(Series of Answers by the Eminent Scholar Ata Bin Khalil Abu al-Rashtah, Ameer of Hizb ut Tahrir, to the Questions of the Visitors to his Facebook Page "Fiqhi")
To Brother Juma'a
Question:
Assalamu Alaikum wa Rahmatullahi wa Barakatuh, our virtuous Sheikh,
What is the ruling on using beating to make a detainee confess to a matter he is suspected of having committed, without the presence of tangible evidence but merely based on suspicions, knowing that under beating, it eventually results in him being the perpetrator? The second part of the question: is it permissible to use hallucinogenic injections so the accused confesses what he has, because they justify their use to avoid severe beating that sometimes leads to death?
Your brother, Juma'a Barro - Wilayah Syria
Answer:
Wa Alaikum Assalam wa Rahmatullahi wa Barakatuh,
Torturing an accused person is a major crime in Islam, for which the perpetrator is severely punished according to the rules of Shariah. Furthermore, extracting a confession through torture renders that confession worthless in the case proceedings. Not only that, but even if the charge is proven against the accused through a sound and upright judicial trial, it is not permissible for the Qadi (judge) to decide on a punishment for the accused that involve torture, but only those punishments stipulated by Shariah... To clarify this, we say:
We have detailed this matter in Article 13 of the Introduction to the Constitution, which states: (The default for a person is innocence. No one is punished except by a court verdict. It is absolutely prohibited to torture anyone, and whoever does so shall be punished). I will quote some of what appeared in its explanation: Muslim narrated from Wail bin Hujr who said:
جَاءَ رَجُلٌ مِنْ حَضْرَمَوْتَ وَرَجُلٌ مِنْ كِنْدَةَ إِلَى النَّبِيِّ صلى الله عليه وسلم، فَقَالَ الْحَضْرَمِيُّ: يَا رَسُولَ اللَّهِ، إِنَّ هَذَا قَدْ غَلَبَنِي عَلَى أَرْضٍ لِي كَانَتْ لأَبِي، فَقَالَ الْكِنْدِيُّ: هي أَرْضِي فِي يَدِي أَزْرَعُهَا لَيْسَ لَهُ فِيهَا حَقٌّ، فَقَالَ رَسُولُ اللَّهِ صلى الله عليه وسلم لِلْحَضْرَمِيِّ: أَلَكَ بَيِّنَةٌ؟ قَالَ: لاَ، قَالَ: فَلَكَ يَمِينُهُ، قَالَ: يَا رَسُولَ اللَّهِ، إِنَّ الرَّجُلَ فَاجِرٌ لا يُبَالِي عَلَى مَا حَلَفَ عَلَيْهِ وَلَيْسَ يَتَوَرَّعُ مِنْ شَيْءٍ، فَقَالَ: لَيْسَ لَكَ مِنْهُ إِلاَّ ذَلِكَ
"A man from Hadramaut and a man from Kinda came to the Prophet (saw). The Hadrami said: 'O Messenger of Allah, this man has overcome me regarding land that belonged to my father.' The Kindi said: 'It is my land, in my possession; I farm it and he has no right to it.' The Messenger of Allah (saw) said to the Hadrami: 'Do you have evidence?' He said: 'No.' He said: 'Then you have his oath.' He said: 'O Messenger of Allah, the man is a transgressor and does not care what he swears to, and is not restrained by anything.' He (saw) said: 'You have nothing from him but that.'" (Muslim)
Al-Bayhaqi narrated with a sahih chain that the Prophet (saw) said:
البينة على المدعي، واليمين على من أنكر
"The burden of proof is upon the claimant, and the oath is upon the one who denies."
In the first Hadith, the Messenger (saw) tasked the claimant with providing the bayyinah (evidence), and this means that the defendant is innocent until his guilt is proven. In the second Hadith, the Messenger of Allah (saw) clarified that the default requirement for evidence is upon the claimant, which is proof that the defendant is innocent until his guilt is proven...
Thus, the accused is innocent until proven guilty, so it is not permissible to torture him by any means to extract a confession from him. Shariah evidences have been revealed that explicitly prohibit this:
a- Allah (swt) has prohibited attacking the soul of a Muslim or any part of his body, and has established a Shariah punishment for anyone who attacks any of that. Allah (swt) says:
وَالَّذِينَ يُؤْذُونَ الْمُؤْمِنِينَ وَالْمُؤْمِنَاتِ بِغَيْرِ مَا اكْتَسَبُوا فَقَدِ احْتَمَلُوا بُهْتَاناً وَإِثْماً مُبِيناً
"And those who harm believing men and believing women for [something] other than what they have earned have certainly born upon themselves a slander and manifest sin." (Surah Al-Ahzab 33:58)
b- Muslim narrated in his Sahih from Hisham bin Hakim bin Hizam, who said: "Indeed, I heard the Messenger of Allah (saw) say:
إِنَّ اللهَ يُعَذِّبُ الَّذِينَ يُعَذِّبُونَ فِي الدُّنْيَا
"Indeed, Allah punishes those who punish people in this world." (Muslim)
c- Muslim narrated in his Sahih from Abu Hurairah, who said: "The Messenger of Allah (saw) said:
صِنْفَانِ مِنْ أَهْلِ النَّارِ لَمْ أَرَهُمَا، قَوْمٌ مَعَهُمْ سِيَاطٌ كَأَذْنَابِ الْبَقَرِ يَضْرِبُونَ بِهَا النَّاسَ...
"Two types of the people of Hell I have not yet seen: people with whips like the tails of cattle, with which they strike the people..." (Muslim)
Furthermore, extracting a confession by coercion has no value in judicial proceedings and is not considered because it was not given by choice:
- Ibn Majah narrated in his Sunan from Abu Dharr al-Ghifari, who said: "The Messenger of Allah (saw) said:
إِنَّ اللَّهَ قَدْ تَجَاوَزَ عَنْ أُمَّتِي الْخَطَأَ، وَالنِّسْيَانَ، وَمَا اسْتُكْرِهُوا عَلَيْهِ
"Indeed, Allah has pardoned for my Ummah their mistakes, forgetfulness, and what they are coerced into doing." (Ibn Majah) Therefore, what a person is coerced into, they are not held accountable for.
- Al-Hakim narrated in Al-Mustadrak 'ala al-Sahihayn from Ibn Abbas (ra), who said: "The Messenger of Allah (saw) said:
تَجَاوَزَ اللَّهُ عَنْ أُمَّتِي الْخَطَأَ، وَالنِّسْيَانَ، وَمَا اسْتُكْرِهُوا عَلَيْهِ
"Allah has pardoned for my Ummah their mistakes, forgetfulness, and what they are coerced into doing."
Similarly, if the charge is proven by Shariah evidences against the accused before a Qadi who has the authority of jurisdiction, and in a judicial assembly of truth and justice, then the punishment must only be what the Shariah has stipulated, and not with punishments that Shariah has prohibited or did not stipulate. For example: punishment is not permitted with what Allah has made as torment in the Hereafter. The evidence for this is what Al-Bukhari narrated from the Hadith of Abu Hurairah that the Prophet (saw) said:
وَإِنَّ النَّارَ لا يُعَذِّبُ بِهَا إِلاَّ اللَّهُ
"Indeed, none punishes with fire except Allah." (Bukhari)
And Abu Dawood narrated from the Hadith of Ibn Mas'ud in a story with the wording:
فَإِنَّهُ لا يُعَذِّبُ بِالنَّارِ إِلاَّ رَبُّ النَّارِ
"For indeed, none punishes with fire except the Lord of the Fire." (Abu Dawood)
Accordingly, if it is proven against the accused before a Qadi with judicial authority and in a judicial session that he committed the crime he is accused of, then it is not permissible to punish him with fire, nor with what is like it such as electricity, nor with anything with which Allah punishes. Likewise, it is not permissible to inflict upon him anything except the punishments that the Legislator has stipulated. No one is punished by burning with fire, nor is anyone punished by pulling out fingernails, or eyelashes, nor by applying electricity to him, nor by drowning him in water, nor by pouring cold water on him, nor by starving him, nor by leaving him without necessities that protect from the cold, or otherwise. Rather, his punishment is limited to the penalties that have been brought by Shariah, and anything besides that is prohibited for the ruler to make as a punishment for the sinner...
Therefore, it is absolutely prohibited to torture anyone, and whoever does so has violated the Shariah. If it is proven that someone has tortured another, he shall be punished for that.
Your brother, Ata Bin Khalil Abu al-Rashtah
27 Safar 1438 AH Corresponding to 27/11/2016 CE
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