SHARIAsource

This enactment of May 1, 1952, "establish[es] a code of criminal procedure." It appears to have borrowed certain material from a "corresponding Code in the Colony of Sarawak." It names neither the Sultan nor the British Resident, and does not specify an author or enacting authority.

This qanun constitutes the Aceh Islamic Criminal Code. It prohibits jarimah (conduct prohibited under Islamic law, or sharīʿa) and imposes hudud and ta'zir punitive measures ('uqubat) as deterrents for committing jarimah. Specifically, the qanun prohibits khamar (alcohol), maisir (gambling), khalwat (close proximity in private), ikhtilath (non-sexual, pre-marital intimacy), zina (adultery), sexual abuse, rape, qadzaf (false accusation), liwath (sodomy), and musahaqah (lesbian relations).

Article 4(2) of the qanun defines hudud punishment as caning, while ta'zir, according to arts 4(3) and 4(4), is caning, monetary fines, imprisonment, and restitution.

Pursuant to art 5, persons subject to the qanun are:

1. all Muslim offenders in Aceh;
2. all non-Muslim offenders who commit an offence togther with another Muslim and voluntarily submit to the qanun;
3. all non-Muslims who commit an offence not covered in the Indonesian Criminal Code (Kitab Undang-Undang Hukum Pidana) or that is outside the Indonesian Criminal Code, but regulated in the qanun; and
4. legal entities carrying out operations in Aceh.

Holding: Any religious belief, whether Christian or not, that recognizes the existence of a God who rewards truth and avenges falsehood, either in this or a future life, is sufficient as a basis on which to swear a witness in court.

Procedural posture: Objection to competency of a witness. Islamic law is not directly relevant, except that the court notes that “a Mohammedan [may be sworn] on the Koran” and considers Muslims to be acceptable sworn witnesses based on beliefs akin to those of Christianity and cognate religious traditions.

Judgment: Objection sustained in an opinion authored by Judge Neterer.

Facts: The government offered a Mr. Kirkland as a witness in a criminal case being heard in the U.S. District Court for the Western District of Washington. The defendant objected, on the grounds that Kirkland could not be sworn because he did “not believe in the existence of a God, who is the rewarder of truth and the avenger of falsehood,” having admitted as much when questioned. Judge Neterer found the common law rule to be that a witness may only be sworn if he believes in a God who rewards truth and avenges falsehood. This need not be a Christian belief; Jews, Muslims, Hindus, and Chinese may similarly be sworn, because they fulfill these criteria. Because Kirkland does not believe in a God who rewards truth and avenges falsehood, the Court concluded that he may not be sworn and the objection was sustained.

Standard Operating Procedures for receipt of criminal cases at the first stage of the Shari'a Court process.

This elucidation to Aceh Qanun No. 7 of 2013 provides a brief history of shari'a and its application in Aceh since the time of the Kingdom of Aceh Darussalam, through Dutch colonial times, up until the establishment and implementation of the first Aceh qanun. It then provides greater clarity and detail on the meanings of certain articles from Aceh Qanun No. 7 of 2013.

Parliament introduced a bill amending 38 articles of the Criminal Procedure Code adopted a year before.

After revising the first draft according to the opinion of the Guardian Council the law amending 38 articles of the Criminal Procedure Code 2014 became final.

In this literary source purportedly recounting early episodes of judges, Abū Yūsuf (d. 182/798) issues a clever ruling for ʿAbbāsid Caliph Hārūn al-Rashīd, effectively saving his son – a prince – from an accusation of zinā (fornication or adultery) by operation of the “doubt canon,” which requires legal officials to “avoid criminal punishments in cases of doubt.” The doubt here is a judicial knowledge, rather than established evidence by a confession or witnesses. He is rewarded by being made Chief Judge (qāḍī al-quḍāt) of Baghdad.

Islamic criminal law had been abrogated in Nigeria’s Northern Region as part of the Settlement of 1960 (see Vol. I). A principal aim of sharīʿa implementation was to reinstate it in the sharīʿa states. This was done through the enactment in most sharīʿa states of Sharia Penal and Criminal Procedure Codes. Vol. IV documents these codes and their sources. Included are (i) complete texts of the “Harmonized” Sharia Penal and Criminal Procedure Codes prepared by the Centre for Islamic Legal Studies at Ahmadu Bello University for consideration by the states, showing section-by-section variations among the codes actually adopted; (ii) tables showing the relationships between the new Sharia Penal and Criminal Procedure Codes and the old Penal and Criminal Procedure Codes of 1960 on which they were largely based; (iii) related laws enacted in some states; and (iv) scholarly essays on both sets of codes. Vol. IV also includes two reports on Islamic criminal procedure by Sokoto State committees; and the Supplementary Materials to Vol. IV include reports by Borno and Kaduna State committees. 

These materials are a part of The Nigeria Papers – a SHARIAsource Special Collection, compiled and edited by Independent Scholar Philip Ostien and others. 

A document of national significance, the Police Order outlines the roles, duties, and structure of police in Pakistan.

Ibn Ḥārith al-Khushanī recorded the following case as a ḥikāya, an anonymous report: A Christian appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. But he was rebuked because he had committed no crime. The text explains that the Christian’s behaviour was motivated by his desire to die in imitation of Jesus, as an act of virtue (faḍīla), although—as our source points out—Jesus himself did not seek martyrdom. In response to the judge’s admonishment, the Christian explained that he would not in truth die. While his shibh, or likeness (i.e., a body that resembled his body), might perish, his real self would ascend to the heavens upon execution. The judge aimed to disprove this theory by ordering the Christian flogged. Thus, the judge illustrated that the Christian could indeed suffer pain and likewise would suffer death if a sword were to cut his neck.

Translation

Ibn Ḥārith said: I heard someone recounting that a Christian went [to the judge] asking to be put to death. Aslam reprimanded him asking him: “Woe unto you! Who provoked you to ask for your own death if you have committed no crime?” The stupidity and ignorance of the Christian led him to take upon himself a virtuous act (faḍīla) when nothing of the kind was attributed to Jesus, son of Mary – God bless Muḥammad and Jesus. The Christian told the judge: “You assume that if you execute me I would be the one killed.” The judge asked him: “Who else could be the one killed?” The Christian answered: “A likeness of me (shibhī) that was cast on a body is what you will execute, while my real self in that same hour will directly go to heaven.” Aslam then told him: “We lack sufficient information to have an opinion on the [outcome] that you argue for,[1]but you lack what it takes to make you realize that you are deceiving yourself. There is however a way to reveal what is right to us and to you.” The Christian asked the judge: “What could that be?” The judge Aslam summoned his court assistants (aʿwān) and told them: “Take the whip,” then ordered them to strip the Christian which they did, and then ordered them to beat him. When the Christian felt the flogging he became agitated and screamed. Aslam asked him: “On which back is the flogging taking place?” “On mine!” said the Christian. Aslam told him: “In the same way the sword will cut your neck, don’t be deluded into believing otherwise.”

Early zeal for application of the reinstated Islamic criminal law resulted in two zināʾ cases which attracted worldwide attention in 2001-2003: the cases of Safiyatu Hussaini and Amina Lawal, litigated in the Sharia Courts of Sokoto and Katsina States, respectively. Vol. V makes available English translations of the records of proceedings and the judgments of all the courts in which these two cases were litigated. Also included is various collateral information, including an annotated bibliography of Islamic authorities cited, brief biographies of the judges, and an essay by one of the lawyers involved in the defense of both cases.

These materials are a part of The Nigeria Papers – a SHARIAsource Special Collection, compiled and edited by Independent Scholar Philip Ostien and others. 

The Pakistan Supreme Court has acquitted Asia Bibi of blasphemy charges, removing her from death row. A Pakistani Christian woman, Asia Bibi, was arrested in 2010 after a dispute with her Muslim co-workers in which they claimed that she insulted the Prophet Muhammad. The state prosecutor charged her with blasphemy and the trial court sentenced her to death. The courts subsequently dismissed her appeal to the Lahore High Court. After a lengthy series of appeals, the Pakistan Supreme Court acquitted Asia Bibi of blasphemy charges, vacating her sentence. The decision navigates between affirming the law and reversing its application to Ms. Bibi. The Court notes on the one hand that blasphemy was a severe offense under classic Islamic law, and it upholds capital punishment for it, citing Muhammad Ismail Qureshi v. Pakistan (PLD 1991 FSC 10). The Court concludes, on the other hand, that the prosecution failed to prove its case against the appellant “beyond reasonable doubt.” It noted “glaring and stark contradictions in the evidence,” and cited evidence that the prosecution’s witnesses harbored ill will against Asia Bibi and thus may have fabricated the allegations. According to the Court, “even if there was some grain of truth in the allegations … the glaring contradictions in the evidence … clearly show that the truth in this case had been mixed with a lot which was untrue.” In the end, the Court notes the abuse of the blasphemy charge, and condemns people with “nefarious designs” who level false allegations of blasphemy, citing Malik Muhammad Mumtaz Qadri v. the State (PLD 2016 SC 17). This decision thus upholds blasphemy laws but cautions against broad and false applications of it.

Ibn Ḥārith al-Khushanī recorded the following case as a ḥikāya, an anonymous report: A Christian appeared before the judge Aslam b. ʿAbd al-ʿAzīz, petitioning to be executed. The anecdote offers insight into the historical role of judges during a period of religious dissent in the Umayyad Caliphate, while the author's narrative voice demonstrates past judicial approaches to rationality, humor, and violent penalization. 

This text is part of Maribel Fierro, The Judges of al-Andalus, forthcoming.

In chapter two of Justice and Leadership in Early Islamic Courts, Hossein Modarressi examines procedural differences between criminal and ordinary courts during the ʿAbbāsid period. 

In chapter one of Justice and Leadership in Early Islamic Courts, Ahmed El Shamsy examines selected criteria used to exclude the testimony of certain types of witnesses in Islamic courts of the second century AH / eighth century CE. Specifically, the chapter seeks to make three points:

1. In the early second century, Muslim judges presiding over court cases applied a notion of communal enmity among confessional groups as a criterion for determining the admissibility of witness statements by members of one group against those of another. This criterion was used both in cases that crossed confessional lines and in cases involving coreligionists only.

2. Over the course of the second century, this criterion fell out of use and was replaced by other criteria for interconfessional testimony. These criteria included the a priori exclusion of witness statements by members of certain groups as well as individual ascertainment of the probity of potential witnesses.

3. The oral and cryptic nature of the sources from the early second century presented significant obstacles to later scholars’ understanding of the reasoning that underpinned the early criteria. They consequently opened the way for a fundamental reconceptualization of who counted as an acceptable witness.

This qanun regulates the prohibition on the consumption of alcoholic beverages. It outlines that any beverages containing alcohol are haram (forbidden) and the consumption thereof is prohibited (arts 4 and 5). All persons and entities are prohibited from producing, preparing, selling, distributing, transporting, storing, stockpiling, trading in, gifting, and promoting, alcoholic beverages (art 6). The qanun also prohibits assisting with, or being complicit in, any of the above activities. The qanun's objective is to protect the Acehnese from being involved in any activity that can lead to the destruction of mind. The qanun also regulates the investigation and prosecution of those suspected of, or found to be guilty of, any of the above alcohol-related activities. It outlines that anyone, regardless of their nationality, will be made subject to this qanun if they are found selling or distributing alcoholic beverages. The qanun prescribes 40 strokes of the cane (art 26(1)), imprisonment or payment of a fine (art 26(2)), as an alternative to offenders.

A qanun on khalwat (close proximity) was introduced in Aceh in 2003 after the province was granted the right to apply the precepts of 'syariat' in its regional regulations in 1999 by the Indonesian government. This qanun prohibits unmarried couples from being in close proximity in private to one another. The qanun prescribes caning as punishment for offenders with a maximum of nine strokes, or payment of a monetary penalty as an alternative.

This regional regulation regulates social order, religious norms, and decency. Among other provisions, it prohibits persons from dressing in a manner contradictory to religious and cultural norms in public places, as well as persons of the opposite sex living together as husband and wife outside of lawful matrimony. It also puts in place measures to reduce the practice of prostitution.

This statute defines and proscribes, among other things, the production, distribution, importation and exportation, sale and rental, of pornography.