The Value of Female Witnesses
D. The Value of Female Witnesses
One of the crucial problems in the implementation of hudūd is the value of female witness which is ignored, or is only valued as half the value of male witness. This understanding is based on Qur’anic verse. al-Baqarah, 2:282.
O you who have believed, when you contract a debt for a specified term, write it down. And let a scribe write [it] between you in justice. Let no scribe refuse to write as Allah has taught him. So let him write and let the one who has the obligation dictate. And let him fear Allah, his Lord, and not leave anything out of it. But if the one who has the obligation is of limited understanding or weak or unable to dictate himself, then let his guardian dictate in justice. And bring to witness two witnesses from among your men. And if there are not two men [available], then a man and two women from those whom you accept as witnesses - so that if one of the women errs, then the other can remind her. And let not the witnesses refuse when they are called upon. And do not be [too] weary to write it, whether it is small or large, for its [specified] term. That is more just in the sight of Allah and stronger as evidence and more likely to prevent doubt between you, except when it is an immediate transaction which you conduct among yourselves. For [then] there is no blame upon you if you do not write it. And take witnesses when you conclude a contract. Let no scribe be harmed or any witness. For if you do so, indeed, it is [grave] disobedience in you. And fear Allah. And Allah teaches you. And Allah is Knowing of all things.
Generally the classical exegetes accepted the value of female witness in this verse as the truth that can be accepted, not to be questioned. The awareness that the word of Allah is beyond time and place has significant influence in this way of understanding. Therefore, the explanation is more directed to answer the question on whether the value of female witness should be half the value of male witness. According to al-Jurjawi, in facing the problem, men tend to use their thinking, while women tend to use emotion. The eagerness of women is weak, their thinking is rarely used to solve the complicated problems, especially when they are annoyed, angry, happy or sad because of small matter, while men are strong, capable, resilient and patient in facing difficulties. They do not decide an affair only after their careful thinking. The affair of human relation ( mu’amalah) is an issue which needs careful thinking more than emotion. A witness in mu’amalah also acts as an arbitrator among those who have made a contract if they have any disputes in the future. 227
227 Ali Ahmad aj-Jurjawi, Hikmatu at-Tasyri’ wa Falsafatuhu (Jeddah: al-Haramain, t.th.), j.1, h.162-163, j.2, h.150-154.
According to al-Baidawi, in the cases of non-cash loan receivables, the witness for writing the contract about the time of payment is two Muslim men who are matured and fair. Two women can only play as witnesses if there is no male witness, and the criteria for female witness are also the same with that of a male: she must be a Muslim, matured and fair. As al-Jurjawi, al-Baidawi also mentions six excellences of male witness in compare with the female witness: (1) Allah creates the origin and its branch, just like the creation of men and women, 2) women are created from the male rib, 3) women are lack of religion, 4) women are lack of reason, 5) women receive less inheritance than men, and 6) women are lack of strength. 228 Similar with al-Jurjawi and al-Baidawi, Ibnu Kasir argues that the value of female witness is half that of male because of women’s lack of reason ( bi nuqsani aqlihinna) and because it is men who usually become witness. 229
Ibnu Kasir relates the values of female witness with the Arab society tradition in which men become witness in various aspects. Qur’anic verse al- Baqarah, 2:282 is indeed about the tradition of Arab society as described by the narration, which becomes the background of the revelation of the verse. Adz-Dzahabi writes that when the Messenger pbuh arrived at Madinah for the first time, the indigenous people there usually leased their plantation for the duration of one, two or three years. Therefore the Messenger pbuh told people:”Whoever leases something, it is better to have the exact amount and the exact period.” On this issue, Allah Swt revealed the verse al-Baqarah: 282 as an instruction that when people are involved in loan receivables ( muamalah) in certain period of time, it is better to write a contract and this contract writing is attended by witness to prevent any dispute in the future. 230
Unlike classical scholars, contemporary Muslim scholars regard female witness in the verse as the social function of women at that time. Asghar Ali Engineer argues that the verse is a contextual verse or the verse which is
228 Al-Baidawi, Al-Anwar al-Tanzil wa Asrar al-Ta’wil (Beirut : Dar al-Fikr, t.th), j. 1, p. 270. 229 Ibnu Kasir, Tafsir Al-Qur’an al-‘Azim (Beirut: Dar al-Kutub al-‘Ilmiyyah, 1994), j.1, h.308. 230 Muhammad Husain al-Dzahabi, At-Tafsir wa al-Mufassirun, (Mesir: Dar al-Kutub hadisah,
1976), h.70-71.
related with the context of revelation, not a normative verse. According to him, even though the verse suggests to have two female witnesses to replace a male witness, only one of the two women becomes the witness, while another one reminds the female witness if she is in doubth in giving her testimony (because of her lack of experience on financial matters). The Qur’an does not intend to set the norm that on the issue of witness, two women are regarded as the same with one man. If this is so, then whenever there is a need for witness, the Qur’an would treat the women in the same way. However, there are seven verses in the Qur’an on witness, but none of the verses require two female witnesses to replace one male witness as written in the Qur’anic verse al-Baqarah, 2:282. These verses are: Qur’anic verse al-Maidah, 5:106 and 107 (witnesses in writing a will), an-Nisa, 4:15 (witnesses of zina), an-Nur,
24: 4 ( zina), 6 (zina accusation [qadzaf]), 8 (li’an), and ath-Thalaq, 65:2 (divorce and remarriage). 231
Similar with Engineer, Amina Wadud argues that according to the sentence structure of the verse, the two women in the verse do not become witness because another woman is instructed to “remind” the other woman. She acts as collaborator. Thus, even though there are two women, they have different functions. This is especially for financial contract, not applicable for general matters, or not applicable for other matters. 232 Fazlur Rahman argues that the social development in the society allows women to be involved in various public affairs, including to gain higher education, to work in various sectors, and even become the head of the state. Therefore, the opinion which states that women are forgetful so that the value of their testimony is half of that of men needs to be reconsidered. 233
Even though the verse which explicitly states that the value of female witness is half that of male witness is only one among other eight verses on witness, this one verse represents Arabic tradition in treating women.
231 Engineer, Hak-Hak Perempuan dalam Islam, p. 98-107 232 Amina Wadud, Qur’an and Woman: Rereading the Sacred Text from a Woman’s Perspective
(New York: Oxford University Press, 1999), pp. 85. 233 Fazlur Rahman, Tema Pokok Al-Qur’an, trans. Anas Mahyuddin (Bandung: Pustaka,
1983), pp. 70-71 .
Therefore, the stipulation of the value of female witness is subordinate to that of male witness in all cases, the prohibition of women to become the witness in the criminal cases for example, reflect the Arabic tradition which is intended to be changed by the Qur’an with the new value of the Qur’an: that is to acknowledge that the value of female witness is the same with male witness, something which is acceptable in the current era.