Özet:

In Islamic law, statutory evidence system has been adopted and hence, which evidence under which conditions could be accepted as a tool for judicial proof has been identified in the doctrine to a large extent. Whether or not an allegation as source of a dispute at the court is rightful and if the related right will be recognized or not depend on its testification with this specific evidence. On top of the evidence tools besides the defendant’s own confession (iqrar) come al-bayyina (evidence which was set as an obligation of prosecution in a related hadith and yamin (oath) which is an obligation of the defense. The term al-bayyina which is interpreted as “all kinds of tools for clear and conclusive proof” today was directly associated with the testifier in most of the fiqh sources of pre-modern era. This phenomenon is a valuable sign which helps us identify the critical role of testimony in Islamic legal thought and practice as well as figuring out how often it was applied by judicial processes carried out by qadis (judges) in the mentioned period. Due to the importance of the issue; proof of testimony, it’s necessity, minimum number of testifiers (quorum) varying according to the type of the case, qualifications of the testifier for a valid testimony, court investigation of testifiers (tazkiyah and ta‘dil), perjury, refusing to testify etc. have all been elaborated in both fiqh books with general context as well as reference books focusing specifically on judicial law. Another subject mentioned in the fiqh literature in this context happens to be “naql al-shahada” (the transfer of testimony). Sometimes “shahada al-naql” is also used as a replacement term for naql al-shahada which is generally reviewed under “al-shahadah ala al-shahadah” topic in fiqh books. Naql al-shahada which is also named as “indirect testimony” in Turkish literature can be defined as “delivering the testimony of someone who cannot be present at the court due to some specific excuses through indirect testifiers”. The excuses mentioned can be named as death, sickness, distance, getting lost or being imprisoned and security concerns. Those who saw the subject of the case with their own eyes are called “main testifier” while who declare main testifier’s testimony upon their through their permission and request are called “secondary/indirect testifier”. It is known that naql al-shahada practice is an evidence and proof methodology exclusive to Islamic law. Transfer of testimony is supposed to be illicit as per qiyas asthe main testifier is not present at the court and fail to testify personally. However, scholars (fuqaha) considered it permissible (caiz) as it contributed to solution of legal/judicial problems of people by its convenience and served fulfilment idea of justice. While there exist diverse perspectives on the matter, it is generally consensual among scholars that, barring situations related to hudud and qisas, indirect testimony, when provided under specific conditions, invariably culminates in a legal outcome. On the other hand, it seems that qadis who were the most important part of the Ottoman legal and judiciary system were frequently applying this method. Likewise, there are many court case records mentioning transfer of testimony in the qadi registers of 15th and 16th centuries.

Anahtar Kelimeler: