Guest Post: Sheikh Abu al-Yaqdhan al-Masri on Use of Torture in Prisons

[Editor's introduction: Aymenn Jawad Al-Tamimi]:

The issue of the use of torture in prisons in the areas of northern Syria outside of the control of the Damascus-based government has aroused controversy, not only in the 'Euphrates Shield' and 'Olive Branch' areas of north Aleppo countryside but also in the region of Idlib and its environs. In the latter region, the question of the use of torture in prisons came to the forefront more recently with the arrests of Bilal Abdul Kareem and Tauqir Sharif by Hay'at Tahrir al-Sham.

In this guest post for my site (though the original Arabic article has been published in the 'al-Balagh' magazine), Sheikh Abu al-Yaqdhan al-Masri- an Egyptian independent cleric who used to be part of Hay'at Tahrir al-Sham and is based in the region of Idlib and its environs- discusses the question of whether it is permitted in Islam to use torture against people accused of crimes. Note that this time the translation of the article was done in coordination with a team working with the sheikh. I revised the translation to produce a final copy agreed for publication.

The Ruling of Torturing The Accused

Written by: Abu Al-Yaqdhan Muhammad Naji

Praise be to Allah, may the peace and blessings of Allah be upon the Messenger of Allah

Allah (may He be glorified and exalted) has honoured the children of Adam. "And We have certainly honoured the children of Adam and carried them on the land and sea and provided for them of the good things and preferred them over much of what We have created, with [definite] preference" [Surah Al-Isra', Ayah 70]. "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, Ayah 58]. "And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution. But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed - then it is those who are the wrongdoers" [Surah Al-Ma'idah, Ayah 45].

Allah has warned those who transgress upon people by torturing them by punishing them on the day of judgement, the messenger (peace and blessings of Allah be upon him) is narrated to have said: "Allah tortures those who torture people in the life of this world". [Narrated by Muslim]. The prophet (peace and blessings of Allah be upon him) is also narrated to have said: "Two categories of the people of the fire I have not seen, a people who have whips the likes of the tails of cattle by which they whip people...) [narrated by Muslim]. Urwa (may Allah be pleased with him) said: "Hisham ibn Hakeem ibn Hizam passed by some people in Sham whilst they had been made to stand in the sun, oil had been poured over their heads, he inquired: what is this? He was told: "they are being punished for not paying Kharaj (an Islamically legislated tax), he responded by saying: "I have heard the messenger (peace and blessings of Allah be upon him) say: "Allah tortures those who torture people in this worldly life" [Narrated by Muslim]. It has also been narrated that Umar ibn Al-Khattab delivered a sermon in which he said: "I have not sent those who are working on my behalf to lash your skin or take your wealth, whosoever of them does that than inform me so that I may retribute you. Amr ibn Al-Aas then asked: "If one of us does so in order to discipline those whom are under his authority would you retribute for the one who has been beaten"? He said " Yes, by the one who my soul is in his hand, how can I not do that when I saw the messenger (peace and blessings of Allah be upon him) retribute for a companion from his own self!" [Jami Al-Usool: Al-Arnaut graded the hadith as Hasan whereas Al-Albani graded it as weak In Sunnan Al-Nisaai and Abu Dawood].

Firstly, the origin is that an accused person Is innocent until proven guilty. Also, the security and stability of society lies in the security and stability of its inhabitants. It is therefore not permissible to spy, detain, arrest let alone to beat and humiliate except with lawful proof.

The following are the points I shall write about:

1. The categories of the accused
2. Detention is a form of torture
3. The rights of the detainee
4. Is it permissible to torture an individual based on an accusation?
5. Is the confession which is extracted under torture valid?
6. Advice for the courts

Firstly: categories of the accused

People are of three categories: of them are those who are known to be virtuous, pious and have a good reputation, it is not permissible to detain this category of people based on an accusation, it is however permissible to ask them regarding the claim which has been made against them. It is also permissible to investigate the claim which has been made regarding them.

The second category of people are those that there is not enough information regarding them, it is not known whether they are pious or corrupt. The third category of people are those that are known to be corrupt, they are known for crime and evil deeds, it is permissible to detain these two categories for questioning and to verify the claims regarding them. Furthermore if there is evidence and Assistive proofs (Qarain) that back up the claims made against the third category of people it is permissible to make affairs difficult for them in order to push them to tell the truth but not to force them to confess.

The definition of an accusation as per the encyclopaedia of jurisprudence is as follows: "A claim in the words of the scholars of Fiqh is telling of a right of Allah or a human being regarding a wanted person whilst not being able to verify the claim Islamically in most circumstances". [The Kuwaiti encyclopaedia of Fiqh].

Dr Muhammad Rafat Uthman says: "if the accused is innocent and not a person whom which such a claim can be made against it is not permissible to punish him, beat him, arrest him or anything else. As for if his affairs are unknown, meaning that it is not known if he is corrupt or pious, he may be detained until his state is known. As for if the accused is known to be corrupt for example someone who is accused of theft and has been known to be a thief previously, or someone who has been accused of murder, or someone who is known for criminality, it is permissible to detain such a person" [Legal proceedings in Islamic law].

Sheikh ul Islam Ibn Taymiyyah (May the mercy of Allah be upon him) said: "People with regards to accusations are of three categories, a category known to people for their piety and God-fearingness and that they are not people that may be accused. This category is not to be detained or beaten, as a matter of fact they shouldn't be even made to swear by Allah according to an opinion of the scholars. In fact, the one who accused this person should be punished according to what many of the scholars have said.

The second category: he whose affairs are not known, so it is not known whether he is pious or not. He should be detained until his affairs become clear. Some scholars say: for a month. Others say: it is up to the judge to decide for how long.

Abu Dawood and others have narrated that the prophet (peace and blessings of Allah be upon him) "detained the accused". The reason being that if a claim was made against him he would be forced to attend a court hearing. Even if by being detained he is held back from his daily work, that is only until his state of affairs become clear. If it is found that he is pious he is to be released immediately.

If he was found to be corrupt he is of the third category: for example a thief that is known for theft or he is known for things linked to theft for example he is known to be a gambler or for in-permissible acts that he would need money for and he does not have money, that would strengthen the claim made against him. A group of scholars said that such a person is to be beaten by the judge -as Ashhab the student of imam Malik said- until he confesses regarding the money". [Al-Fatawa Al-Kubra]

Ali ibn Khalil Al-Tarabulsi Al-Hanafi said: "if he who has been accused is unknown to the Judge or the authorities, it is not known if he is pious or not, if he is accused he should be detained until his state of affairs are made clear, this is the ruling as per the majority of the Scholars" [Mueen Al-Hakim fe ma yataradad bayn Al-Khasmayn min Al-Ahkam].

Detention depends upon the accusation, some accusations are considered claims and others are not, more details of both categories may be found in the books of the scholars of Fiqh. Sheikh Al-Islam ibn Taymiyyah said: "Accusations are of two categories: one that is considered a claim and another which is not. The one that is considered a claim is the one in which the action claimed is forbidden for the accused and in turn he must be punished for, for example murder, highway robbery, theft or any other crime that is forbidden. As these things are concealed from plain view, most of the time it is not possible to verify these claims with solid proof. The other category of claims is that which is permissible in and of itself for example a contract of buying, lending money, holding an item until a loan is paid back, a warranty or any other claim which is not intrinsically forbidden. For example: debt as a result of buying, lending money, dowry, blood money of an unintended killing to name a few examples" [Majmoo Fatawa].

Secondly: detention is a form of torture

Neither did the prophet (peace and blessings of Allah be upon him) nor Abu Bakar (may Allah be pleased with him) have a prison. Umar (may Allah be pleased with him) founded one after their death in the house of Safwan ibn Umayyah which he had bought from him for 4000 dirhams.

However, detaining people -even if it is permissible- is nonetheless a form of torture. Allah (exalted is he) made a comparison between prison and torture, he said, "What, other than prison or painful punishment" (Sura Yusuf, Ayah 25). Detention is difficult in and of itself, whether it is for a short period or a long one. Al-Shatibi said: "Malik considered imprisoning the accused as permissible, even if it is a form of torture" [Al-Itisam].

Imprisoning an individual until his case becomes clear is permissible in the case that the state of the accused is unknown or if he is corrupt if there are evidences or assistive evidences (Qaraain) against him if there is a benefit in doing so as the majority of the scholars have said. It is the opinion of the Hanifis, Malikis, Shafiis and the Hanbalis as the evidences point to. An example of such a proof is the Hadith narrated by Imam Ahmed as well as others, Al-Albani graded the hadith Hasan in Irwaa Al-Ghalil as narrated by Muawiyah ibn Haydah (may Allah be pleased with him): "The prophet (peace and blessings of Allah be upon him) detained some people from my tribe as a result of an accusation made against them".

The Fiqh encyclopaedia states: "to imprison someone to check the accusation made against him is: to impede he who is accused to act on his own until the accusation made against him whether the accusation is in the basis of a public or individual matter is checked. It is also known as the imprisonment of Istidhar, the purpose of which is to check the claim made against the individual" [The Kuwaiti encyclopaedia of Fiqh].

Ibn Al-Qayim says with regards to imprisonment: "It is to impede an individual from acting on his own whether it be in a house or a Masjid or whether it be allocating the claimant to keep an eye on him or for the claimant to appoint someone on his behalf to do so, for this reason the messenger (peace and blessings of Allah be upon him) called the individual a: captive" [Al-Turuk Al-Hukmiyyah Fe Al-Siyasah Al-Shariyyah]. The prophet (peace and blessings of Allah be upon him) called impeding an individual from movement 'incarceration' as is mentioned in the Hadeeth of Al-Hurmas ibn Habeeb that his father said: "I came to the prophet (peace and blessings of Allah be upon him) with a man who was in debt to me so he said: stay with him, then he said to me: O the son of Banu Tamim what do you want to do to your prisoner?" [Narrated by Abu Dawood, it was deemed weak by Al-Albani in Daeef Al-Jami]. Therefore, imprisoning an individual in a particular place and banning him from his every day activities is a form of torture and psychological pressure, it is also a form of harm and humiliation. Banning him from his every day activities such as going to his work, travelling, buying, selling and other activities such as banning him from religious duties such as the Friday prayers and other congregational prayers, banning him from socialising such as visiting people, attending Eid events, happy events and sad ones, all of this saddens a person and hurts an individual's soul.

The detention of to find out more about an individual should not be carried out unless there is proof against him as clear as the sun in mid-day. Abdullah ibn Amir says: "I travelled in a congregation until we reached Dha Al-Marwa therein a bag of mine was stolen, there was a man with us whom we accused. My companions said: O so and so give him back his bag, he responded by saying: I did not take it, I returned to Umar ibn Al-Khattab and told him, he said: Who was there?, I told him, he said: I believe it is he whom you have accused, I said: I wanted to bring him to you in chains o leader of the believers, he said: do you come to me with him in chains with no proof? I shall not order an investigation into the matter, nor shall I ask regarding the affair. He (Omar) became angry. So he did not follow up the matter nor did he ask about it" [Musanaf Abdulrazzak Al-Sanani]. The leader of the believers did not allow that a man be shackled without proof of his crime.

Thirdly: The detainee has rights

If an individual is detained to find out more about him he must be given all of his rights. For example he is to be considered innocent until proven otherwise. The authorities must hasten to gain the information needed so justice may take course, if he is proven innocent he must be released immediately. He must be treated in a humanitarian manner, he must be given his physical and mental rights. The place he is detained in must be appropriate, he must not be placed in solitary confinement, he must be fed, his costs must be paid for, he must be allowed to carry on his daily life, his worship, reading , exercise and the rest of it. He must not be barred from contacting his family, his family should be allowed to ask about the progress of his case. He should be allowed to defend himself and provide evidences of his innocence, he must be allowed to appoint a lawyer if needs be. He should be questioned in a way that preserves his dignity and in a humane way as legislated Islamically.

Sheikh Tawayjiri says: "The prison must be spacious, every prisoner must be given enough clothing and food to meet their needs. It is in-permissible to humiliate the prisoner by speech or action. As a matter of fact barring a prisoner from what he needs from food and clothing is oppression that Allah will punish for even if the prisoner is an animal (hypothetically speaking)". [The encyclopaedia of Islamic Jurisprudence]

Fourthly: is it permissible to torture the accused and if so who has the right to do so?

When the word torture is used what is meant by it is the minimum form of torture that the accused should face whether it be psychological or physical by detention, scaring, insulting, starving, shackling, isolating, beating and dragging.

As I mentioned in the categories of the accused, the first category are those that it is not permissible to detain. The second category are those whose status is unknown, it is not permissible to harm by beating or any other method of torture to gain a confession. As for the third category that are known for their corruption and criminality it is permissible to detain them. It is nonetheless not permissible to torture them unless there are assistive evidences (Qaraain) that point to the fact that he carried out the crime he is being accused of. Al-Mawardi said: "It is for the person of authority to look to the state of the person and the characteristics of the accused to decide whether the accusation against him is strong or weak. For example if an individual is accused of Zina and he is someone that jokes much with women this increases the strength of the accusation, if he is the opposite of that than that weakens the claim" [Al-Ahkam Al-Sultaniyyah].

It is not permissible to beat the third category of people (those known for corruption) unless there is clear evidence against them. Also, if the person is beaten it must be carried out under the supervision of the judiciary so that it is not a beating of vengeance. Torture must not be carried out by security personnel (Amnis), police officers or those carrying out the investigation. Torture should only be carried out in minute levels for example a lash on the back, torture should not be intense, the person being tortured should not be humiliated by being sworn at and insulted or tearing from the subjects' flesh or having his bones broken or hitting on the head or the face or exposing the subjects' private parts. The authorities should not imitate oppressive regimes by means of Haram torture such as: solitary confinement for long periods of time, putting out cigarettes on the flesh of the accused, electrocution, threatening to sexually abuse the detainee or his family members, making him hear other detainees being tortured, threatening to kill the detainee, banning the detainee from using the toilet for a long time, covering the detainees eyes for long periods of time or any other forms of torture used by oppressive regimes.

The opinion that it is permissible to torture the third category of those that have been accused is a well known opinion in the books of the scholars. For example the Malikis in Al-Sharh Al-Kabeer: "If it is proven by the scholars that the accused is from those it is permissible to accuse it is permissible to detain and beat the subject" [Hashiyat Al-Desouki Ala Al-Sharh Al-Kabeer]. Al-Shatibi says: "If it were not for beating and detaining the accused it would not have been possible to acquire money from the one who had stolen it or taken it by force as it may not always be possible to present proof therefore torture in this case is a means of obtaining the necessary information via locating the stolen item or by means of confession" [Al-Itisam].

Ibn Asim Al-Maliki Says in Tuhfat Al-Hukm: "whosoever takes money unlawfully and will not hand it over he must be imprisoned and beaten till he returns it" (a line of poetry).

However, the evidences they have presented have either issues in their chain of narration or the way they have been used as proof, I shall present the three most well known cases of this:

1. Al-Zubeir (may Allah be pleased with him) torturing the uncle of Huyay ibn Akhtab: "The prophet (peace and blessings of Allah be upon him) took a covenant from the Jews of Khaybar not to hide or keep secret any of their items, if they kept something secret there would be no dhimma pact or covenant for them. They hid some Musk and in it they placed money and gold that belongs to Huyay ibn Akhtab that he had carried with him to Khaybar when Banu Al-Nadeer had been forced to leave their homes. The messenger (peace and blessings of Allah be upon him) said to the paternal uncle of Huyay: "What happened to the Musk of Huyay that he brought from the al-Nadheer?" He said: "I spent it on expenses and the wars." So he (peace and blessings of Allah be upon him) said: "You have recently come and the wealth you have brought is more than what you have presented" so he passed him onto Al-Zubeir who made him experience some torture" [Al-Sunan Al-Kubra Lilbayhaqi].
   • The statement "made him experience some torture" is differed upon its authenticity.
   • The Hadeeth is proof for the permissibility of acting upon a Qareena (assistive evidence) and is not proof for the permissibility of torture to extract a confession, the evidence was against him in the form of a Qareena and the torture came about as a result of the Qareena to a man who was an enemy combatant and had infringed upon the agreement which was made.

Ibn Taymiyyah commented on the Hadith of Al-Zubeir: "This is proof for the permissibility of beating the accused who has left an obligation or committed a sin"[Al-Fatawa].

Ibn Al-Qayim said: "It is permissible to beat this type of people who have been accused as the prophet (peace and blessings of Allah be upon him) ordered Al-Zubeir to torture the man that had been accused of hiding wealth until he confessed in the story of Ibn Abi Al-Haqeeq" [Al-Turuk Al-Hukmiyyah Fe Al-Siyasah Al-Shariyah].

It has been narrated that ibn Jurayh said: "Umar ibn Abd Al-Azeez wrote in a letter which I read: "if an item (stolen item) was found on the possession of an individual to which he said: I've bought it and as a result of which his hand is not cut, then detain him and confine him in prison until the command of Allah should come upon him." [Al-Musanaf Fe Al-Ahadeeth Wa Al-Athaar LeAbi Bakr Ibn Abi Shaybah].

2. The boy who was tortured in the Badr expedition:
   • A group from Quraysh that were going to fetch water were captured by the companions , amongst them a black boy belonging to Banu Al-Hajaj, the companions of the messenger (peace and blessings be upon him) took him and asked him about Abu Sufyan and his comrades, he replied: I don't know anything about Abu Sufyan but I know about Abu Jahl, Utbah, Shaybah and Ummayah Ibn Khalaf they would beat him upon hearing this response. So he said: "I shall tell you about Abu Sufyan, once they stop beating him he would once again say: I don't know anything about Abu Sufyan, but I know the whereabouts of Abu Jahl, Utbah, Shaybah and Ummayah Ibn Khalaf. They would then beat him while the messenger (peace and blessings of Allah be upon him) was praying. Once he finished prayer he said: "By the One in whose hand is my soul, you beat him when he tells you the truth and leave him when he lies". [Narrated by Muslim].
   • This incident took place in circumstances of war with a prisoner.
   • The Prophet, peace and blessings be upon him, criticised his companions for beating the boy.

3. Threatening the woman to remove her clothes
   • Ali (may Allah be pleased with him) said: "The prophet (peace and blessings of Allah be upon him) sent me, Al-Zubeir and Al-Mikdad ibn Al-Aswad, he said: set forth until you come to the garden of Khakh, there you shall find a woman, she will have a letter, take it from her. We set forth galloping fast on our horses until we reached the garden, we found the woman there, we told her: give us the letter. She said: I don't have a letter. We said: give us the letter or we shall remove your clothes, she then took it out of her braids" [Narrated by Al-Bukhari].
     1. What happened with this woman is not a form of torture or coercion as her conviction had been proven by revelation to the messenger (peace and blessings of Allah be upon him).
     2. Threatening to remove her clothes was not a form of torture but rather a punishment so she may give the letter as she was on a mission which will harm the army of the Muslims.

It has been made clear that torturing those with previous convictions that are known for criminality is permissible as a form of punishment for them within limits if there are assistive evidences and proofs against them, these proofs should be assessed in terms of how weak or strong they are. Ibn Al-Qayyim says: "The companions of the messenger (may God be pleased with them) considered pregnancy of a woman a proof that she has committed Zina, so they performed the Had (legislated penal punishment) even if she did not confess and no four witnesses were given against her, as a matter of fact they deemed it stronger proof than the witness of witnesses, they also deemed the smell of alcohol and vomit a sign that someone had consumed alcohol, they deemed these as proofs as strong as assistive evidence and two witnesses.

The prophet (peace and blessings of Allah be upon him) considered the slaughter of nine or ten camels in the battle of Badr a proof that the polytheists where nine hundred to a thousand in number, so he informed about them by this extent after mentioning this proof.

The prophet (peace and blessings of Allah be upon him) also considered the large amount of wealth and the short time it was spent in a sign that the accused was lying as he claimed that he had spent it on war and other expenses in the story of Huyay bin Akhtab. He (peace and blessings of Allah be upon him) authorised punishment based on this indication, and he considered a mark in the sword and the blood on it in the judgment of Salab (War booty that is the right of the one who kills a particular individual), the resulting judgments of these proofs is evident in their validity.

He made resemblance a proof in a boy which the husband claims is not his, the messenger (peace and blessings of Allah be upon him): "Give her some time, if the boy looks such a way (which he described) he is the son of Hilal ibn Ummayah and if he looks such a way (which he described) he is the son of the man she was accused of sleeping with (unlawfully)". He said that: the boy belongs to the man she was accused of unlawfully sleeping with as a result of the way he looks but he did not rule the boy was his as he did not claim him or admit that he is his neither was the woman accused (the wife of Hilal Ibn Ummayah) the wife of the man accused of sleeping with her" [Al-Turuk Al-Hukmiyyah].

Dr Abdullah Mabrook Al-Najjar says in his conclusion after extensively discussing the evidences presented by the scholars and critiquing their proofs: "After presenting the proofs that have been presented for each argument and after critiquing the evidences presented it is clear that the opinion of the majority of the scholars is the correct opinion, they say: it is not permissible to torture an accused person to gain a confession, this is the most authentic opinion, therefore such an action is Haram, therefore any confession gained under torture is invalid and any resulting conclusions are invalid and Allah knows best, and he alone may guide us to the straight path". [The ruling of torture to gain a confession, an essay of Islamic jurisprudence].

Fifthly: the ruling of a confession gained under coercion

Dr Diyab Saleem Muhammad Umar says: "Coercion is linguistically is defined as: forcing someone to carry out an action against their will, it is Islamically defined as: forcing someone to say or carry out an action against their will" [Al-Ikrah wa Atharahu Ala Al-Ahliyah].

The confession of the one who is coerced is not taken as proof whether it be Mulji or non-Mulji as the person will have no choice. Mulji Coercion is coercion where the person being threatened had no choice and is forced to act, whereas coercion which is non-Mulji is being threatened by an action or statement in which the one threatening is most likely able to carry out.

Dr Muhammad Rafat Uthman says: "From the conditions of a confession: is that the person does so willingly, he cannot be coerced to confess, Allah (exalted is he) says: With the exception of those who are forced to say they do not believe, although their hearts remain firm in faith. (Sura An-Nahl, Ayah 106). Allah (Exalted is he) has made coercion a means whereby the ruling of disbelief is not valid, this is more so true in other cases" [Al-Nizam Al-Qadai Fe Al-Fiqh Al-Islami].

It is important to note here that the reason light forms of torture are permissible for those with previous convictions is for them to say the truth and not to coerce them into a confession. Ibn Taymiyyah says: "The Sultan is the judge as Al-Khalal says, if the Sultan threatens he threatens for the truth to be told, not for a confession, for example so he may say: tell the truth or if you lie I shall punish you or if you lie I shall discipline you, so he threatens him not to lie or conceal information, he commands him to tell the truth and reveal information, it's fine for him to do that. However, if he threatens to gain a confession so he commands what may be true, false and forbidden, then commanding it is forbidden and threatening it is all the more so. This issue is known as coercion to gain a confession, there is a difference between coercion to tell the truth and coercion to gain a confession". [Al-Ikhtiyarat Al-Fiqhiyyah LeShaykh Al-Islam Ibn Taymiyyah Lada Talameetahu]

Dr Abdullah Mabrook Al-Najjar Says: "It has been made clear previously that the Scholars of Fiqh agree that an accusation that has no form of evidence alongside it to back it up is not allowed to be accompanied by the slightest form of torture. If the accused individual confesses in this case under coercion his confession is considered null and void. It is in-permissible to give a ruling based on such a confession and if a ruling is given it is baseless" [The ruling of torture to gain a confession, a study of jurisprudence in Islamic law].

In conclusion

It is not permissible to torture an accused individual if he is corrupt let alone otherwise, except if there are proofs and Qarain (assistive proofs) that prove that the individual is guilty after attempting to gain a confession by lawful means. This should be carried out under the supervision of a judge. If the accused is coerced in order to confess this confession is invalid until he confesses willingly.

Sixthly: Some advice to the Shari'i courts

The main problem that the courts here in the liberated territories have faced since the removal of the government of Bashar Al-Assad is setting up the court systems as many of the cases that rise to the attention of the courts as well as important issues are not under the control of judicial bodies. Some of the excuses that are given for this are: the differing groups, or that the issue is an amni (security) issue, sometimes the excuse is the Ahkam Sultaniyyah (decrees of the governing authority) and sometimes the excuse are the strong players on the ground. I witnessed this myself in Aleppo in the Haya Shari'iya then in the security departments then in the unified judicial body then in the Islamic judicial and Islamic bodies. There were many cases that were important to the masses that independent judicial panels were appointed for or a group would take on solely away from the courts. In this way the case becomes a 'secretive' one. As a result of this those dealing with the case escape accountability therein so they start to follow their arbitrary desires and the transgressions become many. Sometimes the accused individual is held for months and even years without a court hearing, torture becomes excessive without restraint and without a judicial decree, in the case of the accused individual being released he is forced to sign an agreement by hand to affairs that Islamically he does not have to agree to, the worst of which is that he shall not mention the torture that he experienced whilst he was in custody and during interrogation sessions. Neither was Hama, Idlib, Ghouta, Homs or Dara better in this affair than Aleppo.

This very problem still exists today in the courts in the liberated territories to the date of this essay. Most of the transgressions being In the imprisonment of those that have been accused and the length of imprisonment, the torture is done in secret and under no supervision. The prophet (peace and blessings of Allah be upon him) says: "Piety is good character, sin is what the conscious feels bad about and what you don't want people to know about yourself" [Narrated by Muslim]. The Messenger (peace and blessings of Allah be upon him) says: "leave that which is doubtful to that which is not doubtful" [Narrated by Tirmithi, Al-Nasai and Ahmad. The Hadeeth is deemed authentic by Al-Arnaut and Al-Wadiee]. This is the result of what is known as 'the judicial system of the secret services' (Amnis) and 'the decrees of the sultan' (Al-Ahkam Al-Sultaneeyah). As for the rest of the courts these kinds of transgressions are rare and it is impossible for torture to occur without the permission of a judge.

For this reason I advise for a law of proceedings to be put in place, a law that does not contradict Islamic law. A law that puts in check judicial work in all of its stages and on all levels and that all courts and cases are held accountable by. It should be inclusive of all those that work in the judicial system. For example: the religious police, the judiciary of transgressions, the secret services (Amnis) and the military courts.

From the most important issues in order to establish equality and justice are:

• Banning torture, deeming it a crime and holding to account those that carry it out.
• Banning solitary confinement except for short periods of time and under the determination and decree of a judge.
• To give those that have been accused the right to defend themselves, to give them the right to have a look at the charges that they have been accused of and to appoint a lawyer if they need one.
• To make public in the media the results of cases that are important to the public as well as the cases of high-profile individuals who are considered to be leaders in society. Some of the court hearings should also be made public so that the masses can view them.
• Panels of specialists should be formed that follow up the cases presented and look into the evidences presented in each individual case.
• Prisons should be better kept, they should be spacious, ventilated, prisoners should be exposed to the sun, the time of prisoners should be occupied with Dawah activities and crafts, they should also be encouraged to Memorise the Quran, prison sentences should be lightened for those that excel in memorising the Quran.