Chapter 3: Islamic Penal Law - Criteria For Implementation
Chapter 3: Islamic Penal Law - Criteria For Implementation
Introduction
It is the responsibility of society that anyone who suffers from any illness, physical or mental, receives the required treatment, even if the individual concerned caused his own illness. Equally, it is the responsibility of society (towards a criminal) to rehabilitate him. Therefore any punishment must be based upon two related issues:
Protecting society from the reoccurrence of crime, Rehabilitating the criminal as far as possible. Muslims use the laws that are based on Islamic teachings, and they may not make laws that are in contradiction to those teachings. The Muslim judge may therefore legislate within the framework of Islamic teachings.
The judge may prescribe the punishments for those offences that have not specifically been outlined in Islamic Shari'ah. He may prescribe the penalties for offences relating to 'secondary' laws, such as traffic regulations. [These regulations are implemented on the basis of the principle “no harm may reach anyone
”]. Also a judge may, for example, prescribe the penalties for the employee who is in breach of his employment contract.
According to Islamic law, punishment may be classified into two groups:
Those defined by Islamic law, known as Hadd [plural Hodud]
. Those not specifically defined by Islamic law. This category of punishment is referred to as Ta'zir. A judge may prescribe the Ta'zir punishment either for offences for which no specific punishment has been prescribed in Islamic law (such as defrauding, e.g. giving short measure), or for secondary offences such as traffic law violation. The rights of prisoners according to Islamic teachings prescription of the Ta'zir punishment is made on the basis of the criteria detailed in Islamic law.
The author has detailed in some other of his works
that those acts that are defined as 'offences' under Islamic law are far less than those defined under man-made law found in western democracies. The ratio is 1 to 100 or even less. This is because of the vast number of freedoms that are naturally available under Islamic law (but are suppressed under man-made laws). Only those acts are punishable if they are recognised as offences under Islamic law. Furthermore, Islamic punishment for 'recognised' offences can only be implemented under an Islamic system, as discussed in the book “The Process of Change
.”
Otherwise how can a thief be expected not to steal when he is hungry and cannot find the means of feeding himself? Or how can one who commits illegal sex be expected not to do so when he cannot afford to marry? Allah states in the Qur'an:
{On no soul does Allah place a burden greater than it can bear
.}
{Allah puts no burden on any person beyond what He has given him
.}
{Our Lord! Lay not on us a burden greater than we have strength to bear
.}
Therefore as far as the offences that take place under non-Islamic environments are concerned; no punishment may be carried for some of them, [and some form of punishment, lesser than the prescribed ones - Hadd - may be handed down for others]. An example of the first category is the case of stealing and eating others' food during a famine. Another example is the case of the woman who was impelled to commit adultery. [In the case of the second category,] offences may carry some form of preventative punishment as seen fit by the judge. This is in cases where an individual had the opportunity to refrain from committing an offence, or could have committed a lesser offence when he was compelled to do so in a given situation.
Under an Islamic system, the government provides the Islamic freedoms such as those in agriculture, manufacturing, trade, education, and freedom in procuring and utilising the earth and its resources. Under such a system, one is able to earn his living honourably.
He is able to provide food and shelter for himself. He is able to marry and provide for his family. Those who are unable to provide for themselves are supported by the public fund. The (social) environment upholds the moral and ethical conducts and does not corrupt the individual through encouraging seduction and promiscuity, consumption of alcohol, broadcasting sex programs, etc. (hence) luring the individual to corruption in various forms. Workers earn decent levels of income and their rights are not violated.
The environment should not be such that workers are forced to work day and night only to get less than their right, as detailed in the book, Economics
. It is under such a system, which is positive in one way and negative in another (i.e. the freedom of many rights and the denial of some others), that the religious law considers the thief guilty. It considers those who gamble, commit adultery as offenders. They will then be dealt with according to the prescribed punishments.
However, if the law of the land legalises the production, sale and serving of alcohol, prostitution, homosexuality, and other immoral conducts, then those who engage in such conducts may not be prosecuted under Islamic law. If one is unable to earn a living and subsequently resorts to either stealing or other immoral means of earning, such as prostitution, in such cases Islamic punishment may not be carried out. Otherwise it will be against the teachings of the Qur'an, the Sunnah
, the consensus of the scholars, and reason:
The Holy Qur'an states {except under compulsion of necessity
}. The Prophet Muhammad (S) is quoted as saying; “(in) nine cases my people would be excused
.”
Doesn't the consensus of the scholars agree with this? Doesn't reason point to the necessity of the duties and obligations being humane? In addition to the general principles which makes it evident that Islam is a religion or a “set of teachings” to facilitate and make life easy for mankind, Allah states, {Allah intends every facility for you. He does not want to put you to difficulties
.}
Imam Sadiq alayhis-salam states, “Our followers are in a greater opportunity (facility) than what is between the heaven and the earth
.” However, the conduct of the ignorant and the greedy individuals in power reduces and narrows down, if not eliminates, the opportunities available to mankind. The contradictions of those who claim to be Islamic governments may be as follows:
under repressive and un-Islamic laws, and in inappropriate environments (from the Islamic point of view) they implement the punishments prescribed for a truly Islamic system
. This (policy) presents Islam as a repulsive executioner, which drives people away from Islam.
Secondly, they carry out those punishments while preconditions for their implementation are not met, as prescribed in jurisprudence texts
.
Thirdly they go further to prescribe other forms of punishments, penalties, as well as torture and imprisonment (under the banner of Islam) whereas there is no evidence for such measures anywhere in the four sources
of Islamic jurisprudence, but in fact the four sources are totally against such measures.
Such conducts by governments who carry 'Islamic' labels have depicted Islam as a brutal and oppressive regime. Islamic penal law - criteria for implementation Criteria for executing the penal law Penal laws may only be executed if all pre-requisites and criteria for implementing the Islamic penal system are met, otherwise the pre-defined punishment - the Hadd - may not be carried out. Furthermore, all aspects of the social environment, the offender, and the offence must be taken into account before it is permissible to execute the Islamic penal code. Some of those criteria and considerations are:
Correctness and validity of the ruling government, Circumstances of the offender and the offence, Validity of the offence under Islamic law. Correctness and validity of Government A corrupt government lures the people into crime, as the Arabic saying goes: “people follow the conduct of their leaders”.
Religious scholars have pointed out that the criterion for the leadership of government is being a Marje' (religious authority), since the Marje' is the representative of the Imam al-Mahdi alayhis-salam
. The author has also discussed the necessity of establishing a Council for religious authorities, if there were more than one Marje' which is often the case
. The criteria for the Marje' are such aspects as knowledge, expertise, ability, faith, and being a practising Muslim, as detailed in the book of Taqleed
. Therefore the government may only be led by those who are sincere and qualified to do so. Allah states in the Qur'an:
{O you who believe! Why say you that which you do not? Grievously odious is it in the sight of Allah that you say that which you do not
.} Furthermore, Allah states in the Qur'an:
{My Promise is not within the reach of evil-doers
}, See Islamic system of government by the author for more details. Here the author refers to the 12th Imam who has been appointed by the Prophet (S), on instructions from Allah, to lead the Muslims after the Prophet (S). alayhis-salam (A). This clearly confirms that unjust and corrupt rulers may never stand to represent the system set out in Islamic teachings.
A statement in this regard from the Prophet (S) declares, “Curse be upon those who order others to do good but do not practice it themselves, and (upon) those who preach others to refrain from evil while they follow it
.”
In one event, someone saw the caliph cutting off the hands of a thief and said, “the overt thief cuts (the hand of) the covert thief”. Circumstances of the offender and the offence The act of the offence, as an act does not warrant punishment until it is associated with the circumstance of offence.
Some of the criteria for the offender to receive punishment are: adolescence, sound mind, consciousness, choice, comprehension and that he is not compelled by any means
, to commit that offence. Otherwise, the underage, the insane, the non-conscious such as the sleepwalker and the one under the influence of alcohol, the compelled, the coerced, the one ignorant of the law and occasionally even the one who knows the law, may not be punished as detailed in jurisprudence texts.
There are exceptional cases, such as an underage offender who is able to distinguish, in which case the offender is disciplined in some cases. Also punishment will be waived in cases where on the basis of “questions of priorities” offences are committed. For example, in the case of a ship being in an imminent danger of sinking the cargo is dumped and, as in the case of the prophet Jonah, even some of the passengers may be thrown overboard.
(In this event, the prophet Jonah was thrown overboard, as recorded in history
.) Another example is, damaging a ship in order to prevent it from being confiscated by pirates or despot authorities
. Some modern schools of thought refer to what we have discussed here on the personal aspect (of the individual who commits the crime) alongside the crime itself. Aspects of the crime and the person are not considered alone, but they are considered together. On this basis, two sets of dossiers are created for each crime. Furthermore the judge should co-operate with experts and relevant organisations such as psychiatrists, social scientists (workers) and charity organisations as a means to eradicate crime.
It is imperative to eliminate crime and not to antagonise the criminal. If the offender committed adultery and s/he does not have a partner due to factors beyond his/her ability, the judge, in co-operation with say, a marriage agency should arrange for the offender to marry. If the offender steals because s/he does not have a job, the employment agency helps the offender to find a job, etc.
There have been many references in the Islamic Shari'ah to the above criterion (circumstances of the offender and of the offence), which in fact deserves the compilation of an entire book. Some of those references are outlined below together with the nature of the consideration.
References of Circumstance
1. A history of good conduct and behaviour waives or reduces the punishment: The Prophet (S) used to waive the punishment against those offenders who generally had had a good code of conduct and behaviour, for example like the case of Hateb (committing an offence) who also had a good history of participating in the battle of Badr.
The poor circumstances that drive the offender to offend: For example the circumstances of Kufa before Imam Ali (A) took office of government
. Therefore Imam Ali (A) pardoned those who had (committed certain offences such as) stealing, adultery or sodomy, etc. and arranged for an adulteress to marry without punishing her, since they had committed those acts in chaotic and lawless circumstances.
If one commits minor offences but avoids major ones: as stated in the holy Qur'an:
2. 3. When Imam Ali (A) took office of government, he did not punish many offenders, if at all, because as a result of the policies of the previous ruler, there was widespread social injustice and deprivation of basic rights in the society.
The rights of prisoners according to Islamic teachings {Those who avoid great sins and shameful deeds, only (falling into) small faults; verily thy Lord is ample in forgiveness
.}.
The circumstances of priorities: On the basis of this principle the Prophet (S) pardoned those who had deserted the battle even though desertion is regarded as a significant offence according to the Qur'an. Juvenile: As it has been reported “deliberate offence of a juvenile is (treated as) a mistake (and therefore unpunishable).
The sick (physically and mentally): where the punishment for the sick is reduced as derived from “And take in thy hand a bundle of (straw)
” and discussed in details in the book of Hudood
Women: Imam Ali (A) ordered (his troops) in Basra
not to confront women, “even if you or your leaders were insulted by them.”
The punishment of the parent: A parent may not be punished or prosecuted by the child. A parent may not be imprisoned for a debt to the child; as reported in the case of a son who complained about his parent to the Prophet (S). In a later debate, the Imam (A) said to the enquirer (about such a case) “Did you ever see (any report that) the Prophet (S) imprisoned the parent for his debt to his son?
” The punishment of the slave is less than that of the free, as stated in the Qur'an:
{ when they are taken in wedlock, if they fall into shame, their punishment is half that for free women. This (permission) is for those among you who fear sin; but is better for you that ye practise self-restraint. And Allah is Oft-Forgiving, Most Merciful
.}
10. The first offence carries less punishment than the second and so on. For example, in the case of hunting during the Hajj pilgrimage (to Makkah), Allah states in the Qur'an:
{O ye who believe! Kill not game while in the Sacred Precincts or in pilgrim garb. If any of you does so intentionally, the compensation is an offering, to the Ka'ba, of a domestic animal equivalent to the one he killed, as adjudged by two just men among you; or by way of compensation, the feeding of the indigent; or its equivalent in fasts; that he may taste of the penalty of his deed. Allah forgives what is past: for repetition Allah will exact from him the penalty. For Allah is Exalted, and Lord of Retribution
.}
11. The severity of punishment is more during 'favourite' circumstances than during 'poor' circumstances, therefore the punishment of the married adulterer is more severe than that of the unmarried one.
12. Compelling circumstances: In such a circumstance Imam Ali (A) waived the punishment against a woman who was compelled to commit adultery.
13. A case of mistake, where, say, a man commits adultery with a woman thinking that she is his wife. For example he may mistake his wife's sister for his wife.
14. Reduced level of punishment for women: For example a woman is not killed if she commits apostasy. The difference between this and the example of a previous case (no. 7) is that the previous case was concerned with Ta'zir punishment and in this case it is concerned with Hadd punishment.
15. Punishment may not be carried out in certain places such as in enemy land, or in the Holy Mosque (in Makkah). For example when someone commits an offence and seeks refuge in a holy mosque.
16. Punishment may not be carried out at certain times, e.g. punishing a thief when there is a famine.
17. Punishment may not be carried out when there is doubt. The Prophet (S) said, “punishments are waived by doubt (or uncertainties).” This concerns any aspect of the case; whether the judge, the witness or the offender.
18. Punishment my not be carried out in extreme weather conditions, i.e. when it is very hot or very cold.
19. “The establishment of an Islamic government annuls whatever preceded it.” as reported from Imam Ridha, (A).
20. “Islam annuls whatever preceded it.” i.e. one may not be punished for offences (committed) before becoming Muslim.
21. “Iman annuls whatever preceded it.”, i.e. one may not be punished for offences committed before guidance to the teachings of Ahl-ul-Bayt
.
22. If one commits a 'good' deed, it annuls a 'bad' one, as stated by some of the scholars of Islamic jurisprudence.
In a report, Imam Sadiq (A) narrates that during the government of Imam Ali (A), a man was brought to him on suspicion of murder. He was found in a derelict place holding a bloodstained knife, and standing next to a slain man in a pool of blood. Imam Ali (A) asked the man “what do you have to say?” The man replied, “I killed him.”
Imam Ali ordered him to be detained. When he was taken away, another man rushed to Imam Ali (A) and said, “I killed the man.” Imam Ali (A) said to the first man “what made you confess to the murder?”
The man replied “I could not have said (otherwise) when these people had seen me with a bloodstained knife in my hand standing next to a slain man in a pool of blood. I admitted this in fear of being beaten to make the confession. In fact I had just slaughtered a sheep nearby. As I needed to pass water I went to that derelict place, where I noticed the murdered man and I went to take a closer look. At that moment these people arrived and saw me at the scene.”
Imam Ali (A) said take these two to (Imam) Hassan (A) and ask him for the ruling for their case. After hearing their stories, Imam Hassan (A) said, tell Amir-ul-Mu'minin (Imam Ali (A)) that: “If he (the second man) killed the man, he also gave life to this man (the first man). Allah the Almighty says (in the Qur'an):
{ And if anyone saved a life, it would be as if he saved the life of the whole people.}
Therefore they both go free and the blood money for the killed man is taken from the public fund (the treasury).
These are some of the many examples that can be found within the Islamic jurisprudence, Teachings of the Prophet (S) and (Islamic) history.
Validity of the Offence under Islamic Law
The third aspect, which must be taken into account if the Islamic penal code were to be carried out, is that the committed act must be regarded as an offence under Islamic law. As mentioned previously, Islam does not consider as an offence, most of what is defined an offence under-man made law.
Anyone who would take an inquisitive look into the courts-of- law and prisons in the democratic countries reveals this truth. Tens of thousands of people who are convicted in the courts-of-law and therefore imprisoned would neither be tried nor imprisoned under an Islamic system.
And if, one day, an Islamic system of government is established, there will be no trace of those courts of law, prisons or the prisoners. We shall mention 100 aspects (of man-made laws) the violation of which results in prosecution, whereas Islam considers all of them to be legal and the human right of the individual whether a Muslim or not.
This is of course in relation to the so-called free and democratic countries. As for the so-called third world countries, which include the Muslim countries, the situation is worse.
These issues, which we shall mention here, are free in Islam but restricted (to various degrees) under man-made laws in that if one violates those restrictions, they will be prosecuted. These issues are freedom
:
• of buying
,
• of selling,
• of loan security,
• of surety,
• to make a deposit (of any kind) for safekeeping,
• to make any new kind of contract not prohibited by Islamic jurisdiction,
• of bail,
• of arbitration or settlement,
• of insurance,
• of forming a partnership,
• The rights of prisoners according to Islamic teachings of investment (Mudahrabah)
,
• of farming investment
,
• of irrigation investment
,
• to procure the land (for any kind of development)
,
• to procure anything permissible
,
• of borrowing,
• of letting,
• to make a power of attorney,
• to make an endowment,
• benevolent or trust fund,
• to give alms to charity,
• to make a gift,
• to make a conditional or unconditional donation,
• of abode,
• of time-limited abode,
• of racing,
• of archery,
• to make a will,
• for men and women to marry either long term or temporarily,
• to divorce,
• to exercise Khol'a
divorce,
• of breast-feeding,
• to travel,
• to settle in a place,
• to open a shop,
• of admission (of guilt),
• to give prizes etc. to the winner of a competition,
• of publishing,
• in the amount of dowry and other particulars of marriage, to practise any desired vocation, to pursue useful knowledge with the result of becoming a doctor, engineer, lawyer, or political or economic expert or otherwise or to become a religious scholar or lecturer or writer etc, of responsibility or promise of oath, of vows,
• to exercise the right of pre-emption, to partake of permitted food in any way desired, to revive the barren land
,
• of inheritance (in that the legacy belongs to the inheritor according to the rules explained by the emissary of Allah - according to Islamic law. The Prophet (S) said: “Whoever dies leaving a family with no guardian then it (their welfare) is my responsibility, and whoever dies leaving wealth behind then it belongs to the heir”.
• This is in contrast to the man-made laws, which can make up to ninety per cent of the legacy to go to the government, as it is well known), to consult any legal judge
, to testify (in front of a particular judge) and seek the testimony of others, to demand blood money, or punishment or to forgive, to practise agriculture,
• to manufacture, of construction, for a person to be without nationality or identity or other formalities that are commonplace now, to publish a newspaper,
• to publish a magazine, to own a radio broadcasting station, to own a television broadcasting station, of action,
• to express an opinion, of meeting or gathering, to form a trade union, to form associations, to form organisations,
• to form a political party, to elect 71, of governorship, of guardianship or of religious leadership, to make or accept an envoy or representation or ambassador to choose any occupation in the civil service,
• from being monitored by the government using spying or phone tapping equipment or by a secret police, to give birth to any number of children,
• for a man to marry up to the limit of four on a permanent basis or more on a temporary basis,
• of beliefs; Allah Almighty has said: 'There is no compulsion in religion', of type of food and drink consumed and clothes worn etc, to come and go from one's house at any time of day or night,
• to build mosques,
• to build schools,
• to build religious centres,
• to build hospitals,
• to build clinics,
• to build publishing houses,
• to build cultural establishments,
• to build hostels and hotels,
• to build maternity units,
• to build old peoples’ houses,
• to set up banks,
• to join a students' union,
• for a person to leave any institution or position of employment, to furnish a house or shop in any way, to select any type of vehicle required, of (any deal or contract) interaction with others, to make or accept a loan,
• to grant the custody of any endowment or entailed estate to anyone, to choose a name for himself or for a place associated with him, to set up poultry farms, to follow the rulings of any competent religious authority desired, to choose any lecturer or preacher desired, to record any contract with any religious scholar.
• There is no age limit for individuals to vote or take part in any election, i.e. children have the right to take part in elections too.
We have referred to some of them in details in the book “The New Order for the World of Faith, Freedom, Prosperity and Peace”.
The one hundred issues mentioned above are free in the Islamic framework but are restricted under man-made law, and violation of these restrictions would result in prosecution and imprisonment. If these one hundred issues are multiplied by the number of violations that could be committed, as an example we shall mention only ten possible violations here, then there would be one thousand cases in which one would be liable to prosecution and imprisonment.
The ten possible violations of the imposed restrictions may be due to the individual's ignorance; forgetfulness; mistake by not applying for a permit, say in time; temptation and encouragement, by a person, to counterfeit it; not thinking it being necessary, from the religious view point, to comply with the restriction; not getting the chance to do it; not setting high priority for it; not being possible for him to do it; being prevented from doing it by government (for any reason); or due to exceptional circumstances e.g. his life being in danger.
So as can be seen from the above, these are one thousand violations in not applying for a permit. Assuming that each of these violations were committed by, say 10 individuals, then there would be ten thousand individuals who would be taken to the courts of law and either imprisoned or fined. All of this is clearly accompanied by wastage of time and money as well as insult to the dignity of the individual. This is in addition to the swelling of bureaucracies and the personnel recruited to administer them, which are in turn a great burden on the public purse (to say the least).
When can prescribed punishments be carried out? Islam only permits the execution of punishment after achieving and securing the health and safety of the society, as seen from Qur'anic verses and Prophetic traditions; for example Allah states:
{and do no mischief on the earth after it has been set in order}
In a hadith
, it is reported, “Government and Hodud are for the Imam of the Muslims
” which means that during the circumstances and time of the presence of the (infallible) Imam of the Muslims the rules of Islam may be executed, and the significance of the presence of the Imam of the Muslims means he is authorised to establish the rule of Islam. It is clear the rule of Islam is only established when all freedoms are made available to the masses and everyone is able to achieve whatever s/he wants in terms of knowledge, wealth, position, etc. according to their ability and expertise, in order to attain a prosperous life befitting their life and dignity.
For if the atmosphere and political/social/economic environment is not Islamic, and if one is not able to obtain enough income to lead a decent life, how can his hand be cut off for stealing? If he cannot find enough money to get married, how can he be lashed (for committing adultery)? If alcohol and decadence is freely available in the country, how can he who indulges in them face the Hadd? Needless to say if one admits to stealing, and gives back the good, his hand would not be cut off.
Henceforth, we have in hadith “(embracing) Islam annuls all previous practices (of the new Muslim
)” and “Iman annuls previous practices
”. It is also applicable, as it can be concluded from other hadith, that “the assumption of the office of government by a just ruler annuls all previous practices (of illegal acts committed by individuals.)”.
This is in addition to the invalidity of coercion that, as the author has mentioned in his works on Islamic jurisprudence, includes to the social/environmental coercion, as well as to coercion on the individual personally. There are also the exceptional circumstances of 'desperation', 'not knowing', and 'not being able
'. Furthermore we have the principle decreed by the Prophet (S),
“The Hudood (punishments) are waived by uncertainties
.”
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Author: Ayatullah Seyyed Muhammad Sadiq Shirazi
