Evidence of Shariah Court

SHA 4020

Problematic-Question No.15 (b) and (c)

[Tutorial Class Monday 3p.m. - 4p.m.]

Supervised by: Dr. Hamid Jusoh

Written by: Nur Ahadiyyah binti Shahrun Nizam (1721116)

Question 15

In claiming the right of harta sepencarian (matrimonial property) over their matrimonial
house, Rokiah intends to call her father-in-law, Ahmad, her mother-in-law, Aminah and her
brother-in-law, Budin, to testify to it. Her ex-husband, Ibrahim, has admitted in his written
statement of defence that Rokiah was entitled to half of the share of the matrimonial house owing
to her contribution. However, when he later learns that Rokiah also wants to claim mut’ah
(consolatory gift) he withdraws his admission regarding her entitlement on the said house.

Rokiah is now confused after knowing the withdrawal of her ex-husband’s statement. She comes
to see me for advice.
In the light of the above circumstances, advise her, based on Hukum Syarak as well as current
legal practices in the Syariah Court in Malaysia, on the following:-

b) The status of Ibrahim’s admission.

First of all, before discussing the main issue about retraction of admission, the sub-issue
would be discussed on whether Ibrahim’s admission can be admissible in the court as Iqrar?

In the view of Shariah law, the main aspect of iqrar refer to its declaration ie. Sighah,
where the general principle is that it must be clear, absolute and unequivocal1 (Ibnu Hammam,
2012, as cited in Hamid Jusoh, 2020). As stated in Article 1584 of the Majalla2, it stated that
“An admission dependent on a condition is void. However, if it is made dependent on a time
which is a good time for a deferred obligation according to the custom it accounts for an
admission of a debt payable in future.” Based on this principle, generally, an admission may be
made in any form as long as it can be understood as a confession, either orally, signs and gesture,
or in written form.

Based on the facts given, Ibrahim had written down his admission in a document. In the
general views, written admission is considered as permanent marks which are visibly readable
and it is customary among the people (Muhammad ibnu Ahmad Sarakhsi,1987, as cited in Dr.
Hamid Jusoh, 2020). The validity of this kind of Iqrar can be found in al-Qur’an, Surah
al-Baqarah, verse 282:-

ُ ‫ب َك َما عَلَّ َمهُ هّللا‬ َ ‫وا ِإ َذا تَدَايَنتُم بِ َدي ٍْن ِإلَى َأ َج ٍل ُّم َس ّمًى فَا ْكتُبُوهُ َو ْليَ ْكتُب بَّ ْينَ ُك ْم َكاتِبٌ بِ ْال َع ْد ِل َوالَ يَْأ‬
َ ُ‫ب َكاتِبٌ َأ ْن يَ ْكت‬ ْ ُ‫يَا َأيُّهَا الَّ ِذينَ آ َمن‬
ْ‫فَ ْليَ ْكتُب‬

It means : "O you who believe ! When you deal with each other, in transactions involving future
obligations in a fixed period of time, reduce them to writing. Let a scribe write faithfully between
the parties: let not the scribe refuse to write: as Allah has taught him, so let him write."

1
Hamid Jusoh, ISLAMIC LAW OF EVIDENCE IN MALAYSIA AND PAKISTAN [IQRAR – CONFESSION],
p. 206
2
Imam Hanafi, AL-MAJALLA AL-AHKAM AL-ADALIYYAH, Book XIII, Chapter 2 [Validity of an Admission],
Article 1584
 Allah SWT mentioned in this verse about it is important to write all the debt and
transaction in order to avoid the forgetfulness of human nature. It is related with the concept of
writing in general and also can be applied in the case of admission.

In section 17(1) of the Syariah Court Evidence (Federal Territories) Act 1997 had
defined that iqrar can be formed in writing, oral or signs and gesture. Thus, it is admissible in the
Shariah court of law. Apart from that, in section 44 of the Syariah Criminal Code (II)
Enactment 1993 of Kelantan mentioned about the acceptance of confession in general meaning
without specifying the forms of admission should be done. Meanwhile, in section 55(1) of the
same Enactment and section 55 of Syariah Court Evidence (Federal Territories) Act 1977 also
recognises the concept of written admission to the effect that, "Admission of writing, signature or
seal shall be considered admission of the writer or executant of the document".

In application to the current case, Ibrahim’s admission about a share of matrimonial

house in a statement of defence is considered as a valid iqrar as it was formed as a written
admission. Thus, it can be admissible in the court pursuant to section 55 of Syariah Court
Evidence (Federal Territories) Act 1977.

Next, the main issue arises in this case on whether Ibrahim can retract his written
admission that Rokiah was entitled with half of the share of matrimonial house?

Retraction in the arabic term is ‫ الرجوع عن اإلقرار‬which refers to the act of withdrawing his
earlier statement. The retraction can happen if there is confession or admission exists. The
confession or admission must be valid and admissible in the court. As mentioned on the
sub-issue above, the written admission made by Ibrahim in the statement of defence is valid and
can be admissible in the court.

Confession or admission, in general, is used to establish a right or duty toward the

creator. There are two things to consider when establishing the right: first, Allah's right, and
second, man's right. In Shariah law, each of these has its own legal impact.

As stated in the case of Arif Nawaz Khan and others v. The State3, the court stated that
in Islamic law, so far as retraction from confession is concerned, it has two aspects which are if

3
PLD (1991) FSC 53.
an admission is made in respect of an individual's right (‫)حق الغير‬, it cannot not be retracted by the
maker of admission (‫ )مقر‬against himself based on the principle (‫ )المرء يؤخذ بإقراره‬the man is
caught by his admission. In contrast, if it is made in respect of the right of Allah or the society, it
can be retracted.

In the right of Allah normally happened in the case that established hudud punishment.
For instance, in the case of zina, theft, robbery and so forth. From the view by Al-Qurtubi stated
that the majority of Mazhab accept the retraction from the confessor in the hudud cases. Most of
their reference is from the hadith about Maiz had confessed four times to Prophet Muhammad
SAW that he had committed zina. Prophet Muhammad did not believe him until he confessed for
the fourth times. Thus, the prophet made a judgment to stone Maiz until death and it was carried
out in order for Maiz to be purified.

Despite that, it can be concluded that in dealing with Allah's right, the jurists decided that
an individual may retract his confession and it will be considered legitimate, but not in terms of
sacrificing it, and that by retracting his confession, he will be clear of any liability.

However, when the issue of iqrar comes with the right of man in some civil cases, it can
be retracted because it does not nullify the due right which has been given by Syara to mankind.
It should be noted that upon fulfilling the required conditions for the iqrar, such iqrar binds the
maker and cannot be retracted (Dr Abdul Karim, 1984, as cited in Dr Hamid Jusoh, 2020)4.

For more information, there are no specific legal positions for retraction in Malaysia.
However, it can be seen in section 130(2) of the Syariah Court Evidence (Federal Territories)
Act 1997 provides that "In the event of a lacuna or where any matter is not expressly provided
for in this Act, the Court shall apply Hukum Syarak”. Thus, if there is nothing mentioned about
refraction in the statute, the court can apply based on Hukum Syarak by referring it in Quran and
Sunnah, also in the jurist views.

4
Hamid Jusoh, ISLAMIC LAW OF EVIDENCE IN MALAYSIA AND PAKISTAN [IQRAR – CONFESSION],
p. 393
 It can be illustrated in the case of Bukhari bin Mohd Noor lwn. Aishah binti Ismail5, the
husband had made a confession in terms of oath that he would never claim any property from his
mother, Aishah binti Ismail. However, the Syariah Appeal Court reversed the judgment by
Syariah High Court by saying that the appellant (the husband) had the right over his claim based
on Hukum Syarak, since there was a contention that the property should be divided equally as
being entrusted by the deceased, the appellant’s father.

Another case that can be represented is the case of Noraini binti Mokhtar lwn. Abd
Halim Samat6, the appellant filed a matrimonial property claim against her ex-husband, which is
a bangle house worth RM150 000 and three lands worth RM350 000. The appellant presented
with three witnesses in support of her claim. However, the ex-husband did not agree with her
claim. But, he also contended in front of the judge that his ex wife did contribute with the
matrimonial property. His ex wife also did settle the loan payment of the properties. Therefore,
the court dismissed his retraction of admission and stated that each party should get half of the
matrimonial properties equally as both entitled with the properties.

Both of the above cases had explained that for the issue of retraction in civil matters can
be retracted, as it involves the man’s right.

Therefore, to conclude, in the current case, the status of Ibrahim’s admission that had
been retracted will not be admissible in the court as it involves Rokiah’s rights to be entitled also
with the matrimonial property. It is stated in the written admission by Ibrahim that Rokiah had
contributed with the matrimonial property during their marriage. Thus, each party should get the
matrimonial property equally as provided by the Syariah Court.

5
(1425H) 18 JH(II) 245
6
(2004) 18 JH(II) 303, 312
c) The status of the witnesses

The next issue arising on the current case is whether the witnesses can be admissible as
they have blood relation with Ibrahim? The sub-issue will be whether the witnesses are beyond
suspicion or trustworthiness?

In general view, the witness or syahadah needs to be a trustworthy person. As stated in

Surah al-Baqarah, verse 283,

‫َواَل ت َۡكتُ ُموا ال َّشهَا َدةَ ​  ؕ َو َم ۡن ي َّۡكتُمۡ هَا فَاِنَّهٗۤ ٰاثِ ٌم قَ ۡلبُه‬

“ And conceal not evidence for he who hides it, surely his heart is sinful”

From this verse, Allah stated that whoever be a witness in certain cases must not conceal any
evidence because it is a great sin. This verse supported by Ibnu Abbas mentioned that concealing
evidence is one of the major sins.

Furthermore, in the Shariah law, any person who had an issue of tuhmah is not competent
to be a witness. Tuhmah is a suspicion due to good relations, the existence of individual interests
or suspicion due to bad relations with someone who is related to a particular case or judicial
proceeding (Mahmud Saedon, 1999, as cited in Dr. Hamid Jusoh, 2020)7. A tuhmah may occur
for a variety of reasons, including family ties, blood ties, enmity, or the presence of personal
stakes in the outcome of a dispute. Tuhmah will cause a witness to experience feelings of love, ill
will, hate, fear, or undue influence when giving testimony.

The state of no tuhmah on the part of a witness providing testimony in a trial is based on
hadith, the Prophet s.a.w stated that "‫"ال تقبل شهادة خصم وال ظنين وال ذي حنة‬, which means “there
shall be no testimony, shahadah, for people who have dispute, suspicion and having enmity." The
reasons for not accepting the witness that have tuhmah issue is to avoid any doubt pursuant with
verse 282 in Surah al-Baqarah, [..‫]َأاَّل ت َۡرتَاب ُٓو ْا‬, which means “to prevent doubts among
yourselves.”

7
Hamid Jusoh, ISLAMIC LAW OF EVIDENCE IN MALAYSIA AND PAKISTAN
[SYAHADAH-EYE-TESTIMONY], p. 439
 On the other hand, in the Article 1700 of Majalla8 provides that “as regards the giving of
evidence, it is a condition that there be no cause arising from the evidence of debt or the accruing
of gain, i.e. the avoidance of harm or the production of benefit”. Notwithstanding that in order to
give syahadah, it should be highlighted that to not accept the issue of tuhmah in order to avoid
any harm or to produce any benefit that could be happened.

As mentioned above, blood relation between the witness and the party is one of the
elements of tuhmah. With the exception of Mazhab Shafiis, the majority of jurists in this case
believed that the testimony of major and minor branches of families for each other was
inadmissible. In this case, a parent's testimony on behalf of his child and a child's testimony on
behalf of his parents are both inadmissible (Wahbah al-Zuhaili, 1982, as cited in Dr. Hamid
Jusoh, 2020)9. It is also supported by Article 1700 of Majalla10 which states that the giving of
syahadah for major and minor branches of families is not admissible in the court.

Furthermore, it can be illustrated in the case of Sharifah Sapoyah v. Wan Alwi11, where
the learned Qadi rejected the evidence given by a father of the applicants as in the islamic law, a
father cannot give syahadah in favour of his son or daughter.

In the Syariah Court Evidence (Federal Territories) Act 1997, section 83(6) provides
that “A person whose credibility is suspected because of his good relationship with and who has
interest in the adverse party is competent to give bayyinah but is not competent to give
syahadah.” The subject is the same with section 83 (7) of Syariah Court Kelantan Enactment
1991, where if the witness have good relationship by way of blood relation with the parties, they
are competent to give bayyinah but not competent to give syahadah on behalf of the parties in
the case.

However, there is an exception in this situation as stated section 85(2) of Syariah Court
Evidence (Federal Territories) Act 1997, to the effect that "evidence of a child against his parent
and that of a parent against his child is admissible as syahadah and bayyinah". While subsection
(4) provides that "evidence of a parent for his child and that of a child for his parent is admissible

8
Ibid
9
Hamid Jusoh, ISLAMIC LAW OF EVIDENCE IN MALAYSIA AND PAKISTAN
[SYAHADAH-EYE-TESTIMONY], p. 440
10
Ibid
11
(1988) 6 JH(I) 259.
as bayyinah". These subsections mentioned that it is admissible if the parents give evidence
against his child or the child gives evidence against his parents. It is because, for this situation is
actually not totally affected by the element of blood relationship. Therefore, it is admissible to
give syahadah and bayyinah. Meanwhile, in subsection 4 mentioned that if the parents act on
behalf of their child or the child acts on behalf of his parents, it cannot be admissible to give
syahadah but can give bayyinah.

It can be illustrated in the case of Che Mas binti Abdullah lwn Mat Sharie bin Yaakob,12
the issue arises on whether the syahadah that be given by the Plaintiff’s mother can be accepted
or not. Thus, The Syariah High Court Judge in Kuala Terengganu cited section 83(1) of the
Syariah Court Evidence Enactment (Terengganu) 2001, which specified that the witness must
not have tuhmah in order for the syahadah to be admitted. As a result, the trial Court did not
consider the Plaintiff's testimony in the form of syahadah because she provided her mother as a
witness.

Therefore, in the current case, in applying the section 85(2) of the Syariah Court
Evidence (Federal Territories) Act 1997 to the current case, even though the witnesses have a
blood relation with Ibrahim, they still can be admissible as shahadah because they were act as
witness is against him and act on behalf of Rokiah. This is also contrary with the case of
Sharifah Sapoyah and the case of Che Mas, where both plaintiffs produced their parents to give
evidence in the form of syahadah, thus the court did not accept it. Meanwhile, in the current case,
the court can accept the witnesses' act against Ibrahim and not for him even though they have a
blood relationship with each other.

Apart from that, another issue arises on whether the witnesses can act on behalf of
Rokiah since they were her ex-family in law.

There is another situation in the element of tuhmah which is the partiality. The jurists
believe that it exists when there is a relationship between the witnesses and one of the parties
which suggests partiality or a personal interest that may be advanced by the witness through her
testimony (Ma’noum, year, as cited in Dr. Hamid Jusoh, 2020)13. These issues can be seen in the

12
(1426H /2005) 19 JH(1) 32 at 70
13
Hamid Jusoh, ISLAMIC LAW OF EVIDENCE IN MALAYSIA AND PAKISTAN
[SYAHADAH-EYE-TESTIMONY], p. 444
case of partnership in business, relationship between employer and employee, husband and wife
or any close relationship between one and another.

As referred in the Syariah Court Evidence (Federal Territories) Act 1997, section 83(6)
provides that “a person whose credibility is suspected because of his good relationship with and
who has interest in the adverse party is competent to give bayyinah, but is not competent to give
syahadah”. Therefore, if any person to be a witness on behalf of the party and have a good
relationship other than blood relationship is also not competent to give syahadah but is
competent to give bayyinah.

It can be referred in the case of Pegawai Pendakwa MUIS v. Hj. Adib Datuk Said14,
where in this case, the first witness contended that he is one of the first accused’s relatives.
Meanwhile, the second witness was a co-worker for the first accused in this case. Therefore, the
court observed that there is an issue of partiality between the party and the witnesses thus
rejected their testimonies.

In addition, in the case of Shaharin bin Nordin lwn. Noraidah binti Nordin15, when the
role of the respondent's witnesses is material, the same topic is addressed in this case. In
response to this argument, the Syariah Court of Appeal cited section 83(6) of the Syariah Court
Evidence (Federal Territories) Act 1997 and stated that since the respondent's sisters were the
persons with an interest in the case, her assertion was still surrounded by the element of doubt.
The witnesses were not able to support her claim. Thus, the burden of proof that being burdened
on her not to be completed.

In applying the law to the current case, regarding the facts given that Rokiah provides her
witnesses from her ex-family in law is actually can be doubted on the issue of partiality which
one of the elements of tuhmah. There could be a good relationship between Rokiah and her
ex-family in law. As pursuant with section 83(6) of the Syariah Court Evidence (Federal
Territories) Act 1997, also in cases of Hj. Adib and Shaharin, Rokiah’s witnesses, cannot be
admissible and cannot be competent to give syahadah if there is any good relationship with her.
Otherwise, if there is any support shows that they are not having any good relationship as she

14
JH (1988) 6, 306.
15
(1429H) 26 JH(I) 73
already divorce with Ibrahim and only her ex family in law could testify her claims, thus her
witnesses can be competent to give syahadah and bayyinah in the trial Court.