تجريح القضاة ومخاصمتهم/صالح النشاط

Main ideas and concepts

• Meaning of “discrediting” (tajrih)

  • The word tajrih comes from a root meaning to discredit.
  • In Islamic sciences of Hadith there is a related field: “al-jarh wa al-ta‘dil” (discrediting and authenticating), used to evaluate the reliability of Hadith narrators.
  • This Hadith-evaluation framework is used as an analogy for how legal systems handle questioning the credibility/suitability of decision-makers (e.g., judges).

• Goal of justice and impartiality

  • The purpose of these procedures is to achieve justice and protect it from anything that could compromise fairness.

• Key distinction: “recusal” vs. “challenging” a judge

  • Recusal (disqualification before the case starts)
    • Happens before the judge even considers the case.
    • Based on relationships or personal interest that could compromise impartiality.
    • Core idea: a judge cannot be both the judge and an opposing party to the same matter.
  • Challenging (during case consideration)
    • Happens while the judge is reviewing/handling the case.
    • Typically based on fraud, deception, or treachery by the judge (or similar misconduct), used to safeguard integrity and rights.
    • Mentioned as proceeding quickly because judges are human and can err.

• Denial of justice

  • Defined as a judge’s refusal to rule even when the case is ready for decision.
  • Example: if a hearing session is scheduled (e.g., Thursday) and judges still do not issue a ruling despite readiness.
  • A process is described involving court notices:
    • The head clerk issues notices to the judge (and/or judge[s] concerned) that the case is ready and requires a decision.
    • If those notices do not result in action, the judge may be considered to be in denial of justice.
  • The speaker states this topic will be covered in a future episode.

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Methodology / procedure details (structured)

A) Recusal of judges (before the case is considered)

Grounds mentioned for recusal include:

• Personal interest / direct or indirect relationship between the judge and a party, such as:
  • The judge’s wife
  • The judge’s children
  • Or other close persons connected to the judge
• Family ties, including:
  • A marital relationship with a party (stated as sufficient even up to the extent of cousinship, per Article 295)
• Prior or ongoing case relationship within the last two years
  • Between a judge (on the panel) and one of the parties: pending or concluded within the past two years
• Debt relationship
  • Where the judge is indebted to one of the parties (e.g., judge is a lender to that party)
• Legal representation
  • If the judge was the legal representative of one of the parties
• Subordination / employment or dependency
  • Example: one party was employed by the judge, including in contexts like security or work related to the judge’s residence/villa and its adjacent property
• Friendship or enmity
  • If there is friendship (e.g., frequent social visits, coffee visits, family-level interactions)
  • Or enmity between judge and a party

Key principle:

• Recusal removes the judge from that particular case to ensure impartiality.

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B) Challenging a judge (during case consideration)

Under the civil procedure framework, grounds include:

• Fraud, deception, or treachery
  • By the judge presiding over the case during preparation or judgment, or by the public prosecutor (as mentioned)
  • Examples provided:
    • Receiving bribes or inducements
    • Threats
    • Falsifying documents in the case file
    • Deceiving parties
    • Concealing the truth
• Legal text authorization
  • A third possibility mentioned: if a legislative text explicitly allows such a challenge in that situation.
• Denial of justice (also treated as a basis for challenge)
  • When the judge refuses to rule on ready issues/articles.
  • “Ready” cases are described as those becoming ready after steps such as:
    • scheduling another session,
    • witnesses being present, etc.
  • The behavior includes delaying/postponing without rendering judgment despite scheduled sessions.

Procedure outcome:

• This kind of challenge is said to be raised to the Court of Cassation, which reviews challenges.

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C) Challenging judges in relation to the Public Prosecution

The speaker clarifies:

• In the Criminal Procedure Code, judges of the Public Prosecution cannot be challenged
  • (stated: Article 274 in the Criminal Procedure Code).
• In civil proceedings, the Public Prosecution may appear as:
  • an original party (organizing/initiating party in civil cases), or
  • an organizing party.
• If it acts as an organizing party, its authority can be challenged.
• If it is a principal/original party, its authority cannot be challenged.

Example application:

• In personal status cases (under the Family Code), the Public Prosecution is treated as an original party, so judges relating to that authority cannot be challenged.

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Legal references cited (as mentioned)

• Civil Procedure Code
  • Article 295 (recusal grounds)
  • Article 391 (challenging/fraud deception treachery)
  • Articles ~394–400 (discussing challenging judges)
• Criminal Procedure Code
  • Article 2003 (general mention; later clarified as comparison)
  • Article 273 (mentioned in relation to recusal)
  • Article 270 (mentioned for judges challenged)
  • Article 274 (judges of Public Prosecution cannot be challenged)
• Family Code / Personal Status
  • Personal status cases treat the Public Prosecution as an original party.

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Speakers / sources featured

• Video speaker (unspecified by name):
  • An Islamic-legal instructor/lecturer explaining procedures for recusal, challenging judges, and denial of justice.
• Islamic Hadith science framework (source concept):
  • al-jarh wa al-ta‘dil (discrediting and authenticating) applied to Hadith narrators.
• Legal codes and articles (sources):
  • Civil Procedure Code (Articles 295, 391, and ~394–400)
  • Criminal Procedure Code (Articles 273, 270, 274, and others referenced)
  • Family Code / Personal Status Code (context for Public Prosecution role)
• Court system:
  • Court of Cassation (reviewing challenges)
• Court officials:
  • Head clerk of the court (issuing notices in denial of justice procedure)