The past two centuries in the Islamic world have witnessed the establishment of courts modelled on the European system, thereby allowing modern laws to gain a foothold. These developments culminated in the disappearance of Sharia courts and the emergence of modern legal education, which laid the groundwork for Western laws to spread throughout the Arab and Islamic world.
Countries resemble each other in having courts like edifices, mainly bearing the symbol of a balance scale with two pans and containing halls where judges sit on high platforms, separating disputants with their gavels. However, this somewhat naive view is predominantly influenced by globalization and cinematic portrayals, suggesting that all countries follow similar judicial systems.
However, after a quick research, it becomes clear that the matter is more complicated. Courts are premises not affiliated with the executive or legislative authorities, meaning they do not follow the governments or parliaments. Instead, they are under an authority that most people assume should be independent, called the judiciary. The courts have specializations; there are civil, military, and customary ones, in addition to the fact that the litigation process and the resolution between disputants go through first, second, and third levels until a final judgment is issued that cannot be appealed against, serving as the decisive say in any case.
When comparing countries worldwide, it becomes evident that there are divergent systems for resolving disputes arising from differing philosophies regarding the justice system and its application. For instance, Americans have a judicial system that includes jurors from the populace who express their opinions on the case and present them to the judge. They listen to the parties involved in the dispute, the public prosecution, and the witnesses and decide whether the accused is guilty or not. Meanwhile, in other countries such as Britain, previous judgments are considered. Muslims have their own Sharia courts where judges refer to religious sources, primarily the Quran and the Sunnah when issuing their judgments in many cases.
Before delving into the world’s judicial systems, I found it mandatory to understand the system followed in my country, Qatar. This Arab Islamic Gulf state, as the Supreme Judicial Council website elucidates, possesses several courts like other nations. Its constitution defines judicial authority and independence as part of the state’s three powers. The courts are structured into three tiers: first, the Primary Court; second, the Court of Appeal; and third, the Court of Cassation. They adjudicate “criminal disputes, civil and commercial disputes, family and inheritance disputes, administrative disputes, and other disputes except for matters of sovereignty and nationality.”
The Qatari judicial system has gone through numerous stages to reach what it is today. Before its most recent constitution, the State of Qatar followed a particular judicial system, and before its independence in 1971, it followed another system. As is evident from the course of this judicial system, it is in constant development, trying its utmost to reach the best model that accommodates the state’s evolution.
Adoption of Latin law
The term mahkama, meaning court in Arabic, appeared during the Ottoman era in the 17th century. Berman’s Encyclopaedia of Islam mentioned that the mahkama was the official site for judicial activities. The Sultan determined the number and locations of courts, and their establishment was based on population size and needs. Courts were typically established in bazaars or near the city’s main mosque. Their distribution varied over time in different parts of the Ottoman Empire in response to administrative and demographic changes.
The researcher Marn Hansen clarified that Egypt and other countries in the region underwent legal reforms during the nineteenth century, which included adopting some Latin laws. This led to westernizing their legal systems to become European, witnessing mixed courts that blended Islamic law with the principles of Latin civil law. After the fall of the Ottoman Empire, some regions like Syria and Iraq developed civil laws influenced by Napoleonic and German law. At the same time, Turkey secularized its legal system, relying on Swiss laws during the era of Kemal Atatürk.
During this period, the Gulf region was undergoing conflicts and wars among its tribes, as well as other disputes between the Ottomans and the British in their pursuit of control of the area. The research paper published by Qatar University titled The Emergence and Development of Qatar states that it allied with Prince Faisal bin Turki, the second ruler of the Second Saudi State, in 1850 as a protection treaty seeking to gain independence from Bahrain’s authority. In 1868, the Qataris managed to confront them and establish their status as an independent “Sheikhdom or Emirate, not subject to any authority from its neighbours.”
In his series of articles on the early judges, Sheikh Jassim bin Mohammed Al-Jaber, the head of the Research and Fatwa Committee at the International Union of Muslim Scholars, states that in the same year, 1868, Imam Abdullah bin Faisal Al Saud appointed Sheikh Mohammed bin Abdulrahman bin Hamdan, originally from Qassim, of the Hanbali school of thought, as a judge over Qatar.
Salma Al-Qubti clarifies this in her book Alatharia School in Qatar, which mentions that Qatar hosted many traditional teachers and scholars from Najd at that time. Later, “when Sheikh Qassim bin Mohammed Al Thani, may God have mercy on him, took over the reins of government in the country in the year 1294 AH (1878), His Highness confirmed Sheikh Ibn Hamdan in his judicial position, thereby remaining the country’s judge until the year 1310 AH (1893), after which Sheikh Abdullah bin Ahmad bin Durehim, may God have mercy on him, was appointed as his successor.”
In 1913, Sheikh Abdullah bin Qasim Al Thani came to power in Qatar. He was interested in education, striving for a scientific and educational renaissance in Qatar, along with social and economic stability, despite the world events and wars that occurred during his reign. Therefore, he sought to attract Sheikh Muhammad bin Abdulaziz Al-Mana to establish the Alatharia School in 1916. Al-Qubti mentions that Sheikh Al-Mana “was not only a teacher, but Sheikh Abdullah bin Qasim Al Thani also appointed him to the judiciary and the issuance of religious edicts (fatwas).”
In his series, Sheikh Al-Jaber explains that as soon as Sheikh Al-Mana’i travelled to the Kingdom of Saudi Arabia in 1939, Sheikh Mohammed bin Jaber Al-Jaber took over the judiciary in Qatar in his place. However, he accepted this position reluctantly and on the condition that someone else be found to replace him. It is worth mentioning that they all practised judiciary traditionally and simply without any institutional judicial systems.
Not far from Qatar, King Abdulaziz Al Saud was able to unify the Kingdom during the same period. Hanson added that the Kingdom of Hejaz, Najd, and its dependencies set their basic instructions in 1926 as a written constitution that mandates establishing a monarchical system. This system is to be governed by King Abdulaziz according to Islamic Sharia. The document, which consists of nine sections and includes seventy articles, recognized the role of statutory law alongside the Quran and Sunnah. It allowed for the delegation of administrative duties intending to modernize the state within the framework of Hanbali Islamic jurisprudence.
According to the website of the Saudi Ministry of Justice, the basic instructions of the Kingdom of Hejaz were the first block in establishing the judiciary. After a year, King Abdulaziz Al Saud issued a decree establishing the Hejaz courts on three levels: partial courts, central general courts, and the Judicial Oversight Body (Court of Cassation and Finalization). As for Najd and its dependencies, individual judges preside in the main cities, where each has a judge who looks into all the cases occurring in them and the surrounding villages.
Sheikh Abdullah bin Zaid Al Mahmoud
Qatar was graced with a remarkable personality who contributed to establishing the first judicial institution based on the principles of Islamic Sharia, namely Sheikh Abdullah bin Zaid Al Mahmoud. He was known only for his dedication to serving justice, insightful jurisprudential vision, pursuit of goodness, equality between the rich and the poor, and the strong and the weak. He was also recognized as an exceptional character who left an indelible mark in the history of Qatar, making his memory a place of great respect and appreciation among community members and his peers among scholars and sheikhs.
Sheikh Abdul Rahman Al Mahmoud recounts in Sheikh Abdullah bin Zaid Al Mahmoud’s biography that 1941 Sheikh Abdullah bin Qasim Al Thani, along with his son and other personalities performed the Hajj pilgrimage. After completing the rituals, they met King Abdulaziz Al Saud. They requested him to nominate a qualified a judge to serve in Qatar as a replacement for Sheikh Al Manai, who “took charge of overseeing education in the nascent kingdom”. The choice fell upon Al Mahmoud, prompted by Al Manai, who even recommended him, saying, “You must appoint Sheikh Ibn Mahmoud; by Allah, if he leaves or is left out, you will not find anyone like him.”
As soon as Sheikh Al Mahmoud arrived in Qatar, he immediately took on his judicial responsibilities. The state was in its formative phase, characterized by simple governmental structures and economic challenges due to the collapse of the natural pearl market. His tenure also coincided with the outbreak of World War II and the disruption of maritime supplies, which exacerbated financial difficulties in the Gulf region and spread poverty and disease.
However, Sheikh Al Mahmoud was characterized by the qualities of a venerable judge who devoted his life to achieving justice with a deep commitment to Islamic principles. This included the official recording of verdicts and cases in registers dedicated to this purpose. He was known to quickly resolve disputes and inspect dispute sites related to land and property to ensure fair judgments. He often sought to mediate and contribute financially to the settlement if one of the parties was poor. Moreover, he refused the presence of police to organize access to him, fearing that this would deter those in need from seeking help. Instead, he emphasized the importance of early sessions and that courtrooms should always be open to everyone.
Lawyer Abdullah Al-Muslim says, “Abdullah Al Mahmoud began his judicial career in 1941 AD/1359 AH, starting with establishing a system for registering cases and judgments and preserving them. When the Sharia courts were established in 1958 AD/1378 AH, he took over their presidency, considered the first building block and the cornerstone in establishing the judicial system in the State of Qatar.”
Lawyer Abdullah Al-Muslim says, “Abdullah Al Mahmoud began his judicial career in 1941, establishing a system for registering cases and judgments and preserving them. When the Sharia courts were established in 1958, it was considered the cornerstone of establishing the judicial system in Qatar, and he took over its presidency.”
In his biography, some stories arrest attention, indicating his intelligence. Instead of referring a case of visa forgery for an Armenian Christian seeking merely to transit through Qatar to another destination, which would have ended in his leaving the country under any circumstances, to investigation and scrutiny, he issued instructions to the police to allow the man and his family to continue their journey out of the country on the same day, without further legal complications, saving time and effort.
Sheikh Faisal bin Qassim Al Thani recounts the story of a Christian Lebanese contractor who faced a problem with one of the influential elites due to not receiving his remaining dues. Consequently, he took his case to the Sharia court before Sheikh Ibn Mahmoud, who ordered the summoning of the defendant to hear his statements. The defendant justified withholding the remaining payment because the claimant had already made substantial profits. Sheikh Ibn Mahmoud clarified that the agreed-upon fees include any profit; therefore, the Lebanese contractor will receive the total amount. The defendant was forced to settle all dues and reluctantly pay the claimant the remainder of his fees on the same day.
The Judicial Court
Qatar began during the era of Sheikh Ahmad bin Ali Al Thani with the issuance of Law No. (3) for the year 1962 the Labor Law was the first labour law that considered the rights and duties of workers in the State of Qatar and the second Arab labour law after Egypt. Following its independence in 1971 under Sheikh Khalifa bin Hamad Al Thani, the State of Qatar aimed to establish a comprehensive judicial system that clearly defines the jurisdictions of courts, litigation processes, and procedural laws, ensuring that the legal system is transparent and understandable to everyone, including the laws that define criminal and penal procedures, to preserve rights and properties.
An essential step happened in the same year: the judiciary power was transferred to the national courts, thus marking the end of British judiciary authority in the country. Law No. 13 of 1971 concerning the Judicial Court system was enacted, framing key legislative frameworks such as civil and commercial laws, penal codes, and procedural laws. This paved the way for a new era in the legal and judicial history of the State of Qatar in parallel with its rapid development.
This law did not abolish the Sharia court but continued to exist in parallel. The Muslim explains this in his elucidation of the Sharia courts established before 1971 as courts consisting of judges who rule according to Islamic Sharia without the application of statutory laws and without defining their jurisdictions. This is because they adjudicated all types of civil and criminal cases and those related to estates and personal status. Additionally, litigation became a two-tier process, where the second tier allowed for appeals.
He added, “The 1971 law was essentially a legislative revolution. It introduced civil and criminal statutory laws as well as general and specific laws. Civil courts were established to handle civil disputes, while criminal (penal) courts were set up to adjudicate criminal offences. Furthermore, courts were organized into minor and major ones for civil and criminal disputes, marking a significant and modern development in the judicial system.”
This was accompanied by the establishment of the Provisional Constitution of Governance in Qatar, issued in 1972 and serving as a constitution comprising five sections with 71 articles. Sheikh Khalifa bin Hamad Al Thani clarified in his announcement that this provisional constitution aligns with the stage of gradual development and the changes resulting from the country’s independence “and the dawn of a new era, an era of comprehensive reformist renaissance,” setting a clear organization for how the head of state and his competencies are determined, and the role of the Council of Ministers and the judiciary, in addition to establishing the Consultative Assembly.
The judicial system was enhanced with the introduction of Law No. (13) For the year 1990, the Civil and Commercial Procedures Law clarifies the application of laws and procedures in disputes. It specifies the structure of the courts, their jurisdictions, and operations, in addition to appointing judges, their immunities, and duties.
The judiciary, which includes qualified citizens and Arab legal experts, has diligently worked to establish the foundations of justice supported by judicial independence and non-interference principles. This ensures the judiciary’s role as the cornerstone of Qatar’s state system. This development reflects the state’s commitment to developing a judicial system that aligns with international standards and contributes to the legal and judicial discourse regionally and globally.
The judicial court continued for more than three decades until the last constitution of the country was issued in 2004, which paved the way for establishing the current judicial system based on the principle of three levels of litigation. As Al-Muslim clarified, the goal was to integrate the judicial and Sharia courts and to keep up with the prevailing judicial systems in Arab countries and around the world. The Supreme Judicial Council was established to ensure the judiciary’s independence and supervise the proper functioning of the courts and their auxiliary bodies. It also is a place where the judicial institution is developed, grievances related to it are considered, and the affairs of judiciary employees are managed.
