CAN A WITNESS BE COMPELLED TO TESTIFY IN THE SYARIAH COURT?
Ahadin bin Arinen
12 APRIL 2015
As far as the law of evidence is concerned, the ultimate purpose of giving evidence is to uphold justice as mentioned by Allah in many verses in al-Quran. One of the verses states: “O ye who believe! Stand out firmly for justice, as witnesses to God, even as against yourselves, or as your parents, or your kin, and whether it (against) rich or poor: for God can best protect both. Follow not the lust (of your hearts), lest your swerve, and if ye distort (justice) or decline to do justice, verily God is well acquinted with all that ye do”. It has been an accepted fact that the burden of proof is on the claimant or the plaintiff to prove his allegation. In the process of proving his case, the attendance of witness to court is vital for the purpose of testifying his knowledge of particular facts which are relevant to the fact in issue. It may happen that the court has to postpone the trial of the case due to failure of valuable witnesses of the party to turn up to court to give their evidence. There are even a situation where a witness refuses to testify in court for unacceptable reasons. Having said that, a question can be raised as to whether a witness can be compelled to testify in the court of justice? In dealing with this issue, this paper will focus on this situation in the Syariah Court of Malaysia by referring into the legal ruling (hukm) of giving evidence in general as well as the provisions available in the applicable statutes. Apart from that, this paper also will highlight some measures to be taken into consideration by the court before invoking any action to compel the attendance of a witness to testify in court.
THE LEGAL RULING OF GIVING EVIDENCE
In respect of legal ruling (hukm) to give evidence, there are two verses of the quran which directly prohibit the act of concealing evidence. The first verse is: “The witnesses should not refuse when they are called on (for evidence)”. The second verse is: “Conceal not evidence for whoever conceals it, his heart is tainted with sin. And Allah knoweth all that you do”. Dr Abdul Karim Zaidan in quoting these verses holds that giving evidence is fard kifayah (collective responsibility) since it is a trust and therefore it must be fulfilled. Ibn Abbas in referring to the above verses holds that it is one of the major sin for those who withholds testimony. The fard kifayah (collective responsibility) shall be discharged if a member of the community comes forward to give evidence.  However, if none of the member of the community comes forward to give evidence, the whole community shall be tainted with sin since it has become fard ain for every Muslim in the community to fulfill such an obligation. Thus it is a sin for those who refuse to give evidence without valid reason such as to avoid harmful. According to Syed Sabiq, giving evidence is an obligation for a witness as long as he is able to perform it without facing danger towards his body, dignity, property or his family.
The fiqh jurists are unanimous in their ruling that in non-hudud cases, the legal ruling for giving evidence is fard kifayah as mentioned earlier. However, in respect of Hudud cases, there are several rulings. The general rule is that it is not obligatory to give evidence whereby the witness is given the discretion to testify or not to testify. According to Ibn al-Humam of the Hanafi school, it is afdhal or encouraged not to reveal the evidence. Al-Shirazi of the Shafie school also holds the same opinion by saying that is it commendable for those who have the evidence in hudud cases to conceal it since it is mandhub. The grounds for the above ruling of non obligatory to give evidence in hudud cases are based on the two hadith of the Prophet s.a.w. The first is the hadith reported by Abu Hurairah r.a who said that the Prophet s.a.w had said “reject hudud offences as long as you can reject it with one rejection”. The second hadith is that the Prophet s.a.w said to the effect “those who cover the faults of a Muslim, Allah will cover his fault in the hereafter”.
WHETHER A WITNESS CAN BE COMPELLED TO TESTIFY IN COURT?
The above rulings are exposed to criticisms that such a ruling would encourage the commission of hudud offences as it is not obligatory for any witness to give evidence.As such Islamic can never be implemented and injustice will be the order of the day and thus, it would be repugnant to the Islamic law and justice. Is there any solution in this matter? As a matter of fact, Syariah Court in Malaysia is given the power and jurisdiction to hear Islamic matters concerning personal matters as well as criminal matters. In the course of administering justice, a question will arise whether court can compel a witness to testify in court? In this respect, the view of Ibn Abi Dam in his book entitled Kitab Adab al-Qhadi is reliable when he said that “when the testimony of a person is required by a judge (or court) thereafter such testimony or evidence and the adducing thereof becomes an amanah (trust) and also a fard ain”. In commenting on this view, Prof Dr Mahmud Saedon holds that in answering the above criticism, there is another general rule that the giving of evidence or testimony pursuant to an order of the court as witnesses for Allah is obligatory so as to secure the life, property and interest of man as demanded by Islam. He further holds that if in consequences of a court’s order, a witness refuses to testify then it would amount to an act of contempt of court and disobedience to the lawful authority. A person will be committing a sin if he were to neglect such a responsibility if he knows that the court requires his evidence and testimony. In this respect, the writer humbly submits that the writer agrees with them in holding the view that it is an obligatory for a person to give evidence when requested by the court regardless of hudud or non-hudud cases after considering that it is in line with the maqasid al-syariah for the preservation of religion, life, property, descendent and aqal.
In order to have a clear picture on the statutes applicable for the Syariah Court, section 219 of the Syariah Criminal Procedure Enactment (Sabah) 2004 provides that any court may summon any person as a witness at any stage of any trial or other proceeding in court. It is further provided in this section that the court is given the power to summon and examine or recall and re-examine any such person if his evidence appears to be essential in the case. Nevertheless, this section does not specify whether the power of the court to summon the attendance of a witness in court pertains to the giving of syahadah or bayyinah. Hence, it is clear that there is a lacuna in this matter and such lacuna leaves the court to make any appropriate order as it may think fit. In this respect, by virtue of section 230, the court is given the power to apply Islamic Law (Hukum Syarak) in the absence of any specific provision or in the event of a lacuna in a particular matter. By referring to the earlier contention that it is obligatory for a person to testify in court once he is summoned by the court regardless of hudud or non-hudud cases, the writer is of the opinion that the court should also take the same position to compel a witness to testify in court regardless of giving syahadah or bayyinah.
COMPELLABILITY OF NON MUSLIM WITNESS TO TESTIFY IN SYARIAH COURT
In respect of an issue as to whether or not a non-Muslim can be compelled to testify in Syariah Court, the present laws in Malaysia conferred such power to Syariah Court as long as the compellability is confined to the necessity of appearance of such person in his capacity as a witness only and not as a party in a case. The appearance and competency of non-Muslim witness in Syariah Court is clearly mentioned in section 83(2) of the Syariah Court Evidence Enactment (Sabah) 2004 which provides that non-Muslim shall be competent to give bayyinah for a Muslim if his testimony is admissible according to Islamic Law. Meaning to say that it is the responsibility of a non-Muslim witness to give his cooperation and peforms his responsibility to give evidence in Syariah Court once the court orders him to do so. This is due to the fact that Syariah Court is a court which is established under the law and put under the same umbrella of Federal Constitution together with other courts like Civil Court, Native Court, Martial Court and Industrial Court.
The latest case of an Ex-Parte Application for a declaration of the status of religion of the deceased Nyonya binti Tahir by the Majlis Agama Islam Negeri Sembilan and Others shows that Syariah Court recognized the evidence of non-Muslim witnesses. In this case, some of the non-Muslim witnesses ie. the deceased’s son and daughter were called to testify in Syariah High Court in determining the issue of the status of the deceased’s religion at the time of her death. The court held that the evidence given by those non-Muslim witnesses in this case is regarded as bayyinah based on section 83(2) of the Syariah Court Evidence Enactment (Negeri Sembilan) 2003 which provides that non-Muslim shall be competent to give bayyinah for a Muslim if his testimony is admissible according to Islamic Law. The court in this case decided that the the deceased’s status of religion at the time of her death was not a Muslim.
The only question is whether the Syariah Court has the jurisdiction to commence proceeding against against a non-Muslim for contempt of court should he refuses to testify in court. Pertaining to this matter, the writer is of the opinion once a witness refuses to give his testimony in any court of justice without valid and good justification, such refusal is tantamount to an act of contempt of court. It is settled law that a person must be given the opportunity to defend himself by showing causes why he should be committed to prison. To make a defense means that he is already become a party in a proceeding of a court. He is even entitled under the law to seek counsel to represent and defense him to purge the contempt.
Nevertheless, is must be borned in mind that the court must always give the opportunity to the person concerned to express his apology to the court for such action to avoid further consequence such as contempt of court. If the witness makes an apology to the court for his mistake and undertakes not to repeat the same mistake, the court will consider it as a good justification not to proceed contempt of proceeding against him. The writer is of the opinion that citing someone for contempt of court is the last resort by the court since such action will only prolong the hearing or trial of the present case. As previously mentioned above, an issue can be raised as to whether Syariah Court has jurisdiction to hear contempt of court proceeding involving a non-Muslim? The writer is of the opinion that in this particular circumstances, being a non-Muslim, he cannot be a party in any case or dispute in Syariah Court.
In other word, Syariah Court has no jurisdiction to commence contempt of court proceeding against a non-Muslim. The Federal Constitution of Malaysia clearly provides that only Muslim can be a party in Syariah Court and probably it is the reason why Syariah Court jurisdictions are put under the List II (State Lists) of the Federal Constitution which confine to Islamic personal matters and certain Islamic Criminal matters which are not provided in the Federal List. Thus, any proceeding which put a non-Muslim as a party in Syariah Court will render the proceeding becomes unconstitutional. Furthermore, such law pertaining to the exclusion of non-Muslim as a party in Syariah Court is also provided in section 10 and 11 of the Syariah Court Enactment (Sabah) 2004.
From the above argument, it is clear that a non-Muslim cannot become a party in Syariah Court proceeding. But, if such a contempt act by a non-Muslim witness occurs in Syariah Court during the course of giving evidence and at the same time the Syariah Court has no jurisdiction to commence contempt of court proceeding against the non-Muslim witness, can we say that a non-Muslim is immune from any legal action under Malaysian law? Is there any alternative court which is competent to hear such case? In this matter, it is the writer’s humble opinion that there is always legal remedy for such a case. The Civil Court is the competent court to try any action involving an offence committed by a non-Muslim in the face of Syariah Court.
Any party including parties in the case or members of public or even the registrar of Syariah Court may lodge a police report pertaining to the act committed by the non-Muslim witness in Syariah Court. The judge concerned should put on his record of such act committed by the non-Muslim witness in the notes of proceeding to facilitate the task of the Public Prosecutor in proving their case before the Civil Court in criminal prosecution against such witness. If for instance, after being ordered by the Syarie Judge to stop continuing such action before the court such as refusing to answer a question from the judge himself or from the counsels, the non-Muslim witness still remain in disobeying the court’s order, the Syarie Judge may record such disobedience of the witness.
Such record of the judge can be a good evidence for the prosecution against the non-Muslim witness in a criminal case in Civil Court. In this particular case, such witness can be charged under section section 179 of the Penal Code for refusing to answer any question by a public servant authorized to question by the law. If convicted, he shall be punished with imprisonment for a term not exceeding six months or fine which is not exceeding two thousand ringgit or both. Since the offence is linked to the refusal of a non-Muslim witness to answer question by the judge or by the counsels during the course of proceeding in Syariah Court, it is pertinent to highlight here that the word ‘Public Servant’ in the Penal Code does include any judge or officer from Syariah Court from the the definition of Public Servant. For clear picture, the writer quote the relevant parts of the definition of ‘Public Servant’ in section 21 of the Penal Code as follows:
“The word “public servant’ denotes a person failing under any of the descriptions hereinafter following:
(c) every judge;
(d) every officer of a Court whose duty is, as such officer, to investigate or report any matter of law or fact, or to make, authenticate, or keep any document, or to take charge or dispose of any property or to execute any judicial process, or to administer any oath, or to interpret, or to preserve order in the Court, and every person specially authorized by a Court to perform any of such duty”..
The judge in this context is not confined to include judge of Civil Court but, its definition is wide as mentioned in section 19 of the Penal Code as follows:
“The word “judge” denotes not only every person who is officially designated as a Judge, but also every person who is empowered by the law to give in any legal proceeding, civil or criminal, a definitive judgement, a judgement which, if not appealed against, would be definitive, or a judgement which if confirmed by some other authority, would be definitive, or who is one of a body of persons, which body of persons is empowered by law to give such a judgement”.
From the above definition of ‘Judge’, it is clear that its definition is very wide and it is the humble opinion of the writer that the word ‘judge’ as mentioned in this section is also includes judges of other courts such as Syariah Court, Military Court, Industrial Court and Natives Court. This contention is further strengthened by the general definition of the word ‘Court’in section 20 of the Penal Code which states:
“The word “Court” denotes a judge who is empowered by law to act judicially alone, or body of judges which is empowered by law to act judicially as a body, when such judge or body of judges is acting judicially”.
Based on the above definitions of the word “Public Servant”, “Judge” and “Court” provided in the Penal Code, it can be understood that the such definitions are not confined to persons under the umbrella of Civil Court but, in fact it covers all persons concerned under the Malaysian laws including those laws applicable to Syariah Court. As such, there are always ways to overcome the problems and difficulties faced by the Syariah Court in ensuring the smooth administration of justice especially when such a case involves non-Muslim participation in a case as a witness of any party in Syariah Court. It is also a suggestion of the writer that in case that there is ambiguity as to whether the words in the Penal Code such as “Public Servant”, “Judge” and “Court” also include the Syariah Court, those defining sections should be amended by inclusing the Syariah Court under those definitions.
Such amendments will surely clarify the definition of those words and could erase any ambiguity regarding the position of Syariah Court in respect of the applicability of those provisions provided by the Penal Code. So far as the writer’s knowledge is concerned, there is no case involving the application of those provisions in Penal Code involving non-Muslim disobedience of Syariah Court’s order in Malaysia.
SOME CONSIDERATIONS BY THE COURT IN COMPELLING A WITNESS TO TESTIFY
Based on the above discussion, it is clear that the court have the power to compel the attendance of witness to testify in Court. The effective forms to compel suc person to testify in court is by issuing warrant of arrest against that person person to secure his attendance in court or otherwise by sentencing him to imprisonment not exceeding the term of seven days if he refuses to give evidence or answers any question by the counsel or judge or refuses to produce any material document in his possession or power upon the request of the court. It is the writer’s humble submission that the court must take into consideration on the following circumstances before exercising its power to compel a witness to testify in court:
a. The proper procedures laid down by the statutes must be followed. To compel a witness to attend in a court, it must be preceeded by the issuance of a subpoena to the intended witness on the application or request of the party in that case. The subpoena must be served personally to the intended witness. Apart from that, it is a strict requirement of the law that the requesting party must tender to the witness a reasonable sum of money to cover his expenses of going to, remaining at, and returning from, the court before the commencement of a trial. If such procedures are not followed, then the court can reject any application to issue an order to compel the attendance of their witnesses should the witnesses refuse to come to court.
b. There must be a complete refusal by the witness to testify in court. The court must ask the witness of his reason for failure to attend in court or refusal to give evidence or to produce document in his possession or his power upon the request of the court. In respect of failure to attend in court without valid reasons, the court may issue a warrant of arrest against that person and be put in prison under the supervision of prison officer until the date of trial of the case. If the witness in the face of the court still refuses to testify, then the court has jurisdiction to commence proceeding against him for contempt of court. The court however, must also give the opportunity to the witness to seek his apology to the court on his disobedience to the court’s order to avoid any contempt of court proceeding. If the proceeding of contempt is proceeded, the court needs to ensure that the person alleged for contempt of court understands the nature of the offence and give him the opportunity to answer the alleged contempt.  Failure to satisfy the court of the reasons for the refusal will render him to be held for contempt of court and the court through the order of committal may sentence him with the imprisonment of not exceeding six months or alternatively with a fine of not exceeding two thousand ringgit.
If the witness is able to give good reasons for the refusal then the court cannot compel him to testify. During the course of proceeding for instance, the court may consider to to compel a witness to answer any question which is not relevant to the suit or proceeding and may warn the witness that he is not obliged to answer such question. One of the reason for inability or for refusal to testify is when the witness has to undergo a serious surgery operation in a hospital at the material time. Dr Abdul Karim Zaidan in this respect holds that it is no more a sin for the witness for withholding his evidence if his evidence exposes him with danger of loss of life. In that circumstances, the court has to consider his reason for failure to perform his responsibility and fix another date of the trial where the witness is expected to be available to give evidence.
c. The person must be the one who is well acquainted with the fact in issue. It will be futile to compel someone to testify in court if the person has no knowledge of the fact. The requesting party must satisfy the court that the attendance of the person is so crucial since there is no other person available or well acquainted with the fact in issue. It must also be borne in mind that a person who intends to bring witnesses to court will loss his right if there is no sufficient evidence produced before the court. In this respect, a question can be raised as to whether the court can compel another witness to testify in court after a party to a case has concluded his case or has informed the court that he does not intend to call additional witnesses. To deal with this issue, the court should always remember that the ultimate purpose of bringing evidence is to uphold justice as ordained by Allah s.w.t in some verses as we have mentioned earlier. It will be more easier for the court to allow such request if the another party does not make any objection.
However, if there is objection from the other side, the court should hear the grounds of such request from the requesting party and objection from the other side. It is the writer’s humble opinion that whether or not to allow such request, it is the discretion of the court to allow it or not. If the requesting party managed to adduce good and justifiable reasons to support his request, then the court should give the opportunity for him to bring such witnesses. Even to a certain extent, as for an analogy, many jurists including Ibrahim al-Nakhai, Shuraih, Abu Hanifah, Shafie, Ahmad and Imam Malik agreed that evidence may be heard even after the Defendant has taken the oath by denying the claim. Imam Malik however opined that such permission is given on the ground that the Plaintiff was not aware of the existence of such evidence. If on the other hand, the Plaintiff had known of the evidence and had chosen to put the Defendant under oath and then, after such oath, had offered to submit such evidence, the said evidence should not be accepted. Based on this analogy, it is submitted that the court should allowed the requesting party either the Plaintiff or the Defendant to bring other witnesses as long as they give good and justifiable reasons of doing so. The court on the other hand may give an order that costs of the delay of the proceeding be paid by the requesting party to the other side. In this respect, once the court allows the requesting party to bring another witness, then the normal procedures will apply ie. the court can compel the attendance of witness to court if the witness refuse to testify in court.
Based on the above discussion, it is clear that the Syariah Court in Malaysia have the power to compel a witness to testify in court regardless of whether the witness will be giving syahadah or bayyinah. Although there are opinions that of the jurists that it is not obligatory to give evidence in hudud cases as it is encouraged to cover faults on a Muslim, but once the court orders the attendance of a witness to testify in court, it will become an obligation. As far as Syariah Court in Malaysia is concerned, the present laws clearly provide the powers of the court to compel the attendance of witness to court. The law too even so provides punishment against those witnesses who refuse or ignore the court’s order. The contention that the Syariah Court has the power to compel witness to court is further strengthened by the fact that Malaysian Laws do not provide hadd punishment according to al-Quran and al-Sunnah for the hudud offences. The power to compel the attendance of witness to Syariah Court not only covers Muslim but also to non-Muslim since there is a clear provision under the applicable statutes which recognized the competency of non-Muslim to give bayyinah. The only obstacle is that Syariah Court has no power to take any action against the non-Muslim witnesses should they commit an act of contempt as it would tantamount to put them as party in Syariah Court. Under the available laws, Syariah Court only has the jurisdiction to hear case involving Muslim party. However, if an act of contempt or refusal to obey the Syariah Court’s order when act in their capacity as witnesses, the proper forum to remedy such acts is Civil Court by invoking certain provisions in Penal Code to prosecute them for disobeying the court’s order. It must always be borne in mind that, as witness, they are bound to respect the laws of the country, and more importantly, they are not the party in Syariah Court but act solely in their capacity as witness in the court of law which is founded under the auspices of the Federal Constitution.
 The paper was presented by the writer at the Ahmad Ibrahim Kulliyyah of law, International Islamic University, Malaysia on the 11 October 2006 as part of the requirement for the fulfillment of the requirement for the study of Master of Comparative Laws (MCL), International Islamic University Malaysia (IIUM). The writer expresses his gratitude to Asso. Prof. Dr Zulfakar Hj Ramlee being the lecturer for the subject of Islamic law of Evidence during the candidature of the writer in the university. The writer is presently holding the post as the Syariah High Court Judge of Tawau, Sabah.  The Quran: 4:135.  The Quran:2:282.  Ibid.; 2:283.  Dr. Abdul Karim Zaidan, Nizam al-Qhada fi al-Syariat al-Islamiyyah, Muassasah al-Resalah, Beirut, 1955,p.141.  Al-Sheikh al-Imam Abi Ishak Ibrahim bin Ali ibn Yusuf al-Fairuz Abadi al-Shirazi, al-Muhazzab fi Fiqhi al-Imam al-Syafie, Darul Kutub, Vol.2, p.323.  Ibid.  Karim Zaidan, op.cit., p.141.  Ibid.  Syed Sabiq, Fiqh a-Sunnah, Victory Agency, Kuala Lumpur (Translation), Vol.14, p.57.  Dr Mahmud Saedon A. Othman, An Introduction to Islamic Law of Evidence, The Open Press, Kuala Lumpur (Translation), 1996, pp.11-14.  Ibid.  Ibid.  Al-Shirazi, op.cit., p.323.  Mahmud Saedon, op.cit., p.13.  Ibid.  Ibid.pp.13-16.  Ibid.  For further detail of jurisdiction of Syariah Court of Sabah, see section 10 and 11 of the Syariah Court Enactment (Sabah) 2004.  Mahmud Saedon, op.cit.pp.13-14.  Ibid.  Ibid.  Ibid.  See also section 219 of Syariah Criminal Procedure (Federal Territories) Act 1997.  Syariah Criminal Procedure Enactment (Sabah) 2004.  The word Islamic Law (Hukum Syarak) is defined in section 2(1) of the Syariah Criminal Procedure Enactment (Sabah) 2004 as Islamic Law according to Mszhab Syafie or any one of the Mazhab Hanafi, Maliki or Hanbali.  See also the same provision in section 83(2) of the Syariah Court Evidence (Federal Territories) Act 1997. As a comparison, although Sudanese Evidence Act, 1993 (unofficial translation) has separately defined bayyinah and syahadah, there is no provision pertaining to the competency of non-Muslim to testify in court.  Jurnal Hukum, JLD. XXI BHG.II, JH (1427H), Jun 2006, p.221.  In practice, the court will normally postpone the case to a certain period of time until the contempt of court proceeding involving parties or witnesses in that case is settled. This will cause delay and additional costs to all parties concerned.  See section 177 of the Syariah Criminal Procedure Enactment, Sabah, 2004. See also section 177 of the Syariah Criminal Procedure (Federal Territories) Act 1997.  See section 102 of the Syariah Court Civil Procedure (Sabah) 2004. In respect of producing a prisoner as a witness in court, an application by way of ex-parte must be made by the requesting party as laid down in section 109(2) of the same Enactment.  Ibid. Section 106.  Ibid. section 110.  Ibid. Section 229.  Detailed eloberation on this matter can be referred to the previous discussion regarding the compellability of non-Muslim witness to testify in Syariah Court.  Section 229 of the Syariah Court Civil Procedure (Sabah) 2004.  Ibid.  See section 101(1) of the Syariah Court Evidence Enactment (Sabah) 2004. See also the same section in Syariah Court Evidence (Federal Territories) Act 1997.  Abdul Karim Zaidan, op.cit., p.141.  See elucidation on this matter in Zulfakar Ramlee, The Role of al-Qarinah (Circumstancial Evidence) In Islamic Law of Evidence: A Study of the Law in Malaysia, With Reference to the Rules and Principles of English Law, (Ph.D Thesis), Glasgow Caledonian University, Glasgow, 1997, pp.40-41.  Ibid.