EPS WRItten - Issue pertaining to sodomy and bind of co accused PDF

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EVIDENCE OF SHARIAH COURTSHA 4020SECTION 1TUTORIAL MONDAY 10-DR NORLIAH BT IBRAHIMBy:AHMAD RIDHWAN BIN ZULKIFLI (1721619)QUESTION 9:Mamat and Ali are jointly tried for the offence of sodomy. During the investigation, Mamat made confessional statements against himself and was recorded and witnessed b...

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EVIDENCE OF SHARIAH COURT SHA 4020 SECTION 1 TUTORIAL MONDAY 10-11 DR NORLIAH BT IBRAHIM By: AHMAD RIDHWAN BIN ZULKIFLI (1721619)

QUESTION 9: Mamat and Ali are jointly tried for the offence of sodomy. During the investigation, Mamat made confessional statements against himself and was recorded and witnessed by two Religious Enforcement Officers. Upon satisfying the validity of Mamat’s confession, the Judge sentenced him to six months imprisonment.Meanwhile, in charging Ali for the same offence, the prosecution tendered Mamat Confession despite Ali’s denial to the charge. The judge in commenting that the act ofsodomy could not be done by one party, sentenced Ali to six months imprisonment. As a defence counsel for both Mamat and Ali, you strongly believe that the judge has wrongly decided the case and wish to make an appeal against the said judgment. Prepare your arguments. (8 marks)

ANSWERS: It is fundamental to define a confessional statement or iqrar literally and technically. Iqrar is derived from the word qarra, yuqarru, qiraaran1 which literally means to stabilize or to accommodate something which is fluctuating between acknowledgement and denial2. While, technically, according to Imam Shafii, he stated that iqrar is an acknowledgement and avoidance of denial. While Imam Hanafi defined iqrar as giving testimony upon oneself as a proof of the right of others against him3. This definition has been accepted by Ottoman government as gazetted in Article 1572 of the Majallah, it states that an Iqrar is for someone to admit the right of another against himself. However in general, an iqrar is an acknowledgement that referred to the confession and admission made by someone which related to the right of others against himself.

1 See Ibnu Mazur, Lisan al-'Arab, Daru Ihya' al-Turath al-'Arabiy, Beirut, Luban, 1412H/1992M, vol.11, p.98- 99. S 2 Ibnu Hammam, Kamaluddin Muhammad bin 'Abd al-Wahid al-Siwasi al-Sakandari al-Hanafi, Fath alQadiir, Mat'ba'ah Mustafa al-Halabi wa Awladuh, Egypt, 1389H/ 1970M, vol. 7, p.296; Wahbah al-Zuhaili, Al-Fiqh alIslam wa Adillatuh, Daru al-Fikr, Damsiq, 1989, vol.6, p.610. 3 Ibnu Hammam Kamaluddin, Op-cit, vol. 7, p.296.

Based on the Malaysian context, according to Section 17(1) of the Syariah Court Evidence (Federal Territories) Act 1997, it states that an iqrar is an admission made by a person, in writing or orally or by gesture, stating that he is under an obligation or liability to another person in respect of some right 4. While, Section 17(2) the Syariah Court Evidence (Federal Territories) Act 1997 states that an iqrar shall be made (a) in Court, before a Judge; or (b) outside Court, before two male witnesses who are 'aqil, baligh and 'adil5. In applying to the current case, we can conclude that Mamat has made an iqrar in form of orally stating that he is under a liability for committing sodomy. Moreover, his confession statements were witnessed by two Religious Enforcement Officers outside of the Court. With that being said, the definition of iqrar as per required under Section 17(1) and (2) of the Syariah Court Evidence (Federal Territories) Act 1997 has been fulfilled by Mamat in this case. A primary concern of this question is to prepare arguments for Mamat and Ali. Therefore, the aim of this essay is to discuss the possible arguments and defences for Mamat and Ali for an appeal against the said judgment. The possible argument for Mamat can be discussed based on the first main legal issue which is whether Mamat’s Iqrar was valid. According to Pendakwa Syarie lwn Jalil bin Embong dan Zaliha binti Endut 6, the court had referred to the book of Mughnil Muhtaj, second volume, on page 238 which mentions ‫واركانه اربعة مقر ومقر له وصيغة ومقر به‬ “The pillars of iqrar have four things, namely muqirrun (people who utters iqrar), muqarrun lahu (a given person), sighah (speech or words iqrar), and muqirrun bihi (rights or interests recognized by the muqirrun).”

4 Section 17(1) of the Syariah Court Evidence (Federal Territories) Act 1997 5 Section 17(2) the Syariah Court Evidence (Federal Territories) Act 1997 6 (1425H/ 2004) 17 JH(I) 93 at 108-109, Kuala Terengganu Syariah High Court, before Dato' Haji Ismail Yahya, Judge on 19 October 2003.

Therefore it can be concluded that there are four pillars of iqrar that must be fulfilled conjunctively in order for the iqrar to be valid and admissible in the court namely Muqirrun (people who utters iqrar), Muqarrun lahu (a given person), Sighah (speech or words iqrar), and Muqirrun Bihi (rights or interests recognized by the muqirrun). With that being said, if one of the pillars has failed to be established thus the iqrar will become invalid. However, in our particular case, the facts are silent on the second, third and fourth conditions which are Muqarrun Lahu, Sighah, and Muqirrun Bihi. Therefore, it is safely assumed that these conditions have been fulfilled. Nevertheless, the facts in issue are relevant to the first condition which is Muqirrun (people who utter iqrar). With that being said, it is essential for us to determine whether the first condition has been fulfilled or not. In identifying the fulfillment of the first condition, we have to discuss the sub legal issue. The sub legal issue is whether Mamat’s confession was made voluntarily as per required under the first condition (confessor). The issue of voluntary is really fundamental because any confession that is made involuntarily will not be regarded as binding or valid upon the confessor. This is exemplified in the primary sources namely Alquran and Hadith. Firstly according to the relevant authority can be supported based on the hadith ‫رفع عن ام َ ت اخلطاء والنايان وما استكرىوا عليو‬ “My ummah is excused in case of mistake, forgetfulness and coercion”7

According to the second hadith, Umar also was reported to have said "A man cannot be trusted if he says something against himself while you starve him or beat him and tie him up8

7 Hadith 39, 40 Hadith an-Nawawi 8 Abu Dawud, Sunan, hadith no. 4382. See also Nasa'i, hadith no. 4878.

Therefore, according to the first hadith we can conclude that a man is innocent if he commits or declares which is unlawful or illegal provided that he is under one of the conditions namely mistake, forgetfulness or coercion. While, on the second hadith, it can be understood that any statement or declaration given by a person who is under a coercion or duress shall not be taken into consideration as it was done involuntarily. On top of that, based on Surah al-Nahl Chapter 16 verse 1069

Based on the verse, it can be understood that a man will still be regarded as a believer even after he had made any declaration that is against the shariah provided that he was forced to disbelief in Allah. Ie; he was threaten to be killed if remain as a muslim. The relevant law according to the Malaysia context can be seen under Section 18(1)(e) of the Syariah Court Evidence (Federal Territories) Act 1997 (Act 561) which states that an iqrar is inadmissible if the iqrar is not made voluntarily10. It means that a confessor must clearly have volunteered in making the confessional statements. On top of that, a cross reference must be made to Section 60(1) of the Syariah Criminal Procedure (Federal Territories) Act 1997 282 (Act 560) which states that no statement made by any person to a Religious Enforcement Officer in the course of an investigation under this Chapter shall, save as herein provided, be used as evidence11. This is because the nature of an investigation has a high possibility of the confessor making a confession involuntary because the convicted person and accused were tied up or beaten up before making the said confession.

9 Al Quran Chapter 16 verse 106 10 Section 18(1)(e) of the Syariah Court Evidence (Federal Territories) Act 1997 (Act 561) 11 Section 60(1) of the Syariah Criminal Procedure (Federal Territories) Act 1997 282 (Act 560)

This is evident in the case of Pegawai Pendakwa MUIS v Hj. Adib Datuk Said JH12. In this case, Hj. Adib(accused) was charged for committing zina with Cik Raini at night and repeated again for the second night. After two nights she was there, she was given RM200.00 and a ticket for Sandakan. Realizing that she was pregnant she came to have discussion with the accused but failed to solve it and thus she reported the case to the Syariah Court. The accused was contacted several times by the religious officer but failed to turn up. However, his confession of committing zina was recorded at his office witnessed by Haji Adib Workers. The court held that the accused was acquitted because the term witnesses must be meant for other persons, other than investigating officers. Therefore, if there are several investigating officers to be around in witnessing the respective confession, such testimony could not be treated as valid testimony in dealing with confession outside of the court Moreover, in Pendakwa Mahkamah Syariah Perak lwn. Ishak dan Fatimah 13 the two accused were charged for committing zina and made confession statements/iqrar in front of religious authority. It was held by the court that the two accused were acquitted because the confessions made by the two accused in front of the religious authority was inadmissible according to Section 60(1) Shariah Criminal Procedure. In a recent case PS v SNS14. In this case, the accused had been charged with a khalwat offense as she was found to be with two non-Muslim men which they had no marital relationship or a legal mahram. The accused had pleaded guilty(iqrar) to the said charge after the accused heard and understood the charges read against her. It was held that the guilty plea (‘iqrar’) of the accused had fulfilled the requirements of Sec 17 and 18 of Syariah Court Evidence Enactment (Selangor) 2003 which means that iqrar of the accused was made voluntarily without any coercion or persuasion from any party. Moreover in Pendakwa Syarie v Muhammad Fauzullah bin Ahmad Basheer 15, the accused was charged for committing illicit sexual intercourse out of wedlock with Baraath 12 (1988) Vol.6 306 13 Jurnal Hukum 48/79, p 308 14 [2020] 3 SHLR 11 15 [2013] 2 SHLR 27

Begiam bt Abdul Azis which resulted in a six months and two weeks pregnancy when investigated by the Religious Enforcement Officer. The accused pleaded guilty as per the said charge by the syarie prosecutor. The issue is whether the said confession was made voluntarily. It was held that the said confession by the accused was made voluntarily without any force or coercion and with full understanding of the consequences and its effects. In applying the relevant laws and cases to the current case, firstly Mamat may argue by invoking Section 18(1)(e) Shariah Criminal Evidence stating that his iqrar was made involuntarily because he was under a coercion or duress at the time of making the iqrar. This can be further supported by cross refer to Section 60(1) Shariah Criminal Procedure which was affirmed in Pegawai Syariah lwn Ishak dan Fatimah, in which any statement made to Religious Enforcement Officers should not be taken as a valid statement or testimony because there is a possibility of involuntariness by the confessor. Similarly in Mamat’ situation, he may have been coerced or interrogated or beaten up during the course of investigation which resulted in him making the iqrar involuntarily. The coercion may have been an important factor that Mamat may have confessed because he was only trying to escape from being beaten up by two religious enforcement. Applying Pegawai Pendakwa v MUIS, Mamat’s iqrar should not be treated as a valid testimony or confession because the terms 2 witnesses in Section 17(2) Shariah Criminal Evidence should not be investigating officers. Similarly, in our case the two religious enforcement officers are acting as investigation officers in investigating Mamat. With that being said it can be distinguished from Pendakwa Syarie v Muhammad and PS v SNS cases, Mamat confession was made involuntarily with force or coercion and without his full understanding of the consequences and its effects. Thus all in all, Mamat may argue that his iqrar is inadmissible because it was made involuntarily. The conclusion for the sub legal issue is Mamat’s confession was not made voluntarily as per required under the first condition (confessor). The conclusion for the first main legal issue is Mamat’s Iqrar was invalid because the first condition has failed to be fulfilled. Next, is on the possible defence for Ali. It can be further discussed under the second main legal issue which is whether the effect of confessional statement made by Mamat will bind

Ali as co-accused The general rule is “One is held responsible for his own confession”. This can be supported in Surah Az Zumar chapter 39 verse 7

Based on this verse, it may be understood that a person will never burden the liability or be punished for someone's mistake or offences. The accused will be liable or punished for his own wrong actions or wrong doings. On top of that, this rule can be seen clearly based on the hadith and quran we can see clearly that the person is liable for his own confession only. ‫عن سعد الاعدى عن النىب ملسو هيلع هلل ىلص ان رج ً ل ااته فاقر عنده افو زىن ًبمراة فاماىالو فثعث رسول هلل صلى‬ ‫عليو‬ ‫َل عن ذلك فافكرت ان تكون زف َفلده اجد وتركها‬

‫وسلم اَل املراة فاا‬

It was reported by Sa'd al-Sa'idi that there was a man came to see Prophet Muhammad and confessed that he had committed zina with a woman named by him. The Prophet s.a.w. sent a messenger for the woman and enquired from her about it. She denied the allegation. The Prophet s.a.w. punished the male but not the female.16 In another hadith it is stated that “A man came to the Prophet confessing that he had 16 Sunan Abu Dawud. See Ibnu Qudaamah, Al-Mughni, printed Riyadh, Vol. VIII, p.193.

committed zina four times with a woman whom he named. The woman swore by God that she did not do it and flung the lie back at her accuser. Only the man was flogged under the hadd of zina and at the same time asked to furnish evidence regarding the woman. But he was unable to do so, then he was again punished for qazaf”17 Therefore, based on the hadith above, it can be deduced that even the prophet did not convict or punish another person merely by confession from another person and without giving any valid proof. The illustration for this issue can be illustrated in Pegawai Pendakwa MUIS v Hj. Adib Datuk Said JH18. In this case, the issue is whether the confession of the co-accused, Cik Raini (who was convicted earlier based on her own confession that she committed zina with the accused) could be relied upon as evidence against the accused or not. The court held that the confession of the co-accused could not be used as evidence in order to convict another coaccused unless being clearly proved. Moreover, in Halimah lwn. Pendakwa Jenayah Kelantan19, Halimah had confessed that she had committed zina with Osman, although it was denied by Osman. The court held that Osman was acquitted but Halimah was convicted because the statement could not be accepted as it created suspicion or tuhmah on Osman. Based on this case, we can see that for an individual to be punished under a hudud offences the legal maxim of “udra’ul hudud bil syubuhaat” is relevant to be refereed because in hudud offences it must be clearly proven not even shadow of doubt. In a recent case, Pendakwa Syarie v Khairuddin bin Hj Abdul Ghafor20. The appellant was initially charged for committing zina with the co-accused by the name of Norsalin bt Hj Ja'afar. The female accused admitted to committing zina and was sentenced to a fine amounting to $2,000 or imprisonment for 60 days however the accused did not plead guilty to the charge. During the trial, the public prosecutor argued that illicit sexual intercourse (zina) 17 Sunan Abu Dawud, ―Kitab al-Hudud‖ , Vol. 4, pp. 159-160 18 (1988) Vol.6 306. 19 1 JH(1) 52 20 [2010] 2 SHLR 99

involves two persons and cannot be committed individually. It cannot be likened to theft or murder that can be carried out single handed thus a joint charge should have been maintained. However, the court was in favour of the defense counsel that argued on the case of maiz and thus the appeal was allowed, and the appellant was acquitted. In application, Ali may argue that he should not be convicted because applying the general rule, Mamat’s iqrar did not bind him as the co-accused and Mamat is only responsible for his own confession. Further applying MUIS case, Mamat’s confession cannot be relied as evidence to convict Ali because the fact is silent as to any proven evidence on the allegation of sodomy on Ali’s ie; there is no medical evidence showing Mamat’s semen in Ali’s anal or cloths and Mamat and Ali’s pubic hairs were not found in the same room. On top of that applying Halimah’ and Pendakwa Syarie v Khairuddin cases, Ali’s denial of the said allegation had created a suspicion and thumah in which according to the maxim “udra’ul hudud bil syubuhaat” is relevant to be refereed because in hudud offences it must be clearly proven not even shadow of doubt. Therefore, the judgment of six months imprisonment convicted on Ali should be set aside because he is not bound to Mamat’s iqrar and his denial creates doubt in hudud offences (sodomy) As a conclusion for the second main legal issue is the confessional statement made by Mamat will not bind Ali as co-accused. Therefore Ali should not be convicted for six months imprisonment

Reference 1. Statutes: a. Al-Majelle b. Syariah Court Evidence Federal Territories Act 1997 Act 1997 (Act 561) c. Syariah Criminal Procedure (Federal Territories) Act 1997 282 (Act 560)

2. Books & E-book: a. Islamic Law Of Evidence: Sources and Its Applicability, Vol , September 2018 by Hamid Jusoh b. Mahmud Saedon A. Othman, An Introduction to Islamic Law of Evidence, 2000.

3. Quranic Verse & Hadith: a. Abu Dawud, Sunan, hadith no. 4382 b. Hadith 39, 40 Hadith an-Nawawi c. Nasa'i, hadith no. 4878. d. Surah al Nahl [16:106] e. Surah Az Zumar [39:7] f. Sunan Abu Dawud. See Ibnu Qudaamah, Al-Mughni, printed Riyadh, Vol. VIII, p. 193. g. Sunan Abu Dawud, ―Kitab al-Hudud‖, Vol. 4, pp. 159-160

4. Law Cases: a. Halimah lwn. Pendakwa Jenayah Kelantan 1 JH(1) 52 b. Pegawai Pendakwa MUIS v Hj. Adib Datuk Said JH (1988) Vol.6 306 c. Pendakwa Mahkamah Syariah Perak lwn. Ishak dan Fatimah Jurnal Hukum 48/79, p 308 d. Pendakwa Syarie lwn Jalil bin Embong dan Zaliha binti Endut 17 JH(I) 93 e. Pendakwa Syarie v Muhammad Fauzullah bin Ahmad Basheer [2013] 2 SHLR 27 f. Pendakwa Syarie v Khairuddin bin Hj Abdul Ghafor [2010] 2 SHLR 99 g. PS v SNS [2020] 3 SHLR 11...