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” 80, 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 selves” 81:
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.
Rights of a Prisoner
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.
Writing, Teaching, Lecturing
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.
Health and Hygiene
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.
Food and Drink
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 him.” 83 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_Balaghah: 84
“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 you? 85”
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 released. 86 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 detention. 87 In another similar report, unless the husband would resume normal (sexual relationship with is wife), he would be imprisoned in an enclosure made of straw, and his food and drink rationed until he divorces (his wife). 88
Students of the prisoner
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.
Inspector of prisons
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.
Chastisement of prisoners
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.
Offence of prisoner
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 right to a defence lawyer
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.
Amongst prisoner’s rights
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.
Practice of Religion
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.
Religious rites and festivals
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 guarantors. 89 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 guards. 90
Choice of prison location
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.
Informing next of kin
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.