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Historical
Development of the Judiciary
The
judiciary has been a firm religious responsibility and a form of
worship from the time the Prophet initiated it by establishing the
first Islamic state in Madinah. This is clear from the treaty
between the Muslims, both the Muhajirun (immigrants to Madinah at
the time of the Prophet) and the Ansar (Muslims in Madinah), and
their Jewish and polytheistic neighbors. In the treaty, it is
written that “Whatever occurrence or outbreak is feared will
result in corruption shall be referred for judgment to Allah and to
Muhammad, His Prophet.”[1]
The
Prophet’s reign in Madinah was small, and the community’s legal
problems were few and uncomplicated. And so there was a need for
only one judge (qadi)—the Prophet. But when the territories ruled
by Muslims began to expand, the Prophet began to entrust some of his
governors with judiciary responsibilities and permitted some of his
Companions to judge cases. He sent them to different lands and
advised them to seek justice for the people and to oppose inequity.
`Ali was sent as a judge to Yemen, and others, such as Abu Musa and
Mu`adh, became judges[2]. The judgments passed by the Prophet were
always based on what Allah had revealed to him.
In
most cases, the two disputing parties would agree to present their
case to the Prophet. After listening to both sides, he would tell
them that he was deciding their case solely on the basis of the
externals (i.e., evidence and testimony[3]). He was careful to
explain that his decisions should not be cited in order to permit
what was prohibited or to prohibit what was permitted. He explained
the proof and evidence and the means of defense and denial[4]:
“Proof is the responsibility of the claimant; whereas, for the
claimed against, an oath is sufficient.”[5] Confession, with all
of its conditions, is proof against the confessor. No judgment is to
be passed between two disputing parties until both have been heard.
The Prophet had no apparatus to collect and verify evidence to the
advantage or detriment of either party.
When
Abu Bakr became the (political) ruler (khalifah) upon the
Prophet’s death, he entrusted the judiciary to `Umar ibn
Al-Khattab. Owing perhaps to `Umar’s reputation for
uprighteousness and straightforwardness, two years passed without
him having to judge a single case. When `Umar became the ruler,
however, the situation changed. During his reign, the major
conquests of Islam were underway and the territory under Islamic
rule was becoming truly vast. Thus, legal issues began to come to
light for the first time. In response, `Umar laid the foundations
for an institutionalized juridical order in which judges, chosen by
the ruler on the basis of certain criteria and functioning as his
deputies, would hear cases, arbitrate disputes, and pass legal
judgments. He appointed Abu Ad-Darda’ as the judge of Madinah,
Shurayh ibn A-Harith Al-Kindi as the judge of Kufa, Abu Musa
Al-Ash`ari as the judge of Basrah, and `Uthman ibn Qays judge of
Egypt. For the territories of Sham, a separate institution was
established.
`Umar
himself set a remarkable example for his judges to follow and also
warned them not to deviate from it. In his letter to Mu`adh he
wrote:
As
to what follows: Verily, legal judgment is an established religious
responsibility, and a practice (sunnah) to be emulated. So if it is
assigned to you, remember that speaking the truth, when there is
nothing to back it up, is useless. Make peace between people in your
sessions, in your countenance, and in your judgment, so that no
decent person will ever have anything to say about your unfairness
and so that no oppressed person will ever despair of finding justice
with you.
The
burden of proof is on the claimant, and for the defendant there is
the oath. Arbitration is lawful between Muslims, except in cases
where the lawful (halal) is made unlawful (haram) and vice versa. If
someone claims a right to something that is not present and has no
proof of it, then set him something like it. If he describes it,
give him his due. But if he cannot do so, then you have solved the
case for him in a most eloquent and enlightening manner.
Do
not be impeded by your prior decision not to change your mind about
the truth if you reconsider and are guided by your understanding to
take another decision. Indeed, the truth itself is eternal and
nothing can change it. It is better for you to change your mind
about it than to insist upon what is false. With the exceptions of
those Muslims who are guilty of perjury, who have been lashed in
accordance with hadd punishments, or who are suspect because of
their relationship to the accused, all Muslims are reliable
witnesses. Only Allah knows the secrets of His servants and He has
screened their misdeeds, except for those that are attested to by
evidence and witnesses. You must use judgment when a question that
has not been mentioned specifically in either the Qur’an or the
Sunnah is raised. Make use of analogy and know the examples that you
will use. And then undertake the opinion that seems more pleasing to
Allah and closest to the Truth.
Avoid
being angry, annoyed, irritated, or upset by people. Do not be
hostile when hearing a case (or, “towards one of the parties to a
case,” [the narrator, Abu `Ubayd was unsure], for surely a right
decision is rewarded by Allah and is something that will be spoken
well of. Thus, one whose sincere intention is to serve the truth,
even if it were to go against him, will be sufficed by Allah in what
transpires between him and others.
One
who adorns oneself with what one does not possess will be shown to
be unsightly by Allah. For, indeed, Allah accepts from His servants
only that which is done for His sake. So keep in mind Allah’s
rewards both in this life and in the Hereafter.
May
Allah grant you His peace, blessings, and mercy.[6]
The
institution of legal judgment during the times of the four rightly
guided caliphs remained simple and uncomplicated. Judges had no
court scribe or written record of their decisions, for these were
carried out immediately and under the individual judge’s direct
supervision. No detailed procedures were worked out for the judicial
process, the registration of claims, the delineation of
jurisdictions, or for any other matters that would arise later, for
the lives of the people were not yet complicated enough to require
such complications. Even the Shari`ah specified no details, but left
them to be determined by ijtihad. In other words, the juridical
system was allowed to develop in a way that would be the best suited
for the peoples’ circumstances and customs.[7]
Under
the four rightly guided caliphs, the judiciary was limited to
resolving civil disputes. Other types of disputes, such as qiyas,
analogy (where capital punishments may be prescribed), hudood,
pescibed penalities (where punishment, including capital punishment,
is prescribed by the Qur’an), or ta`zir disciplinary punishment
(where punishment, including capital punishment, is left to the
discretion of the judge or the ruler) were decided by the ruler or
his appointed governor.
Not
a great deal of change in this institution took place under the
Umayyids, particularly under the early rulers, so that the
procedures remained uncomplicated. The major development was
confined mostly to recording decisions in order to avert evasion and
forgetfulness. In fact, such an incident occurred during the reign
of Mu`awiyah ibn Sufyan, when Salim ibn Mu`izz, the judge of Egypt,
decided a case of inheritance. When the heirs reopened the dispute
and returned to the judge, he recorded his decision in writing.[8]
This period also saw agreement upon the qualifications for a judge,
the specification of a place in which the judicial procedure was to
be carried out, and the development of the system by which
injustices in public administration would be addressed.[9]
With
the coming of the `Abbasids, however, the judiciary made significant
progress. Its sophistication grew in both form and procedure, and
its vistas increased along with the variety of cases dealt with.
During this period, the court register was introduced, the judge’s
jurisdiction was increased, and the state established the position
of Chief Judge (qadi al-quddah), which today is comparable to the
office of the Chief Justice. One negative development, however, was
the increasingly infirm nature of ijtihad, which limited the judges
to following the previous rulings of the four established schools of
legal thought: taqlid. Thus in Iraq and the eastern territories,
judges ruled according to the rulings of Abu Hanifah; in Syria and
Spain according to Malik; and in Egypt according to Imam Shafi`i.[10]
After
the Mongol destruction of Baghdad and the subsequent end of the
`Abbasid Empire in 1258 CE/AH 606, several smaller states emerged
and developed their own legal institutions. While these legal
institutions differed hardly at all in their foundations and the
principles upon which they were established, they did differ
significantly in matters of organization, procedures, criteria for
the appointment and removal of judges, and in the schools of legal
thought followed.
Ibn
Al-Hasan An-Nabahi portrayed the judiciary of eighth-century (hijri)
Spain as follows: “The authorities who deal with legal rulings are
first the judges, then the central police, the local police, the
appellate authority, the local administrator, and then the market
controller.”[11] Ibn Al-Qayyim described the contemporaneous
institutions of the eastern Islamic states, after mentioning
questions of rulings on claims, by saying that
the
maintenance of authority in matters not connected to claims is
called hisbah, and the one responsible for it is called the hisbah
commissioner. Indeed, it has become customary to assign a
commissioner especially for this type of authority. Likewise, a
special commissioner, called the appellate commissioner, is assigned
to the appellate authority. The collection and spending of state
funds comes under the authority of a special commissioner, called
the wazir. The one entrusted with calculating the wealth of the
state and seeing how it is spent and how it should be controlled is
called the performance commissioner. The one entrusted with
collecting wealth for the state from those who possess it is called
the commissioner of malice. The one assigned to deciding disputes
and upholding rights, making decisions on matters of marriage,
divorce, maintenance, and the validity of transactions is called the
hakim or judge.[12]
Judicial
Organization and Its Sources
It
should be clear from the historical survey presented above that the
Shari
`ah does not specify a particular juridical framework. Rather, it
establishes the principles, general foundations, objectives, and
sources of legislation. Organizational details (i.e., the extent of
a judge’s jurisdiction[13], limitations of his authority in terms
of time and place, the assignment [or lack thereof] of another judge
to work alongside him) were to be determined by the people’s
customs, needs, and circumstances. As there is nothing in the
Shari
`ah that entrusts the juridical process to an individual or an
institution, it was left up to the Muslim leadership to decide. The
responsibility could be spread among several officials or confined
to one, as long as the sole requirement was met: the ruler must
ensure that those entrusted with this responsibility meet the
Shari`ah’s conditions.[14]
It
is also clear that the responsibility for judging criminal cases was
divided among such different authorities as the ruler (khalifah),
the appellate authority (wali al ma`alim), the military authority
(amir), the police commissioner (sahib al shurtah), the market
authority (hisbah), and the judge (qadi), in the limited sense
represented by Ibn al Qayyim above.[15]
Indeed,
the responsibilities of each were not always exclusive or
well-defined. For, they differed in scope and overlapped, so that
sometimes certain responsibilities associated with one would be
charged to another in accordance with the desires of the ruler or as
a result of his policies.[16]
Usually,
the governor or the police commissioner was responsible for
investigating such serious crimes as hudood or qisaas. Likewise, the
market authority was usually responsible for assigning a punishment
designed to deter an action (ta`zir) for crimes against the general
public interest or misdemeanors. This authority was often called the
"market controller", as most of the cases were related to
crimes committed in the market place. The judge, sometimes called
hakim, was responsible for settling the civil disputes that involved
upholding rights and making sure that these were enjoyed by those
entitled to them.[17]
Scholars
of the procedural systems used in criminal cases divided these
systems into three categories:
-
The
System of Accusation. Criminal cases are heard on the basis of
their involving a dispute between two equal parties. Such cases
are brought directly to the judge, who has conducted no prior
investigation, so that he can weigh the evidence of both sides,
decide which argument seems stronger, and rule in accordance
with his findings.
-
The
System of Investigation. The accusation is investigated before
the actual trial starts. It resembles the present system, under
which the state apparatus (i.e., the police in cooperation with
the district attorney) undertakes these responsibilities. The
authorities have enough power and authority to discharge their
responsibilities. The defense of the accused consists of
gathering evidence to refute the charges.
-
The
System Combining Both of the Above. This system involves an
investigation in its first (pretrial) stage and an accusation at
the final, courtroom stage.
Modern
systems of legal procedure combine, to a greater or lesser extent,
aspects of these systems. At certain stages, features of one will
appear dominant, while at others features of another will appear
dominant.[18]
We
mentioned earlier that the Shari`ah does not provide a specific
procedural system, but rather left such details to the ijtihad and
understanding of those responsible for ensuring that justice is
done. History shows that one or a combination of these systems was
employed at different times by various Islamic states. And even
though the Shari`ah did not specify details of a legal system, it
did put forth general principles, the most obvious being that its
laws must be enforced and that justice must be done in accordance
with it.[19]
The
Accused
The
Rights of the Accused at the Investigative Stage. The word muttaham
(accused) comes from the root t-h-m meaning “to taint or decay”,
in the case of spoiled milk or meat. The Arabs also used it to say
that “the heat is rotten,” meaning that the air was still and
the temperature was very high. The area known as Tihamah, in
present-day
Saudi Arabia
, most probably got its name from the second meaning.
The
word tuhmah, or tuhamah, means “doubt” and “uncertainty.”
The initial “t” is no doubt a substitute for the letter
"waw", because the root of the word is w-h-m, which
connotes suspicion or misgiving. The Arabs used to say that “the
man gave rise to suspicion” when someone gave other people reason
to suspect himself/herself of his/her actions.[20]
In
legal terminology, the word can be traced to several hadiths. For
example, Ibn Abu Shaybah related in his collection al Musannaf, on
the authority of Abu Hurayrah, who said: “The Prophet of Allah,
may Allah bless him and grant him peace, sent someone to call out in
the market place that the testimony of a party to a dispute, like
that of one who is suspect, is not admissible. When the Prophet was
asked what he meant by one who was suspect, he replied: ‘One
concerning whose religion you have misgivings.’”[21] Ibrahim
used to say: “The testimony of one concerning whom you have
misgivings is not acceptable.”[22]
The
jurists (fuqaha’), however, used the term “the claimed
against” instead of “the accused.” In other words, they used
the root for “claim,” which is one’s seeking to establish that
one has more of a right to something than somebody else.[23] The
word for claim, da`wah, has the meaning of the infinitive. Thus, if
"X" claims a right over "Y" in the case of
money, "X" becomes the claimant, "Y" the claimed
against, and the money the claim or claimed. Lexically speaking,
however, a claim and an accusation are different things, for a claim
is essentially notification.
The
jurists understand this in the following ways: a) according to the
followers of Abu Hanifi school of fiqh, a claim is one’s
notification of one’s right to something over another present in
the court[24]; b) the followers of Maliki school of fiqh say that it
is a statement that, if accepted as true, will entitle the one
making it to a right[25]; c) according to the followers of Shafi`i
school of fiqh, it is notification of one’s right to something
over someone else before a judge[26]; and d) the scholars of the
Hanbali school of fiqh define it as a person’s ascribing to
himself/herself entitlement to something in the hand or in the
safekeeping of another.[27]
Jurists
also disagree in their interpretations of the words “claimant”
and “claimed against.” Some have defined the claimant as
"the one who is left alone if he/she leaves his/her claim
alone", while the claimed against is "the one who is not
left alone even if he/she leaves the claim alone". Others,
however, have defined a claimant as "the one who claims that
something is not as it is and effaces something that is
evident", while the claimed against is "the one who
establishes that something evident is as it is". Still others
define the claimant as "the one who is not required to enter
into a legal dispute", and the claimed against as "the one
who is required to do so." [28]
The
words derived from claim are used by jurists in cases pertaining to
financial rights and personal law, such as loans, usurpation, sales,
rentals, collateral, arbitration, bequests, criminal malpractice
related to wealth, marriage, divorce, allowing a wife to leave her
husband (khul`a), manumission, lineage, and agency. These were the
kinds of cases that were usually referred to a judge for a decision.
There
is nothing, however, to prevent the use of the word “accused” in
criminal cases. On the contrary, its use there is more suitable,
particularly in view of what we have discussed above regarding its
lexical derivation and legal significance.
Categories
of the Accused in Criminal Cases. Jurists divide those accused in
criminal cases into three categories: a) someone well-known for
his/her piety and integrity and thus unlikely to have committed the
crime of which he/she is accused; b) someone notorious for his/her
wrongdoing and profligacy and who is thus not unlikely to have
committed the crime of which he/she is accused; and c) someone whose
circumstances are unknown, so that nothing may be surmised
concerning the likelihood of his/her committing the crime of which
he/she is accused.
In
reference to the first category, the accusation will not be accepted
unless it is accompanied by legally valid evidence. No legal action
may be taken against such people on the basis of an accusation
alone. In this manner, decent people may be protected from the
deprecations of those seeking to bring dishonor upon them. There are
two differing opinions regarding the punishment for those who make
false claims or accusations against such people: a) the opinion of
the majority of the jurists, which says that the person should be
punished, and b) that of Imam Malik and Ashab, who held that
punishment should not be meted out unless it can be proved that the
one who made the accusation intended to harm or otherwise discredit
the accused. The legal principle upon which the majority’s ruling
is based on is that consideration must be given to the
circumstantial state of innocence.
In
regard to the second category, the principle of considering the
circumstantial evidence and following the principle of abiding by
what is most prudent, the accused may be deprived of personal
freedom. Thereafter, an investigation must be made of the alleged
wrongdoing to determine whether the accusation should be upheld or
rejected. The denial of the accused of the charges is not
sufficient as evidence, nor is his/her sworn oath. Rather, it is
essential to prove or disprove the truth of the accusation. In such
cases, the court authority (i.e., the ruler or the judge) has the
right to detain the accused for the duration of the investigation.
In
regard to the third category of the accused, one whose circumstances
are unknown, the ruler or the judge may detain the accused until
his/her circumstances are better known. This ruling, which was
accepted by the majority of scholars, including Malik, Ahmad, Abu
Hanifah, and their companions and students, was derived from a
hadith in which it is related that the Prophet detained someone
accused of a crime for a day and a night.[29] The meaning of
detention, as understood by classical jurists, is to hinder and to
limit freedom, regardless of whether this is accomplished by
confinement in a prison, by surveillance, or by being required to
stay within a defined area. The permissible period of detention is
also disputed. Basically there are two opinions: some have
determined it to be one month, while others have opined that the
matter should be left to the legal discretion of the official.[30]
Principles
That Must Be Considered:
The
Shari
`ah is concerned with the circumstantial state of a person’s
innocence, and jurists have based several legal rulings based on
their understanding of that principle. Moreover, this principle may
only be overruled due to irrefutable evidence or, in other words, an
evidence about which there is no doubt. Thus, it is connected
closely with the principle that certainty may not be overridden by
doubt. Indeed, the relationship of one principle to the totality of
all the others is like the relationship of a branch to a tree-trunk,
for the two are found together throughout jurisprudence literature.
In addition, they must be reconciled to the principle of protecting
society, by implementing preventative measures, from perceived
dangers with a high likelihood of occurrence. The same is true
with regard to the protection of what is considered essential to
society.
May
the principle of circumstantial innocence be superseded by something
that is likely to harm society if the principle is abandoned? Part
of that answer can be found in the above threefold division of the
accused. And perhaps the rest of the answer may be found in the
principles of opting for what is most prudent; for limiting
opportunities for wrong, and for doing away with what is
detrimental.
Islam,
which seeks to protect the rights of the individual, also seeks to
protect the rights of society as a whole. Therefore, no individual
may presume to overstep the rights of society while hiding behind
the veil of personal rights and freedom, and society may not trample
on the rights of the individuals or deprive him/her of his/her
rights on the pretense of some alleged peril. Islam honors and
exalts humanity and has given human beings many rights, above all
the right to life, physical well-being, honor and respect,
individual freedom, freedom of movement, and many others. Thus, an
individual’s home and personal life are sacred. No one has the
right to enter another person’s home without permission or to look
inside his/her home, to eavesdrop on private conversations, to open
one’s mail, or to do anything else that infringes upon those
rights.
Society,
in its capacity as society, enjoys similar rights. It is essential
that peace and security be maintained for society, that its
interests be upheld, and that crime be eradicated. If it becomes
necessary to maintain these rights by curtailing or suspending
temporarily the rights of an individual, then such an act will be
done based on the nature of what is dictated by necessity, which, in
turn, is determined by the extent of the necessity. What is dictated
by necessity represents the limit of power, set by the authorities,
given to the investigator over the accused. Thus, the power of the
investigator is essentially a departure from a legally established
principle for the purpose of realizing another legally established
principle, which cannot otherwise be realized.
If
the
Shari
`ah allows the investigator or the judge to place certain
restrictions on the rights of the accused to maintain the principle
of the rights of the society, it has also placed restrictions on the
power of the investigator, which represents guarantees to the
accused.
The
Authority of the Investigator. The authority enjoyed by the
investigator in relation to a person—concerning whom there is
doubt—is limited and, if it encroaches on some of the rights of
the accused, it certainly does not extend to any of his/her other
basic rights. It was for this reason that the Prophet called such a
person a “prisoner”. [31] This also establishes that the
accused will be maintained at the expense of the state.
Ibn
al Qayyim defined detention as “preventing the individual from
dealing with others in any way that would lead to their being
harmed.”[32] Other jurists considered detention as being in the
same class of punishment as the hudood. Accordingly, they opined
that, detention should not be prescribed on the basis of suspicion
alone. In fact, the overriding principle here is that the individual
is guaranteed personal freedom and the right of free movement: [He
it is Who hath made the earth subservient unto you, so Walk in the
paths thereof and eat of His providence] (67:15). Thus, a person
cannot be detained or deprived of freedom of movement without a
legally valid reason.[33]
Islam
has shown a great deal of consideration for the imprisoned and
his/her affairs. The Prophet once left a prisoner in the care of a
certain individual. He ordered the latter to care for and show
respect to the former and, thereafter, often visited the man and
inquired after the prisoner’s welfare. `Ali ibn Abi Talib, may
Allah be pleased with him, used to make surprise visits to the
prison in order to inspect its condition and listen to the
inmates’ complaints.[34]
It
is the state’s responsibility to provide ample food, clothing, and
medical treatment for all prisoners and to ensure that rights of the
detained are protected. Moreover,
Shari
`ah scholars have ruled that the first responsibility of a judge,
upon assuming his position, is to go in person to the jails and free
all who have been detained unjustly. He should go to each prisoner
and ascertain the reasons for his/her imprisonment. In certain
cases, he may meet with the accusers to determine whether the
reasons for imprisonment are still valid and if justice was done.
When
someone is imprisoned, it is the responsibility of the sentencing
judge to record the prisoner’s name and ancestry, the reason for
imprisonment, and the beginning and ending dates of the period of
imprisonment. Likewise, when a judge is retired and another takes
his place, the new judge must write to the old judge and ask him
about the people he sent to prison and why he did so.
The
Authority for Sentencing Someone to Prison. Jurists have
differed over who has the right to sentence someone to prison.
Al-Mawardi was of the opinion that an investigator’s authority
differs in accordance with his position. For example, if the
investigator is an official or a judge, and someone accused of theft
or adultery is brought before him, he cannot imprison the accused
until he learns more about the individual, for mere accusation is
not sufficient grounds for imprisonment. If the investigator is a
ruler or a judge in a criminal court, however, and if he deems the
evidence to be sufficiently convincing or incriminating, he may
arrest and detain the accused. Later on, however, if the accusation
should prove to be unfounded or untenable, he must release the
accused. In these details, most legal scholars accepted
al-Mawardi’s opinion.
The
Period of Imprisonment. Scholars also differed over how long a
person can be confined. Some said that it should not exceed one
month, while others felt that it should be left to the discretion of
the imam or the relevant court official. Indeed, the latter view is
"the more reasonable."[35]
By
now, it should be apparent that precautionary detention is allowed
only when the need for it is great and when certain conditions are
satisfied. Such matters related to: a) the objective for which
the accused was detained; b) the position of the one doing the
sentencing; c) the sentencing itself; and d) the length of the
sentence.[36] All of these are matters in which there is a great
deal of scope for the concerned court official to organize things in
accordance with the dictates of the legal policies of a particular
time or place. In other words, these are not fixed matters that are
closed to all change or development.
Investigating
the Accused’s Person, Residence, and Conversations. Allah has
protected and honored humanity and prohibited the touching of an
individual’s person, skin, or honor.[37] Likewise, He has declared
that a person’s home is sacred and must not be violated: [O ye who
believe! Enter not houses other than your own without first
announcing your presence and invoking peace upon the folk thereof.
That is better for you, that ye may be heedful. And if ye find
no-one therein, still enter not until permission hath been given.
And if it be said unto you: Go away again, then go away, for it is
purer for you. Allah knoweth what ye do] (24:27-8) and [O ye who
believe! Shun much suspicion; for lo! some suspicion is a crime. And
spy not, neither backbite one another] (49:12).
The
Prophet said: “Everything about a Muslim is sacred to another
Muslim; from his blood, to his wealth, to his honor”; Those who
listen to what people say about another, even when (they know) those
people are unfriendly toward that person, will have molten lead
poured into their ears on the Day of Judgment”; and “If the amir
seeks to uncover the doubtful things about people, he will ruin
them.”
There
are also other instances. For example, Ibn Mas`ud, when he was the
governor of
Iraq
, was told that “Walid ibn `Uqbah’s beard is dripping with
wine!” He replied: “We have been prohibited from spying. But if
something should become obvious to us, we will take him to task for
it.” It is related that one time `Umar ibn al Khattab was informed
that Abu Mihjan al Thaqafi was drinking wine in his home with some
friends. `Umar went straight to Abu Mihjan’s house, walked inside,
and saw that there was only one other person with Abu Mihjan. This
man said to `Umar: “This is not permitted to you. Allah has
prohibited you from spying.” At that, `Umar turned and walked out.
`Abd
al Rahman ibn `Awf related:
I
spent a night with `Umar on patrol in the city (Madinah). A light
appeared to us in the window of a house with its door ajar, from
which we heard loud voices and slurred speech. `Umar said to me:
‘This is the house of Rabi`ah ibn Umayyah ibn Khalf, and right now
they`re in there drinking. What do you think?” I replied: ‘I
think we are doing what Allah has prohibited us from from doing.
Allah said not to spy, and we are spying.’ So `Umar turned away
and left them alone.
Clearly,
the privacy of the individual and all other types of privacy must be
respected and preserved. This is true unless something occurs that
requires otherwise.
The
meaning of “suspicion” in the above verse is “accusation.”
The famed authority on legal interpretations of the Qur'an, al
Qurtubi, said that what was being prohibited in the verse is an
accusation that has no basis in fact, such as accusing someone of
adultery or drinking wine in the absence of any supporting evidence.
He wrote:
And
the proof that the word “suspicion” in this verse means
“accusation” is that Allah then said: [And spy not on one
another] (49:12). This is because one might be tempted to make an
accusation and then seek confirmation of one’s suspicion via
spying, inquiry, surveillance, eavesdropping, and so on. Thus the
Prophet prohibited spying. If you wish, you may say that what
distinguishes the kind of suspicion that must be avoided from all
other kinds of suspicion is that the kind of suspicion for which no
proper proof or apparent reason is known must be avoided as haram.
So if the suspect is well-known for goodness and respected for
apparent honesty, then to suspect him/her of corruption or fraud,
for no good reason, is haram. The case is different, however, in
relation to one who has achieved notoriety for dubious dealings and
unabashed iniquity. Thus there are two kinds of suspicion: that
which is brought on and then strengthened by proof that can form the
basis for a ruling and, secondly, that which occurs for no apparent
reason and which, when weighed against its
opposite,
will be equal. This second type of suspicion is the same as doubt,
and no ruling based on it may be given. This is the kind of
suspicion that is prohibited in the verse.
This
indicates that an individual may not be subjected to a search of
his/her person or home, surveillance, the recording of conversations
over the phone or elsewhere, the invasion of privacy in any manner,
or the disclosing of any confidences merely on the basis of a
dubious suspicion that he/she may have committed a punishable crime.
This is because unfounded suspicion is the worst possible kind of
suspicion, and the one who holds such a suspicion is a wrongdoer. It
adds nothing to the truth, and nothing may be built upon it unless
there is information to indicate it, grounds to confirm it, and
evidence to prove it.
It
should be noted here that Qur’anic commentators and authorities on
the legal interpretation of the Qur’an have all followed the legal
scholars in allowing arrest and precautionary detention. Indeed,
they made a distinction between those whose apparent lifestyles
indicate that they are honest and good and those whose apparent
lifestyles indicate that they are dishonest and unreliable. Thus,
they considered the prohibition to apply only to spying on honest
and decent people. In relation to others, however, these scholars
felt that spying on them is lawful.
The
Qur’an and Sunnah’s prohibition of spying is put forth in
general—not specific—terms. One’s previous record of having
transgressed or being accused is not sufficient to violate the
sacredness of his/her person or privacy in the absence of hard
supporting evidence. This view was held by `Umar when he refrained
from spying on Abu Mihjan al Thaqafi and Rabi`ah ibn Umayyah, both
were well-known for their love of strong drink. The same was true
when Ibn Mas`ud did not spy on al Walid ibn `Uqbah, although he was
notorious for his drinking habits.
Based
on these principles, the Shari`ah does not allow the searching of a
person or of one’s home, the surveillance of personal
conversations, the censorship of personal mail, and the violation of
one’s private life unless there is legally valid evidence to show
his/her involvement in a crime. Such evidence must be considered by
the authority responsible for carrying out the Shari`ah’s rulings.
This authority, obviously, must also be able to interpret correctly
the Shari`ah’s teachings and higher purposes, realize that these
rights are guaranteed by the Qur’an and the Sunnah, and that any
attempt to alter or particularize them will be considered a
violation of what those two sources have established. Therefore, the
above actions are permitted only if they can help determine the
circumstances of a crime, protect society by ensuring that criminals
do not go unpunished for their crimes, and ensure that the innocent
are not punished for the crimes of others.
In
short, the investigating authority may not go beyond what is
absolutely necessary. Moreover, those in authority should always
maintain proper Islamic behavior. For instance, if the person in
authority is male, he should not conduct a body search of a woman,
or enter a house where women are present. In addition, personal
property that has no relation to the alleged crime should not be
destroyed or confiscated.
Questioning
the Accused. The investigator may question the accused on any topic
that will help to reveal the truth and may confront the accused with
the accusation. The accused, however, does not have to answer those
questions, as will be seen in the sequel to this article.
The
Right to a Defense:
The
accused has the right to defend himself/herself against any
accusation. This may be accomplished by proving that the evidence
cited is invalid or by presenting other evidence that contradicts
it. In any case, the accused must be allowed to exercise this right
so that the accusation does not turn into a conviction. An
accusation means that there is the possibility of doubt, and just
how much doubt there is will determine the amount and parameters of
defense. By comparing the evidence presented by the defense with
that of the party making the accusation, the truth will become
clear—which is, after all, the objective of the investigation.
Therefore,
self-defense is not only the right of the accused to use or
disregard as he/she pleases, but is also the right and the duty of
society as a whole. If it is in the best interests of an individual
not to be convicted when he/she is in fact innocent, the interests
of society are no less important. It is the society’s concern that
the innocent are not convicted and that the guilty do not escape
punishment. It is for this reason that the
Shari
`ah guarantees the right to a defense, and prohibits its denial
under any circumstances and for any reason.
In
a well-known hadith, the Prophet is reported to have told `Ali, who
he has just appointed as governor of
Yemen
: “O `Ali! People will come to you asking for judgments. When the
two parties to a dispute come to you, do not decide in favor of
either party until you have heard all that both parties have to say.
Only in this manner will you come to a proper decision, and only in
this way will you come to know the truth.” It is related that
`Umar ibn `Abd al `Aziz said to one of his judges: “When a
disputant comes to you with an eye put out, do not be quick to rule
in his favor. Who knows, maybe the other party to the dispute will
come to you with both eyes put out!”
The
basic rule in regard to defense is that it should be undertaken by
the accused, as it is his/her right, if he/she is capable of doing
so. If not, he/she may not be convicted. This is why some jurists
have opined that dumb mute cannot be punished for hadd crimes, even
when all of the conditions regarding evidence have been satisfied.
Because if the mute were capable of speaking, he might be able to
raise the sort of doubts that negate the hadd punishment (for a
lesser, ta`zir punishment ), and by means of sign language only, he
may not be able to express all that he may want to. So, under such
circumstances, if the hadd punishment is administered, justice will
not have been served, because the hadd will have been administered
in the presence of doubt.
The
Accused’s Seeking Legal Defense from a Lawyer:
I
know of no opinions from the early jurists that permit the accused
to seek the help of a lawyer. Books dealing with Islamic procedural
law (ahkam al qada’) and the behavior of judges (adab al qadi) do
not mention this issue. This apparent omission might be due to the
fact that, historically, court sessions were public. As these
sessions were widely attended by legal scholars and experts, whose
presence represented a true and responsible legal advisory board
that actively assisted the judge in dispensing justice, there was
never any need for professional counsel.
Nonetheless,
it was the opinion of Abu Hanifah that the one who appoints another
to represent him/her before the court is responsible for whatever
ruling is passed, even though the one represented may not be present
when the ruling is made. Other jurists have given similar opinions.
In an authentic hadith, it was related that the Messenger said: “I
am only human, and some of you are more eloquent than others. So
sometimes a disputant will come to me, and I will consider him
truthful and judge in his favor. But if ever I have (mistakenly)
ruled that a Muslim’s right be given to another, then know that it
is as flames from the hellfire. Hold on to it or (if you know it
belongs to another) abandon it.”
There
are many
Shari
`ah texts that stress the need to settle disputes by whatever means
necessary. When we consider the great disparities in talent and
ability (particularly the ability to argue and debate effectively)
that exist between the disputants, even those brought before the
Prophet, we realize that any method that will lead to a just
settlement may be considered legally valid. Therefore, the
accused’s decision to ask for help in defending himself/herself
may also be considered valid, provided that the help comes from an
impartial and independent counsel. With the help of such counsel,
the accused may acquire a proper understanding of the charges
against him/her, of what the law says, of the weight of the evidence
presented, and of what may be used (and how it may be used) to rebut
that evidence. When taking all of this into consideration, we may
assume safely that the accused has the right to defend
himself/herself and also to seek the help of someone else.
Some
people might object to this on the grounds that while such a counsel
might be a more capable defender than the individual being defended,
it is also true that he/she might be more capable than the other
party to the dispute. As a result, a just settlement might never be
reached. But, one could counter this view by saying that what is
being sought is a settlement (that is as just as possible, and that
it is better to allow one the choice of counsel than to deprive
him/her of help in articulating his/her case and refuting the other
party’s arguments). It is also better than leaving any doubt in
the judge’s mind about what kind of punishment should be given. As
mentioned above, there should be no room left for doubt about the
final verdict’s validity.
In
his History of the Qadis of Qurtuba, al Khashini reports that two
men brought their dispute before Ahmad ibn Baqi. Believing that one
of the disputants seemed to know what he was talking about while the
other (who appeared to be honest and truthful) did not, he advised
the latter to find someone to speak on his behalf. When the man
replied that he spoke only the truth regardless of the consequences,
the judge replied: “It couldn’t be worse than (your
opponent’s) murdering the truth.” According to al Maridi,
however, if the judge tells the disputant to seek the help of
someone else, the individual chosen to serve as counsel may only
assist in establishing (not refuting) a claim. The judge may not
appoint an individual to represent someone else.
So
here we have two judges: one who advises a disputant to seek defense
counsel and another who considers such advice improper. Obviously,
then, this is a question of ijtihad. In such a case, it is quite
possible that the best opinion and the one closer to the spirit of
the
Shari
`ah is the one that allows a disputant to seek legal counsel. It is
even more likely that the right to legal counsel is indicated in
cases of penal law, whether in hudood cases (where only the rights
of Allah are involved) or in cases where the alleged crime involves
the rights of both Allah and His subjects.
Under
the procedures in contemporary courts of law, the accused is certain
to encounter an opponent, usually an attorney or a public
prosecutor, who is far more eloquent and capable of making legal
points than himself/herself. Under such circumstances, it is obvious
that the accused will need the services of someone who can present
his/her case and rebut the arguments put forth by the accuser. The
question that arises here, however, is whether the accused is
entitled to counsel while the case is under investigation or only
when it actually comes to court? If the question is subjected to
ijtihad and it is determined that the accused is allowed to seek
legal counsel, then it may be best for the accused to have legal
counsel at both stages. This also would help to establish the facts
of the case. In addition, if one is to prepare an effective defense,
it is necessary to acquire a complete understanding of the alleged
crime and the evidence so that the charges can be refuted. In
addition, information proving the accused’s innocence must also be
gathered and then presented effectively. This would indicate that
the accused should be allowed to seek legal counsel from the time
that charges are filed.
The
Accused’s Right to Remain Silent and to be Heard:
The
accused has the right of free expression without the fear of
reprisal or the use of truth serum, drugs, or hypnotism to obtain
information that he/she would otherwise not give.[38] The accused
may choose not to respond to questions. If he/she does respond and
it is later determined that the answers were false, he/she may not
be charged with, or punished for, bearing false witness. If the
accused acknowledges liability or confesses to a hadd crime, he/she
may retract his/her statement and thereby nullify the earlier
confession.
Statements
Made under Duress:
The
accused may not be pressured to confess. Ibn Hazm writes:
Therefore
it is unlawful to subject someone to tribulation, either by blows,
imprisonment, or threats. There is nothing to legitimize such
treatment in the Qur’an, or the established Sunnah, or ijma`, and
nothing may be said to be of the religion unless it comes from one
of these three sources. On the contrary, Allah Most High has
prohibited this and caused His Messenger to say: “Verily, your
blood, your wealth, your reputations, and your skins are sacred to
you.” So when Allah made both the body and the reputation sacred,
He prohibited the physical and verbal abuse of Muslims, except when
required by law as prescribed in the Qur’an and the Sunnah.[39]
Among
the most important conditions to be satisfied before a confession
may be accepted is freedom of choice. A confession submitted of
one’s own volition will be considered valid, as its veracity is
more probable than its prevarication. This assumption is based on
the fact that it is inconceivable that a rational person would admit
to something harmful unless there was a good reason to do so. If the
confession or admission of guilt or liability is obtained through
coercion, the probability of its being false will be considered
greater than its veracity owing to the factor of duress. As it was
given in the hopes of avoiding a greater (or more certain or
immediate) evil, it cannot be considered as having been given
freely, and therefore the majority of fuqaha’ have ruled that any
admission of guilt or liability obtained duress is invalid and
legally inadmissible.
In
the Qur’an, we read: [save him who is forced thereto and whose
heart is still content with the Faith] (16:106).” Here, Allah has
said that compulsion in grounds for canceling the sin of disbelief
and the prescribed punishment for apostasy. Therefore, it may be
considered grounds for canceling other matters. A hadith says that
the Prophet said: “The responsibility for mistakes, forgetfulness,
and duress has been lifted from my Ummah.”[40]
Abu
Dawud related that:
Goods
were stolen from the Kala`i tribe, who accused certain weavers [of
the crime]. When they brought the matter to Nu`man ibn Bashir, the
Prophet’s Companion, he imprisoned the weavers for a few days and
then let them go. The tribesmen went to Nu`man and said: How could
you let them go without beating them or otherwise subjecting them to
tribulation?” Nu`man replied: What did you want? Did you want me
to harm them? If your goods appeared [after they had been forced to
confess their whereabouts], that would have been that [and you would
have your goods back]. Otherwise, I would have had to take [as much
skin] off of your backs [in lashing them to get a confession] as
much as I had taken from theirs.” The tribesmen said: “So that
is your ruling?” Nu`man said: “That is the ruling of Allah and
His Messenger.”[41]
Umar
said: “A man is not responsible for himself if he is starved,
fettered, or beaten.”[42] Shurayh said: “Confinement is
duress, a threat is duress, prison is duress, and beating is
duress.”[43] Sha`bi said: “[Subjecting people to]
tribulation is an [blameworthy] innovation.”
It
should be clear from the foregoing that the scholars never
considered the authorities’ use of force against the accused to be
justified by the
Shari
`ah. On the contrary, such behavior was clearly prohibited by Allah,
who had His Messenger say: “Verily, every part of a Muslim is
sacred to a Muslim; his blood, his wealth, and his reputation.”
It
is related on the authority of `Urak ibn Malik that he said:
Two
men from the tribe of Ghaffar approached an oasis fed by the waters
of Madinah at which a number of the Ghatfan tribe were grazing their
camels. When the Ghatfan tribesmen awoke the next morning, they
discovered that two of their camels were missing and accused the two
Ghaffaris. When they took the two to the Prophet and told him what
had happened, he detained one of them and said to the other: “Go
and look.” The man in custody was treated as a prisoner until his
companion returned with the two camels. The Prophet said to one of
them, or to the one he had kept with him: “Ask Allah to forgive
me!” So the Ghaffari tribesman said: “May Allah forgive you, O
Messenger of Allah!” And then the Prophet said: “And you! And
may He grant you martyrdom in His way!” Later, at the Battle of
Uhud, the man died a martyr.[44]
It
is related on the authority of `Abd Allah ibn Abi `Amir that he
said:
I
set out with some riders and, when we arrived at Dhu al Marwah, one
of my garment bags was stolen. There was one man among us whom we
thought suspicious. So my companions said to him: “Hey, you, give
him back his bag.” But the man answered: “I didn’t take it.”
When I returned, I went to `Umar ibn al Khattab and told him what
had happened. He asked me how many we had been, so I told him [who
had been there]. I also said to him: “O Amir al Mu’minim
[Commander of the Believers], I wanted to bring the man back in
chains.” `Umar replied: “you would bring him here in chains, and
yet there was no witness? I will not recompense you for your loss,
nor will I make inquiries about it.” `Umar became very upset. He
never recompensed me nor did he make any inquiries.[45]
In
this instance, the Prophet sought forgiveness from one he had
detained on the basis of no more than an accusation. The rights of
one whose property had been stolen were considered invalid by `Umar
when the man told him he wanted the accused arrested even though
there was no evidence to indicate his guilt. In consideration of the
invalidity of something said under pressure, the majority of
scholars have opined that a confession obtained under duress is
similarly invalid and that nothing may legally result from it. [46]
Even
so, certain scholars did consider a confession obtained under duress
as valid if the accused was known for corruption and evil doing,
such as theft and the like. They cited the hadith of Ibn `Umar, in
which he reported that the Prophet fought the inhabitants of Khaybar
until they were forced to take refuge in their fortress. Seeing that
their land, crops, and orchards had fallen into Muslim hands, they
signed a treaty that their lives would be spared and that they could
take with them all that they could carry. All of their gold and
silver, however, would be left to the Prophet. All of this was
dependent on the condition that they hide nothing. If they ignored
this understanding, they would have no treaty and no protection.
Nonetheless, they hid some musk with the money and jewelry belonging
to Huyayy ibn Akhtab which he had brought with him when he was
banished with the Nadir tribe. The Prophet asked Huyayy’s uncle:
“What happened to the musk that your nephew brought with him from
the Nadir?” He replied: “The wars and other expenses took it.”
The Prophet replied: “But he arrived very recently, and there was
more money than that. . .” So the Prophet turned the man
over to Zubayr, who subjected him to some punishment. [47] Huyayy,
in the meantime, was spotted hiding in the midst of some ruins. So
they went there and searched, and found the musk hidden in the
ruins.[48]
This
hadith, however, concerns Jews in a state of war who had broken one
agreement (by fighting) only to seek refuge in another one, which
they also broke. How does this compare with inflicting pain on an
innocent Muslim whose guilt has not been established?
Some
later Hanafi scholars upheld the validity of a confession obtained
under duress. Sarkhasi wrote, in his al Mabsut: “Some of the later
scholars from among our shaykhs gave fatwas upholding the validity
of confessions obtained under duress in cases of theft, for the
reason that thieves, in our times, do not willingly admit their
crimes.”
It
is related that `Isam ibn Yusuf, an associate of Abu Hanifah’s two
companions[49], was asked about a thief who denied (having committed
a theft). `Isam replied: “Let him take an oath to that effect.[50]
But the amir objected: “A thief and an oath? Get the
whip!” Before ten lashes had been administered the man confessed,
and the stolen goods were recovered. `Isam said: “Praise Allah!
Never have I seen injustice appear so similar to justice than in
this case.”
In
Bazaziyah’s collection of fatawa, the validity of confessions
obtained under duress is also upheld. When Hasan ibn al Ziyad was
asked if it was permitted to beat a (suspected) thief until he/she
confesses, he replied: “Unless the flesh is opened, the bone will
never show through.”[51]
Ibn
`Abidin wrote: “Beating one accused of theft is a matter of
politics. So opined al Zayla`i. A qadi may do what is political, as
politics are not the exclusive domain of the imam.”[52] Yet there
is nothing to support the opinions offered by these scholars. It
should suffice (by way of refutation) that a Hanafi, `Isam ibn
Yusuf, described it as an injustice.
Moreover,
none of these reasons refutes or even weakens the evidence gathered
by the majority of jurists that it is illegal to obtain a confession
through the use (or threat) of force. Their opinions would be valid
only if there were contributing circumstances that indicated clearly
that the accused was guilty, that he/she had hidden the stolen
item(s), and if the evidence stipulated (for prosecution as a hadd
case) was not available. In such a case, a judge could use force to
recover what had been stolen.
But
even then, there is no evidence to support their opinion. In fact,
the Hanafi scholars agreed with the majority that a confession made
under duress was always invalid, except in a case of theft. Even in
cases of theft, they held that duress might be resorted to only in
order to recover stolen goods. Otherwise, the hadd penalty of
severing one’s hand may not be carried out even when there is
suspicion that force had been used.[53]
Ibn
al Qayyim, following the opinion of his shaykh, Ibn Taymiyah, upheld
the beating of those who were accused of theft if they already had a
notorious record of evil deeds. But this was only done in order to
recover the stolen goods. In his opinion, this admission under
duress was not the reason for carrying out the hadd penalty, as the
thief’s possession of the stolen goods was sufficient reason to
punish him. He wrote: “If the accused is beaten in order to obtain
his confession, and he does confess, and then the stolen goods are
found where he said they would be, his hand may be severed. The
sentence will not be carried out as a hadd penalty on the basis of
the confession obtained under duress, but because the stolen goods
were found where he, in his confession, had indicated they would
be.”[54]
Ibn
Hazm wrote:
In
a case, if there is no more [evidence] than a confession obtained
under duress, then this will amount to nothing, for such a
confession is condoned by nothing in the Qur’an, the Sunnah, or
ijma`. Moreover, the sacredness of a person’s flesh and blood is
an established certainty. Thus, nothing of that may be made lawful
save by virtue of a text or ijma`. If, however, in addition to the
confession there is evidence that proves what the accused had
confessed to, and that he had undoubtedly been the perpetrator, it
then becomes obligatory to carry out the hadd penalty against him.[55]
I
do not suppose that Ibn al Qayyim intended anything other than what
Ibn Hazm intended when he mentioned conclusive evidence obtained by
other means, so that the case may be decided by that rather than on
the basis of the confession alone. As mentioned previously, the
majority of jurists held that a confession obtained under duress was
invalid. Moreover, they maintained this to be so even when
circumstantial evidence indicated the contrary, as in the presence
of the stolen goods in the home of the accused, owing to the
possibility that the goods may have been placed there by someone
hoping to implicate the accused in the crime.[56]
Undoubtedly,
the opinion of the majority must be considered preponderant in terms
of prohibiting duress and nullifying the legal effect of whatever is
obtained under duress. This opinion is consistent with the teachings
of the Qur’an and the Sunnah in relation to the need to uphold
truth and justice. A confession obtained under duress cannot be
considered truth, and punishment awarded because of it cannot be
considered justice. Moreover, the only true deterrent to the dangers
that threaten society is the guarantee that truth and justice will
prevail. It is for this reason that duress must be considered a
source of innumerable evils.
Confessions
Obtained by Deceit:
The
use of deceit to obtain an admission of guilt from the accused was
preferred by Ibn Hazm, who cited a hadith[57] in which the Prophet
was reported to have used deceit to ensnare a Jew who had crushed
the head of a girl with a stone. In that instance, the Prophet
interrogated the man (after determining from the girl before she
died that the man had attacked her) and continued to question him
until he ultimately relented and admitted his guilt.[58]
Ibn
Hazm likewise mentioned that the Companions used deceit to obtain
admissions of guilt. As there is no coercion or torture involved,
Ibn Hazm considered it a good method. Earlier, Imam Malik had opined
that deceit was reprehensible, but Ibn Hazm disagreed and refuted
his arguments. However, it is more likely that Imam Malik’s
position is closer to the principles of Islamic law, for deceit,
after all, invalidates one’s choice and the voluntary nature of
the confession, even if it does not involve harm or the threat of
harm to the accused. In fact, the prohibition against duress owes
less to the factor of harm than it does to the matter of free will,
a matter upon which Islam is adamant.
The Accused’s Free Admission of Guilt And Right to
Retract:
In
terms of the validity of the accused’s retracting an admission of
responsibility, rights are of two varieties:
First,
there are rights for which the retraction of an admission is valid.
These are the hudood, which are the rights of Allah and may be
waived whenever doubts arise in relation to them. Thus if a person
accused of a hadd crime retracts, there is the chance that the
original admission was false and that the retraction is true. As
hadd penalties must be waived whenever doubts arise, one who has
confessed adultery, for example, can have this punishment waived if
he/she retracts his/her confession. All of the classical jurists
agreed with this, with the exceptions of Ibn Abu Layla, `Uthman al
Batti, Ibn Abi Thawr, and the ahl al zahir (the literalists). [59]
Imam
Malik, however, is reported to have said that a retraction is
acceptable only if it leads to doubt. Actually, there are two
versions of Malik’s opinion on when a retraction does not lead to
doubt. The best known version is that it will be accepted, while the
lesser known is that it will not. [60]
This
difference of legal opinion occurred in regard to the hadd penalties
for theft and intoxication. The jurists agreed generally that a
retraction may not be accepted in the case of false accusation
(qadhf). They also differed on highway (armed) robbery. One opinion
held that any retraction in such a crime may not be accepted,
because the rights involved were those of people in need of
protection, as in the case of false accusation (where the rights of
the innocent are to be protected). The second opinion is that
retraction should be accepted just as a retraction in the case of
adultery may be accepted. [61]
The
evidence for accepting a retraction of a confession to a hadd crime
comes from the hadith in which Ma`iz is prompted by the Prophet to
retract his confession to adultery: “Maybe you simply kissed, or
felt, or looked. . .” Had retraction not been an option,
the Prophet would not have prompted him in the manner reported.
Retraction of a confession to a hadd penalty may be made by
declaration, as in stating: “I retract my confession,” or by
indication, as when one flees from the place where the penalty is to
be applied. Likewise, a retraction may be made before or after the
judge rules.
The
second variety of rights, there are rights, financial or otherwise,
for which the retraction of a confession is not valid. These are the
rights of people. Clearly, the one confessing has no rights of
disposal over another’s property. However, since the confession
has the effect of establishing such a right for someone else, it
follows that its retraction invalidates someone else’s right. For
this reason, such a retraction, either by declaration or indication,
may not be accepted.
The
Accused’s Right to Compensation For Mistakes in Adjudication:
Certain
scholars hold the opinion that the
Shari
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