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

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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

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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

of the victim produced evidence of murder (the detainee would be prosecuted), otherwise the detainee would be released.” (1) 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.”(2) 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 me(3).” 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)(4).

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

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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

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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 criteria(1), 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.” (2)

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

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not keep their secret(1).”

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 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 you(1).”

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

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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 him(1).”

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.

his claim is nothing but absurd and nonsense.

For he not only will not attain such aim, but will stand as a criminal before Allah Almighty, and will loose all dignity and credibility in society. There are those who think that if they commit this heinous act, they will go unnoticed, forgetting Allah's promise

{And say: Work, for Allah will observe your work, and His Messenger, and the Believers: and you will be brought back to the Knower of the unseen and the seen, then will He show you the truth of what you did.}(1)

This work constitutes a “Book of Conducts” for Islamist political movements.

Another book in this respect is “The Judgement of Amir-ul-Mu'minin (A)” by Sheikh It may be argued if torture is not exercised against the criminals, they would not admit the truth, and therefore some of the truth will remain hidden, as claimed by despots.

The counter argument is that, first it is better for some of the truth to remain hidden than to violate the human rights of the individual through torture. Secondly, even with torture some of the truth still remains hidden, for some of those tortured, falsely admit to things they have not done to alleviate the torment of torture, which is also hiding the truth!

go now.” As they began to walk away, he said, “You! The murderer, where are you going?” at this moment suddenly one of them unconsciously turned back. The expert ordered him to be detained, and when after questioning, it became apparent that he was the murderer.

Afterwards when the psychoanalyst was asked how he arrived at his conclusion, he said that when he examined the corpse, he noticed traces on the clothing of the deceased, which were indicative of the murderer wiping clean the murder knife, and this is the practice of the butchers when they slaughter a sheep, they wipe clean their knife on the wool of the animal.

The murderer is aware of his crime but he suppresses his conscience to keep it hidden, however occasionally the crime is revealed through a slip of an action if he is caught unawares. Imam Ali (A) is reported as saying; Muhammad Taqi Kadhem al-Tustari, 1321-1410 H, and also the book “Astonishing Judgements” by Ibn Abil-Hadid al-Mo'tazili.

“An individual does not intend something unless it shows in the expressions of his face, or in the slips of his tongue(1).”

my absence.

Now that I have found out about this, I do not seem to have evidence to counter his, to prove that the orchard is mine. Do you think you could do something for me?”

After he satisfied himself of her honesty, governor al-Shefti decided to pursue the matter further. He first approached the individual concerned and said to him that this woman claims the orchard is hers, what do you have to say in this matter? The man refuted the allegation and presented the papers to prove the property belonged to him, along with the signatures of numerous witnesses testifying to that effect. The governor noted the evidence and discharged him.

After a while the governor asked that man “For how much did you buy the orchard?” and the man replied, “I did not buy the property.” . . . Sometime later the governor asked the man “Who gave you this orchard?” and the man replied, “Nobody gave me it.”

On yet another occasion the governor asked the man “Did you inherit it from your father or from someone else?” and the man replied negative. In this way and on different occasions the governor continued to ask the man questions about how came to possess the property, and on each occasion the man answered negatively without realising the consequences of his replies.

The set of questions the governor had asked and the set of answers the man had given proved that he was not the rightful owner of the property. The governor then

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turned to the man said “You denied all possible ways of owning the orchard, so how did you come acquire this orchard?

“The man tried to justify his actions but failed to present a viable case for his claim, and given the replies he had previously given, it became apparent that the documents and the witnesses were all false. The rights of prisoners according to Islamic teachings then ordered the documents to be destroyed, and decreed that the orchard belongs to the woman unless someone else could prove otherwise.

The judge then asked the claimant to go to the tree near which the money was buried and check again. The man said, “What is the use of this action?”

The judge said, “Perhaps the man who had taken the money changed his mind and brought the money back or you might find him there, and take the money from him.” The man was not satisfied with the idea, but did what the judge had asked him to do. A while after the claimant had left the judge said to the friend, “It seems that your friend is taking too long.

“The friend said, “no he is not.” The judge asked “Why not?” the friend said, “Since the tree is too far out from town.” The judge then turned to the friend and said, “You have now admitted you know where the tree is . . . you must now bring forth the money which you had taken dishonestly.” The man had no choice but to give the money to the judge as he inadvertently admitted the whereabouts of the tree.

When the claimant returned, the judge told him, “The only reason I asked you to go to the location of the tree was to give me an opportunity to question him again and extract the admission from him, and my idea worked as I planned, and here is your money.”

the city of Baghdad, and no one saw me doing this. When I returned back to the location to retrieve the money, there was no trace of it.

Al-Buwayhi asked the man, “do you know what kind of tree it was?” The man said, “Yes, it was castor-oil tree.”

Al-Buwayhi then summoned the physicians in Baghdad and asked them if anyone had prescribed roots of castor-oil plant to any of his patients. One of them said he had done so. Al-Buwayhi asked the physician if he knew the patient he prescribed the roots. The physician said the patient was one of the governer's ministers.

Al-Buwayhi summoned the minister concerned and asked if he had been prescribed castor-oil roots by the physician. The minister confirmed this and when asked how he obtained the root, he replied that his servant had acquired it for him. Al-Buwayhi asked for the servant to be summoned.

Al-Buwayhi: “Did you obtain castor-oil roots for the minister?” Servant: “Yes, I did.”

Al-Buwayhi: “Where did you get it from?”

Servant: “from a tree in countryside” Al-Buwayhi: “What is the location of the tree?” The servant gave the precise location of the tree and it became apparent that they were talking about the same tree. In this way the servant admitted to digging under the tree without him realising, and indirectly admitted to taking the money.

Al-Buwayhi said to the servant that you should return the buried money you found under the tree while you were digging for the roots of the tree. When all the

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evidence was out in the open the servant had no choice but to give back the money, except what had already been spent, which the owner forgave. In this way Al-Buwayhi managed to unravel the details of that complicated case in the calm and clever way.

that he come to his house but, as planned, the man refused the offer. Al-Buwayhi asked the man if he needed any help, but the man replied negative. After Al-Buwayhi left the scene, the businessman who had seen what went on between the two came forward and said to the man standing outside his shop, “can you remind me what was the sign of your deposit, since I have forgotten what it was? “

In this way al-Buwayhi managed to help retrieve the man's money from the other (without resorting to brute force or violent means). Needless to say there are countless cases in this respect reported in relevant books, and we only referred to a few of these for the benefit of the reader.

We mentioned in the books al-Hudood(1) and al-Qadhaa'(2) the absolute illegality of torture, and that under no circumstances does it exist in the Islamic system of government. We also mentioned there some of the reported cases and the response and conduct of Prophet Muhammad (S).

One should not think that he could base his approach of uncovering the truth on torture, and then denounce torture when it suits him.

not be allowed to continue.

Torture weakens the determination and the will of the people to topple the despot ruling their country. Imprisonment may not have as much of an effect as torture, people may tolerate imprisonment but not torture, whether physical or mental has detrimental effect on them. This is why many colonial governments, such as Britain, USA, France, Russia, and China, as well as their puppets ruling other countries used torture in order to hold a tight grip on power in Muslim countries.

It is therefore imperative that the Muslims expose the practice of torture in their countries so that this may lead to salvation of the Muslims and their countries. When the government of Gamal Abdul-Nasser fell, the Muslims in Egypt made a limited effort to expose the routine use of torture by his regime, which in turn led to the demise of the notion of nationalism - which was instigated by him - in Egypt as well as in all other Arab countries; the fall of his regime was like that of the tyrannical regime of the Umayyad dynasty,

which fell thirteen centuries ago and its reputation never recovered. In this way means of holding on to power must be removed from the hands of a tyrant ruler. Although torture is still practiced in Egypt, it is to a lesser extent than that which leads to Nasser's disgrace.

to the least amount possible, since not only is it suppression of freedom of the individuals, it is also illegal in the Islamic Shari'ah, for prison is a prime example of manifestation of suppression of freedom.

It is not rational that one who calls for Islam, would act in opposition to Islam on one of its important rulings. Furthermore, prison entails much damage and harm (to the society) for which nothing can compensate, and one may not resort to it except for the most urgent exceptional circumstances, and given the priority of the issue involved. In those cases, the following must be noted:

The number of days imprisoned,

The reason for imprisonment

The severity of imprisonment

The continuation of imprisonment

Who is imprisoned in Islam

We reported in some of our investigations in the Fiqh(1) that those who are imprisoned in Islam are not more than twenty cases(2), all of whom had

The rights of prisoners according to Islamic teachings committed 'real' crime, and not crime as defined by man-made laws.

Needless to say that more than ninety percent of those who are imprisoned in our world today, are sent to jail for violating laws which were laid down by a despot, or by his ministers, or by his revolutionary command council, or in the best case scenario, by freely elected parliament - the like of which does not exist in the Islamic world today. Therefore most of those imprisoned today must not be punished according to Islamic teachings, as Islam does not see their acts as crime. In

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other words they are criminals before the law of man and not necessarily before the law of God.

Needless to say that there have been many occasions when the law devised by freely elected parliaments were later shown to be against the general interest of future generations, and therefore revised or abandoned.

As for the nature of prisons at the time of leaders of Islam, it is reported that Imam Ali (A) used to construct the prison from the leafless branches of palm tree, were it not for the prisoners managing to escape from their cells, the prison construction would have stayed the same.

who betrays something given to him in trust for safe keeping by denying it, negligent physicians, he who does not pay for his wife's expenses, giving false alibi.

Other political disadvantages of imprisonment are: some of the prisoners would train others in crime, corruption, mischief, etc. since, given the extra time they have in prison, each will convey their experience in crimes to other prisoners, and this is seen in most prisons throughout the world.

that income too, which in turn lead the family to poverty and its dire consequences. We have in a hadith, “Poverty is a shame in both worlds(1)” And it is reported that Abu Tharr al-Ghifari(2) said, “it bewilders me how the poor do not revolt against the rich with their swords.”

i.e. in this world and in the hereafter. Bihar al-Anwar, vol. 69, p 30 Abu Dharr al-Ghefari was one of the most prominent and loyal companions of Prophet Muhammad salla-llahu-alayhi-wa-aalih, who was known for his sincerity and honesty. After the death of the Prophet, he also became known for his brave criticism of wrong actions or policies of the government, and for his standing up to tyrant and despot rulers of his time.

harm are the anger a prisoner creates amongst his relatives when they see his state, depression, and anxieties,

the problems caused amongst the prisoners themselves, since they become more irritable when they lose hope of life and aspiration, the spread of drug abuse inside prisons, and its consequences, the spread of gambling inside the prison, since they have much time to kill, causing further anxiety, and hatred.

spend that time and effort for the good of the community. Of course the list for the harmful consequences goes on, which would make a massive book if we were to go into details.

Therefore all such issues must be taken into account when considering the need for imprisonment, and the latter should only be taken up when in absolute emergency and no better alternative is available.

two groups:

Those defined by Islamic law, known as Hadd [plural Hodud](1). 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(2) 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(3).”

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

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can bear(1).}

{Allah puts no burden on any person beyond what He has given him(2).}

{Our Lord! Lay not on us a burden greater than we have strength to bear(3).}

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

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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(1). 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(2), the consensus of the scholars, and reason:

The Holy Qur'an states {except under compulsion of necessity(3)}. The Prophet Muhammad (S) is quoted as saying; “(in) nine cases my people would be excused(4).”

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

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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(1).}

Imam Sadiq alayhis-salam states, “Our followers are in a greater opportunity (facility) than what is between the heaven and the earth(2).” 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(3). 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(4).

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(5) 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

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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(1). 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(2). 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(3). 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(4).} Furthermore, Allah states in the Qur'an:

{My Promise is not within the reach of evil-doers(5)}, See Islamic system of government by the author for more details. Here the

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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(1).”

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(2), 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

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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(1).) Another example is, damaging a ship in order to prevent it from being confiscated by pirates or despot authorities(2). 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

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entire book. Some of those references are outlined below together with the nature of the consideration.

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)(1)” and discussed in details in the book of Hudood(2) Women: Imam Ali (A) ordered (his troops) in Basra 54(3) 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?(4)” 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(5).}

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

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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(1).}

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

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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(1).

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

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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.} (1)

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.

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(1):

• of buying (2),

• 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)(3),

• of farming investment(4),

• of irrigation investment(5),

• to procure the land

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(for any kind of development)(1),

• to procure anything permissible(2),

• 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(3) 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(4),

• 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”.(5)

• This is in contrast to the man-made laws, which can make up to ninety per cent of the

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legacy to go to the government, as it is well known), to consult any legal judge(1), 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

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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;

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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}(1)

In a hadith(2), it is reported, “Government and Hodud are for the Imam of the Muslims(3)” which means that during the circumstances

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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(1))” and “Iman annuls previous practices(2)”. 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

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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(1)'. Furthermore we have the principle decreed by the Prophet (S),

“The Hudood (punishments) are waived by uncertainties(2).”

are on the basis of the principle “people have dominion upon their wealth and their selves(1)”:

The prisoner may choose to engage in all dealings and transactions inside the prison or outside it, personally or through an agent, or by telephone. These dealings could be of any nature such as sale, buying, loan, letting, investments, agriculture, Hawalah (to agree to be responsible for one's debt) and even Kafalah to be a guarantor for someone to be released from custody if possible.

for prisoners.

to use them.

rights of others, (which is the outcome in most cases), when he will be released(1). An example of such cases is the dispute raised by a woman to Imam Ali (A) about her husband. The husband had stopped his sexual activities with her and at the same time refuses to divorce her.

The woman wanted her husband to either resume his sexual life with her or divorce her. It is reported that Imam Ali (A) detained the husband in a shed and fed him on one quarter of his normal diet in order to make him divorce his wife. It is clear that this imposed hardship was to make the husband either resume a normal sexual life with his wife or divorce her, in either case he would be released from detention(2). In another similar report, unless the husband would resume normal (sexual relationship with his wife), he would be imprisoned in an enclosure made of straw, and his food and drink rationed until he divorces (his wife)(3).

women to use, similar to any such facilities outside prison. Similarly if pregnant woman prisoners need medical facilities not available in prison, they must be transferred to maternity hospital to give birth. They must be provided with the care and facilities they need before and after giving birth. Mothers should be allowed to keep their babies and should be provided with the necessary facilities for their babies, and they must have their freedom as if they were outside prison. They should also be allowed to keep in touch with their children outside prison.

any of the prisoners to punish other prisoners (for their wrongdoings). However, teaching and training programmes may be set up by prisoners to teach fellow prisoners in any field of learning, material or spiritual, morals, economics, politics, sociology, etc.

use glass screens to keep the prisoner apart from their visitors, regardless of the prisoner's nationality. If the prisoner wishes to contact a lawyer or charity organisation or any other such institution or individual, the prison authority should facilitate his demand. If the prisoner has been described as dangerous by a judge, then the prison authority may limit his contacts according to the judge's written permission.

pilgrimage those prisoners who are able and wish to go to Hajj must be allowed to do so after taking the necessary measures to ensure their return to prison, such as taking out bail. Similarly if a prisoner had made a vow to visit or remain in a holy site or shrine, s/he must be allowed to do so while on bail. Also if the prisoner needed a secluded place for study or prayer and worship, s/he must be provided such a place.

All of this is also applicable to a non-Muslim prisoner, and if s/he had special ceremonies s/he must also be allowed and facilitated to practice them.

prison to another in a different locality, if feasible. In general, the principle is that the particular offender must be imprisoned, but the details of the imprisonment are flexible. The prisoner may request to be imprisoned in a house, even in his own house if the cost of such arrangement is not too high for the government,

unless the prisoner is prepared to pay for the cost of this arrangement such that the authorities are assured that the prisoner remains in the house. For example by means of mechanical or electronic tagging, or if the prisoner promises not to leave the house, and if the authorities believe his words. We have shown in jurisprudence texts that the prisoner may serve his sentence in instalments.

previously mentioned, the prisoner must be allowed to visit the sick or attend the funeral of a family member. On the other hand, if the prisoner wishes to be transferred to another prison, a comfortable means of transport must be used, and the cost of transport must be met by the prisoner if s/he requested the transport and can afford the cost of transport, otherwise it must be paid from the prison budget.

to deal with abusive prisoners. Prison staff may not carry guns unless they have written permission and that they are qualified to use it.

to spend his/her earnings on himself or his family. The prison should be provided with the facility to secure his wealth either through a bank or through the prison service itself.

must have a conduct such that they set a good example to the prisoners in terms of behaviour and moral values. Prison staff as well as the general public must be made aware of the role and importance of prisons and the prison service.

The salary of prison staff must reflect this aspect and must compensate the important hard work involved. There may even be bonuses given in appreciation of the excellent services provided by the prison staff. Such bonuses could include leave of absence, etc.

security are protected within the framework of Islamic law.

(A) imprisoned three categories of offenders:

One who usurped (others belongings/wealth/land etc.); One who extorted the wealth/property of the orphan; One who embezzles the deposit entrusted with him.

Muhaqqiq al-Hilli states (the newly appointed judge must) inquire about the prisoners and prepare a list of the names of the prisoners. In a public announcement the new judge calls upon the plaintiffs against each of the prisoners to appear on a set date.

Then the judge asks each of the prisoners the reason for their imprisonment. The judge then seeks the plaintiff's claims and if the latter's claims stand the prisoner is returned to jail, otherwise he is freed;

unless someone else raises a claim against him in response to a public announcement by the newly appointed judge. Also if a prisoner appears before the (new) judge and says, “I have no accuser”, and then if no plaintiff appeared against the prisoner, after a public announcement he is set free. It is stated that he would be freed under oath. Other scholars have stated similarly too(1). This is also the case in other sects of the Muslims. One of the senior scholars; Abu Isaac al-Shirazi states, “It is desirable for a new judge to look into the affairs of the prisoners, for prison is torment and punishment (to the prisoner), and perhaps there are those who must be released.

prisoner to want to live within the law, to create the sense of responsibility and respect for himself and the community.

it is not known to be incorrect, but if it is known, then it is not imperative to abide by it.

If one was illegally imprisoned, it is permissible for him to damage the building or dig a tunnel in order to escape. As to whether or not he is responsible for the damage, it appears that if the place belonged to the oppressor, then the prisoner is not responsible, and if the place belonged to another individual from whom it was forcefully taken, then the oppressor is responsible for the damage.

[The difference between confinement/restriction and imprisonment should be noted. If someone apprehends someone such that he cannot move or leave, and in this process he looses, say, his horse, vehicle, goods, etc. then he is not referred to as imprisoned but he is confined or restricted.]

he would be subjected to extreme harm, then he may remain there.

On the other hand, if his dissent is of higher priority, then he must leave even if it causes him harm. The same is applicable to cases of exile and deportation. If a despot sends to exile or deports an individual, he may return back to his normal place unless he would be exposed to danger as mentioned earlier.

If one is restricted or confined, and as a result he incurs losses; for instance he loses his horse, vehicle, goods, or belongings are stolen, then the offender is responsible for the losses incurred by the victim. This is due to the principle of “One may not do, or see harm”, and because it is the accepted norm, and thus is covered by the ruling of guarantee.

In fact it is not unlikely that the guarantee could extend to such cases like when one confines a woman with criminals, and as a result she is raped, or if one confines an individual who is the father/brother of a lady, and consequently the lady is raped. The individual who confined the woman or the father/brother of the lady is responsible for her Mahr or dowry (as one form of compensation).

[This case is only dealing with one particular aspect of the compensations involved, and not with criminal issues and their relevant punishments.]

If the one who has been confined or restricted loses income, for example if he normally earns certain amount, and he does not

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manage to do so because of the restriction or confinement, then the offender is responsible for the loss of income.

the Hudoud - predefined penalties - and the Ta'zirat - penalties prescribed by a Muslim judge according to Islamic teachings - Islam prescribes them for very few cases. The execution of these penalties may only be carried out if and only if a number of conditions and criteria are met, and these criteria are such that they practically make carrying out the execution a rarity.

Furthermore, in the book of “Islamic Government(1)” the author mentioned that the Islamic judge has the permission to replace - in the case of Ta'zir - the whip with fine or prison sentence or any other punishment seen as fit. Shirazi, Muhammad; “al-Fiqh series”, volumes 101-102.

The rights of prisoners according to Islamic teachings In Islam it is not permissible to extract a confession from a prisoner by torture. In fact there is no validity in it if the confession is taken even without torture. Also confessions made before television cameras are void too. Confessions of an accused are only valid if he is outside prison, and he confesses willingly.

or loss of ability.

distinguished for his intellectual ability and holistic vision. He has written various specialized studies that are considered to be among the most important references in the relevant fields. He has enriched the world with his staggering contribution of more than 1000 books, treatise and studies on various branches of learning.

His works range from introductory works for the youth to literary and scientific masterpieces. Deeply rooted in the Holy Qur'an and the teachings of the Prophet of Islam, his vision and theories cover such areas as Legislation, Management, Environment, Sociology, Theology, Philosophy, History Human Rights, Law and Islamic beliefs or doctrine.

His work on Islamic Jurisprudence (the al-Fiqh series) for example constitutes 150 volumes, which run into more than 70,000 pages. Through his original thoughts and ideas he has championed the causes of issues such as the family, human rights, freedom of expression, political pluralism, non-violence, and such like.

From the outset of his adult and scholarly life, because of his total dedication to the Teachings of Islam, and because of his views on various issues, which are based on those teachings, he came under sustained pressure from the authorities in Iraq.

During his stay in Iran he continued to call for Islamic issues such as freedom of expression, party political pluralism, peace and non-violence, which in turn brought about the wrath of the authorities there. His uncompromising stance on implementing the teachings of Islam in all aspects of government including such vital matters as leadership by consensus or Showral-Foqaha'-al-Maraje' (religious authorities'

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council of leadership) attracted the fury of those at the helm.

Having spent the entire of his adult life striving for the greater enlightenment of the Muslims and mankind, Imam Shirazi died in suspicious circumstances in the holy city of Qum, Iran, on Monday the 2nd Shawwal 1422 AH, 17th December 2001.

More than half a million people attended his funeral procession on the following day. Imam Shirazi believed in the fundamental and elementary nature of freedom in mankind. He used to call for freedom of expression, political plurality, debate and discussion, tolerance and forgiveness.

He strongly believed in Shura and called for the establishment of the leadership council of religious authorities. He continuously called for the establishment of the universal Islamic government to encompass all the Muslim countries. These and other ideas are discussed in detail in his books of more than 1000.

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