CAPITULO III: MARCO METODOLOGICO
3.4 Procesamiento y Presentación de Datos
3.4.1 Procesamiento de la Encuesta Dirigida a los Turistas
Ikhtisas al-Oadi.
Generally the appointment of a qadi may be restricted to a certain jurisdiction or to a certain time or month or days. For instance a qadi has a right of deciding cases on admission only not on proof, or in matters of debt but not of marriage. In such cases the qadi must not exceed the limit powers given to him. To discuss this topic it is better to divide it into;
1) al-ikhtisas al-makani, 2) al-ikhtisas al-zamani.
3) al-ikhtisas 'inda ta'aduddihim, 4) al-ikhtisas al-nau'i,
5) al-ikhtisas bi qadiyyah mu'ayyanah, 5) al-ikhtisas bi madhab mu'ayyan, 6) al-ikhtisas bi miqdar m u'a w a n . 7) al-ikhtisas bi ashkhas mua'yyanah.
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Al-Ikhtisas al-makani.
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Al-Ikhtisas al-makani means that the qadi has jurisdiction over a
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place or district prescribed to him. He is empowered to hear and determinei
disputes in his district, but has no power to intervene in disputes outside | his jurisdiction. 72 According to Mawardi, however, if a qadi has been {I appointed to a certain district he is empowered to try any disputes between - j residents in his area but not between those coming in from outside nor Î strangers. 73
Al-Ikhtisas al-Zamani.
With reference to this concept, a qadi has powers of jurisdiction to settle disputes restricted to certain days only. For instance, if a qadi has permission to hear cases on Monday and Tuesday, he can pass judgment only on those days. Ikhtisas then bases the qadi's jurisdiction on time, place and case.74 Whether the appointment of a qadi is to specific cases, he is still empowered to try any disputes between litigants, but is restricted to specific days which end at sundown. 75
Ikhtisas al-qadi 'inda ta'aduddihim .
Within this concept two or more qadis may be appointed to one place. A question has arisen whether this is valid or not, and on this subject different opinions have been given;
1) Some scholars hold this is valid if the appointments are specific in distinct districts. Every qadi has different jurisdiction and divergences of opinion needed to be avoided.
2) Others have said that the appointment of twb or n u ^ '^ M is to one place is valid so as long as there are distinct branches of business. For example, one qadi can hear and determine cases related to marriages, while another relates to m u'im alah, and a thirà to criminal quWfWhs.
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3) A question arises on the appointment of two or more qadis to one place without restricted powers. Again there are varied opinions:
a) Malik and some followers of Shafi'i maintain that thÈ is not
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valid. They argue that such appointments encourage disputes: between litigants, which makes further disputes between liiigah(s
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is m ade at the same tim e this appointm ent is invalid. W here appointments are staggered, the first is valid.
b) Hanbali, Hanafi and some Shafi'i scholars held that these | appointments were valid. They argue that the function of the judiciary
is to promote peace, in solving disputes between parties and enforcing
rights. They also argued that qadis are permitted to appoint successors. S As a qadi is a representative of the caliph, so, the caliph can be represented
by two or more qadis. In the event of litigants differing in the choice of a qadi, the plaintiff's choice should prevail. Where the parties stand on equal footing i.e by reason of claim and counterclaim, the qadi of closest territorial proximity should give judgment. Where two qadis are of equal proximity, the parties must draw lots or came to agreement before receiving a hearing. 76
Al-Ikhtisas al-N au'i.
The jurisdiction of the qadi within this concept is restricted to specific cases. For example, qadis have the right of jurisdiction in criminal cases only and not in those of marriage. In such cases, the qadi
y m ust not decide cases outside his jurisdiction. 77
Ikhtisas bi qadiyvah mu'ayyanah.
Mawardi argued that the jurisdiction of a qadi may be limited to specific litigants. He is responsible for hearing and determining one person's dispute until the end. Disputes of fresh litigants can be dealt with only under a fresh appointment. 78 it should be mentioned here, that the jurisdiction of the qadi is limited to hear and settle one case only.
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He is not allowed to hear another case, although in the same branch of business. In all cases, the name of the qadi must be specified. 79
Ikhtisas al-qadi bi madhhab mu'ayyan.
A ruler may appoint a qadi holding the legal tenets of his own school. He has to follow the ruling of the head of the sdiool to which he is attached. In this matter however, scholars have differing views. Some said that if he was mujtahid. he was not bound to limit himself to one school. He may adopt the opinion of other schools. In addition, he may make judgements based on al-Our'an, Sunna, Ijma' and use his own reasoning (ijtihad) to settle problems. If he is m uqallid, he should adhere to the tenets of one school. He is required to adhere to the school to which he is attached. A muqallid qadi cannot give judgment based on other schools. Abu Hanifa however is reported to have agreed that the qadi muqallid may base his judgment on other schools. 80
Al-Ikhtisas bi miqdar mu'a w an
Again the jurisdiction may be restricted to certain spheres. He may however attend a home or a mosque to facilitate his judgment. According to Mawardi, 'Abd al-Allah ibn al-Zubair reported that at Ba^a, it was the custom for a qadi to construe judgment in the Friday mosque on cases to the value of 200 dirhams or 20 dinars, including questions of maintenance (nafaqa). but nothing beyond this. 81
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Ikhtisas al- qadi bi ashkhas mu'ayyanah.
This method of jurisdiction of the qadi is restricted to certain litigants only. For instance, judgment is passed either for women or for men, and not allowed for both of them. 82
Hukm al-Oada'.
Actually this job is not a job to be sought and obtained but is offered for the competent and qualified person. If nobody fit for the office is available, those whose qualifications are close are eligible to be appointed. Most Muslim scholars discussed widely this situation. In general there are five situations. These situations are discussed below: 83
1) Fard 'Ain (obligation).- if there was only one qualified person. He should apply for the job as judge, otherwise he was a sinner. His appointment to the office of qadi was obligatory .
2) Sunnah (recommended)- if a number of people were qualified, the most learned and most capable person among them, who possessed the qualification of a qadi should accept the office because he was eligible for office.
3) Mubah (permissible)- if a number of people are qualified but had the same degree of knowledge in all aspects, anybody could be appointed to the office. He was able to refuse or to accept it without committing a sin.
4) M akruh (Indifferent)- if a number of people were qualified but there was one more qualified person among them, the others would
refrain from accepting the office. Thus any qualified person should give the job to the most qualified person among them. It is also m akruh to select a person who suspects that he is not capable of performing his duties and who is not confident of being able to act with a strict regard to justice. If we select them it will cause the propagation of evil. In fact, the acceptance of the office with an intention to maintain justice is approved, although it be more commendable to decline it, because it is a great undertaking notwithstanding a person may have accepted it from an opinion that he could be able to maintain justice. He may have erred in this opinion and afterwards stand in need of the assistance of others when such assistance is not to be had. Although it is most commendable to decline it if there be no other person so capable of discharging the duties, so it becomes a duty to mankind to accept it in order to preserve the right and to reject injustice. 84
However al-Marghinani maintains that one is neither to seek the appointment nor to desire it with asking because the Prophet has said, "Whosoever seeks the appointment of qadi shall be left to himself, but to him who accepts it on compulsion an angel shall descend and give directions". 85
5) H aram (forbidden)- if a person knows he is unable to undertake the responsibility and to exercise the office perfectly.
Al Mawardi, while discussing this aspect of whether or not it is permissible to seek office states: 86
1) if candidates for the office of qadi are not from the M uitahidin (ahl al-ijtihad), application is forbidden.
2) If candidates are from the M ujtahidin and meet the full