Title of Article: Onus And Quantum Of Proof In Islamic Law: Past And Present

Citation: [2012] 1 ShLR xxxi

Author: Dr Zulfakar bin Ramlee

INTRODUCTION

In general, the law of evidence consist of concept of burden of proof and standard of proof.
The burden of proof arise when a claimant claims something against the original presumption.
The claimant is in the position to bring supporting evidence to prove his allegation. The concept
of burden of proof is indirectly mentioned in the al-Quran:

And they (Jews and Christians) say, 'None shall enter paradise unless he be a Jew or Christian.
'These are their own de-sires. Say (O Muhammad),' Produce your proof if you are truthful.' -
al-Baqarah (2):111

And yet, they choose to worship deities instead of Him! Say (O Muhammad):' Produce an
evidence for what you are claiming:..' -al-Anbiya' (21):24

Is not He (better than your gods) who originates creation, and shall thereafter repeat it, and
who provides for you from heaven and earth? Is there any illah (god) with Allah? Say: 'Bring
forth your proofs, if you are truthful.' -al-Nam (27):64

Thus, evidence need to be brought before the court to establish claim against another person so
the original state, ie his innocence will not have continuity and create liability upon him.

OATH

Meanwhile, an Oath is an instrument to preserve the original state ie the innocence of a party
whom a claim was made against him.

The authority of Oath as it is reported that Prophet Muhammad PBUH had have said:

If peoples' claims were accepted on their face value, some persons will claim other peoples'
blood and properties, but oath is on the person who denies. -Sahih Muslim

Evidence is on the claimant and oath is on the defendant. -Sunan al-Kubra

This hadith is well-known among Kufah's jurists, especially Abu Hanifah, and therefore, they
are of the view that the oath is always taken by the defendant and not otherwise. The rationale
is clearly provided for under the maxim that states:

The purpose of evidence is to prove what is contrary to the apparent fact. The purpose of the oath is
to ensure the continuation of the original state- Article 77 of the Mejelle.

The Prophet PBUH decided all disputes with this general principle regardless of whether civil
or criminal in nature. In civil matters, an example is the case of Ash'ath Ibn Qais. He said:

There was a (piece of) land between me and a Jew. He disputed with me. I brought him to the Holy
Prophet, upon which Allah's Messenger said to me: 'Have you any evidence (in your support)?' I
replied: 'No'. The Holy Prophet said to the Jew: 'Swear' - Sunan Ibnu Majah

In Malaysia, Section 72 Shariah Court Evidence Act (Federal Territories) 1997 provides that:

The burden to produce evidence in a civil case lies on the person who alleges or asserts a fact (al-
Mudda'ii) and the person who takes the oath to deny or dispute a fact (al-Mudda'a 'alaih).

Some jurists accept the use of oath (yamin) in property (mal) matters in the absence of cogent
evidence. Matters under Section 46(2)(b) of the Administration of Islamic Law (FT) Act 1993
includes betrothal, marriage, dissolution of marriage, harta sepencarian, maintenance of the
children and custody, endowment (waqf), vow (nazr), inheritance, except marriage and
divorce, fall under the definition of mal (property).

Under Section 87(2)(b) Shariah Court Evidence Act (Federal Territories) 1997, despite the
plaintiff not producing evidence in support of his claim, the refusal to swear by the defendant
is used as qarinah to indicate the truthfulness of the plaintiff's claim and his or her willingness
to swear is used as corroborative evidence in strengthening the plaintiff's claim.

CONCLUSION

In my opinion, the author had gave an overview how oath is connected with the evidence in
Islam. However, the article is very brief. Thereby there are many points that can be discussed
extensively. Concerning the definition, an oath (al-yamin) in the literal sense means the right
side and another meaning is an oath. Another term for an oath are al-halaf, al-ishtilaf and
al-qasam. Technically oath means utterance accompanied by the invocation of the name of
Allah for purposively stating (tahqiq) something over a matter which will not be proved except
by way of oath. Verses in Al-Quran concerning an oath are as follows:

Allah will not impose blame upon you for what is meaningless in your oaths, but He will impose
blame upon you for [breaking] what you intended of oaths. So its expiation is the feeding of ten
needy people from the average of that which you feed your [own] families or clothing them or
the freeing of a slave. But whoever cannot find [or afford it] - then a fast of three days [is
required]. That is the expiation for oaths when you have sworn. But guard your oaths. Thus
does Allah make clear to you His verses that you may be grateful.-Al-Maidah:89

And fulfill the covenant of Allah when you have taken it, [O believers], and do not break
oaths after their confirmation while you have made Allah, over you, a witness. Indeed,
Allah knows what you do.-Al-Nahl:91

Also, from the hadith of the Prophet:

Do not take an oath unless it is with the name of Allah- Al-Shaukani

Scholars have conflicted view whether it is acceptable to bring one male witness supporting
the oath of claimant. Majority of companions including Abu Bakar, Umar, Ali, Abdullah bin
Umar, Ibn Abbas, Anas bin Malik also Imam of Mazahib such as Al-shafi, Ahmad and Ibn
Hazam on the view that it is acceptable. It is based on the practice of the Prophet and
companions in giving judgement by one single witness supporting with an oath. However,
according to the Hanafi it is not allowed based on Quranic verse:

And bring to witness two witnesses from among your men. And if there are not two men [available],
then a man and two women from those whom you accept as witnesses- Al-Baqarah:282

Conditions for an oath are as follows; Muslim or mukallaf, intention of whom

requesting the oath been made ie the judge upon request of the claimant, oath been made in the
name of Allah, denial of claim from the claimant against the oath maker, taken personally, in
non-right of Allah case, in case where admission is possible and lastly, the claimant did not
have conclusive evidence.

Oath is compulsory where it is to protect the sanctity of mans life. Meanwhile, it is

blameworthy when it is been made to do a thing which is encouraged. Whereas it will be
prohibited in case of false oath or oath to do prohibited thing. For a permissible oath it is when
to do or not to do a permissible thing.
 Types of oath can be divided as follow: the oath of witness, the oath of defendant and
the oath of plaintiff. For a witness, it is to verify and strengthen the truth before giving the
statement. For oath by defendant it is known as original oath, mandatory oath or denying oath.
When the defendant make an oath in subsequent failure of plaintiff to establish the case, the
defendant will be acquitted. Meanwhile, for the plaintiff, it is firstly; a jalibah oath to prove
testimony accompanied by single male witness or when defendant refuse to make an oath thus
it return to the plaintiff to avoid had or qazf. Secondly; tuhmah oath to avoid charge and lastly
istishaq/ istizhar oath to discharge tuhmah after submitting evidence.

In short, an oath is a mechanism in proving the claim by the claimant or the innocence
of a party whom the claim was made against. However, this type of mechanism is very risky
as an ignorance person can make an oath without considering the consequences of such oath.
Thereby, the judge should remind the oath maker repeatedly and sternly about the oath before
it was made.