al-Hukkaam we read, "Including choosing a clerk to write the proceedings of the court session."16 In Al-Minhaaj and its Commentary we read, "He should appoint an evaluator and a clerk who should be a Muslim and of legal capacity and who should be proficient in writing minutes and records and is advisable to have a juristic background, good mental capabilities and good handwriting."17 In Kashaaf Al-Qinaa' we read, "It is advisable for the judge to appoint a clerk because the Prophet (peace and blessings be upon him) appointed Zayd and others as clerks. The judge is busy with many other things and cannot write what needs to be written in the court session."18 13 Badaa'i' As-Sanaa'i', 7/12. 14 Mu'een Al-Hukkaam, p. 18. 15 Minah Al-Jaleel, 8/292. 16 Tabsirat Al-Hukkaam, 1/35. 17 Mughnee Al-Muhtaaj by Ash-Shirbinee, 6/282. 18 Kashaaf Al-Qinaa', 6/319. Dr. Ahmad bin Saalih Al-Barraak
Topic Four: Court Clerk Special Conditions and Code
of Conduct
This topic can be delineated in two sections as follows:
I. Special Conditions:
The court clerk who is entrusted with the mission of writing down and
documenting rights, litigations, declarations and similar documents need to meet some special conditions as follows: 1. He should be a Muslim:
Jurists differ as to appointing a non-Muslim clerk as follows:
1st Opinion: The court clerk should be a Muslim according to the
Hanafites,19 the Maalikites,20 the Shaafi'ites21 and the Hanbalites.22 a. In support of their opinion, they quote the Qur'anic statement: "O you who believe! Take not into your intimacy those outside your ranks."23 This means that a person following any religion other than Islam should not be appointed as a clerk in an Islamic court. b. Abu Musa al-Ash'aree (may Allah be pleased with him) who was the Kufa judge at the time of Umar bin al-Khattab (may Allah be pleased with him) visited Umar, accompanied by a Christian clerk. Umar liked the writings of the clerk and asked Abu Musa to ask his clerk to read some of his writings. Abu Musa told Umar that the clerk could not enter the mosque because he was a Christian. Umar ordered him to dismiss the clerk.24 19 Badaa'i' As-Sanaa'i', 7/12 and Mu'een Al-Hukkaam, p. 18. 20 Hashiyat Ad-Dusooqee alaa Ash-Sharh Al-Kabeer, 4/138; Tabsirat Al-Hukkaam, 1/35 and 21 Mughnee Al-Muhtaaj, 6/382 and Adab Al-Qaadhaa', 1/326. 22 Kashaaf Al-Qinaa', 6/319. These conditions and the ones that will follow are special for the court clerk. Any other clerk chosen by the judge for his own business is not required to meet these conditions. 23 Surat Aal Imran: 118. 24 Reported by At-Tirmidhee, 3/614. Court Clerk Conditions and Code of Conduct in the Islamic Jurisprudence
c. The job of the clerk requires him to be trustworthy for he is entrusted with all he writes and hears. A non-Mulsim should not be entrusted with the affairs of Muslims. d. Islam is a condition to achieve legal capacity; a non-Muslim is not of However, it is argued that the condition of legal capacity is a point of difference as will be discussed in the second condition hereinafter. The question that rises here is: Is Islam a condition to achieve legal capacity? 2nd Opinion: The judge may appoint a non-Muslim clerk under two
a. There is necessity for that, and b. The judge should check all the writings of the clerk. This is the opinion expressed by some of the Maalikites25 and a They argue that anything written by a non-Muslim clerk should be checked by the judge, and hence no mistrust is feared. The preponderant opinion, I think, is the second one for it subjects the appointment of a non-Muslim clerk to necessity and the judge's checking of what the clerk writes. 2. He should be of Legal Capacity
Jurists differ as to the applicability of this condition in three opinions as
1st Opinion: The clerk should be of legal capacity as contended by the
majority of Hanafites,27 Maalikites,28 Shaafi'ites29 and Hanbalites.30 They argue that the job of the clerk involves trust and that no trust may be realized if the clerk lacks legal capacity.31 25 Tabsirat Al-Hukkaam, 1/35-36 and Minah Al-Jaleel, 8/290-291. 26 Adab Al-Qadhaa' by Ibn Abi Ad-Dam, 1/326 and Mughnee Al-Muhtaaj, 6/382. 27 Badaa'i' As-Sanaa'i', 7/12 and Mu'een Al-Hukkaam, p. 18. 28 Hashiyat Ad-Dusooqee alaa Ash-Sharh Al-Kabeer, 4/138; Tabsirat Al-Hukkaam, 1/35 and 29 Al-Um, 6/216; Mughnee Al-Muhtaaj, 6/382 and Adab Al-Qaadhaa', 1/326. 30 Kashaaf Al-Qinaa', 6/319 and Badaa'i' As-Sanaa'i', 7/12 Dr. Ahmad bin Saalih Al-Barraak
2nd Opinion: It is advisable but not mandatory to appoint a clerk of
legal capacity according to some of the Shaafi'ites.32 They argue that anything written down by the clerk should be checked by the judge, and hence there is no use of stipulating legal capacity for the clerk.33 3rd Opinion: It is permissible to have a court clerk who is not of legal
capacity in case of necessity according to the Maalikites.34 They argue that the judge should check the writings of the clerk,35 and hence lack of legal capacity has no negative effect. The preponderant opinion, and Allah knows best, is the third one because it is the moderate one especially that the other two opinions are not supported by evidence that make their arguments stronger. 3. He should have knowledge of the rules of writing
He may make a mistake in writing a word which may change the whole
meaning or which those who come after him may not be able to figure out.36 4. Number
Some of the Maalikites37 are of the opinion that more than one court
clerk should be appointed while the majority of jurists do not mention the condition of number of clerks.38 5. Freedom
Jurists differ as to the applicability of this condition to the court clerk in
two opinions: 31 Kashaaf Al-Qinaa', 6/319. 32 Al-Um by Ash-Shaafi'ee, 6/210; Rawdhat At-Taalibeen, 8/119 and Al-Muhadhab, 2/294. 33 Rawdhat At-Taalibeen, 8/119 and Al-Muhadhab, 2/291. 34 Tabsirat Al-Hukkaam, 1/35-36. 35 Ibid, 1/35-36. 36 Badaa'i' As-Sanaa'i', 7/12; Mu'een Al-Hukkaam by At-Tarabulsee, p. 18; Tabsirat Al- Hukkaam, 1/35; Mughnee Al-Muhtaaj, 6/382; Adab Al-Qadaa' by Ibn Abi Ad-Dam, 1/326 and Kashaaf Al-Qinaa', 6/319. 37 Minah Al-Jaleel, 8/291. 38 Badaa'i' As-Sanaa'i' ; Mu'een Al-Hukkaam by At-Tarabulsee ; Tabsirat Al-Hukkaam; Mughnee Al-Muhtaaj; Adab Al-Qadaa' by Ibn Abi Ad-Dam, Kashaaf Al-Qinaa' and Al-Muqni' with Ash-Sharh Al-Kabeer, 28/364-365. Court Clerk Conditions and Code of Conduct in the Islamic Jurisprudence
1st Opinion: Freedom is a basic condition for the appointment of a court
clerk. This is the opinion of the majority of jurists from the Hanafites,39 the Maalikites,40 the Shaafi'ites41 and the Hanbalites.42 They argue that his testimony may be required in some cases and as testimony cannot be accepted from a slave, it becomes necessary for the clerk to be a free man in order for his testimony to acceptable according to the unanimous opinion of jurists.43 However, it is argued that this justification is not enough to impede 2nd Opinion: The judge may appoint a slave clerk according to some
They argue that the slave's testimony is acceptable and thus appointing him as a court clerk because it is part of testimony.45 The preponderant opinion, and Allah knows best, is the second one which does not stipulate freedom for the court clerk. I have not found in the argumentation given by those who objecting to appointing a slave court clerk any strong points. However, it should be noted that if a free man and a slave apply to the job, the free man should be given preference. 6. He should be of acceptable testimony.46 Some jurists argue that the
judge may need his testimony.
II. Court Clerk's Code of Conduct
The court clerk should abide by certain morals and ethics. These are as
1. He should be familiar with the rules of jurisprudence: This condition is important because the clerk is required to know the connotations of legal terms and how to formulate them. Only those having knowledge of 39 Mu'een Al-Hukkaam by At-Taraabulsee, p. 18 and Badaa'i' As-Sanaa'i', 7/12 40 Tabsirat Al-Hukkaam, 1/35-36 and Minah Al-Jaleel, 8/290. 41 Adab Al-Qadaa' by Ibn Abi Ad-Dam, 1/326 and Mughee Al-Muhtaaj, 6/382. 42 Kashaaf Al-Qinaa', 6/319. 43 Badaa'i' As-Sanaa'i', 7/12; Mu'een Al-Hukkaam, p. 18. 44 Ash-Sharh Al-Kabeer by Ibn Abi Umar printed with Al-Muqni' and Al-Insaaf, 28/366. 45 Ibid, 28/366. 46 Badaa'i' As-Sanaa'i', 7/12 and Al-Um, 6/216. Dr. Ahmad bin Saalih Al-Barraak
jurisprudence can assume such a post. If he lacks knowledge of jurisprudence, he may misunderstand the statements of litigants. In this way, he may drop some words which cause harm to either litigant.47 2. He should be pious, committed and alert. Piety and commitment to religious duties is part of trust which only pious people who fear Allah and His punishment may observe.48 3. He should have a good handwriting so that the reader may be able to read it and so that meanings would be clear.49 4. He should be of good mental capabilities50 so that he may not be 5. He should have knowledge of grammar so that his writings are 6. He should sit close to the judge so that the judge can see what he is writing and to be able to dictate to him what he needs to write in the minutes.51 47 Badaa'i' As-Sanaa'i', 7/12; Mu'een Al-Hukkaam, p. 18; Tabsirat Al-Hukkaam, 1/35; Adab Al- Qadaa' by Ibn Abi Ad-Dam, 1/336 and Kashaaf Al-Qinaa', 6/319. 48 Badaa'i' As-Sanaa'i', 7/12; Mu'een Al-Hukkaam, p. 18; Tabsirat Al-Hukkaam, 1/35; and 49 Mu'een Al-Hukkaam, p. 18; Kashaaf Al-Qinaa', 6/39, Al-Iqnaa' with Ash-Sharh Al-Kabeer, 28/364-365; Adab Al-Qadaa' by Ibn Abi Ad-Dam, 1/336 and Mughnee Al-Muhtaaj, 6/382. 50 Mu'een Al-Hukkaam, p. 18; Tabsirat Al-Hukkaam, 1/35; Mughnee Al-Muhtaaj, 6/382; Adab Al-Qadaa' by Ibn Abi Ad-Dam, 1/336 and Kashaaf Al-Qinaa', 28/365. Court Clerk Conditions and Code of Conduct in the Islamic Jurisprudence
Topic Five: Conditions of Writing
There are some conditions that should be met when writing and documenting contracts, suites, proceedings and other documents since these conditions have clear effects on the documentation and recording of contracts as well as easy reference to them when required.52 These conditions are as follows: 1. The document, be it a contract, a suite or a declaration should begin with "In the Name of Allah, Most Gracious, Most Merciful".53 The Prophet (peace and blessings be upon him) asked the writer who wrote the Hudaibiyah Treaty to begin with "In the Name of Allah, Most Gracious, Most Merciful".54 2. The writing should be legible and the pen should be free from defects that may adversely affect the writing so that the handwriting would not be confusing for the reader. 3. The writing should be in clear and words. The clerk should avoid using confusing words which have more than one meaning and metaphorical vocabularies which are not understandable to ordinary people. 4. The clerk should, as much as possible, use a good ink that cannot be erased and that is not obliterated by substances. 5. The clerk should mention the names of litigants in full as well as the name of the judge in full.55 He should also mention the titles of litigants if needed.56 52 Some of these conditions are mentioned by jurists but others are not. I have added some of them. Those mentioned by jurists are referred to in the footnotes. I have ordered them according to their importance. 53 Kashaaf Al-Qinaa, 6/367-368 and Tabsirat Al-Hukkaam, 1/283. 54 Reported by Al-Bukhaaree, Book of Conditions, # 2731, # 2772, 2/281; Sharh Tuhfat Al- Hukkaam by Mayyarah Al-Faarisee, 1/42 and Kashaaf Al-Qinaa', 6/367-369. 55 Fathul Baaree, 5/358; Kashaaf Al-Qinaa', 6/367; Tabsirat Al-Hukkaam, 1/283-292; Sharh Tuhfat Al-Hukkaam, 11/42 and Kashaaf Al-Qinaa', 6/367. 56 Fathul Baaree, 5/388 on the story of the Hudaibiyah Treaty, Book of Conditions, # 2731 and Dr. Ahmad bin Saalih Al-Barraak
6. The clerk should state the place of litigation, the subject of dispute, the type of judgment and the conditions and exceptions, if any.57 7. The clerk should state the date by day, month and year. 8. The clerk should use all means possible to document his work and protect it like making several copies of his documents in a way that they are not mixed with each other or with different documents. He should also protect his documents from being used by others except with his permission.58 Modern means of writing, typing and storing should be used for this purpose. 9. The clerk should stamp all documents with the court seal in order to avoid any type of change or forgery later on.59 10. The clerk should mention the names of witnesses and indicate their presence or absence at the time of writing. Their testimonies, if they are absent, should also be stated if communicated in a legal way.60 It should be noted that the clerk should indicate that he has checked the names of witnesses, their places of domicile and other particulars.61 11. The hearings of litigations should be signed by the litigants, There is no objection to translate some documents and litigations into other languages if needed provided that they are checked by the judge and the litigants. 12. The proceedings of litigation should be executed in several copies and advanced means of copying should be used like computers and photocopiers. 57 Kashaaf Al-Qinaa', 6/367. 58 Adab Al-Qadaa' by Ibn Abi Ad-Dam, 1/346 and Kashaaf Al-Qinaa', 6/319, 367 and 369. 59 Adab Al-Qadaa' by Ibn Abi Ad-Dam, 1/369. 60 Kashaaf Al-Qinaa', 6/368-369. 61 Tabsirat Al-Hukkaam, 1/272-273. 62 Kashaaf Al-Qinaa', 6/368-369. Court Clerk Conditions and Code of Conduct in the Islamic Jurisprudence
Conclusion
All praise is due to Allah by whose blessings all things turn perfect and by whose support all obstacles can be overcome; we praise and thank him in all conditions. After completing this paper on the conditions and code of conduct of the court clerk in which I have put down all that I have found necessary, I hope to have done my best to make it clear without any errors. If I have been right, it is because of Allah's help for which I thank Him and if there is any error, I seek Allah's forgiveness for it. All I can say is that I meant to do my best. I pray to Allah to make this paper useful for me and for the readers and May Allah's peace and blessings be upon our Prophet Muhammad, his

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