Expert opinion in Shariah Civil case (Except family case) PDF

Preview

Summary

EXPERT OPINION IN CIVIL CASES (OTHER THANFAMILY MATTERS)SHA 4020(EVIDENCE OF SHARIAH COURT)LECTURER: DR NORLIAH BINTI IBRAHIMName Matric Number SectionMuhamad Hafizan Shafuanbin kamarulzaman1720693 2Muhammad Irshad bin AbdulHakim1713017 2Muhammad Nur Iman binRosedean1727083 2No Content Pages6 Expert...

Description

EXPERT OPINION IN CIVIL CASES (OTHER THAN FAMILY MATTERS) SHA 4020 (EVIDENCE OF SHARIAH COURT) LECTURER: DR NORLIAH BINTI IBRAHIM

Name

Matric Number

Section

Muhamad Hafizan Shafuan bin kamarulzaman

1720693

2

Muhammad Irshad bin Abdul Hakim

1713017

2

Muhammad Nur Iman bin Rosedean

1727083

2

No

Content

Pages

1

Introduction

2

Concept of Expert opinion

2-5

3

Legality

6-10

4

Form of Expert opinion

10-12

5

Applicability of Expert opinion as evidence

12-13

6

Expert Opinion In Malaysia Sharia Law Perspective specifically civil law case

13-14

2

(other than Family). 7

Comparison of expert opinion in shariah and civil law from other countries

14-17

8

Case review

18-22

9

Article review

22-24

10

Conclusion

24

11

Bibliography

25

1

Introduction

In common terms, an expert opinion refers to the statement of opinion made by a witness to provide an evaluation of facts in evidence using the expert’s qualified prior experience to shed additional insight as to the matter. An expert’s opinion is admissible to furnish the court with scientific information which is likely to be outside the experience and knowledge of a judge or jury. If on the proven facts a judge or jury can form their own conclusions without help then the opinion of an expert is unnecessary. According to Ahmad Fathi Bahansi, al-ra'yu al-khabiir means the opinion, evidence or testimony given by someone who is skilful in a field or issue.1 The nature is clear that sometimes evidence through shahadah or iqrar or other qarinah could not be found, and as a result, a judgment cannot be made. Therefore, a case may sometimes be left without a decision unless and until the court has asked the opinion of those who are experts in a chosen field. The opinion given by the expert is based on a high standard of specialised knowledge. Thus, in particular cases, the court would use the expert opinion to assist in determining a dispute once the court is satisfied as to the competency of the expert. Although the decision may be the decision of the court, it is nevertheless also based on the opinion of an expert witness trusted by the court.

Concept

It is understandable that the concept of expert opinion is mainly referred to an opinion that is considered as evidence which is given by an expert. However, the question arises whether 1

4 Ibnu Al-Qayyim, Al-Turuq al-Hukmiyyah, Matba'ah al-Madani, p.188.

2

an opinion could be taken into consideration as evidence. It must be clear that the meaning of fact can be understood from the definition of fact as in Section 3 of the Syariah Evidence Act those laws which refers to (a) anything, state of things or relation of things capable of being perceived by the senses; (b) any mental condition of which any person is conscious. As a result, it is obvious that a fact is something which had actually occurred; which someone knows through actual observation as against what is merely inferred; an assertion or a statement of a thing which actually exists or existed; a thing done; an act performed; an event, an occurrence or a happening which had actually taken place and even a circumstance capable of being perceived.

In the current context (Malaysian context) , the juristic understanding has been translated into practice by inserting it into the Syariah Court Evidence (Federal Territories) Act 1997, particularly under section 33 which provides:

(1) When the court has to form an opinion upon a point of foreign law or of science or art, or as to identity or genuineness of handwriting or finger impressions or as how to determine nasab, the opinion upon that point of persons specifically skilled in that foreign law, science or art, or in questions to as to identity or genuineness of handwriting or finger impressions or as how to determine nasab2 are qarinah.

(2)Such persons are called experts.

The illustration given: The question is whether a certain document was written by A. Another document is produced which is proved or admitted to have been written by A. The 2

Based on the concept of qiyafah as discussed by jurists

3

opinions of experts on the question whether the two documents were written by the same person or by different persons are qarinah

The above principle was previously followed by Shariah Courts (as well as national courts63 ) in deciding cases (even though such law is newly enacted). This can be seen from the case of Haji Ghazali v. Asmah3 In this case, the plaintiff and defendant had married on 7th November 1974. They divorced on 11th August 1975. The court had ordered the plaintiff to pay the maintenance of his child, the maintenance of the defendant while she was in her pregnancy and the labour cost. The plaintiff was not satisfied with the judgment and appealed to the Court of Appeal against the judgment made by the trial judge. His argument, inter alia, was that the said child was not his child. He also contended that the Court should have not treated them as husband and wife. In his argument, the plaintiff referred to the evidence given by a doctor that the defendant was pregnant on 30th October 1974, despite their marriage taking place on 17th November 1974. This evidence showed that the defendant was pregnant before they were married. Therefore, the child was not his child and she should not be burdened with any responsibility of maintenance of the child.

The issue arises whether the contention made by the plaintiff was true or not. Based on the evidence given by both parties, the Court was satisfied and held that there was no proof to prove that the defendant was pregnant on 30th October 1974, that is before she was married to the plaintiff. A report by a doctor, Dr. Mehra, certified that the defendant was not pregnant at the material time as she was having menstruation period. She was examined by Dr. Mehra herself. Her marriage to the plaintiff was on 17th November 1974, i.e., 18 days after her menstruation 3

4(1980-81) 2 JH 81.

4

period. Therefore, she could not be pregnant at the time. This was certified by an expert in this field, Datuk Abdullah Ahmad.

It was stressed by Datok Haji Abu Hassan Haji Sail (the Court) that, ".. the denial of paternity by the appellant was made only after the claim of divorce had been made by the respondent. There was a delay in time and this rendered the denial was invalid as stressed in Kitab Fathul Muin and its Hasyiah, Vol.4 at page 152 which translated as:

"... wajib (obligatory) upon the husband to deny the child in the womb of his wife if he is absolutely certain and sure by going to the Qadi immediately and if he delayed without any acceptable reason, he has no further right to the denial and that the child is indeed his.."

In this regard it was noted that in most cases the witness will have no personal knowledge of the facts upon which his opinion is based, he should then state the assumed facts upon which his opinion is based. In other cases, the witness will have personal knowledge or first-hand knowledge of the facts in question as when he hears evidence of those facts given by other witnesses at the trial or as when he examines an exhibit or visits the scene of the incident (in which case he must testify as to both fact and opinion). By this way the court can assess the value of the opinion of the witness who either has his opinion on facts which he has personal knowledge or on the assumed facts.

5

Legality

This type of evidence is recognised as a means of proof. One of the main sources would be that of the Al- Quran. We can first look at Surah al-Qiyamah (75): 3-4. Here Allah S.W.T states :

ۡ ۡ ُۡ ُۡ ۡ ‫س ﱠﱠ‬ ‫ٱﻹﻧ ٰ َﺳنُ أَﱠﻟن ﱠﻧ ۡﺟ َﻣ َﻊ ِﻋ َظﺎ َﻣﮫُۥ‬ ِ ‫( َو َﻵ أﻗ ﺳِ ُم ِﺑﭑﻟ ﱠﻧﻔ‬1) ‫َﻵ أﻗﺳِ ُم ﺑِ َﯾ ۡو ِم ٱﻟﻘِ ٰ َﯾ َﻣ ِﺔ‬ ِ ُ‫( أَ َﯾ ۡﺣ َﺳب‬2) ‫ٱﻟﻠوا َﻣ ِﺔ‬ (4) ‫ي َﺑ َﻧﺎ َﻧﮫُۥ‬ َ ‫ﯾن َﻋﻠَ ٰ ٓﻰ َأن ﱡﻧ َﺳوﱢ‬ َ ‫( َﺑﻠَ ٰﻰ ٰ َﻗد ِِر‬3) It means : Does man think that We cannot assemble his bones ? Nay, We are able to put together in perfect order the very tips of his finger. According to Abdullah Yusof Ali in the Holy Qur’an note 5812, it is an idiom for the most delicate parts of his (mankind) body. It can be understood that it is easy to make a project which is similar to each other but it is so difficult to have all projects which are different from one to another. But Allah s.w.t. has determined it differently. It has been stated by Professor Dr. Hamka that there are special indications in the fingers. This is due to the fact that fingerprints are not similar for each person even though the number of people on this earth would reach 4 billion.4 Knowledge in regards to this can only be obtained from special observation. We can also look at surah An-Nahl:43 and Al-Anbiya:7. It states : “…And We sent not before you except men to whom We revealed [Our message]. So ask those who know if you do not know.” (Anwarullah, 2004 as cited in Shariff et.al., 2009) had quoted where he said the phrase ‘those who know’ could well be interpreted as those who have expertise in their respective fields.5 4

Hamka, Tafsir Al-Azhar, Yayasan Latimojong, Surabaya, undated, Vol.29, p.241. Ahmad Azam Shariff et al., “Relevancy and Admissibility of Medical Expert Witness in Illicit Intercourse under Shari’Ah Law,” Academic Journal of Interdisciplinary Studies 8, no. 3 (2019), https://doi.org/10.36941/ajis-2019-0025.

5

6

We can also look at Surah Yusuf (12): 25-28, here it is stated :

‫أرادَ ِﺑﺄ َ ۡھﻠ َِك‬ ِ ۚ ‫ﺻﮫُۥ ﻣِن ُدﺑ ُٖر َوأَ ۡﻟ َﻔ َﯾﺎ َﺳﯾﱢدَ َھﺎ ﻟَدَ ا ۡٱﻟ َﺑﺎ‬ َ َ ‫ب َﻗﺎﻟَ ۡت َﻣﺎ َﺟ َزآ ُء َﻣ ۡن‬ َ ‫َو ۡٱﺳ َﺗ َﺑ َﻘﺎ ۡٱﻟ َﺑﺎبَ َو َﻗ ﱠد ۡت َﻗﻣِﯾ‬ ‫ِد ﻣ ۡﱢن َ ۡأھﻠِ َﮭﺂ‬ٞ ‫ِﻲ ٰ َر َودَ ۡﺗﻧِﻲ َﻋن ﱠﻧ ۡﻔ ﺳِ ۚﻲ وَ َﺷ ِﮭدَ َﺷﺎھ‬ ٞ ِ َ ٌ‫ﺳ ُٓوءًا إِ ﱠﻵ َأن ﯾ ُۡﺳ َﺟ َن َ ۡأو َﻋ َذاب‬ َ ‫( َﻗﺎ َل ھ‬25) ‫أﻟﯾم‬ ‫ﺻﮫُۥ ﻗُ ﱠد ِﻣن ُدﺑ ُٖر‬ ُ ‫ﺎن َﻗﻣِﯾ‬ ُ ‫ﺎن َﻗﻣِﯾ‬ َ َ‫ﺻﮫُۥ ﻗُ ﱠد ِﻣن ﻗُﺑ ُٖل ﻓ‬ َ ‫( َوإِن َﻛ‬26) ‫ﯾن‬ َ ‫ﺻ َد َﻗ ۡت َوھ َُو ﻣ َِن ۡٱﻟ ٰ َﻛذ ِِﺑ‬ َ ‫إِن َﻛ‬ ‫ﻓَ َﻛ َذ َﺑ ۡت َوھ َُو ﻣ َِن ٱﻟ ٰ ﱠ‬ ‫ﺻﮫُۥ ﻗُ ﱠد ِﻣن ُدﺑ ُٖر َﻗﺎ َل إِ ﱠﻧﮫُۥ ِﻣن َﻛ ۡﯾ ِد ُﻛ ۖنﱠ إِ ﱠن‬ َ ‫( َﻓﻠَﻣﱠﺎ َر َءا َﻗﻣِﯾ‬27) ‫ِﯾن‬ َ ‫ﺻ ِدﻗ‬ (28) ‫ﯾم‬ٞ ِ‫َﻛ ۡﯾ َد ُﻛنﱠ َﻋظ‬ It means : So they both raced each other to the door, and she tore his shirt from the back: they both found her lord near the door. She said: "What is the (fitting) punishment for one who formed an evil design against thy wife, but prison or a grievous chastisement?" 26-He said: "It was she that sought to seduce me, from my (true) self." And one of her household saw (this) and bore witness, (thus) "If it be that his shirt is rent from the front, then is her tale true, and he is a liar! 27-"But if it be that his shirt is torn from the back, then is she the liar, and he is telling the truth!" 28-So when he saw his shirt, - that it was torn at the back - (her husband) said: "Behold! it is a snare of you women! truly, mighty is your snare! Emphasis should be put on the wordings, “And one of her household saw (this) and bore witness", as it is in regard to the position of experts. Syed Qutub, Abu al-Ala alMaududi and Ibnu al-Arabi are of the opinion that the person mentioned is a man of wisdom, skill and experience. This person need not be a man of science.6 A variety of persons with different positions can be categorised as an expert. It depends on the situation. Another type of authority would be that of the Sunnah. We can look at the hadith narrated by Amru bin Shuib from his father that the Prophet s.a.w. said: "Whoever practises medicine and 6

Syed Qutub, Fi Zilal al-Qur'an, Vol.4,1986

7

he has no such skill on medication, he is responsible".7 We can understand from here that a person who is not an expert in medicine would be responsible if anything happens as a result of his acts due to the fact that he is not the right person in dealing with things related to medicine. However, if he is qualified, then any mistake which is reasonable would not be shouldered by him. We can also look at the hadith narrated by Saidatina Aishah that the Prophet had once returned home in a happy mood as Madjaz al-Madlaji had examined the feet of Zaid and Usamah and confirmed their paternity based on the resemblance of their feet. Another hadith would be that of where it had been reported that Abu Jahal was killed in battle and two men admitted that they were the ones who killed him. The Prophet had then asked to look into their swords and blood. Here it was found that the claims were true. Thus, their confessions were admitted. Lastly, I would like to add the hadith where Zaid ibn Thabit said : “The Prophet ordered me to learn the writings of the Jews. I also wrote letters for the Prophet in his correspondence to the Jews and again thereafter read their replies to him”. All these hadith emphasize on the importance of expert opinion in certain matters. I would also like to add the Sunnah of the Prophet where one of the Muslim warriors was hit on the head by a flinging stone. He had then asked one of his comrades if he could use sand instead of water for wudhu. It was denied and he had then died after washing his head with water. The Prophet was notified of this incident and became angry as he stated that if a warrior was ignorant of a medical issue he should have consulted an expert and not do things on his own. “The above Sunnah is a further proof that Opinions of experts are often consulted during any

7

Ibnu Al-Farraj, al-Tala Mohammad, 'Uqdiah Rasulullah, p.471.

8

incident or inquiry during the time of the Prophet”. (Fatihah et. al., 2018 as cited in Shariff et.al., 2009).8 The next authority would be the practice of the companions. A case had happened where a woman who was in love with a man and wanted to have sexual intercourse with him. However, she did not have the chance. She decided to smear egg white on her thighs to imitate semen and accused the man of having raped her. Saidina Ali asked a witness and the witness supported the woman. Ali then asked an expert which put the fake semen into boiling water. The so-called semen appeared on the surface indicating that it was not semen. Using this evidence, Saidina Ali had rejected the acquisition made by the woman. Another case was when Umar r.a had given a judgement in regard to the paternity of a person based on qiyafah in the presence of the Companions. It was regarded as consensus. Umar was happy that a tracer was summoned to give opinion in regards to a matter where two men had a sexual relationship with a woman while she was in a state of purity. The two men had then claimed her son, which the tracer then identified to which one of them the son belonged to.9 Lastly, let us look at the opinions of the jurist. Generally, all Muslim jurist accept the evidence of a witness with special knowledge or experience and skill in most cases. However, in regards to the case of qiyafah, there is disagreement among them. According to the Malikis, Shafi’is and Hanbalis, qiyafah can be used to determine the paternity of a person. This is based on the acceptance of the Prophet in the case of Madlaji and Umar in where he gave judgement on the basis of qiyafah. On the other hand, according to the Hanafi school qiyafah cannot be accepted as the nature of such methods is based on guesswork and estimation. During the age of

8

Ahmad Azam Shariff et al., “Relevancy and Admissibility of Medical Expert Witness in Illicit Intercourse under Shari’Ah Law,” Academic Journal of Interdisciplinary Studies 8, no. 3 (2019), https://doi.org/10.36941/ajis-2019-0025. 9 Ibnu Al-Qayyim, Turuq, p. 290.

9

the Prophet and Sahabah, this method was a viable choice. But now in this modern era, with the development of technology there are many other more accurate ways to determine lineage such as by DNA evidence. Thus, I would opine that it is better to follow the view of the Hanafi school of thought. Coming back to the opinion of the jurist, it was narrated by Imam Malik that if a person pledges goods as security for loan and it perishes in the hands of the broker and there is a dispute as to its value, then the pledgor is asked to describe the goods and the persons who have skill and experience in valuation of goods are asked to evaluate basing on the description given by the pledgor.

10

Some jurists are of the view that the opinion of experts binds the court. Imam Ahmad

ibn Hanbal is of the view that “ if four men had given their testimony accusing a woman of zina while several trusted women had also given their opinion that the accused is still a virgin, then the hadd or qazf shall not be imposed on the woman” We can see that the testimony of four male witnesses binds the judge in zina cases. However, the opinion of an expert also carries weight which would stop the hadd punishment from being imposed. We can come to a conclusion that expert opinion is of importance and is also a strong source of authority under the Islamic Law of Evidence.

Forms Of Expert Evidence There are a few forms of expert opinion. The first would be that of Medical evidence. We can look at the case of Qazi Zahir-ud-din v. 1.Qazi Imtiaz Ahmad, 2. The State11. In this case the issue of expert opinion was raised. It was found in this case that when dealing with medical evidence it was only corroborative and not sufficient by itself to connect the accused with the

10 11

Malik bin Anas, Al-Muwatta', 1989, p.301 2003 SD 197

10

commission of a non-bailable offence. This view is also shared in the cases of Zahoor Ahmad v. The State12, Shafi Ullah and another v. Muhammad Saeed and 3 others13 and Mulazim Hussain v The State and another14. We can come to a conclusion that the view of medical evidence in the Pakistan courts is that it is corroborative and cannot stand on its own. Its function would be that of confirmation, eg: to confirm ocular evidence. Another form of expert evidence would be that of a ballistic expert. In cases such as murder, reports of ballistic experts are among the evidence that can be accepted. We can look at the case of Mehboob Sultan and 2 others v. The State and others

15

. It was found that “ the

report of the ballistic expert that the empties recovered from the scene of offence were fired from kalashinkov recovered from the appellant Mehbood Sultan further corroborates the ocular version From the evidence on record motive also stands established." Another case is the case of Shahzad Masih v. The State16. Here it was discussed that the delay in the dispatch of the crime empties to the laboratory and the fact that the bullet recovered was not sent to the laboratory put serious doubt on the prosecution's case. Also in the case of Muhammad Hanif v. The State17 it was found that in presence of direct evidence, Expert‘s evidence, might it be medical or that of Ballistic Expert was entirely in the nature of confirmatory or exploratory or other circumstantial evidence. One more form of evidence would be that of DNA. From the case of Muhammad Azhar v. The State18 , DNA was discussed based on explanations by experts in Islamic Law. It was found that Islam encourages the seeking knowledge and research in the field on DNA and that it

12

NLR 1995 SD 608. P L D 2005 Peshawar 46 14 2010 P Cr. L J 926 [Lahore] 15 2001 SD 473 16 2006 P Cr. L J 17...