We stated last week that under Islamic law, a judge must make his ruling on the basis of what he is convinced to be true, even if the evidence required suggests otherwise. We gave the example of four witnesses testifying against a woman in a case of adultery, but the judge ascertains that the woman is a virgin. We said that the judge cannot give his ruling on the basis of their testimony. Indeed he must judge her to be innocent, and punish the witnesses for making a false accusation of adultery.
Some people may object saying that all schools of Islamic law agree that the method of proof, in most cases, must be the presence of two men witnesses or one man and two women. This objection is not valid. In fact this method of proof is stated in the Qur’an in connection with legal transactions, not material situations in criminal cases that need to be proved or disproved.
The Qur’an mentions the requirement of two witnesses or one man and two women on two occasions. The first is concerned with the documentation of a loan. God says: “Call in two of your men to act as witnesses, but if two men are not available, then a man and two women, whom you deem fit to act as witness, so that if either of them should forget, the other will remind her.” (2: 282) The second is in the Surah entitled Divorce, in which God says: “When they are about to reach their waiting-term, either retain them in a fair manner or part with them in a fair manner. And let two persons of known probity from among your own community act as witnesses; and do yourselves bear true witness before God.” (65: 2)
Also included in the first of these two verses is an order or strong encouragement to have witnesses, when God states: “Have witnesses when you make business deals.” (2: 282) As it is clear, all these instances relate to transactions, contracts and loan agreements, and also in confirming divorce. None of these matters is related to cases of crime where it is wrong to limit proof to one method only to the exclusion of all others.
The difference between a legal transaction and a material case, particularly a criminal one, is very clear. The parties to a transaction get prepared, and take care to bring in witnesses and document the transaction, so as to guard against any contingency which may cast doubt on it, or any unforeseen situation that may involve either party, or a denial by one party or some other person that it ever occurred. Hence, it is only wise that documentation should be done and that the Qur’an should tell us how such documentation is best done. A material case or a physical action, particularly a criminal one, is totally different. Indeed the perpetrator normally takes precautions so that he is not accused of committing it, or to ensure that it is not proven against him. He is likely to hide his involvement. It is inconceivable that a sane person would resort to committing a crime in the presence of witnesses who would testify against him and prove his guilt.
Hence, it is only fair and logical that a broader range should be given in material cases for evidence in favor of the accused or proving his innocence. This means that any method that serves to prove such cases fully, or almost fully, should be acceptable. Similarly, methods of proof in legal transactions that establish financial rights against other people, or marriage and divorce, should be restricted, as should be the methods of proving liability to punishment.
Thus, Islamic law restricts methods of proof of crimes, taking clear precautions, waiving punishments, of all types, in the case of doubt. By contrast, it establishes no restriction in providing proof of innocence. Nor has Islamic law stipulated any method to prove the invalidity of what witnesses may testify or to prove that its opposite is true.
On this point Imam Ibn Taimiyah says: “The Qur’an does not mention the two witnesses or the man and two women witnesses as evidence to prove a case. These two methods of proof are mentioned as means to protect one’s rights. What proves one’s right is completely different from a ruling given by a judge. Means to arrive at such a ruling are much wider than the testimony of a specific number of witnesses.”
When we look carefully at the Islamic rules of proof in criminal cases we realize that they take extra care to safeguard the interests of the accused, since he is presumed innocent until proved otherwise. Hence, the judge will not pronounce him guilty without the minimum evidence to prove his guilt, which is two or four witnesses, as the case may be. Even then, the judge is under no obligation to rule on the basis of what the witnesses say unless he is convinced that they are telling the truth.
This is perhaps the reason why some schools of law require that in some serious offenses, a confession must be repeated before it is accepted. The Hanafi, Hanbali and Zaidi schools require a person who is confessing to have committed fornication or adultery to say his confession four separate times. Some of them explain this requirement as allowing that person a chance to retract his confession. Thus, he will be spared the mandatory punishment, which will not, then, be inflicted on him. This opens for him the door to repent and seek God’s forgiveness. This is what Islam prefers, and it is certainly much better than administering the mandatory punishment.
Indeed some scholars of the Hanafi school of law require any confession of any other offense to be repeated twice. Islamic law permits retraction of a confession and makes it clear that when a confession has been retracted it cannot be used as a proof of guilt, if it is the only evidence. Not only so, but should a confession be retracted after a sentence has been passed, then the sentence is suspended. Indeed, the punishment is stopped after it has started, should the person withdraw his confession at that time. Scholars make a distinction between retraction of confession in crimes that carry mandatory punishments and those that carry a ta’zeer or preventive punishment. The only basis for such a distinction is that the enforcement of the mandatory punishment is blocked where doubt arises. But the fact remains that doubt prevents punishment enforcement in all offenses, not only those that carry mandatory punishments. Thus, this distinction is not valid.
To sum up, under Islamic law a judge looking into a criminal offense may not pass a sentence of guilt unless the offense has been absolutely proven against the accused. Innocence is considered to be absolutely valid for all people, and this certainty may not be changed except through a different certainty of equal or stronger validity. Moreover, in proving guilt the judge is not restricted to any type of evidence. He pronounces his judgment on the basis of what he is convinced to be the case. He bases his conviction with regard to the cases he looks into on the basis of any method of proof he feels to be adequate to establish the truth.
There is no difference between different types of offenses with regard to proof or disproof. However, when the evidence is that of witnesses, the offense of adultery has a minimum requirement for proof, which is four men of acceptable probity clearly and unequivocally testifying that they have seen the act that constitutes the offense. They cannot merely say that they have seen what suggests or makes it highly likely that the offense is committed, either by way of expectation or conclusion. Witness requirements in other offenses are two witnesses. This minimum is established in favor of the accused, not to restrict or limit the ways by which a judge formulates his conviction. We see how Islamic law accepts all methods of proof that enable the judge to know the facts of the case with complete or nearly complete certainty. This is the maximum that any legal system aspires to achieve.
