Rulings Governing Criminal Actions (1/7)
Abu`l Hasan al-Mawardi
Criminal actions refer to those prohibited by the shari'ah which Allah punishes with a hadd or discretionary punishment; in the case of mere suspicion of such an act, immunity is required by the dictates of the deen; when the occurrence of a criminal act has been properly established, then the full consequences, necessitated by rulings of the shari'ah ensue.
When there is suspicion, but before the act has been firmly established, then one must take account of the person who is investigating: if it is a judge, before whom a person has been brought accused of stealing or fornication, then this accusation is of no effect for him: he may not imprison him, be it to investigate, or to await his being proved innocent, and he may not proceed after compelling him to confess. Any claim against him is only entertained, in the case of theft, if it issues from a litigant entitled to the thing stolen, and one must take into account what issues from an avowal of the accusation or its denial. If he has been accused of fornication, the claim against him is not heard until he (the person making the accusation) has named the woman with whom he has fornicated, and has described what he did with her; as fornication carries the hadd-punishment: if he confesses, then he is given the hadd-punishment in accordance with his confession; if he denies it, and there are witnesses, then these are given a hearing; if there are no witnesses, then he is made to swear an oath - for the sake of man's rights but not for the sake of Allah's rights - if the litigant demands this.
If the investigator before whom the accused person is brought is an amir or his deputy and assistant, he has access to means of investigation and examination which are not available to the qadhis and judges. There are nine points of difference between the two:
First: it is not permitted for the amir to hear about the crime of the accused from the assistants of the amirate without checking the claim and without considering their statements regarding the circumstances of the accused: that is, whether he is of suspicious character, or whether he is known to have committed similar deeds. If he is innocent of similar acts, then the accusation against him carries less weight, and he is released as soon as possible and is not subjected to any rough treatment; if they affirm that he has committed similar crimes and they identify him with the like, then the accusation is strengthened, and an investigation is instigated in the manner we shall de* scribe below. Qadhis may not act in this way.
Second: the amir must take account of the circumstances of the case and the character of the accused - both of which are important as regards the strength or weakness of the case. Thus if the accusation is of fornication and the accused is susceptible to women, full of jest and charm, then the accusation is strengthened, and if the opposite of these is true, then it is weakened. If the accusation is regarding theft, and the accused is a scoundrel, or there are signs of blows on his body, or he was found with a sharp instrument at the time, then the accusation is strengthened; if, however, the opposite is true, then it is weakened. Qadhis may not proceed in this manner either.
Third: the amir may imprison the accused for the purposes of an investi* gation and enquiry. There is a difference of opinion as to how long he may be imprisoned. Abu 'Abdallah az-Zubayri, from amongst the followers of ash*Shafi'i, says, that his confinement for an enquiry or investigation should be for one month and no longer, while others say that it is not for a specific time, but rather depends on the judgement of the Imam and his ijtihad - and this is a more likely approach, Qadhis, however, may not imprison anyone, except for a specific legal cause.
Fourth: if the grounds for the accusation are sufficiently strong, the amir may have the accused beaten as a discretionary measure, not as a hadd-punishment, in order to compel him to be truthful regarding his situation and the crime of which he has been accused; if he confesses during the beating, then account must be taken of the reason for the beating: if he has been beaten to compel him to confess, this confession has no legal status; if, however; it was to extract the truth about his situation, and he confesses during the beating, then the beating is stopped and he is-asked to confess again; if he confesses, then he is judged according to this second confession, and not 'the first; if he restricts himself to the first confession, and a second is not asked of him, then he is not put under any more pressure, because one proceeds according to the first confession - although we dislike this.
Fifth: the amir may keep someone in prison until he dies if he repeatedly commits crimes, if he is not deterred by the application of the hadd-punishments, and if the people are being harmed by his crimes - that is, after he has arranged for his sustenance and clothing to be paid for by the bait aI-mal; this he may do in order to remove this harm from the people, although qadhis do not have this power.
Sixth: the amir may compel the accused to swear an oath, in order to clarify his situation, and to exert pressure on him during the course of the investigation of his affair, be he accused of infringing one of Allah's rights, or one of man's rights; he does not, however, make him swear upon his own divorce, or on the setting free of a slave, or on the giving away of property in sadaqah - as might be the case when swearing, in the Name of Allah, an oath of allegiance to the Sultan Qadhis may not compel anyone to make an oath which has a specific legal consequence, and may not go so far as to make someone swear upon their divorce or freeing a slave.
Seventh: the amir can compel criminals to make tawbah, and may make threats so that they turn in tawbah of their own accord; he may not. however; go so far as to threaten them with death in a matter which does not carry the death sentence, as this threat is made to intimidate and, as such, is not considered a lie but rather a part of discretionary and correctional measures. He may not carry out his death-threat and have him killed for a matter which does not carry the death-sentence.
Eighth: the amir may hear the testimonies of people of other religions, if they are numerous, whereas the qadhi may not.
Ninth: it is up to the amir to investigate incidents of assault, even if there is no fine or hadd-punishment prescribed. If none of them has any marks on him, he should hear the one who made the charge first; if one of them does have marks on him, some of the jurists consider that he should hear this person first, and not consider the person who was the first to lay the charge: most of the fuqaha, however, consider that he should hear the one who first made the charge. The one who began the attack is the most to blame, and is the one who suffers the more severe discretionary punishment. It is permitted to impose a different punishment on each, for two reasons: the first, because of the difference between their crimes and the degree of outrage; and the second, because of the difference of respect and self-esteem between the two of them: thus if he considers there is a benefit in making public and proclaiming the crimes of some low and mean persons, then he may do this.
These, then, are the differences between the ways amirs and qadhis may deal with the investigation of crimes, before, that is, it is established that any hadd-punishment (is necessitated): these differences arise because of the amir's concern with administration, and the qadhi's concern with the laws.
If it is established that a crime has been committed, then amirs and qadhis are alike in their execution of the hadd-punishments. Establishing that a crime has been committed is done in two ways, either by a confession or by proof and each is governed by a specific ruling, which will be discussed in the appropriate place.
The hadd-punishments are restraints imposed by Allah ta'ala, to prevent people committing what He has forbidden, or from abandoning what He has commanded them to do: this is because of what is contained in man's nature, which allows him to be dominated by pleasurable desires, and to forget the Next World for the sake of immediate gratification; thus Allah ta'ala has imposed these restraints to protect the ignorant from the torment, punishment and shame attached to such crimes, so that he is prevented from engaging in what He has forbidden, and so that what He has ordered is obeyed: from this ensues a benefit of the greatest significance which ensures that each carries out his responsibilities in the most complete manner. Allah ta'ala has said, "I have not sent you but as a mercy to all the worlds" (Qur’an, Surah Al-Anbiya’, 21: 107), that is, in order to save them from ignorance, and to guide them away from error, and to prevent them from acts of disobedience, and to urge them to obedience.
This being so, then these restraints are of two kinds: the hadd and the discretionary punishments. The hadd-punishments are also of two kinds: those regarding the rights of Allah, and those regarding the rights of man. As for the former they are also of two kinds: the first, those punishments resulting from abandoning obligations; and the second, those resulting from committing something which is forbidden.
(Continued)