Chapter 1: Freedom, a Fundamental Principle1
Freedom is a fundamental principle in mankind, and therefore a suspect may under no circumstances be detained before conviction, except in cases where the probability of harm to the individual concerned would be greater than that of detention. In such circumstances it is permissible to detain the individual on the basis of priority of the urgent issues involved, and it is established that 'urgent issues' are evaluated on their merits…
On the same basis it is permitted to 'imprison' the suspect to protect him from the mob, that is, if in an emergency situation it becomes necessary to protect the life of the suspect, it is permitted to imprison him - for a specific period, if this proves to be the only option. This (permission) is based on the principle of priorities, which is referred to by reported hadith as well as the jurisprudential discussions presented by the author in relevant publications. Some of the reported hadith in this respect is outlined below:
Al-Sakouni narrates from Imam Al-Sadiq (A),
“The Prophet (S) used to detain a murder suspect for six days, if the guardians of the victim produced evidence of murder (the detainee would be prosecuted), otherwise the detainee would be released.” 2 Imam Ali (A) is reported as saying;
“No detention for suspicion except for blood (i.e. murder), and detention after the truth has become known (about the innocence of the suspect) is oppression.”3 Imam Ali (A) is reported as saying,
“I do not apprehend on (the basis of) accusation, and do not punish on (the basis of) suspicion, and I do not fight except he who fights me4.” On the case of the insurgency of Khrit bin Rashid, from the tribe of Bani Najiyah, against Imam Ali (A), Abdullah bin Qa'een protested to Imam Ali (A) as to why he did not seek to detain him, saying “O Amir-ul- Mu'minin why do you not detain him now?”
He (A) replied “If we were The rights of prisoners according to Islamic teachings to do that to anyone (who is accused or suspected), the prisons would fill up with such people, and I do not see it in me that I could attack, detain, or punish them unless they wage war against us (who would be dealt with accordingly)5.
It is imperative that imprisonment, bar the exceptional circumstances as defined in Islam, must be avoided by all means, for the substantial harm it entails:
Economic harm; in this aspect, the prisoner stops his normal occupational activity and his expenses must be met by the treasury, which is that of the people. In addition there is the added cost of running the prison and its staff. Therefore the economic cost of imprisoning an individual is three fold; one the cost of stopping his labour/occupational activity, two the cost of his maintenance during his imprisonment, and three the cost of running the prison system.
Educational harm; where the prisoner is prevented from the education he would - normally - receive if he were free. Political harm; where he would not - normally - be able to take part in the political maturity, either for himself or for others. Social harm; where his family may end up being displaced, which in turn causes even more social harm.
Personal moral harm; where the individual normally develops (various) complexes, which will be reflected within the prison and without.
Family moral harm; where his imprisonment could lead to the detriment of family moral values - the wife and the children - in the absence of its breadwinner.
Construction harm; when the builder or the civil engineer is imprisoned.
Health harm; when a physician or other medical workers are imprisoned. Crime harm; where the criminal prisoner teaches the tricks of his trade to other prisoners, such that when a prisoner leaves the prison he would disseminate his newly acquired knowledge across the society at large.
Other harms; such as the destruction of the sense of responsibility in the prisoner. For one usually feels the restrain and the gravity of committing an offence, and if he were imprisoned, he would know that people would see him as an offender and a criminal, and this would reduce the gravity of committing an offence, and would gradually not see himself as responsible, etc.
Furthermore, it is imperative for one who is being imprisoned or punished, that he and his family are not exposed unnecessarily, or more than that specified in the Islamic law, for a Muslim may not be insulted, degraded, terrorised or humiliated, all of which are outside the bounds of Islamic Shari'ah. There are no grounds for exceeding the specified punishment framework.
For example if a woman committed adultery and she admitted to that, or it was clearly proven according to Shari'ah criteria6, if it were declared that she belonged to certain (reputable) family and the execution of the prescribed punishment would mean the loss of honour of the family in the eyes of the society, then the punishment may not be carried out. And this is applicable to all offences.
[More details about the harms of imprisonment in the following chapter.] For these reasons it is against Islamic law to publish or expose one's secrets of private life through the mass media, such as radio, TV, press and such like, particularly if one was coerced to admit something, which is illegal in two ways.
It is reported from Imam Ali (A): “He who exposes the secret or privacy of his brother, the scandals of his household would be exposed.” 7
Also reported from Imam Ali (A): “The most evil of the people is he who does not forgive the fault of others and does not keep their secret8.”
Adultery can only proved if one comes forward and freely admits it - three times, or if the act is witnessed by four adult witnesses.
Prophet Muhammad (S) said,
“Do not pursue the faults of the Muslims, for he who pursues the faults of the Muslims, Allah would pursue his faults, and he who is pursued by Allah, (surely) would be scandalised9.” Prophet Muhammad (S) is also quoted as saying, “Allah Almighty has said, “He has opposed me who degrades my faithful servant10.”
It is preferred for the offender himself, as well as he who witnesses the offence not to expose the event if possible, unless there is other more important priorities involved. Imam Al-Sadiq (A) is reported as saying,
“A man came to Prophet Muhammad (S) and said 'I have committed adultery', then the Prophet (S) said “if he had kept quiet about it and had repented (to Allah sincerely), it would have been better for him11.
In another report, a man came to Imam Ali (A) and said, 'O Amir-ul- Mu'minin! I have committed adultery, so purify me.' Imam Ali (A) turned his face away from him, and told the man to sit down. Imam Ali (A) then turned to the people (who were sitting around him) and said, “Is any of you incapable to shield upon himself, just as Allah has concealed upon him?”
The man got up and said, 'O Amir-ul-Mu'minin! I have committed adultery, so purify me.' Imam Ali (A) said, “What makes you say this?” The man replied, '(I am) seeking purification (from this sin).' Imam Ali (A) said, “And what is a better purification than repentance?” Imam Ali (A) then turned to his companions to talk to them when the man got up and said, 'O Amir-ul-Mu'minin! I have committed adultery, so purify me.'
Imam Ali (A) asked the man, “Do you not read the Qur'an?” He said 'yes'. The Imam said, “Read”, and the man read the Qur'an correctly. The Imam (A) asked the man if he knew his obligations towards Allah in terms of prayers and alms. He said 'yes'.
Ghurar al-Hikam wa Dorar al-Kalam, p 245. This book is a collection of the sayings of the first successor of the Prophet Muhammad (S) as appointed by the prophet on specific instructions from Allah Almighty, Imam Ali (A).
The Imam (A) asked him a few questions to which he replied correctly. Imam Ali (A) then asked him if he suffered from any illness, or ache in his head or pain in his body, or if he has any anxiety. The man replied negative. Imam Ali (A) then said to him,
“Woe unto you! Go away until we ask others about you (to seek their impression of you), just as we interrogated you in public, for if you do not come back to us, we would not pursue you12.”
In another case, it is reported that a man came to Imam Ali (A) and admitted four times that he had committed adultery. The Imam (A) said to (his assistant) Qanbar to keep the man, and angrily said, “How repulsive it is for any of you to come forward with some of these indecent acts, exposing himself in public. Why could one not repent in his house? By Allah, if he were to sincerely repent, between himself and Allah, that would have been better than I execute the Hadd upon him13.”
In this hadith Imam Ali (A) is telling the man that the essence is that if one committed a sin, one should regret that, repent, and seek forgiveness from Allah Almighty, and now that Allah has kept that sin a secret, do not publicise it and at the same time sincerely repent to Allah. Imam Ali (A) is telling the man that if he has an honourable reputation in the society, i.e. not known for indulging in sinful acts, then the Imam would not seek to publicise his sins and jeopardise his dignity if the man repents from his deed.
- 1. This chapter is taken from the author’s al-Fiqh series, volume 101, “The Islamic Government”, pp 197-203.
- 2. Al-Kafi, vol. 7, p 370 3Da'a'em al-Islam, vol. 2, p 539 4Al-Gharat, p 251.
- 3. This chapter is taken from the author's al-Fiqh series, volume 101, “The Islamic Government”, pp 197-203.
- 4. Al-Gharat, p 251.
- 5. Al-Gharat, p 223.
- 6. Adultery can only proven if one comes forward and freely admits it – three times, or if the act is witnessed by four adult witnesses.
- 7. Kashf al-Ghummah, vol. 2, p 157, Majmou'at-Waram, vol. 2, p 39, Tuhaful-'Oquol, pp 88 & 93, Bihar al-Anwar, vol. 72, p 321
- 8. Ghurar al-Hikam wa Dorar al-Kalam, p 245. This book is a collection of the sayings of the first successor of the Prophet Muhammad (S) as appointed by the prophet on specific instructions from Allah Almighty, Imam Ali (A).
- 9. Al-Kafi, vol. 2, p 355, hadith 4.
- 10. Al-Kafi, vol. 2, p 351, hadith 6.
- 11. Al-Tahdheeb, vol. 10, p 8, hadith 22
- 12. 'Man La Yahdharah-ul-Faqih', vol. 4, page 31, section 2, hadith # 5017.
- 13. Al-Kafi, vol. 7, p 188, hadith 3