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Chapter 5: Rulings

In this chapter some of the Fatwa’s or decrees issued by Imam Muhammad Shirazi, relating to the circumstances of prisoner are presented. Only few rulings on specific queries are presented for brevity.

Imprisonment

Under the Islamic system, prison is prescribed for specific cases, and therefore no one has the right to imprison someone except the legal Islamic judge/authority who can do so in the specific cases prescribed by Islam as mentioned in relevant books such as “al-Hudoud” 101.

If the imprisonment was not in accordance with the criteria prescribed (by Islam), then it is permissible for the prisoner to escape on the condition this does not cause (him) harm. Also it is imperative for he who is able to help the prisoner to escape to do so for this is a count of “prohibiting evil”.

It is permissible to escape from prison under an oppressive regime, but in the case of a just and consultative system, one may not escape from the prison. The same is applicable in escaping from the ruling of the oppressive regime and the ruling of the just system.

This is because the ruling of the despot is not valid even if it is in accordance with the laws of the Shari’ah, since he has no right to implement the laws of the Shari’ah. As for the ruling of the just ruler, then it is imperative to implement it, if it is not known to be incorrect, but if it is known, then it is not imperative to abide by it.

If one was illegally imprisoned, it is permissible for him to damage the building or dig a tunnel in order to escape. As to whether or not he is responsible for the damage, it appears that if the place belonged to the oppressor, then the prisoner is not responsible, and if the place belonged to another individual from whom it was forcefully taken, then the oppressor is responsible for the damage.

[The difference between confinement/restriction and imprisonment should be noted. If someone apprehends someone such that he cannot move or leave, and in this process he looses, say, his horse, vehicle, goods, etc. then he is not referred to as imprisoned but he is confined or restricted.]

The rights of prisoners according to Islamic teachings Confinement

If one is restricted or confined by another individual, the confined may take his case to the legal Islamic judge to prosecute the offender. No one has the right to restrict or confine another individual in a place, for this would be contrary to the Islamic principle declared by Rasulollah salla-llahu-alayhi-wa-aalih, “People have dominance over their selves and their wealth”. If one was restricted or confined, it is not obligatory for him to remain (there). In fact it is permissible for him to go to anywhere he wishes, unless this constitutes extreme danger for him.

If he knows that if he does not comply with the detainer, or does not stay in the place of confinement, he would be subjected to extreme harm, then he may remain there.

On the other hand, if his dissent is of higher priority, then he must leave even if it causes him harm. The same is applicable to cases of exile and deportation. If a despot sends to exile or deports an individual, he may return back to his normal place unless he would be exposed to danger as mentioned earlier.

If one is restricted or confined, and as a result he incurs losses; for instance he loses his horse, vehicle, goods, or belongings are stolen, then the offender is responsible for the losses incurred by the victim. This is due to the principle of “One may not do, or see harm”, and because it is the accepted norm, and thus is covered by the ruling of guarantee.

In fact it is not unlikely that the guarantee could extend to such cases like when one confines a woman with criminals, and as a result she is raped, or if one confines an individual who is the father/brother of a lady, and consequently the lady is raped. The individual who confined the woman or the father/brother of the lady is responsible for her Mahr or dowry (as one form of compensation).

[This case is only dealing with one particular aspect of the compensations involved, and not with criminal issues and their relevant punishments.]

If the one who has been confined or restricted loses income, for example if he normally earns certain amount, and he does not manage to do so because of the restriction or confinement, then the offender is responsible for the loss of income.

Rulings

This is again based on the principle of “No Harm” mentioned above. So if the confined usually does one particular job, then the culprit is responsible for the wage lost. If the victim works in more than one job, then the culprit must forfeit the wages for the jobs the confined usually does. In another scenario if the confined were to be free, and he would have done either one job or another with differing wages, then in case of confinement, the culprit must forfeit the average amount of the two wages.

Torture

No one has the right or permission to torture another individual; whether with traditional means such as whips, or with modern means such as electric shocks, etc. Needless to say for few specific cases as identified by Islamic law, pre-defined penalties are prescribed as mentioned in book of “al-Hudoud wal Ta’zirat”.

The penalties prescribed by Islamic law are not torture, but rulings for punishment prescribed by Islam for specific cases, implemented only when the crime has been proven in accordance with the Islamic law. This is being for the protection of the purity of society, and safeguarding its health and security.

The evidences for the illegality and prohibition of torture are numerous, and there is no difference in the prohibition of physical and psychological torture. It is not permissible to torture the criminal, and even the unbeliever, let alone the innocent.

As for the Hudoud – predefined penalties – and the Ta’zirat – penalties prescribed by a Muslim judge according to Islamic teachings – Islam prescribes them for very few cases. The execution of these penalties may only be carried out if and only if a number of conditions and criteria are met, and these criteria are such that they practically make carrying out the execution a rarity.

Furthermore, in the book of “Islamic Government” 102 the author mentioned that the Islamic judge has the permission to replace – in the case of Ta’zir – the whip with fine or prison sentence or any other punishment seen as fit. Shirazi, Muhammad; “al-Fiqh series”, volumes 101-102.

The rights of prisoners according to Islamic teachings In Islam it is not permissible to extract a confession from a prisoner by torture. In fact there is no validity in it if the confession is taken even without torture. Also confessions made before television cameras are void too. Confessions of an accused are only valid if he is outside prison, and he confesses willingly.

Fasting and hunger strike

In the case of the prisoner who is not sure of the beginning of the holy month of Ramadahn, he should act according to his deduction, and if that is not even probable, then he may start his month-long fast at the closest time he considers it to be correct. As for the prisoner who intends to go on hunger strike, it is permissible for him to do so if it does not constitute death, loss of limb, or loss of ability.

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