Series of Answers by the Eminent Scholar Ata Bin Khalil Abu Al-Rashtah, Amir of Hizb ut Tahrir, to Questions from the Visitors of his Facebook Page "Fiqhi"
To: Nasir Reda Muhammad Othman
Question:
Assalamu Alaikum. May you be blessed, my Sheikh and Amir, and may we be blessed by you. In one of the answers, the phrase "because Sharia legislated Ta'zir and explained the details of its rulings and types" was mentioned. So, what are the details of its rulings and types?
Answer:
Your question concerns a text mentioned in the answer to a question dated January 2, 2015, which states:
"As for Ta'zir punishments, they are penalties for sins for which Sharia did not specify a fixed punishment, but rather left the determination of the penalty to the Imam or the judge... these are part of the rulings of the Tariqah (method). The fact that Sharia did not specify the punishment does not mean at all that it did not establish a method for implementing the Sharia rulings for which it mandated Ta'zir for non-compliance. This is because Sharia legislated Ta'zir and explained the details of its rulings and types... and it left only the choice for the Imam among the types of punishments explained by Sharia, in the amount he deems appropriate for the reality of the sin and the sinner. That is, Sharia explained how to apply these rulings by requiring the infliction of a punishment on those who do not comply, but the amount and type of this punishment... this is what Sharia left to the Imam or his deputy." End quote.
We did not elaborate in that answer to avoid lengthiness... and likewise, in answering your question, a full elaboration is not possible because the subject of Ta'zir is vast and extensive. The topic is mentioned in its entirety in our book, The Penal Code (Nizam al-Uqubat)... but I will mention some of it:
1- Ta'zir differs from Hudud (prescribed punishments) and Jinayat (criminal injuries). Hudud and Jinayat are punishments determined and specified by the Legislator; they are mandatory and cannot be substituted, increased, or decreased. Ta'zir, however, is a punishment not specifically determined nor fixed to a single type. Furthermore, Hudud and Jinayat do not accept pardon or dismissal by the ruler—except for the pardon of the victim in Jinayat—unlike Ta'zir, which accepts pardon and dismissal.
2- Sharia has specified the types of Ta'zir punishments that a judge may use through clear Sharia texts, and it is not permissible to punish with anything else. Punishment is an action, so there must be evidence for its permissibility. One cannot say that there must be evidence to prohibit specific punishments; this is because the original rule is the absence of punishment. Thus, the infliction of a specific punishment is what requires evidence. The basis for the absence of punishment is that general evidence establishes the dignity of the human being and the prohibition of inflicting harm upon them. Therefore, inflicting a specific punishment requires evidence that permits it, and as long as no evidence exists for the permissibility of a particular punishment, it is not allowed.
It is also not said that Ta'zir has been granted to the ruler absolutely without restriction to punish as he sees fit. This is not said because what was granted to the ruler is the determination of the amount of the punishment, and nothing else. The Legislator intervened in the punishments and specified their types—meaning, He specified the types of punishments that can be used. Thus, the judge became restricted by these punishments; the Legislator's specification of the types of punishments restricted the judge, so he is not allowed to punish with anything else, though he may choose from them what he deems deterrent. Consequently, the ruler, when inflicting a Ta'zir punishment, must adhere to the Sharia rulings and not punish except with the punishments brought by the Legislator.
3- Sharia has prohibited specific punishments and permitted others that must be adhered to in Ta'zir. It has forbidden punishment by fire; thus, punishment by burning is not permissible. Al-Bukhari narrated from the Hadith of Abu Hurairah:
وَإِنَّ النَّارَ لاَ يُعَذِّبُ بِهَا إِلَّا اللَّهُ
"And indeed, none punishes with fire except Allah."
Al-Bukhari narrated from Ikrima that the Prophet ﷺ said:
لاَ تُعَذِّبُوا بِعَذَابِ اللَّهِ
"Do not punish with the punishment of Allah." (meaning burning with fire).
Abu Dawood narrated in his Sunan from Ibn Mas’ud that the Prophet ﷺ said:
إِنَّهُ لَا يَنْبَغِي أَنْ يُعَذِّبَ بِالنَّارِ إِلَّا رَبُّ النَّارِ
"It is not appropriate for anyone to punish with fire except the Lord of the fire."
All of this is explicit in the prohibition of punishment by burning with fire, and everything of its nature, which shares the property of burning such as electricity, is included in this.
4- Sharia has permitted specific punishments in Ta'zir, and it is not permissible to judge with others. It has explained them clearly, and I will mention some of them:
A- The Death Penalty: It is permissible for the Khalifah to reach the level of the death penalty in Ta'zir for major crimes that do not fall under Hudud crimes. An example is the crime of calling for the secession of a province from the body of the Islamic State, as stated in the noble Hadith:
مَنْ أَتَاكُمْ وَأَمْرُكُمْ جَمِيعٌ عَلَى رَجُلٍ وَاعِدٍ، يُرِيدُ أَنْ يَشُقَّ عَصَاكُمْ، أَوْ يُفَرِّقَ جَمَاعَتَكُمْ، فَاقْتُلُوهُ
"Whoever comes to you while your affairs are united under one man, wanting to break your strength or divide your community, then kill him." (Narrated by Muslim from 'Arfajah). Therefore, it is permissible for the Khalifah to order his execution as Ta'zir... meaning that it is permissible for the Khalifah to reach the level of the death penalty in Ta'zir.
B- Flogging: This refers to striking with a whip and the like... however, Ta'zir by striking or flogging is not permitted to exceed ten strikes or ten lashes. This has come explicitly in the texts of the Hadith; Al-Bukhari narrated from Abdul Rahman bin Jabir from someone who heard the Prophet ﷺ say:
لاَ عُقُوبَةَ فَوْقَ عَشْرِ ضَرَبَاتٍ إِلَّا فِي حَدٍّ مِنْ حُدُودِ اللَّهِ
"There is no punishment above ten strikes except in a Hadd among the Hudud of Allah."
So, if the judgment is flogging, it is not permissible to exceed ten lashes.
C- Fines: Fines are accepted in Ta'zir for some sins. Texts have been mentioned regarding this, including what Abu Dawood narrated in his Sunan from Abu Hurairah who said: The Messenger of Allah ﷺ said:
ضَالَّةُ الْإِبِلِ الْمَكْتُومَةُ غَرَامَتُهَا وَمِثْلُهَا مَعَهَا
"A stray camel that is concealed, its fine is its value and another like it with it." This means whoever conceals a stray camel and hides it from its owner, it is returned to its owner and the one who concealed it is fined an equivalent amount. Likewise, the Ta'zir for one who withholds Zakat is by taking half of his wealth. All of this indicates that the Messenger ﷺ ordered the punishment of a fine in Ta'zir.
D- Imprisonment: Imprisonment is permissible in Ta'zir. Sharia-compliant imprisonment is the detention of a person and preventing them from managing themselves, whether that is in a town, a house, a mosque, or a prison prepared for punishment or otherwise. The evidence that imprisonment is a Sharia punishment is what At-Tirmidhi narrated from Bahz bin Hakim from his father from his grandfather:
أَنَّ النَّبِيَّ صَلَّى اللَّهُ عَلَيْهِ وَسَلَّمَ حَبَسَ رَجُلًا فِي تُهْمَةٍ ثُمَّ خَلَّى عَنْهُ
"The Prophet (saw) imprisoned a man on suspicion then released him."
Imprisonment during the time of the Prophet ﷺ was in a house or a mosque, and the same was the case during the days of Abu Bakr; there was no prison prepared for litigants. When it was the time of Umar, he bought a house for Safwan bin Umayyah for four thousand dirhams and made it a prison. Umar imprisoned Al-Hutay'ah for satire, and he imprisoned Sabigh for his questioning about Adh-Dhariyat, Al-Mursalat, An-Nazi'at and their likes... The duration of imprisonment must be specified; sentencing to life imprisonment is not permissible in Sharia. Rather, the period for which a specific person is sentenced to prison must be determined.
Imprisonment is detention and not forced labor. Labor is something other than imprisonment. Therefore, if a person is sentenced to imprisonment, it is not permissible for them to be made to work, because the word imprisonment does not include labor. But is it permissible to sentence someone to both imprisonment and labor, or is it restricted to imprisonment? The answer is that no Sharia text has been reported making the punishment labor, neither hard labor nor otherwise. Therefore, one is not punished with it, and it is restricted to imprisonment in the sense of detention.
E- Admonition (Wa'dh): This is for the judge to admonish the sinner by warning them of the punishment of Allah. The evidence for this is the Almighty's saying:
وَاللَّاتِي تَخَافُونَ نُشُوزَهُنَّ فَعِظُوهُنَّ
"And those [wives] from whom you fear arrogance - advise them." (QS An-Nisa [4]: 34)
These are some types of Ta'zir punishments for which Sharia evidence has been provided regarding the permissibility of the ruler to punish with them. It is not permissible for the ruler to punish with any type of penalty unless a text from Sharia has been provided regarding the permissibility of that type.
I hope this is sufficient.
Your brother, Ata Bin Khalil Abu Al-Rashtah
Link to the answer from the Amir's Facebook page