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Fatwa Shaikh Taha Jabir Al-Alwani utk kes DSAI
By web aNtu
24/8/2000 12:04 am Thu
Shari'a Review Of The Guilty Verdict Pa#sed On Dato' Seri Anwar
Fwd from Free Anwar Campaign (FAC)
This review concerns the trial and the verdict pronounced by Judge Arifin Jaka. The judge found the defendant Dato' Seri Anwar Ibrahim guilty as charged and sentenced him to nine years imprisonment. The review is based on worldwide reports that covered the proceeding on daily basis.
How does the Shari'a look at the legality and validity of the proceedings
and the ensuing verdict?
1. The Shari'a recognizes that the accused is in a position of weakness
as he is the subject of the legal system and is put on the defensive. He
is likely to be abused, and his rights violated. The cardinal principals
of Shari'a is to establish Justice.
It is for this reason that we find the prophet (P) and all the Khulafaa
al Rashidoon documented their guidelines to the judges they appointed,
exhorting them to be extremely sensitive to the rights of the 'accused'
Upon reviewing the proceedings of the referenced trial from Shari'a
point of view, one can write volumes on the violations of the rights of
the 'accused'. We will limit ourselves here to only a few of them.
2. The alleged offense, s###my, is a crime of honor and character, like
zina, requires four credible eyewitnesses who have witnessed the act first
hand, with no barrier or obstruction. If there is the slightest discrepancy
in their testimony, the whole case is to be dismissed and the witnesses
or accusers are guilty of slander and libel
3. The Shari'a also took special note of the case where a commoner accuses
a person of high ranking stature
recognizing the possibility of human weakness, greed and envy, and the
mean motive of embezzlement. Islam required proof that goes beyond personal
admission of an alleged 'victim'. If the slightest discrepancy is detected
in the testimony, the case is dismissed and the 'accuser' is to be punished.
This is an effective and fair protection for society.
4. Denying the defendant to call and cross-examine a key witness in
the person of the Prime Minister. This witness had material evidence as
5. The defendant was denied request, legitimate as it is, to have the
'victim' and key prosecution witness medically examined for signs of s###my.
Medical evidence can be conclusive in many such cases. This is all the
more important because medical evidence proved, beyond doubt, that the
other defendant, Mr. Sukma, had no signs of s###my, which substantiated
his claim that his confession was extracted from him forcibly. This is
how the prosecution changed their filing and made Mr. Sukma a second defendant
accused of s###mizing Azizan, and not being s###mized by the defendant,
Dato' Seri Anwar Ibrahim.
6. Lack of specificity
in the date of the alleged crime. The prosecution key witness-cum-victim
stated a date that could not stand proof of alibi. He kept changing it
by years and months. In any fair Shari'a or civil court this would have
been enough to declare a mistrial and render the witness/victim as guilty
of slander 'Qathf' . The
court, regrettably, accepted a period of several months denying the defendant
the right for a specific date.
7. Witness tampering: It became evident, in the hearing, and Mr. Azizan
admitted that he was coached by the police and the prosecutor in changing
the dates mentioned above. No Shari'a or civil court would qualify such
a witness as 'credible'.
8. Attorney Intimidation: During the course of the trial, the judge
repeatedly threatened the defense attorneys with 'contempt of court', until,
on one occasion, he actually struck one of them with a sentence for the
same perceived violation. International observers agree that the defense
lawyer was carrying out his duty well within acceptable bounds of his profession.
Shari'a views any intimidation of a lawyer as intimidation of the accused
as the lawyer is his attorney.
9. The 'accuser' and key witness (Azizan) according to Shari'a ruling
should have been disqualified as a witness forever. He was convicted of
The Quran is specific and clear on this issue
Based on the above Shari'a considerations the trial and the verdict
are an embarra#sing conviction to the Malaysian System and of justice.
It has disgraced the great name of Malaysia. The judge should have upheld
the values of Justice and Shari'a and the ethics of his profession by dismissing
the case outright. It is judges like him who are the subject of the Hadith
of the prophet (P)
In conclusion, the Islamic opinion in the verdict pa#sed on Dato Seri
Anwar Ibrahim, convicting him of the crime of s###my is invalid. The burden
of proof in Shari'a is on the prosecution and the accuser
Dato' Seri Anwar Ibrahim should be declared innocent. He should be released immediately and his accusers should be tried for slander and libel.
Dr. Shaikh Taha Jabir Al-Alwani
Chairman, Fiqh Council of the US and Canada
Member, International Fiqh Council, Jeddah
Member, Fiqh Council of Europe