Burden and standard of proof in zina offence

Abstract

The crime of zina which is classified under hudud offence requires a very strict method, burden and standard of proof. The offence has somehow resulted in a bulk of studies and researches since several methods of proof other than what have been unanimated by classical Islamic jurists have been discovered. Issues arise whether such methods of proof would somehow affect the implementation of hadd punishment. This dissertation is intended to explore into the legal rules regarding methods of proof required to establish the offence of zina including the use of testimony (shahadah), confession (iqrar) and circumstantial evidence (qarinah) as well as some views from classical and modern jurists. Since proof is an important element to the administration of justice, this dissertation will also explain the concept of burden of proof under Islamic law of evidence peculiarly in criminal matters and to compare with the common law. Unlike common law, the offence of zina requires exclusive rules regarding its standard of proof that is proof beyond shadow of doubt or certainty. Hence, question arises whether evidence which could not reach the high degree of certainty would be admissible to convice zina offence. The principle of eliminating doubt to convice hadd of zina is believed as a very strict rule which results another issue whether ta`zir could be as an alternative when hadd punishment could not be implemented. Thus, this dissertation is also trying to explore the source under Islamic legal rules and several currents issues pertaining to the concept of burden and standard of proof required in zina offence.