Alhassanain(p) Network for Heritage and Islamic Thought

The Rights of Prisoners According To Islamic Teachings

This book is on the issues of imprisonment and related matters, the author discusses in some details the disadvantages of imprisonments and its harmful effects, and therefore the need to reduce the number of prisoners to a minimum, and eventually to eliminate prisons altogether.

Author(s): Sayyid Muhammad Sadiq Al Shirazi

Publisher(s): Create Space Independent Publishing Platform

Table of Contents

Foreword 4

Chapter 1: Freedom, a Fundamental Principle 6

The rights of Prisoners According to Islamic Teachings 7

Notes 9

Chapter 2: Torture and Prisons Must Be Purged 10

Torture is an un-Islamic Phenomenon 10

Means of discovering the truth 10

Psycho analysis 11

The rule of repetition and doubt 11

Twist and Turn 12

Probing and Examination 12

Insight and Astuteness 13

Exposing Torture and Ill Treatment 14

No to Prisons and Detention Centres 14

The Disadvantages of Prisons 15

Political Harm 15

Social Harm 16

Economic Harm 16

Educational Harm 16

Health Harm 16

Other harmful effects of imprisonment 17

Notes 17

Chapter 3: Islamic Penal Law - Criteria For Implementation 19

Introduction 19

References of Circumstance 22

Validity of the Offence under Islamic Law 25

Notes 29

Chapter 4: Rights of a Prisoner 31

Rights of a Prisoner 31

Marriage 31

Witness 31

Writing, Teaching, Lecturing 31

Skills 31

Sport 32

Hobbies 32

Family visits 32

Segregation 32

Health and Hygiene 32

Food and Drink 32

Students of the prisoner 33

Psychological well-being 33

Women prisoners 33

Inspector of prisons 33

Chastisement of prisoners 34

Offence of prisoner 34

The right to a defence lawyer 34

Amongst prisoner's rights 34

Prison rules 34

Practice of Religion 35

Religious rites and festivals 35

Choice of prison location 35

Prisoner's possession 36

Informing next of kin 36

The rights of Prisoners according to Islamic teachings 36

Men and women prisons 36

Insanity of prisoner 36

Studying 36

Employment inside prison 37

Rights of a Prisoner 37

Labour law 37

Equal treatment 37

The insane 37

Prison building 37

Prison staff 37

Expert services 38

Rights of a Prisoner 38

After release 38

Prisoner rights group 38

Prisoner's future 38

Prison categories 38

Provisional Detention 39

Criminal Imprisonment 39

Traditions and customs of the new judge 39

Some aspects of the duties of a judge 40

Notes 41

Chapter 5: Rulings 42

Imprisonment 42

The Rights of Prisoners According to Islamic Teachings 42

Confinement 42

Rulings 43

Torture 43

Fasting and hunger strike 44

Notes 44

The Author 45

Foreword

As a complete system of teaching for life, Islam addresses every aspect of life to guide mankind to the best possible solution in every respect. Islam addresses issues of concern for this life and beyond.

Although the teachings of Islam are devised to prepare mankind for the eternal life of the hereafter, it does not neglect man's need for guidance during the brief cycle of life in this world. Islam presents detailed teachings or general guidance for man that is in harmony with his nature, at various stages of his life, and for every situation that he comes across.

On the issue of prison and a prisoner's right therefore, Islam has its own philosophy with regard to the question of imprisonment and the prison system. In general, Islam considers imprisonment as a case of last resort, and in many circumstances imprisonment is not used as a punishment. However, there are a number of offences for which imprisonment has been prescribed.

Any chastisement prescribed by Islamic teachings may only be implemented if all the criteria and preconditions prescribed by those teachings are also met. If any of the criteria is not met, then the prescribed punishment may not be executed. In that condition a judge would consider a lesser punishment to reprimand the offender, as seen fit.

For example, the prescribed punishment for theft could ultimately be amputation of parts of the fingers. However, the author, the most eminent authority on Islam in recent times, cites more than forty conditions, all of which must be met simultaneously, if this punishment were to be carried out; a requirement that is practically almost impossible to meet today.

One of these criteria is that a true Islamic system of government has been implemented in all aspects of life and society, politics and economics, etc. Failing that, Islamic teachings indicate, the prescribed punishment may never be carried out, and a lesser deterrent, if at all, may be considered. Today therefore, when none of the Muslim countries around the world has implemented a true Islamic system of government, this punishment, or any other punishment prescribed by Islam, may not be executed for such reasons as the above-mentioned.

On the issue of imprisonment and related matters, in the first chapter of this book the author addresses the fundamental nature of freedom, and henceforth highlights the harmful effects of imprisonment on the individual concerned, and consequently on the community as a whole.

The rights of prisoners according to Islamic teachings The author then goes on to discuss in some details the disadvantages of imprisonments and its harmful effects, and therefore the need to reduce the number of prisoners to a minimum, and eventually to eliminate prisons altogether.

In this chapter the author also outlines some of the offences that would lead to imprisonment under an Islamic system, and cites cases to demonstrate the attitude and role the Islamic ruler should have towards offence; that is to try to identify issues, or circumstances that would allow him to waive the punishments in any particular case.

In the second chapter, the author addresses the issue of torture in general, and the mental and physical ill treatment that a prisoner is subjected to while in detention under the pretext of interrogation and extracting confession from a detainee or a suspect.

Not only such a confession is totally invalid in an Islamic court of law, but the author decrees that even a wilful confession to be invalid if that confession is made while in detention.

In the third chapter, the author discusses in some detail, the issue of the Islamic penal code, its categories, and in particular the pre-conditions and the criteria that must be met, before any Islamic punishment may be executed in accordance with the Shari'ah.

In the fourth chapter of the book, the author addresses the issue of the rights of a prisoner, and his freedom to engage in various activities ranging from commercial activities to intellectual projects. In the final chapter of this work, a number of Fatwa or Islamic rulings are included concerning imprisonment, detention, torture, and the validity of a confession of a suspect.

This work would be of particular interest to those who are associated or involved with prisoners and prisons in general. Human rights activists would also find this work of particular interest.

Z. Olyabek

September 2002

Chapter 1: Freedom, a Fundamental Principle

Chapter 1: Freedom, a Fundamental Principle1

Freedom is a fundamental principle in mankind, and therefore a suspect may under no circumstances be detained before conviction, except in cases where the probability of harm to the individual concerned would be greater than that of detention. In such circumstances it is permissible to detain the individual on the basis of priority of the urgent issues involved, and it is established that 'urgent issues' are evaluated on their merits ...

On the same basis it is permitted to 'imprison' the suspect to protect him from the mob, that is, if in an emergency situation it becomes necessary to protect the life of the suspect, it is permitted to imprison him - for a specific period, if this proves to be the only option. This (permission) is based on the principle of priorities, which is referred to by reported hadith as well as the jurisprudential discussions presented by the author in relevant publications. Some of the reported hadith in this respect is outlined below:

Al-Sakouni narrates from Imam Saadiq (A),

“The Prophet (S) used to detain a murder suspect for six days, if the guardians of the victim produced evidence of murder (the detainee would be prosecuted), otherwise the detainee would be released.”2 Imam Ali (A) is reported as saying;

“No detention for suspicion except for blood (i.e. murder), and detention after the truth has become known (about the innocence of the suspect) is oppression.”3 Imam Ali (A) is reported as saying,

“I do not apprehend on (the basis of) accusation, and do not punish on (the basis of) suspicion, and I do not fight except he who fights me4 .” On the case of the insurgency of Khrit bin Rashid, from the tribe of Bani Najiyah, against Imam Ali (A), Abdullah bin Qa'een protested to Imam Ali (A) as to why he did not seek to detain him, saying “O Amir-ul- Mu'minin why do you not detain him now?”

He (A) replied “If we were The rights of prisoners according to Islamic teachings to do that to anyone (who is accused or suspected), the prisons would fill up with such people, and I do not see it in me that I could attack, detain, or punish them unless they wage war against us (who would be dealt with accordingly)5 .

It is imperative that imprisonment, bar the exceptional circumstances as defined in Islam, must be avoided by all means, for the substantial harm it entails:

Economic harm; in this aspect, the prisoner stops his normal occupational activity and his expenses must be met by the treasury, which is that of the people. In addition there is the added cost of running the prison and its staff. Therefore the economic cost of imprisoning an individual is three fold; one the cost of stopping his labour/occupational activity, two the cost of his maintenance during his imprisonment, and three the cost of running the prison system.

Educational harm; where the prisoner is prevented from the education he would - normally - receive if he were free. Political harm; where he would not - normally - be able to take part in the political maturity, either for himself or for others. Social harm; where his family may end up being displaced, which in turn causes even more social harm.

Personal moral harm; where the individual normally develops (various) complexes, which will be reflected within the prison and without.

Family moral harm; where his imprisonment could lead to the detriment of family moral values - the wife and the children - in the absence of its breadwinner.

Construction harm; when the builder or the civil engineer is imprisoned.

Health harm; when a physician or other medical workers are imprisoned. Crime harm; where the criminal prisoner teaches the tricks of his trade to other prisoners, such that when a prisoner leaves the prison he would disseminate his newly acquired knowledge across the society at large.

Other harms; such as the destruction of the sense of responsibility in the prisoner. For one usually feels the restrain and the gravity of committing an offence, and if he were imprisoned, he would know that people would see him as an offender and a criminal, and this would reduce the gravity of committing an offence, and would gradually not see himself as responsible, etc.

Furthermore, it is imperative for one who is being imprisoned or punished, that he and his family are not exposed unnecessarily, or more than that specified in the Islamic law, for a Muslim may not be insulted, degraded, terrorised or humiliated, all of which are outside the bounds of Islamic Shari'ah. There are no grounds for exceeding the specified punishment framework.

For example if a woman committed adultery and she admitted to that, or it was clearly proven according to Shari'ah criteria6 , if it were declared that she belonged to certain (reputable) family and the execution of the prescribed punishment would mean the loss of honour of the family in the eyes of the society, then the punishment may not be carried out. And this is applicable to all offences.

[More details about the harms of imprisonment in the following chapter.] For these reasons it is against Islamic law to publish or expose one's secrets of private life through the mass media, such as radio, TV, press and such like, particularly if one was coerced to admit something, which is illegal in two ways.

It is reported from Imam Ali (A): “He who exposes the secret or privacy of his brother, the scandals of his household would be exposed.”7

Also reported from Imam Ali (A): “The most evil of the people is he who does not forgive the fault of others and does not keep their secret8 .”

Adultery can only proved if one comes forward and freely admits it - three times, or if the act is witnessed by four adult witnesses.

The rights of Prisoners According to Islamic Teachings

Prophet Muhammad (S) said,

“Do not pursue the faults of the Muslims, for he who pursues the faults of the Muslims, Allah would pursue his faults, and he who is pursued by Allah, (surely) would be scandalised9 .” Prophet Muhammad (S) is also quoted as saying, “Allah Almighty has said, “He has opposed me who degrades my faithful servant10 .”

It is preferred for the offender himself, as well as he who witnesses the offence not to expose the event if possible, unless there is other more important priorities involved. Imam Saadiq (A) is reported as saying,

“A man came to Prophet Muhammad (S) and said 'I have committed adultery', then the Prophet (S) said “if he had kept quiet about it and had repented (to Allah sincerely), it would have been better for him11 .

In another report, a man came to Imam Ali (A) and said, 'O Amir-ul- Mu'minin! I have committed adultery, so purify me.' Imam Ali (A) turned his face away from him, and told the man to sit down. Imam Ali (A) then turned to the people (who were sitting around him) and said, “Is any of you incapable to shield upon himself, just as Allah has concealed upon him?”

The man got up and said, 'O Amir-ul-Mu'minin! I have committed adultery, so purify me.' Imam Ali (A) said, “What makes you say this?” The man replied, '(I am) seeking purification (from this sin).' Imam Ali (A) said, “And what is a better purification than repentance?” Imam Ali (A) then turned to his companions to talk to them when the man got up and said, 'O Amir-ul-Mu'minin! I have committed adultery, so purify me.'

Imam Ali (A) asked the man, “Do you not read the Qur'an?” He said 'yes'. The Imam said, “Read”, and the man read the Qur'an correctly. The Imam (A) asked the man if he knew his obligations towards Allah in terms of prayers and alms. He said 'yes'.

Ghurar al-Hikam wa Dorar al-Kalam, p 245. This book is a collection of the sayings of the first successor of the Prophet Muhammad (S) as appointed by the prophet on specific instructions from Allah Almighty, Imam Ali (A).

The Imam (A) asked him a few questions to which he replied correctly. Imam Ali (A) then asked him if he suffered from any illness, or ache in his head or pain in his body, or if he has any anxiety. The man replied negative. Imam Ali (A) then said to him,

“Woe unto you! Go away until we ask others about you (to seek their impression of you), just as we interrogated you in public, for if you do not come back to us, we would not pursue you12 .”

In another case, it is reported that a man came to Imam Ali (A) and admitted four times that he had committed adultery. The Imam (A) said to (his assistant) Qanbar to keep the man, and angrily said, “How repulsive it is for any of you to come forward with some of these indecent acts, exposing himself in public. Why could one not repent in his house? By Allah, if he were to sincerely repent, between himself and Allah, that would have been better than I execute the Hadd upon him13 .”

In this hadith Imam Ali (A) is telling the man that the essence is that if one committed a sin, one should regret that, repent, and seek forgiveness from Allah Almighty, and now that Allah has kept that sin a secret, do not publicise it and at the same time sincerely repent to Allah. Imam Ali (A) is telling the man that if he has an honourable reputation in the society, i.e. not known for indulging in sinful acts, then the Imam would not seek to publicise his sins and jeopardise his dignity if the man repents from his deed.

Notes

1. This chapter is taken from the author’s al-Fiqh series, volume 101, “The Islamic Government”, pp 197-203.

2. Al-Kafi, vol. 7, p 370 3Da'a'em al-Islam, vol. 2, p 539 4Al-Gharat, p 251

3. This chapter is taken from the author's al-Fiqh series, volume 101, “The Islamic Government”, pp 197-203.

4. Al-Gharat, p 251

5. Al-Gharat, p 223

6. Adultery can only proven if one comes forward and freely admits it – three times, or if the act is witnessed by four adult witnesses.

7. Kashf al-Ghummah, vol. 2, p 157, Majmou'at-Waram, vol. 2, p 39, Tuhaful-'Oquol, pp 88 & 93, Bihar al-Anwar, vol. 72, p 321

8. Ghurar al-Hikam wa Dorar al-Kalam, p 245. This book is a collection of the sayings of the first successor of the Prophet Muhammad (S) as appointed by the prophet on specific instructions from Allah Almighty, Imam Ali (A).

9. Al-Kafi, vol. 2, p 355, hadith 4

10. Al-Kafi, vol. 2, p 351, hadith 6

11. Al-Tahdheeb, vol. 10, p 8, hadith 22

12. 'Man La Yahdharah-ul-Faqih', vol. 4, page 31, section 2, hadith # 5017.

13. Al-Kafi, vol. 7, p 188, hadith 3