In the name of Allah, the Most Gracious, the Most Merciful

Summary of the Book "Distinguishing Judicial Judgments" A Jurisprudential Study on the Oversight of Judgments and Their Reversal or Approval by His Excellency Sheikh Abdullah bin Muhammad Al-Khunaine May Allah grant him success 

Summary

Abdulilah bin Abdulrahman Al-Suqaihi

1440 AH 

This summary does not replace the original

1- The occurrence of errors in judgments is a possible reality. The Prophet Muhammad (peace be upon him) said in the hadith of Umm Salama (may Allah be pleased with her): "I am only a human being, and you bring your disputes to me. Perhaps some of you are more eloquent in presenting his case than others, so I may rule in favor of one of you based on what I hear. If I rule in favor of someone's right over his brother, he should not take it, for I have only cut him a piece of fire."

2- Prophets have reversed each other's judgments due to errors in establishing facts, as in the case of Prophet David reversing the judgment of Prophet Solomon, peace be upon them.

3- The book is titled "Distinguishing Judicial Judgments" because distinguishing is broader than reversal and has a wider connotation; it applies to both the reversal and affirmation of a judgment, while reversal is the opposite of affirmation.

4- The Sharia is keen on protecting judgments from ailments, which revolve around two matters: ignorance and desire.

5- Distinguishing judgments – in research -: Studying the judicial judgment and its reasons by the competent court, and then either upholding it or revealing its invalidity and reversing it.  

6- Upholding the judgment: Approving the judgment and enforcing it with the agreement of the one who distinguishes it.

7- Reversal of judgments: Revealing the invalidity of the judgment whenever it includes one of the reasons that necessitate that.

8- Legitimacy of distinguishing judicial judgments: 

• - Allah Almighty said (And when David and Solomon judged concerning the field when the sheep of a people overran it... verse) David ruled a judgment, and Solomon followed him with another judgment reversing it. Ibn Al-Arabi said (This verse is evidence that a judge can retract what he has ruled if it becomes clear that the truth is otherwise).

• - Allah Almighty said (Indeed, We have sent down to you the Book in truth so that you may judge between the people as Allah has shown you) In this verse, there is a command to judge between people based on what has appeared from the truth, and it is understood that judging otherwise is subject to reversal.

•  - It was narrated in the Sunnah from the hadith of Abu Huraira (may Allah be pleased with him) that the Messenger of Allah (peace be upon him) said: "While two women were with their sons, a wolf came and took one of the boys. One of them said to her companion: 'Your son has been taken.' The other said: 'No, your son has been taken.' They brought their case to David, who ruled in favor of the elder. They went to Solomon, son of David, and informed him. He said: 'Bring me a knife so I can cut him in two between you.' The younger woman said: 'No, may Allah have mercy on you, he is her son.' So he ruled in favor of the younger woman.) This hadith indicates the permissibility of reversing a judgment even if the judge is more esteemed than the one reversing it.

• - What was mentioned in the judgment of Ali (may Allah be pleased with him) in the story of those who built a cage for the lion, when it was presented to the Prophet (peace be upon him), he approved Ali's judgment.

• - Scholars have unanimously agreed that clear injustice and obvious error must be reversed and rejected by the one who ruled it.

• - What was mentioned in the letter of Umar ibn Al-Khattab (may Allah be pleased with him) to Abu Musa Al-Ash'ari, which included (Do not let a judgment you made yesterday, after you reconsidered it and were guided to your right, prevent you from returning to the truth; for the truth is ancient, and returning to the truth is preferable to persisting in falsehood).

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9- Methods of oversight on judicial rulings:

• A- Preemptive oversight on judicial rulings. B- Post-judgment oversight on judicial rulings.

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10- A- Preemptive oversight on judicial rulings and its forms: This method is done through consultation, where the judge consults before issuing the judgment. Ya'qub ibn Sufyan narrated from Al-Sha'bi that he said (Whoever wishes to take the document from the judiciary should take from the judgment of Umar; for he used to consult). Preemptive oversight on judgments has taken three forms: 1- The judge consulting whom he sees fit, and the consultant is a person of integrity without authority. 2- The judge appointing advisors in his council on a recommended basis to consult them on what is unclear to him. 3- Judicial consultation in authority, which was known in Morocco and Andalusia through the judge sending what he has recorded of facts to the muftis to study it, then a fatwa would be issued to the judge to rule by it.  

11- B- Post-judgment oversight on judicial rulings and its paths: It has two paths: 1- The regulatory method: In this method, individual scholars who are not specialized in reversing judgments but have the ability to distinguish them review the judgments, and they write to the judge about the errors in his ruling that necessitate reversal. This method is based on enjoining good and forbidding evil. 2- The authoritative method: This refers to the scrutiny of judges' rulings and reviewing them by a competent authority, and it has forms in the history of Islamic judiciary, which are: A- Scrutiny of judges and their rulings: This is done by the Imam, as they are his deputies, whether the Imam does this on his own initiative or based on a complaint from someone. B- Reviewing a judgment issued by a judge: If a judge issues a judgment and has a doubt about it, it is permissible to reconsider it to clarify or eliminate the doubt. It was mentioned in the letter of Umar ibn Al-Khattab (may Allah be pleased with him) (Do not let a judgment you made yesterday, after you reconsidered it and were guided to your right, prevent you from returning to ...). C- Reviewing the judgments of others by the judge: Scholars generally mentioned that if a complaint is made to a judge about the judgment of a previous judge, he has the right to look into it; whatever is deserving of reversal, he reverses, and whatever is valid, he enforces and upholds. D- Establishing a competent court to review and distinguish judgments.

12- Conditions for reversing a judgment: 

• 1- The reversed judgment must be deserving of reversal (the reasons for reversal will follow). 

• 2- The one reversing must be specialized: Reversal is specific to judges, and it is not permissible for muftis to reverse judgments due to their lack of authority; for one who does not possess the contract does not possess the solution.  

• 3- The reverser must be free from anything that compromises his impartiality: If the reverser is prohibited from ruling in the case due to a conflict of interest, such as being related to one of the parties, he cannot reverse or uphold the judgment. There are two cases for prohibition in this scenario: 1- If he is prohibited from ruling in the original case, such as if the claim is against his ancestor, descendant, or spouse, etc. 2- If the judge whose judgment is being reviewed is the son of the reverser or someone whose testimony is not accepted for him, he cannot uphold or reverse the judgment. The prohibition is evident in the case of upholding, and in the case of reversal, it is a precaution for the right; for he may be driven by his strong caution against suspicion to reverse what should not be reversed.  

• 4- The request of the holder of the private right for reversal: Scholars have differed on whether the reversal of a judgment, when an error becomes apparent, requires the request of the holder of the right or not, with two opinions: the first is that the judgment is reversed if an error becomes apparent and it deserves reversal even without the request of the holder of the right; for reversing the invalid judgment is a right of Allah. The second is that if the right belongs to Allah, the judgment is reversed without the request of anyone; for the judge has the authority over the rights of Allah. However, if the right belongs to a human, it is not reversed except at the request of the holder of the right; for the right belongs to him and cannot be fulfilled except by his request, and the judge does not have authority over private rights, which is what the Sheikh preferred. If the judge becomes aware of the invalidity of the judgment, is he obliged to inform the holder of the right to request reversal? There are two opinions on this: the first is that the judge must inform both parties of this; for they may assume that the judgment is not reversed even if the error becomes apparent. The second is that the judge is not obliged to inform both parties if he knows that the error has become apparent, but if they bring the case to him, he reverses the judgment.  

• 5- The reverser must be aware of the judgment and what it is based on: There is a disagreement about the necessity of the presence of both parties before the reverser, and it appears that the reverser must be fully aware of everything that transpired in the case, and the presence of both parties is not a condition. This is based on the practice of requesting reversal before the Supreme Court.

• 6- Justification for reversal:  The reverser must document the reasons for the reversal of the judicial judgment based on legal reasons such as contradicting the Quran and Sunnah or the words of scholars, or factual reasons such as the lack of proof of the fact or contradictions in the claim, etc. Scholars have not disagreed on its legitimacy, but they have differed on its necessity, with the prevailing opinion being that it is necessary; for this leads to diligence when determining the reversal and dispels the suspicion of injustice and ignorance from the reverser, and it is more likely to be accepted by the judge and others. Knowing the reason for the reversal assists the judge who will resume consideration of the case on the grounds for contesting the judgment.

• Conditions for justifying the reversal: A- Attributing the reasons to their original sources: It should not be said (This contradicts the Book of Allah or the Sunnah of His Messenger or the consensus) without mentioning the verse or hadith or consensus and the evidence from it, or to say (This contradicts what has been established from the facts) without mentioning the facts that contradict the judgment. B- The justification must be sufficient: The court must present in its decision sufficient legal and factual reasons that indicate the validity of the reversal or observation and the soundness of its construction, which leads to conviction. The court must adhere to the strongest evidence and conclusions in the matter, and the meaning derived from the evidence must be influential and recognized by Sharia, and it should not contradict what is stronger than it. C- The justification must be consistent: By consistency, it is meant that the reasons should agree and not contradict each other or the judgment. D- The justification must be sequential: That is, the reasons should be arranged so that they build upon one another, making the justification organized, starting from the introduction to the conclusion, from the known to the unknown or its determination, and from the evidence to the indicated meaning. E- The justification must be factual: That is, it must correspond to the reality of the situation without exaggeration or understatement. F- The justification must be balanced: That is, the reasons should be equal, not focusing on one aspect of the reasons while neglecting another, such as focusing on one aspect of the reasons for punishment in discretionary punishment while neglecting the mitigating factors if they exist. G- Care in formulating the reasons: This means presenting them in writing clearly and concisely, adhering to the Arabic language and legal terminology, organized and precise.

• 7- Reporting the reversal in the accepted form: The form of the reversal decision is the text issued by the competent court indicating the invalidation and annulment of the judgment, and among the phrases of reversal are (I reversed, I annulled, I invalidated).

• The form of approval of the judgment: The text issued by the competent court indicating the endorsement and approval of the judgment, and among the phrases of approval are (endorsement and execution, and affirmation of the judgment, and ratification of the judgment).

• Conditions for the form of reversing or approving the judgment: A- Affirmation of certainty: It is not permissible in reversal and approval for the phrase to be non-committal, such as (We do not see the correctness of the judgment, or we do not see its authority) or (We decided to approve the judgment if it meets such and such). B- Clarity. C- Brevity. D- Adherence to the Arabic language and legal terminology.

• 8- Addressing all parts of the judgment in the reversal: The judicial judgment may be a single part or multiple parts, and the reversal may apply to all parts or some of them. Therefore, the court must address all parts of the judgment either by approval or reversal, and it is not permissible to reverse one part while remaining silent about the rest.

• 9- Writing the reversal according to the usual format: Today, the practice is to write the minutes and judgments for disputes, and no judgment that has not been written is considered valid in all levels of litigation.

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13- Reasons for reversing judicial judgments: The reason for reversing the judicial judgment is a barrier to the judicial judgment from the outset, and when the judgment is issued including it, the reverser appears its invalidity.

14- Reasons for reversing the judgment related to the judicial judgment: 

• 1- Contradiction to the text of the Book and the Sunnah or their apparent meanings: Scholars have agreed that there is no room for ijtihad when there is a text, and if the judicial judgment contradicts the text of the Book and the Sunnah, it must be reversed. If it contradicts their apparent meanings, the Shafi'is, Hanbalis, some Hanafis, and some Malikis have said it should be reversed; for the general saying of Allah (If you disagree about anything, refer it to Allah and the Messenger...) means to refer to the judgment of Allah and the judgment of His Messenger (peace be upon him). Whoever rules contrary to them has abandoned their judgment, whether it is a text or an apparent meaning, and the general saying of the Prophet (peace be upon him) (Whoever introduces something into this matter of ours that is not part of it, it is rejected) means that a judgment contrary to the Book and the Sunnah, whether in text or apparent meaning, is rejected; for it is an innovation in religion that is not part of it. It has been said: it should not be reversed; for only what contradicts the text is reversed, and the prevailing opinion is reversal.

• Scholars have agreed that the mutawatir hadith and the well-known ahad hadith reverse judgments that contradict them.

• Scholars have differed on reversing a judgment that contradicts a strange hadith from ahad - not well-known - and the argument for these two opinions revolves around the authority of the strange ahad hadith, and the prevailing opinion is that it should be reversed if it is authentic to the Prophet (peace be upon him) and does not contradict; for ahad hadith is a proof, so it is necessary to reverse what contradicts it from judicial judgments.

• 2- Contradiction to consensus: Scholars have agreed to reverse the judicial judgment that contradicts the definitive consensus (which is the agreement found with the established conditions and transmitted by the mutawatir). They have differed on reversing the judicial judgment that contradicts the speculative consensus, and the prevailing opinion is that it should not be reversed if the judgment is based on a valid legal argument.

• 3- Contradiction to analogy: Scholars have differed on reversing the judicial judgment if it contradicts a clear analogy, with two opinions: The first: The judgment is reversed if it contradicts a clear analogy and is not reversed if it is a hidden analogy. They justified the reversal for contradicting the clear analogy; for analogy does not allow for more than one meaning, and it is conclusive, and the Sharia does not contradict it. They argued against not reversing for contradicting the clear analogy that Umar (may Allah be pleased with him) ruled to deprive the full brother in a partnership, and then when the matter was presented to him in another case, he included them and did not reverse his first judgment. They also argued that if equal conjectures were reversed against each other, the ruling would not continue, and it would complicate matters for people. The second: It is not reversed at all, and the prevailing opinion is that it is not reversed; for hidden analogy produces a predominant conjecture, which is a proof for most scholars, and it is not contradicted by an ijtihad that falls short of that. However, if a clear analogy and a hidden analogy contradict each other, the hidden analogy is reversed by the clear analogy; for it is a stronger proof.

• 4- Contradiction to the four schools of thought: The majority of scholars believe in reversing what contradicts the four schools of thought, while some Hanbalis believe that the judgment of a mujtahid is not reversed in what he has reached through his ijtihad in matters where ijtihad is permissible, and the judgment of a follower is reversed if it contradicts the established principles of valid imitation. It appears that the judicial judgment from a follower, whenever it contradicts what the four schools of thought have agreed upon, must be reversed.

• 5- Contradiction to legal principles: There is a disagreement on this with two opinions: the first is that a judgment that contradicts a legal principle is reversed, and the second is that it is not reversed; for the legal principle is not a foundation upon which judicial judgments are built. The prevailing opinion is that if the judge rules based on a legal branch that has a valid basis, his judgment is not reversed even if it contradicts a legal principle; for branching is prioritized over the principle due to the exceptions that enter into the principles. However, if there is no valid legal branch and the judge contradicts a legal principle, his judgment is reversed; for the legal principle is the result of the induction of many branches. Contradiction of the judge to his own ijtihad: This issue has several cases: 1- Deliberate contradiction of the judge's ijtihad: If a mujtahid judge rules in a case and then a similar case is presented to him, and another ijtihad appears to him that contradicts his first ijtihad, he acts according to his second ijtihad and does not reverse his first ijtihad; for the judgment of Umar (may Allah be pleased with him) in the partnership. However, if he ijtihads in a case and then deliberately rules in the same case contrary to what his ijtihad led him to, there is a disagreement about the invalidity of his judgment, and the correct opinion is its invalidity; for he is bound by what his ijtihad led him to, and he cannot say what contradicts it, nor can he imitate another mujtahid. 2- Contradiction of the judge's ijtihad due to forgetfulness or ignorance: If the judge rules without his ijtihad due to forgetfulness or ignorance, scholars have differed on this, and the prevailing opinion is that the mujtahid judge is not bound by his previous opinion if his ijtihad changes. Therefore, if he rules in a disputed matter contrary to his previous opinion for a reason he sees, that is good, and his judgment is not reversed unless it deserves reversal for another reason. Likewise, if he forgets his previous opinion and what he ruled has strength from the evidence, it is executed unless it deserves reversal for another reason. 3- The emergence of a judgment for the judge that is preferable to what he ruled: Scholars have differed on this; some say it should be reversed, and some say it should not be reversed to avoid the sequence of changing ijtihad, which is the prevailing opinion.

• 7- Contradiction to established practice: This refers to what has been followed in judicial and fatwa practices by adopting one of the opinions in the matter, even if it contradicts the school or the well-known opinion. What has been followed in jurisprudence and judiciary is considered valid. Abdullah ibn Mas'ud (may Allah be pleased with him) said: "Whoever among you is faced with a judgment after today, let him judge according to the Book of Allah. If there comes a matter that is not in the Book of Allah, let him judge according to what the Prophet (peace be upon him) judged. If there comes a matter that is not in the Book of Allah nor judged by His Prophet nor by the righteous, let him exercise his opinion." The Permanent Committee's decision in the Supreme Judicial Council stated (that searching for what contradicts what the judges have followed, which is the requirement of Islamic law, is not permissible). Therefore, if a mujtahid judge rules contrary to what has been followed, the Malikis have stated that his judgment should be reversed, which is appropriate; for in this case, it is the prevailing opinion, and its contradiction necessitates reversal.

• 8- Contradiction of the mujtahid judge to the school he follows: There is a disagreement on reversing the judgment of a mujtahid judge when he contradicts his school, with two opinions: A- It is not reversed, and some of the proponents of this opinion condition that the judge is qualified for preference. B- It is reversed, and they restrict that to contradicting the preferred or well-known opinion of the school to exclude the ruling by the weak or strange and abandoned opinions. The author's view is that what is recorded in the schools is either in agreement with the consensus or the evidence from the Book or the Sunnah or other proofs, and this right is evident and the judge must follow it; if he contradicts it, his judgment must be reversed. Or it may appear that it contradicts the evidence, and here the judge should not rely on it, and if he rules by it, his judgment is reversed. Or it may not appear that it contradicts the evidence, and he relies on a valid basis; in this case, the mujtahid judge must adhere to it and rule by it to ensure the consistency of judgments, and he should not deviate from that except for a legal justification. Thus, he follows the evidence when it appears and adheres to imitation and the school if it does not contradict the evidence, and the mujtahid should first take what has been followed among the judges of his country, even if it contradicts the well-known opinion of his school. If there is no established practice, he follows the well-known opinion of the school, and whoever contradicts that, his judgment is reversed, and he does not take the weak or strange opinions.

• 9- Contradiction to the principles of accommodation when the situation requires adherence to them: The principles of accommodation refer to the foundations that must be considered when describing facts and issuing judgments, such as considering the outcomes and taking into account necessities and needs and the objectives of Sharia, etc. If something of that nature arises in the case at hand and has a status in Sharia that must be considered, the judge must depart from the apparent preparatory judgment that applies to its counterparts and rule in a manner that takes that into account.

• Many scholars have stated that it is permissible to depart from the prevailing opinion to the less preferred opinion when necessary, and the conditions for working with the less preferred opinion are: 1- That the less preferred opinion does not contradict any evidence from the Book or the Sunnah. 2- That the opinion to which one departs is established by a valid means for its proponent. 3- That the departure to the other opinion is due to necessity or need. 4- That the application of the less preferred opinion is limited to the specific case before the judge and not general in every case; rather, if the necessity ceases, he returns to the original. 5- That the one considering this is capable of assessing the necessities and needs, and the judge must clarify this need and necessity in his ruling. Therefore, whenever it becomes necessary to work with the less preferred opinion due to its legal requirements and the judge neglects that, his judgment is reversed; for considering the circumstances and details of the case necessitated that.

• 10- Weakness of the evidence for the judgment and its basis: If a mujtahid judge rules in a matter of ijtihad, his judgment is executed and not reversed by another ijtihad; for ijtihad is not reversed by ijtihad, and this applies when the two ijtihads are equal. It is not the case merely because some scholars disagree unless they have strong evidence and basis. Scholars have differed on reversing the judgment if its evidence and basis are weak, and the correct opinion is that it should be reversed; for at that point, it is not considered ijtihad that is not subject to rejection or reversal, but rather it is counted among the mistakes and errors that must be reversed, as stated in the letter of Umar ibn Al-Khattab (may Allah be pleased with him) (And do not let a judgment you made yesterday prevent you from reconsidering it today and being guided to your right...). This is because an error must be retracted just as if it contradicts the consensus.

• 11- Error in interpreting and explaining the legal ruling: The judge does not rule except after knowing the legal ruling that corresponds to the fact and interpreting it. The interpretation must be valid and based on established principles; otherwise, it is reversed. Umar and Ibn Abbas (may Allah be pleased with them) criticized someone for drinking alcohol, interpreting the verse (There is no blame upon those who believe and do righteous deeds for what they have eaten, if they have feared Allah and believed and done righteous deeds, and then feared Allah and done good; and Allah loves the doers of good) by saying: "These verses were revealed as an excuse for those who have passed and as a proof against the hypocrites...".

• 12- Ruling by an abrogated text or contrary to a specific or valid restriction: If the judge rules by a text that is then found to be abrogated, or by a general text that is then found to be excluded by a specific evidence, the judgment is reversed. Likewise, the judgment is reversed if it is based on an absolute text without its valid restriction.

• 13- The judge ruling based on conjecture or estimation: The scholars of the four schools have stated that if the judge rules based solely on what comes to his mind as conjecture or estimation without evidence or legal basis or ijtihad to reach the truth, then his judgment is invalid and must be reversed; for a judgment based on ignorance of conjecture and estimation is not valid even if it reaches the truth; for the judge is bound by the ruling of Sharia, and his tongue is the tongue of Sharia. If he does not rule based on knowledge from evidence or ijtihad or valid imitation, then what he ruled is not from Sharia at all, and it must be reversed, except that the original in the judgments of judges is that they are issued based on ijtihad, and the fact that the judgment is based on estimation or conjecture is a hidden matter known only to Allah.

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15- Reasons for reversing the judgment related to the judicial fact in terms of its impact and interpretation: 

• 1- Ruling contrary to the reason for the judicial judgment: The necessity for reversal is established by considering the impact of the fact with its exclusivity, such as facts that are not subject to judicial consideration, like rejecting peace and what is disliked or recommended. It is also the case for lacking the condition of its impact, such as ruling in a case of murder with retribution without the condition of intent being fulfilled or with the existence of a barrier, such as the killer being a father; in this case, the judgment is reversed. Likewise, an error is established and reversal is necessary if a fact is disregarded due to its exclusivity; for this may be hidden from the judge while its impact is established, such as if the judge rules for the right of preemption for the claimant due to proximity while there is a shared benefit between the two properties, such as a private road or a watercourse, while the defendant is a partner in the property in common, which takes precedence over the partner in benefits. Thus, treating the partnership in the property as exclusive and non-impactful is an error, and the original is that it is an impactful description in the judgment, and that the partner in the property takes precedence over the partner in benefits like the road.
  However, if the judge rules based on a reason and then it becomes apparent to him that it is not valid, either due to lack of impact or lack of proof, but another valid reason appears that leads to the same result of the judgment, then the judgment is upheld and not reversed.

• 2- Contradiction to the necessary conditions that must be respected: The necessary conditions are those that the contracting parties or one of them stipulates in a contract that is not obligatory by the original Sharia and does not contradict it. The original in conditions is validity and enforceability; therefore, any condition stipulated by a contracting party that is in accordance with the principles of Sharia and must be enforced by its original, or in consideration of another original, its contradiction necessitates reversal.

• 3- An impactful defense after the judgment: Whenever a valid defense is presented by the defendant after the judgment that necessitates contradicting the judgment and that defense is established, the judgment is reversed, and what is required by that defense is ruled, provided that what is defended against occurred before the judgment. However, if the defense is based on an event that occurred after the judgment, such as a payment after the judgment was issued, then that defense does not necessitate reversal.

• 4- If the judgment is based on a settlement that is found to be invalid: The conditions under which a settlement is reversed are: 1- If it lacks one of its conditions, such as capacity and description. 2- If he acknowledges the right after denying it, and this is in the case of a settlement based on denial. 3- If the settlement is made with denial due to lack of proof and then proof appears; for his settlement is considered under duress, as he only settled out of fear of losing his right. 4- If he settles for something that turns out to be contrary, such as settling for a defect in a commodity that turns out to have no defect.

• 5- Error in understanding and interpreting the fact: The judge knows, then understands, then rules. If something from the facts is unclear to him, he should not rule until he understands and clarifies it. If he does not understand the fact, this leads him to error in the judgment, and his judgment must be reversed.

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16- Reasons for reversing the judgment related to the judicial fact in terms of its establishment:

• 1- Judging without a basis for establishing the claim: No one is ruled in favor of merely based on their claim; rather, the facts must be established by a legally accepted proof. Whenever the judge rules without a basis for establishing the claim, his judgment is invalid and is reversed.

• 2- The unsuitability of the basis for establishing the claim for judgment: Errors in the judicial judgment can occur from the method of proof from four aspects: 1- Acting based on a method that is not valid for proof according to Sharia, such as ruling based on evidence that is not accepted by Sharia, like the judge ruling based on his knowledge or contrary to his knowledge. 2- The evidence not meeting the claim. 3- There being a barrier to employing a method that is legally accepted, such as if the witnesses testify in a way that the mind cannot accept as true. 4- The failure of any of the conditions of the witness, such as being found to be non-Muslim or unjust or of illegitimate lineage or a false witness, etc.

• If it is possible to remedy the basis for establishing the claim, the judgment is not reversed; for example, if the two witnesses are found to be corrupt, the judgment is not reversed if an oath is directed at the defendant and he refrains from it.

• 3- The emergence of accepted evidence that impacts the judgment: There are two scenarios for this: A- Judging by the oath of the defendant due to lack of evidence: If the plaintiff did not know of evidence in his favor at the time of the judgment and requested the oath of his opponent, and he swore, then evidence appears for him, it is heard even after the judgment; for the oath does not nullify the right but rather interrupts the dispute. B- Judging by the defendant's refusal to take the oath: If the defendant is judged by his refusal to take the oath, and then evidence appears for the plaintiff, it is heard.

• 4- Witnesses retracting their testimony: Scholars have agreed that if witnesses retract their testimony before the judgment, it is not ruled; for the witness has contradicted himself by retracting his testimony.

  • If the retraction occurs after the judgment and is based on the testimony, if it is in retribution or a limit before execution, it is reversed; if it is after execution, it is not reversed; for the danger to life and limbs and limits cannot be remedied, and due to the suspicion involved, this is the opinion of the majority.

  • If the retraction occurs after the judgment and is based on the testimony in a financial matter or something that leads to financial matters, the majority have said that the judgment is not reversed, and the witnesses are liable; for the right of the one who is testified for is established by the testimony and is not nullified by retracting it.

  • However, if the witness changes his testimony after the judgment by decreasing or increasing in a way that affects the judgment, it is like retracting it.

  • What is included in reversing the judgment due to error in understanding the fact and interpreting it is the error in understanding and interpreting the testimony.

• 5- The acknowledgment of the one ruled against after the judgment of something that invalidates his claim: If the one ruled in favor acknowledges after the judgment something that invalidates his claim, the judgment is reversed.

17- Reasons for reversing the judgment related to the judge: 

• 1- Lack of the judge's qualifications: This is due to the absence of one of the established conditions. The researcher prefers the validity of his judgments and that they are not reversed; for he is considered one of the judges of necessity, and the correct judgments from him are executed, and only those that deserve reversal are reversed; for the conditions of the judiciary are considered as much as possible, and the best is appointed, and this is in the interest of the subjects in stabilizing their transactions and judgments.

• 2- Lack of jurisdiction of the judge in what he ruled: If a judgment is issued by a judge who is not competent internationally, regionally, or in terms of type, time, value, or otherwise, except for territorial jurisdiction if the defendant explicitly or implicitly waives it, the judgment is reversed, and this is the opinion of the majority.

• 3- Existence of something that compromises the judge's impartiality: Such as if one of the litigants is a relative, descendant, spouse, partner, or enemy of the judge. If he rules, it is more likely that his judgment will be reversed. The procedural system distinguishes between cases of prohibition and cases of recusal and dismissal.

• 4- Change in the judge's condition at the time of ruling that affects his understanding: Such as if the judge is in a state of anger at the time of ruling. Scholars have differed on the judgment issued in a state of anger, and the prevailing opinion is that the judgment is valid and correct if it aligns with the truth; for the Prophet (peace be upon him) ruled in a state of anger, as in the story of Al-Zubair with the Ansari; and because the judgment is correct in itself, it is not reversed.

• 5- Bribery in the judgment: Scholars have differed on the validity of the judge's judgments if he is bribed, and the prevailing opinion is that his judgment is invalid and reversed in what he was bribed for, while the rest of his judgments are valid and executed; treating the briber and the bribed contrary to their intent, and safeguarding rights by scrutinizing the case from someone who is not suspected in his judgment; and because all his judgments, as long as they are correct, are executed to stabilize rights.

18- Reasons for reversing the judgment related to the judicial proceedings: 

• 1- A previous judgment has been issued in the case: If a final judgment has been issued in a case that does not deserve reversal, it is prohibited to reconsider it without a reason. Abdulrahman ibn Abu Bakr said: Abu Bakrah (may Allah be pleased with him) wrote to me saying: I heard the Messenger of Allah (peace be upon him) say: "No one should judge in a case with two judgments." Reversal of the judgment can only occur if the case is identical in the judgments regarding the persons, cause, and subject. The identity of the persons refers to their attributes, not their identities; the agent and the principal are like one person. If a judgment is issued against a person and he dies, and the heirs do not accept the judgment because it was not issued in their presence, it is not accepted; for the right transfers from the heir to the deceased burdened with the rights upon him. As for the identity of the cause, the cause refers to what led to the emergence of the right or obligation from a contract, action, or beneficial or harmful act. Therefore, if someone files a claim for the return of a defective item due to the defect, he cannot file another claim for the same cause.

• 2- Issuing the judgment before hearing the claim and verifying its conditions: If the judgment is issued without a valid claim that meets its conditions, it is invalid and must be reversed. This includes a claim that is invalid due to the absence of a condition that invalidates it, as well as a reversed claim. However, hearing the claim for the absent party is permissible if it is in connection with a present claimant, such as one of the heirs.

• 3- Issuing the judgment before hearing the response to the claim and verifying its condition: If the judge rules after hearing the claim and before the defendant's response while he is present and does not refuse, his judgment is invalid and must be reversed, as the Prophet (peace be upon him) said: "When the two litigants sit before you, do not rule until you hear from the other as you heard from the first, for it is more likely to clarify the judgment."

• 4- Issuing the judgment that does not correspond to the claim and requests: If the judgment is issued that does not correspond to the claim and requests, it is reversed, and this applies to all private rights; for it neglects what is in dispute and rules on something else without a claim or request. However, for the rights of Allah, such as divorce, discretionary punishment, and limits, as well as for those who cannot express themselves, such as minors and waqf, this is not required; rather, it suffices for it to correspond to the judicial evidence.

• 5- Issuing the judgment before fulfilling the necessary postponement procedures: There are legally established deadlines that must be fulfilled before considering the case, such as fulfilling the period of abstention before divorcing the husband at the request of the wife if he does not return. If the judgment of divorce is issued, it is invalid and must be reversed. There are also procedural deadlines for preparing the claim, the response, and bringing witnesses, which return to the judge's discretion in determining them, as Umar ibn Al-Khattab (may Allah be pleased with him) said: "Set a deadline for the plaintiff to end; if he presents his evidence, otherwise, I will direct the judgment against him, for that is clearer for the blind and more effective in excuse." If the judge violates this, the judgment is reversed unless it can be remedied by granting a deadline to the one who requested it with good procedures.

• 6- Failure to excuse in the testimony and witnesses: Excusing in the witnesses means the judge asking the defendant about what he says regarding the witness and his testimony after it is given, and whether he has any objections to the witness, etc. If the judge does not excuse the witnesses and rules, his judgment is reversed unless it can be remedied.

• 7- The absence of the conditions of the judgment's form or some of them: The form of the judgment is the text issued by the judge resolving the disputed case, which is called the wording of the judgment, and it must be clear without ambiguity, consistent without contradiction, and decisive without being conditional. If the judge violates this, the judgment is deserving of reversal unless it can be remedied.

• 8- Contradiction to the principles of writing minutes and documents: All that the litigants present in terms of statements, memoranda, reasons, and judgments must be recorded in the minutes and documents. If the judge violates this by recording the response without the claim or vice versa, or by recording the judgment without its reasons, or failing to record the evidence, etc., the judgment is reversed unless it can be remedied.

19- Reasons for reversing the judgment related to the description of the judicial fact:  The description of the fact refers to applying the established legal descriptions in the legal ruling (the legal principle) to the judicial fact after the litigation is complete, such as when the judge determines the nature of the fact as a lease or a contract, and so on, based on what is established in the legal ruling that corresponds to the fact and applying the legal ruling to it. It is not sufficient in applying the ruling to the judicial fact to define, establish, and interpret it without refining the fact and proving it; rather, it is necessary, along with all of that, to know the suitability of the place for the ruling and the extent of its acceptance. This knowledge is achieved by adhering to the principles of judicial description, considering the outcomes, and taking into account the necessities and needs, the specificities of the facts and persons, the objectives of Sharia, the wisdom of legislation, and the stability of transactions, etc.

20- Error in description occurs from three aspects: 1- Neglecting something from the influential descriptions in the judgment or considering their impact with exclusivity. Whenever the judgment occurs from this aspect, it must be reversed. 2- Failing to consider the specificities of the facts, such as necessity and need, if they have a status in Sharia that must be considered, such as if there is a transaction among people in their environments that contradicts the school but has a valid legal basis, it must be respected and not reversed. Whenever the judgment occurs without consideration, it is reversed. 3- Failing to apply the obligatory ruling in the text applicable to the dispute in cases of multiple options. If the fact is described as being based on someone else's land incorrectly, it is established that the owner of the land has the option to take the value of his land or the value of the building; if he refuses, the property is a partnership between them. If the judge rules to obligate them to the partnership without giving them the option, his judgment is reversed.

21- The relationship between the judicial judgment and the error in describing the fact and its effect on reversing the judgment: The relationship does not lack four conditions: 1- Correct description with correct judgment: There is no doubt in the necessity of upholding the judgment; for the description matches the judicial judgment. 2- Error in description and error in judgment: The judgment here must be reversed, such as if the judge describes the claim as a lease and arranges its rulings, while it is otherwise. 3- Correct description and error in judgment: Here, the judgment is reversed due to the lack of benefit from the correct description; for the fruit of the description is the correct judicial judgment. If the fruit is absent, the judgment must be reversed. 4- Error in description and correct judgment: The judgment is valid and not reversed to preserve the effort expended by the judge and the litigants in resolving the dispute; for it can be corrected by the competent court's review of the judgment and presenting the correct description.

22- Reversal of the judgment due to the judge's lack of justification: There is a disagreement on this, and what the author sees is that if the judge does not justify his judgment, he must remedy it by justifying it, as well as justifying the judgment or correcting the reasons or completing them by the court reviewing the judgment. If this is not possible, the judgment is deserving of reversal; for the Quran and the honorable Sunnah require justifying judgments, so that the reason for the judgment is not based on mere knowledge or assumption. Justification shows the judge's diligence, and it may lead the one ruled against to accept the judgment; for a judgment based on the consideration of interests from legal and factual evidence is more likely to be accepted and reassuring than otherwise.

23- Cases of reversing the judicial judgment for lack of justification: 1- The absence of reasons in reality, either by not mentioning any reason, or by stating a reason without attributing it to its source, such as saying (This is based on a legal principle) and then not clarifying this principle. 2- The insufficiency of the reasons, meaning that the judge must present sufficient legal and factual reasons that indicate the validity of the judgment and the soundness of its construction, which leads to conviction. Sheikh Muhammad ibn Ibrahim rejected a judgment and said about it (The judge convicted the driver and ruled him to pay the blood money for the deceased without mentioning the evidence for the judgment and its justifications except for insufficient matters). 3- The inconsistency of the justification: By inconsistency, it is meant that the reasons should agree and not contradict each other or the judgment.

24- Decision to distinguish the judicial judgment: This is what is issued by the competent court indicating the study of the judgment and determining what is necessary regarding it, whether reversal or approval or observation.

25- Essential elements of the decision to distinguish the judicial judgment: The decision to distinguish must include the following: 1- Opening the decision with praise to Allah and glorifying Him. 2- The day and date it was issued. 3- The name of the circuit and the court. 4- The number of the document and its date, the name of the court and the judge who issued it, a summary of the case, and the text of the judgment. 5- Narrating the factual situation from studying the case document, the minutes of its recording, the objection memorandum, and the transaction papers. 6- The circuit's report of its opinion, whether in support or reversal. 7- Justifying the decision except for the approval, as the original is to agree with the judgment based on its reasons unless the court comments on the reasons. 8- Closing the decision with the phrase (And with Allah's success) or similar. 9- Signing the decision with the names of the members of the circuit and their signatures.

26- Formulating the decision to distinguish the judicial judgment:  By formulating it, it means ensuring its writing is clear and organized, including the essential elements and data necessary for it while adhering to the Arabic language and legal terminology in jurisprudence and judiciary.

27- Aspects of error in the judicial judgment and the description of its approval or reversal: 

• 1- Aspects of error in the judicial judgment: 1- Contradiction to the rules of litigation. 2- Error in the legal ruling. 3- Error in the judicial fact. 4- Contradiction to the rules of proof. 5- Error in describing the fact and applying the ruling to it. 6- Failure to meet the conditions of the judgment's form or some of them.

• 2- Steps to study the judicial judgment: 1- Reviewing the case file and verifying its attachments, such as the document, the minutes of recording, the objection memorandum, etc. 2- Verifying the timely submission of the objection and the status of its presenter. 3- Verifying the preliminary issues of the judgment. 4- Verifying all conditions of the claim, including the validity of representation, notifying the absent defendant, and whether the property is in the hands of the defendant if the claim is for it, the legality of the right being claimed, verifying the interest, and drafting the claim, etc. 5- Verifying the determination of the influential descriptions in the judgment and whether the judge has defined them correctly. 6- Verifying the course of proof and its methods. 7- Considering the acceptance of the request for proof regarding its suitability, meeting its conditions, and being free from objection. 8- Verifying the judicial description and its validity. 9- Verifying the reasons for the judgment regarding their existence, sufficiency, and consistency. 10- Verifying the form of the judgment and ensuring it is in an obligatory form and corresponds to the claim and is decisive, etc. 11- Verifying that the judgment does not include any reason for reversal. 12- Studying the objection and whether it includes substantive defenses that impact the judgment and its description.

• 3- Description of approval of the judicial judgment: There is a disagreement on this; some say that the approval of the judicial judgment by the competent court is not considered an appeal judgment but rather a ratification and endorsement of the judicial judgment that strengthens it. Ibn Abdul Hadi said: "Execution is not a judgment; rather, it is a strengthening of the judgment; for the judgment has been completed, and ruling on it again is of no benefit as it is a mere formality." Others say it is a judgment. The author believes that approval of the judgment, if it occurs after the resumption of litigation, is like an appeal; if the approval occurs without resuming litigation, it is not a judgment but rather a strengthening of the judgment.

• 4- Description of reversing the judicial judgment: A judgment that includes a reason for reversal is considered invalid and has not been established from its origin. The work of the judge is merely to reveal this invalidity and not to create it. However, the term reversal of the judicial judgment is commonly used by scholars in all schools, and this is the practice of judges in our time, considering the reality of what was issued by the judge in the invalid judgment from its confirmation; it needs to be resolved even if it is invalid, and in consideration of the tangible matters, for whoever has made a corrupt contract must not only reject it but must also resolve it to re-establish it correctly.

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28- Effects of reversing the judgment: 1- The removal of the authority of the reversed judgment and its effect, as if the claim had not been ruled upon, and the two parties return to the state they were in before the judgment was issued. 2- The annulment of all procedures and decisions subsequent to the reversed judgment. 3- Guaranteeing what was lost by the litigant due to the reversed judgment. 4- Dismissing and penalizing the judge if he deliberately acted unjustly in his judgment.

29- What is not affected by the reversal: 1- The actions and judgments prior to the reversed judgment, such as urgent judgments regarding provisional seizure or travel bans. 2- The procedures and actions that were valid before the court of first instance, including statements, defenses, and evidence.

30- Renewing litigation after the judgment is reversed: The party with an interest after the judgment is reversed may renew the litigation and demand a ruling, and the case is considered according to the usual procedures of fulfilling evidence, setting deadlines, and all that is necessary with the presence of both parties, and it does not rely on the mere reversed judgment.

31- The obligation of the second judge after the reversal to follow the ijtihad of the reverser: The second judge of the case is not bound by the ijtihad of the reverser if the litigation is resumed in the case after its reversal; rather, he rules according to what he sees as correct, whether it aligns with the ijtihad of the reverser or contradicts it. However, if the reversal is based on evidence that cannot be contradicted, it must be adhered to from that perspective.

32- Reversal of the reversal: If one judge issues a ruling and then another judge reverses it, and this is not subject to reversal, a third judge may reverse the reversal and uphold the first judgment; for reversal in matters of ijtihad is an error, and reversing the error is necessary.

And with Allah's success, may Allah send blessings upon our Prophet Muhammad and his family and companions, and peace be upon them.