Judge may waive disciplinary punishment
Fatwa No: 366016

  • Fatwa Date:6-12-2017 - Rabee' Al-Awwal 18, 1439
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Question

Assalaamu alaykum. Can a judge forgive a disciplinary punishment which was given for backbiting or lying? Can he reduce the punishment? I have seen that in certain countries, they give 300 lashes, which are given with certain intervals. What if they give them in one go? May Allah reward you

Answer

All perfect praise be to Allah, the Lord of the worlds. I testify that there is none worthy of worship except Allah and that Muhammad  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) is His slave and Messenger.

Ibn Al-Qayyim  may  Allaah  have  mercy  upon  him defined Ta‘zeer (disciplinary punishment) in his book I‘laam Al-Muwaqqi‘een as follows: "Ta‘zeer is the punishment for any sin that has no Hadd (determined punishment) or Kaffaarah (expiation) in Islamic law."

Ta‘zeer depends on the discretion of the Muslim ruler or his representative – like the judge. It is permissible to forgive the culprit if the sin is related to the right of Allah, such as lying, for instance. The same applies if the sin is related to the right of a person, according to some scholars.

Asna Al-Mataalib, authored by the Shaafi'i scholar Zakariyya Al-Ansaari, reads, "The Imaam (i.e. the ruler or judge) may refrain from applying Ta‘zeer if the sin infringes the right of Allah, as the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) did not apply Ta‘zeer on a group of people who deserved it, such as the person who stole from the war booty unjustly before it was divided Islamically."

The Kuwaiti Fiqh Encyclopedia reads:

"The scholars of Fiqh hold the opinion that with regard to the obligatory Hadd of a sin that infringes the right of Allah, there is no pardon in it, nor intercession, nor exemption, if it [the matter] reaches the ruler (judge) and is proven with evidence ... and they differed in regard to pardoning in Ta‘zeer. The Hanafi School said, 'The judge may pardon in regard to obligatory Ta‘zeer for a sin that infringed the right of Allah, unlike a crime that a person committed against another person, as, in this case, it is the victim who may pardon him.' Al-Qaraafi said, 'It is permissible to pardon in regard to Ta‘zeer and to grant intercession in it if the sin infringes the right of a human being. But if the Ta‘zeer is devoid of the right of a person and it is a right related to the state, then the ruler/judge has the right to decide on what is better and more beneficial in regard to pardon and Ta‘zeer.'"

The scholars differed in opinion concerning the number (of lashes) in Ta‘zeer; most of them held that it does not reach the limit of the minimum Islamic Hadd (physical punishment determined in Shaiah). According to Imaam Maalik, it is permissible that the Ta‘zeer may exceed the Islamic Hadd if the ruler decided that.

Ibn Qudaamah  may  Allaah  have  mercy  upon  him said:

"Imaam Ahmad held different views about the extent of Ta‘zeer; it was narrated from him that it does not exceed ten lashes. Ahmad stated this in many contexts. This is also the view of Is-haaq, based on the following hadeeth narrated by Abu Burdah: 'I heard the Prophet  sallallaahu  `alayhi  wa  sallam ( may  Allaah exalt his mention ) say, ‘No more than ten lashes are to be given, except when inflicting one of the Hudood (plural of Hadd) of Allah.'’ The second narration from Ahmad is that it (the number of lashes in Ta‘zeer) does not reach the Hadd, which was mentioned by Al-Khiraqi, so it is likely that he wanted to say that it does not reach the minimum permissible Hadd. This is also the view of Abu Haneefah and Ash-Shaafi‘i. Based on this, it does not reach forty lashes, because it is the Hadd on a person who drank intoxicants or who falsely accused someone of fornication. This is the view of Abu Haneefah. If we say that the Hadd for someone who drank intoxicants is forty lashes, then it (Ta‘zeer) is less than twenty lashes for a slave and less than forty lashes for a free individual. This is the view adopted in the Shaafi‘i School. A slave shall not be whipped more than nineteen lashes, and a free person shall not be whipped more than thirty-nine lashes. Imam Maalik said, 'It is permissible to increase the Ta‘zeer beyond the Hadd if the Imaam (judge) perceives that.'

Based on this, estimating Ta‘zeer to be three hundred lashes was held by some scholars, and the lashes may be implemented in one go if the ruler (judge) perceives that. The lashing may also be carried out at intervals, according to the perceived interest. Ibn Taymiyyah  may  Allaah  have  mercy  upon  him said when talking about Ta‘zeer, "Abu Bakr and ‘Umar commanded a man and a woman who were found in one bed cover together to be whipped one hundred and then one hundred. He also ordered the one who forged ‘Umar’s seal and used it to take money unlawfully from the treasury to be lashed with one hundred lashes; then the second day, he lashed him one hundred lashes, and the third day, he also lashed him one hundred lashes."

Allah knows best.

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