Ahad, 6 April 2014

The Right of The Suspect According Islamic Law and Civil Law

Rights Of The Suspect To Obtain Medical Treatment While In Detention

Rights Of The Suspect To Obtain Medical Treatment While In Detention Under Islamic Law
Under Islamic law, the suspect must be treated with benevolent (al-ihsan) treatment while in detention. The hadith relating to a woman from Juhaynah is unequivocal. When she confessed her guilt in the presence of prophet SAW called her guardian (al- wali) and asked him to treat her benevolently and bring her back after giving birth to her child. [1]
In another hadith, it is narrated that a man who drank wine was brought to the prophet SAW. The prophet SAW asked the companions may god pleased with them to beat the man, and when they finished, someone said him, “May Allah disgrace you!” on that the prophet SAW said, “ Do not say so, far you are helping satan to overpower him.”[2] This hadith show clearly that a convicted person – and with greater reason the suspects – must be treated in benevolent way, even harsh words toward him is prohibited.
One of the most important way to treat the suspect benevolently is to take care of his health. It is narrated that Umar Bin Abd Aziz wrote ti hid governors asking them to take of prisoners health.[3] Similarly, Ali Bin Isa Bin Jarah Asked Sinan Bin Thabit to make an arrangement for doctors to visit prisoners and give medical treatment for those who were sick.[4]
Consequently, the authority must allow those who are banished or accompanied to obtain medical treatment when they need it. Those who are detained in the prison, must be provided with doctors, medication and all necessary and suitable equipment of the treatment. The medical treatment has to be carried out at the place of detention.[5]

Right Of The Suspects To Obtain Medical Treatment While In Detention Under Malaysian Law
There are clear provisions under prison act 1995 about the rights of the suspects to obtain medical treatment while in prison. Section 14 of the act clarifies that the minister charged with responsibility for the health services shall, whenever the circumstances permit, appoint from the staff of the ministry of health, a Medical Officer and Dental Officer for each of the prisons. If the circumstances do not the appointment, the minister may appoint any registered medical practitioner or any registered dentist to be the Medical Officer or Dental Officer of any particular prisons.
Section 37 of the prison Act 1995 provides that in case of serious illness of a prisoner confined in a prison in which there are inadequate facilities in a prison for the treatment of that prisoner, the Officer – in – charge may, on the certificate of a Medical Officer,  make an order for the removal of the prisoner to a government hospital.
Section 40 of the Act states that it shall be the duty of the medical officers of the hospital to which a prisoner has been removed under section 37 to provide all assistance in order to ensure that necessary precautions for preventing the escape of the prisoner under treatment in the hospital have been taken. In addition, section 41 spells out that, where from the gravity of the offence for which a prisoner may be in custody or for any other reason, the Officer -in- charge considers it desirable to take desirable to take measures for the security of a prisoner while under treatment in a hospital, he may, in the event of there being no prison officer available, place the prisoners into the charge of two or more fit and proper persons, one of whom shall be with the prisoner at all times.

Rights of The Suspect To Continue Of Relationship With His Relatives And Friends While In Detention

Rights of the suspect to continue his relationship with his relatives and friends while in detention under Islamic law

There are many Quranic verses and hadith which urge a muslim to maintains his good relationship with his relatives and friends. Allah SWT says in the Quran: “ serve god, and join any partners with Him; and do good to parents, kinsfolk, orphans, those in need, neighbours who are near, neighbours who are strangers, the companion by your side, the wy farer ( ye meet), and what your right hand possess: for God loveth not the arrogant, the vainglorious.” [6] it is narrated that the prophet SAW says: “ al-Qati’ (the person who servers the bond of kinship) with nit enter paradise”.[7]
Allah SWT and his messenger advised ways to strengthen the suspects relationship with his relatives and friends. For example, to visit the sick; to attend funeral and so extend congratulatory or sympathy message. All these advises are in general common even to those who are not under detention. It is therefore recommended that the authority should allow the suspect to continue his relationship, with his relatives and friends, while in detention.
Accordingly, most to muslim scholars are of the opinion that the authority should allow the visit of a person’s relatives and friends while he is in detention. Moreover, according to them, the spouse of the prisoner should be allowed to be alone with him in suitable room – if there is any – in the prison. However, they feel that the authority should prevent should visit of the someone who may harm the prisoner or the process of investigation and detention, such as someone who may teach the prisoner how to escape from the prison.[8]
Some maliki scholars’ view is that the authority should allow the prisoners to go out on bail to visit his close relatives and friends who are  in serious illness and to give his report to them when they die.[9] In contradiction, Hanafi scholars feel that the prisoner should not be allowed to go out in such situations because this is against one of the purposes of imprisonment which is to hinder the prisoner and to prevent him from acting freely as part of the punishment.[10]



[1] Muslim, sahih muslim, 11/204- 205.
[2] Al-bukhari, sahih al-bukhari, 12/77.
[3] Ibn sa’d , al-tabaqaat al-kubra, 5/356.
[4] Al- Qafti, tarikh al-hukama’, 193.
[5] Ibn nujaym, al-bahr al- ra’i’q, 6,308.
[6] Al-Quran, 4:36.
[7] Al-Bukhari, Sahih Bukhari, 10/508.
[8] Al-Sharbini, Mughni Al- Muhtaj, 2/157.
[9] Al-Zarqani, Sharh Muwatta’ 5/281.
[10] Ibn Abidin, Hasyiyah Radd Al-Muhktar, 5/ 378.

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