Malaysia Islamic Evidence & Procedure - Al-Yamin (Evidence by Oath) PDF

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**Al-Yamin (Evidence by Oath) Definition Literal :** Right side, Oath – A person who takes an oath usually does so by putting up his right hand. Oath = al-halaf, al-istihlaf, al-qasam - Technical: A solemn pronouncement in the name of Allah or His Attributes to affirm the truth of one’s stmt or to s...

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Al-Yamin (Evidence by Oath) Definition • Literal : - Right side, - Oath – A person who takes an oath usually does so by putting up his right hand. - Oath = al-halaf, al-istihlaf, al-qasam • Technical: - A solemn pronouncement in the name of Allah or His Attributes to affirm the truth of one’s stmt or to strengthen an allegation. - An utterance or pronouncement accompanied by the invocation of the name of Allah or His Attributes for the purpose of stressing (tahqiq) sth over a matter which will not be proved except by way of oath. - An oath shall be considered in a case in which no other evidence is available at all. If a person brings a claim against another & the latter denies the claim, P must produce evidence. - If he fails to produce any evidence, he may ask that D be required to deny the claim under oath. - The Ct may impose certain formalities on taking oath by a person. The Ct shall ask for taking oath. The oath shall be taken by the person whom the Ct asks to take oath & not by his agent or other substitute. Surah Al Maidah 5: 89 “God does not take you to task for a slip (or blunder of speech) in your oaths, but He takes you to task for what you have concluded by solemn, deliberate oaths...” Surah Al Nahl 16: 91 “And fulfill God's covenant when you have made the covenant (and any commitment that you made among yourselves in God's Name), and do not break your oaths after having confirmed them; indeed, you have made God your guarantor. Surely God knows all that you do.” Surah Yunus 10:53 “They ask you, "Is it true?" Say: "Yes, by my Lord, it is surely true; and you cannot evade it." Surah Al-Taghabun 64:7 “Those who disbelieve claim that they will never be raised from the dead. Say: "Yes indeed, by my Lord, you will certainly be raised from the dead...” Hadith 1. Ibn 'Umar said: Prophet said, "Allah has prohibited you from taking an oath by your fathers. He who must take an oath, may do so by swearing in Name of Allah or he should remain silent.“ 2. Ibn 'Abbas narrated that the Messenger of Allah said: "Were people to be given according to their claims, some would claim the wealth & blood of others. But the burden of proof is upon the claimant & the taking of an oath is upon the one who denies (the allegation).“ 3. Ali b. Yazid b. Rukanah reported on the authority of his father from his grandfather that he (Rukanah) divorced his wife absolutely; so he came to the Prophet & the Prophet asked: What did you intend? He said: A single utterance of divorce. He said: Do you swear by Allah? He replied: I swear by Allah. He said: It stands as you intended Art 1743, The Mejelle • Should it be intended to put one of the parties on his oath, he shall be caused to take the oath in the name of Allah. S 72 SCEA 1997 • The burden to produce evidence in a civil case lies on the person who alleges or asserts a fact (alMudda‘ii) and the person who takes the oath to deny or disputes a fact (al-Mudda‘a ‘alaih).

OATH IN THE NAME OF ALLAH • The invocation of the name of Allah or his Attributes is to strengthen the oath maker’s stmt & the content of the oath itself w regards to whether what the oath is all abt has been completed or not. • The jurists have unanimously agreed that an oath is valid when coupled w name of Allah such as “wallahi, wa billahi watallahi” or coupled w His Attributes such as “wa al rahman, wa al rahim, wa Rab Al-Alamin” Hadith • “Verily Allah have forbidden you from making oaths in the name of your ancestors, but whoever wishes to make an oath, do so with the name of Allah.” • “Whomsoever swears in the name of other than Allah verily he has associated Allah with other partners (shirk)” • “Whomsoever who swears in the name other than Allah verily he is a transgressor (kafir).” - It is invalid for an oath to be coupled with “insyaallah” or God willing” as this nullifies the object of the oath & it is a qualifier/conditional to the oath itself. Hadith “Whoever sworn an oath & later he says Insyaallah he there4 have broken his own oath.” CATEGORY OF OATH 1. Oaths Taken Out Of Court • GR - can’t be used as a means of proof. However, the person making an oath is still liable for punishment (kaffarah) if he makes an untruthful oath & his act shall be considered a sin. 2. Oath Taken In Court • Oath taken on request of a judge is considered as one of the means of proof in the judicial process. • It is originally to be taken by the D when the P fails to produce evidence & it shall be taken in the name of Allah or His Attributes. PURPOSE OF OATH 1. To prove a fact: • To prove a fact w regards to an act done by some1 else. The oath must be made w firm, clear & precise words. • Eg: Oath by the claimant as a support to a single witness 2. To deny a fact: • To deny matters w regards to the acts of others, the oath must be made in the form of a denial. • The oath shall be taken firmly denying knowledge or info abt such a person’s act. CONDITIONS FOR A VALID OATH 1. Islam - The jurists have divided into several views but MAJORITY have opined that an oath by a nonMuslim is acceptable based on the case of Umar who vow to perform I’tikaf at Masjidil Haram b4 he embrace Islam 2. Mukallaf – Sane, reach the age of puberty 3. Intention 4. Oath in the name of Allah 5. The Defendant must have denied the claim of the Claimant. 6. The Claimant has requested the Judge to make an order for taking the oath. 7. The oath shall be taken personally - An oath cannot be delegated to anyone else as an oath related to one’s responsibility – If D is a minor/child, the guardian cannot take the oath on behalf of the child & shall wait until the child reaches his age of puberty 8. The oath shall not be in cases concerning Right of Allah e.g. hudud & religious ritual. 9. The oath shall be in cases where admission is possible. – If the person is not allowed to make an admission, then his oath also is not allowed 10. The Claimant does not have conclusive evidence

CASES WHERE OATHS SHOULD BE ADMINISTERED • Only in cases of had or worship which contains rights of man. • Property cases, family law i.e. marriage, divorce, dower. • Qisas cases. TYPES OF OATH 1) Oath by a witness 2) Oath by the Defendant 3) Oath by the Plaintiff a) Yamin Al-Jalibah b) Yamin al-Tuhmah c) Yamin Al-Istishaq / Istizhar 1) THE OATH OF A WITNESS • Taken b4 giving evidence but taken in the form of tazkiyyah & to strengthen testimony . • This is accepted by Ibn Qayyim, Maliki and Zaidiyyah. Maliki - If there is any doubt in the witness, then Ct may ask the witness to take oath. Hanafi - If the witness is going to give Shahadah, no need to take oath as Shahadah implies oath. Credibility of witness established & not necessary for witness to take oath. 2) OATH BY THE DEFENDANT • Oath taken by D on order of a judge to strengthen his defence against the charge. Also known as: a. Original oath(yamin asliyah) b. Mandatoryoath(yaminwajibah) c. Denying oath (yamin raf’iah) • If D took an oath (following the failure of P to bring conclusive evidence), D will then be acquitted of the charge. • Issue : whether the P is entitled to tender further evidence after the taking of oath? Hanafi & Shafie & Hambali • Subsequent evidence can be admitted. Oath is a weak form of argument & act as a substitute evidence when there is no evidence tendered by the P • Authority: Umar Al Khattab says: “A lying oath is more deserving of rejection than trustworthy evidence.” - This view has been accepted by Salafi jurists. Hanafi - This type of insident is very rare because the D will only be allowed to take oath when P had failed to produce evidence. Imam Malik supported by Imam al Ghazali - P allowed to give evidence but if the P purposely conceals the evidence , he will not be allowed to give evidence. - Some Syafie scholars agreed w this view Zahiri School - Does not allow P to adduce evidence anymore. The oath is the decider of a dispute. The oath has overridden the right of the P. Art 1753, The Majelle • A plaintiff who has stated that he has no witnesses will not be heard to say that he intends to call witnesses. And if he has stated that he intends to call a certain witness & no other, he will not be allowed to call any other witness.

3) OATH OF THE PLAINTIFF • It is designed to set aside any doubts against him/to prove his right or interest/the oath which is returned to him (yamin al mardudah) • 3 types: Yamin Al-Jalibah, Yamin Al-Tuhmah & Yamin Al-Istishaq/Istizhar. • Effect of P’s oath - Jumhur except Hanafi : When P had taken the oath, judgement can be passed in P’s favour. The claim is maintainable. i) Yamin Al-Jalibah - This oath is to support the P`s claim & allegation. This oath can arise in 5 situations: 1. The P`s oath & 1 witness 2. Yamin al –mardhudah 3. Yamin al –qasamah (oath taken by 50 persons when the killer is unknown) 4. Lian 5. A person to whom a thing has been entrusted for safekeeping shall make a stmt on oath as regards any question of his release from liability (Art. 1774, The Majelle) ii) Yamin Al-Tuhmah • Oath taken by P to deny allegations against him e.g. counterclaim i.e. If D objected P`s claim, P can asked the permission of judge to take this type of oath. • This type of oath is only accepted by the Maliki & Zaidiyyah. iii) Yamin Al-Istizhar • Oath taken by P in a request made by Qadi to discharge any tohmah against himself after submitting his evidence in the course of his suit. It serves to perfect his claim/allegations. • Usually it is applied in the case of missing person e.g. husband did not attend the Ct case. Ibn Qayyim : Rely on the Practice of Sayidina Ali : Ordered P to take oath altho he produce 2 witnesses. Maliki : applicable in dharurat. S 87 SCEA • S 87(1) – In a civil case, evidence shall be given by P & D, and if the D denies the claim made against him, he shall be required to take an oath according to Islamic Law. • S 87 (2) (a) - When D takes the oath, P`s claim is rejected in toto. • S 87(2)(b) - If D refuse to take oath, the Ct may ask P to take oath & after oath taken, the P`s claim will be accepted. • S 87(3) - In criminal cases, evidence shall be given by P and D unless D plead guilty.

REFUSAL TO TAKE THE OATH • Refusal of D to take oath whereas in ordinary circumstances it’s he who supposed to take the oath. • After the P had successfully brought evidence to substantiate his claim, judgment shall be given in his favour. • In contrast, if the P adduce weak evidence or witnesses or that his argument is considered weak & not satisfactory, the P may make request that D should take an oath. • Issue : if the D refused to take the oath, could he be convicted ? Hanafi & one opinion from Hambali • Refusal amts to admission & judgement can be made against the D. Oath shall not be shifted to P because the original is for D to take the oath. If the right is on D side, he should not refuse to take the oath. • Hanafi doesn’t recognise Yamin al Mardhudah. • Authority : Hadith reported by Ibn‘Abbas. Maliki, Syafie & Imam Ahmad Ibn Hamnal • No judgment to be given against the D because oath is weak method of proof. It must be corroborated with P’s oath, whether or not from D’s request. • Therefore, the oath should be returned to be taken by the P. When the P take the oath, the judgment shall be decided in his favour. If P refuse then case struck off. • Surah Al Maidah 5:107 – “But if it gets known that these two were guilty of the sin (of perjury), let two others stand forth in their places,- nearest in kin from among those who claim a lawful right: let them swear by Allah: "We affirm that our witness is truer than that of those two, and that we have not trespassed (beyond the truth): if we did, behold! the wrong be upon us!" • Hadith - Umar said that the Prophet s.a.w. use to give judgement based on Yamin al Mardhudah. Zahiri School • No judgment to be given against the D & the oath shall not be return to P (Yamin al-Mardudah). The D shall be detained until he admits or takes the oath. • Proof : based on several exceptions to the GR i.e. the oath shall be taken by the D except in several cases. There4, if some1 refuses to take the oath in matters which is not exclusion list, then he can be detained in prison until he accedes to the law by taking the oath or by admitting the claim against him. • The 2nd view is the view adopted by the majority of the jurists. • S 87(2),SyariahCourtEvidence(FT)Act THE RETURNED OATH • The type of oath which is returned to the P when the D refuses to take the oath. • Issue : whether the return oath can be accepted or not? The scholars differs in their views : 1. The refusal cannot be used to prejudice the D’s case. The oath shall be return to the P. 2. The judgment shall be given against him. There is no return of the oath to the P. Conclusion : - the returned oath is admissible as one of the means of proof in cases not involving hudud & qisas (valid only in minor offences liable to ta’azir)....