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| Our legal rights in Islam. How much do you know? |
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| panjul |
| 03/24/04 at 19:42:01 |
| [slm] Over the years, Shariah, or Islamic law has been in the news a lot, mostly focusing around the penalty for adultery and the punishment of death by stoning. Also at issue is the seemingly unfair treatment that women recieve vs. the men accused of adultery/fornication. And of course, the cutting off of the hand of a thief is also a favorite with the media. Is this all what Shariah law is about? Even among the common Muslim, Shariah law is perceived as a rigid set of rules, although perhaps not perceived as a negative thing by the majority. Let's face two realities with honesty. First, even among Muslims some would rather not have Shariah for whatever reasons. Secondly, even many supporters of Shariah get nervous thinking about living under such a rule. Perhaps, we think of our own sins that we commit and get away with in our current societies, which we may not get away with under Shariah. Perhaps, we don't know enough about the law. Whatever the reason(s), many of us voice our support for such a system, whether out of love for Islam or as a reaction to the forces that continuously assault the Islamic way of life, or some of us just may be hypocrites. The western society cherishes two of its principles, freedom of choice and the protection of the person accused of a crime against unusual and unnecessary punishment. (The words "unusual and unnecessary punishment," as far as I know are unique to the US Constitution, although such practices are avoided in other countries too.) Now, we all know that what's law on paper isn't always practiced. That's not the point here. What does shariah have to say on these two subjects? And what constitutes unusual and unnecessary punishment of a prisoner? For the Dawah workers, do we know enough about the subject to enlighten/defend those who may know know enough about it and attack it? I look forward to hearing from you all. Although we do not have an Islamic government anywhere in the world, many Muslim countries do have shariah courts, where the judgments handed down are not always in line with Islam. Which has three factors. First, a judge is human and can err. Second, unseen hands of corrupt political power may be directing the judge. Third, the judge may not have enough Islamic knowledge, or precedence of a ruling from the past. It is imperative for Muslims to learn about shariah law, even though we do not have an Islamic government, even if we may not be living under an Islamic government in the future. When the time does come for a just and civil Muslim society, whether it may be in one country or all Muslim countries, people may be reluctant to have shariah, even those that love Islam and want an Islamic way of government and social justice. We know of our civil rights in our respective countries. Do we know our rights in Islam? Can we demand our basic rights, against a person of greater knowledge who may be telling us something that may not be true? Can anyone of us defend ourselves on the minimum standing in front of a qadi or judge? So I pose my questions to you again. What does shariah have to say on these two subjects? And what constitutes unusual and unnecessary punishment of a prisoner? For the Dawah workers, do we know enough about the subject to enlighten/defend those who may know know enough about it and attack it? I look forward to hearing from you all. |
| Re: Our legal rights in Islam. How much do you kno |
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| al-ajnabia |
| 03/24/04 at 20:40:25 |
| [slm] I beleive in sharia but these are the places I have seen it break down: 1. accepting the witness of unqualified witnesses 2. nonfamiliarity with the options for mercy permissible 3. failing to consider the greater and lesser evil I know a man who undrestands these things, I'm really lucky he was around when I was growing up. If he hadnt been tho one to explain Islam to me, I might not be able to see how good it is. |
| Re: Our legal rights in Islam. How much do you kno |
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| panjul |
| 03/25/04 at 16:19:56 |
| [slm] The purposes of the government are many. Maulana Abdus Salam Nadvi, in his book “The ways of the Sahabah,[1]*” sums up the responsibility of the government in one sentence: “The duty of state is giving rights in the same way as the duty of the subjects is demanding rights.” (P368) He further writes on this subject by showing how the Caliphate of Umar (R) operated, what duties it took on and how the people demanded their rights from him. Shariah, in my opinion (which may not be worth a grain of salt and utterly wrong), cannot operate in full capacity until the social structure it is set up in is just; until the various Muslim countries give the people their full rights and foster an atmosphere where its subjects will not be afraid to demand their rights. Let’s look at certain rights granted in Islam. The American Journal of Islamic Social Sciences, volume II, Winter 1994, Number 4, printed an article by Taha J. al’Alwani, [2]*, titled “The Rights of the Accused in Islam.” A person accused of a crime appearing in a shariah court is entitled to self-defense. Furthermore, shariah “prohibits its denial under any circumstances and for any reason.” (P504) No matter what your crime, no matter how sensitive the case, no matter how embarrassing the case to a person, party or the state, etc, the government and the courts cannot take away the rights to self-defense. And Allah knows best. Al-Alwani then goes on to cite a hadith. When the Prophet (S) appointed Ali (R) as governor of Yemen, he advised him that he should not judge in one party’s favor until he has “heard all that both parties have to say. Only in this manner will you *come to a proper decision, and only in this way will you come to know the truth.*(Emphasis mine.) Al-Alwani further writes that Umar ibn Abd al Aziz said to one of his judges, “When a disputant comes to you with an eye put out, do not be quick to rule in his favor. Who knows, maybe the other party to the dispute will come to you with both eyes put out!” All this is very straightforward, or so it seems. The question to ponder over, and inshallah, maybe someone can come up with sound knowledge about it is, can a person in a Shariah court be tried and indicted in absentia? As sensitive an issue as this, I would still like to present my argument, but making it clear that it is merely my opinion based on the thought process of deductive logic. I would say that in light of the above-mentioned hadith and history, it would be wrong to indict a person in absentia. It would be unjust even if the court may have very strong proof against the person. If the person isn’t there to refute the accusations, how can the court indict him? He may have proof that may establish his innocent yet. What do you think, or know? Do you know of any case in the history of Islam in which this was practiced? Furthermore, what is the point of trying someone in absentia? You cannot mete out the punishment. Is this done for political purposes? Is it only done in high-profile crimes? Would this be just? I look forward to hearing from you guys. *[1] I do not know who this author is. This is the first I have heard of him—through reading his book. His hold of the English language is not strong, but he is understandable. The edition I have is the latest, but with a 100 crucial pages missing on various topics, including “The limits of punishment on a citizen.” *[2] According to the book, al-Alwani, is a member of the Fiqh Academy of the Organization of the Islamic Conference, chairman of the Fiqh Council of North America. He is also the President of the International Institute of Islamic Thought in Herndon, Virginia. |
| 03/25/04 at 16:21:39 |
| panjul |
| Re: Our legal rights in Islam. How much do you kno |
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| Mossy |
| 03/25/04 at 17:24:02 |
| Salams.. I think what one has to do is to distinguish the Shariah from the akkham.. The Shariah is in essence the will of Allah (swt) - we can only hope to come to a small approximation of this.. As time goes by, we rely more and more on the opinions of those who come before as ijtihad is deemed firstly inviable, then impossible by an increasing number.. There are few things one which the ulema have an ijma, and a myriad of cases on which there is an ikhtilaf, from minor variances to massive ones - which to use, the most severe, or the most lenient when two opinions are present? Looking at the differences in juristic methodology between the madhabs, for example the emphasis on the role the urf played in checking whether a ruling was feasible, this isn't surprising.. In addition, it does require upright and trusthworthy testimony for most actions, something which is hard in the absence of a religious populace - something which if it were extant, wouldn't object to the implementation of these rules as they are but a reflection of the base premise of their lives.. My personal take on it is that nobody can implement a good set of akkham until Iesa (pbuh) comes once more - Islam is in a period of decline as the religion of God always experiences after the embodiment of the Shariah, a Prophet (pbut) walks this Earth. It is only when the Prophet Iesa (pbuh) returns that there will be one who can truly deem what is the correct path. Sorry, just a post-dinner ramble, I'll try and respond to your queries from my extremely limited knowledge soon insh'Allah :) ws Mossy |
| Re: Our legal rights in Islam. How much do you kno |
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| timbuktu |
| 03/25/04 at 19:58:12 |
| [slm] very interesting, although law generally goes over my head. [quote]it would be wrong to indict a person in absentia.[/quote] The Hadith establishes this principle . However, there is another principle, that justice must not be (unduly) delayed. In the case of a husband gone missing, the woman can file for widow (?) status. The poor husband isn't there, but if enough time has passed (is it seven years?), the courts declare the woman free to marry. I think trial can take place in absentia if sufficient time and publicity have been given. On the other board I was told that under US law, no one cannot be tried in absentia, because the defendent wouldn't have a chance to prove his innocence. This made me ask about a law that allows bombing of innocent civilians but does not allow trial in absentia. Anyway, I have already said that I do not understand law. |
| 03/25/04 at 20:03:03 |
| timbuktu |
| Re: Our legal rights in Islam. How much do you kno |
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| al-ajnabia |
| 03/25/04 at 20:43:45 |
| [slm] I think I read somwhere that the time can be as little as six months in some cases depending on the nature of the wife, and the nature of the absense of the husband. A husband can be away longer than that if he has made necessary provisions or something and the wife is ok with it. But it isnt an automatic thing, I dont think. But this isnt a criminal proceeding and no punishment is given out in this case. In criminal cases the defendant has to be able to swear he didnt do it or ask for proof or an oath by the plaintif or maybe thats civil cases like personal injury. Actually I'm not sure about criminal cases, except where there are witnesses and a plaintif, like the person asaulted or the person stolen from. Also in cases like cutting off an hand for theft things,the item stolen must be more than a certain amount of money and cant have been plucked from a tree. I've been wondering about people who acuse believing women of adultry without providing four witnesses and spread around rumors about it. The Quran says that they are to be given 80 lashes and that no one is to accept their testimony on anything ever again. How would one go about bringing such a case against such individuals? Especially if they have also been problematic in other ways but on things without so clear a penalty. |
| Re: Our legal rights in Islam. How much do you kno |
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| panjul |
| 03/25/04 at 21:00:14 |
| [slm] In the case of a husband gone missing, the woman can file for widow (?) status. The poor husband isn't there, but if enough time has passed (is it seven years?), the courts declare the woman free to marry. For this scenario we have specific course of action already given. In cases where we do not know the specifics for, for instance murdering, taking of the property of orphans? Can a person be tried in absentia? Allah knows best, and all mistakes are mine. Salams |
| Re: Our legal rights in Islam. How much do you kno |
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| timbuktu |
| 03/30/04 at 02:05:24 |
| [quote author=panjul link=board=lighthouse;num=1080179126;start=0#6 date=03/25/04 at 21:00:14] In cases where we do not know the specifics for, for instance murdering, taking of the property of orphans? Can a person be tried in absentia?[/quote] I don't know, but how can you leave justice hanging in the balance if someone has absented himself for years? or how can one justify a law which prevents trial in the absence of the defendent, but allows the President to go ahead and bomb innocent civilians? |
| Re: Our legal rights in Islam. How much do you kno |
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| panjul |
| 03/31/04 at 19:10:04 |
| [slm] According to Taha J. Al Alwani’s article, cited in the posts above, the accused in a shariah court has a right to a lawyer. Historically, the courts sessions were public, which were attended by many scholars and people of knowledge and they helped the judge reach his decisions, and so there was no need for a lawyer then. However, Abu Hanifah was of the opinion that an accused can appoint a lawyer to represent him before the court. Al Alwani then cites a hadith in which the Prophet (S) said: “I am only human, and some of you are more eloquent than others. So sometimes a disputant will come to me, and I will consider him truthful and judge in his favor. But if ever I have (mistakenly) ruled that a Muslim’s right be given to another, then know that it is as flames from the hellfire. Hold on to it or (if you know it belongs to another) abandon it.” Al Alwani cautions us that the lawyer must be impartial, even in defending his client. Isn’t that interesting? What does it exactly mean? Al Alwani does not explain himself further on it. Does it mean that the person cannot lie to the judge or while giving testimony to someone else? What does impartiality mean? Can a lawyer, finding his client guilty of the crime, say to the court that he’s guilty and that appropriate punishment should be given out? Al Alwani writes: “With the help of such [impartial] counsel, the accused may acquire a proper understanding of the charges against him/her, of what the law says, of the weight of the evidence presented, and of what may be used (and how it may be used) to rebut that evidence.” And Allah knows best. ****************************************** I don't know, but how can you leave justice hanging in the balance if someone has absented himself for years? How can you punish someone who's not there? I wish I had the answers. I'm just a student and a wife. :) |
| Re: Our legal rights in Islam. How much do you kno |
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| timbuktu |
| 03/31/04 at 22:16:59 |
| [quote author=panjul link=board=lighthouse;num=1080179126;start=0#8 date=03/31/04 at 19:10:04]Al Alwani cautions us that the lawyer must be impartial, even in defending his client. Isn’t that interesting? What does it exactly mean? Al Alwani does not explain himself further on it. Does it mean that the person cannot lie to the judge or while giving testimony to someone else? What does impartiality mean? Can a lawyer, finding his client guilty of the crime, say to the court that he’s guilty and that appropriate punishment should be given out? Al Alwani writes: “With the help of such [impartial] counsel, the accused may acquire a proper understanding of the charges against him/her, of what the law says, of the weight of the evidence presented, and of what may be used (and how it may be used) to rebut that evidence.” And Allah knows best.[/quote] From what I have read, the Islamic lawyer must not hide the truth to save his client. [quote] How can you punish someone who's not there?[/quote] Here we are moving from sentencing to the execution of the sentence. If we agree that an accused cannot hide himself, and thus escape justice, then it follows that sentencing can be done in absentia. Now about the execution of the sentence - if the sentence is one that does not involve physical punishment to the body, then the sentence can be carried out, eg: confiscation of property. If the sentence involves say, incarceration, then that part can be suspended until the guilty is apprehended. How am I doing for someone who does not understand law? :) |
| 03/31/04 at 22:21:58 |
| timbuktu |
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