Justice: Witnessing And Testifying

This is another article in the chapter Justice from the classical manual on Sharia called Reliance of the Traveller. The articles are posted one by one in the order they are given in the book.

024.0 WITNESSING AND TESTIFYING

024.1 It is a communal obligation (def: c3.2) to both witness (A: i.e. observe) legal events and to testify to having witnessed them. If there is only one person to do so, then it is personally obligatory upon him, in which case he may not accept payment for it, though if it is not personally obligatory, he may accept a fee.

024.2 Legal testimony is only acceptable from a witness who:

(a) is free;

(b) is fully legally responsible (mukallaf, def: c8.1) (0: as testimony is not accepted from a child or insane person, even when the child’s testimony regards injuries among children that occurred at play);

(e) is able to speak;

(d) is mentally awake;

(e) is religious (0: meaning upright (024.4) (A: and Muslim), for Allah Most High says,

“Let those of rectitude among you testify” (Koran 65:2), and unbelief is the vilest form of corruption, as goes without saying);

(f) and who is outwardly respectable (0: respectability (muru’a) meaning to have the positive traits which one’s peers possess in one’s particular time and place. Sheikh ai-Islam (A: Zakariyya Ansari) says, “Respectability is refraining from conduct that is unseemly according to standards commonly acknowledged among those who observe the precepts and rules of the Sacred Law.” It is according to standards commonly acknowledged (def: f4.5) because there are no absolute standards for it, but rather it varies with different persons, conditions, and places. Such things as eating and drinking (A: in the marketplace) or wearing nothing on one’s head may vitiate it (A: though the latter is of no consequence in our times). as may a religious scholar’s wearing a robe or cap in places where it is not customary for him to do so).

The testimony of an absentminded person (0: meaning someone who often makes mistakes and forgets) is not acceptable (0: because he is unreliable ).

024.3 Nor is testimony acceptable from someone who:

( I) has committed an enormity (0: meaning something severely threatened against in. an unequivocal text from the Koran or hadith (dis: book p) (N: though if someone who commits such an act then repents (def: p77) and is felt to be sincere in this, he regains his legal uprightness and his testimony is accepted, provided he is tested after his repentance long enough to believe in its genuineness) ;

(2) persists in a lesser sin (0: because it then becomes an enormity, as opposed to when one does not persist therein. A lesser sin is one that has not been severely threatened against in an unequivocal text);

(3) or is without respectability (def: 024.2(f», such as a street-sweeper, bathhouse attendant, and the like.

(A: A legally corrupt or immoral person (fasiq) is someone guilty of (1) or (2) above.)

024.4 (A: Normal uprightness (‘adala) for purposes other than giving testimony in court means that one avoids (1) and (2) above, while (3) concerns court testimony alone (N: i.e. uprightness for testimony in court means a person is none of the above).)

024.5 The testimony of a blind person is accepted about events witnessed before he became blind, though not events witnessed after, unless they are public events that are discussed among people, or when someone says something the blind person hears (0: such as a divorce, for example), and he takes the speaker by the hand and conducts him to the judge and testifies as to what he has said.

024.6 The testimony of any of the following is unacceptable:

(1) a person testifying for his son (0: son’s son, and on down) or his father (0: father’s father, and on up);

(2) a person who stands to benefit (0: by his own testimony);

(3) a person who stands to avoid loss to himself through his testimony;

(4) a person testifying about his enemy;

(5) or a person testifying about his own act.

024.7 The testimony of the following is legally acceptable when it concerns cases involving property, or transactions dealing with property, such as sales:

(1) two men;

(2) two women and a man;

(3) or a male witness together with the oath of the plaintiff.

024.8 If testimony does not concern property, such as a marriage or prescribed legal penalties, then only two male witnesses may testify (A: though the Hanafi school holds that two women and a man may testify for marriage).

024.9 If testimony concerns fornication or sodomy, then it requires four male witnesses (0: who testify, in the case of fornication, that they have seen the offender insert the head of his penis into her vagina).

024.10 If testimony concerns things which men do not typically see (O: but women do), such as childbirth, then it is sufficient to have two male witnesses, a man and two women, or four women.

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