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Background reading material for medicine & fiqh panel discussion held at the Kulliyah of Medicine, International Islamic University, Kuantan on 20th May 2000 by Professor Omar Hasan Kasule sr.
1.0 COURT PROCEDURE
A. Legal Complain/Suit (Da’awah)
B. The Plaintiff (Muddai) Has To Prove His Claim
C. Evidence
D. Attesting Conduct (Character Witness)
E. The Defendant Takes An Oath
2.0 METHODS OF PROVING A CLAIM
A. Admission (Iqraar)
B. Evidence (Shahadat)
C. Oath (Yamiin)
D. Documentary Proof (Wathaiq)
E. Medical Proof
3.0 CONDITIONS FOR ACCEPTING EVIDENCE
A. Qat’i And Not Dhanni
B. Acceptable Witness (‘Adl):
C. Unacceptable Witness
D. False Witness
E. Voluntary Testimony
4.0 PHYSICIAN COURT TESTIMONY
A. Obligation Of Physician To Testify
B. Justice Vs Professional Confidentiality
5.0 CRITERIA OF ASSESSING EVIDENCE
1.0 COURT PROCEDURE
A. LEGAL COMPLAIN/SUIT (DA’AWAH)
Court proceedings start with complaints, da’awa, by the plantiff. If the claim is false it is ignored. If the claim is true the defendant is asked to plead guilty or not guilty. If the defendant pleads guilty, he is convicted and punishments or other legal sanctions will apply. If the defendant pleads not guilty the plaintiff must produce evidence. If the plaintiff can not produce evidence the word of the defendant is accepted on taking an oath and judgment is delivered accordingly.
The plaintiff is not allowed to litigate unless he has full rights to deal with the property in dispute. He must have a full specific description of the debt or property in dispute
B. THE PLAINTIFF (MUDDAI) HAS TO PROVE HIS CLAIM
Al bayyinat ‘ala al mudda’e (KS 96: Bukhari K25 B1 & B2; Ibn Majah K13 B7; Waqidi p339)
C. EVIDENCE
Testimony by witnesses is a communal obligation
Professional evidence is evaluated like any other source of evidence and need not be accepted all the time
In cases of huduud the judge is not allowed to base his judgement on his personal knowledge of the circumstances of the case
In non-huduud cases the judge can base his judgement on personal knowledge of the circumstances of the case
D. ATTESTING CONDUCT (CHARACTER WITNESS)
Women attesting to each other’s good character, ta’adill al nisa ba’adhuhunna al ba’adhu (MB 1179)
A person attesting for another man’s character, tazkiyat al rajl rajulan (MB 1180)
E. THE DEFENDANT TAKES AN OATH
al yamiin ‘ala al mudda’e ‘alayhi (KS 111: Bukhari K48 B6; Bukhari K52 B20, 19; Bukhari K65 S3 B3; Muslim K30 H1,2; Abudaud K21 B13; Abudaud K23 B23, 24; Tirmidhi K13 B12; Nisai K49 B36; Muwatta K36 H8; Ahmad 1:342, 351, 356, 363)
2.0 METHODS OF PROVING A CLAIM
A. ADMISSION (IQRAAR)
B. EVIDENCE (SHAHADAT)
The Islamic way of life is aqidat and mu’amalat. It emphasizes evidence-based knowledge and action. The word evidence, shahadat, is one of the most frequently repeated words in the Qur’an (p. 645-646 2:73, 2:84, 2:133, 2:185, 2:204, 3:52-53, 3:64, 3:70, 3:81, 3:86, 3:99, 4:72, 5:83, 5:111, 5:113, 5:117, 6:19, 6:73, 6:130, 7:37, 7:172, 9:17, 9:94, 9:105, 11:17-18, 11:54, 11:103, 12:81, 13:9, 17:78, 18:51, 19:37, 21:61, 22:28, 23:92, 24:2, 24:4, 27:32, 27:49, 28:44, 32:6, 37:150, 39:46, 40:51, 41:47, 43:19, 43:86, 46:10, 50:21, 50:37, 62:8, 64:1, 64:18, 74:13, 83:21, 85:3, 85:7).
Hiding evidence is prohibited, tahriim kitmaan al shahadat (p 648 2:14, 2:283, 4:135, 5:8, 5:106-108, 65:2, 70:33)
C. OATH (YAMIIN)
An oath is valid if it is made by an sane adult in the name of Allah and is voluntarily intended
Swearing by Allah, al hilf bi Allah (MB 1183, KS 110: Bukhari K52 B26; Bukhari K83 B4,5,7; Muslim K22 H 4-6; Abudaud K21 B3; Tirmidhi K18 B8, 9, 18; Nisai K35 B4,6,10-12; Ibn Majah K11 B2; Darimi K14 B6; Muwatta K22 H14; Ahmad 1:47; Ahmad 2:34, 67, 98, 125; Ahmad 3:487; Ahmad 5:62; Tayalisi H1896)
The oath must be voluntary. An oath is not accepted from one spouse testifying about another one or the servant about the master (KS 425: Tayalisi H1767)
D. DOCUMENTARY PROOF (WATHAIQ)
Disputes often arise in mu’amalat it is therefore recommended to have such transactions written and witnessed, al shahadat fi al mu’amalat (p. 649 2:282, 2:283, 4:6, 5:106, 65:2)
E. MEDICAL PROOF
3.0 CONDITIONS FOR ACCEPTING EVIDENCE
A. QAT’I AND NOT DHANNI
B. ACCEPTABLE WITNESS (‘ADL):
Condition of acceptability of a witness, ishtiraat al ‘adl fi al shuhuud (p 794 2:282, 5:95, 5:106). Conditions of a witness: (a) free with full civil liberties (b) legally responsible, mukallaf (c) can speak (d) mentally awake (e) of upright character (f) outwardly respectable, mu’at (g)
Evidence of children before puberty (MB 1181)
Evidence by a blind person, shahadat al a’ama (MB 1177)
C. UNACCEPTABLE WITNESS
Testimony of the following types of witnesses is not accepted: (a) Committed major sin and did not repent (b) persists in committing minor sin (c) has no respect (murua) (d) testifying for son or father (e) can benefit from outcome of trial (f) can avoid loss from outcome of trial (g) testifying against an enemy (h) testimony about his own act
D. FALSE WITNESS
WITNESS FOR INJUSTICE, shahadat al juur (MB #1175)
FALSE WITNESS, shahadat al zzuur (MB 1176, p. 648 6:19, 6:144, 6:150, 25:72; KS 96: Abudaud K23 B14, Nisai K31, Ibn Majah K13 B6, Ahmad 2:82, Bukhari K52 B9)
E. VOLUNTARY TESTIMONY
4.0 PHYSICIAN COURT TESTIMONY
A. OBLIGATION OF PHYSICIAN TO TESTIFY
The crime of hiding/concealing evidence
B. JUSTICE vs PROFESSIONAL CONFIDENTIALITY
Patients may lose trust in physicians who testify in court. This affects the quality of medical care because patients then no longer give full information to physicians needed for proper quality care
5.0 CRITERIA OF ASSESSING EVIDENCE
DISCUSSION
- Obligation of physician reporting information about crimes obtained in the course of his work
- Physician court testimony and professional secrecy
- Does professional medical evidence carry a heavier weight that testimony of ordinary witnesses
- Use of polygraph testing for witnesses
- Polygraph recording while taking an oath
- Medical testing of cognition and memory of witnesses