In the Name of God, Most Passionate, Most Merciful
An Interpretative Memo on the Questionnaire of "Right to Fair Trial"
By Professor Gamal Attia
When I replied to the questionnaire sent by the organizers of the seminar, I talked briefly about the opinion of Islamic Law regarding each of the questions mentioned. And because most of the questions are related to certain topics my reply will not give a comprehensive image, especially in these questions that have different opinions in Islamic Law. So, I decided to prepare this memo to gather all the one-topic questions together to show the opinion of Islam in each of them, and to refer to the references that can be used for getting more details. I had to take out some questions from the section they belong to in the questionnaire and put them in another section for ordering them to join the similar ones in the same topic.
A. Treatment Prior to and During Trial
1. Accused's Silence
There is an Islamic norm mentioned in the "Majalla" (Civil Code of the Ottoman State) article 67. It says, "Nothing should be used against an accused's silence, but silence in the course of need, has significance." The details will come later regarding the case of a person who is unable to speak or unable to speak a language understood by those who listen to him. (See Section D) There are many applications of the first part of the norm.
They show that no sayings should be related to a silent person.(1) The second part of the norm means that silence of a person able to speak in the course of need has significance, under these conditions:
1 - There should be significance from the condition of the speaker, or:
2 - There should be a necessity to avoid deception and hurting that make silence have the significance of a confession.
There are lots of applications for each of the previous conditions. But the following one is important for us here:
"The unexcused silence of the accused should be considered denial to keep the accuser away from hurt by delaying his right."(2)
Considering silence in this case as denial has as a result that the measures of investigating the accusation should begin with the evidence rendered by the accuser.
We notice that the second part of the norm considers the silence in the course of need as significance. Beside considering silence as denial as mentioned in the previous case.
It could also be considered an acceptance as in the case of the silence of an attorney, that shows that he has accepted the warrant of attorney. And in case of the silence of the opponent, it is considered an acceptance of confession, and that is because both the warrant of attorney and confession do not need any acceptance although they could be refused.(3)
According to this norm, we can answer the questions 2(a), 2(b), 2(c) as the following:
a) Does an accused have the right to remain silent?
Yes, he has this right; And his silence is considered as denial.
-What formal or informal sanctions attach to the accused's refusal to speak to (1) the police, (2) other investigative authorities or (3) at trial or other hearings?
There should not be any sanctions for the accused's silence.
b) May the interrogator continue to question the accused after the accused has asserted his or her right to remain silent or desires to consult an attorney?
No, and he is allowed to consult his attorney to avoid any statements that can be taken against him in the trial. And this is an acquired right to him.(4)
c) Can an accused's silence be used against him or her at trial?
No; and silence is considered as denial as we mentioned before.
2. Value of Confession
There is an Islamic norm in the "Majalla" article 74. It says: "A person is taken by his confession." "Confession" in Islamic Law means that one agrees that he has duties to do.
There is some evidence of this norm i.e. The Holy Quran asks Muslims to document debts among them as the following: "The debtor should dictate his debt and he must fear God, his Lord and diminish not anything of what he owes."(5)
Unless his confession is acceptable, there would be no meaning for dictating his debt.
God also says: "O you who believe! Stand out firmly for justice, as witnesses to God, even though it be against yourselves . . ."(6)
The previous norm is also supported by logic because a person would not confess something harmful to him, so Islamic Law considers him unaccused when he confess it.
God say: Nay! Man will be a witness against himself.(7)
Abu-Hanyfa said that the confession should be in judges' council. But Malek, Shafei and Ahmed did not put this condition on a confession.(8)
3. Coerced Confession
Is it right to coerce the accused to confess committing a crime? Some people find it difficult to understand the opinions of Muslim jurists on this question because of confusion in three matters:
1 - Beating and/or detention leading to the accused's confession.
2 - Temporary detention.
3 - Beating and/or detention as a sanction for a real crime.
We should distinguish between these three matters to indicate what Islamic Law means by each of them.
a) For beating and/or detention and all other means of coercion, Jurists of all schools assure the freedom of the will for the confessor to take his confession in consideration; and his coerced confession is nil.(9)
This opinion was approved by Al-Hanafi,(10) Al-Malki,(11) Al-Shafei,(12) Al-Hanbali,(13) Al-Zeidi,(14) Al-Ibadhi,(15) Al-Gaafari,(16) and Al-Dhaheri(17) Schools.
We are going to mention Ibn Hazm's statement for being significant: "The accused is either accused of something he has not committed, or has done something bad. If he is accused of murder, adultery, theft, drinking spirits or anything else, he should not be detained because God say: 'and verily, guess is no substitute for the truth'."(18) The Prophet Muhammad (Peace be upon him) said: "Be careful of suspicion because you may tell lies."(19) Ibn Hazm said, "Laws should be used legally, so beating, detention or threat are not legal according to Quran, Sunnah and Islamic Jurisprudence, which are the three sources of Islamic Law. God has warned us through the prophet: 'Your blood, money, honor and skins are holy things', so, it is not legal to beat or insult somebody, illegally. God said, "He it is, Who has made the earth subservient to you, so walk in the path thereof and eat of his provision." So, being free is a right for every one and no one can forbid him from being so without having a law from Quran or Sunnah.
Ibn Hazm said that any confession taken from an accused under beating is not legal because Quran and Sunnah do not agree about it. The accused who has been beaten can complain about the person who had hurt him even if he be the governor or any one else. Al-Shafei's followers and Ibn Hanbal's have got evidence of that from one of the prophet's sayings: "My followers are not responsible in case they forget, have errors or are coerced."
b) For temporary detention, we will talk about it in detail soon.
4. The Case of Detention or Beating for a Real Crime
c) This is the case that some could not understand and know the differences between it and the case of coerced confession. Here it is a case of threatening punishment.
Ibn Al-Qaiyem said:
1 - It is known among jurists that there is a sanction for a debtor who acknowledges his debt, is able to pay it but refuses to do so. But bringing a person who denies a debt to those who hurt him is illegal because help in injustice is an injustice.(20)
2 - Ibn Al-Qaiyem gave another example of the sins that have no fixed penance or sanction such as minor theft and meddling with a lady and so on. In this case, reinforcement is obligatory for many jurists and it is only permitted for Al-Shafei. Beating for neglecting a duty as an educative measure may be done once to have the chance to do his duty; and if he did not do it, he could be beaten again according to his bearing and only up to the maximum allowed punishment.(21)
Ibn Al-Qaiyem explained the first example saying, "If the accused was beaten after making sure that he had taken the money so, it is legal to be beaten to pay something he owes and he can afford to pay as mentioned by Ibn Omar: "When the Prophet (peace be upon him) has agreed with Kaibar's people to take "the yellow and the white", he has asked Zaiyd Ibn Saeed, Uncle of Hoyai Ibn Akhtab, Where is Hoyai's treasure? He answered, "Expenses had exhausted it." Then he (peace be upon him) asked Al-Zubaiyr to punish him; and as a result he told them about the place of the treasure. This is the rule concerning beating the wrong-doer."(22) In another occasion Ibn Al-Qaiyem, after discussing the differences between remunerative or non-remunerative debts, said that Quran, Sunnah and Islamic Law show that the debtors who are able to pay but put off are detained either in case of remunerative or non-remunerative debts, and whether it was optional or obligatory for him. Detention is a sanction that becomes legal when it has a legal cause. And it is a type of punishment that should not be given on the basis of suspicion without making sure of its cause. The judge has to think deeply and make sure of the circumstances of the debtor and asks about him; and if he becomes sure of his guilt, he beats him or detains him till he pays. But if the judge does not get clear about him he delays him until he knows about his actual condition. The prophet Muhammad (peace be upon him) said to the debtor's opponents "Take what is available only." This indicates that they should not detain him or punish him. The prophet Mohammad (peace be upon him) has never detained a debtor, nor the Kaliphs Abu-Bakr, Omar and Othman.
We have mentioned Ali's saying in this question.(23)
We conclude by saying that detention or beating is a sanction related to reinforcement and threat in case of a real crime:
1 - In the first case, it's the crime of procrastination for not paying the debt. The prophet (peace be upon him) said, "A rich man's procrastination is a crime and has to be punished."(24) So his capability of paying is important to prove. But a man that has a hardship is excused because Quran says: "If the debtor is in a difficulty, grant him time till it is easy for him to repay. But if you remit it by way of charity, that is best for you if you only knew."(25)
2 - In the second case it is a sanction for the sins that have no penance or fixed punishment "taazeer" or that might take place again if a person repeated doing the same sin.
It is quite known that these sanctions are not defined; and it is discretionary with the judge or the ruler in cases of actions forbidden by Islam without giving the type of sanctions enforcing them. The judge or the ruler can give various kinds of punishment according to the crime, the circumstance and the character of the person who commits it. The sanction in this case can begin with blaming and scolding and ends with physical and financial sanctions less than the sanctions defined by the rules.
5. Various Forms of Coercion
It is appropriate now to talk about coercion that is forbidden, and the confession based on it is illegal. The question is: Is coercion limited to using physical violence with a person? Or would it include threatening him and his relatives and even his economic career such as dismissing him from his work or deceiving him? There are lots of details in Islamic Law that show that coercion can be physical or emotional. The physical coercion means actual threatening, but the emotional coercion means probable threatening. A minority opinion in the Hanbali School said that coercion means the physical side only, but the majority of jurists of this school agree with the other three schools that emotional coercion includes threatening of punishment, beating or killing or other ways. They have identified some conditions as coercion, and any confession based on it is illegal.
These conditions of coercion are:
1 - The threatening should be harmful in a way invalidating the free will, either being physical or emotional harm.
2 - The threatening should be realised or about to be realised if the accused does not respond.
3 - The threatener should have the capability of fulfilling the threat.
4 - To make the accused understand that the threatening may be fulfilled if he does not respond.
6. Confession through deceit.
Concerning deceit, the majority of Muslim jurists say that it is illegal. They even see to the contrary that the judge should dissuade the accused of not confessing even if he began doing it or to retreat if possible.(26)
Ibn Hazm differs and says that deceit is not the same as coercion.(27)
7. The Importance of Informing the Accused of the Result of his Confession
Concerning the importance of informing the accused of the result of his confession, it is narrated that Ibn Masoud asked a black lady called Salamah: "Have you stolen something? Say 'No'. When the others asked him 'Why do you help her?', he said 'You have brought a foreign lady that knows nothing about our Islamic rules and that if she confesses I would cut her hand.'"(28)
8. The Accused Abandoning his Confession
It is allowed to abandon one confession in crimes against the public such as adultery, drinking spirits or theft; and this is the view point of most Muslim jurists(29) either before or after the sentence or even during its execution.
9. Inspiring the Denial
It is narrated that the prophet Mohammed (peace be upon him) inspired the people accused of adultery and theft to retreat from their confession in order to keep them away from punishment.(30) The caliphs and judges followed after him the same way.
10. Confession is Limited Evidence
In the Majjalla there is an Islamic norm in article 78 that says: "Testimonial is a transitive (absolute) evidence, but confession is a limited one. The word limited means that it is related only to the accused not to any one else, because it is based on his sayings, but these sayings are not evidence against the others.(31) This can be found in the Sunnah. It was narrated by Abu Dawoud quoting Sahl Ibn Maad that a man came to the prophet Mohammed and confessed that he had comitted adultery with a lady he named. When the prophet called that lady and asked her, she denied it, so, he asked her to leave and ordered to whip the man.(32)
11. Searching the Accused Himself, His House and Violating His Privacy
The questionnaire does not contain questions about this matter; and I think that it is necessary to talk about it and show what Islamic Law says concerning it. Islamic Law forbids searching the accused, his house and violating his privacy (including his letters and telephone calls) to obtain proof of a crime. But Islamic law allows this when there are some indications. This rule is pure Islamic, but it is left to the discretion of judges to consider how strong these indications are and what is enough. It is illegal to alienate the accused's rights and freedom. Necessity only defines to what extent limitations to these rights could be allowed; and if there is no necessity for such limitation, it must be removed, and when a limitation is necessary, this must be done according to Islamic ethics.(33)
12. Temporary Detention
I indicated previously in item 3, that there is a misunderstanding of detention as a way of coercion to urge the accused to confess; and detention as punishment. Here, I want to talk about temporary detention. Islamic jurists say that man is free and he has the right to go wherever he wants, so a person is only detained when necessary. They mean by "detention" its broad sense: arrest and temporary detention, according to their use in modern Law. Ibn Al-Qaiyem defined detention as a measure that forbids a person from behaving freely, but it does not mean putting him in a narrow place. The majority of Islamic jurists agree that a person can be detained when committing a crime to prevent him from escape or to execute the sentence after the trial;(34) but they differ about the person who has the right to detain the accused, the person who is detained and the period of detention.(35) So, temporary detention is limited by some rules concerning its aim, its conditions, its period and the person who gives the order. Islamic legal policy plays a great part in defining these rules and limits. These questions are flexible according to the circumstances of place, time and public interest.(36)
Accusation in Islamic Law has two ways:
1 - individual accusation by the person hurt as a result of the crime, who may be the victim, his attorney or those who suffered from the results of the crime other than the victim himself, such as heirs or others.
The victim begins his action and goes on to litigation. He becomes the plaintiff and the accused is the defendant.
2 - General accusation in crimes concerning public interest is made by any person who fulfills certain conditions whether he is appointed by the government or not. This is an application of a collective duty to keep the values of society away from violation. (37) The plaintiff in this case who has no personal interest is a witness at the same time.(38)
2. Conditions of Validity
For a case to be acceptable it should fulfill some conditions called conditions of validity.(39)
If these conditions are incomplete, the judge waits till they are completed. Then he begins listening to the plaintiff in the presence of the defendant (accused) who is then questioned and has the right to get a copy of the case against him, and to ask the judge for a period of time to study it and prepare his defence. The defendant can also get copies of evidence, documents and proofs rendered by the plaintiff besides witnesses statements neccessary to prepare his defence.(40)
Both parties to the case are allowed to get an attorney, and it is forbidden to prevent the accused from defending himself because this is a legal right.(41) In case of having no attorney to defend the accused, judges used to urge him to get an attorney in case he is unable to defend himself.(42)
Trial without Undue Delay
There are two considerations in this question. The first is the importance of hearing the case to get the right to its owner. The second is the deliberation needed to grasp and understand the case according to the truth and applying the law to it, and to give the two parties of the dispute an opportunity to render proof and evidence besides studying the opponent's ones. According to these considerations, the judge begins hearing the case to reach the truth without giving any chance to any party of the dispute to unduly delay it. The judge then has the authority to time the trial according to the actual circumstances.(43)
There are obligatory delays for the judge such as:
- Giving the person of mania transitory (momentary madness) a year before divorce between him and his wife;
- And the Adjournment for four years in case of an absent husband before divorcing his wife by the court;
- The adjournment of distributing the part of the embryo before birth;
- And the adjournment of the underage child till he becomes an adult;
- At last, the adjournment of executing some sanctions as in case of the pregnant lady
until she bears her baby and weans him.(44)
Islamic Law knows two concepts: disabling and excusing.
Disabling takes place when the period of adjournment given to any of the parties is over before keeping his promise; in this case, the judge gives an order to disable him i.e. considering him unable to give evidence of the case if he is the plaintiff; and the judge does not hear from him if he is the accused.(45)
Excusing (as for Malik's followers) takes place if the period of adjournment is over and the judge asks the accused if he has any excuse before sentencing him. And if the judge gives his sentence before excusing the accused, his sentence becomes illegal. There are some exceptions that have no need for excusing such as the case of confession and the accused known for his debauchery and depravity.(46)
2. Prescription of Time
There is no rule for prescription in crimes of "taazeer" because organising their enforcement is the duty of the ruler. But in crimes against the individual there is no prescription because it is the right of the individual and can be cancelled only by forgiveness, conciliation or discharge. As for crimes against the public interest (Hudud) the majority of Islamic jurists say that they have no prescription. But Abu-Hanifa's followers see that prescription exists in these crimes (such as adultery, theft and drinking spirits); however, they do not consider it in case of slander.(47)
The Islamic norm expresses this by saying, "Rights don't fall by prescription of time whatever it lasts."(48)
Some Islamic jurists see that the case should not be acceptable if the plaintiff has left it for 33 years (Al-Sarkhasi from Abu-Hanifa's School), or 15 years (Al-Ramli from Al-Shafei's School). Their evidence is that, though the right does not fall, the ruler can prevent the judge from hearing the case after a certain period of time.(49)
After all, it is too difficult to say whether prescription helps trials without undue delay or not because this needs a statistical field study.
3. Open Trials
Trials should be open and attended by any one. But it can be behind closed doors as an exception in certain cases according to the judge's discretion as in family cases which should be secret.(50)
The concept of open trials may include the attendance of means of information, but cautiousness must be there because the accused is still considered innocent until declared guilty. The accused's reputation may also be hurt as a result of wide open trial, and it is of little help to wait until the sentence of his acquittal is issued.
Writing about cases in newspapers may also influence judges and witnesses, especially if particular writers, journalists and lawyers discuss or comment on them.
So, means of information should be limited to publishing sentences only, because a sentence is a proof of the truth, even if it is not final; and these sentences must be briefly spread without any comments or discussion to keep the respect and esteem of the judiciary. Academic circles only can analyse and discuss the sentences without personalisation.
Executing penal sentences should be done openly for two reasons. The first one is to advise the public of keeping away from committing crime. The second one is to relieve the victim before thinking of avenge. Also, executing the sentence is better done in the same area in which the crime has taken place.
4. Trials in absentia
Confrontation of opponents is a principle of Islamic law. It means that no procedures of the dispute must be taken such as hearing evidence, confession, denial or testimony without the attendance of opponents or/and their attorneys; and without their attendance the trial is illegal. This principle is approved by Abu-Hanifa's followers and the other Islamic jurists.
But it is legal to take the procedures of the case if the accused refused to attend or send his attorney. It can also be done in case of a far and absent accused.
Abu Hanifa's followers see that it is illegal to hear the case without the attendance of the opponents. According to the jurists of the other schools, the sentence can be issued without the attendance of the absent party, who has the right to defend himself when he comes back and render his proof and evidence. Islamic jurists made it legal to issue the sentence during his absence to keep the plaintiff's right if his opponent was deliberately absent.
Because of the importance of the principle of confrontation of opponents, Islamic jurists agree about informing the opponent of notice of the case, and if he does not attend, the judge sends him a messenger; if he insists on not coming, he is brought by force.(51)
If the sentence is issued during the absence of the accused, and he comes back with accepted evidence, the judge can cancel his sentence. But if the accused has no real evidence, the judge asks the plaintiff to take oath. If he does, the sentence becomes valid; but if he does not, the judge cancels the sentence issued and announces the accused's acquittal.(52) This also means that the plaintiff has the same legal situation including studying the documents and the witnesses' statements.
For the trial of a dead person: it is not legal in penalty matters, but in civil ones, heirs are parties. The sentence is valid within the value of the heritage; but if there is something additional, the heirs are away from it.
5. Trial of Mentally Incapacitated Persons
If mental incapacity takes place at the same time as the crime, the sanction is cancelled but the act is still considered as a crime. That is why, from the civil side, his financial responsibility is stated because finance and blood are protected.
If incapacity took place after the crime and before the sentence, the judge stops the trial (Malik's and Abu-Hanifa's followers) because responsibility which is a condition of punishment is not available. But for Al-Shafei's and Ibn Hanbal's followers the judge goes on with the trial because the responsibility is only requested when committing the crime; however, they do not accept the incapacitated's confession.
If incapacity took place after issuing the sentence, Al-Shafei's and Ibn Hanbal's followers see that the execution of the sentence should go on except in crimes of fixed punishments when the sentence is based on confession only.
They say that sanctions were legislated to punish the wrong-doer and restrain others; and if punishment is stopped for incapacity, inhibition is still enough to justify the execution of the sentence.(53) As for Maliki and Hanafi they are of the opinion to stop execution in this case.
6. Recourse to an Interpreter
If one of the parties or both of them do not talk the judge's language, they should get an
interpreter. Some jurists are content with one, while others ask for two interpreters. In all
cases the interpreter should satisfy the conditions of competence and good reputation.(54)
7. Attendance of Witnesses and Examining Them
Certain conditions must be satisfied by witnesses, such as straightness, meaning avoiding major sins and not insisting on minor ones. If the witnesses are unknown to the judge, he can inquire about them by sending some of his assistants to ask about them in their places of work and homes. This can be done also if the opponent doubts the witnesses. But the judge's assistants must be unknown to the opponents (parties) lest they may try influencing them. Islamic Law schools have various approaches in checking the straightness of witnesses, which I will not be able to discuss here.
The witness should not be suspected of false statements i.e. to have a personal dispute with one of the parties, or to be one of their relatives or to have business or marriage together.
In examining witnesses, Islamic jurists have some opinions regarding negative testimony in the course of the accused's defence. They may accept it in case of certainty, and they determine the cases in which certainty could be realised.(55) The opponent has not only the right to examine his opponent's witnesses but also to discuss any evidence or proof rendered to the court. Written testimony is not allowed if the witness did not come to the court to be examined. But there is what is called the "testimony of testimony" i.e. two other witnesses report the absent's testimony. In this case, their statements and the absent's statements are investigated and their testimony examined according to the same procedures previously explained. This kind of testimony does not have the same reliability as direct testimony because of the additional doubt added to the ordinary doubt that surrounds any testimony such as errors, forgetfulness or telling lies. So, Islamic jurists differ in accepting it in fixed punishment crimes where proof is invalidated by any suspicions.(56)
Islamic jurists pay special attention to the testimony of policemen and officials. Some jurists find that such testimony must not be accepted because it is from the men who arrested the accused and may add to their statements in order to complete their task. They also may have beaten and detained the accused, and this makes their testimony unacceptable. All jurists agree to distinguish between those who help the governor in his injustice, and therefore their testimony is unaccepted and those who do not help the governor, and therefore their testimony is accepted.(57)
7. Presumption of Innocence
There are two legal norms in Islamic law: one of them (article 4 of "Majjalla") stipulates that Surety does not end by suspicion;(58) the second one (article 8, the same Majjalla) stipulates that "In principle one is not liable."(59) These two norms cover both civil and penal fields. The norm of "The accused is considered innocent till being found guilty" is one application of these two previous norms. Another application will be the norm under the following section which says, "Fixed punishment crimes (Hudoud) are removed by suspicion." If the suspicion is not strong enough to convince about the guilt of the accused, two bad contradictory things may take place. The first is spread of crime in case of acquitting the accused for lack of evidence against him; and the second is punishing him without being really sure of his guilt. So we have to accept the less bad solution which is the spread of crime.
The holy Prophet Mohammad (Peace be upon him) expressed that in one of his sayings told by Aisha (his wife): "Remove punishments as possible as you can; and set the accused free if he has a chance, because it's much better for the judge to be wrong in acquittal than to be wrong in punishment."(60)
8. Degree of proof required in civil and criminal cases
The system of proof in Islamic Law does not belong to either the free or the limited systems, but rather to the mixed system. This includes in limiting the various proofs, fixing the value of each, the freedom the judge has, and his role in the question of evidence. All this depends in the first place on the subject of the case.
a. Criminal cases
One of the conditions of accepting the confession is that it must be in detail and quite clear without any suspicion. For principal crimes such as adultery and drinking spirits the accused must keep his confession i.e. insist on it and not hesitate. Confession should take place four times in case of adultery in the opinion of Ibn Hanbal's and Abu Hanifa's followers (Abu Hanifa's followers say that it must be in four judiciary councils). But Al-Shafei's and Malek's followers see that one confession is enough.
In theft, Ibn Hanbal's followers, Abu Yousif and Zufar (Abu-Hanifa's) see that confession must be twice. The majority of Islamic jurists see that one confession is quite enough. In remaining crimes such as murder, slander, wounding and minor crimes, one confession is enough.(61)
Witnesses are also limited in number to two in all crimes except the crime of adultery, which needs four witnesses.(62)
The rule of "removing punishment by suspicion" is applied in crimes for which the Quran defines their sanctions. In the matter of suspicion Islamic Law has a complete theory whether it is related to the doer of the action, the action itself, or the proof and also the strength or weakness of the suspicion besides its occurrence during the action or after it. Modern law can benefit greatly from this theory.(63)
b. Civil cases
In civil cases, one confession is enough. Two witnesses are enough, but in some cases one witness is accepted in addition to the plaintiff's taking oath or without it according to the cases mentioned by Islamic jurists and in which they differ.(64)
Quran ordered Muslims to authenticate credits in writing. And although the order is quite clear, most Islamic jurists see that it is optional not obligatory. Some of them see that it is obligatory.
c. Commercial cases
Trading debts are an exception in the above mentioned rule i.e. there is no need to authenticity in writing.
D. From the above we can see that the judge is limited to certain evidence -- a certain number of confessions and witnesses in some cases. Islamic jurists have created specific rules to guide the judge in solving the problem of interference of evidence. Most Islamic jurists agree about this except Ibn Al-Qaiyem and some recognized jurists who give the judge more freedom in the field of evidence considering that evidence is just a means to reach the right in an action not something related to worship.(65)
9. The Role of the Victim
In Islamic Law, the victim plays the essential part in the accusation, so, his role is continuous from the beginning of the case until its end. Public prosection has a role, as well, in case of public concern. In Islamic history, Al-Mohtaseb has played this role. The role played by public prosecution does not prevent the victim from practicing his role as a plaintiff in the case, and the pubic prosecution goes on defending the public concern even if the victim abandons his right; and at the same time, the victim has the right to go on playing his role as a plaintiff even if the public prosecution abandons the accusation. The victim also has the right to demand civil compensation.
There is what is called the action of "Hisba" in which a person with no private concern brings an action and becomes a plaintiff and a witness at the same time. They call him "Muhtasib." Jurists have limited such actions to matters related to public concern and weak people's interest.(66)
In Islamic countries that follow this system, the court informs the public prosecution as soon as the victim or "Muhtasib" brings the action.
10. Independence of the Judiciary
Islamic law demands certain specifications in judges(67) such as knowing the law,(68) so there is no place in the Islamic judiciary for a jury or arbitrator who does not know the law because both the judge and the arbitrator should have the same specifications. But recourse to experts is allowed according to the Quranic rule: "Ask people of knowledge if you don't know," and to the legal norm "to each job, priority should be given to the best qualified in it."(69)
The objectivity and neutrality of the judge in Islam are based on certain principles that have been explained in Islamic judicial books. They can be mentioned briefly as the following:
Some of the moral conditions must be found by the judge such as being straight i.e. by staying away from doing major sins or insisting on minor mistakes. Modern laws' expression of "good reputation," is not as developed as, "straightness" in Islamic law.(70)
The judge must adhere to some rules in his work and his private life such as: his mood, hunger, anger, traits and uniform. He should also be courteous in the judicial council.(71)
He should also be fair in hearing the case and be objective. So he is not allowed to work in business or accept presents, private invitations (and bribes of course). He cannot hear a case of his own or one of his friends or relatives, or even enemies.(72) Any judge's sentence becomes illegal if he did not follow the previous prohibition.(73)
The independence of the judiciary in Islam is based on the following two principles. First, Islamic law has got the utmost supremacy. This is the key of all legalities. Judges get their power from the mastery of the Sharia (Islamic Law) they support.
Second, Executive authority is submitted to Islamic Law. People obey the ruler according to the order of God: "You who believe obey God and obey the messenger and those of you who are in authority.(74) The prophet Mohammad interpreted this by saying: "No obedience to a human being disobeying God. "Obedience must be in permitted things only." Judges can decide if the ruler's order is within Islamic Law and therefore should be obeyed or not.
The Judiciary is independent from the Executive although the ruler chooses and appoints judges. He himself may be questioned in the council of judiciary as any other individual because Islam does not give any priviliges or exemptions to the ruler. The messenger Mohammad (Peace be upon him) was a great example of that.(75)
If the ruler in Islam has no exemptions, other people of power and political or military rank can be questioned, too. The court of the aggrieved (victims of injustice) was established long ago in Islam to enforce law on people of authority and power.
It is known that a lot of recognized scholars refused to be judges lest they should face people of authority and power if they try rejecting the independence of the judiciary, or to avoid mediation and intercession.(76)
The modern concept of legislative authority has two councils in the Islamic system.
The first contains the leaders of the nation and representatives of its various sectors who have the right to elect the Caligh (ruler), question and unseat him. This council is the council of control.
The second one is the council of legislative authority that contains the studious people who try to endeavor in matters that have no direct rule in Quran or Sunnah i.e. exist in the so called legislative vacuum. They follow the principles of jurisprudence (Usoul Fiqh) and secure the supremacy of Islamic rules based on Qur'an and Sunnah.
The two councils do not contract the authority of judiciary which is concerned with hearing civil disputes among persons and punishing those who commit crimes i.e. its work is the application of law not leglislating it.(77)
The matter was that not so long ago Islamic jurists wanted the judge to be diligent to deducing the sentence in the area of a legislative vacuum and apply it in the case in front of him. His opinion did not bind other judges or even bind him in a future case if he knew a better opinion. This system is different from what is followed in the Anglo-Saxon system based on the authority of precedents.
The above mentioned system of judiciary did not last long and was replaced by following the rules of certain Islamic Law schools i.e. the school of the chief judge, so, separation took place between the authority of legislation and the authority of the judiciary. But the system of advisers sitting in the council of judiciary was followed.(78) It is difficult now to follow the system of the diligent judge for three reasons: i) there is not enough diligent judges; ii) it is important to have unified rules to be followed by all judges;
iii) it is important that individuals know the rule before the occurrence of the crime or the act so they can behave accordingly.
F. Decision, Sentencing, and Punishment
1. Grounding and Declaring Sentences
Islamic jurists defined the idea of grounding of sentences and the judges actually used it. Al-Shafei (died in 204 H.) as well as Ibn Al-Qassim and Ashhab (Malek's companions) wrote about it. Islamic jurists talked about the factors that should be found in the record of sentences. Grounding includes actual evidence and lawful proof.
Some Islamic schools considered grounding obligatory in all sentences, but others made it imperative in some cases only.
It was defined that besides registering grounding in the record of sentences, the judge would try to relieve the sentenced person by explaining to him the evidence and proof of both parties and telling him the reasons for the sentence so the sentenced person would know that the judge was fair. This way was followed to make people trust judges.(79)
Islamic scholars recommend reading the sentence aloud in the hearing, and the sentence itself when registered was ended by the judge's testimony and the witnesses present.(80)
All this takes place either in civil or criminal cases.
2. Retroactivity of Law
In Islamic Law, there is the rule of "Legality of crimes and sanctions" and another rule of "No retroactivety of criminal legislation to the past." There is an exception to this if the new law is better for the accused than the old one under which the crime took place. This is called Retroactivety of the most useful law for the benefit of the accused, and all Muslim jurists agree about this. Some add another exception in case the new law is concerning dangerous crimes affecting the public order and security.(81)
3. Collective Sanctions
Islamic Law supports individual responsibility according to clear texts in Qur'an and Sunnah. Thus, there is no place for collective sanctions in Islamic law.
This should not contradict some rules of social solidarity such as "Aakilah" and "Qassamah" as they relate to civil but not criminal responsibility. It means to pay the civil indemnity by the collectivity of the wrongdoer (family or district or work fellows) to keep the victim's or his heir's right.
4. Death Penalty, Cruel, Degrading, Treatment or that which Involves Torture or Mutilation
The Death penalty exists in Islamic Law for three of the most dangerous crimes that threaten people's life, security and family and they are: deliberate murder, highway crime and adultery by a married person. All scholars agree about death penalty in these crimes because it is mentioned in Qur'an and Sunnah. But Islamic scholars differ concerning the other types of crime. Some of them allow the death penalty in dangerous crimes in which other kinds of sanctions are not effective.(82)
Whatever the matter will be in this question, Qur'an shows the aim of this sanction in case of murder. "And there is a saving of life for you in the law of equality in punishment" to assure that the death penalty is a preventive sanction.
Conciliation and forgiveness can take place with the victim's heirs because Islamic Law considers that the victim's right in this crime is more important than the society's right.
The execution of the death penalty can be delayed for 2 years in case of a pregnant lady to give her the opportunity to bear and care for her child.
Some contemporary opinions say that some sanctions in Islam are cruel and hard such as the sanctions of whipping, stoning and cutting because they contain torture and mutilation. In this matter we notice that:
1 - These sanctions are mentioned in Qur'an and Sunnah i.e. not decided by Islamic jurists, and they are found also in Christianity and Jewry.
2 - Executing these sanctions depends on the proof of the crimes. Islamic Law concentrates on proof especially in crimes of fixed punishment and any suspicion is interpreted in favour of the accused. So, these sanctions play a more preventive role than a retributive one.
3 - Attenuation and commutation are used in executing the previous sanctions including death penalty according to the following conditions.(83)
4 - Attenuation through adjournment exists in two cases: for a pregnant lady and for a diseased person waiting recovery.
5 - Attenuation in the case of a person who has a chronic disease or is weak, exists in form of quality and quantity.
6 - The consideration of sanctions in Islamic law is based on the balance between the concern of the accused, the victim and society. This is reflected in defining the purposes of the sanction in punishing the accused, relieving the victim and discouraging others to follow the example of the convicted.(84)
G. Appeal or Other Review in Higher Courts
There are two considerations in this question. The first is the necessity of having stable sentences that keep rights and become a sign of truth. The second one is correcting mistakes that the judge could commit as a human being. To deal with the previous two points, all kinds of review such as appeal, cassation, and petition for review are allowed in judicial procedures. Islamic law has known all forms of review known now. The modern organization of these ways of review do not contradict the rules of Islamic Law; they rather accomodate it.(85)
The review of the sentence can be done by the same judge or by another one equal to him or of higher rank such as the chief judge or, the Caliph or Diwan Al-Mazalim according to the cases.(86) The review is made upon the application of the convicted person or without it according to cases. The cases in which the review takes place can be classified as the following:
If there is a material error in the sentence it is then corrected by the same judge or another one.(87) If there is an error related to issues of facts, there are two possibilities:
Where there is a sentence in absentia of the accused who comes back and submits negative proof that has not been submitted to the judge before, a new sentence is pronounced by the same judge or another one.(88) Where there is an error in facts, it can be reviewed by a higher judge.(89)
If there is an error in the law, there are also two possibilities:
If it contradicts a conclusive text in Qur'an and Sunnah, the sentence could be reviewed by the same judge or another one of higher rank.(90) If the decision is according to a diligent opinion the sentence is neither reviewed by another judge of the same rank nor of a higher rank if he has a different opinion. It is also not reviewed by the same judge if he changes his opinion. That is because of a legal norm which says, "A diligent opinion is not removed by another diligent opinion."(91) The reason for this is to keep stability of sentences.
If the judge has no propriety to hear the action, either because one of the parties is the judge himself, one of his relatives, his friends or his enemies, or the action is out of his assignment, his decision is reviewed in all these cases. If the sentence was given by an ignorant judge who is then dismissed for this reason, or if the judge helped the ruler in his injustice and the ruler himself was substituted by another one, all the sentences given under his rule would be reviewed.(92)
Except in the above cases, the sentence is final except procedural and intermediate decisions which are considered within the action i.e. before giving the sentence.(93)
1. Penitence and forgiveness
Penitence is an excuse impeding the punishment in highway crimes according to Quran "except those who repented before they fall into your power, in that case, know that God is Oft-Forgiving, most merciful." This means that the accused has to repent before being arrested by the authorities of the State.
People's rights such as their finance and lives do not fall by repentance; but only by forgiveness of the victims.(94)
As for penitence in other cases, Islamic scholars have two viewpoints.
Some say that penitence is not a reason for excuse (Al- Dhaheri's, Abu-Hanifa's, Malek's and some of Al-Shafei's followers). Some others see that penitence is a reason for excuse in all fixed punishment crimes (Al-Shafei's book "Al-Omm, Ibn Al-Qayem and Ibn Hanbal) in crimes against the society. But if aggression took place against the individual's rights, penitence does not prevent punishment, only forgiveness of the victims does.
In crimes of Taazeer (non-fixed punishment), penitence is only accepted if the ruler or the authorities have so decided. Penitence, in the cases mentioned above, means to regret and stop doing sins with the intention of not committing them again. Some Islamic scholars give the judge the authority to estimate the penitence in a realistic way within the proof and evidence rendered to him. The judge does not consider the penitence if it is false, and in such case he decides on punishment.(95)
We come now to forgiveness. In the beginning, we state that comprehensive forgiveness by the ruler is illegal in all crimes mentioned in texts of Qur'an and Sunnah. But in crimes fixed by the ruler forgiveness is accepted. The reason comprehensive forgiveness in the first kind of crimes is not accepted is that the deeds are qualified as crimes in Qur'an and Sunnah. So, the parliament and/or the ruler cannot remove it.(96)
For special forgiveness (in case of specific person or persons sanction) we should differentiate between the crimes against individual concern and the crimes against the concerns of society. In the first kind of crimes, forgiveness is given only by the victim or his heirs in case of his death. The action itself is not brought without the victim's or the heirs' demand. In cases of Qisas, forgiveness may include both the civil compensation and the sanction. Forgiveness in this case is the victim's right, but the accused can still be punished if the authorities want to keep the society's right (in this case the public right sanction is optional).(97) The forgiveness by the ruler in crimes of Taazeer (non-fixed punishment) does not affect the victim's right. But in crimes against society's rights, the ruler cannot decide forgiveness even if the victim gives up the compensation. (So, the sanction here is obligatory.)(98) All this, naturally does not affect the results of penitence in crimes of public right as we mentioned above.
I. Remedy Solutions for Protecting Rights and Compensating Damage
The parties of the dispute have rights, so, what is the penalty defined as a result of violating these rights? Also the normal course of the dispute may cause some damages; how are they compensated? There are legal norms that govern this question such as the one that says, "No damage or assault" (article 19 in "Majjalla") and the norm of "Damage is removed" (article 20, the same Majjalla) besides the norm of "The judge's error is covered by public treasury" and other norms. We are going to investigate this question in the following.
1. Defining the person in charge and conditions of responsibility
When damage that occurs for one of the parties is caused by one of these persons:
1 - The plaintiff that misuses the right of opening an action by hurting the accused or using dirty means such as forged documents, falsified witnesses and taking false oath and so on. This action can be brought against a policeman or public prosecution if they accuse people without any evidence or use bad ways in investigations such as torture, deceit and so on.(99)
2 - The accused who denies the right and procrastinates and tries to delay the trial to annoy the plaintiff and hinder him; such a person may use illegal ways such as false documents and false witnesses, etc. This question is also related to administration authorities and their attorneys if they follow the same illegal ways in actions open against official administrations.(100) All of these people can be questioned either because of misusing the right to go to court or for following the wrong procedures. Responsibility in this case is civil or criminal or both according to the circumstances.
3 - False witnesses who cause the loss of the plaintiff's action, or help a person to get the right of another, are accused of false testimony.(101) This accusation includes also those who recommend witnesses and the experts consulted by the court.
4 - The judge who makes a major error that causes injustice to any of the parties of the dispute, has the civil responsibility and the public treasury holds it up, in cases of undesigned errors. But in cases of deliberate errors, his responsibility is civil, administrative and criminal; and the public treasury holds it up here as a sponsor to keep the plaintiff's right if the judge was not solvent. In case of minor errors, there is no need to question the judge or the public treasury.(102)
2. Compensation and types of damage
The mistakes made by any of the above mentioned persons cause damage to the others.
The kinds of damage considered are:
1 - Physical damage.
2 - Incorporeal damage such as psychological harm and offending reputation.
3 - Financial damage that includes loss of benefit or actual harm.(103)
J. Procedures for Juveniles
Criminal responsibility in Islamic law is based on the factors of comprehension and free choice, so the rules related to juveniles depend on their stage of development. There are three stages:
1 - The stage of the youngster who has no comprehension. It ends at seven years of age. In this stage he is not questioned either in criminal or discipline terms, but he is financially responsible for paying compensation to people who suffered from an injury caused by him.
2 - The second stage begins at seven and ends at the age of maturity which is not agreed upon by Islamic scholars (i.e. 15, 18, or 19 for a man, and 17 for a woman). In this stage he is not questioned criminally but he is disciplined in a way defined by the person in charge, such as beating, blaming or putting him in a reformatory school or any other way of education. And he is financially responsible if he caused damage to others.
3 - The stage of legal age in which he is completely responsible.(104)
The principle of appropriation of judiciary was defined by Islamic Law since long ago. It means making the authority of a judge related to a certain place, a certain period of time, certain persons or certain kinds of action. As a result of this there is a judge for juveniles.(105)
There are special detailed rules in Islamic Law which are related to the jurisdfction over the person or the finances or the guardianship of a juvenile and the cases in which the judge may interfere to protect a juvenile. The juvenile's guardian represents him in all affairs and in court. If the juvenile has no guardian, the court appoints one for him.
K. Other Courts
Military, emergency, special and administrative courts have common elements in Islamic Law. First, their judges should fulfill the conditions required in an ordinary judge, such as straightness and knowledge of Islamic Law. Second, the unity of law is applied in these courts i.e. Islamic Law. So, they are just an application of the principle of appropriation mentioned before.
Military courts are ordinary ones that specialize in actions of soldiers. The judge was called "The judge of soldiers" long ago in these courts. As a result this judge has no jurisdiction over civilians. He must on the other hand apply Islamic law including all the guarantees mentioned in the previous sections of this paper. Books of history tell that the commander of soldiers himself was subject to the jurisdiction of this civil judge. What is happening now in countries of totalitarian regimes is just the contrary i.e., civilians are under the jurisdiction of the military judge.
Emergency or special courts as understood in the modern concept are not known by Islamic law because no court is extralegal or above Islamic Law.
Administrative courts are also one application of the principle of appropriation of judiciary because there is no special law to apply to the disputes between individuals and authorities. The administration has no special advantages more than individuals. The government employees are under labour law and the contracts are under civil law, and so on. The idea of public concern or interest is developed within the general law according to some Islamic norms such as: "Governing people is conditioned by keeping public interest" (article 58), "No harm or adversity" (article 19), "Damage has to be removed" (article 20), "Necessities allow the forbidden" (article 21), "Necessities are proportioned according to their value" (article 22), "Private damage is to be afforded to avoid public damage" (article 25), and etc.
Islamic history has known the idea of "Diwan Al-Mazalim" which was a supreme court aiming at protecting the supremacy of law on the people in power and authority and to protect human rights, justice and legality. So, it was an early application of some modern judicial systems such as: courts of cassation, constitutional courts, administrative courts and courts of human rights.(106)
l. Al-Qisas: laws of equality in punishment for wounds etc. in retaliation.
2. Ar-Rajm: to stone to death married persons who commit the crime of illegal sexual intercourse.
3 Diwan Al-Mazalim: a kind of supreme court whose main task was to enforce law over influential persons.
4.) Diya (Diyat plural): Blood money (for wounds, killing, etc.) compensation paid by the killer to the relatives of the victim.
5. Figh: jurisprudence i.e. opinions of jurists
6. Halal: lawful
7. Haram: unlawful
8. Hudood: crimes whose punishment has been fixed by Quran and Sunnah.
9. Hukm~ : a judgement of legal decision. It was used in this memo as meaning "rule".
10. Majjalla: code of law of the Ottoman State, taken mainly from the Hanafi school rules. The first 100 articles contain the main norms of Islamic law.
11. Mohtaseb: generally speaking any learned person can advise others -- within special limits -- to accomplish their duties and avoid wrong deeds. It developed in appointing an official person to carry on this without jeopardizing the right/duty of individuals to do it.
12. Mujtahid: independent jurist who does not follow others opinions except with proof from Quran and Sunnah.
13. Sharia: Islamic law, especially the two sources: Quran and Sunnah.
14. Sunnah: sayings and acts of the Prophet that have become models to be followed by Muslims.
15. Taazeer: acts considered as sins or crimes, but whose punishment is not fixed in Quran or Sunna. It was left to the authorities to fix otherwise to the judge's discretion in each case.
16. Ulul-Amr/Ulil-Amr: Quranic expression meaning people who carry the responsibility of the nation's affairs. It includes the leaders of the nation whether executives, political or academic. Their obedience is a duty.
1. Shaikh Ahmad Al-Zarga, Sharh Al-Qawaid Al-Fikhia, Dar Al-Gharb AlIslami, 1983, p. 273; Ali Ahmad Al-Nadawi, Al-Qawaid Al-Fihia (Islamic Law Norms), Dar AlQalam, Damascus & Beirut, 1986, p. 419.
2. Zarga (note 1), pp. 274 and 276.
4. Bandar bin Fahd Al-Suwailem, The Accused: His Treatment and Rights in Islamic Jurisprudence, Arab Center for Security Studies and Training, Riyadh, 1987, pp. 337-343; Arab Center for Security Studies and Training, Riyadh, First Symposium about the Accused & His Rights in Islamic Law (hereinafter "Arab Center Symposium"), tomes 1 & 2, 1986, tome 1, p. 41.
7. Ibn Al-Qaiyem (d. 751h.), Al Torok Al Hokmia, Dar Al-Kutub Al-Ilmia, Beirut, 1953, p. 14; Nadawi (note 1), pp. 381-382.
8. Abdel Kader Ouda, Islamic Penal Law, tomes 1 & 2, Dar Al-Torath Al-Arabi Cairo, 1977, tome 2, pp. 437 and 489.
9. Id., tome 1, p. 563; id., tome 2, p. 306; Bandar (note 4), pp. 101-118 and 180-184; Arab Center Symposium (note 4), tome 1, pp. 21, 42 and 48; id., tome 2, pp. 79-86, 102, 106, 116-124 and 145; Mohammad Selim El-Awa, Origins of Islamic Penal Law, Dar Al-Maaref, Cairo, 1979, p. 294; Awad Mohammad Awad, Studies in Islamic Penal Law, 2nd. ed., Scientific Research House, Kuwait, 1983, p. 124.
10. Ahmad Al-Hosari, Science of Juridiciary (means of evidence), tome 1 (1977) & tome 2 (1979), Maktabat Al-Kuliyat Al-Azhariya, tome 2, p. 28.
11. Id., pp. 43 and 368.
12. Id., pp. 63-64.
13. Id., pp. 74 and 186.
14. Id., p. 237.
15. Id., p. 90.
16. Id., p. 82.
17. Id., tome 1, p. 53.
20. Ibn Al-Qaiyem (note 7), p. 106.
21. Id., pp. 106-107; Sulaiman bin Khalaf Al-Bagni Al-Andalusi (d.474h.), Fusul Al-Ahkam, Arab House for book, Tunisia, 1985, p. 119; Muhammad bin Eissa Ibn Al Manassif (d.620h./1223c.), Tanbeeh Al-Hukkam ala Maakhith Al-Ahkam, Al Turki Publishing, Tunisia, 1988, pp. 283 and 286.
22. Ibn Al-Qaiyem (note 7), p. 108.
23. Id., pp. 63-64. Reference is made to a saying of Calif Ali that he was never detained for civil debt. He said it is unjust.
24. Al-Awa (note 9), p. 250.
25. Abdul Kareem Zeedan, Judiciary System in Islamic Law, 2nd ed., Al Rissalah, Damascus & Beirut, 1989, p. 287; Al Hassaf, Conduct of the Judge, annotated by Jassas (d.370h.), Trabzoni, 1980, pp. 134-141; Al-Awa (note 9), p. 250.
26. Awad (note 9), p. 127; Arab Center Symposium (note 4), tome 1, p. 48; id., tome 2, p. 437.
27. Bandar (note 4), pp. 118-122.
28. Awad (note 9), p. 127.
29. Ouda (note 8), tome 2, pp. 314, 438, 440; Awad (note 9), p. 127; Awa (note 9), p. 29; Arab Center Symposium (note 4), tome 1, p. 12; id., tome 2, pp. 145, 180, 187-198, 203-229, 242-262, 275-289; Bandar (note 4), pp. 366-378.
30. Arab Center Symposium (note 4), tome 2, pp. 206, 211, 217, 219; Hosari (note 10), p. 378.
31. Zarga (note 1), p. 327; Nadawi (note 1), p. 361.
32. Ouda (note 8), tome 2, p. 304.
33. Awad (note 9), p. 123; Manassif (note 21), pp. 286-288; Arab Center Symposium (note 4), tome 1, p. 37.
34. This is the opinion of the majority of jurists, but there are two other opinions: one of Ibn Hazm and some Shafeis and some Hanbalis say that it is not allowed to detain an accused and the second of Hanafis is that it is allowed to detain in Hudood and Qisas. See, Bandar (note 4), pp. 80, 100; Bagni (note 21), p. 119.
35. They differ concerning duration. Some say it is not limited, some say one month and all have no legal argument. It is rather a question of legal policy. See, Bandar (note 4), p. 97.
36. Awad (note 9), p. 118-121; Bandar (note 4), p. 80, 100.
37. Id., p. 30; Zeedan (note 25), p. 112.
38. Id., p. 113.
39. Id., p. 110; Muhammad Raafat Othman, Judiciary System in Islamic Jurisprudence, Al-Falah Library, Kuwait, 1989, pp. 153-168.
40. Zeedan (note 25), pp. 139, 141; Muhammad Abdel Rahman Al-Bakr, Judiciary and Judges Personality in Islamic System, Dar Al-Za, 1988, p. 298; Bagni (note 21), p. 136; Ibn Abi Al-Damm (d.642h), Conduct of Judiciary Adab Al-Qadaa, 1st ed., Dar Al-Kutub Al-Ilmia, Beirut, p, 86; Manassif (note 21), p. 197.
41. Abn Sand, Unpublished paper submitted to a symposium on teaching law at Qatar University, 23-26 December 1995; Awad (note 9), pp. 109-114; Bandar (note 4), pp. 289-305; Bakr (note 40), pp. 279-284; Zeedan (note 25), pp. 129-131; Manassif (note 21), pp. 277-282.
42. Awad (note 9), pp. 113-114; Arab Center Symposium (note 4), tome 1, pp. 36-41.
43. Bandar (note 4), pp. 305-314; Zeedan (note 25), pp. 146-147, 258; Bakr (note 40), pp. 281-286.
44. Zeedan (note 25), p. 146; Bakr (note 40), p. 284.
45. Zeedan (note 25), p. 147.
46. Bandar (note 4), pp. 312-314; Bakr (note 40), pp. 286-288.
47. Awad (note 9), pp. 315-325.
48. Nadawi (note 1), p. 308.
49. Raafat (note 39), pp. 170-172.
50. Zeedan (note 25), pp. 142-143; Bakr (note 40), pp. 252-259; Mohammad Sallam Madkoor, Judiciary in Islam, Dar Al-nahda Al-Arabia, 1964, pp. 48-49.
51. Bakr (note 40), pp. 293-299; Bandar (note 4), pp. 327-336; Raafat (note 39), pp. 153-163; Manassif (note 21), pp. 257-263; Damm (note 40), pp. 205, 218, and 344-365; Zeedan (note 25), pp. 149-154.
52. Id., p. 152.
53. Ouda (note 8), tome 1, pp. 593-599.
54. Zeedan (note 25), p. 143; Zarga (note 1), p. 289; Bakr (note 40), pp. 722-723.
55. Bandar (note 4), pp. 360-366; Zeedan (note 25), p. 172.
56. Zeedan (note 25), pp. 170-171; Hosari (note 10), tome 1, p. 288, 301, 338-347 and 423-426.
57. Id., pp. 226 and 269-273.
58. Zarga (note 1), pp. 35-41.
59. Id., pp. 59-68.
60. Awa (note 9), pp. 87-100; Awad (note 9), p. 114; Bandar (note 4), pp. 383-386; Nadawi (note 1), pp. 242-243; Arab Center Symposium (note 4), tome 1, pp. 189-199, 221-265, 267-282.
61. Bandar (note 4), pp. 176-204.
62. Zeedan (note 25), pp, 187-194; Bandar (note 4), pp. 158-160.
63. Muhammad Abu Zahra, Crime and Punishment in Islamic Jurisprudence (Punishment), Dar Al-Fikr Al-Arabi, pp. 198-240; Awad (note 9), pp. 53-94; Awa (note 9), pp. 87-100; Arab Center Symposium (note 4), tome 1, p. 168.
64. Zeedan (note 25), pp. 188-194.
66. Zeedan (note 25), pp. 169-170; Damm (note 40), pp. 319-322.
67. Zeedan (note 25), pp. 28-29 and 32; Raafat (note 39), pp. 107-118; Bakr (note 40), pp. 337-342 and 610-631.
68. Raafat (note 39), pp. 120-132; Zeedan (note 25), pp. 29-30; Bakr (note 40), pp. 343-353.
69. Nadawi (note 1), pp. 400-401; Bakr (note 40), pp. 727-730.
70. Zeedan (note 25), pp. 28-29 and 32; Raafat (note 39), pp. 107-118; Bakr (note 40), pp. 337-342 and 610-631.
71. Zeedan (note 25), pp. 121-124.
72. Bakr (note 40), pp. 610-621; Zeedan (note 25), pp. 71-76.
73. Bakr (note 40), pp. 669-685; Zeedan (note 25), pp. 63-67.
74. Zeedan (note 25), pp. 271-272.
75. Bakr (note 40), pp. 583-606.
76. Id., pp. 632-642.
77. Id., pp. 643-659.
78. Zeedan (note 25) pp. 55-56 and 257.
79. Bakr (note 40), pp. 266-271.
80. Id., p. 271; Madkoor (note 50), p. 49.
81. Awa (note 9), pp. 55-60; Ouda (note 8), tome 1, pp. 262-272.
82. Awa (note 9), pp. 267-268.
83. Zahra (note 63), pp. 326-334.
84. Mohammad Al-Taher Ibn Ashoor, Purposes of Islamic Law, Tunisian Publishing House, pp. 155-207.
85. Madkoor (note 50), p. 58; Zeedan (note 25), pp. 278-282.
86. Madkoor (note 50), p. 57; Bandar (note 4), pp. 323-326.
87. Madkoor (note 50), pp. 58 and 69; Manassif (note 21), p. 304; Bandar (note 4), pp. 322 and 325; Bakr (note 40), p. 186.
88. Zeedan (note 25), p. 152.
89. Madkoor (note 50), pp. 60 and 69; Zarga (note 1), p. 104; Bagni (note 21), p. 177.
90. Madkoor (note 50), pp. 59 and 62-63; Nadawi (note 1), pp. 412-415; Manassif (note 21), p. 304; Bandar (note 4), pp. 315-317 and 325; Raafat (note 39), pp. 435-440; Damm (note 40), p. 112; Hassaf (note 25), p. 213; Zeedan (note 25), p. 270; Bakr (note 40), p. 185.
91. Madkoor (note 50), pp. 63-68; Zarga (note 1), pp. 103-104; Nadawi (note 1), pp. 130, 138, 197, 210, 304 and 402-417; Bagni (note 21), p. 176; Manassif (note 21), p. 304; Bandar (note 4), pp. 317-320; Hassaf (note 25), p. 213; Zeedan (note 25), pp. 267-270; Bakr (note 40), pp. 179-196.
92. Madkoor (note 50), pp. 59-60; Bagni (note 21), p. 178; Bandar (note 4), pp. 325-326; Zeedan (note 25), pp. 270-272; Bakr (note 40), pp. 186-187.
93. Bakr (note 40), pp. 190 and 192.
94. Awa (note 9), pp. 105-106; Ouda (note 8), tome 1, p. 773.
95. Id., pp. 106-110; Zahra (note 63), pp. 240-256.
96. Id., pp. 76-80; Ouda (note 8), tome 1, pp. 81-83.
97. Ouda (note 8), tome 1, pp. 773-778 and tome 2, pp. 157-171 and 258-260. He finds that punishment of Taazeer in this case is compulsory. Zahra (note 63), pp. 318-323 and 535-547; Awa (note 9), pp. 80-86 and 110-112.
98. Awa (note 9), pp. 80-86 and 110-112; Ouda (note 8), tome 1, pp. 81-83 and 774.
99. Hosari (note 10), tome 1, pp. 431, 445, 461-462, 471 and 478.
100. Zeedan (note 25), pp. 303-304; Hosari (note 10), tome 1, p. 471.
101. Zeedan (note 25), pp. 196-200; Hosari (note 10), tome 1, pp. 431-507; Hassaf (note 25), pp. 535-536, 547-548 and 558; Bakr (note 40), p. 565.
102. Zeedan (note 25), pp. 79-85 and 94; Manassif (note 21), pp. 305-306; Zarga (note 1), p. 104; Nadawi (note 1), p. 393-394; Madkoor (note 50), p. 61; Hosari (note 10), tome 1, pp. 431, 445-446, 462, 477 and 499; Hassaf (note 25), pp. 211-212; Bakr (note 40), pp. 556-559 and 561-567.
103. Bandar (note 4), pp. 378-383; Arab Center Symposium, tome 2, pp. 298-302, 332-339.
104. Ouda (note 8), tome 1, pp. 599-606.
105. Zeedan (note 25), pp. 45-50.
106. Id., pp. 229-309.