Chapter 4: Rights of a Prisoner
Chapter 4: Rights of a Prisoner1
The prisoner is a human being, and s/he has the dignity and freedom, as defined by Allah the Almighty. Normally the prison sentence should carry as little hardship as possible while it can still be called a prison sentence, as “necessity is relative”2 , i.e. it is judged accordingly. Whether the individual is being sentenced according to Islamic law, where there are rare cases for imprisonment, or man-made law as currently practised, the authorities must ensure that the prisoner is treated according to his human dignity.
Under current prison regimes, two illegal practices are being committed, the prison concept itself, and the criteria and conditions of prisons.
If the government is committing the first, at least it should ensure that the second is not practised, i.e. the circumstances of the crime and the criteria for the crime and imprisonment must be observed and taken into account.
It is imperative to treat the prisoner as a free individual with the exception of being confined to prison. This may be achieved with the following measures, some of which are manifested in some of the international convention for prisons, and these measures are derived from Shari'ah laws which are on the basis of the principle “people have dominion upon their wealth and their selves3”:
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.
The prisoner may engage in marriage or divorce for himself or for others, as a representative or guardian, for those inside or outside the prison. He could also be an agent or a trustee for endowment, charity, etc.
The prisoner may be a witness in person or remotely for those inside or outside the prison. For those outside, the prisoner may be a witness via such means as the telephone. An exception, as the author has stated in jurisprudence texts, is in the case of divorce, if the witnesses are not physically present at the location of the divorce proceedings, but wish to take part remotely via such facilities as the telephone.
The prisoner may engage in public speeches, teaching, writing to the press, and acting for those inside the prison or outside through various means such as TV, radio, etc.
The prisoner may engage in any profession such as trade, manufacturing, painting. He may also engage in studying and writing books, etc.
Space and facilities for outdoor activities such as sport must be provided for prisoners.
The prisoner may decorate his cell with any painting and artefacts, chandeliers and he may keep domestic or wild animals as pets.
The prisoner's family may visit him at any time they wish. The prisoner's spouse may also visit and stay with him. It is reported that Imam Ali (A) allowed the prisoner's family to stay with him. It is also reported that a woman complained about her husband and sought help from Imam Ali (A). The husband did not provide sustenance with the intention to harm
The rights of prisoners according to Islamic teachings her. Imam Ali ordered the husband to be imprisoned. The husband asked for his wife to be with him, and Imam Ali granted him his request. 82
Segregation between prisoners: e.g. men, women and juvenile prisoners if this does not pose a problem or danger. Dangerous prisoners must be segregated from the rest of them. Also those prisoners who pose harm to others such as the mentally ill must be isolated from others. Prisoners may be accommodated together, for example if different members of a family wish to be held together then this may be so even if there are different categories i.e. men, women and children.
The prisoners must be provided with healthy environments from the point of view of space, fresh air, lighting, heating, ventilation, suitable hygienic lavatories, showers, etc. Hot and cold water must be provided according to the time of the year and the prisoners must have access to the showers whenever they wish to use them.
The prisoner must be provided with food, drink and suitable clothing throughout the year as well as medical attention and medicine as and when required. All of this must be provided in the prisoner's comfort.
Imam Sadiq (A) is reported as saying that when Imam Ali (A) was assassinated by Ibn Moljim, while on his deathbed, Imam Ali (A) said:
“Detain this prisoner, feed him and treat him well while in detention. If I live I shall deal with him; if I want I shall seek (compensation) from him, and if I want I shall forgive him and I shall reconcile with him. But if I die it is up to you. If you decide to kill him do not mutilate him4.” However, it is clear that Imam Ali (A) wished his followers and next of kin to forgive his killer Ibn Moljim, as the former is quoted in the Nahj_ul_Balaghah5:
“Until yesterday I was a companion of yours, today I am lesson to you, and tomorrow I shall leave you. If I survive, I shall be responsible for my blood [i.e. whether to prosecute or to forgive the perpetrator], and if I die, death is my destiny. If I forgive, forgiveness is a means of closeness (to Allah), and it (forgiveness) is a good deed for you, therefore forgive (him), Don't you love Allah to forgive you6? ”
There are exceptional circumstances where the prisoner is subjected to harsh treatment in an attempt that this hardship will make him relinquish the rights of others, (which is the outcome in most cases), when he will be released7. 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 detention8. 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)9.
If the prisoner was a lecturer, for example, his students should be allowed to meet him regularly so as to attend his lectures, and or discuss and debate issues of concern.
If the prisoner suffered from mental disorder, then he must receive appropriate treatment either in prison or in a specialist hospital if deemed necessary. It is necessary to make provision for such facility/environment to help him maintain a healthy state of mind.
In women prisons, specific accommodation, facilities, and medical care must be provided for 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.
There must be an independent inspector of prisons to check the welfare of the prisoners and establish that prisoners are being treated according to the law in all aspects. It is important that the prison inspector is not from the prison management or its affiliation. He must be from different affiliation, for example from an opposition party etc. Any problem or shortcoming must be brought to the attention of the prison authorities and measures recommended to address those problems. If the latter fail to address those issues then they must be raised with higher authorities.
The prison management may not punish prisoners. In the event of prisoners committing any offence, then this must be reported to the police and other legal authorities. It is imperative that the police and the prison service are segregated. A prisoner must be treated like any other free person outside prison when an offence is committed.
The prison management may not give any authority to 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.
If a prisoner commits an offence, s/he will go through the same procedures of police investigation, appearing before court of law, etc. as any other person would outside prison. The crimes prisoners commit inside prison carry the same penalty as others who commit outside it. The same law applies to individuals inside the prison as to those outside.
The prisoner may ask for a solicitor to defend him, may ask for an interpreter if needed. If the prisoner cannot afford the cost of them, the relevant authorities must pay for these. Absolutely no to torture
The prison management may under no circumstances use inhumane and brutal punishment against the prisoners, even if it is to discipline them. Therefore, they may not hold prisoners in solitary confinement, or in a dark cell, or flood the cell, or tie the prisoner to the wall, or chain them, or any other means of torture.
Every prisoner must always have the opportunity to present his requirements or complaints to such authorities as the prison governor, the prison inspector, etc. It must be made known to the prisoners that they can be in touch with their friends or families through visit, correspondence, etc.
When the prisoner receives visitors, the prison authority may not eavesdrop on their conversation or may not 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.
Prison rules and regulation must be given to every prisoner, in written form for those who can read, and on audiocassette for those who cannot.
Access to media The prisoners should have access to the communications media such as the newspapers, magazine, radio and TV, etc. A comprehensive library must be provided for all prisoners; men, women and children. If a prisoner needed a book not available in the library, the prison authority must provide the book whether at the expense of the prisoner if s/he can afford it or that of the prison budget.
Every prisoner must be allowed to practice his/her religious duties such as prayer, fasting and to possess the Qur'an and religious books such as prayer and supplication books, etc. Also if the prisoner sought the services of a religious clergy then s/he must be provided with one.
The prisoners may perform congregational prayers either themselves or with the help of external clergies. During the holy month of Ramadahn, the prisoners who fast must have their food provided during the allocated times; i.e. before dawn and after dusk.
During the month of the Hajj 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.
A prisoner must be allowed to attend religious festivals and all other important religious ceremonies such as those on the occasion of the birthday or demise of the Prophet (S) and other infallible Imams (A). The prisoner must also be allowed to visit his sick family members or attend their funerals or weddings, while on bail for instance.
It is reported that Imam Ali (A) used to release the prisoners, who were debtors or murder suspects, to attend Friday prayers and then are returned to prison by their guarantors10. It is also narrated that Imam Sadiq (A) said that the leader must arrange for the prisoners to attend congregational prayers on Fridays and on other festive occasions such as Eid. When they perform their prayers they are returned to prison by their guards11.
The prisoner has the right to request transfer from one 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.
The prisoner's possession such as clothes, money, watch, jewellery and other valuable items must be listed and kept for the prisoner and returned to him when leaving the prison.
Prison uniform The prison authority may not impose the wearing of uniform on prisoners and they may wear what they choose.
Receiving mail and goods In general the prisoner may receive goods from outside prison, with the exception of forbidden items such as narcotics unless prescribed by medical expert.
The family of the prisoner must be informed immediately of his/her imprisonment. They must also be informed if the prisoner is transferred to another prison, or if the prisoner is seriously ill or if s/he dies. Similarly the prisoner must be informed of the illness or death of a family member.
As it was 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.
Prisons for men must be staffed by men entirely and those for women must be staffed by women only. Men may not staff women prisons and vice versa. Male staff must be married and so too must female prison staff12. If any of the prison staff wanted to live with his/her family, in the living quarters of the prison complex, they may do so. Juveniles must be segregated in prisons. It is important to have separate prisons for boys and girls.
If a prisoner became insane s/he must be treated and if their illness is incurable, s/he must be detained in mental hospital or unit. If it was diagnosed that the prisoner would develop insanity or other such illnesses (as a result of being imprisoned) s/he should be released from prison. No to Violence
Prison staff may not use force with prisoners unless in cases such as self- defence, or to prevent prisoner escape or to prevent a prisoner harming others. In case force was used it must be reported to the prison governor immediately. Prison staff must be trained to deal with abusive prisoners. Prison staff may not carry guns unless they have written permission and that they are qualified to use it.
Teaching and education program must be provided for the literate and the illiterate prisoners as well as the young offenders so that their time is not wasted without any education for those who want to study.
This is to reduce or prevent such conducts as sexual harassment and abuse.
The prison management must prepare prisoners to work in accordance with their intellectual and physical abilities. Work opportunities must be available to stimulate and also encourage them to earn for themselves and their family through honourable means. Prisoners must also be trained to gain new work related skills especially for the young prisoner.
Prisoners must choose the work they wish to do and not be compelled to do so. The standard of work conditions inside prison must be the same as those outside so that prisoners are prepared for life outside. The interest of prisoners must take priority over that of the prison institution.
The working conditions such as the number of working hours per week must be the same as those for workers outside prisons. Similarly prisons must have a day off work and must have enough time to engage in recreational activities.
Observation of religious occasions They must also be given the chance to observe or celebrate religious occasions.
If a prisoner accomplishes manual or scholarly work s/he should be paid according to rates outside the prison. He should be allowed 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.
The insane, and mentally retarded may not be imprisoned. As for one who suffers from periodic insanity may only be imprisoned (for committing offences) during recuperation periods.
Diminished responsibility An individual may not be imprisoned for a crime if s/he was forced, impelled, etc. to commit such an act.
Death of prisoner If the prisoner dies as a result of part of the prison building collapsing or due to flooding, earthquake, etc. and the prison management had
anticipated such events13, in that case the prison authority should pay compensation (blood money). Similarly if the prisoner lost a limb or sustained other injuries, he is entitled to compensation. However, if the prisoner dies of natural causes there is no compensation to pay.
The prison building must be strong enough such that prisoners do not easily damage it. There should be no tools or means inside the prison that could be used to damage the building, harm other fellow prisoners or even harm themselves in any way, such as hanging.
Prison staff must have an appropriate mental and intellectual level as well as being physically able. Prior to assuming their post in prison they must have received relevant education and have attended specialist-training programmes to prepare them for the tasks involved in such posts.
Furthermore they should maintain those standards but also develop further during their service. They 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.
The prison management and staff must be supported by specialist services such as those of psychologists, sociologists, medical, mental, and technology experts on a permanent basis. This is to give prisoners the best opportunity of education and training while in prison in order to deliver a reformed individual to society.
Education of prisoner Prison managers and higher authorities must consider prisoners as part of the society and not the outcast from it. Therefore a prisoner must receive e.g. through forecast by relevant authorities, expert recommendation or evaluation, etc.
Ethical and moral treatment and education as a person and as a responsible member of society. Arrangements must be made to ensure that a prisoner is appropriately received by the society when out of prison.
The community must be made involved in preparing a prisoner to interact with society. Social workers must ensure that they are in contact with their families and that with the aid of relevant organisations the newly released prisoner's civil rights as well as those for social security are protected within the framework of Islamic law.
There should also be organisations recognised by the government, responsible for safeguarding the rights of the newly released prisoners and in charge of visiting them, arranging for their recreation and helping them to join the society as reformed members.
The prison service and other authorities associated with the prisoner such as the judge, etc. should contemplate about the future of the prisoner as soon as the prisoner enters prison. The prisoner should be encouraged to be in contact with organisations that can help him and his family and prepares him to rejoin the community again.
The law applies to the different kinds of imprisonments, which are divided into three categories under Islamic system:
In this case a suspect is detained pending investigation into the case. It has been reported that the Prophet (S) detained a murder suspect for up to six days pending investigation14. It is also reported that Imam Ali (A) detained a murder suspect while investigating his accomplices.
This policy is not specific to murder cases only but is applicable to other cases. It is reported that Imam Ali (A) judged a debtor to be detained. If it were The rights of prisoners according to Islamic teachings proven that he was bankrupt he would be released in order to earn money, and if appropriate, pay back his debt15.
Fraud Imprisonment In this case someone is imprisoned for transgressing or violating other people's right, which is a crime. It is reported16 that Imam Ali (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.
In this case those convicted of committing a crime are imprisoned. The author has mentioned a number of such cases in the “Book of Hudoud17”. In a reported case18, four individuals engaged in a brawl using knives and while they were drunk. Imam Ali (A) judged to imprison the four until they were sound again.
Two of the four died as a result of the severity of their injuries. Imam Ali (A) judged that all four were responsible for the injuries sustained on the four. The blood money of the two dead men is shared equally between the four and the compensation for the other two is taken out of the blood money given to the deceased's next of kin.
At the end of this section it is worth mentioning that it is a good practice that the new judge looks at the affairs of those imprisoned by the previous judge. This is to make sure that no one innocent or one who served his sentence remains in prison.
In the book al-Mabsout19 the author, Sheikh al-Tousi, said when the judge assumes office, the first thing he should look at is the affairs of the prisoners in an isolated prison, as prison is a (place of) torment (for the prisoner). There may be cases where someone has served beyond his sentence unnoticed.
In Sharae' al-Islam20, (the author) 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 too21. 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.
It appears that the duty of the judge does not end with issuing the prison sentence, but it is his duty to follow the affairs of the prisoners through his assistants and through government organisations responsible for preparing prisoners to join the community again. Such organisations must create the atmosphere to encourage the prisoner to want to live within the law, to create the sense of responsibility and respect for himself and the community.
- 1. This chapter is taken from the author's al-Fiqh series, vol. 100, book of “Rights”, pp 476- 481
- 2. A principle in Islamic jurisprudence, see al-Fiqh series, vol. 141, “Principles of Jurisprudence”, by the author.
- 3. This is a hadith or statement by the prophet Muhammad peace be upon him, which therefore forms the basis of a principle in Islamic jurisprudence. The hadith has been reported in many references such as: 'Awali al-Le'ali, vol. 1, p 222; Nahj el-Haqq, p 494. See also al-Fiqh series, vol. 141, “Principles of Jurisprudence”, p 135, by the author.
- 4. Al-Ja'fariyat, p 108. Qurb al-Asnaad, p 67.
- 5. Letters, 23. Nahj_ul_Balaghah, (meaning Peak of Eloquence) is a collection of speeches, sermons and letters of Imam Ali (A).
- 6. The Holy Qur'an, The Light (25): 22.
- 7. See for example Fiqh al-Ridha, p 248, or 'Awali al-Le'ali, vol. 3, p 395, and Mustadrak el- Wasa'el, vol. 6, p 27.
- 8. al-Kafi, vol. 6 p 133.
- 9. Wasa'el al-Shi'a, vol. 22, section 11, p 28775
- 10. al-Ja'fariyat, p 44.
- 11. Man la Yahdharuhul-Faqih, vol. 3, p 31. See also Wasa'el al-Shi'a, vol. 7, section 21, and Mustadrak el-Wasa'el, vol. 6, section 17.
- 12. This is to reduce or prevent such conducts as sexual harassment and abuse.
- 13. e.g. through forecast by relevant authorities, expert recommendation or evaluation, etc.
- 14. Al-Kafi, vol. 7, p 370, hadith 5.
- 15. Tahdhib al-Ahkam, vol. 6, section 22, p 232, hadith 19.
- 16. Tahdhib al-Ahkam, vol. 6, section 22, p 299, hadith 43.
- 17. al-Fiqh series, vols. 87-88, al-Hodoud wal-Ta'zirat.
- 18. Tahdhib al-Ahkam, vol. 10, section 4, p 240, hadith 5.
- 19. al-Mabsout fi Fiqh al-Imamiah, by Muhammad ibn al-Hassan al-Tousi, vol. 8, p 91, section on the tradition of a judge.
- 20. Shara'e' al-Islam, vol. 2, p 320, Tradition of a Judge.
- 21. Muhaqiq al-Hilli (602-676H) in al-Mukhtasar al-Nafi', Abdul-Aziz ibn Baraj al-Tarablosi (400-481H) in al-Muhadhab, 'Emad al-Din bin al-Tousi in al-Wasilah ila Nayl al-Fadhilah, 'Allamah al-Hilli (647-726H) in Qawa'ed al-Ahkam fi Masa'el al-Halal wal-Haram, Muhammad Jawad al-Hussain al-'Amili in Miftah al-Karamah, vol. 10, p 26.