May 25, 2021

Pre-Trial Arrest and Detention – Its Place In Islamic Criminal Law and Procedure

This article aims to highlight the scope of pre-trial arrest and detention in Islamic criminal law and procedure. The nature and history of Islamic criminal law is an exceptionally intricate subject and requires analysis at a much broader scale. More so, specific sources on the issue of pre-trial detention are scant and reflect the lack of a uniform body of rules and procedures under Islamic criminal law. It is, therefore, pointed out at the outset that while this article has been written with extreme care and thought based on different sources available, it is merely a humble effort to better the understanding of the place and significance of pre-trial detention in Islamic criminal law and procedure with the consequential deduction that pre-trial detention in Islamic criminal law and procedure is justifiable according to the Islamic injunctions in today’s criminal justice system.

Introduction

The requirement of religious legitimacy for any law in Pakistan is well spelt out in Article 227 of the Constitution of Pakistan, 1973. Therefore, we need not have any other academic reason, of which there are many, to justify making laws for Pakistan that are ‘Islamic’. Why is it significant then to explore religious legitimacy for pre-trial arrest and detention powers conferred upon state officials when there are, arguably, checks and balances in place in the relevant laws, laid out and emphasized through sound and well-reasoned case law? The answer perhaps is that “the Islamic pedigree of any law or legal construct is a crucial source and measure of its legitimacy in Muslim eyes”.

What are criminal offences, what conduct is considered criminal and what punishments follow in the Islamic legal system, has been well established over a thousand years ago and is a major component of Islamic legal jurisprudence. This framework of a penal code in the Islamic criminal legal system, as it is well settled by now, revolves around three main categories of criminal acts or crimes.

The Quran and Sunnah, being the primary sources of Islamic law, gave the basis to categorize forbidden acts and accompanying penalties. We also find some references to procedural matters as put down by the Prophet (peace be upon him) when he declared that, “The onus of proof lies with the claimant and denial shall be supported by oath.” In another instance, the Prophet (PBUH) is reported to have told his wife, Hazrat Aisha (RA), to “…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.” The Prophet (PBUH), while sending Ali b. Ibi Talib (RA) to Yemen as governor, instructed him that, “People will bring their cases to you, so when litigants come to you, then don’t decide for the one [claimant] till you hear from the other [defendant]. It is a better way to know who should have the case decided in his favour.” One of most comprehensive narrations on procedural law and the administration of justice comes from Hazrat Umar (RA) in his letter to Abu Mosa al-Ashari.

The early Muslim jurists and scholars also set out rules of procedure to be applied in court for the purposes of adjudication, such as the order of proof, number of witnesses and their qualifications, and other relevant and necessary evidentiary burdens. These scholars, however, do not set out one single corresponding set of rules of procedure – rules that dictate how crimes or suspected offenders should be investigated by the state (officials). What limitations, if any, bind the state officials while they dispense their official duties of investigating suspected offenders? There is no template of procedural rules similar to the types of substantive crimes and offences or rules of evidence in formal Islamic jurisprudence. At least we do not find consensus amongst Muslim scholars and jurists on any specific set of procedural rule(s) in this respect. We find a variety of opinions. Thus, procedural Islamic criminal law in this regard has never developed with clarity and has resultantly never been fully articulated in Islamic legal theory.

Quran

The starting point is the Quran and it does not specifically lay down any procedure to be adopted in arresting or otherwise detaining persons accused or suspected of committing a crime, although what appears to be the closest reference is Ayat 106 in Surah al-Maidah which validates brief detention of witnesses and states the following:

“………Detain them after the prayer and let them both swear by Allah if you doubt [their testimony, saying], ‘We will not exchange our oath for a price, even if he should be a near relative, and we will not withhold the testimony of Allah. Indeed, we would then be of the sinful’.

The Quran thus instructs detention of a witness in circumstances where the witness is doubted to have committed perjury. The purpose of such detention is not to punish the witnesses but, as a precautionary step, to achieve the end result – verify the truth of their testimony. The non-punitive nature of this detention also finds support from the fact that the detention of a witness is for a short period of time (“presumably until the next prayer time on the same day, which may be well within the parameters of the mosques and may not even involve detention in the usual sense of the word”). The mechanism of detention ordained in the Quran is thus restricted to be used upon witnesses and achieve a specific purpose. The pre-trial arrest or detention of a suspect for the purposes of investigation, let alone the rules of procedure or mechanism for doing so, finds no mention in the Quran. Can the permission and instructions in the Quran to detain witnesses, albeit with qualifications and conditions, be taken as a baseline principle of detention and hence be extended to exercise preventive pre-trial detention of suspects of crime for the purposes of investigation? Will such an analogy strengthen the given fact that the Islamic system of laws supports any procedure which may aid in advancing justice and fair treatment? If the Quran allows detaining witnesses under certain prescribed conditions, then can arresting or detaining suspects of crimes for investigation stand at an equal footing? Because when a witness is detained, he or she has been suspected of committing a crime i.e. perjury, therefore he or she does not remain a witness for the purposes of detention, he or she becomes a suspect of a crime. The purpose of detaining a witness is to inquire into the truthfulness of his or her testimony which can only be achieved as a result of putting questions to the witness or perhaps producing some evidence to counter or negate his or her statements. How is this process, by whatever name it may be called, different from an investigation? We do not have a straightforward answer, however, it is evident that any parallel derived or analogy drawn will come with the broad qualifications and conditions as stated in the ayat.

Sunnah

While seeking guidance from the Sunnah, we find very few reported examples which can be used as a conclusive source to determine the issue at hand. It is reported in various sources that in exercising the authority to seize alleged wrongdoers, in one instance, the Prophet (PBUH) is said to have “detained a person upon accusation”. In another hadith, on the authority of Abu Hurayra (RA), it is known that, “…the Prophet (PBUH) detained (on occasions) for a day and a night for investigation on precautionary grounds.” Unfortunately, neither of these often quoted occurrences specify the nature of the alleged wrongdoing, the basis of the accusation, or the nature of the detention carried out by the Prophet (PBUH). Regardless of the lack of details, it is clear that detention was effectuated by the Prophet (PBUH) for investigating something. Likewise, it is also reported that on one instance, Prophet (PBUH) ordered the arrest of Banf Qurayza to force them to accept an arbitrator. Will three precedents from the Sunnah suffice to justify pre-trial arrest or detention of a suspect for the purposes of investigation? We also find instances where the Prophet (PBUH) did not approve of arresting or detaining a suspect. In another instance, while deciding a case of debt, the Prophet (PBUH) is reported to have told the debtor’s opponents to take what was available, indicating that they should not detain or even punish the debtor.

One of the most quoted examples is when the Prophet (PBUH) was delivering a lecture in a mosque once and a man asked him, “O Prophet of God, for what crime have my neighbours been arrested?” The Prophet (PBUH) heard the question and did not answer. The man repeated the same question. The Prophet (PBUH) again did not answer and continued his speech. The man raised the same question the third time. Then the Prophet (PBUH) ordered that the man’s neighbours be released. It is said that the reason why the Prophet (PBUH) had kept quiet the first two times was that the police officer who had made the arrest was present in the mosque and had there been proper reasons for the arrest, he would have got up to explain his position. Since the police officer gave no reasons for the arrests, the Prophet (PBUH) ordered that the arrested persons should be released. Detention in the absence of any reason was, therefore, considered by the Prophet (PBUH) to be wrong. Supposing that the police officer had indeed gotten up and given a reason for detaining the accused, then perhaps the ultimate order of the Prophet (PBUH) would have been different and perhaps gone in favour of the police officer, allowing the detention. This incident also highlights the rule that if the investigating authority has any evidence of an offence having been committed, then that evidence must be presented to justify the detention of the person suspected of committing the offence. In case no explanation is given, then the detention will be unlawful.

Traditions of the Companions (RA)

An incident from the times of Hazrat Umar (RA) confirms the view that pre-trial arrest or detention on the basis of accusations has no place in Islamic legal jurisprudence. It is reported that a leather bag which belonged to Abd Allah ibn Abi Amir (RA) was stolen while he was on a journey with a group. One of the members of the group was suspected of the theft and questioned about it. He denied committing the theft. Abu Amir (RA) later reported the matter to Hazrat Umar (RA), the caliph at that time, that he intended to bring the person suspected of the theft tied up before the caliph. Hazrat Umar (RA) angrily informed Abu Amir (RA) that he would not hear anything on the matter if Abu Amir (RA) had tied up the accused and brought him before him without any evidence. Abu Amir (RA) then said that Hazrat Umar (RA) not only refused to take any action against the suspect but also disapproved of him being tied up, which was equivalent to detention, as there was no evidence to support the accusation.

We also find support from Hazrat Ali’s (RA) saying that detention in a civil debt matter is unjust. In the days of the caliphate of Hazrat Ali (RA), the attitude and activities of the Kharijis were notorious for being unlawful. They used to abuse Hazrat Ali (RA) openly and threaten him with murder. But whenever they were arrested for such offences, Hazrat Ali (RA) would set them free and tell his officers that, “…as long as they do not actually perpetrate offences against the State, the mere use of abusive language or the threat of use of force are not such offences for which they can be imprisoned.” In another instance, Al-Numan ibn Bashir (RA) detained some accused persons for a few days and then released them. The group of people who had brought the claim of theft protested before Al-Numan (RA) that he had released those men without beating them or testing the truth. Al-Numan (RA) replied that if those men got punished wrongfully, then the accusers would be liable to retaliation themselves. “The accusers then asked: ‘Is this your judgment?’ Al-Numan replied: ‘This is the judgment of God and His Messenger’.” This shows that Allah did not ordain and the Prophet (PBUH) did not approve of the detention of a suspect in the absence of any evidence of wrongdoing.

Ibn Umar (RA) also added that people may not be arrested on the basis of a mere accusation and no claim of theft or murder should be admitted unless supported by upright witnesses or a confession free of threat and intimidation. Ibn Umar (RA) further added that it was unlawful to imprison a person on the grounds of mere suspicion, since the Prophet (PBUH) had also refused to arrest people on the basis of suspicion alone. However, it is proper that the claimant and the defendant be brought together before the court. If there is evidence, the claim should be adjudicated upon, otherwise the defendant should be released or asked to give a surety.

Muslim Scholars and Jurists

The classical Muslim jurists and scholars, such as al-Ghazzali, al-Mawardi, Ibn Taymiya, Ibn Khaldun, al-Farhun, al-Khassaf, Abu Hanifa and Abu Yusuf, propounded rules governing detention or the detaining of suspects accused of wrongdoing, on the basis of the Quran, the precedents in Sunnah and the examples of the Companions (RA). Their vast writings, details of which are beyond the scope of this article, more pertinently emphasize and deliberate on the issues of the grounds of detention as well as the allowable time period for such detentions.

Abu Yusuf, who remained the Chief Justice of Baghdad in the times of the caliph Harun al-Rasheed, made it plainly clear that the detention of a suspect on the basis of mere suspicion or accusation was impermissible under the Islamic criminal legal system. Abu Yusuf is reported to have advised the caliph to “…instruct your governors not to arrest people upon accusation…… A man comes to [the governor] and says, ‘This man has accused me of stealing from him,’ and people arrest him and others upon that. This is an unlawful act …. It is [also] unlawful and impermissible to detain…..a man upon another’s accusation …. [Rather,] the complainant and the defendant should be brought together, and if the complainant has proof….., then it should be ruled on. If not, a surety…. should be taken from the defendant and he should he released …. The same goes for all those who are detained…..upon accusation.”

Al-Mawardi referred to adopting a reasonable suspicion standard for assessing the need to detain. Ibn Farhun, in his well-known legal treatise, listed ten categories of individuals who could lawfully be detained. Al-Khassaf appears to endorse the detaining of an individual accused of at least one particular crime, the fixed crime of false accusation of adultery.

However, the view of the majority of Muslim scholars has been that arrest and detention for investigation upon an accusation of criminal wrongdoing is generally permissible, especially in cases of convicted criminals, debtors whose financial status is unknown, people accused of depravity, murder, theft or any of the other fixed crimes and bodily injury crimes. Further, while deciding on exercising the power to detain, other considerations have also been seen to play a role, such as the quantum and quality of evidence against the accused, as measured by the number of witnesses who have come forward and what is known about their integrity, and the gravity of the alleged crime, i.e. the more serious the alleged crime, the more readiness to allow pre-trial detention.

Although objective indicia of guilt is an extremely relevant factor leading to lawful arrest or detention, the factor that Muslim jurists seem to list more than any other as the key to deciding whether to arrest and detain a suspect is the suspect’s reputation for good deeds or bad ones. Ibn Taymiyya points out three kinds of suspects. First, those who are ‘known by others for their religiosity and piety’ and ‘not the type to be [thus] accused’; second, those whose reputation or notoriety is not knownand third, those who are immoralknown for prior crimes or other ‘loathsome behavior’. The first kind, according to Ibn Taymiyya, are not to be detained or beaten in order to extract a confession, nor are they required to swear upon an oath of innocence. The accused in the second category, whose reputation is unknown, should be detained ‘for investigation of their status’; and the accused in the third category can be detained. Ibn Qayyim and Ibn Farhun agree with these stipulations.

With regard to the length of the investigative detention, there are varying findings by the scholars. The range discernable from the writings is between a day to one month, though extendable. Interestingly, Al-Mawardi preferred leaving the matter to the ruler’s discretion. The list of criteria is non-exhaustive and such considerations have evolved with the times which the Muslim scholars have belonged to respectively.

Conclusion

Is the pre-trial arrest and detention of suspects permitted by Islamic law and criminal procedure? The answer seems to be in the affirmative. However, what is also clear is that arrest or detention on the basis of mere suspicion is impermissible and hence arguably unlawful. The natural and legal progression leads us to understand and accept that there must be some form of evidence which should exist against an accused before he or she is detained for the purposes of further investigation. This pre-existing evidence cannot be equated to a mere suspicion of committing an offence. The quality, nature and amount of ‘some’ evidence which should be pre-existing has not been, and rightly so, can never be put down in an exhaustive list, therefore, we do not know how much ‘some’ evidence should be. The rules for pre-trial arrest and detention for the purposes of investigation in our current criminal justice system echo the Islamic legal jurisprudence and any investigating authorities exercising their power of arrest or detention cannot arrest or detain merely because they suspect the accused to have committed the offence – it is necessary that the accused must be arrested or detained so as to enable the investigating authority to start the exercise of collecting evidence of the offence from him or her.

In this regard, the Quran has laid out for us the fundamentals in Ayat 106 of Surah al-Maidah, the essence and spirit of which has been built upon by the Prophet (PBUH) through his Sunnah and the examples of the Companions (RA). Fourteen hundred years have gone by and the nature of offences has evolved and the types of crimes have only increased with time. Issues of white collar crime, banking fraud, administrative corruption, misuse of authority for illegal monetary gains, cyber-crime, offences related to the misuse of technology, money laundering, corporate layering and fraud, tax fraud and terrorism, to name a few, have taken center-stage in the list of well-known crimes. The nature of crime has become much more complicated and complex than it was fourteen hundred years ago and requires attention and action to be dealt with accordingly. On the other hand, while crimes have become more complex and are not restricted to simple thefts of leather bags or chattels or civil debts, the methods of procuring credible evidence have also improved with sophistication. All crimes, complex or not, can now be investigated with the help of science, technology and forensics and there is arguably not much room left for suspicion-based arrest and detention.

The Prophet (PBUH), when assigning the duties of qada of Yemen to Mu’adh b. Jabal, enquired as to how he would proceed with the decision in cases before him. Mu’adh replied, “By the guidance of Kitab-Allah.” The Prophet (PBUH) said, “If you do not find anything to guide you in Kitab-Allah, what will you do then?” Mu’adh replied, “The guidance would then be taken from the Sunnah of the Prophet.” The Prophet (PBUH) then asked, “What would you do if you do not find any provision either in Kitab-Allah or in the Sunnah?” Mu’adh replied, “I would then come to a decision by my own lights.” It is said that the Prophet (PBUH) placed his hand on his breast and said, “Thank Allah Who showed the true light to my representative and made him adhere to the principles to which I am agreeable.”


Bibliography

  1. Quran: Surah Al-Maidah.
  2. Constitution of Pakistan, 1973
  3. Sadiq Reza, Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice 2009 available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1426152
  4. Gamal Atia, An Interpretive Memo on the Questionnaire of “Right to Fair Trial”, available at http://hrlibrary.umn.edu/fairtrial/wrft-att.htm
  5. Prof. Dr. Muhammad Munir, Fundamental Guarantees of the Rights of the Accused in the Islamic Criminal Justice System, Hamdard Islamicus Page 45, Vol XL, No.4 available at https://ssrn.com/abstract=3093026
  6. Sadiq Reza, Due Process in Islamic Criminal Law [46 Geo. Wash. Int’l L. Rev. 1 (2013-2014) available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3097229
  7. Mohmmad Hashim Kamali, The Right to Personal Safety (Haqq al-Amn) and the Principle of Legality in Islamic Shari’a published in Criminal Justice in Islam – Judicial Procedure in the Shari’a edited by Muhammad Abdel Haleem, Adel Omar Sherif and Kate Daniels.
  8. Irene Schneider, Imprisonment in Pre-Classical and Classical Islamic Law available at: http://www.jstor.org/stable/3399373
  9. Syed Abul A’la Maududi, Human Rights in Islam available at https://archive.org/stream/MaulanaMaududiHumanRightsInIslam/Maulana_Maududi_Human_Rights_in_Islam_djvu.txt
  10. Tanzil-Ur-Rehman, Adab Al-Qadi, Islamic Studies, Vol. 5, No. 2 (JUNE 1966), pp. 199-207 Published by: Islamic Research Institute, International Islamic University, Islamabad available at: http://www.jstor.org/stable/20832838
  11. Wael B. Hallaq, An introduction to Islamic Law, Cambridge University Press, 2009
  12. Rudolph Peters, Crime and Punishment in Islamic Law, Cambridge University Press, 2005
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  14. Justice (R) Dr. Munir Ahmad Mughal, Islamic Jurisprudence available at http://ssrn.com/abstract=1903980
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References

[1] The term ‘Pre-Trial Arrest & Detention’ shall be used in this article to express the full expression ‘Pre-Trial Arrest & Detention for the purposes of investigation of an offence’, unless the context otherwise requires.
[2] This article does not include every single report from the examples from the Sunnah or the life of the Companions (RA), nor does it include every statement on the topic by a Muslim jurist or scholar.
[3] Article 227. Provisions relating to the Holy Qur’an and Sunnah. (1) All existing laws shall be brought in conformity with the Injunctions of Islam as laid down in the Holy Quran and Sunnah, in this Part referred to as the Injunctions of Islam, and no law shall be enacted which is repugnant to such Injunctions.
[4] Sadiq Reza, Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice 2009 available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1426152
[5] Gamal Atia, An Interpretive Memo on the Questionnaire of “Right to Fair Trial”, available at http://hrlibrary.umn.edu/fairtrial/wrft-att.htm
[6] (1) “fixed” crimes (hudud), which call for the harsh physical punishments; (2) acts or offences causing bodily injury (jinayat), which call for “just retribution” (qisas) or monetary compensation; and (3) other crimes, which constitute the majority of possible offences, are unspecified, and call for “corrective” punishment (ta’zir) in the ruler’s discretion.
[7] Prof. Dr. Muhammad Munir, Fundamental Guarantees of the Rights of the Accused in the Islamic Criminal Justice System, Hamdard Islamicus Page 45, Vol XL, No.4 available at https://ssrn.com/abstract=3093026
[8] Gamal Atia, An Interpretive Memo on the Questionnaire of “Right to Fair Trial”, available at http://hrlibrary.umn.edu/fairtrial/wrft-att.htm
[9]Ibid 8.
[10] Translation by M. Cherif Bassiouni available in his article, “Crimes and the Criminal Process”, Arab Law Quarterly, 12:3 (1997), pp. 269-286 at 275-276.
[11] “The judge has no powers to detain anyone unless it is for violation of a right that is clearly established” Abu Yusuf, Chief Justice of the Abbasid State under Caliph Harun Al-Rashid – Ali Ibn Muhammad al-Mawardi, Kitab Al-Ahkam al-Sultaniyya (Cairo, 1986) p. 193
[12] Sadiq Reza, Due Process in Islamic Criminal Law [46 Geo. Wash. Int’l L. Rev. 1 (2013-2014)] available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3097229
[13] https://quran.com/5/106?translations=20,85
[14] Mohmmad Hashim Kamali, The Right to Personal Safety (Haqq al-Amn) and the Principle of Legality in Islamic Shari’a published in Criminal Justice in Islam – Judicial Procedure in the Shari’a edited by Muhammad Abdel Haleem, Adel Omar Sherif and Kate Daniels; page 57.
[15] Drawing analogy (qiyas or ijtihad and other forms of analogy as permissible under Islam) are each very extensive and broad topics in purview of Islamic law and are not within the scope of this article.
[16] III Sunan Abu Da’ud page 314; Ibn Qayyim: al-Turuq page 102:  reference in in Islam’s Fourth Amendment: Search and Seizure in Islamic Doctrine and Muslim Practice; Sadiq Reza; 2009 available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1426152
[17] al-Hakim: al-Mustadrak, IV, page 102; Ibn Qayyim: al-Turuq, page 102: reference in The Right to Personal Safety (Haqq al-Amn) and the Principle of Legality in Islamic Shari’a by Mohmmad Hashim Kamali published in Criminal Justice in Islam – Judicial Procedure in the Shari’a edited by Muhammad Abdel Haleem, Adel Omar Sherif and Kate Daniels; page 80, footnote 99.
[18] Imprisonment in Pre-Classical and Classical Islamic Law; Irene Schneider available at: http://www.jstor.org/stable/3399373
[19] Ibid 8.
[20] Syed Abul A’la Maududi, Human Rights in Islam available at https://archive.org/stream/MaulanaMaududiHumanRightsInIslam/Maulana_Maududi_Human_Rights_in_Islam_djvu.txt
[21] Mohmmad Hashim Kamali, The Right to Personal Safety (Haqq al-Amn) and the Principle of Legality in Islamic Shari’a published in Criminal Justice in Islam – Judicial Procedure in the Shari’a edited by Muhammad Abdel Haleem, Adel Omar Sherif and Kate Daniels; page 79.
[22] Ibn Al-Qaiyem (d. 751h.), Al Torok Al Hokmia, Dar Al-Kutub Al-Ilmia, Beirut, 1953, pp. 63-64 reference in Gamal Atia, An Interpretive Memo on the Questionnaire of “Right to Fair Trial”, available at http://hrlibrary.umn.edu/fairtrial/wrft-att.htm
[23] Syed Abul A’la Maududi, Human Rights in Islam available at https://archive.org/stream/MaulanaMaududiHumanRightsInIslam/Maulana_Maududi_Human_Rights_in_Islam_djvu.txt  
[24] Mohmmad Hashim Kamali, The Right to Personal Safety (Haqq al-Amn) and the Principle of Legality in Islamic Shari’a published in Criminal Justice in Islam – Judicial Procedure in the Shari’a edited by Muhammad Abdel Haleem, Adel Omar Sherif and Kate Daniels; page 80.
[25] Abu Yusuf: Kitab-al-Kharaj p.162
[26] Ibid at pp.754
[27] Tanzil-Ur-Rehman, Adab Al-Qadi, Islamic Studies, Vol. 5, No. 2 (JUNE 1966), pp. 199-207 Published by: Islamic Research Institute, International Islamic University, Islamabad available at: http://www.jstor.org/stable/20832838

Author: Ahmad Farooq Malik