Friday, December 27, 2013

Introduction to an Islamic Constitution for Syria and the Muslim world - Article 13

The following is the translation of an article from the book by Hizb ut-Tahrir entitled 'Introduction to the Constitution and the necessary evidences for it' which is the explanation of its draft constitution for the Khilafah state. This draft translation is from the second edition published in 2009 which was updated from the original published in 1963. Numerous brigades in Syria have agreed to the implementation of this constitution after the removal of the corrupt system that has brutally suppressed the people for decades. 



Article 13
In origin, every individual is innocent. No one should be punished without a court verdict. It is absolutely forbidden to torture anyone; and anyone who does this will be punished.

This article covers three issues: The principle of innocence, the prohibition of imposing a penalty without a judge’s sentence and the prohibition of torture.

As for the first issue, its evidence is derived from what was reported by Wa’il Ibn Hajr who said: “A man from Hadramowt and a man from Kindah came to the Messenger of Allah  and the Hadhrami said: “O Messenger of Allah , this man has taken from land which belonged to my father.” The Kindi said: “It is my land, it is in my possession and I am farming it. He has no claim over it.” the Messenger of Allah  said to the Hadhrami: “Do you have any proof?” He said: “No.” Upon this the Messenger of Allah  said: “In this case you have his oath.” He said: “O Messenger of Allah ! He is a rebel, he does not care what he swears and he does not fear of anything.” He  said: “You have no other rights over him but this” (reported by Muslim). He  also said, “the burden of proof is upon the plaintiff, and the onus of the oath lies with the defendant”(reported by al-Bayhaqi with a sahih chain). In the first narration, the Messenger of Allah  commissioned the plaintiff with the proof, and this means that the defendant is innocent until proven guilty; in the second narration, the Messenger of Allah  explained that in origin, the proof should be provided by the plaintiff. This serves as evidence that the defendant is innocent until proven guilty.

As for the second matter, its evidence is derived from the saying of the Messenger of Allah , “He whose wealth I have taken, here is my wealth, let him take from it, and he whose back I have lashed, here is my back, let him lash it” (reported by Abu Ya’la from al-Fadl bin ‘Abbas). Al-Haythami said that in the chain of Abu Ya’la Ata’ bin Muslim, who Ibn Hibban verified as trustworthy whereas others claimed he is weak, and the remainder of the men are trustworthy. It is narrated in al-Mu’jam al-Awsat of al-Tabarani with the wording “Whoever’s back I have lashed, here is my back let him do the same to it, and whosoever’s honour I have abused here is my honour let him do the same to it, and whosoever I have taken wealth from here is my wealth let him do the same to it”. And in Ibn Kathir’s al-Bidayah wa’l-Nihayah it came with the wording “Whoever’s back I have lashed, here is my back let him do the same to it, and whosoever I have taken wealth from, here is my wealth so take from it, and whosoever’s honour I have abused, here is my honour let him do the same”. The Messenger of Allah  said this in his capacity as a ruler; it means let the one who has been wrongly punished retaliate against me and this serves as evidence prohibiting the ruler from punishing any of the subjects without establishing the charge for which he deserves such punishment. Also, it is reported in the story of the mula’anah (husband’s accusation of his spouse of adultery without witnesses) that the Messenger of Allah  said “If I was going to stone anyone without proof I would have stoned her” (agreed upon and the wording is from Muslim), and this means that he  did not stone her due to the absence of clear proof even though there was doubt over her. This understanding is confirmed by what is narrated by Ibn Abbas in the narration in which the Messenger of Allah  ordered a mula’anah to be carried out between the couple (refer to Quran 24: 4-9), where the text says “So a man at the gathering said to Ibn Abbas: “Is she the woman about whom the Messenger of Allah  said: “If I were to stone anyone without proof I would stone such and such woman?”” He said: “No, that was a woman who used to display vice after Islam”” (agreed upon), meaning that she used to be indiscreet but it was not proven; neither through evidence and nor through admission. This means that the suspicion of adultery was there, but despite this the Messenger of Allah  did not stone her, for it had not been confirmed, and so he  said: “If I were to stone anyone, I would stone such and such woman”. The conjunction “if” in the Arabic language denotes abstention due to the absence of something, thus the stoning was not carried out due to the absence of evidence. This serves as evidence that the ruler is forbidden from imposing a penalty on anyone from among the subjects, unless he or she perpetrates a crime which the Shari’ah deems to be a crime, and once his or her perpetration of the crime has been proven before a competent judge and in a court of law, because the evidence could not be admissible unless it is established before a competent judge and in a court of law.

However, the ruler reserves the right to take someone accused of a crime into custody before the charge is established, pending a court appearance to look into the charge brought against him. However, the detention should be for a limited period of time and it would be wrong to detain the accused for an indefinite period. This period must be short. Evidence about the permissibility of detaining the accused is derived from what Al-Tirmidhi reported in a hasan narration, which Ahmad also reported, and al-Hakim stated that the narration has a sahih chain, on the authority of Bahz bin Hakim on that of his father on that of his grandfather who said: “The Messenger of Allah  detained a person accused of a crime and then he released him.” It has also been reported similarly by al-Hakim on the authority of Abu Hurayrah that “The Messenger of Allah  detained someone accused of a crime for a day and a night”, and though the chain includes Ibrahim bin Khaitam who there is dispute over, it has also been reported though other chains by al-Bayhaqi in al-kubra and Ibn al-Jarud in al-Muntaqi on the authority of Bahzi bin Hakim bin Mu’awiyah on that of his father on that of his grandfather: “The Prophet  detained someone accused of a crime for an hour during the day and then released him”. All of this is evidence about the obligation of limiting the period of detention, and that it should be for the shortest time possible, since the Messenger of Allah  detained him for a day and a night, and that he detained him for an hour during the day. Besides, this detention is not a punishment, but it is rather a detention aimed at helping with the enquiries.

As for the third matter, it denotes the prohibition of imposing a penalty upon the accused before the charge against him has been established; it also denotes the prohibition of imposing a penalty which Allah (swt) has made as a punishment in the hereafter, that is the Hellfire, in other words the prohibition of punishing by burning with fire. As for the prohibition of inflicting a punishment before establishing the charge, its evidence is derived from the narration of the Messenger of Allah  in which he  was reported to have said “If I were to stone anyone without proof, I would have stoned her” (agreed upon from the narration of Ibn Abbas), despite the fact that she was known to be an adulteress according to what is understood from the words of Ibn Abbas. If it were fitting to inflict punishment upon the accused in order to make them confess, the Messenger of Allah  would have tortured that woman to make her confess, knowing that she was indiscreet about her illicit behaviour. It is absolutely forbidden to punish the accused and therefore it is forbidden to beat the accused before the charge has been established. It is also forbidden to insult him or to inflict upon him any punishment as long as his guilt has not been confirmed. This is supported by what has been narrated from Ibn Abbas: “A man consumed alcohol and got intoxicated; he was spotted staggering in a mountain pass so he was taken to the Messenger of Allah . As he neared the house of Abbas, he gave his escort the slip and entered Abbas’s house and hid behind him. They mentioned this to the Messenger of Allah , so he  laughed and said: “Did he do it?” Then he  did not order them with anything regarding him” (reported by Abu Dawud and Ahmad, with the wording from Abu Dawud). So the Messenger of Allah  did not apply the punishment upon that man because he did not confess and nor were the charges against him established in his presence. This means that he was accused of drunkenness but this was not confirmed and thus he was not tortured in order to make him confess and no penalty was imposed upon him just for the mere accusation. Therefore, it would be wrong to inflict any punishment on the accused prior to the establishment of the charge before a competent judge and in a court of law.

As for the reports of “al-ifk” (the lie) incident that ‘Ali (ra) beat the slave-girl before the Messenger of Allah , it should be recognised that the slave-girl was not accused, thus it cannot be used as evidence denoting the permissibility of beating the accused. Besides the narration of ‘Ali’s (ra) beating of Burayrah, the Messenger of Allah’s  slave-girl, was reported by Bukhari and he said that ‘Ali (ra) said to the Messenger of Allah  “Ask the slave-girl”. It was the Messenger of Allah  who did the asking. Bukhari did not mention that ‘Ali (ra) had beaten the slave-girl. To quote from the narration “‘Ali bin Abi Talib said O Messenger of Allah , Allah has not made it hard upon you and there are plenty of other women apart from her, and if you asked the slave-girl she would tell you the truth.” So the Messenger of Allah  summoned the slave-girl and said: “O Burayrah!…” In another narration from al-Bukhari, it was reported: “The Messenger of Allah  came to my house and asked about my slave-girl, so she said: “No by Allah, I do not know of any blemish, apart from the fact that she would sleep to the point that the sheep would enter and eat her dough. Some of his companions rebuked her and said: “Tell the truth to the Messenger of Allah…”, and al-Bukhari did not mention that ‘Ali (ra) had beaten the slave-girl.

However, in other reports, it was mentioned that ‘Ali (ra) had beaten the slave-girl. Ibn Hisham mentioned that he did beat her. In the Sirah of Ibn Hisham it was reported: “As for ‘Ali, he said: “O Messenger of Allah  Women are plentiful and you can easily change one for another. Ask the slave-girl, for she will tell you the truth.” So the Messenger of Allah  called Burayrah to ask her, and ‘Ali got up and gave her a violent beating, saying: “Tell the Messenger of Allah  the truth.” To which she replied: “I know only good of her””. Assuming that this report is sound, it however does not stipulate the permissibility of beating the accused, because the slave-girl Burayrah was not accused in this case and it cannot be said that she was a witness. She was not beaten for being a witness because the Messenger of Allah  did ask other people but did not beat them. He  asked Zaynab Bint Jahsh and he did not beat her, despite the fact that her sister Hamnah Bint Jahsh used to spread rumours about Aaisha (ra) as al-Bukahri reported in the narration of al-ifk: “…And her sister Hamna set about fighting her battle, so she perished alongside those who perished”. Hence, Zaynab was suspected of knowing something and she was questioned, but she was never beaten. Therefore, it would be wrong to say that Burayrah was beaten in her quality as a witness; rather, she was rather beaten in her quality as the slave-girl of the Messenger of Allah . The Messenger of Allah  is entitled to beat his slave-girl and to order her beating. The Messenger of Allah did ask his slave-girl and he asked others as well and at the same time he kept silent over Ali’s (ra) beating of the slave-girl and over the companions reprimanding her. However he  did not beat any other person and nor did he keep silent over the beating of any other person, which indicates that he  permitted her beating because she was his  slave-girl, and one is entitled to beat his slave-girl in order to discipline her or to investigate a matter. Therefore, this narration cannot be used as evidence about the permissibility of beating the accused and the evidence pertaining to the prohibition of his beating stands; this is reflected in the saying of the Messenger of Allah : “If I were to stone anyone without proof I would have stoned her” (agreed upon from Ibn Abbas). Therefore, it is absolutely forbidden to beat, insult, reprimand or torture the accused. It is however permitted to detain him because evidence exists about this.

This is as far as the prohibition of inflicting punishment upon the accused prior to establishing the charge is concerned. As for the prohibition of inflicting a punishment which Allah (swt) has made a punishment in the Hereafter, its evidence is reflected in what al-Bukhari reported on the authority of ‘Ikrimah who said: “A group of apostates were brought to the Amir of the believers ‘Ali so he burnt them; Ibn Abbas heard of this and said: If I had been him, I would not have burnt them because the Messenger of Allah  has prohibited this by saying: Do not punish with the punishment of Allah”. Al-Bukhari narrated on the authority of Abu Hurayrah that the Messenger of Allah  said “No one can punish by fire except Allah. Abu Dawud reported from the narration of Ibn Mas’ud with the words, “It is not proper that anyone should punish by fire except the Lord of the fire”.  Therefore, if the accused was brought before a competent judge in a court of law and shown to have committed the crime he was accused of, he should not be punished by fire, nor by that which is similar to it, such as electricity and nor by anything else which Allah (swt) punishes with. Furthermore, it is forbidden to inflict any punishment from among those not decreed by the Legislator (swt). This is so because the Legislator (swt) has determined the punishments to be imposed upon the guilty parties, and these are killing, lashing, stoning, exile, cutting, and imprisonment, destruction of property, imposing a fine, vilification and branding any part of the body. Apart from these, it is forbidden to inflict any other type of punishment upon anyone. Hence, no one should be punished by burning with fire, though it is permitted to burn his property, and nor should anyone be punished by pulling his nails, nor by pulling his eyebrows, nor by electrocution, nor by drowning, nor by pouring cold water over him, nor by starving him, nor by letting him go cold and nor by anything similar. Punishing the accused should be confined to the penalties decreed by the Shari’ah and the ruler is forbidden from applying any other form of punishment apart from these. Therefore, it is absolutely forbidden to torture anyone, and whoever does so will be violating the Shari’ah. If it is established that someone has tortured anyone else, he will be punished. These are the evidences of this article.

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