Does a judge have the authority to accept testimony regarding the wickedness (fisq) of witnesses, either before or after rendering a judgment?
General Chapter
Al-Mughni
Book of Judicial Rulings
Primary text
Abu Hanifa states that a judge must not hear testimony concerning the wickedness of witnesses, neither before nor after the ruling. If the defendant challenges the validity of the evidence by alleging the witnesses' wickedness, the defendant's subsequent testimony regarding their wickedness is not accepted. The judge should only inquire about the witnesses, but no independent testimony regarding their wickedness is accepted because wickedness does not pertain to anyone's right, meaning a suit or testimony cannot be established concerning it. However, the established view refutes this by stating that wickedness directly affects the rights of the defendant by preventing a judgment against him before the ruling and justifying its nullification afterward, thus preventing unjust seizure of property or punishment. Therefore, testimony and suit regarding wickedness must be accepted, similar to an endorsement (tazkiyah), to prevent injustice toward the defendant, as only the defendant's witnesses might know the hidden wickedness of the plaintiff's witnesses.
Supporting text
The view that wickedness does not pertain to anyone's right is refuted because the defendant's right is directly affected by the wickedness of the witnesses in preventing a judgment against him before the ruling and justifying its nullification afterward, thereby preventing unjust seizure of property or punishment. Therefore, testimony and suit regarding wickedness must be accepted, similar to an endorsement (tazkiyah), to prevent injustice toward the defendant.