Zamri, a taxi driver was charged with speeding. He allegedly
travelled 30 km per hour in a school zone that prescribed a limit of 20 km per
hour. The prosecutor wants to call the two passengers in the taxi i.e Zaki and
Zali as witnesses who will testify that Zamri is speeding over the limit.
Based on the facts, discuss the responsibility of giving evidence
on both Zaki and Zali.
Answer (the writer's answer, subject to correction) :
The general rule of the responsibility of giving bayyinah and
shahadah according to Muslim jurist that it is an obligation of a Muslim to
furnish evidence in order to upheld justice.[1]
This responsibility to appear evidence is explained in the Quran as Allah says
:
يَا
أَيُّهَا الَّذِينَ آمَنُواْ كُونُواْ قَوَّامِينَ بِالْقِسْطِ شُهَدَاء لِلّهِ
وَلَوْ عَلَى أَنفُسِكُمْ أَوِ الْوَالِدَيْنِ وَالأَقْرَبِينَ
“O you who believe, Stand out firmly for justice, as witnesses to
Allah, even though it be against yourselves, or your parents, or your kin…” (Al-Nisa 4:135)
Based on this verse, there are 3 important principles that can be
highlighted which are as a Muslim, we must be strong to give evidence, come
forward to tell the truth, even against those who we loved such as our parents,
children and close relative.
In another verse,
Allah also stated in Al-Quran regarding the responsibility of Muslims to
co-operate in giving evidence when they are called by the Qadhi and the effect
of concealing it in Surah Al-Baqarah :
وَلَا يَأْبَ الشُّهَدَاءُ إِذَا مَا دُعُوا
“and the witnesses should not refuse when they are called on
evidence.” (Al-Baqarah 2:282)
وَلَا تَكْتُمُوا الشَّهَادَةَ ۚ وَمَنْ
يَكْتُمْهَا فَإِنَّهُ آثِمٌ قَلْبُهُ
“and conceal not evidence for he who hides it, surely his heart is
sinful.” (Al-Baqarah 2:283)
According to ibn
Abbas, “concealing evidence is one of major sins”,[2]
and this is parallel and in line with the latter verse above where those who
are concealing the evidence will be sinful.
In addition, there
are 3 opinions of Muslim jurists on the responsibility of giving evidence where
the majority said it is Fard Kifayah, Imam Shafii said it is Fard ‘Ain, and some
of jurists said it is recommended (mandub).
However, the
Muslim jurists agreed that, it is the responsibility of the person who has
knowledge or possess evidence to appear before the court as it is an obligation
for the Muslim in assisting judge to upheld justice in a disputed case. Thus,
those who have the evidence must come forward and appear before the court to
prove the case.
The application of
this responsibility is also based on Islamic Legal Maxim :
ما لا يتم الواجب الا به فهو واجب
“When the obligation cannot be completed except by the support of
other thing, then the other thing is also considered as obligation (wajib).”
According to Abdul Karim Zaidan in his book ‘Al-Wajiz
Fi Usul Fiqh’, in order to upheld justice among people and prevent injustice,
the judge must be appointed to act fairly in a disputed case, thus the
appointment of judge itself is mandatory based on the legal maxim above.[3]
Thus, it is similar with the responsibility of giving evidence. Basically
giving evidence is not an obligation, but in order to upheld justice in a
disputed case, it becomes obligation upon a Muslim who has evidence to disclose
it.
Moreover, in
non-hudud cases, the Muslim jurists are unanimous in their ruling that the rule
of giving evidence is Fard Kifayah, where the responsibility will be discharged
if a member of the community comes forward to give evidence. Thus, the Fard
Kifayah to protect a right or interest is discharged when someone has given
evidence to secure such right or interest.[4] They
also agreed that the number of witnesses in non-hudud specifically in civil
cases must be 2 male witnesses or 1 male and 2 female witness in certain
situations as stated in Article 1685 of Majelle Al-Ahkam.
But, according to
Ahmad Fathi Bahansi, the rule of Fard Kifayah will be transformed into Fard ‘Ain
in 3 situations. Firstly, if nobody comes forward to give evidence. Secondly,
if he is the only witness, and thirdly when he is called to be a witness.
However, according
to contemporary jurist, giving evidence actually is not an obligation as it is
done under discretion, but if they are requested by the Qadhi to give evidence,
they must comply with as it is an obligation to obey the order from the leader
as Allah said in Surah Al-Nisa
4:59 :
يَا أَيُّهَا الَّذِينَ آمَنُوا أَطِيعُوا اللَّهَ وَأَطِيعُوا
الرَّسُولَ وَأُولِي الْأَمْرِ مِنْكُمْ
“Oh you who believe, Obey Allah and
obey the Messenger and those having authority among you.”
The witnesses also
shall not refuse when they are called to give evidence as I explained before in
Surah Al-Baqarah, verse 282. In addition, according to Ibnu Abi Dam : “when
the testimony of a person is required by a court, such testimony becomes an
amanah (trust) and also Fard Ain.”[5] While, According to Section 58 of
Syariah Criminal Procedure (FT) Act 1997, a Religious Enforcement Officer has a
power to require the attendance of witnesses to assist in investigation. Thus,
those who have authority may call the witnesses to give testimony and such
witnesses cannot refuse from doing it.
However, there is
no obligation to obey if the order is to do something wrong and against the
principle of Islam, as the Prophet said :
لا طاعة لمخلوق في معصية الخالق
“There is no
obedience to a person if he was ordered to do wrong against the creator”
Applying
to the present case, Zaki and Zali were asked by the prosecutor to testify that
Zamri was speeding over the limit. It can be seen clearly that this case falls
under non-hudud case (civil matter) where the rule of giving evidence
pertaining to this case is Fard Kifayah and the number of witness must be 2
witnesses. If both of them had been subpoenaed by the court, they must come
forward to the court as the witnesses to obey the order from the authority.
However, if they are not being subpoenaed, they are not obliged to appear
before the court.
As we can see in
the present case, since both of them are the only witnesses and they are
requested to testify, the rule of giving evidence becomes Fard Ain as mentioned
by Ahmad Fathi Bahansi with the conditions that they had fulfilled the
requirements to give testimony which are aqil, baligh, adil, have a good memory
and are not prejudiced as mentioned in Section 83 of Syariah Court
Evidence (Federal Territories) Act 1997.
Thus, they are
under an obligation to appear before the court and give the testimony after
being subpoenaed. If they failed to attend without any sufficient reason, they
will be guilty of a contempt of court as stated in Section 102 of
Selangor Syariah Civil Procedure Code Enactment 1991. Section 98 of the
same Enactment provides that they must be given a proper sum for travelling and
subsistence expenses after being subpoenaed. Therefore, they will be committing
a sin if there were to neglect such a responsibility if they know that the
court requires their evidence and testimony.
[1] Mahmud Saedon A. Othman, An
Introduction to Islamic Law of Evidence, p. 11.
[2] Al-Shirazi, Al-Sheikh Al-Imam
Al-Zahid, Ali Ishak bin Ali, Kitab Al-Muhazzab, Dar Al-Kutb Al-Arabiyyah Al-Kubra,
Egypt, 1360 AH, vol. 2, p. 342.
[3]
Abdul Karim Zaidan, Al-Wajiz Fi Usul Fiqh (Arabic), p. 300.
[4]
Ahmad Fathi Bahansi, Nazariyyah Al-Ithbaat, Sharikah Al-Arabiyyah Li
Al-Tiba’ah, Egypt, 1962, p.16.
[5] Ibn Abi Dam, Al-Qadi Shahabuddin Abi
Ishak Ibrahim Abdullah Al-Hamdani Al-Humawi, Kitab Adab Al-Qada, Matba’ah
Al-Irshaad, Baghdad, 1984, 1st edition, vol. 1, p.125.
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