11. Examples

11.1. Freedom of Speech

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One of the most essential human rights, the free expression of speech, is addressed by the Koran in order to teach Muslims how freedom of expression and information should be maintained to make such a dialogue fruitful. According to Islam, freedom of expression and information is a basic human right. But Islam goes one step further and condemns spreading lies and false information as well as passiveness and reluctance when the truth should be spoken:

"And do not overlay the truth with falsehood, and do not knowingly suppress the truth"140

A believer who is conscious of God should always maintain and defend truth and justice:

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"O you who have attained to faith! Be ever steadfast in upholding equity, bearing witness to the truth, for the sake of God, even though it is against your own selves or your parents and kinsfolk.... "141

"... Be ever steadfast in your devotion to God, bearing witness to the truth in all equity, and never let hatred lead you into the sins of deviation from Justice142

Providing false information about an event which one has witnessed verses in Koran as well as refraining from providing the facts that one knows are both considered grave sins that should be avoided and prevented by every possible means. In that sense, a Moslem interpretation of the freedom of speech and thought involves more than a traditional Western definition. It implies the freedom of expression but also the responsibility to speak the truth.

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Critics usually see this obligation to tell the truth as an assault to individual members of Moslem societies and a means of state oppression. Truth is a relative term and state authorities can see in it a way to condemn disliked are unwelcome comments on political practice. However, this does not reflect the true spirit of this measure which intends to protect individualism. The teachings of the divine message should be revealed to the public and not concealed, even if the message criticizes or condemns an influential party or authority. It is significant that the Arabic word kafir and its origin kafara mean originally "to conceal, or to hide."143

The vice of hypocrisy (nifaq) is not less condemned in the Koran than atheists or (kufr) in Arabic language:

"They (the hypocrites) are the real enemies. How perverted are their minds." "Behold, together with those who deny the truth, God will gather in hell the hypocrites 144

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“Verily the hypocrites shall be in the lowest depth of hell”145 .

Likewise, one who is reluctant to provide the facts is actually concealing the truth and such a person is described as "evil at heart" in the Koran and as "a muted devil" in the tradition of the Prophet. Providing the known facts and cooperating constructively so that truth may prevail are fundamental parts of the Islamic obligation of enjoining the doing of what is right and forbidding the doing of what is wrong. One who provides false information or is reluctant to provide the right information becomes a participant in the prevalence of falsehood and evil. Every believer is a witness and protector of the truth during his/her whole life:

"... So that you may bear witness to the truth before all humanity...."146

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God himself is the "ultimate truth" according to the Koran and it is incumbent upon every believer to support the truth in all forms so that it will always prevail. Therefore, freedom of expression and information, constituting both a right and a duty for every believer, should be established and maintained by all Muslims - men and women, rulers and ruled. The Koran orders those who have been entrusted with authority:

"To deliver all that you have been entrusted with unto those who are entitled thereto, and whenever you rule between people to rule with justice" 147

11.2. Freedom of assembly

Since Islam is a religion based on public and joint practice of faith, Muslims are addressed as a community to work together in their efforts for progress. The right of assembly, another basic human right, is thus essential to secure correctional efforts against any powerful supporter of deviation from truth and righteousness:

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"And the believers, both men and women, are responsible for (or the supporters of) one another; they all enjoin the doing of what is right and forbid the doing of what is wrong148"

"And that there should arise among you a band of people who invite unto all that is good and enjoin the doing of what is right and forbid the doing of what is wrong"149

"But help one another in furthering virtue and God-consciousness, and not in furthering evil and enmity."150

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"And enjoin upon one another the keeping to truth . . . and enjoin upon one another patience (and firmness) in adversity"151

11.3. Freedom of thought and believe

The right of free expression and information cannot be separated from the freedom to think and believe. Intellectual and linguistic capabilities characterize human beings, and thus, the right to form and express opinions represents an essential manifestation of human merits and of God's gifts.

The right to express and to be informed should, therefore, be secured by all who are respectful of humanity or grateful to God. Indeed, if one is allowed to think and believe, but not to communicate with others or exchange views, one's freedom of thought and belief is actually restricted. A human being is a social creature with genuine intellectual capabilities. Therefore, he should always consider more than one perspective of an idea and learn to balance the strength and weakness of it. This cannot be done individually or in isolation. Moreover, the basic condition for freedom of expression and information is that it extends to different viewpoints; otherwise, expression is merely an imposition of ideas and exercise in brainwashing.

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Many national and international documents which declare human rights acknowledge the fact freedom of thought and freedom of expression are intertwined. The universal declaration of human rights which was issued by the General Assembly of the United Nations in December 1948 has dealt with both issues in two successive articles.152 But freedom of thought and believe are also repeatedly emphasized in the Koran:

"There shall be no coercion in matters of faith"153

"And had your Lord so willed, all those who live on earth would have attained to faith - all of them, do you then think that you could compel people to believe?" 154

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Said (Noah): O my people - what do you think? If (it be true that) I am taking my stand on a clear evidence from my Lord . . . to which you have remained blind, can we force it on you even though it is hateful to you?"155

"And so (O Prophet) exhort them; your task is only to exhort; you cannot compel"156

As long as freedom of expression and information is maintained, different views should be expressed and respected:

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"Call you (all humanity) unto your Lord's path with wisdom and goodly exhortation, and Say: argue with them in the most kindly (and convincing manner)”157

``Say: o ye reject faith I worship not that which ye worship, nor will ye worship that which I worship, and I will not worship that which ye have been wont to worship, nor will ye worship that which I worship``158

11.4. The application of Islamic Criminal Law respecting Human Rights

How can the Islamic Law be applied to modern societies without undermining Muslim characteristics? One will have to distinguish between Al-Sharia and Al-Fiqh al Islami-Islamic Law and Islamic Jurisprudence. The Islamic Law is part of the Koran or the Sunnah. This makes it obligatory for all Muslims. On the contrary, Al-Fiqh al Islamic is a collection of legal opinion. It is a reference for academic purposes and legal practice but by no means is it obligatory. Often it gives several opinions on the same issue within the same school of thought. The four existing different schools of thought further complicate the practice of judicial exercise.

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One also has to take into consideration the modifications and alterations that were brought along with the evolution of time. Legal conditions of the early centuries of Islam are by no means comparable to the present situation. The position of women in a society, the modern economic and social challengers or the globalisation of legal thought and practice are elements that can hardly be answered to by referring to a system of laws that roots in the first millennium. Therefore, the modernisation of legal practise is of paramount importance as the Arab scholar Muhammad Asad states: “Because it is restricted to commands and prohibitions expressed in self-evident terms in Koran and Sunnah, the real Sharia is extremely concise and, therefore, easily understandable: and because it is so small in volume, it cannot [provide for] legislation for every contingency of life.”159 Therefore, it does not provide a framework for criminal procedures and judicial processes but merely lays down the guiding principles without attempting to address the details. Those are to be determined by Muslims as circumstances dictate, within the broad basics of the Sharia and accepting all principles as prescribed by Islam.

Consequently, the Islamic justice system has to provide equal principles of legal proceeding for all individuals irrespectively of their status. Regarding criminal proceedings these include, but to mention a few, the rules of equality, the presumption of innocence until guilt is proven, the question of arbitrary arrest, remand in custody, detention, equality before public hearing and the right to a fair trial before an impartial criminal jurisdiction. Generally speaking, crimes and punishment should only be imposed by virtue of criminal legislation.

Despite the advocated and also in the Muslim world commonly accepted principle of absolute equality there remain slight differences in the procedure of judicial legislation. Those differences are to be found between Muslims and non-Muslims. This happens on the ground of the strong faith attributed to the Islamic philosophy. An Islamic court may base its judgement on an oath taken from the accused. This method, however, is not reliable for those who are non-Muslims.160

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But despites those minor exceptions one can state that basic rights are, at least in principle and on the grounds of Islamic sources of justice, guaranteed to everybody regardless of his status. The relevance of those principles implemented can also be seen by studying a scholarly resolution on the principles of the Islamic criminal justice system of 1979. It represents a number of basic guidelines of justice with respect to any international human rights standard. According to the text accompanying the agenda, “any departure from the principles (the below) would constitute a serious and grave violation of Sharia Law, international human rights, and the generally accepted principles of international law reflected in the constitutions and laws of most nations of the world.” Some of the given principles are:

The right of freedom from arbitrary arrest, detention, torture, or physical annihilation;

The right to be presumed innocent until proven guilty by a fair and impartial tribunal in accordance with the Rule of Law;

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The application of the Principle of Legality which calls for the right of the accused to be tried for crimes specified in the Koran or other crimes whose clear and well-established meaning and content are determined by Sharia Law or by a criminal code in conformity therewith;

The right to appear before an appropriate tribunal previously established by law;

The right of a public trial;

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The right not to be compelled to testify against oneself;

The right to present evidence and to call witnesses in one’s defence;

The right to council on one’s own choosing;

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The right to decision on the merits based upon legally admissible evidence;

The right to have the decision in the case rendered in public,

The right to benefit from the spirit of Mercy and the goals of rehabilitation and reconciliation in the consideration of the penalty to be imposed

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The right to appeal.161

As a matter of fact, those established rules represent by no means a legal innovation within the Muslim system of criminal laws. The have always had their place in the main sources of Islamic law. However, they have not always been appropriately exercised in the course of fourteen centuries of Islamic rule.

Fußnoten und Endnoten

140  Koran 2,42.

141  Koran 5,12.

142  Koran 5,12.

143  See the word in a lengthy Arabic dictionary such as Lisan al-Arab; and see the Koranic verses 6:35, 37:14; and 31:32.

144  Koran 4,141.

145  Koran 4,138,145.

146  Koran 3, 79.

147  Koran 4,58 .5,12.

148  Koran 2,108.

149  Koran 3,99.

150  Koran 5,2.

151  Koran 5,14.

152  Articles 18,19 of the Universal Declaration of Human Rights.

153  Koran 2,255.

154  Koran 10,71.

155  Koran 10,70.

156  Koran 10,1.

157  Koran 2,150; 109,1,2,3,4.

158  Koran 109,1,2,3,4,5.

159  Quoted in: Krämer, Gudrun, Gottes Staat als Republik. Reflexionen zeitgenössischer Muslime zu Islam, Menschenrechten und Demokratie, Baden-Baden 1999, 53ff.

160  Bassiouni, M. Cherif, Sources of Islamic Law and the Protection of Human Rights in the Islamic Criminal Justice System, in: Bassiouni (ed): The Islamic Criminal Justice System, London 1982, 23ff.

161  Bassiouni, M. Cherif, op.cit.

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