Chapter 2: Torture and Prisons Must Be Purged1
Any kind of torture, and however it may be justified, is prohibited and unequivocally Haram - i.e. unlawful, for Allah has not revealed any evidence to permit this act at all. Therefore it is imperative that torture is avoided at all costs, even towards the enemy.
For he who humiliates an individual will not be able to defend and uphold the dignity of mankind, and he who practices torture, even once, and yet claims he wants to lead mankind to dignity, 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. (Holy Qur'an, 9:105).
Undoubtedly it is possible to arrive at the truth without resorting to torture, but through careful investigation of all available evidence, as well as detailed questioning, as seen in many cases dealt with by the well-known judicial judgements of Amir-ul-Mu'minin Imam Ali (A)2.
This chapter is taken from the author's book “The Dynamics of Change for the Salvation of Muslims” pp 136-152. The book is addressed to Muslim reformists and activists who aspire to establish some form of Islamic government in their homeland. Imam Shirazi emphasises that such groups must resolutely adhere to the teachings of Islam, whether before they reach government or after assume office of government.
In accordance with Islam, Imam Shirazi in this work calls upon Muslims to refrain from violence and adopt peaceful and non-violent means in all aspects of their conducts and activities, within their group and without, towards their fellow members, or towards the general public at large, and even towards their enemies. 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!
There are various approaches and strategies that may be adopted to uncover the truth without resorting to torture, despite the complexity of the cases involved. Arriving at the truth through permissible and scientific means is possible although it takes time and expertise for this to be achieved.
A body was discovered in the city of Isfahan, during the governorship of Hujjatul-Islam Muhammad Baqir al-Shefti. He explored various avenues to identify the murderer but to no avail. He eventually called upon the services of an experienced psychoanalyst, who examined the corpse thoroughly.
He then ordered all the butchers (of the city) to a gathering in the presence of the governor, and in that gathering he asked them to line up such that their backs are to the governor. In the end, he told the butchers, “You can 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 tongue3.”
It is also reported from the reign of governor al-Shefti, that a woman complained to him that “one of the well-known and influential individuals has managed to usurp (my) orchard that is adjacent to his orchard, and as he has the influence and the money, he has made many people to act as witness that the orchard is his, and all of this was done in 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 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.
On the method of investigations by one of the judges, it is reported that a man came to the judge and said to him, “a friend and I owned some money that we buried in the vicinity of tree outside the town for safe keeping.
After a while I needed the money and my friend and I went to the location to excavate the money, but there was no trace of any money in the place that we had buried it. I strongly believe that my friend had taken the money, since no one else knows about the money we had buried there.”
The judge asked the man if he had any witness or proof for his claim. The man replied “No. Except that no one else knows about this.” The judge summoned the friend and asked him about the money and the tree, he denied all knowledge about them.
The judge then asked the friend to remain there for a while to which he obliged. 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.”
It is reported that a man came to 'Adhdu-Dawlah al-Buwayhi, and complained to him saying, I buried some money under a tree outside 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 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.
In another case for 'Adhdu-Dawlah al-Buwayhi, a businessman came to him with a complaint. He said to him “I wanted to go to the Hajj pilgrimage and I had some one thousand gold Dinars to spare, and for safe keeping I deposited the money with one of the businessmen and left for Hajj. When I came back from Hajj I asked for the money I had deposited with him, but he denied all knowledge of this.
Al-Buwayhi said to the man, “All you need to do is go and stand in front of his shop such that he can see you. I shall arrange for my cortege to pass through that road and when I see you I shall warmly welcome you and ask you to come with me to my house, but refuse, and say you have other business to attend to.”
On the following day the businessman went and stood opposite the shop of the other businessman and while the other businessman protested him standing there, he ignored him. At this moment the royal cortege arrived and when he saw the man standing there,
Al-Buwayhi got off and warmly welcomed him back and asked him to join him in his cortege, but he refused. Al-Buwayhi insisted 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-Hudood4 and al-Qadhaa'5 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.
It is imperative to expose torture and any form of ill treatment in detention. This may be achieved through the publication of millions of books, and through all the various means.
For torture in prisons, which has become widespread in the prisons of the Muslim world, in an Islamic country or otherwise, is a despicable and abhorrent act and must 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.
Just as it is absolutely imperative upon reformists to refrain from torture, it is equally imperative to reduce prisons and prisoners numbers 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
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 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.
The harm and the damages of imprisonment can be seen in various domains; such as political, social, economic, educational, health, etc.
Imprisonment causes psychological complexes for the prisoner, which in turn brings about his hatred towards the people and the state. As for the state, he would regard it as an oppressive and tyrannical force, and on this basis he would act to destroy anything that is associated with it and bring about its downfall.
As for the people, a complex-driven individual would dislike all the people since he considers them as having failed to help him, for it is rare that a criminal considers himself of being guilty. For example a thief considers himself as being forced to steal since he did not have enough money to live on, whereas he see the rich steal the money of the poor through phoney laws.
Such as the Usurper of others' property, he 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.
As for social harm, they are numerous too:
1. The prisoner thinks that he has fallen from the community, and that society has expelled him, and for such reasons he turns against society in all his conducts, and therefore he turns from being a useful member of society to a harmful one.
2. Imprisonment of the head of a family is not without effect on the family, for the family is affected socially, materially and psychologically, and may fall from being dignified members of society.
3. Both sides of the family may suffer from or fall into immoral conducts concerning sexual matters. The prisoner has his own sexual needs and consequently, may fall into practicing homosexual acts. As for the family of prisoner, they too may engage in immoral sexual practices to satisfy their sexual needs, if not to earn means of living.
As for economic harm, this is caused by the inability of the prisoner to engage in his normal occupation to earn his living. Not only has he not earned the money he usually generates, but the family loses 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 worlds8” And it is reported that Abu Tharr al-Ghifari9 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.
In this respect, the prisoner could potentially be denied the opportunity to continue his studies and graduate from university. The consequences of this is twofold; first it causes his failure in society, where he sees his colleagues have successfully managed to graduate from universities, which in turn could bring about his hatred towards society, and therefore create his desire to seek revenge from it. Secondly it brings down the general level of education in society, and enhances ignorance and immorality in the society.
As for health harm, this is as a result of the anxieties and psychological complexes that he may develop, for they develop into physical and mental illnesses, and it is proven that mental illness could lead to physical illness and vice versa. Other examples of health 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.
Imprisonment could cause other personal and social harms that are interlinked to each other. For example since a significant majority of the prison inmates are young, a generation will be brought up with violence, crime, corruption and this could be very damaging to society as a whole.
There are also administrative and financial costs to imprisonment such as:
the time, money, and effort wasted in managing a prison system, the inflation of government's bureaucracy for managing it, the fact that most of those who go to prison are from the poor, since the rich, firstly do not usually need to engage in such criminal activities such as theft, and secondly, if they are sentenced to a prison sentence, they usually manage to buy their way out of prison. Therefore the prison is an additional means of oppression upon the poor; for the society brought about his poverty in the first place and then imprisoned him!
In addition to the harms of prison cited above, there is the time wasted by the relatives of the prisoner to visit him and the effort involved in this process, whereas they could 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.
- 1. This chapter is taken from the author’s book “The Dynamics of Change for the Salvation of Muslims” pp 136-152. The book is addressed to Muslim reformists and activists who aspire to establish some form of Islamic government in their homeland. Imam Shirazi emphasises that such groups must resolutely adhere to the teachings of Islam, whether before they reach government or after assume office of government. In accordance with Islam, Imam Shirazi in this work calls upon Muslims to refrain from violence and adopt peaceful and non-violent means in all aspects of their conducts and activities, within their group and without, towards their fellow members, or towards the general public at large, and even towards their enemies. This work constitutes a “Book of Conducts” for Islamist political movements.
- 2. Many scholars have written specific books about the judicial judgement of Amir-ul- Mu'minin (A) or have allocated significant sections of their books about this issue. Some of the books are Bihar al-Anwar; by al-Majlisi, Ma'adin al-Jawahir; by Ibn Abil-Hadid, Madinat-ul-Ma'ajiz; by al-Bahrani, etc. The first person to write about this topic is Obaydullah ibn Abi Rafi', secretary of Amir-ul-Mu'minin Imam Ali (A) during his entire reign. Ibn Abi Rafi' is the first who wrote about the battles, skirmishes and excursions, and he died in 100 Hijra, and the title of his book is “Judgements of Amir-ul-Mu'minin (A)”.
- 3. The governor, Nahj-al-Balaghah, Short Words of Wisdom; 526.
- 4. M. Shirazi, al-Fiqh series, volumes 87-88.
- 5. M. Shirazi, al-Fiqh series, volumes 84-85.
- 6. M. Shirazi, al-Fiqh series, volume 100, The Rights, pp 348 - 354.
- 7. Such as the Usurper of others’ property, he 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.
- 8. i.e. in this world and in the hereafter. Bihar al-Anwar, vol. 69, p 30.
- 9. 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.