The review of muslim criminal law with protection to the Human Rights

As a matter of fact, no fundamental law stands in between the application of modern Human Rights and the religious practice of Islam. Islam is a complementary Human Rights system, as P. Antes points out. Members of Muslim societies have to stand firm against any abuse of rules that are part of the Koran and their religion and therefore they also have to accept and implement Human Rights. On the whole, the core principles of those instruments that deal with the principles of criminal justification “have integrated the principles of Islamic Law into the protection of humans according to the principles of  brotherhood, equality and justice. Nevertheless, one has to admit that the weakest point concerning this interpretation is the fact that duties towards the community rank first in the Muslim faith. On the contrary, individual rights in the sense of legal claims rank only second. In order to establish human rights as individual rights within the Muslim community, it is necessary to reverse this set of priorities and to place the concept of individual rights first. The examples for punishment given above are widely regarded as cruel examples of Islam criminal law and seem to contradict a modern Human Rights practice. Nevertheless, one should not over-simplify at this point. The application of those practices varies from country to country. Legal authorities can change the means of punishment and avoid cruelty if circumstances justify such exceptions. However, orthodox hardliners oppose such a practice and call for the one-to-one implementation of the ultimate means of punishment as it is suggested (but not prescribed) by the Sharia. Within this context there have been many challenges from Islamic scholars who have rejected the very notion of western human rights which provokes much concern surrounding tensions between the Islamic interpretations of human rights and the West’s stand point. To add to the complexity of the situation one needs to acknowledge that there is no general rule as a comparison of different Moslem countries easily proves. Furthermore, Western countries also do not always agree on common standards concerning human rights, as the dispute over the death penalty between most European countries and the United States shows. Therefore, the Western view is at least partly biased and does not always fully understand legal practice in the Moslem world. Much has already been written about the question of the influence of Human Rights regarding Islamic criminal law. As a matter of fact, Islamic law does not necessarily stand in a stark contrast to basic human rights as it is sometimes claimed. Often, it refers to the same principles but does result in a different interpretation. In other cases, advocating certain rights automatically implies the acceptance of obligations referring to those rights. A good example illustrating this point is the free expression of speech.

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".

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.

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: "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 wrong".

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.

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. But freedom of thought and believe are also repeatedly emphasized in the Koran: "There shall be no coercion in matters of faith"; "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?"

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. 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 legislation for every contingency of life.” 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. 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; 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;

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; 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; The right to appeal.

Advocates of conventional orthodox Muslim societies that resist the adaptation to Western lifestyle and values attribute a high priority to the implementation of legal principles as represented in the Sharia. According to them, only a true Islamic set of laws that is based upon and inspired by the sources of Muslim faith can guarantee the maintenance of Muslim societies and prevent their gradual westernization.

On the other side, it is the reform camp within the Muslim world as well advocates of reform from outside that spearhead the movement aimed at changing the conventional legal proceeding as exercised in many Muslim countries. They argue that only a modern judicial practice can bring about change, modernization and progress in all important fields of life. Therefore, the debate on the Sharia is of paramount importance to the Muslim world and outranks all debated issues in view of a safe, stable and prosperous Islamic world. It is in the centre of the cultural battlefield and therefore draws much attention in- and outside the Islamic world.

However, the debate on the Sharia issue often is superficial and marked by political intentions and religious prejudices. As a consequence, several of the key elements of such a debate are either neglected or circumvented. In other words, an honest scholarly-led debate based on facts and focused on the real needs of the Islamic world as necessary as it is – does not yet take place. Those facts which are to serve as points of orientation are easy to enlist, as the present work has shown. They should be taken into consideration from both sides - Muslim scholars as well as representatives from outside the Islamic world. A view from within the Islamic world needs to include and acknowledge the following three points: It is more than doubtful to talk about the Islamic world as one civilization because it covers such a vast field of different territories, ethnicities, and cultures. They all have their own cultural background and traditions that have become part of an, at least, localised jurisprudence. Therefore, it is impossible to talk about one Sharia. One should rather allude to different approaches to the Islamic system of laws. Furthermore, the Islamic jurisprudence is by no means based upon a strictly codified law that could be compared to modern standards. It rather is a divine law inspired by Allah and almost exclusively based on the latter interpretation of the followers of the Prophet. In short, an Islamic legal book such as the German BGB does not exist.

A third point that needs to be made is the fact that there has never been a long period of Islamic history in which an un-compromised “core”-Sharia was implemented. Legal proceeding has always been adapted to the needs and demands of the particular Muslim rulers or governments. This is not just true with the beginning European influence but had been the case earlier on already.

Therefore, one can state that the call for a return to the “Golden Age of Islam” as advocated by orthodox thinkers within the Muslim world is somewhat hypocritical because it refuses to acknowledge the true historical development of Islam and the Sharia and draws an illusion without any link to the historic truth and the demands of a modern society. But it is not just the radical or fundamental fractions from within Muslim societies that use superficial attitudes and popular images in order to strengthen their points of view. Western civilisations commit the same error by reducing Islam and especially the Islamic criminal law to popular stereotypes without acknowledging the historic and also (at least partly) the legal validity of the set of laws as such. People from the Western hemisphere, should take the following remarks into consideration when giving an opinion on the Islamic Sharia: The Western civilisation is the only one in world history that has managed to implement its particular sets of values and its ideas concerning public life as such on a worldwide scale. Today, this process is described as globalisation but in fact it roots in the European expansion movement that had started in the 16th century already. Consequently, Westerners too often assume that other civilisations will automatically and voluntarily throw their set of traditions and values overboard if they do not meet Western standards and expectations. This is, however, neither a realistic nor a fair prospect and therefore it is hardly surprising if Western influence meets such a fierce resistance in several countries. This is especially true in Muslim countries that have their own glamorous civilisation that once used to be far ahead of any European equivalent. A possible solution is, as so often, a compromising attitude of all parties involved. This compromise, however, should rather be focused on the demands and needs of the Muslim world than on the claims of European and American societies to implement “stante pede” Western legal standards. As a matter of fact, a modern Islamic jurisdiction can in most cases meet the claims and considerations that resulted from Islam and its tradition without contradicting modern human and civil rights standards. A starting point could be a general reconsideration of all sources of Islamic jurisprudence that would take would have to be based on the original sources of any Islamic legal proceeding. Starting with this idea of going ‘ad fontes’, one has to see and interpret those sources in the light of contemporary conditions and circumstances, as several Islamic scholars have already done. This effort should be made from within the Islamic world and not infused from outside in order to make it easier for the members of such a legal community to accept. Any system of laws, no matter how it is structured, is only as good as it is accepted by a majority. Besides Islamic predominance on any effort of change that needs to be made, western Islam- and legal scholars could assist if asked. But under no circumstances should western legal proceeding be taken as the one and only possible model. Many countries already apply modern law codes and accept standards set by human rights conventions and the United Nations.

This does not, however, include the negation and eradication of everything that has constituted the old system of laws. Instead, one needs to reconcile the legal traditions of the Muslim world with the demands of today’s world. This will serve everybody: At first, the Muslim world itself that needs to create more stable and prosperous societies. A modern legal constitution is of paramount importance within this effort. But also the West will benefit from it in terms of economics and foreign policy.