Salbiah Abmed
 
 

EVIDENCE OF WOMEN

Quran chapter verse al Baqarah 2.282 states: Whenever you take credit for a stated term, set it down in writing. And let a scribe write it down equitably between you...And call upon two men of your men to act as witnesses; and if two men are not available to you as witnesses, then a man and two women from among you, so that if one of them should make a mistake, the other would remind her.

I have taken the liberty to quote the full text of verse 2.282 for the simple reason that the first and the last lines are usually cut off in any discussion on women as witnesses. These lines are important in that they contextualise the operation of the words in between those lines.

In Muslim jurisprudence, both women and men are capable of giving evidence. Jurists have however not allowed women to give eyewitness evidence (shahadah) in hudud and qisas and have insisted that the eyewitness evidence of two women are equal to that of one man (in all other cases). In zina (unlawful sexual intercourse), four adult male eyewitnesses are required to establish the offence which attracts hadd punishment.
 

Two women-one men rule
The Quranic verse 2.282 does not equate the evidence of two women equal to that of one man. The context of this verse relates to a written loan agreement. At the time of its revelation, the female gender is not expected to deal in business and financial transactions. This can be seen in the example of Khadijah the wife of the Prophet Muhammed. She left the charge of her business affairs to him.

This verse also relates that it is important to have a loan agreement in writing. The written loan agreement can be witnessed by a man or by two woman not because two women are equal to one man, but because if the women witness errs or forgets, the other was needed, not to give evidence, but to remind her.

Despite the social constraints Arabs women faced at that time in financial transactions, the Quran recognized the potential of women as witnesses.
 

No women as eyewitness
Other than verse 2.282, no other verse in the Quran make a distinction between men and women in witnessing nor a distinction between men and women in hudud (plural of hadd) and qisas (retaliation). (Quran: 4.6, 4.15, 5:106, 24:4, 65:2).

It is a historical fact that the eyewitness account of Naila, wife of the caliph Umar was accepted in the murder of the caliph Umar and Ali enforced the hadd punishment on the murderers,

We are often advised that women are disqualified from becoming witnesses especially in adultery cases to 'protect' them from shame and discomfort in having to testify in court. < 2> As this has little support from the textual sources, it would be dangerous to assume this as overriding the original intent of the Quran: anyone who is capable of witnessing has the right to be one.
 

Witness evidence in rape cases.
Our life experience which, is the observable reality tells us that women are not raped in public (unless a gang rapes perhaps). There is thus little hope that the rape survivor can prove rape through eyewitness evidence. The burden is further compounded if the rape survivor is presumed to have committed the crime of adultery if she is found to be pregnant or have delivered a child when she is unmarried.

The intent and spirit of the Quran in insisting on four eyewitnesses is in relation to slandering a woman or falsely accusing her of zina -that a woman had unlawful sexual intercourse on her own free will.

Sura An Nur 24.4 states: "And those who launch a charge against chaste women, and produce not four eyewitnesses (to support their allegations) flog them with eighty stripes and reject their evidence..."

This verse was revealed at a time when Aishah , wife of the prophet Muhammad, was led home (on a camel) by a Companion of the prophet, when she was left behind on an expedition. This incident became the source of a false and malicious rumour.
 

The Presumtion of adultery is a direct perversion of the original intent of the Qur'an in verse 24:4
It is submitted that the presumption of adultery is itself a subversion of the intent and purpose of the Quran in 24:4 by allowing the circumvention of the production of four eyewitnesses to prove zina (consensual intercourse on the part of the rape survivor). Unless she confesses to zina the case cannot be made out against her by pregnancy alone.

The equation of rape to zina is problematic and is submitted that this is not the intent of the Quran. Rape has to be proved differently and it is submitted that the rape survivor's testimony should itself be allowed. She is her own witness to the sexual violence.
 

Diyat (compensation) for women
Dayat Is compensation in cases of death or injuries. Compensation for death/injuries can be claimed by the victim or the victim's family in substitution for qisas (retaliation/retribution).

The amount varies depending on the severity of the crime (death or nature of the injury). This is developed by juristic opinion.

As regards diyat of women there is ijma' (consensus) opinion that it is half to that of a man. There is nothing in the Qur'an to support this view. At best, the view stems from the idea that the male is the provider of the family. This idea is certainly subject to debate in the modern context where women and men are increasingly providers on a partnership basis whether in the tradition agrarian society, where both work in the fields and in urban setting. Our concept of harta sepencarian is reflective of that partnership.
 

Apostasy and death
The Quran deals with apostasy in several verses: e.g. 4:90, 5:59 the verses do not prescribe the punishment for apostasy.
 
Hadith literature is often cited as supporting their punishment death. The most of celebrated of these relates to the case of the Ukl tribe. A band of them came to the prophet in Medina and announced that they have accepted Islam as their faith. When they were taken ill, the Prophet advised them to live with the Muslim herdsmen. When they recovered from their illness, they disclaimed Islam and killed the herdsmen and stole their camels. They were captured and executed.

The extremely harsh punishment is not just disclaiming Islam as their faith, but also robbery and murder. There was also the question of secuarity of the state (Medina). The case of the 'Ukl tribe' is often cited for fasad al-ard (revolution on earth) which is more than just a disclaimer of belief.

Today the charge of apostasy seems to be extended to even questioning the choice of juristic opinion upon which the Syariah Criminal Code is based. This is not a case of belief or disbelief in Islam as a faith - it is a serious political issue.