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Chapter 1: Freedom – a fundamental principle

Freedom is a fundamental principle in mankind, and therefore a suspect may under no circumstances be detained before conviction, except in cases where the probability of harm to the individual concerned would be greater than that of detention. In such circumstances it is permissible to detain the individual on the basis of priority of the urgent issues involved, and it is established that ‘urgent issues’ are evaluated on their merits …

On the same basis it is permitted to ‘imprison’ the suspect to protect him from the mob, that is, if in an emergency situation it becomes necessary to protect the life of the suspect, it is permitted to imprison him – for a specific period, if this proves to be the only option. This (permission) is based on the principle of priorities, which is referred to by reported hadith as well as the jurisprudential discussions presented by the author in relevant publications. Some of the reported hadith in this respect is outlined below:

Al-Sakouni narrates from Imam Saadiq (A),

“The Prophet (S) used to detain a murder suspect for six days, if the guardians of the victim produced evidence of murder (the detainee would be prosecuted), otherwise the detainee would be released.” 2 Imam Ali (A) is reported as saying;

“No detention for suspicion except for blood (i.e. murder), and detention after the truth has become known (about the innocence of the suspect) is oppression.” 3Imam Ali (A) is reported as saying,

“I do not apprehend on (the basis of) accusation, and do not punish on (the basis of) suspicion, and I do not fight except he who fights me.” 4 On the case of the insurgency of Khrit bin Rashid, from the tribe of Bani Najiyah, against Imam Ali (A), Abdullah bin Qa’een protested to Imam Ali (A) as to why he did not seek to detain him, saying “O Amir-ul- Mu’minin why do you not detain him now?” He (A) replied “If we were

The rights of prisoners according to Islamic teachings to do that to anyone (who is accused or suspected), the prisons would fill up with such people, and I do not see it in me that I could attack, detain, or punish them unless they wage war against us (who would be dealt with accordingly). 5

It is imperative that imprisonment, bar the exceptional circumstances as defined in Islam, must be avoided by all means, for the substantial harm it entails:

Economic harm; in this aspect, the prisoner stops his normal occupational activity and his expenses must be met by the treasury, which is that of the people. In addition there is the added cost of running the prison and its staff. Therefore the economic cost of imprisoning an individual is three fold; one the cost of stopping his labour/occupational activity, two the cost of his maintenance during his imprisonment, and three the cost of running the prison system.

Educational harm; where the prisoner is prevented from the education he would – normally – receive if he were free. Political harm; where he would not – normally – be able to take part in the political maturity, either for himself or for others. Social harm; where his family may end up being displaced, which in turn causes even more social harm.

Personal moral harm; where the individual normally develops (various) complexes, which will be reflected within the prison and without.

Family moral harm; where his imprisonment could lead to the detriment of family moral values – the wife and the children – in the absence of its breadwinner.

Construction harm; when the builder or the civil engineer is imprisoned.

Health harm; when a physician or other medical workers are imprisoned. Crime harm; where the criminal prisoner teaches the tricks of his trade to other prisoners, such that when a prisoner leaves the prison he would disseminate his newly acquired knowledge across the society at large.

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