• confession and retraction

    CONFESSION AND ITS RETRACTION: THE MALAYSIAN EXPERIENCE

    Logically speaking, no one would ever admit his guilt, upon which would entail punishment except if it is the truth. Therefore, confession or al-iqrar is considered as the strongest mode of proof to some. It is in fact, labelled as sayyidul hujaj (the king of all sources of proof) as enumerated in a Pakistani case of Khawand Bakhsh alias Khawando v. The State 2004 P Cr. L J 677 [Federal Shariat Court] at 682.[1] In the local case of Pendakwa Syarie lwn. Jalil Embong & Zaliha Endut (2004) 17 JH(I) 93 at 106, the learned Judge, in explaining about iqrar, had this to say:

    Iqrar is one of the strongest methods of proof in Islam. There is no disagreement among the jurists on this issue. Its legality has been established from the Qur’an as well as from the Sunnah.” (Translation from Bahasa Melayu).[2]

     

    In this makalah, we will explore in brief the concept of confession in Islam and the legal definition of it, as provided in the Malaysian statute. Further down this article, we would see the different approaches taken by the Malaysian Syariah Courts in determining the validity of retracted confession and the rationales of coming to such decisions.

     

    Definition

    Al-iqrar which derives from the root words qarra, yuqarru, qiraaran[3] literally means “admission” or “recognition[4]. Legally speaking, the scholars have come up with their own definitions, as follows:

    Shafi’i:

    • A testimony which is made by the maker of the admission, of a proved right of another person against himself.
    • Recognition (I’tiraf)[5]

    Hanafi:

    • An admission by the maker of the admission regarding the right of another person against himself.
    • A testimony of the maker of the admission through the use of particular wordings, pertaining to a right or interest (thabat al-haq) in favour of another person, and disadvantageous to the right or interest of the maker himself. [6]

     

    Our Syariah Court Evidence (Federal Territories) Act 1997 provides the definition of iqrar in its section 17(1) as “an admission made by a person, in writing or orally or by gesture, stating that he is under an obligation or liability to another person in respect of some right”.

    From all the above definitions, it can simply be understood that al-iqrar means establishing the right or interest of another person in the form of admission, against himself.

     

    The Legal Basis:

    The recognition of al-iqrar as a means of proof can be traced in various verses in the Holy Qur’an. One of the ayaat which highlights this point is verse 135 of Surah An-Nisaa’. Whereby Allah says:

    O you who believe! Stand out firmly for justice, as witnesses to Allah, even though it be against yourselves, or your parents, or your kin, be he rich or poor, Allah is a Better Protector to both (than you). So follow not the lusts (of your hearts), lest you may avoid justice, and if you distort your witness or refuse to give it, verily, Allah is Ever Well-Acquainted with what you do.[7]

     

    Ibn ‘Arabi in interpreting this verse, had stated as follows: “…Thus, in the language of law, bearing testimony against oneself is known as acknowledgement (iqrar).[8] From the above verse, it is clear that iqrar is not a newly man-made invention but has gained recognition and inscribed in the Holy Book since thousands of years ago.

    Moreover, al-iqrar can also be seen practised during the era of the Prophet. And the oft-cited case of Ma’iz illustrated the concept of al-iqrar at its best. Whereby, in the case of Ma’iz, he had confessed to the Prophet that he had committed adultery. Only after the fourth time that he had testified to the Prophet did the Prophet call him to know if he was mad, of which, he answered in the negative and the Prophet ordered for him to be stoned to death. From this narrative, the act of Ma’iz testifying to the Prophet about his commission of adultery signified that he had testified against himself and thus connoted al-iqrar.

    Meanwhile, according to ijma’, the Muslim jurists have also come to a consensus when it comes to accepting al-iqrar as a means of proof. On the other hand, based on qiyas or analogy, Wahbah al-Zuhayli stated that if the syahadah is legally accepted as a means of proof without dispute, by analogy, to accept iqrar is more preferable.[9]

     

    RETRACTED CONFESSION

    In Malaysia, the issue of retracted confession had been decided in a few cases, some of which came to different conclusions pertaining to its validity. Before we delve into the cases, let us first define retraction of confession and closely examine the position of retracted confession according to the Muslim jurists.

    According to the Merriam-Webster’s online dictionary, to “retract” means to “take back, withdraw”.[10] Simply said, in the present context, a retraction of confession means to withdraw or take back a confession which had been made by the maker/confessor. This discussion can be divided into the rights of Allah, the rights of mankind and ta’zir crimes.

     

    Rights of Allah (hudud offences)

    The Muslim jurists have agreed that retraction of confession in hudud offences would amount to a valid retraction. The effect of such retraction would render the hudud punishment to be substituted with ta’zir punishment if there are other evidences to support it.[11] The authorities to support this view is the case of Ma’iz, whereby when it was reported that Ma’iz attempted to run away during the commencement of stoning, the Prophet said “I wish you should have left him and brought him to me”, and Ibn Qayyim had interpreted the act of Ma’iz, attempting to run away from the scene of the execution of stoning as a connotation of retraction of confession.[12] Further, the retraction of confession creates doubt, and as the saying goes: “udra’ul hudud bil syubuhaat”. Thus, hudud punishment cannot be imposed as the retraction of confession casts doubt and doubt renders a hudud punishment unenforceable.

     

    Rights of Mankind (Qisas)

    According to Al-Qurtubi, a confession involving the rights of mankind cannot be retracted. This finding is based on Surah Al-Qiyaamah, verses 14-15[13], whereby Allah says:

    Nay! Man will be a witness against himself [as his body parts (skin, hands, legs, etc.) will speak about his deeds]. Though he may put forth his excuses (to cover his evil deeds).

     

    From the above two verses, it can be understood that whatever that has been done by a human being would be held accountable. This shall include a confession that was previously made. This finding is in line with the view of most of the jurists, including for the cases of qisas[14] and qazaf.[15] Article 1588 of the Mejelle also makes clear on this point, whereby it reads: “it is not lawful to go back from admissions concerning the rights of people”.[16] This maxim is very much related with the maxim in the Mejelle which states “a person is bound by his own admission[17] Hence, a person who has made a confession pertaining to the rights involving mankind  is bound by the confession made and is not allowed to retract it.[18]

     

    Ta’zir Offences

    According to Anwarullah, since the standard of proof in ta’zir offence suffices, if it only reaches the level of zann or beyond reasonable doubt, thus, it is not the same as in cases involving hudud offences, where retraction creates doubt and thus had punishment cannot be imposed due to the existence of doubt (retraction).[19] On the other hand, retraction in ta’zir offence does not affect the enforcement of ta’zir punishment(s).

     

    MALAYSIAN DECIDED CASES ON RETRACTION OF CONFESSION

    In the Malaysian context, we could see the different approaches taken by the Syariah Courts in deciding on the issue of retracted confession. For instance, in the case of Faridah lwn. Pendakwa Jenayah Kelantan JH 1, Bhg. 1, (1981-82), 89, whereby the Plaintiff was arrested for an attempt to commit illicit sexual intercourse with a man. Initially she admitted, later she made an application to retract such confession. The Court of Appeal in allowing her application had referred to several sources such as Kitab al-Mughni and al-Raudhah, as recorded in Sharkawi Tughah, Vol. 9, page 113, whereby it is permitted for those who have made confession pertaining to the offence of zina or of drinking intoxicants, to retract his/her iqrar as though it has never taken place ab initio. The Court had also referred to Kitab Fathul Wahhab, Vol. 5, page 134, whereby a person who had committed zina but had retracted his/her confession, the judgment must be set aside[20].

    A similar approach had been taken in the case of Che Lah lwn. Pendakwa Jenayah Kelantan JH 1, Bhg. 1, (1981-82), 86. In this case, the accused admitted in respect of the commission of zina with a girl. He later retracted his confession and the issue is whether he would still be liable to the said offence that he initially admitted. It was held that the initial admission cannot be taken as a proof of zina but merely of khalwat because of the existence of retraction.[21] The Court had referred to Kitab Fathul Wahhab, Vol. 5, page 134, whereby it is stated that “if a person has made a confession in zina case then retracts it, punishment cannot be imposed”.

    In contrary, in the case of Pendakwa v. Awang Mat Isa (1979) JH Bhg. 1, 80, the case also involved the offence of zina. At first, the Plaintiff pleaded guilty to the said offence but later wished to retract his confession. The Court, in referring to Kitab Sharkawi Tahrir, Vol. 2, page 141, which stated that “a valid confession cannot be retracted except in cases of murtad, drinking liquor, theft and robbery”, held that the retraction was invalid and convicted the accused to three months imprisonment.[22]

     

    CONCLUSION

    In conclusion, despite that al-iqrar or confession is unanimously accepted as a valid means of proof, the effect of its retraction depends very much on the nature of cases that the maker of the confession is convicted with. Even so, from the decided cases cited above, we could see that the Courts in relying to different authorities have come to different conclusions in accepting the maker’s retraction of confession in setting aside the conviction, despite the nature of the crime is the same i.e. ta’zir offence. Be that as it may, it is worth to be reminded that as Muslims, we are bound to state the truth be it against our own selves. Remember, we may escape the punishment in this world, but never will our deeds we be left unjudged in the Hereafter by the Most Just. Wallahu a’lam.

     

     

    [1] Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 197-198.

    [2] Ibid, 198.

    [3] Ibnu Mazur, Lisan al-‘Arab (Beirut, Lebanon: Daru Ihya’ al-Turath al-‘Arabiy, 1992), vol.11, 98- 99, quoted in Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 95.

    [4] Mahmud Saedon A. Othman, An Introduction to Islamic Law of Evidence (Kuala Lumpur: The Open Press, 2000), 30.

    [5] Muhammad Al-Sharbini Al-Khatib, Mughni al-Muhtaj (Egypt: Mustaffa Al-Babi Al-Halabi, 1958), vol. 3, 228, as quoted in Mahmud Saedon A. Othman, An Introduction to Islamic Law of Evidence (Kuala Lumpur: The Open Press, 2000), 30.

    [6] Mahmud Saedon A. Othman, An Introduction to Islamic Law of Evidence (Kuala Lumpur: The Open Press, 2000), 30.

    [7] See translation by Muhsin Khan at https://quran.com/4/135.

    [8] Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 200.

    [9] Wahbah al-Zuhaili, Fiqh al-Islam wa Adillatuh, Vol.6, 611, quoted in Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 200.

    [10] “Retract,” Merriam-Webster, accessed December 8, 2018, https://www.merriam-webster.com/dictionary/retract.

    [11] Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 367.

    [12] Ibid, 368.

    [13] Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 390-391.

    [14] Wahbah al-Zuhaili, Op. cit., Vol. 6, 388, cited in Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 391.

    [15] Ahmad al-Hasri, ‘Ilmu al-Qada’ (Cairo, 1980), Vol. 2, 383, cited in Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 391.

    [16] The Mejelle, Article 1588, http://legal.pipa.ps/files/server/ENG%20Ottoman%20Majalle%20(Civil%20Law).pdf.

    [17] The Mejelle, Article 79, http://legal.pipa.ps/files/server/ENG%20Ottoman%20Majalle%20(Civil%20Law).pdf.

    [19] Anwarullah, Principles of Evidence in Islam, 100, cited in Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 394.

    [20] See footnote 680 in Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 395-396.

    [21] Hamid Jusoh, Islamic Law of Evidence: Sources and Its Applicability with Special Reference to the Practice in Malaysia and Pakistan (Selangor, 2001), vol. 1, 396.

    [22] Ibid, 395.