Abstract
An effective insolvency regime consists of specialized courts established for dealing with
the cases of insolvency and/or bankruptcy. Such courts are either specialized bankruptcy courts, or
commercial courts. The judges administering insolvency cases are highly specialized and they are
known for their high ethical and professional standards. These judges play a very significant role in
adjudicating the insolvency matters. However, an important question faced by all legal systems in this
connection is the discretionary powers that these judges may be given under the law. Every legal
system in the world, and all individual countries looking to establish such bankruptcy courts, need to
give such discretion to the judges involved. However, the question is the degree to which such
discretion may be conferred upon the judges. Being a separate legal system with its own features, the
Islamic law has also addressed this issue of courts’ discretion in insolvency matters. The discretion of
judge, called qadhi in the classical Islamic texts, has been well elaborated by the Muslim jurists of the
previous centuries. The relevant literature on the issue of the discretionary powers of qadhi reveals
that the Islamic law confers high powers of discretion upon the judge in insolvency related matters.
This is mainly due to the fact that under Islamic law, a judge is an active participant in the entire
adjudication proceedings. The duty of the judge is not restricted to the ascertainment of factual issues
and the mere application of substantive laws. Instead, he/she is empowered under Islamic law to
participate actively in the whole process and resolve the issue as much amicably as possible. In this
article, we explore the issue of the discretionary powers of insolvency court/judge under Islamic law.
Syed Naeem Badshah, Aijaz Ali Khoso, Najeeb Zada. (2019) The Role And Discretion Of Judge In Insolvency Matters Under Islamic Law, The International Research Journal Department of Usooluddin, Volume-03, Issue-1.
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