AHMAD IBRAHIM KULLIYYAH OF LAWS

SEM 2, 2020/2021

EVIDENCE OF SHARIAH COURT

SHA 4020
SECTION 1
DR. NORLIAH IBRAHIM

TUTORIAL QUESTION 3: CONCEPT OF BAYYINAH AND SYAHADAH

NAME MATRIC NO

NURUL SHAFINAZ BINTI MOHD ADNAN 1726182

 1

NO. TITLE PAGE NO.

1 Introduction 2

2 Definition of bayyinah 2

3 Definition of syahadah 3

4 Whether bayyinah and syahadah have the same implication? 3

4.1 First view 3

4.2 Second view 5

4.3 Third view 6

5 Application under the Syariah Court Evidence (Federal 7

Territories) Act 1997

6 Application under the Qanun e-Syahadat Order 1984 10

7 Conclusion & Commentary 10

8 References 12
 2

Question 3

Discuss the concepts of bayyinah and syahadah in the context of law of evidence in
Islam as explained by jurists and their application under the Syariah Court Evidence
(Federal Territories) Act 1997 as well as in the Qanun-e-Shahadat Order 1984.

1. Introduction

In presenting a claim in a court, evidence plays a very important role. The smoothness
and effectiveness of a trial is entirely dependent on the extent to which evidence and
testimony is successfully presented before the judge. With evidence, a judge will be able to
give judgment and distinguish between right and wrong. In fact, every decision decided by
the judge must be based on evidence and proof. Hence, the concept of bayyinah and
Shahadah exist as the evidence in Islamic Law.

2. Definition of bayyinah

Bayyinah has been defined in various statutes and scholars. The term bayyinah
originates from arabic word of ba-ya-na which means clearness, self-evident and obvious.
Technically, Professor Mahmud Saedon defines bayyinah as to include anything required by
the court to arrive at a just decision1. According to the definition by Ibn Qayyim, bayyinah
refers to anything which clarifies, explains a right or interest. These are the two scholars that
define the term bayyinah.

On the other hand, it is also provided by various other statutes. For instance, bayyinah
has been defined as evidence which proves a right or interest based on Section 3 of Syariah
Court Evidence (Federal Territories) Act 1997.2 While section 3 of Syariah Court
Evidence Order 2001 in Brunei is adopting the same definition of bayyinah as provided by
Ibn Qayyim. Further, Article 2 of Qanun Shahadat did not use the term bayyinah but
‘evidence’ which includes all statements or documents which were permitted and required by

1
Mahmood Saedon Awang Othman (1996), Introduction to the Law of Evidence, Hizbi, Shah Alam.
2
Syariah Court Evidence (Federal Territories) Act 1997, s 3
 3

the court3. Similarly in Article 1676 of Mejelle stated that evidence consists of the adduction
of reliable testimony.4

3. Definition of syahadah

Syahadah means any evidence that is given in the court by uttering “asyhadu” in order
to prove one’s right5. This definition is similar to Sheikh Shihabuddin from Shafi’i jurist in
which he provides that syahadah is information about a right or interest for the benefit of
another person preceded by the words “I bear witness…”. Similarly, Abdul Salam Madhkur
defines syahadah as an information having the quality of truth, given at the judicial hearing
with the use of the phrase “I bear witness” in order to prove a right or interest for the benefit
of another person or a party. However , there are differences in opinion as to whether a blind
person can give syahadah in court. The first view does not allow such a thing. This can be
seen in Article 1686 of Mejelle where it stipulated that evidence of the dumb and the blind is
not receivable6. The second view allows a blind person to give syahadah if the situation can
be known other than being seen with eyes. This can be seen in section 84 of the Syariah
Court Evidence (Federal Territories) Act 1997 that the person may make it intelligible
such as by writing or signs.

4. Whether bayyinah & syahadah have the same implication?

There are few opinions given by jurists and it differs from one another. In short, it
can be divided into three views.

4.1 First view

The first view has been agreed upon by the majority of the jurists or jumhur fuqaha’
in which bayyinah and syahadah bring the same definition. This view contended that
although bayyinah means evidence, it has been used interchangeably in the Quran and

3
Qanun e-Shahadat Order 1984, Art 2
4
Mejelle, Art 1676
5
Syariah Court Evidence (Malacca) Enactment 2002, s 3
6
Mejelle, Art 1686
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Sunnah as syahadah or testimony. This can be seen in various quranic verses and hadith by
prophet. For instance, the famous hadith of Hilal bin Umayyah on li’an case. Hilal went to
prophet Muhammad for opinion on what should he do to his wife who had committed zina.
Prophet told him:

"‫"البينة أو حد في ظهرك‬

“Provide testimony, or else hudud punishment (Qazaf) will be imposed on your back.”7

The word bayyinah in the above hadith is the evidence that a person must provide
four witnesses before accusing someone of committing zina:

‫والذين يرمون المحصنات ثم لم يأتوا بأربعة شهداء فاجلدوهم ثمانين جلدة‬

"And those who accuse chaste women and then do not produce four witnesses - lash them
with eighty lashes and do not accept from them testimony ever after.”8

In another hadith where Asy’as b. Qais came to prophet Muhammad because he

fought with another man about a well. Prophet then mentioned to him:

‫بينتك أو يمينه‬

"Your testimony or his oath.”9

This proves that although the prophet used the word bayyinah in the hadith, he
actually meant it to be testimony or witnesses. Furthermore, jumhur fuqaha’ also refers to
verses in the Quran. One of the examples is a verse regarding debt where Allah stated that:

‫واستشهدوا شهيدين من رجالكم‬

“Witness it with two male witnesses among yourselves.”10

The above quranic verses and hadiths supported the contention made by jumhur
fuqaha’ that bayyinah and syahadah are two different words with the same meaning and have
been used interchangeably in the Quran and Sunnah.

7
Ibn. Hajar al-’Askalani, Fathu al-Bari, al-Maktabah al-Salafiah, Cairo, jld. 5, hlm. 335.
8
24:4
9
Ibn. Hajar al-‘Asqalani, Fathu al-Bari, al-Maktabah al-Salafiah, jld. 8, hlm. 61
10
2:282
 5

4.2 Second view

The second view, according to Ibn. Qayyim, bayyinah is general while syahadah is
one type of bayyinah. He also viewed that bayyinah can be defined in accordance with the
syarak which could include all means of evidence such as Iqrar, oath, expert opinion etc. This
can be seen in hadith where prophet Muhammad said:

‫البينة علي المدعي‬

"Evidence is on the plaintiff”11

This means that the word “bayyinah” in the hadith is referring to all kinds of evidence
including testimony. Even so, it does not limit to two witnesses and such but also includes
other kinds of evidence. In comparison with jumhur’s view, the usage of bayyinah in Quran
and hadith is referring to anything that can explain the truth. In other words, its definition is
wider as compared to definition by jumhur fuqaha’ whereby it only specifically refers to two
witnesses or one witness together with an oath. Despite the differences in these two views,
the word used is not wrong as long as it still brings one definition - evidence. It is only a
matter of differences between ‘am and khas.

In supporting the claim, it can be seen in few examples of quranic verses. For
instance, Allah mentioned in surah al-Hadid verse 25:

‫ولقد أرسلنا رسلنا بالبينات‬

"Indeed We have sent Our Messengers with clear proofs."12

Furthermore, in surah al-bayyinah verse 4, Allah stated that:

‫وما تفرق الذين أوتوا الكتاب إال من بعد ما جاءتهم البينة‬

"Nor did those who were given the Scripture become divided until after there had come to
them clear evidence.”13

Allah further mentioned in another verse in surah al-an’am:

‫قل إني على بينة من ربي‬

11
Mejelle, Art 1967
12
57:25
13
98:4
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"Say for me I work on a clear sign from my Lord.”14

All of the above quranic verses show that bayyinah is not restricted to witness only,
but to the general definition of bayyinah according to Ibn. Qayyim. Thus, it is clear that this
opinion accepts any form of evidence that can help clarify, explain, or prove a case being
tried in the process of upholding the truth and justice claimed. Although this view is not the
view of jumhur fuqaha’, but his approach in dealing with justice, in line with the changes of
time and technological advances has shown that his views have preceded his age and proved
that Islamic law of evidence is suitable for implementation in all times and places.

4.3 Third view

The third view is the view by Ibn Hazim. Generally, it is similar to the second view
but added the special knowledge of the judge which is obtained outside the court as a layman.
However, there is a dispute with regard to whether a judge can use his own knowledge
obtained outside the court as a layman. There are two opinions in which the first opinion by
jumhur fuqaha’ do not allow a judge to do so as it would lead to tohmah. According to a
hadith from Ummu Salamah, the prophet said that:

“You come to me with your disputes, and perhaps some of you present your cases more
eloquently than others; so, if I give a judgment in his favor because of his testimony whereby
he takes what rightfully belongs to his brother, then I am merely giving to him a piece of the
fire of Hell, so he should not take it.”15

This hadith is a hadith sahih confirmed by Darussalam. It makes it clear that the judge
may only use the evidence legally recognized in a court of law, like confession and the
testimony of witnesses. He may not pass judgment on the basis of his personal knowledge.

The second view by al-Zahiri and Ibn Hazim opined that a judge is allowed to give
judgment based on his personal knowledge. Besides, it is also because the judge’s knowledge
is more convincing. This is because according to the narration by Abu Qatada:

14
6:57
15
Jami’ at-Tarmidhi 1339
 7

“A judge can pass a judgement depending on his knowledge of the case as he is trust-worthy,
and that a witness is required just to reveal the truth. The judge's knowledge is more than the
witness.”16

This hadith explained that a judge’s knowledge is trustworthy thus should be allowed
as evidence in the court.

This view is supported by surah an-Nisa’ verse 135 where Allah clarified that:

َ‫ْط ُشهَدَا َء هَّلِل ِ َولَوْ َعلَ ٰى َأ ْنفُ ِس ُك ْم َأ ِو ْال َوالِ َدي ِْن َواَأْل ْق َربِين‬
ِ ‫يَا َأيُّهَا الَّ ِذينَ آ َمنُوا ُكونُوا قَ َّوا ِمينَ بِ ْالقِس‬

“O you who have believed, be persistently standing firm in justice, witnesses for Allah, even
if it be against yourselves or parents and relatives.”17

5. Application under the Syariah Court Evidence (Federal Territories) Act 1997

The concept of bayyinah and syahadah has been applied in the provisions under
Syariah Court Evidence (Federal Territories) Act 1997. Firstly, the general rule has been
laid down in section 83(1) whereby all Muslim shall be competent to give syahadah or
bayyinah as witnesses provided that they are ‘aqil, baligh, ‘adil, have a good memory and are
not prejudiced.18 A Muslim will be regarded as ‘adil as long as he carries out his religious
obligations and does not perpetually committing minor sins as mentioned by Imam Syafi. In
short, adil means a person who is generally considered a reliable person in his society and is
not a notorious or wicked person. Allah (SWT) says:

‫ق بِنَبٍَإ فَتَبَيَّنُوا‬ ِ َ‫يَا َأيُّهَا الَّ ِذينَ آ َمنُوا ِإ ْن َجا َء ُك ْم ف‬

ٌ ‫اس‬

“Oh you who believe! If a wicked person comes to you with any news, ascertain the truth.”19

However, if he is not an ‘adil Muslim, he is competent to give bayyinah but not

syahadah.20 It must be noted that if an evidence is admitted as bayyinah, it needs to be
corroborated with other kinds of evidence such as an oath, in order to avoid tohmah. On the
other hand, if it is admitted in court as syahadah, it will stand on its own without having the

16
Volume 9, Book 89, Number 282. Retrieved from: SAHIH BUKHARI, BOOK 89: Judgments
(Ahkaam) (iium.edu.my)
17
4:135
18
Syariah Court Evidence (Federal Territories) Act 1997, s 83 (1)
19
49:6
20
Syariah Court Evidence (Federal Territories) Act 1997, s 83 (3)
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need to corroborate it with other evidence. This can be seen in the case of Abu Hanif v
Rabiah whereby the court decided that a case which can not be established by syahadah will
not be totally rejected. It still can be accepted as bayyinah if it is corroborated with other
evidence.21

As for non-Muslim, he shall also be competent to give bayyinah for a Muslim if his
testimony is admissible according to Hukum Syarak.22 This will usually be applicable in a
case of an expert witness where he is required to testify in the court regarding the claim.

Additionally, section 83(4) stipulates that a person who is not baligh or unsound mind
is competent to give bayyinah but not competent to give syahadah.23 This can be supported
with a hadith by prophet Muhammad which has been confirmed as hadith sahih by al-Albani:
“The actions of three persons are not recorded (by the angles): a sleeping person until he is
awake, a child until he comes of age and a mad man until he becomes normal. A minor
becomes an adult either by attaining a certain limit of age or puberty.”24

Furthermore, a person who is known to have a weak memory or is forgetful or having

memory lapses is not competent to give syahadah in accordance with section 83(5).25 This is
because there will be possibility that the evidence given by him is not totally accurate. In the
same vein, the deposition of an enemy is not admissible as syahadah but only as bayyinah
i.e., of a person who hates the adverse party to such a degree as to wish to see him fall into
misery, to envy his prosperity and rejoice in his misfortune.26 This is similar with a person
whose credibility is suspected because of his good relation in the adverse party which will
also be accepted as bayyinah but not syahadah.27 This is because it will lead to bias in giving
the evidence during the trial in court.

On the other hand, a person who is unable to speak may give his bayyinah in any
manner in which he can make it intelligible such as by writing or signs.28 For instance, a deaf
man may lawfully give evidence in such cases provided that his gesture is understandable. A
deaf-mute's evidence may be taken: (1) by written questions to which he may reply in
writing; or (2) by means of signs. This can further be seen in the case of Chai Kor v Public
21
11JH (1) 47
22
Syariah Court Evidence (Federal Territories) Act 1997, s 83 (2)
23
Syariah Court Evidence (Federal Territories) Act 1997, s 83 (4)
24
Sunan Abi Dawud 4398
25
Syariah Court Evidence (Federal Territories) Act 1997, s 83 (5)
26
Syariah Court Evidence (Federal Territories) Act 1997, s 83 (7)
27
Syariah Court Evidence (Federal Territories) Act 1997, s 83 (6)
28
Syariah Court Evidence (Federal Territories) Act 1997, s 84
 9

Prosecutor where the Federal Court stated that the court will ascertain before he is examined
that he possesses the requisite amount of intelligence and that he understands the nature of an
oath.29

In relation to evidence of a blind man, Imam Abu Yusuf and Imam Shafii are of the
opinion that evidence of a blind man can be accepted provided that he was not blind at the
time of receiving the evidence.30 However, this matter was not addressed in the Act while
Article 1686 of the Mejelle provides that the evidence of the dumb and blind is not
admissible.31

On top of that, the application of bayyinah and syahadah can also be seen in section
85. Referring to section 85 (1) and (2) where an evidence of a husband against wife or a
child against his parent and vice versa, shall be admissible as syahadah and bayyinah.

On the other hand, section 85 (3) and (4) regards the evidence of a husband for his
wife or a parent for his child and vice versa as bayyinah but not syahadah. The reason behind
this ruling is because the testimony given by the witness might be influenced by bias due to
the close relationship that they have with each other. Therefore, such evidence must be
corroborated with other sorts of evidence such as oath in order to avoid tohmah.

According to the case of JA v NY where it involves a case of mut'ah claim.32 The

wife is claiming for mut’ah from the husband. Thus, the issue was whether the plaintiff is
eligible to receive mut'ah. In denying the claim that the wife should not receive mut'ah, the
husband alleged that the wife did not fulfill her responsibility as a wife. On top of that, she
also had a relationship that was against syarak with another man. So to support his
contention, the husband brought a witness which is their child. Thus, by virtue of section 85
of Syariah Court Evidence (Selangor) Enactment 2003, the child’s evidence is admissible
as bayyinah. Apart from that, based on the case of SOSI v SSSAA, where the court discussed
the concept of witness testimony.33 In this case, the respondent brought a witness who is also
the appellant’s daughter. Thus, the court decided that her evidence would be regarded as
bayyinah and not syahadah.

29
[1965] 2 MLJ 208
30
Chapter 2, Witnesses, LexisNexis.
31
Mejelle, Art 1686
32
[2019] 2 SHLR 46
33
[2018] 3 SHLR 1
 10

However, the Maliki and the Hanafi view is that husband or wife cannot give
testimony for each other. On the contrary, the Shafii view is that the husband and wife may
give evidence in favour of each other. Based on the case of Sharifah Sapoyah v Wan Alwi,
the appellant applied for divorce and other ancillary claims.34 The father of the appellant was
produced as a witness. The issue in this case was the admissibility of the evidence given by
the father for the daughter. It was held that the father could not give syahadah for his daughter
due to the existence of tohmah. The prophet Muhammad said: ‘There shall be no testimony
for people who have tohmah’.

6. Application under the Qanun e-Syahadat Order 1984

The application of the concept of bayyinah and syahadah can be seen in Article 3 of
the Qanun.35 It stipulated the general rule that all persons shall be competent to testify.
However, there is an exception to the competency where a person who is unable to give a
rational answer to the questions due to his tender years, extreme old age, disease, whether of
body or mind. With regard to the person’s competency, the court shall determine it based on
Quran and Sunnah. By extension, a person must be ‘aqil, baligh, ‘adil, have a good memory
and are not prejudiced. In other words, a person who has been convicted by a court for
perjury is incompetent to testify in the court unless if the court satisfied that he has repented
thereafter.

7. Conclusion & Commentary

To conclude, the concept of bayyinah and syahadah is indeed the concept that has
been introduced in the Islamic Law of Evidence. However, in terms of its application, it is
well known that it has been used in the Islamic Law statutes as well as in the Evidence Act
1950. In other words, the law on the concept of bayyinah and syahadah that originated from
the prophet’s time, has been widely accepted in Malaysia.

Despite this, in my opinion, The position and use of the terms bayyinah and syahadah
under Islamic Law need to be re-examined to avoid confusion and duplication. The question
that arises is whether bayyinah and syahadah are merely oral witness testimony or bayyinah
34
[1988] 6 JH 259
35
The Qanun e-Shahadat Order 1984, Art 3
 11

is general and syahadah is specific. These two approaches are not wrong but need to be
harmonized and explained in the interpretation of section 3 of the Syariah Court Evidence
(Federal Territories) Act 1997. This issue must be taken care of since a claim will not arise
without solid evidence. Thus, there will be no more confusion in the court with regard to the
interpretation of bayyinah and syahadah during a trial in the court.
 12

References

[1965] 2 MLJ 208

[1988] 6 JH 259

[2018] 3 SHLR 1

[2019] 2 SHLR 46

11JH (1) 47

2:282

24:4

4:135

49:6

57:25

6:57

98:4

Chapter 2, Witnesses, LexisNexis.

Ibn. Hajar al-‘Asqalani, Fathu al-Bari, al-Maktabah al-Salafiah, jld. 8, hlm. 61

Ibn. Hajar al-’Askalani, Fathu al-Bari, al-Maktabah al-Salafiah, Cairo, jld. 5, hlm. 335.

Jami’ at-Tarmidhi 1339

Mahmood Saedon Awang Othman (1996), Introduction to the Law of Evidence, Hizbi, Shah

Alam.

Mejelle, Art 1676

Mejelle, Art 1686

Mejelle, Art 1686

Mejelle, Art 1967

Qanun e-Shahadat Order 1984, Art 2

 13

Sunan Abi Dawud 4398

Syariah Court Evidence (Federal Territories) Act 1997, s 3

Syariah Court Evidence (Federal Territories) Act 1997, s 83 (1)

Syariah Court Evidence (Federal Territories) Act 1997, s 83 (2)

Syariah Court Evidence (Federal Territories) Act 1997, s 83 (3)

Syariah Court Evidence (Federal Territories) Act 1997, s 83 (4)

Syariah Court Evidence (Federal Territories) Act 1997, s 83 (5)

Syariah Court Evidence (Federal Territories) Act 1997, s 83 (6)

Syariah Court Evidence (Federal Territories) Act 1997, s 83 (7)

Syariah Court Evidence (Federal Territories) Act 1997, s 84

Syariah Court Evidence (Malacca) Enactment 2002, s 3

The Qanun e-Shahadat Order 1984, Art 3

Volume 9, Book 89, Number 282. Retrieved from: SAHIH BUKHARI, BOOK 89:

Judgments (Ahkaam) (iium.edu.my)