Al-Mawaqif #7: SOSMA Amendment: Between Fiqh and Reality

Mukadimah

Alhamdulillah, praise and gratitude to Allah SWT for His countless blessings for us all. Praise and salutations to our beloved Prophet Muhammad PBUH, his family, companions and all those who follow his footsteps until the Last Day.

On 27^th July 2022, a Special Meeting of the National Assembly was held to specifically discuss and approve the motion regarding Act 747: Security Offenses (Special Measures) 2012 (SOSMA). Many Senators presented their respective opinions and I took the opportunity to also give my opinion in support of the act that was debated specifically with the presentation of the resolutions and solutions.

Hence, in this series of al-Mawaqif, I titled it “Act 747: Security Offenses (Special Measures) 2012 (SOSMA): Propositions and Solutions.”

Considering the issue according to the shariah, I hope that justice and fairness as well as public peace for the harmony of our society and country are in line with the enforcement of this act. I have full faith in our government who is given the responsibility and trust in ensuring the stability and peace of our country are upheld at the highest level without it being harmed by any subversive or evil intentions that threaten the safety of our country.

Finally, let us all supplicate that our beloved country will always be granted goodness and we wish that our country will be a country of “Baldatun tayyibatun wa rabbun ghafur.” Amin.

Chronology and Background

The former Chief Assistant Director of the Counter Terrorism Division (E8) of the Bukit Aman Special Branch, Datuk Ayob Khan Mydin Pitchay at the time personally considered the existing Security Offenses (Special Measures) Act 2012 (SOSMA), Act 747 to be well established. “SOSMA was enacted to replace the Internal Security Act 1960 (ISA) in 2012. SOSMA is a procedural law that gives room for how the police conduct investigations such as remand for 28 days where we can use protected witnesses to testify in court, suspects cannot be bailed and we can use sensitive information from foreign intelligence agencies in court,” he said.[1]

The stigma for most people, including politicians, against SOSMA is that SOSMA is a reincarnation of ISA which was abolished by the government on 12^th June 2012. Whereas in truth, SOSMA is not a draconian act as touted and is different from ISA before. It should be reminded that every country in the world has a specific law to combat serious crime and organized terrorism to preserve public order.

Pre-trial detention is also known as remand detention. It is also termed al-habs al-ihtiyati or al-tauqif al-ihtiyati and is often used and associated during investigations. Pre-trial detention according to al-Sharidi,[2] refers to an investigative procedure that involves an order from a competent authority to detain a person in a certain place due to a crime he has committed. This procedure is enforced to guarantee the integrity of the investigation and the information obtained until either the suspect is convicted or acquitted.

As presented by the Minister of Internal Security, Subsection 4(5) of Act 747 needs to be extended for the next 5 years to curb subversive activities in order to maintain public security. One should remember that Subsection 4(11) of this Act clearly shows the restriction of power from being misused when both houses of Parliament need to re-approve the 28-day detention period by the police after a period of 5 years. This shows that this Act is not subjective and does not fall under the authority of only one party like the ISA, where the power is centralized only to the minister in charge.

Subsection 4(5) of this Act is seen to give sufficient and reasonable time for the police to complete the investigation because the listed crimes are complicated and complex for prosecution purposes. The accusation that this Act was enacted to detain political prisoners is rather awkward because Subsection 4(3) of this Act states that no one can be detained under this Act solely for political beliefs and political activities without denying that politicians can also be detained if they are also involved in an offence under this Act.

Facts on Act 747 (SOSMA)

The Security Offenses (Special Measures) Bill 2012 or Act 747, better known as SOSMA, provides for special measures relating to security offences. The purpose is to maintain public order, security and matters related to it. SOSMA was enacted to curb the activities of a person or group who wants to overthrow or weaken the country, not to mention that the world today is faced with new threats that cross borders.

Threats under SOSMA can be said to be:

• Threats that cause organized violence against persons or property, or cause a large number of citizens to fear such violence;
• Inciting unease and disloyalty towards the Yang di-Pertuan Agong;
• Harming or negatively affecting public order within the Federation or any part thereof, or which is detrimental to the security of the Federation or any part thereof;
• Trying to call for changes, through unlawful means and anything that aren’t prescribed by law;
• And the Parliament thinks that it is necessary to stop the action.

10 important facts about SOSMA:

1. A police officer may, without a warrant, arrest and detain any person concerned if he is believed to be involved in a security offence.
2. A person who is arrested should be informed as soon as possible, why he was arrested.
3. No person shall be arrested and detained under this section solely on account of his political beliefs or political activities.
4. The arrested party can be detained for 24 four hours for investigation purposes.
5. The police can extend the period of detention for a period not exceeding 28 days.
6. An electronic monitoring device can be attached to the released accused.
7. Bail cannot be granted to a person accused of a security offence.
8. All security offences shall be tried by the High Court.
9. During the trial, the Court cannot order the Public Prosecutor to present any information that is considered sensitive and harmful to national security or interests.
10. An accused person imprisoned under this section shall be detained until all appeals are disposed of. [3]

Is it permissible to arrest someone without clear evidence?

An Islamic legal maxim states:

لَا عِبْرَةَ بِالظّنّ البَيّن خَطَؤُهُ

“A presumption isn’t considered when the offence is clear.”

Something that can lead to fitnah on oneself or others must be avoided as stated in a maxim:

اتَّقُوا مَواضِعَ التُّهَمِ

“Be cautious towards places that can be misunderstood.”

This maxim is based on the words of Saidina Umar RA:

مَنْ سَلَكَ مَسَالِكَ التُّهَمِ اتُّهِمَ

“Anyone who went to places that can be misunderstood will be accused.”

According to the above maxims, we are commanded to avoid anything that can lead to fitnah to ourselves or our religion, for they can negatively impact us.

Basically, when sentencing any case, a sound statement should be presented that leads to certainty, the reason is al-aslu (apparent) cannot be destroyed except with certainty. Zan means just an assumption although it is closer to the truth, with only zan it is not enough to determine the truth.

Allah SWT states:

إِنَّ الظَّنَّ لَا يُغْنِي مِنَ الْحَقِّ شَيْئًا

“Indeed, assumption avails not against the truth at all.”

(Surah Yunus:36)

The above verse generally explained the position of an assumption and in several situations, the assumption may help in reaching or arriving at the truth although it cannot provide certainty, it can be understood from the statement of Allah SWT:

يَا أَيُّهَا الَّذِينَ آمَنُوا اجْتَنِبُوا كَثِيرًا مِّنَ الظَّنِّ إِنَّ بَعْضَ الظَّنِّ إِثْمٌ ۖ

“O you who have believed, avoid much [negative] assumption. Indeed, some assumption is sin.”

(Surah al-Hujurat:12)

According to the above verse, not all assumptions are prohibited by syarak, rather, there are some that are accepted, that is “zan al-ghalib”. Zal al-Ghalib is an assumption supported by evidences or strong clues. Some scholars explained that considering Zan al-Ghalib matters is obligatory.

Hence, a statement based on “zan al-ghalib” is acknowledged by syarak to take the place of al-yaqin when one fails to reach the level of al-yaqin. This is the least level of evidentiary accepted in the legislation of a statement in Islam.

We can see that the weight of the evidence in the statement legislation in Islam is higher and stricter compared to Western statement evidence and is seen to practise greater caution in sentencing a person’s guilt. In the cases of adultery and others, none were convicted through evidence throughout the life of Rasullullah PBUH. This situation proves how stringent the conviction or sentencing of criminal cases and others.

An arrest or detainment by the authorities is closely related to the punishment of ta’zir. Ta’zir originates from the word “عزَّرَ يعزِّر تعزيرًا” which is a masdar. It gives the meaning of rejecting or preventing. It is also said to support or help. For a person is rejecting or preventing his enemy from hurting him. Ta’zir can also mean strengthening, bettering his character or disciplining him. It is included in asma’ al-adhdad (names that have opposite meanings).

It is named ‘uqubah or punishment through ta’zir, for its characteristic that will impede or distance a criminal from the crime or return to the act.

The terminology ta’zir means a punishment that isn’t determined by syarak that is obligatory as a right of God or people for every transgression or sin that isn’t specified with the usual hudud punishment and kaffarah. [4]Al-Qalyubi said that this dhabit is based on Ghalib. Sometimes, ta’zir is sanctioned even when it is not a sin such as when educating children or disbelievers. (See al-Mausu’ah al-Fiqhiyyah, 12/254)

Our teacher Syeikh Mustafa Khin and others stated in al-Fiqh al-Manhaji (5/227-228): Ta’zir is a punishment that isn’t specified by syara’. The punishment is sentenced by a Muslim judge following his consideration that could prevent people from committing the heinous act. The punishment that can be sentenced can be in the form of caning, exile, imprisonment or threat. The reason is this action is included as a transgression that isn’t an offence punishable by hudud and not fined with kaffarah. When hudud is not sentenced, then he must be punished through ta’zir.

According to the jumhur of scholars, originally ta’zir is sanctioned for every transgression that is not sentenced with the punishment of hadd and kaffarah. Its purpose is for islah and improvement of mankind. Al-Zaila’ie said, the purpose of ta’zir is a prevention. It is named ta’zirat as the zawajir ghairu al-muqaddarah which means punishment that isn’t specified. (See Tabyin al-Haqa’iq, 3/207)).

The Story of Umar RA and Nasr bin Hajjaj

Imam al-Daraqutni said al-Mu’talif wa al-Mukhtalif (4/2205): It is said Nasr bin al-Hajjaj is the son of al-Hajjaj bin ‘Alat al-Sulami. He lived during the time of Umar bin al-Khattab and was depicted to be a very handsome man. It is narrated that one night, Caliph Umar bin al-Khattab RA went around the city of Medina. Suddenly, Umar RA heard a woman declaiming a poem:

هَلْ مِنْ سَبِيْلٍ إِلَى خَمْرٍ فَأَشْرَبُهَا          أَوْ مِنْ سَبِيْلٍ إِلَى نَصْرِ بْنِ حَجَّاجِ

“Is there a way to get wine so that I can drink it?

Is there a way for me to get together with Nasr bin Hajjaj?”

The next day, the Caliph then inquired about the name recited by the woman about the man called Nasr bin Hajjaj. He found out that he is a very handsome man with silky hair. Umar RA then instructed him to shave his head off, however, it just makes him even more handsome. Umar then asked him to wear a turban, but this makes him even more handsome. Finally, Umar RA declared:

لَا وَالَّذِي نَفْسِي بِيَدِهِ، لَا تُجَامِعُنِي بِأَرْضٍ أَنَا بِهَا، فَأَمَرَ لَهُ بِمَا يُصْلِحُهُ وَسَيَّرَهُ إِلَى الْبَصْرَةِ

“By the Essence of which my soul is in His hands, you cannot stay with me in this country. Then Umar RA separated Nasr bin Hajjaj to Basrah (to prevent him from being a source of fitnah for women).”

This story is narrated by Ibn Sa’ad in al-Tabaqat (3/285) and authenticated by al-Hafiz Ibn Hajar in al-Isabah (6/382). This story is also mentioned by numerous scholars such as al-Sam‘ani in al-Ansab (3/156), Abu al-Abbas Ibn Taimiyyah in several places in Majmu‘ al-Fatawa (11/552, 15/ 313, 28/109, 28/371), Ibn al-Qayyim in I‘lam al-Muwaqqi’ien (4/284), Ibn Muflih in al-Adab al-Syar‘iyyah (3/132), and others.

Lessons from this story: Prioritizing public welfare over personal or individual welfare

According to fiqh, this story is a chapter on the prioritization of public welfare over personal or individual welfare for the purpose of protecting the general public is a must.

Badr ad-Din al-Zarkashi from Ibn ‘Abd al-Salam said: Scholars agreed to reject greater harm in worldly affairs. Ibn Daqia al-‘Eid said: Among the greatest maxim that covers the needs of people in general in preventing two major harms is by choosing lesser harm from among the two if one of them is certainly going to come to pass. Hence, a greater benefit is the result of choosing the lesser harm between the two. He said: This is the general rule; however, this is not absolute or applicable for all cases. Syiekh ‘Izz al-Din said: If there is a contradiction between two maslahah, then the more maslahah from the two or one with more benefits is chosen over the other. (See al-Manthur fi al-Qawa‘id al-Fiqhiyyah, 1/348-349)

Al-Sarkashi said: If it is proven that a person is exiled, then this is the way to attain a certain purpose or interest, not through hadd punishment. Rasullullah PBUH exiled a man who committed adultery from Medina and ‘Umar RA separated Nasr bin Hajjaj from Medina, when he heard a woman say “Is there a way to drink wine, and is there a way to get together with Nasr bin Hajjaj?” Thus, he was exiled to another state, although a person’s handsomeness doesn’t determine he has to be exiled; rather, he did as such in protecting the public welfare. (See al-Mabsut, 9/45)

Al-Alusi said: The authorities reserve the right to punish or exile a person for public welfare, as it considers as such, just as narrated clearly of the actions of Umar bin al-Khattab RA who exiled Nasr bin Hajjaj to Basra for his handsomeness that women are mesmerized and seduced by it. (See Tafsir al-Alusi, 9/280)

Syeikh Taqiyuddin Abu al-Abbas Ibn Taimiyyah said: Umar bin al-Khattab exiled Nasr bin Hajjaj from Medina his homeland to Basra when he heard a woman reciting a poem stating their love for him. Before that, he instructed Nasr’s hair to be shaved to decrease his handsomeness that seduces women who saw him. However, he then sees that Nasr is among men whose cheeks are prominent and handsome and he was disappointed. He then exiled Nasr to Basra. This is not because Nasr committed any immoral acts that deemed him punishable, but due to the fact that women are seduced by him, hence Umar issued the order to do something to decrease his handsomeness. By moving him out from his homeland, his ambitions and physical strength will decrease and he will feel as though he is being punished. It is a preventive measure for fear of the sin and obsession that might ensue before it happens; and not a punishment for him. (See Majmu’ al-Fatawa, 15/313)

Allegation and Evidence in Judiciary

From Ibn Abi Mulaikah, he said: There were two women in a room or house sewing. One of them later came out with a needle in her hand. She then accused the other woman stuck the needle in her hand. This matter was then presented to Ibn Abbas R.Anhuma, he then said: Rasullullah PBUH said:

لَوْ يُعْطَى النَّاسُ بِدَعْوَاهُمْ لذَهَبَ دِمَاءُ قَوْمٍ وَأَمْوَالُهُمْ». ذَكِّرُوهَا بِاللَّهِ وَاقْرَءُوا عَلَيْهَا: {إِنَّ الَّذِينَ يَشْتَرُونَ بِعَهْدِ اللَّـهِ}، فَذَكَّرُوهَا فَاعْتَرَفَتْ. فَقَالَ ابْنُ عَبَّاسٍ: قَالَ النَّبِيُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ: «اليَمِينُ عَلَى الْمُدَّعَى عَلَيْهِ».

“’If people were to be given what they claim (without proving their claim) the life and property of the nation would be lost.’ Will you remind her (i.e. the defendant), of Allah and recite before her: –“Verily! Those who purchase a small gain at the cost of Allah’s Covenant and their oaths…”(3.77) So they reminded her and she confessed. Ibn `Abbas then said, “The Prophet (ﷺ) said, ‘The oath is to be taken by the defendant (in the absence of any proof against him).”

Sahih al-Bukhari (4552) and Muslim (1711)

Ibn Daqiq al-‘Eid said: This hadith is one of the bases of rulings and one of the greatest references when arguments or disagreements happen and it is a condition that no one should be judged based on an allegation made against him. (See Syarh Arbain al-Nawawiyah, pg. 109)

Syeikh al-Sa’di said: “This is a huge hadith in terms of its determination and it is one of the bases in judiciary and ruling matters. The reason is a decision made by a judge between people only happens when there is a disagreement. For example, a person is demanding his right and his claim is denied and he declared that he isn’t guilty of the punishment sentenced to him. The Prophet PBUH explained the bases for resolving a disagreement between them. Hence, it is clear what is true and what is false, thus, anyone claiming a certain wealth, debt, or rights and their dependants to others, and the other person denies it, then originally it is a false claim. If the accuser or claimant came with evidences that prove his right, then the claim is accepted and thabit, then the accused must return the right of the claimant. If the claimant didn’t present evidences, he doesn’t have anything except an oath.” (See Bahjah Qulub al-Abrar wa Qurrah ‘Uyun al-Akhyar, pg. 135)

The duration the authorities can issue a detainment or arrest

The jurists have differing opinions regarding the duration of an arrest or detainment. Among them are:

• Al-Mawardi cited Abu Abdillah Zubairi a scholar of madhhab Syafi’i is of the opinion that the maximum duration of a detainment (for interrogation) should not exceed a month. (See al-Ahkam al-Sultaniyyah, pg. 344)
• According to Abu Hanifah, the detainment should not exceed a whole day and night.
• Another opinion stated the detainment duration is up to the court to rule.
• The next opinion states the detainment should not exceed a month long. This is what was practised by Qadhi Abu Ya’la when he was a judge. In his opinion, if the detainment is less than 30 days, it is under the authority of a judge, but if it is more than 30 days, then the authority falls under the purview and order of the caliph.
• Some jurists state that the duration of a detainment falls under the authority of the Leader of a country. [5]
• In al-Mausu‘ah al-Fiqhiyyah, it is stated that jumhur of the jurists from madhhab Hanafi, Maliki and Hanbali didn’t set the maximum limitation for takzir detainment. They hand the matter over to the judge. Thus, a judge will decide (regarding the duration of the detainment sentencing) according to the appropriateness of the case such as the factor of the suspect or criminal. Hence, a judge may prolong the detainment duration for whoever has committed a crime multiple times or dangerous criminals – or others.
• Whereas, for scholars of madhhab Syafi’i, there are three opinions:

First: al-Zubairi’s opinion stated that the maximum detainment is for six months.

Second: The famous opinion in the madhhab states that the maximum duration is a year.

Third: The opinion of Imam al-Haramain is in line with the opinion of the jumhur of jurists where he states that the maximum duration of detainment isn’t predetermined. Furthermore, some scholars of madhhab Syafi’I ruled it permissible to implement the opinion of the jumhur based on the maslahah and not a certain personal interest or vengeance. (See al-Mausu‘ah al-Fiqhiyyah al-Kuwaitiyyah, 16/288)

Tarjih

Hence, in our opinion, the duration of detainment is based on the appropriate maslahah or necessity of the case. Ibn Abi al-Dam emphasizes that every permissible detainment must be per what is appropriate for the situation of the suspect itself.

Most jurists agree in choosing this opinion. That is the duration of the temporary detainment for the purpose of interrogation isn’t determined or limited and it depends on the situation of the case itself.

This is also the opinion of Ibn Qayyim who said that if the accused has previous criminal records, then he can be detained for a prolonged time however if this is not so, then the duration of the detainment can be shortened. It depends on the situation and background of the suspect.

Scholars agreed that the authority of this detainment is not given solely to the judge, however, it is also given to the governor or authorities or armies wali al-harb because the judge is given the authority to enforce syarak rulings but he doesn’t have the authority to detain anyone except within his rights and the crime is proven and convicted in court (See al-Turuq al-Hukmiyyah, pg. 148)

The opinion of al-Mawardi, Ibn Taimiyyah and Ibn Qayyim in the Islamic legislation state that the only party who has the authority for any detainment is the judge. This is agreed upon by the jurists. According to the ijmak of scholars, it must first be approved by the qadhi or authorities.

Here, we affirm that the duration of remand detention or temporary detainment according to what is agreed in Islam depends on the suspect and the type or situation of the case itself. If the case is a heavy crime, the detainment can be longer. Regarding the party that is given the authority of issuing the remand order, when a person arrested or detained failed to obtain bail, then he can be imprisoned or put under the care of the authorities through the order of a judge. There is a hadith narrated by Mu‘awiyah al-Qusyairi R.A, he said:

أَنَّ النَّبِيَّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ حَبَسَ رَجُلًا فِي تُهْمَةٍ ثُمَّ خَلَّى عَنْهُ

“The Messenger of Allah detained a man who was under suspicion, and then he let him go.”

Narrated by Abu Dawud (3630) and al-Tirmizi (1417). Imam al-Tirmizi evaluated this hadith hasan.

Mulla Ali al-Qari said: The Prophet PBUH once detained an accused man, who was lying when giving a statement, or he was accused of committing an offence, in debt, then the Prophet PBUH detained him to find out the truth of the accusation with evidences. Then, when there aren’t any evidences presented, he was released, and the Prophet PBUH leave him and release him. This incident shows that detaining a person is a part of syarak rulings. (See Mirqah al-Mafatih Syarh Misykah al-Masabih, 6/452)

This is also the opinion of Ibn Qayyim al-Jauziyyah that if an accused’s status is still unknown, he can be detained until his status is confirmed. However, the accusation must have a basis, only then the accused is summoned and not just an empty accusation. Moreover, the same applies to an accused who has a criminal record, he can also be detained for further interrogation. (See al-Turuq al-Hukmiyyah, pg. 148)

The rights of a detained

Among the rights of a detained person are:

First: Pray

Praying is a fardhu ain (individual obligation). This means that it is obligatory for each Muslim who is sane, has reached puberty and is in a pure state (not menstruating) to pray. The evidences of its obligation are as the following:

Al-Quran

Among them is a statement of Allah SWT:

وَأَقِيمُوا الصَّلَاةَ وَآتُوا الزَّكَاةَ وَارْكَعُوا مَعَ الرَّاكِعِينَ

“And establish prayer and give zakah and bow with those who bow [in worship and obedience].”

(Surah al-Baqarah:43)

According to Abu al-Husain al-Subki, the above verse is evidence that obligates prayer on each person who is a believer and even children except those who are ta’dib (obligated education on their parents) although the obligatory ruling on the child is yet to be enforced before the child reached mumayyiz, puberty and sane. (See Bahr al-Muhit by al-Zarkasyi, 2/59)

Al-Sunnah

Among them is a hadith from a narration of Abdullah bin Umar R.Anhuma, Rasullullah PBUH said:

بُنِيَ الإِسْلاَمُ عَلَى خَمْسٍ شَهَادَةِ أَنْ لاَ إِلَهَ إِلاَّ اللَّهُ وَأَنَّ مُحَمَّدًا رَسُولُ اللَّهِ، وَإِقَامِ الصَّلاَةِ، وَإِيتَاءِ الزَّكَاةِ، وَالْحَجِّ، وَصَوْمِ رَمَضَانَ

“Islam is based on five things: The testimony that there is no god but God and that Muhammad is His servant and messenger, the observance of the prayer, the payment of zakat, the Pilgrimage, and the fast during Ramadan.”

Narrated by al-Bukhari (8) and Muslim (16)

Ibn Hajar al-Haitami said Islam is built of which its base is made and the word based on as used in the hadith refers to matters that can be perceived physically and is used to mean a relation. Its relationship is its similarity. Islam is likened to a strong building. Its pillars are robust and solid to be able to withstand the weight of the building. (See al-Fath al-Mubin, pg. 189)

Likewise, in a hadith from Abdullah bin Abbas R.Anhuma, when Rasullullah PBUH sent Muaz bin Jabal to Yemen, he told him:

إِنَّكَ تَقْدَمُ عَلَى قَوْمٍ مِنْ أَهْلِ الكِتَابِ، فَلْيَكُنْ أَوَّلَ مَا تَدْعُوهُمْ إِلَى أَنْ يُوَحِّدُوا اللَّهَ تَعَالَى، فَإِذَا عَرَفُوا ذَلِكَ، فَأَخْبِرْهُمْ أَنَّ اللَّهَ قَدْ فَرَضَ عَلَيْهِمْ خَمْسَ صَلَوَاتٍ فِي يَوْمِهِمْ وَلَيْلَتِهِمْ

“You are going to a nation from the people of the Scripture, so let the first thing to which you will invite them, be the Tauhid of Allah. If they learn that, tell them that Allah has enjoined on them, five prayers to be offered in one day and one night. “

Narrated by al-Bukhari (7372)

The same is stated in a narration from Muaz bin Jabal RA, where Rasullullah PBUH said:

رَأْسُ الأَمْرِ الإِسْلَامُ وَعَمُودُهُ الصَّلَاةُ

“The root of this matter (foundation) is Islam, its pillar (mainstay is) As-Salat (the prayer),”

Narrated by al-Tirmizi (2616) with a hasan (good) sanad.

Thus, Imam al-Haramain al-Juwaini said that prayer is the pillar of religion and whoever neglects it, surely, he has torn down his religion. (See Nihayah al-Matlab, 2/5)

Ijmak

The whole Muslim ummah of all time and place have agreed that the daily five obligatory prayers is obligatory and that it is even included as a religious matter as generally known (al-Ma‘lum min al-Din bi al-Darurah). (See Mughni al-Muhtaj, 1/297)

Hence, prayer is an obligation that cannot be left regardless of the situation. Hence, the authorities that detain a person should give him/her the space and time to pray regardless of the situation, for it is an obligation for each individual.

Second: Covering the awrah

Included in the obligations of a Muslim and Muslimah is for them to cover their awrah. The word awrah refers to anything that is prohibited from being exposed from one’s body part whether it is a man or a woman. It is also defined as anything that is obligated to be covered and cannot be seen from one’s body parts. According to al-Khatib al-Syirbini, awrah is defined as anything that is prohibited to be seen. (See Mughni al-Muhtaj, 1/185)

According to the author of the book Kifayah al-Akhyar, awrah according to syarak is the minimum limits of one’s body part that is obligatory to be covered following the commandment of Allah SWT. (See Kifayah al-Akhyar, 1/52)

Furthermore, it is explained in al-Mausu‘ah al-Fiqhiyyah, awrah is one’s body part that cannot be exposed by a man or woman to another person. (See al-Mausu‘ah al-Fiqhiyyah al-Kuwaitiyyah, 31/44)

Basically, the rulings of covering one’s awrah is obligatory as agreed by scholars based on the statement of Allah SWT:

وَقُل لِّلْمُؤْمِنَاتِ يَغْضُضْنَ مِنْ أَبْصَارِهِنَّ وَيَحْفَظْنَ فُرُوجَهُنَّ وَلَا يُبْدِينَ زِينَتَهُنَّ إِلَّا مَا ظَهَرَ مِنْهَا ۖ وَلْيَضْرِبْنَ بِخُمُرِهِنَّ عَلَىٰ جُيُوبِهِنَّ ۖ وَلَا يُبْدِينَ زِينَتَهُنَّ إِلَّا لِبُعُولَتِهِنَّ أَوْ آبَائِهِنَّ أَوْ آبَاءِ بُعُولَتِهِنَّ أَوْ أَبْنَائِهِنَّ أَوْ أَبْنَاءِ بُعُولَتِهِنَّ أَوْ إِخْوَانِهِنَّ أَوْ بَنِي إِخْوَانِهِنَّ أَوْ بَنِي أَخَوَاتِهِنَّ أَوْ نِسَائِهِنَّ أَوْ مَا مَلَكَتْ أَيْمَانُهُنَّ أَوِ التَّابِعِينَ غَيْرِ أُولِي الْإِرْبَةِ مِنَ الرِّجَالِ أَوِ الطِّفْلِ الَّذِينَ لَمْ يَظْهَرُوا عَلَىٰ عَوْرَاتِ النِّسَاءِ ۖ وَلَا يَضْرِبْنَ بِأَرْجُلِهِنَّ لِيُعْلَمَ مَا يُخْفِينَ مِن زِينَتِهِنَّ ۚ وَتُوبُوا إِلَى اللَّـهِ جَمِيعًا أَيُّهَ الْمُؤْمِنُونَ لَعَلَّكُمْ تُفْلِحُونَ

“And tell the believing women to reduce [some] of their vision and guard their private parts and not expose their adornment except that which [necessarily] appears thereof and to wrap [a portion of] their headcovers over their chests and not expose their adornment except to their husbands, their fathers, their husbands’ fathers, their sons, their husbands’ sons, their brothers, their brothers’ sons, their sisters’ sons, their women, that which their right hands possess, or those male attendants having no physical desire, or children who are not yet aware of the private aspects of women. And let them not stamp their feet to make known what they conceal of their adornment. And turn to Allah in repentance, all of you, O believers, that you might succeed.”

(Surah al-Nur: 31)

Based on this verse of the Quran, scholars concluded that it is obligatory to cover one’s awrah for both men and women. Likewise, the same is stated in a hadith of Rasullullah PBUH who rebuked Asma’ binti Abu Bakar R.Anhuma:

يَا أَسْمَاءُ إِنَّ الْمَرْأَةَ إِذَا بَلَغَتِ الْمَحِيضَ لَمْ يَصْلُحْ أَنْ يُرَى مِنْهَا إِلَّا هَذَا وَهَذَا

“When a woman is old enough to menstruate, Asma’, it is not right that any part of her should be seen but this and this,” pointing to his face and his hands.”

Narrated by Abu Dawud (4104) and al-Baihaqi (3218)

Some scholars differentiate the limitations of awrah in prayer and outside of prayer. This matter is explained in al-Fiqh al-Manhaji (1/124-127) as follows:

The limitations of awrah in prayer

The awrah of men is between the navel and knees. Hence, it is obligatory to cover this area and not a little bit of it can be seen in prayer.

Whereas, for women, all of her body except her face and hands (up to her wrist). Thus, it is obligatory to cover them all and not a little bit can be seen during prayer except the parts that are exempted.

Awrah limitations outside of prayer

Awrah of men in front of other men in any situation as well as in front of women who are his mahram is between his navel and knees.

Whilst the awrah of a man in front of other women according to the final opinion is his whole body except his face and both hands (up to his wrists). Hence, it is impermissible for a woman to look at a man who is not her mahram except for his face and both hands. Although, looking at the face of a man passionately is also prohibited.

Next, the awrah limitation of women in front of other Muslim women is between the navel and knees, while the awrah of Muslim women in front of non-Muslim women is their full body except the body parts that are naturally usually exposed when doing housework and others.

Whereas, the awrah of women in front of men who aren’t their mahram is their whole body. Thus, it is impermissible for her to expose any part of her body except for forgivable reasons (عُذرٌ). The same if for the opposite, they are impermissible to look at the exposed body of any woman who isn’t their mahram. This is based on the statement of Allah SWT:

قُل لِّلْمُؤْمِنِينَ يَغُضُّوا مِنْ أَبْصَارِهِمْ وَيَحْفَظُوا فُرُوجَهُمْ ۚ ذَٰلِكَ أَزْكَىٰ لَهُمْ ۗ

“Tell the believing men to reduce [some] of their vision and guard their private parts. That is purer for them.”

(Surah al-Nur:30)

In a hadith, there is a narration from Aisyah R.Anha, she said:

لَقَدْ كَانَ رَسُولُ اللهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ يُصَلِّي الفَجْرَ، فَيَشْهَدُ مَعَهُ نِسَاءٌ مِنَ المُؤْمِنَاتِ مُتَلَفِّعَاتٍ فِي مُرُوطِهِنَّ، ثُمَّ يَرْجِعْنَ إِلَى بُيُوتِهِنَّ مَا يَعْرِفُهُنَّ أَحَدٌ.

Allah’s Messenger (ﷺ) used to offer the Fajr prayer and some believing women covered with their veiling sheets used to attend the Fajr prayer with him and then they would return to their homes unrecognized.”

Narrated by al-Bukhari (372)

Moreover, there are several situations when it is permissible to expose a part of the awrah and look at another’s awrah due to forgivable reasons (عُذرٌ):

• During courtship with a woman for the purpose of marriage, it is permissible to look at the woman’s face and hands (up to her wrists).
• When acting as a witness or for a transaction, it is permissible to look at the face of another woman in order to recognize the woman which if he doesn’t do as such, he wouldn’t be able to know or recognize her.
• For treatment or medical purposes, it is permissible to expose a part of one’s awrah when seeking treatment and looking at the awrah only when necessary.

This is based on a hadith from Jabir bin Abdullah RA:

أَنَّ أُمَّ سَلَمَةَ اسْتَأْذَنَتْ رَسُولَ اللَّهِ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ فِى الْحِجَامَةِ فَأَمَرَ النَّبِىُّ صَلَّى اللهُ عَلَيْهِ وَسَلَّمَ أَبَا طَيْبَةَ أَنْ يَحْجُمَهَا

“Umm Salamah, the wife of the Prophet (ﷺ), asked the Messenger of Allah (ﷺ) for permission to be cupped, and the Prophet (ﷺ) told Abu Taibah to cup her.”

Narrated by Muslim (2006)

It is permissible to look at the awrah of a woman for the purpose of seeking or giving treatment on the condition that the woman’s mahram or husband is with her and there is no other person who can give the treatment. However, if there is another man or Muslim woman that can perform the treatment, then the treatment shouldn’t be handed to a non-Muslim.

Thus, the authorities who detained a person should provide the detainee with the suitable necessities for him/her to cover the awrah because it is an obligation for each individual.

Third: Treated fairly

According to Ibn Manzur, fairness lexically means not being partial towards anything or setting something truthfully. Conceptually, he stated that what is meant by fairness is something that has been strongly set in one’s mind as straight. (See Lisan al-‘Arab, 11/430)

While Sayyid Sabiq said fairness is conveying something that has been his right and concurrently protecting or maintaining as well as distancing what isn’t his right appropriate with the limitations or set rights of each party. (See ‘Anasir al-Quwwah fi al-Islam by Sayyid Sabiq)

Allah SWT states:

إِنَّ اللَّـهَ يَأْمُرُ بِالْعَدْلِ وَالْإِحْسَانِ وَإِيتَاءِ ذِي الْقُرْبَىٰ وَيَنْهَىٰ عَنِ الْفَحْشَاءِ وَالْمُنكَرِ وَالْبَغْيِ ۚ يَعِظُكُمْ لَعَلَّكُمْ تَذَكَّرُونَ

“Indeed, Allah orders justice and good conduct and giving to relatives and forbids immorality and bad conduct and oppression. He admonishes you that perhaps you will be reminded.”

(Surah al-Nahl: 90)

According al-Sa’di doing good to another by helping or benefitting others with his wealth, body, knowledge and others is also included as doing good that even doing good towards farm animals that we are going to eat or others – that is animals that cannot be eaten. (See Tafsir al-Sa‘di, 1/447)

Thus, fair treatment should be given to anyone who is detained regardless of their race, religion and lineage.

Fourth: Time to rest

The need to rest is a natural necessity for any human created by Allah SWT. It is also in line with the nature of man created in each human by Allah SWT. Allah SWT states:

فِطْرَتَ اللَّـهِ الَّتِي فَطَرَ النَّاسَ عَلَيْهَا ۚ لَا تَبْدِيلَ لِخَلْقِ اللَّـهِ ۚ

“[Adhere to] the fitrah of Allah upon which He has created [all] people. No change should there be in the creation of Allah.”

(Surah al-Rum: 30)

In this matter, the rights to rest, eat, drink and sleep are included as basic human rights. Human rights according to Islam’s perspective means al-Hurriyyah al-fitriyyah which is the freedom of humans to follow their innate natural needs.

As stated by al-Buti, the freedom to fulfil their innate natural needs doesn’t contradict the obedience of humans towards Allah SWT as His slaves, rather, by enslaving ourselves to Allah SWT, it is to uphold and maintain the innate natural needs of men. (See Huriyyah al-Insan fi Zill ‘Ubudiyyatih Lillah, pg. 119)

Thus, the authorities should provide suitable time for the detainees to rest in line with their natural needs.

Advice and suggestion

SOSMA is seen as better whereby it provides a provision that respects the rights of individuals under Section 5 of this Act where the family of the detained person will be informed and given the option to consult with a lawyer of their choice. In addition, Section 12 of this Act states that all security offences must be tried by the High Court. This is clearly different compared to the ISA where the minister has the power to extend the detention period to 2 years without limit and the person is not tried in any court.

This detention is undoubtedly an aggressive act against an individual’s freedom but at the same time, it is justifiable based on the importance of the investigation. It involves the freedom of the accused being seized for only a certain period and it is also a procedure that protects the community and public welfare. It is clear that pre-trial detainment causes conflict between two conflicting interests, namely the interests of individuals who have the right to enjoy their freedom and the interests of the public who have the right to enjoy the peace and seek the truth. The basic principle of arresting a criminal suspect is to find the truth of a case involving the interests and safety of society.

Umar Said Ramadhan stated that among the purposes of pre-trial detainment is to protect and maintain the integrity and transparency of the investigation such as avoiding the accused from disturbing the witnesses or manipulating the evidences that support the case. (See Mabadi’ Qanun al-Ijra’at al-Jana’iyyat, 1/40)

The acceptance of such detainment is based on the principle:

الضَّرُورَات تُبِيح الْمَحْظُورَات

“Exigent situations permit matters that are originally prohibited.”

This Islamic legal maxim means haram matters turned to permissible in absolution; however, it is only permissible for certain situations, for certain people and for a certain duration of time.

This pre-trial detainment procedure is not just detaining a person without a lawful motive and purpose. It is also not a form of punishment and is not intended to punish. Punishment is only carried out on criminal offenders while the individual arrested at the pre-trial stage is a suspect and has not been proven guilty. Next, the implementation and enforcement of pre-trial detention procedures are able to maintain public safety and well-being. It prevents the accused from escaping, hides and destroys evidence against him and threatens witnesses. For example, al-Sarakhsi [6] has suggested that the suspect who is accused of adultery and is not recognized by the authorities, be detained until there is strong evidence presented.

This detainment is for the purpose of ensuring that the suspect doesn’t escape from being judged. This detainment is also to protect the accused from repeating his criminal offence (recidivist) or committing new crimes and protect him from the threat of revenge from the victim. [7] The implementation and enforcement of pre-trial detainment don’t deny the application of the fiqhiyyah maxim (الأَصْلُ بَرَاءَةُ الذِّمَّة) and will never follow the principle of the assumption of guilt regardless of any justification given. However, some jurists such as Ibn Farhun, al-Mawardi and Abu Ya’la are of the opinion that this detainment procedure doesn’t contradict the principle of the assumption of innocence. They believe that this principle is only one of the methodologies of proving a criminal case in Islam. The author of Tuhfah al-Ahwazi recorded that the detainment of the accused before his statement is presented to the court is in line with syarak rulings.

Hence, I support that Subsection 4(5) of this Act is further extended for the next 5 years for the sake of public benefit and public safety. However, it should be remembered that we expect this Act to move with its original spirit and purpose and not be misused by certain parties for the benefit of certain parties.

 Closing

We end with the supplication:

اللَّهُمَّ اجْعَل وِلَايَتَنَا فِيْمَنْ خَافَكَ وَاتَّقَاكَ يَا رَبَّ الْعَالَمِين

“O Allah! Make the authority of our state be in the hands of those who fear You and have taqwa towards You, O Lord who protect and manage all the worlds.” (See Nafahat al-Minbar al-Makki, 1/137)

Lastly, may this brief explanation help us better understand this religion in going through our daily lives better. Amin.

[1] See https://www.sinarharian.com.my/article/58455/BERITA/Nasional/SOSMA-sedia-ada-sudah-mantap-kata-Ayob-Khan

[2] See Jurnal bertajuk: Tatacara Penahanan Pra Perbicaraan Jenayah Syariah Di Malaysia: Analisis Menurut Pandangan Fuqaha, Journal of Contemporary Islamic Law, Vol. 1(1) (2016)

[3] See https://www.astroawani.com/berita-malaysia/10-fakta-anda-perlu-tahu-tentang-sosma-76148

[4] (See al-Mabsut, 9/36; Fath al-Qadir, 7/119; Kasyaf al-Qina’, 4/72; Al-Ahkam al-Sultaniyyah by al-Mawardi, pg. 224; Nihayah al-Muhtaj, 7/72; Qalyubi, 4/205.)

[5] See Jurnal bertajuk: Justifikasi Keperluan Penahanan Reman Menurut Perundangan Islam dan Sivil, oleh Fathin Shahirah Abd Rahim, Jurnal Fiqh, No. 15 (2018) 87-116.

[6] See Jurnal bertajuk: Tatacara Penahanan Pra Perbicaraan Jenayah Syariah Di Malaysia: Analisis Menurut Pandangan Fuqaha, Journal of Contemporary Islamic Law, Vol. 1(1) (2016)

[7] Ibid