9. Criminal Procedure under Islamic Sharia

9.1. Generalities

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The bases of a justice system and the numerous procedural processes before, during and after the various trial stages for criminal offences are of much interest to scholars in any system of laws. This is especially true if one studies the Islamic justice system. The reason for that lies within the system: One has to remark that differently from any Western system the Sharia is not just a legal system but an extremely complex legal code based on religious principles that were established in order to regulate the conduct of Muslims in all aspects of life. Criminal affairs are covered by it as well as codes of behaviour, political issues, commercial and domestic practice and - of course - also religious devotion. Hence, one has to bear all those aspects in mind when studying and understanding the content and nature of criminal procedure in Islam.

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The initiation and termination of legal proceedings as well as the definition of persons and all institutions involved in it are among the first topics that one could draw attention to when studying Islamic criminal law. This becomes even more important when taking into consideration the fact that many of the elements enlisted differ entirely from any Western system if they exist at all. First of all and as a general rule, Islam views all rights as bestowed by God. Justice is exclusively exercised in His name. Herein lays the reason for all fundamental differences.

Following this very general statement, one can distinguish between two different categories of Justice: The Rights of God as opposed to the Rights of Worshippers. Admittedly, it is not always easy to draw the line between the two. The two categories depend on the extent to which the violated rights are related to the public interest of society. Those granted in the public interest are viewed as Rights of God because they affect His people. In other words, they endanger higher values and welfare and their real damage affects the community as a whole. On the other side, Rights of Worshippers are those that are bestowed to protect individual interests. However, the suggested distinction is only one of many methods for defining crimes in Islam. It adds to a whole list of distinctive features such as the degree of harm, the time of the crime’s commission and other circumstances that might play a role.

An important categorisation of crimes that are persecuted under Islamic rule is founded in the nature of the violated right. The so-called hudud crimes affect the Rights of God and violate doctrinal provisions established by the Koran or the Sunna. Some of those criminal acts such as theft and highway robbery easily find their equivalent in the Western world whereas others like adultery and libellous accusation of adultery would not be considered as a violation of law in the modern Western world. However, all Islamic legal scholars agree upon the justification of those crimes. It is, however, heavily disputed whether other violations such as apostasy, consumption of alcohol and attempts to overthrow the government could be considered as a violation of the Rights of God.

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Among the criminal acts that affect Rights of Worshippers are all those that endanger another person’s life or safeguard. Those are for instance murder, manslaughter, beating and wounding. This category includes all kinds of aggression against a person’s life or causing harm to the organs of a person’s body. It does not make a difference whether the aggression is deliberate or accidental. All criminal acts involving the Rights of Worshippers are not to be initiated without the consent or even at the request of the victim or the person closest to him. He also controls the termination of the proceeding as long as no Right of God is involved.

From a Western point of view, the possibilities of penalisation are interesting because they differ from any western model. All those criminal acts which result in the principle of parity of punishment following the ancient idea of ‘an eye for an eye’ are known as Kisas. The theological backing is to be found within the verse of the Koran: “The reward of an evil is an evil like thereof”.120 If compensation is appropriately accorded, it is referred to as Diya. The application of Diya remains an option andis conditioned by an agreement between the heirs and the offender. In the western world this principle is often stated when evoking the supposed cruelty of the Islamic Sharia and it became known as ‘blood money’. It implies the idea that an offender can buy himself off the punishment under the condition of compensating the heirs of his victim if those agree to renounce retaliation and grant forgiveness. Contrarily to the Western attitude concerning this legal practice one could also point out its advantage because it avoids cruelty in the best interest of all persons involved. As a matter of fact it supports the idea of Islam as a forgiving religion. In no comparative penal statue does such an option exist and no other system of laws besides the Islamic criminal law grants the possibility to supersede the principle of ‘an eye for an eye’.121

Returning to the distinction between the different categories of law, one can remark the there exist criminal acts that affect both the Rights of God and the Rights of Worshippers. They are specified in the Koran or Sunna and include for example the charging of interest, bribery and slander. Those crimes are known as Tazeer and have wider scope and range than Hudud and Kisas crimes. Tazeer represents the flexible part of the Islamic system of crime categorisation.It was defined by the caliph, usually in response to the ever changing situation and needs of society. Nevertheless, one has to distinguish between those crimes that are explicitly referred to in the Koran or Sunna and to those that are defined by the rulers. Those falling within the first category are perpetually prohibited whereas all the others can be subject to decriminalisation because they are “man-made”.

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When looking at the concrete situation of a trial one will observe that the position of a prosecutor – at least when following a Western definition of it - is absent from the Islamic set of institutions. There, the judge carries out the investigation because criminal investigations are considered a judicial process rather than an executive one. In other words, the investigation is interrelated with the trial itself. As a result, prosecutorial investigation is completely within the scope and control of the judge and the findings of any external investigator such as the police (the ordinary police commissioner as well as the ‘religious’ police) can be totally scrutinized. Judges also play an essential role in initiating criminal proceedings. However, the Sharia only demands that an official acting on behalf of the state has to initiate a proceeding without explicitly naming the person or institution. It can be an official of the executive as well as an official of the judiciary, depending on the circumstances of a case. Herein lays an essential weakness of the Islamic system of laws because it does not clearly define and limit the scope of various officials involved in a proceeding. Transparency is therefore almost impossible.122

In general, criminal procedures should be as simple and short as possible. Hence, abbreviated proceedings are rather the rule than the exception as long as they do not contradict principles of the Sharia and do not affect the fairness of the criminal proceeding. The brevity and simplicity seems to be an advantage compared with the often extremely long and complex legal action in the Western world. However, there is also a downside to it. Ruling that are once rendered are usually final and there is almost no possibility of appealing against or reconsidering it. There exist no appellate courts. Reconsiderations of judgements are only possible if contradictions with a provision of the Koran or Sunna are found afterwards. On this ground, anyone can make a challenge.

9.2. Basic principles

Every system of laws seeks to deliver justice through its various legal institutions. Those institutions are defined by the degree of judicial power that is accorded to them by the state. The most important representation of this legal authority is, especially in the Islamic world, the judge who also exercises the power of investigation. However, his authority depends on the category of crime and the characteristics of each of those categories as described in the chapter above when talking about the distinction between Rights of God and Rights of Worshippers.

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In a more general sense, acts of crime could also be defined as legal prohibitions that are prescribed by God and carry definite legal punishments. If an offender is found guilty, a state of execution is obliged by the legal commandments. This implies important repercussions: On the one side, crimes are only defined through prohibition by the law-giver. Consequently, a penalisation can only occur with the permission of the law-giver. The punishment is either a hadd which is prescribed by Divine Law or a penalty such as prescribed by the law in which the judge has much of a say.

Therefore, the judge plays an essential role although his authority depends on the category of crime. In the case of crimes of Hudod, the judge has to award the punishment decreed for such a crime. No room for diminishing or adding to it is attributed to him. Therefore, a judge only serves to pronounce the sentence and does not possess any margin of manoeuvre. In other cases, the power of the judge is limited to the implementation of the decreed penalty. Nevertheless, even in case of diya, the voluntary principle of compensation the offender and the victim can agree upon, he can order some other punishment in order to safeguard the interests of the community. However, this does not replace or negate the idea of retaliation. Not even the head of state has the authority to relieve punishment in crimes of retaliation by the means of pardon. This right is exclusively reserved to the victim of the crime or his guardian.

The most interesting of the categories of crime is, from the point of view of the judgement, the category of Tazeer. The legal authorities determine the type and degree of punishment needed to exercise justice on behalf of the public’s interest. Therefore, different penalties may be implemented for one and the same act of crime, depending on the circumstances surrounding the offence of the law. Everything is possible, starting from a word of reprimand if the crime represents only a minor offence and can go up to capital punishment in cases of extreme severe acts of crime. The judge does not only have to take into account the crime itself but also its effect on society at large. Based on this consideration, he will select the most suitable of the various prescribed penalties.

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A judge has an absolute freedom concerning the interpretation and evaluation of penal sources and texts. However, jurists and legal scholars have established a system that should be followed while interpreting and judging the strength of the arguments derived from those legal texts. He may apply legal means such as Analogy and convention but has no power to create a crime or punishment based on those. In other words, the judge has no authority to violate a clear text, independently from the given conditions or considerations. In addition to those principles, one more assumptions should be considered. Under all circumstances, hudod should be repealed in case of doubt for it is better to err in granting forgiveness than to err in punishment. As a general rule, not just in Islamic criminal proceedings, doubt favour the accused. The acquittal in a state of doubt and the release of the accused is better for the community and nearer to justice than the penalisation of an innocent person.

9.3. The application of Sharia principles in the modern Islamic world

The basic principles of the Islamic criminal law as described above do not necessarily reflect the actual legal situation of most Islamic countries. As a matter of fact, criminal procedure in most of those countries did not derive from Islamic Sharia but was heavily influenced by European models and ideas as a result of the colonial period in the nineteenth and early twentieth century but also the ongoing influence exercised by European values. France and its relationship with some of its former colonies and protectorates in the Arab world is the most important example illustrating this development.

Egypt is often taken as an example for a distinctively Islam nation and in the Western world it is often assumed that its legislation is based on Islamic principles. In fact, the application of the Sharia in Egypt and most of its neighbours only occurred in a limited period between the arrival of Islam and the late nineteenth century. It was then, that new codes of law were introduced, following European models. After this, the application of Sharia was reduced in most of the countries in the Arab world, especially those that used to be part of the Ottoman Empire. There a process of westernisation had already been launched in the course of the 18th century in an effort to counterbalance the slow decline of the Empire. This process of modernisation was based on the “perception of the technical, military and economic superiority of the west” and “the cultural hegemony of Western powers” 123. But it also had repercussions on the legal system because the technical and economic development in Europe began to be attributed to the legal and political system. Ottoman reformers looked above all to France as a model.124 Especially the French and the British, but also the Austro-Hungarians exercised their influence on the region. Taking the Egyptian case, the civil and criminal codes now applied are derived from the French codes.125

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As a general rule, it is rather difficult to ascertain which countries apply the Sharia and to what extent they do so. The reason for this is the extreme complexity of the Sharia which translates into an affection of all spheres of life. Only Saudi Arabia is generally believed to attempt to apply the Islamic system of laws as extensively as possible.

However, there has been a tendency recently to reintroduce at least some elements of Islamic legislation in many predominantly Muslim countries. This development is motivated by a rising religious conscience in some countries that were once believed to be very modern and westernised by Muslim standards such as Iraq until the Gulf War and pre-revolution Iran. But the call for an Islamic state also arises from the growing respect of traditional values of the Arab world and certainly by all recent political events concerning the war on terror. In Egypt, for instance, the 1971 constitution has already included Islamic Sharia principles as a main source of legislation without going into details.126

No matter how far those attempts to introduce Sharia principles have already gone, it can be stated that they have not yet resulted in a tremendous change of the system of government and the practice of public authorities in those countries. Despite the growing influence of Islamic groups, most remain essentially secular by the standard of the Islamic world and as far as the status of religion in those countries permits. However, in order to release some pressure, governmental action is partly (and at least rhetorically) brought into line with the Sharia. But it would be a mistake to assume that the criminal codes have entirely been adapted to the demands of Islam.127

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Additionally, when observing the influence of religion on criminal codes in Muslim countries, one has to bear in mind that Islamic Sharia does not provide a complete framework of judicial action and proceeding since it is not a particularly developed set of laws but a rather general framework of rules. It lays down the guiding principles but only occasionally dictates precise criminal procedural rules. Therefore, it leaves much room for interpretation in view of many aspects regarding the changing needs of people and the different circumstances they face. The details of those rules are to be determined in dependence of a particular situation but nevertheless have to meet the basic principles of Islam.

Fußnoten und Endnoten

120  Koran 42,40.

121  Haleem, Muhammad Abdel, Compensation for homicide in Islamic Sharia, in: Haleem, Muhammad Abdel and others (ed.): Criminal Justice in Islam. Judicial Procedure in the Sharia, London 2003, 362ff

122  Awad, Awad Muhammad:, The rights of the accused under Islamic criminal procedure, in: Bassiouni, Cherif (ed.): The Islamic Criminal Justice System, London 1982, 91 – 109

123  Black, Antony, The History of Islamic Political Thought From the Prophet to the Present, Edinburgh 2001, 272ff.

124  Shaw, Stanford J, History of the Ottoman Empire and Modern Turkey, Vol. 1, Cambridge 1976, 266ff.

125  Sherif, Adel Omar, Egypt’s Report, in: The Prosecutor of a Permanent International Criminal Court, Freiburg 2000, 291ff.

126  Brown, Nathan, Inscribing the Islamic Sharia in Arab constitutional law, Washington D.C. 2001, 184ff.

127  See: Malikain, Farhad:, The Concept of Islamic International Criminal Law. A comparative study, London 1994, 11ff.

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