General Provisions
Section 1.1 Preliminary
- A Citizen of the State is a Muslim who resides in the State and a non-Muslim, Dhimmi, who resides in the State and accepts the State’s social contract, Dhimmi contract, including its laws and norms.
- A Non-citizen temporary visitor (Mosta’men/ Mo’ahed) is a temporary visitor who enters the Islamic State under the Safety Contract. The Safety Contract is a reciprocal contract between the Islamic State and the visitor that specifies duties and obligations of both parties including the visitor’s right to security for himself and his property and the visitor’s obligations to respect and uphold the law of the land. Obtaining the State’s visa implies that the temporary visitor accepts the laws and customs of the State.
- A Non-citizen (Harbi) is a person who does not reside in the State and his country of citizenship has no treaty with the State that would grant Harbi treatment similar to that of citizens of the State with respect to security of a person.
Section 1.2 Title, Effective Date and Jurisdiction
- This Act is called the Penal Code and it shall become effective immediately after publication.
- The Code does not apply to offenses committed prior to its publication date; those offenses shall be governed by the prior law.
- The Penal Code is applicable to all offenses committed in the State regardless of the offender’s status in the State (i.e. citizen, temporary visitor).
- The Penal Code is applicable to all offenses committed by a citizen outside the State even though the offense is permissible where committed unless a certain provision of this code expressly declares otherwise.
- The Penal Code is applicable to all offenses committed by a non-citizen outside the State when a certain provision of this code expressly declares so or when the offender’s conduct shall cause harm to the State.
- The Penal Code is not applicable for offenses committed outside the State if committed by:
- A Non-Muslim citizen who departed the State permanently, renounced the Dhimmi contract, and expressed a desire not to return to the State.
- A citizen who was a Muslim but had renounced Islam at the time the offense was committed outside the State; even if he later reverted to Islam and returned to the State.
- The Penal Code is not applicable for offenses committed by Non-Muslim citizen who committed offenses in the State when certain provisions of this code expressly so declare.
Explanatory Note
This section identifies the individuals who are subject to Islamic penal law based on Islamic scholar’s classifications of individuals who reside inside and outside the State. See 10 Ibn Qudamah, Al-Mughni wa Al-Sharh Al-Kabir at 72. Generally, citizens and temporary visitors are subject to State’s penal law. A Non-Muslim citizen might be exempt from liability in a number of offenses such as in trade or consumption of alcohol. Generally, a Harbi is not subject to the State’s penal law unless the legislature realizes the need to do so. For example, anyone, including Harbi, who is accused of offenses involving the State’s security, international humanitarian law or international human rights shall be subject to the State’s Penal code. This Jurisdictional limitation embraces the view of Shafi’i, Hanbali and Maliki schools of thought. See 9 Ibn Qudamah, Al-Mughni wa Al-Sharh Al-Kabir at 383.
Section 1.3 Principles of Construction
The code is based on Islamic Law. Crimes and punishments for Hudud and Qisas categories are prefixed as defined in the Qur’an and Sunnah while crimes and punishments for Ta’zir are flexible to respond to social needs and to ensure sufficient protection for life, religion, progeny, intellect, and property.
Liability is personal.
No statement shall be attributed to a person who remains silent. The Defendant’s silence is considered a denial.
Fundamental Islamic Human Rights prevail over any law including the Penal code. Any apparent conflict between this code and Islamic human rights shall be resolved in favor of Islamic Human Rights.
The punishment is not beneficial in itself nor is it favored; rather it is important to deter future crimes against the Islamic legitimate interest, i.e. protection of life, religion, progeny, intellect, and property.
In some instances, the advancement of Islamic law goals may sacrifice a particular individual’s interest, in the realization of future societal gains.
The provisions of the Code shall be construed according to the plain, ordinary meaning of the words, taking into consideration rules of grammar, and the purpose of the provisions. When the language lends itself to differing constructions, it shall be interpreted to further the general purposes stated in the Section, the special purposes of the particular provision involved and to advance the most general and lasting interests with a view towards the long-term impact for promoting the five interests aforementioned.
Some offenses might produce some benefits, such as consumption of alcohol, but the harm produced greatly outweighs the benefits. Unambiguous and definitive Qur’an and Sunnah principles, expressed and implied, are the criteria to determine the harm incurred and the benefits sought. Ambiguous and speculative Qur’an and Sunnah principles, expressed and implied, may provide interpretational guidance when unambiguous and definitive Qur’an and Sunnah principles are not present.
People ‘s desires and views regarding defining an offense or defense may not necessarily align with the interest protected in Islamic law. A judge should not favor popular views or the commands of the executive branch of the government at the expense of Qur’an and Sunnah principles.
The application of this code is subject to the Rule of Law doctrine.
The code safeguards individuals by invoking Islamic principles listed in Quran and Sunnah, against excessive, disproportionate or arbitrary punishment.
All provisions in the code shall be applied prospectively. The Qur’an prohibits retroactive application of punishment.
There is no crime and no punishment except with breach of law. There is no crime and no punishment without fair warning. Any doubt regarding the nature of the conduct that constitutes an offense shall be construed in favor of the accused.
Explanatory Notes
Section 1.3 (1) emphasizes the supremacy of Islamic law and its limitations. While the crimes of Hudud and Qisas are prefixed, its punishments may be suspended temporarily if the circumstances warrant. The Caliph Omar Ibn Khaṭṭāb suspended the punishment for larceny offense when famine struck the Islamic State.
Section 1.3 (2) declares that Islamic criminal law does not recognize any form of collective liability. The Qur’an affirms: “No bearer of burdens shall be made to bear the burden of another.” (35:18). No person shall be liable because of kinship or association of its lack thereof. See also Qur’an (17:15).
Section 1.3(3) adopts a well-established scholarly principle that defendants’ silence shall be construed in favor of the defendant. A judge can neither infer guilt from the defendant’s silence nor attribute a statement to the defendant because of his silence. Section 3.1 creates a presumption that defendant’s silence shall be construed as denial of a wrongdoing. See Al-Ashbah wa-al-Nazai’r, ibn Najim al-Hanafi at 129 and Al-Ashbah wa-al-Nazai’r, Jalal al-Din al-Suyuti at 142. See also, Art. 67 & 1822, Al-Majalla AL- Ahkam Al-Aaliyyah (The Ottoman Courts Manual)
Section 1.3 (4) recognizes that Islamic fundamental human rights is the supreme law of the land. In case of conflict between a penal code provision and fundamental Islamic human rights, the latter shall prevail. For example: Islam has recognized the right to the basic necessities of life. See Qur’an “And in their wealth there is acknowledged right for the needy and the destitute.” (51:19). When an actor fails to find the necessities of life for himself or a family member and accordingly commits a nonviolent crime (e.g. theft) to satisfy the need, the actor may not be liable.
Section 1.3 (5) adopted Imam Al-Shatibi’s theory of the higher objectives of Islamic Law; namely, the interests worth protection are : life, religion, progeny, intellect, and property. Interpretation of any provisions in this code shall be construed widely enough to protect the former interests and narrowly enough to exclude other, non-listed interests. Professor Abu Zahra in, Al-Jarīmah wa al-‛Uqūbah fī al-Fiqh al-Islāmī., explained the interest ought to be thoroughly protected.
Section 1.3. (10) emphasizes the Rule of Law doctrine. Law enforcement and judges must apply the law equally to all individuals. A famous authentic hadith declares this rule as follows: (Aïsha, may Allah be pleased with her, reported that the Qurayshi people were highly concerned about the Makhzoumi woman who stole, so they suggested Usama ibn Zayd be delegated to plead with the Prophet (peace be upon him), for her. The Prophet, (peace be upon him), said: “Are you pleading against Allah’s prescriptions?” Then he said: “What caused people before you to perish is that when a noble man steals, they let him go, but when a poor man steals, they punished him. I swear to Allah if Fatima, my daughter, steals I will cut her hand.”) Sahih Al-Bukhari.
Section 1.3. (12) emphasizes the prospective application of punishments doctrine. This doctrine has been frequently affirmed in the Qur’an, in verses, (17:15), (4:22), (5:95).
Section 1.3(13) emphasize the Qur’an doctrine that a punishment is not warranted unless fair warning of the prohibition has been declared. This doctrine necessitates that there is no crime and no punishment without a law that has been communicated to the people. See Qur’an 17:15 (… And no bearer of burdens will bear the burden of another. And never would We punish until We sent a messenger.)
Section 1.04 Classes of Offenses
(1) Hudud: Hudud crimes are Qazf (Insult), Zina (fornication or adultery), apostasy, Baghi (Insurgency), voluntary intoxication, Hirabah (forceable theft), and theft.
(2) Qisas: Qisas crimes encompass homicide and bodily harm offenses.
(3) Ta’zir: Ta’zir offenses encompass all possible violations that are not enumerated under Hudud and Qisas offenses and in which there are no prefixed punishments in the Qur’an or Sunnah.
Explanatory Notes
Section 1.04. (1). Scholars debated apostasy as a crime of Hudud. It is up to the legislature in a given jurisdiction to make a determination on apostasy as a crime of Hudud, a crime of Ta’zir or no crime at all. Political pressure, whether internal or external, whims of the ruler, or other factors unrelated to Islamic Law should not influence the legislature’s decision.
The category of Ta’zir offenses are subject to the general punishment’s guidelines listed in Qur’an and Sunnah.
