250 words and two scholarly references

membership in an ethnic minority for 2013–2014, there were 32 applicants and 13 appointments. During the 2012–2013 period, 21 had applied and three were appointed. Of those who claimed a disability for the 2013–2014 period, there were eight applicants and five appointments. During the 2012–2013 period, there was just one applicant and no appointments.

LAW One of the basic distinctions made in law is the difference between civil justice and criminal justice. Civil litigation involves a resolution of private wrongs between two individuals. Criminal litigation is concerned with a public wrong, a crime in which someone has transgressed the public order of the state by inflicting some kind of harm, usually on a private individual. In criminal litigation, it is the state rather than the individual harmed that seeks a just treatment for the offender. This is to assure that public order is maintained and that the wronged individual’s desire for revenge or retribution is satisfied.

The distinction between these two forms of justice has been present for so long that there is a tendency to assume that they have always existed. That assumption is false, however. In order for criminal law to exist in the aforementioned format, the state must be a strong and viable instrument of authority. The Norman Conquest in 1066 has often been identified as an important date in the history of England, and reference has already been made to it. The period after the conquest is often attributed with initiating the gradual merger of local legal customs into a law that was common throughout England. It was from this development that the term “common law” emerged.

Before the arrival of the Normans, the Anglo-Saxons had developed an extensive body of written law called dooms. Early dooms identified many of the more obvious forms of criminal conduct, such as murder, rape, robbery, and theft. Dooms also explained the procedures utilized to determine guilt or innocence and methods for sanctioning offenders.

Outlawry was one of the early methods for punishing those who repeatedly refused to observe the community’s laws. Limited to the more serious offenders, under this system a person simply was placed outside the law. The individual was ordered to leave the community and was threatened with death upon return. Once the authority of the king increased, outlawry ceased as a method of punishment and instead became a form of assuring that a person would submit to a hearing in a judicial tribunal.

The blood feud was another primitive procedural approach that was explicitly based on a desire for revenge. A victim was often dependent on their kindred to seek retribution, and kindreds were based on blood relationships. Regulated by a system of rules, a blood feud sought an exact compensation that often followed literally the principle of “an eye for an eye and a tooth for a tooth.”

Gradually, a monetary compensation plan was introduced to replace the blood feud. By the ninth century, a schedule of tariffs was established and recorded. With the creation of this scheme, the king was not only beginning to assert his authority in judicial matters but was also recognized in theory as a victim of crime. When a crime was committed, the victim was compensated by a monetary payment called a wer. The wer was the value placed

England 69

F O S T E R , C E D R I C 1 6 9 2 T S

on an individual, determined by the individual’s rank in society. The king was considered a victim of the criminal act because the crime disrupted the general or public peace of the kingdom. He, therefore, was compensated by a monetary payment called a wite.

The monetary compensation scheme illustrates a method for sanctioning. The procedure devised by local Anglo-Saxon courts to determine liability was referred to as compurgation. Usually, a victim went to the local court and made an oath that the accusation was being made in good faith. The accusation was supported by offering material evidence and securing oaths of affirmation from oath-helpers. It was not uncommon to secure oath-helpers from one’s tithing, that early form of Anglo-Saxon law enforcement. Both the quality of evidence and the number of oath-helpers necessary was dependent on the gravity of the accusation and the social rank of the plaintiff.

The defendant was then permitted to make an oath of denial. The defendant also had to secure oath-helpers. The number of oath-helpers was determined by the nature of the charge and the accused’s social rank. Severe fines were levied against all parties concerned who falsely swore an oath.

Some defendants were not permitted to use compurgation. Instead, they had to submit to an ordeal, which was another form of proof. Defendants who were required to submit to an ordeal included those who were unable to secure a sufficient number of oath-helpers to comply with the compurgation scheme, those who had an extensive record of accusations brought against them and were no longer considered oath-worthy, and those caught in the act of committing a crime or in possession of stolen property. Proof by ordeal was based on a belief that the gods or a god would intervene with a sign that would determine guilt or innocence. While ordeals had their origins in primitive societies, the practice was transformed into a Christian ritual by the Roman Catholic Church.

There were three types of ordeals that were frequently utilized. The plaintiff in a case usually determined which ordeal would be employed. The ordeal of cold water involved placing the defendant into a pool of blessed water. If the person sank, they were innocent; if they splashed about, they were considered guilty. The ordeal of hot iron and hot water were similar to one another. The ordeal of hot iron required the defendant to carry a hot iron bar nine feet, while the ordeal of hot water involved removing a stone from a cauldron of boiling water. All the instruments in these ordeals had been blessed by a priest. In these instances, the defendant’s hand was bandaged and three days later the bandages were removed. If the skin was healing, the person was considered innocent; if the skin was infected, the person was obviously guilty. Thus, the Christian application of the ordeals was based on a belief that God would provide a sign as to the truth of the matter for the court. Although ordeals may appear to be a form of punishment, they were simply a method of determining guilt or innocence. People found guilty by an ordeal would then have to submit to a prescribed sanction, frequently involving monetary compensation.

By the time of the Norman Conquest, the Anglo-Saxons had developed an extensive body of written law. Their system was superior to that of their Norman invaders, who relied upon oral tradition rather than written custom. This may be the reason why the Normans did not tamper with Anglo-Saxon law following their conquest. If change was not in the offing as a result of the Conquest, why is the event considered such an important date in the development of English law? Norman kings were interested in centralizing their

70 England

F O S T E R , C E D R I C 1 6 9 2 T S

political control over their English kingdom. It was through the enhancement of their political position that the law was gradually transformed into a unified system, a common law for the whole kingdom.

The emergence during the medieval period of centralized royal courts, circuit courts, royal writs, and the jury has already been discussed in a previous section of this chapter. This period also experienced changes in the principles of criminal liability and in criminal procedure. For example, Anglo-Saxon law had not developed the notion that a crime requires a finding of mens rea or criminal intent. People were liable for all their actions. By the thirteenth century, however, a distinction was made between a crime and a tort. Although the term mens rea was not in use, there was a recognition of criminal intent. For example, people were granted pardons for death by misadventure. This would not have occurred during the Anglo-Saxon period. In addition to differentiating between a crime and a tort, a distinction was made between felonies and misdemeanors. The term felony was used in statutes on a limited basis as early as the twelfth century; by the thirteenth century, serious crimes such as murder, robbery, rape, theft, and arson were classified as felonies.

Another significant procedural change occurred in 1215 as a result of the meeting of the Fourth Lateran Council. At this meeting, Pope Innocent III (1160/1161–1216) declared that clergy were to cease participating in trials involving bloodshed. With the clergy removed from the administration of ordeals, the procedure lost its significance. Before the Pope’s declaration, the grand jury of indictment was utilized in England, and even the petty jury was employed in some cases to determine guilt or innocence. As a result of the Lateran Council’s pronouncement, the use of juries gained in popularity and became a standard component of the English criminal trial.

The emergence of a unified legal system common throughout the kingdom was another significant factor in the development of English law following the Conquest. Despite the fact the Anglo-Saxon dooms had standardized some law and procedure, a good deal of regional custom remained prevalent in the local courts. The advent of royal courts— especially the use of circuit judges—changed that. Royal courts were superior to local courts, and thus, their decisions were binding on local courts. As royal court decisions became systematized, there gradually emerged a unified or common interpretation of the law. The roots of the common law are found in the decisions of the justices of the royal courts, in some of the Anglo-Saxon dooms, and in statutes passed after the Norman Conquest.

Criminal Law

The primary sources of English law are (1) common law, (2) legislation, and (3) equity, but only the first two are considered the basis of criminal law. The earliest common law offenses were felonies, and they were punishable by death or mutilation and by forfeiture of property. Murder, robbery, rape, arson, and larceny are examples of these early common law felonies. As other less serious offenses were identified by the judiciary, they were called misdemeanors. By the nineteenth century, the legislature became the principal source for identifying new forms of criminal behavior. Today, most common law crimes have been codified and are contained in statutes.

England 71

F O S T E R , C E D R I C 1 6 9 2 T S

Until 1967, the English classified crimes by the traditional categories of treason, felonies, and misdemeanors. With the passage of the Criminal Law Act (1967), this old distinction was abolished, largely because it had become obsolete. As a result of this act, a dual system of categorization was created based upon substantive and procedural classification schemes.

Offenses are now referred to as arrestable or nonarrestable. Arrestable offenses are defined in the Act as “offences for which the sentence is fixed by law or for which a person (not previously convicted) may under or by virtue of any enactment be sentenced to imprisonment for a term of five years, and to attempts to commit any such offence.” Thus, the most serious crimes are arrestable offenses; all others are deemed nonarrestable offenses.

The major significance of this legislation involved the power of arrest without a warrant. Under common law, this power was limited to treason, felonies, and breaches of the peace. Under the new substantive scheme, the power to arrest without a warrant was extended to all arrestable offenses.

It is the act’s procedural classification scheme that determines how a case is handled. All offenses are tried either summarily in a magistrates’ court or on indictment in a Crown court. Offenses are procedurally classified into one of the following categories: (1) Most serious offenses are triable on indictment before a judge and a jury in a Crown court. These include murder, manslaughter, rape, burglary, and assault with intent to rob. (2) Some indictable offenses may be tried summarily in a magistrates’ court. Among the offenses that fall under this category are malicious wounding, assault, many thefts, some burglaries, and arson. The accused must give consent to the summary proceedings, however. (3) Statute law has created a small number of offenses that may be tried either summarily or on indictment. These offenses are commonly referred to as “hybrid” offenses. These cases are tried on indictment, unless the prosecutor applies to a magistrates’ court for the case to be heard summarily. Examples of these offenses include driving under the influence, carrying a weapon, and cruelty to children. (4) Some summary offenses may be tried on indictment. These include those summary offenses in which the accused can claim a right to a jury trial, such as selling liquor without a license and illegal entry by immigrants. (5) Some summary offenses are tried in a magistrates’ court without a jury. The vast majority of offenses in English law are summary in nature; they include drunk and disorderly conduct, loitering and soliciting, and most traffic offenses.

As previously mentioned, by the thirteenth century, the English recognized the principle of criminal intent. Today, there are two general principles establishing criminal liability. One is the actus reus, that is, the act of commission or omission forbidden by the criminal law. Each crime contains specific elements that define a particular crime and thus establish the actus reus. For example, the Theft Act (1968) defines robbery as “[a] person is guilty of robbery if he steals, and immediately before or at the time of doing so, and in order to do so, he uses force on any person or puts or seeks to put any person in fear of being then and there subjected to force.” The elements of stealing and using force or fear indicate the actus reus.

The other general principle is the mens rea, that is, the accused possessed the necessary intent to commit the crime. Like the actus reus, the mens rea of each crime is different.

72 England

F O S T E R , C E D R I C 1 6 9 2 T S

For example, theft requires the intent to permanently deprive the owner, while a forgery case requires the intent to defraud or deceive. Obviously, the mens rea is complex and at times difficult to prove because the accused’s state of mind is being scrutinized. In order to prove that a crime was committed, it is the responsibility of the prosecutor to prove that both actus reus and mens rea existed in each particular case.

Criminal Procedure

The examination of English criminal procedure is divided into two categories: the pretrial process, which includes police powers and procedures, bail, and the preliminary hearing; and the trial process, which explains the procedures for trials on indictment, summary proceedings, and appellate reviews.

The English criminal justice system in general, and criminal procedural issues in particular, have often received significant attention. The issue of police powers was the subject of a massive and extensive examination by the Royal Commission on Criminal Procedure (1981). The commission’s report focused on (among other things) police powers of arrest, search, and questioning.

Because police powers were scattered throughout common law, case law, and statute law, critics were of the opinion that police authority should be reviewed and systematized in a coherent fashion. The Royal Commission on Criminal Procedure agreed with this position and offered a general recommendation that police powers be codified. The rationale was based on two objectives. First, the police argued that they preferred to have a clear understanding of the limits of their authority and that framing these powers in a statute would assist in eliminating existing ambiguities. Second, the citizenry had a right to be apprised of these powers, for this is a basic tenet of any country that claims to be founded on democratic principles. An even more pragmatic reason centered on the need for the citizen’s willingness to cooperate with police when such powers were exercised. The assumption was that if the citizenry had a clear understanding of the extent of police powers, they would be more apt to cooperate.

The commission specifically suggested that the power to arrest without a warrant be more consistent. Arrests without a warrant were acceptable if the alleged violation was an arrestable offense or if another statute granted such a power. The commission recommended that there be one single power to arrest all accused of an imprisonable offense and that the power to stop and search a person should be based on a statute. The Commission would permit searches of stolen property or prohibited items in the event that an officer has a reasonable suspicion that a person possessed such property or items. Additionally, warrants to enter and search a premise should specifically detail the place to be searched and the items to be seized. General searches would be unacceptable.

In addition, the police power to question a suspect and take testimony was controlled by the Judges’ Rules and the Administrative Directions on Interrogation and the Taking of Statements. Collectively, these rules called for voluntary confessions, enumerated a person’s right to remain silent, enabled private consultations with a solicitor, and required that the person in custody be informed of these rights orally and that the rights be posted and displayed in a prominent place in police stations.

England 73

F O S T E R , C E D R I C 1 6 9 2 T S

Although these rules served a similar purpose to that of the Miranda warning in the United States, they were not legally binding. Breaches, therefore, did not lead automatically to the exclusion of evidence at trial. It was the responsibility of the judge to make a determination on the admissibility of evidence. Moreover, it was suggested that people in custody had not been routinely informed of their qualified right to speak to a solicitor or to friends; and when they had been informed, many were denied this right. Compounding the problem was the fact that solicitors were not always willing to come to a police station at all hours of the night.

There emerged a concern among some critics of police procedures that citizens—espe - cially the poor, illiterate, and uninformed—were victims of these and other unnecessary breaches of the rules. Critics contended that all citizens would become potential victims of these breaches if they were allowed to continue. Though in the past police had relied on public trust in their judgments and an almost unquestioned deference to agents of authority, the composition and attitudes of English society had changed considerably since World War II. Distinctions in the various segments of the population were more pronounced, and people were often unwilling to exhibit complete deference to the wishes and practices of police.

The Royal Commission recognized these concerns and offered two recommendations: The treatment of a suspect in custody should be regulated by statute, and the right of access to a solicitor should be improved by the establishment of a duty solicitor scheme. Although a few areas of the country had already developed such a scheme, the commission recom - mended that defendants throughout the country be given access to a solicitor on a 24-hour basis. The likelihood that such a scheme could work would be enhanced by guaranteeing solicitors a remuneration for their services.

As a result of the commission’s work, Parliament passed the Police and Criminal Evidence Act (1984), often referred to as PACE. This act essentially encompasses in a single statutory instrument all the aforementioned procedural issues relating to police. In addition to the act, the home secretary issued Codes of Practice designed to assist police with inter - preting the statute. Like the act, the Codes of Practice were subject to the approval of Parliament.

In 1991, the Royal Commission on Criminal Justice was established after several high- profile convictions were overturned. Although the original convictions in some of these cases predated the passage of PACE, that was not the case with all of them, thus raising questions about PACE. The new Royal Commission was given a broad mandate to consider the effectiveness of the criminal justice system—specifically, how to assure the conviction of the guilty and the acquittal of the innocent. The work of this Commission, along with various other committees, led to the passage of the Criminal Justice and Public Order Act (1994) and the Police and Magistrates’ Courts Act (1994). Unlike the Police and Criminal Evidence Act (1984), which essentially placed all procedural issues related to police under one statutory instrument, the new pieces of legislation deal with a host of issues that involve criminal law, criminal procedure, and the administration of the justice system (Bridges, 1994; Bridges and McConville, 1994; Zander, 1994). Since that time, more recent legis- lation impacts how the police perform their duties as it relates to criminal procedure. This legislation includes the Terrorism Act (2000); Anti-Terrorism, Crime and Security Act (2001); the Anti-Social Behaviour Act (2003); and the Criminal Justice Act (2003).

74 England

F O S T E R , C E D R I C 1 6 9 2 T S

Power to Stop and Search

Under PACE, police have the power to stop anyone who is in a place to which the public has access and to speak with them briefly in order to decide if there are grounds to conduct a search. Before a stop occurs, police must have established reasonable suspicion for doing so, based on the probability that stolen goods or prohibited items will be found either on the person or in a vehicle. Prohibited articles consist of offensive weapons and items made or adapted for use in the commission of various offenses (which, for the most part, involve burglary or theft).

In order to carry out a search, an officer is expected to inform the person to be searched about the officer’s name and police station, to identify the object of the proposed search, to explain the grounds for the search, and to inform the person of his or her right to receive a copy of the record of the search. The police also must keep a record of a search as long as it is practical to do so.

PACE also addressed the stopping and searching of vehicles and the issue of road checks. In the case of stopping and searching a vehicle, an officer must have reasonable suspicion that the vehicle contains stolen goods or prohibited articles. A search of an unattended vehicle is permitted as long as reasonable suspicion has been established. Road checks normally should be approved in advance by an officer of the rank of superintendent or above and an explanation given for the purpose of the check. The grounds for establishing a road block are the following: to apprehend a person who committed a serious offense, to secure a witness to a serious offense, to stop a person intending to commit a serious offense, or to apprehend an escaped prisoner.

Power to Enter, Search, and Seize

A key issue in searching premises is whether an officer has secured a search warrant. Usually, a warrant is needed to search a residence, but the statute offers some exceptions to the general rule. For example, a person who occupies a residence may consent to a warrantless search. The Code of Practice, however, states that a person is not obligated to consent to a search. In the event a person does agree, the consent must be in writing and the person must be informed that anything seized may be used as evidence. Warrantless searches also can be used to prevent or stop a breach of the peace that is imminent or taking place, to rescue a person in danger, or to prevent serious property damage. Arresting a person in cases in which an arrest warrant has been issued or arresting a person for an arrestable offense are also acceptable reasons. Upon entering a premise to arrest a person, police must have reasonable grounds to believe that evidence of an offense or similar offenses will be found. Two final reasons for a warrantless search include situations in which the defendant was at a premises immediately before an arrest or in which the intent is to recapture an escaped prisoner.

The application for a search warrant is covered under PACE. Under the act, a magistrate must be satisfied that there are reasonable grounds to suspect that an arrestable offense was committed and that relevant admissible evidence will be found. There are two excep- tions to this rule: legal privilege and excluded material. Legal privilege involves the

England 75

F O S T E R , C E D R I C 1 6 9 2 T S

communications between a professional legal advisor and his or her client. Excluded material includes personal records, a journalist’s materials, and human tissue or tissue fluids. Although the last two are fairly self-explanatory, it should be noted that the Criminal Justice and Public Order Act (1994) amended this provision. As such, police powers have been extended to take intimate and nonintimate samples in select circumstances. Personal records include the records of healthcare professionals, clergy, counselors, and agencies dealing with personal welfare issues. Certain materials held on a confidential basis, such as bank records, may be seized following an application for a warrant to a circuit judge. Under normal conditions, this application is sought in the presence of the person on whom the order is being made.

PACE also established a uniform procedure for carrying out a search warrant. The request for a warrant must be made in writing, and an officer must be put under oath to answer questions of a magistrate concerning the request. The warrant can be used only once and must be executed within a period of one month. When executing a warrant, an officer must identify himself or herself and present a copy of the warrant to the occupant of the premises. The search should also occur at a reasonable hour. Police can seize any item covered by the warrant or reasonably believed to be evidence of an offense.

Finally, it is important to note that not all searches are governed only by PACE. Some specific police powers are found in other statutes. A sample of these include the Theft Act (1968), the Misuse of Drugs Act (1971), the Aviation Security Act (1982), the Road Traffic Act (1988), the Offensive Weapons Act (1996), and the Terrorism Act (2000).

Power to Arrest

The power to arrest involves two general sets of circumstances: cases of arrest with a warrant and cases of arrest without a warrant. Various statutes authorize arrest with a warrant. It is the issue of arresting without a warrant that is often complicated and controversial. PACE attempts to clarify the circumstances in which it is permissible. Police can arrest without a warrant if they have reasonable grounds to believe that a suspect has or is about to commit an arrestable offense. They also can arrest people without a warrant for common law offenses carrying a sentence of five or more years’ imprisonment or for specific offenses listed in Section 24 of the statute.

A person must be informed when he or she is under arrest and be provided reasons for the arrest. Once a person is arrested, he or she can be searched. The search must be based on reasonable grounds that the person poses a present danger to himself or herself or others, possesses evidence of a crime, or possesses items that could be used for escape.

Power to Detain

The act and the accompanying code designate certain police stations to receive people for detention. Each of these stations has a custody officer at or above the rank of sergeant. Once a suspect arrives at a police station, the custody officer decides whether there is sufficient evidence to charge the person with a crime. Suspects who have not been charged can be detained if the custody officer believes that it is necessary in order to secure or

76 England

F O S T E R , C E D R I C 1 6 9 2 T S

preserve evidence. The custody officer also oversees the treatment of suspects who are being detained. Moreover, PACE requires a periodic review of the detention of suspects who have been charged. A review officer is responsible for this task, and the officer must be at least the rank of inspector and cannot be involved in the case under review. PACE mandates that the first review occur within the first six hours of detention, followed by further reviews at nine-hour intervals.

If police wish to continue to hold a suspect who has not been charged for longer than 24 hours, they must have the detention authorized by a person at the rank of superintendent or higher. If police wish to hold a suspect beyond 36 hours, they must seek the approval of a magistrate. Magistrates cannot authorize the holding of a suspect beyond 96 hours. The suspect or the suspect’s representative must be informed of these continuances so that oral or written statements can be made with regard to the detention.

At least two magistrates and the court clerk must be present at a detention hearing. The suspect must be given a copy of the police application for further detention and be notified of the right to legal representation. Acceptable reasons for a continuance of detention are the necessity to secure or preserve evidence, the fact that the allegation is a serious arrestable offense, and the assurance that the investigation is being conducted in an expeditious manner. These are the same criteria used by a superintendent in determining a continuance of the 24-hour period.

Once a person is charged with an offense, the reasons for detention change. The statute lists several reasons, including these: to establish the suspect’s name and address, to detain (upon reasonable grounds) a person for his or her own protection, to prevent a suspect from causing physical injury to another person or damage to property, to assure appearance in court, or to prevent any interference with the administration of justice. In the case of a juvenile, detention might be continued on the basis that it is in the best interests of the young person.

Under the old law, a person charged and held in custody would be brought to court as soon as it was practical. PACE retained this rule and strengthened it somewhat. If a magistrates’ court is not sitting on the day of the charge or the next day (with the exception of Sundays and a few holidays), the custody office must request that the clerk of the court hold a special hearing for the suspect.

Power to Question

While a police officer has a right to ask a person anything, a person has an absolute right to remain silent. A person taken into custody also has a right to inform a friend, relative, or other person who will take an interest in their welfare. It is assumed that this will be done without delay, but there are circumstances in which delays are permissible—for example, if the suspect is being detained as a result of a serious arrestable offense. In addition, an officer of the rank of superintendent or above may delay the process if he or she believes it is possible that there will be interference with the investigation, that harm might come to other people, that other suspects might be alerted, or that the recovery of evidence might be hindered. The act further states that the maximum period of delay should not exceed 36 hours.

England 77

F O S T E R , C E D R I C 1 6 9 2 T S

The Codes of Practice state that a detained person may receive visits at the custody officer’s discretion. The detained person also has access to a telephone, unless any of the aforementioned reasons for holding a suspect incommunicado are in force. A police officer may listen to the contents of a telephone call unless the call is being made to a solicitor.

PACE also addresses the controversial issue of access to a lawyer. A suspect not involved in a serious arrestable offense has an absolute right to see a lawyer. Police are permitted to initiate questioning before the solicitor arrives, however. The code explains the circum - stances in which this is permissible—including when a superintendent believes that a delay in questioning may cause harm to a person or risk the loss of (or damage to) property or believes that an unreasonable delay in the investigation would occur as a result of waiting for the solicitor. The suspect may agree in writing or on tape that the questioning may continue without a solicitor.

Suspects detained because of alleged involvement in a serious arrestable offense also have an absolute right to see a lawyer, but access can be delayed up to 36 hours in most cases. In cases of terrorism, the delay can extend up to 48 hours. The reasons for delay are the same as those stated in the previous paragraph. The code clearly states that delays in access to a solicitor cannot be based on a concern that a solicitor might advise the suspect not to speak.

The suspect can name a particular solicitor, or the police will provide a list of solicitors available for such work. Many jurisdictions have developed a duty solicitor scheme, which consists of solicitors who are available on a 24-hour basis for suspects. Access to a solicitor is available free of charge.

A person who has asked for legal advice should not be interviewed until the solicitor arrives, unless the aforementioned exceptions are in effect. The solicitor may be present during the police interview. However, an officer of the rank of superintendent or above can ask that the solicitor withdraw because of misconduct and may report such behavior to the Law Society.

Probably the most controversial issue is the point at which a person must be informed of his or her rights. The answer is dependent on whether the person is under arrest. If a person is not under arrest, he or she must be told of his or her rights when cautioned. Circumstances in which a caution must be given are explained in the code under Section 10:

10.1 A person whom there are grounds to suspect of an offence must be cautioned before any questions about it (or further questions if it is his answers to previous questions that provide grounds for suspicion) are put to him for the purpose of obtaining evidence which may be given to a court in a prosecution. He therefore need not be cautioned if questions are put for other purposes, for example, to establish his identity, his ownership of, or responsibility for, any vehicle or the need to search him in the exercise of powers of stop and search. 10.2 When a person who is not under arrest is initially cautioned before or during an interview at a police station or other premises, he must at the same time be told that he is not under arrest, is not obliged to remain with the officer and may obtain legal advice if he wishes.

78 England

F O S T E R , C E D R I C 1 6 9 2 T S

10.3 A person must be cautioned upon arrest for an offence unless (a) it is impracticable to do so by reason of his condition or behaviour at the time; or (b) he has already been cautioned immediately prior to arrest in accordance with paragraph 10.1 above. 10.4 The caution shall be in the following terms: “You do not have to say anything unless you wish to do so, but what you say may be given in evidence.” Minor deviations do not constitute a breach of this requirement provided that the sense of the caution is preserved. 10.5 When there is a break in questioning under caution the interviewing officer must ensure that the person being questioned is aware that he remains under caution. If there is any doubt the caution should be given again in full when the interview resumes. 10.6 A record shall be made when a caution is given under this section, either in the officer’s pocket book or in the interview record as appropriate.

A person under arrest must be told of his or her rights upon arrival at a police station. A person must be informed of the reasons for the detention, the right to inform someone

of the detention, the right to see a copy of the codes, and the right to legal advice. The person must be told of these rights orally, and he or she has a right to a copy of the custody record. If a person has come to a police station voluntarily and has been cautioned, he or she must be advised of these rights as well as the right to leave the station, if desired.

Finally, the code offers several rules that relate to how police may question a person. Over any 24-hour period, eight continuous hours (which should occur at night) must be permitted for rest. Breaks should occur at two-hour intervals, but these can be delayed if there is a reasonable belief that harm could come to a person, that there is a risk of loss or damage to property, that there might be prejudice to the investigation, or that a delay would prevent a person’s release from custody. Three meals must be provided over a 24-hour period. A person cannot be required to stand for questioning. If it is necessary to take a person’s clothing for investigative purposes, replacements must be provided. The use of oppression in questioning a person also is forbidden.

Although a person has a right to remain silent, the Criminal Justice and Public Order Act (1994) has altered the manner in which that principle has been interpreted. In the past, the right to silence assisted the accused in two ways: (1) a person could not be required to incriminate himself or herself while in police custody, and (2) as a result of exercising that right, one could not infer guilt at trial. The new legislation does away with this second benefit. Thus, the inference of guilt may be present. This, in turn, puts pressure on the accused to waive the right to silence when questioned by the police (Dennis, 1995; Pattenden, 1995).

It should also be noted that the issue of questioning a person has raised several problems. The code calls for police to keep an accurate record of each interview with a suspect. In light of this, officers had been required to write down each question and the suspect’s answer before proceeding to a next question. The police had been critical of this requirement because it often breaks up the flow of an interrogation. This problem has been resolved as police use tape recorders for interrogations.

England 79

F O S T E R , C E D R I C 1 6 9 2 T S

Bail

Another significant procedural issue frequently addressed during the pretrial stage is the approval or denial of bail. The Bail Act (1976) explains the general rights and conditions under which bail may be granted. In general, the act presumes that any person accused of a crime is entitled to release on bail. Those who do not enjoy this presumed right are fugitives, people who have been previously convicted of the offense with which they are now charged, people who have been released on bail and have been arrested for absconding or breach of bail, and those who are accused of crimes for which the punishment is imprison - ment. The court may refuse bail under this last category for various reasons, including a belief that the person would not surrender to custody, that he or she may commit another offense while on bail, or that he or she may obstruct justice or interfere with witnesses. Before refusing bail, the court is obliged to consider the seriousness of the offense, the defendant’s character, community ties, previous record, and the strength of the evidence.

Bail, when granted, can be either unconditional or conditional. Unconditional bail requires that the person surrender to the court on a specific date; failure to do so can lead to imprisonment, a fine, or both. Conditional bail is granted to assure that the defendant will surrender to custody, will not commit another offense while on bail, and will not obstruct justice or interfere with witnesses. The court may attach to the bail any condition that it deems appropriate. Among the most common stipulations are to reside at a particular address, to inform police of any change of address, to report regularly to a police station, to avoid contact with the victim and potential witnesses, and to refrain from frequenting specific places.

Another condition for release on bail might be to provide sureties. Sureties are people who agree to assure the court that the defendant will appear when required. Should the defendant not appear, the surety must pay the Crown a sum of money. Sureties do not deposit money with the court until the defendant has actually failed to appear at the appointed time.

If a court refuses to grant bail or limits the conditions of bail, reasons must be given. Bail may be granted either before the trial or at any stage during the proceedings. If the defendant is not released on bail, he or she must be brought before a magistrates’ court as soon as possible.

Bail is generally granted by the magistrates’ court or the Crown court, but there is one exception to this rule. A police officer at or above the rank of inspector may grant bail to a defendant who is in custody after being arrested without a warrant. This bail is granted without conditions, with or without sureties, if the officer concludes that the offense is not serious.

The Criminal Justice and Public Order Act (1994) has added a new feature to bail decisions. Like the courts, the police have now been granted the authority to impose conditions (the common stipulations referred to earlier) when granting bail. The intent of this change was to improve the efficiency of the process, but questions have been raised about the potential for abuse. While the previous method of granting conditional bail was authorized by a magistrate or judge and occurred in a judicial setting with the prosecution and defense present, concerns have been expressed that this new responsibility will be added to the duties of the custody officer of the police cells (Raine and Willson, 1995).

80 England

F O S T E R , C E D R I C 1 6 9 2 T S

Legal Aid

The issue of legal aid frequently is addressed during the preliminary hearing. England has not developed a public defender system, but has established a legal aid scheme that is regulated by the Legal Aid Act (1974). Under the act, a magistrates’ court may grant aid to a defendant appearing before it or to a person who has been convicted and wants to appeal to a Crown court. A Crown court may grant aid to an accused person appearing before it or to a person who has been convicted and plans to appeal to the Court of Appeal. The Court of Appeal or the Supreme Court of the United Kingdom may grant aid to a person appealing a case to the Supreme Court. If legal aid is granted, the accused is free to select any private solicitor willing to handle legal aid work. In cases in which the services of a barrister are needed, the solicitor seeks appropriate counsel for the client.

Legal aid is provided by state funds. In order to qualify for aid, the applicant faces means and merits tests. The means test determines whether the person is actually in financial need of either total or partial assistance. Therefore, the court can require that an applicant furnish proof of financial status. In Crown court cases, the merits test is usually satisfied by the fact that the case will be heard in a Crown court, which hears only the more serious cases. Guidelines have been established for determining the merits of granting legal aid for cases heard in a magistrates’ court: the charge is a serious one in which the accused may lose his or her liberty, the charge raises a significant legal issue, or the nature of the case requires interviewing witnesses and the ability to cross-examine witnesses effectively.

The Legal Aid, Sentencing and Punishment of Offenders Act (2013) has made some changes to the legal aid scheme. The most prominent were reversals of access for aid in civil cases. Of particular note was the removal of funding for cases involving: family law; personal injury; some employment law; some immigration issues; and matters associated with debt, housing, and benefits. The impact of the statute on criminal legal aid centered on three issues. First, legal aid was removed from prison law, with the exception of matters of release and issues associated with clarifications of criminal charges. Second, fees paid to solicitors and barristers were reduced. Finally, a means test in Crown court cases was added to the merits test already in place.

Trial on Indictment

Procedures for a trial on indictment in a Crown court are similar to those for a jury trial in the United States. One judge and a jury would sit to hear the case. As was mentioned earlier, only one in 20 people accused of an indictable offense elects a jury trial. Trials on indictment involving adults must be conducted in public, and the press may fully report the proceedings.

The first stage of the trial is the arraignment. Although the accused does not have to be represented by counsel, the overwhelming majority employ counsel—especially in light of the availability of legal aid. If a person chooses to conduct his or her own case, the judge assists the accused on legal points that arise during the course of the trial. The accused, however, cannot appeal the case on the grounds that it was not properly conducted. When representing oneself, the accused is required to be present at the arraignment to hear the

England 81

F O S T E R , C E D R I C 1 6 9 2 T S

reading of the indictment and to answer the charge. Although there are several formal pleas, this text will limit the description to pleas of guilty and not guilty. If a person pleads guilty, the judge examines the accused to assure the court that the person understands the consequences of the plea. Once satisfied, the judge proceeds to impose a sentence. If the accused pleads not guilty, the trial continues.

The second stage of the trial involves the selection of a jury. A jury consists of 12 people between the ages of 18 and 70, who are registered voters, who have been a resident of the United Kingdom for five years since their thirteenth birthday, and who are eligible to serve. Various groups of people may be disqualified, deemed ineligible, or excused from jury duty. Specific rules for this were enumerated in the section on the judiciary. The defense and prosecution have an unlimited number of challenges for cause, but the use of peremptory challenges has been eliminated in England. Once a jury has been selected, the third stage of the trial begins. This stage is the oral presentation of the case by both sides in court. The standard procedure includes the following steps:

1. The prosecuting counsel gives an opening speech in which he or she outlines for the court the evidence that will be presented.

2. The prosecuting counsel then calls and examines witnesses. To assure that a witness will not hear the evidence of others, witnesses are normally not allowed to remain in the courtroom until after they have given their testimony.

3. Defense counsel is permitted to cross-examine witnesses as they appear. 4. The prosecutor then may reexamine the witness. 5. If the defense counsel plans to call witnesses other than the accused, counsel is

permitted to make an opening statement that outlines defense evidence for the court. 6. An accused may choose to give evidence and is called first (although one cannot be

compelled to do so). Once the accused chooses to give evidence, he or she is then required to answer all questions, including those that are incriminating.

7. Other defense witnesses then are called. 8. The prosecution is permitted to cross-examine each witness. 9. This may be followed by a reexamination by the defense.

10. The prosecutor then offers a closing speech. 11. The defense counsel follows with a closing statement. 12. The judge then summarizes the case for the jury. Two duties are encompassed in the

summarization: First, the judge discusses the specific law, its applicability to the case, and the burden of proof required to establish the accused’s guilt; second, the judge sums up the evidence presented by both parties.

13. The jury then retires to consider a verdict. It can return a general, partial, or special verdict. A general verdict covers all the charges in the indictment. A partial verdict indicates that the jury finds the accused guilty or not guilty on a limited basis. For instance, they may acquit the accused for the offense charged but find him or her guilty of another offense for which he or she was not charged. A special verdict frequently involves the jury’s decision that the accused is not guilty by reason of insanity. The jury may reach a unanimous verdict or a majority verdict. The Juries Act (1974) provides for majority verdicts of 10 when the jury is composed of 11 or 12 people. Majority

82 England

F O S T E R , C E D R I C 1 6 9 2 T S

verdicts are accepted only if the jury deliberates for at least two hours or longer, if the court believes it is reasonable. If the jury is unable to reach a verdict, it is discharged and the accused may be tried again.

The division of labor between a judge and a jury in an English trial is similar to that found in the United States. The jury is limited to determining the facts in the case and returning a verdict. The judge determines the conduct of the trial, rules on all questions of law, guides the jury, and passes sentence.

The first two items may need further clarification. For example, the judge must rule on all motions raised by both sides during the trial. Following the prosecutor’s presentation of the case, the judge must decide if the prosecution has presented sufficient evidence against the accused to warrant a continuance of the trial. The judge has the power to exclude evidence from the case if it was obtained illegally or is deemed inadmissible. In addition, if inadmissible evidence is presented, and the judge believes the defendant would not get a fair trial, the jury may be discharged.

A defendant who is found not guilty is released immediately. When the jury returns a verdict of guilty, the trial moves to the fourth and final stage: sentencing. Although all indictable offenses are punishable by imprisonment (the length of time controlled by statute), the judge usually receives two reports to assist in determining the appropriate sentence. One report is prepared by the prosecutor and contains such items as the age, education, employment, and past convictions record. The other report is prepared by a probation officer in conjunction with other nonlegal specialists. It pertains to the medical, psychological, and social condition of the defendant.

Section 142 of the Criminal Justice Act (2003) explains the purpose of sentencing.

(1) Any court dealing with an offender in respect of his offence must have regard to the following purposes of sentencing:

a the punishment of offenders, b the reduction of crime (including its reduction by deterrence), c the reform and rehabilitation of offenders, d the protection of the public, and e the making of reparation by offenders to persons affected by their offences.

(2) Subsection (1) does not apply-

a in relation to an offender who is aged under 18 at the time of conviction, b to an offence the sentence for which is fixed by law, c to an offence the sentence for which falls to be imposed under section 51A(2)

of the Firearms Act 1968 (c. 27) (minimum sentence for certain firearms offences), under subsection (2) of section 110 or 111 of the Sentencing Act (required custodial sentences) or under any of sections 225 to 228 of this Act (dangerous offenders), or

d in relation to the making under Part 3 of the Mental Health Act 1983 (c. 20) of a hospital order (with or without a restriction order), an interim hospital order, a hospital direction or a limitation direction.

England 83

F O S T E R , C E D R I C 1 6 9 2 T S

Clearly, this legislation continues to make a distinction between an adult offender and a youthful offender.

Sentences are essentially divided into two general categories: custodial and non - custodial. The custodial sentences consist of imprisonment and youth custody for people under 18 years of age at the time of conviction. Noncustodial sentences include probation orders, various community service orders, and fines.

In addition to the custodial and noncustodial sentences, there are a few miscellaneous orders that the court may issue. For example, for certain traffic offense convictions, the court may suspend the offender’s driving privileges. The Crown court also may order costs to be paid out of the central fund or by one of the parties. Costs paid out of the central fund may be ordered for the prosecution and witnesses. Defense counsel also may have costs paid if the defendant is acquitted. The Crown court, however, may order a convicted offender to pay all or part of the prosecution’s costs or require that the prosecution pay all or part of the costs of an acquitted defendant.

People who are injured or have their property damaged or lost as a result of a crime may be awarded compensation by the court. The court may order the offender to pay compensation, but it must take into consideration the person’s ability to pay. Injuries, losses, or damages that occur during a traffic accident are excluded from this scheme unless the injury or damage was the result of an offense under the Theft Act (1968). If the injuries result from a violent crime, the victim can apply to the Criminal Injuries Compensation Board, which may award compensation from public funds. A person convicted of a theft also may be ordered to make restitution to the victim. Finally, the court may order the forfeiture of an offender’s property if the offender is sentenced to prison for more than two years and the property was used to commit or assist in the commission of any offense. If no other party has claimed a right to the property in question, the property is disposed of by police.

Following conviction and imposition of a sentence the defendant may appeal the case to the Criminal Division of the Court of Appeal, which handles such proceedings from trials on indictment. The defendant must file the appeal within 28 days of the conviction. The prosecution in a criminal case cannot appeal. Thus, the Criminal Division exists solely for the benefit of the convicted offender.

If the appeal involves a question of law, the person has a right to appeal. Only a small number of cases are appealed on such grounds. Most appeals involve questions of fact (or a mixture of fact and law), rejections of evidence at trial, or sentences imposed. In these cases, the court must grant leave to hear the case. Only one judge from the court examines the issue and determines the granting of leave for the whole court. Generally, if the judge rejects the case, the proceedings stop. If the judge grants leave, the matter comes before a panel of three judges of the court. Only oral arguments are heard; any written material is usually reviewed after the hearing. Per curiam decisions are handed down in criminal cases.

In comparison to appeals in the United States, English appeals are handled quickly because they do not require lengthy written opinions. The Court of Appeal can dismiss an appeal, uphold the lower court’s decision, quash the conviction, or reverse and remand the case back to the trial court with its instructions. In appeals involving the sentence, the court may reduce the sentence but cannot increase its severity.

84 England

F O S T E R , C E D R I C 1 6 9 2 T S

Both the defense and the prosecution may appeal to the Supreme Court. The court hears only a limited number of appeals, and these are controlled by the court and the Court of Appeal. Generally, a dissatisfied defendant in the Court of Appeal must seek permission from that court to appeal to the Supreme Court. If the court grants approval, the defendant can proceed. If the court denies the request, the defendant can still petition the court through an application for leave. This is similar to the certiorari proceedings of the U.S. Supreme Court. This latter approach is rare, because the court entertains only those cases that are of significant public interest.

Once a case reaches the court, the President of the Supreme Court normally assigns the issue to five justices. Only oral arguments are presented by counsel; written briefs are not filed. A simple majority determines the outcome. Justices may deliver any of the judgments that are available to the Court of Appeal or may remit the case to the Court of Appeal.

Summary Proceeding

Trial by jury remains one of the most significant contributions that the English have made to the evolution of legal procedure. Today, however, more than 90 percent of the criminal cases heard in England are handled at a summary proceeding, which is a trial in a magistrates’ court without a jury. Either one district judge or three lay magistrates would sit to hear a case in a magistrates’ court. The criminal jurisdiction of a magistrates’ court consists of indictable offenses that also may be tried summarily, “hybrid” offenses that are triable either on indictment or summons, and offenses that can only be tried summarily.

A summary trial must be held in open court. The trial is based upon information that has been presented to the court by the prosecution, consisting of the offense, the facts of the case, and the offender’s statement. Most summary offenses are initiated by a summons directing the accused to appear before a specific magistrates’ court at a given date and time. Some summary offenses, like loitering or vagrancy, are initiated by an arrest without a warrant. Throughout proceedings that are based on a summons, the accused is not held in custody. The accused is deprived of liberty only after being convicted and sentenced to a period of incarceration.

It is significant to point out that the Magistrates’ Courts Act (1957) permits the accused who has been sent a summons to plead guilty without attending court. In such a case, the offender would mail in a plea of guilty, the clerk of the court would inform the prosecutor, and the court would proceed to dispose of the case. The court does not have to accept the plea. If the court does accept it, the accused has to appear in court for sentence.

The first stage of a summary proceeding involves reading the information and hearing the accused’s plea. The accused, as a general rule, does not have to be present at any stage in a summary trial. If the accused is absent, the court proceeds as though there were a plea of not guilty. If the accused is present, he or she is permitted to plead in open court. Pleas of guilty are followed by an examination by the magistrate to assure the court that the offender understands the consequences of the plea. Once satisfied, the magistrate imposes the sentence. If the accused pleads not guilty, the trial proceeds to the next stage.

England 85

F O S T E R , C E D R I C 1 6 9 2 T S

The second stage of a summary proceeding is the oral presentation of the case by both sides in court. The procedure is similar to that of a trial on indictment but is not as formal. The procedure is as follows:

1. Although it is not necessary to state a case, the prosecution may make an opening statement.

2. The prosecution presents the evidence and then witnesses are examined, cross- examined, and (if necessary) reexamined.

3. The accused or the accused’s counsel may make an opening statement. 4. The accused may make an unsworn statement. 5. Evidence for the accused is presented; if the accused is to give sworn testimony, he or

she must do so before other witnesses are called. Witnesses are examined, cross- examined, and (if necessary) reexamined.

6. The prosecution addresses the court. 7. Finally, the defense counsel addresses the court.

Throughout the trial, the magistrate may refuse to accept inadmissible evidence, may ask questions of the witnesses, and may call witnesses to the stand. Usually, the clerk of the court will examine the witnesses for the magistrate. Guidelines have been established to determine when this is proper: to clarify ambiguous testimony, to question an incompetent person, or to assure that the interests of justice are served. It is not proper to question a witness if the accused is legally represented or is competent to conduct his or her own examination.

The third stage of the proceedings is the court’s decision on the guilt or innocence of the accused. If the magistrates are not in agreement, they may retire to discuss the matter. Difficulties that arise because of questions of law (or law and fact) are referred to the clerk of the court, who is supposed to be a trained solicitor or barrister. The authority of the clerk in such matters is particularly acute in light of the fact that most magistrates are laypersons. Decisions in these cases are reached by a simple majority. If there is a tie vote that cannot be broken by a compromise, the magistrates must call for a rehearing before a court composed of different magistrates.

The fourth and final stage of a summary hearing is the determination of a sentence. Sentences imposed in a magistrates’ court are essentially the same as those imposed in a Crown court, but the degree of punishment is considerably less severe. For example, the length of a prison sentence is dependent on the nature of the offense, but the maximum sentence for a summary offense usually does not exceed six months. The noncustodial sanctions and miscellaneous orders that are available to Crown court judges and mentioned earlier are also applicable in the magistrates’ courts.

Appellate review is also available for the parties of a case heard in a magistrates’ court. The right to appeal a case to a Crown court is limited to the defendant. A defendant who pleaded guilty may appeal to the court against the sentence; a defendant who pleaded not guilty may appeal against the conviction or the sentence. If the appeal is against the sentence, the court hears only the evidence relevant to the sentence. If the appeal is against the conviction, the appeal takes the form of a rehearing of the case.

86 England

F O S T E R , C E D R I C 1 6 9 2 T S

The appellate proceedings follow the pattern of a summary trial, though less formal. Witnesses may be recalled and new evidence introduced. When hearing an appeal, the Crown court sits without a jury. The appeal is heard by a circuit judge or a recorder and two magistrates. Judgments are reached by a simple majority. The court has the power to confirm, reverse, or vary the decision of the magistrates’ court.

Both parties may appeal a case from a magistrates’ court to the Queen’s Bench Division of the High Court if the dispute involves a question of law. At least two Queen’s Bench judges (usually three) hear the appeal. The Lord Chief Justice presides over the case, which consists of legal arguments presented by counsel on both sides. The court has the power to confirm, reverse, or vary the decision of the magistrates’ court. Remissions are granted when the magistrates’ court has made an error that requires a hearing or rehearing of authority.

Finally, both parties may appeal to the Supreme Court if the issue involves a point of law of general public importance. An application must first be registered with the Queen’s Bench Division to certify the point of law. If approved, the procedure for appeal is the same as an appeal from a case tried on indictment. If the court refuses to approve the request, the appellant may petition the Supreme Court directly. Again, the procedure would be the same as an appeal from a case tried on indictment.

Critical Issues

Plea Bargaining

The procedure known as plea bargaining has received some notable attention. The significance of this interest lies in the fact that the British had assumed that plea bargaining did not take place in England, at least not on the scale it is utilized in the United States. Although critics admit that this is true, inducements to plead guilty are as formidable in England as they are in the United States. For example, in the United States, about 90 percent of the defendants plead guilty before a trial. In England, 60 percent of the defendants in Crown court cases plead guilty, while 94 percent of the defendants in magistrates’ courts do the same.

Moreover, plea bargaining in the United States is considered an acceptable, even necessary, part of the system—centering on the prosecutor’s willingness and promise to recommend a reduced sentence. Such prosecutorial conduct had been considered unethical in England. Thus, plea bargaining was viewed as being more within the discretionary province of the courts than of the prosecutor, and the Criminal Division of the Court of Appeal had placed restrictions on the practice.

The Court of Appeal established four principles to govern the plea bargaining process. These principles, expressed in the case R. v. Turner (1970), have been the focus of some criticism. They are:

1. Counsel must be completely free to do what is his duty, namely, to give the accused the best advice he can, and if needed, advise in strong terms. This will often include advice that a plea of guilty, showing an element of remorse, is a mitigating factor which

England 87

F O S T E R , C E D R I C 1 6 9 2 T S

may well enable the court to give a lesser sentence than would otherwise be the case. Counsel of course will emphasize that the accused must not plead guilty unless he has committed the acts constituting the offense charged.

2. The accused, having considered counsel’s advice, must have a complete freedom of choice whether to plead guilty or not guilty.

3. There must be freedom of access between counsel and judge. Any discussion, however, which takes place must be between the judge and both counsel for the defense and counsel for the prosecution. If a solicitor representing the accused is in court he should be allowed to attend the discussion if he so desires.

4. The judge should . . . never indicate the sentence which he is minded to impose. A statement that, on a plea of guilty, he would impose one sentence but that, on a conviction following a plea of not guilty, he would impose a severer sentence is one which should never be made. This could be taken to be undue pressure on the accused, thus depriving him of that complete freedom of choice which is essential.

Criticism of the Turner decision centered on two procedural issues. First, will a plea of guilty serve as an independent element in determining the sentence? Rule 4 suggests that the judge should not imply to either counsel what he or she intends to do, but Rule 1 makes it explicit that counsel for the accused may advise in strong terms that a plea may lead to a lesser sentence. At issue is why counsel would encourage a client to plead guilty in the hope that a lesser sentence is forthcoming, unless the idea is transmitted in some fashion by the judge. Second, Rule 3 emphasizes the key role the judge must play in the bargaining process. It is alleged that, in the past, informal discussion went on between the police, counsel for both sides, and the accused. A bargain could be struck in these preliminary informal discussions before approaching the judge. Rule 3 implies that this should not occur because it might hamper the efficiency of the process and lead to unnecessary delays.

In studying the outcome of jury trials in the Birmingham Crown court, it was discovered that many of the cases that were earmarked for a jury trial were abruptly ending in pleas of guilty (Baldwin and McConville, 1978). The frequency of this occurrence piqued the authors’ curiosity and led to interviews with 121 defendants who had pleaded guilty out of a total sample of 150. What Baldwin and McConville attempted to do with the data was to dismiss, once and for all, the myth that strong inducements to plea bargain are not a significant part of the pretrial process in England. They concluded that such inducements come from a number of sources. First, the British prosecutors’ practice of charging the defendant with all possible counts in the indictment helps produce a climate that is very conducive to bargaining. Second, defense counsel’s assumption that judges almost automatically reward pleas of guilty with reduced sentences is communicated to the defendant. Thus, the defendant perceives the judge in a different light even if the judge is not directly putting pressure on the accused to plead guilty. Third, because of the nature of the prosecution’s case, defense counsel usually puts the greatest pressure on a defendant to plead guilty. Frequently, the most damaging evidence consists of the verbal statements attributed to the accused by police or the written statements signed by the defendant following a police interrogation. Although the defendant often claims that these statements are untrue or exaggerated by police, there is simply no way of determining the efficacy of

88 England

F O S T E R , C E D R I C 1 6 9 2 T S

the defendant’s charge. The defense counsel could challenge these statements in court, but in most cases the judge believes the police rather than the defendant. This last concern is likely to change with the introduction of tape recordings of police interviews.

Baldwin and McConville did not offer a solution to the problem of plea bargaining, but they noted that it does enhance the bureaucratic efficiency of the administration of criminal justice. They contended, however—as some civil libertarians have in the United States—that the defendant’s freedom of choice is compromised, that some innocent people may be induced to plead guilty, and that it leads to inequitable treatment. Thus, there is a serious question as to whether plea bargaining in its present form serves the interests of justice as well as it does the system’s efficiency.

In the early 1990s, the Royal Commission on Criminal Justice found that a majority of barristers and judges favored plea discussions between the judge and counsel. In his Review of Criminal Courts of England and Wales (2001), Justice Auld called for a more transparent approach to plea bargaining. Some improvement has resulted from the Criminal Justice Act (2003), as section 144 states that a court must take into account:

a. The stage in the proceedings for the offence at which the offender indicated his intention to plead guilty, and

b. The circumstances in which this indication was given.

Victim Assistance

Concern for assistance to victims of crime has become an important issue on the agendas of most criminal justice systems in the industrialized world. The first victim support scheme in England was established in Bristol in 1974. Today, there are more than 250 support groups established throughout the country. Much of this victim support work is provided by volunteers. The various schemes are concerned not only with aiding the victims of crime and their family members but also with advising witnesses of crime. The schemes also have been active advocates for improving the system of compensation for criminal injuries.

There is also a Victims Commissioner for England and Wales, who is neither a politician nor a civil servant, but reports to the minister of justice. The responsibilities of the Victims Commissioner were explained in the Domestic Violence, Crime and Victims Act (2004), and they include: promoting the interests of victims and witnesses, encouraging good practices among the various criminal justice agencies in the treatment of victims and witnesses, and monitoring the operation of the Victims Code.

The Victims Code explains the types of services victims should expect from various criminal justice agencies. This would include providing information to victims of crime about the progress of their case, criminal injuries compensation, victim support, and crime prevention. The Witness Charter is specifically designed for witnesses of crimes and includes advice about the court and its personnel, giving evidence, claiming expenses, and how to ask for assistance. The victim support schemes also have been influential in getting legislation passed with regard to criminal injuries compensation, enhancing the authority of the courts with regard to compensation, protecting children who give evidence by

England 89

F O S T E R , C E D R I C 1 6 9 2 T S

allowing testimony through closed-circuit television, and allowing the acceptance of children’s testimony without corroboration. Finally, they also have been instrumental in increasing the funding for victim support schemes.

While a good deal of work to assist victims has been carried out by volunteer groups, it is important to point out that various components of the criminal justice system are making significant efforts to aid victims. Some of the efforts by the police were outlined in the section of this chapter devoted to police. In addition, the government has established a number of magistrates’ courts that specialize in domestic violence cases. These courts are designed to bring the various components of the justice system—police, Crown prosecutors, magistrates, probation service, and victim support services—together to facilitate moving these cases through the system in a more efficient manner. While the rate of convictions of domestic violence cases has increased in recent years irrespective of the type of court, the conviction rate in domestic violence courts has reached 71 percent, according to the Home Office. Presently, there are 98 courts that specialize in domestic violence cases.

In the autumn of 2014, the police and crime commissioners were authorized to coordinate victim services in their constabularies. Finally, in her 2013–2014 report to the minister of justice, the Victims Commissioner indicated that there is now “a greater awareness of crimes, such as, human trafficking, hate crime, forced marriage, modern day slavery, and female genital mutilation.” As such, people in the victim assistance movement need to be aware of the expanding needs of society’s victims.

CORRECTIONS The importance of the juxtaposition of penal theory and the architectural design of correctional institutions is a notion that emerged in England during the late eighteenth century. At roughly the same time, police practitioners began in earnest to support improvements in law enforcement. People were questioning some of the basic assumptions behind the administration of justice, just as they were questioning many of the established political, religious, scientific, and social assumptions on which society was based.

Many of these basic tenets had been introduced originally during the Middle Ages, a period that some have referred to as the Age of Faith. The eighteenth century was a markedly different period, known by contemporaries as the Enlightenment, the Age of Reason— espousing a belief that the individual was a free, rational, and equal member of society. Such notions were obviously at cross-purposes with established custom and authority.

The eighteenth century serves as a useful benchmark for the emergence of the modern development of English corrections. It was during this time that people consciously and rationally attempted to study the purposes of and the conditions for incarcerating law violators. In order to appreciate the contributions of Enlightenment thinkers, it is useful to examine the state of corrections at earlier points in time. Anglo-Saxon dooms and medieval statutes enable us to piece together that history.

The stocks were probably the earliest form of imprisonment, though they were not suited for people who were sentenced to an extended period of custody. It is assumed that as early as the eighth century some type of prison existed, because owners of large tracts of land

90 England

F O S T E R , C E D R I C 1 6 9 2 T S

A successful candidate will spend 31 months in preparation to join the ranks of the judiciary. The first 11 months are spent in class at the school and participating in various public- and private-sector internships. These placements could include working with various correctional facilities, the National Police, the National Gendarmerie, or a psychiatric hospital. At the school, lectures and seminars are devoted to a wide range of legal topics and contemporary problems that are designed to prepare the candidates to function as members of the judiciary. The next 14 months are devoted to working with judges in various courts, in addition to time spent in the office of an avocat.

Candidates are graded on course work in the training classes and on the practical work out in the field. They must also pass a final series of oral and written examinations before a jury. The examining jury is composed of judges from various courts, a member of the Ministry of Justice, law professors, and a high-ranking government official. The jury can decide to pass, fail, or impose an additional year of study on the candidate. Those who fail usually enter the nonjudicial career of administration or research for the courts. Once the candidates successfully pass the examination, they spend the final six months of their training in their designated career field, either assisting a judge in a court of minor juris - diction or working in an office of a procurator. Upon the completion of this six-month period of training, the person would begin his or her career as either a judge or a procurator. Promotions would occur through the Ministry of Justice with the advice of the High Council of the Judiciary.

LAW A distinction was made between civil law and criminal law when discussing the origins of English criminal law and procedure. The use of the term “civil law” in the common law context relates to litigation between private parties, such as issues involving torts, property, and contracts. Criminal law is concerned with a public wrong, a crime in which the defendant has transgressed the public order of society.

In this chapter, the term “civil law” is used to describe a legal system that is dis - tinguishable from the common law system. The civil law system evolved on the continent of Europe and was influenced in its development initially by Roman law and the canon law of the Roman Catholic Church. It was influenced further by local custom. This civil law system is also referred to as the Romano-Germanic legal family.

France represents one of many European countries that adopted the civil law system. In fact, France was instrumental in establishing the Romano-Germanic family as a distinct legal system. Just as countries associated with the common law family have unique legal characteristics that distinguish them from other members of the family, so do nations within the Romano-Germanic family. Like the common law, Romano-Germanic law is found throughout the world in countries that were explored or colonized by Europeans. Until the advent of socialist law, the common law and the civil law were the most influential legal systems in the world, for they dominated the method of legal analysis.

Within its legal system, France has divided law into two general categories: public law and private law. The criminal law is part of public law, along with administrative law and

174 France

F O S T E R , C E D R I C 1 6 9 2 T S

constitutional law. The law governing issues involving two private parties is found under the general category of private law.

It was already pointed out earlier in the chapter that France lacked a powerful monarchy during the medieval period. This fact was instrumental in the development of law in the country. Without a dominant centralized administration, the various regions of the country were left to their own indigenous customs for the resolution of legal disputes. In the south of France, customs borrowed extensively from Roman law, a written law. In the northern provinces, the tendency was for local oral tradition or custom to dominate the formation of law. Legal principles from canon law were another distinct and important legal source. Finally, another source for resolving judicial disputes emerged upon the creation of provincial parlements. Because each parlement was independent, the resolution of the same type of dispute often differed from province to province. Thus, throughout the medieval period, legal decisions did not reflect a uniform standard.

Prior to the twelfth century, the French employed accusatory procedures similar to those used in England. The injured party had to make an oral complaint in court, and the accused had to respond. Oath-helpers were used to support the positions of the victim and the accused. At first, monetary compensation was the dominant method of resolving disputes. Forms of corporal punishment or fines, however, were gradually introduced in the seigneurial courts.

The ordeals (explained in Chapter 1 on England) were also employed in France until they were banned by the Fourth Lateran Council in 1215. With the demise of the ordeals, the English adopted a new procedure that included the jury system. The French adopted a different approach. This new method had a profound impact on the future evolution of criminal procedure in France and led to the most notable distinction between the accusatory procedures established in the common law and the inquisitorial procedures of the Romano- Germanic law.

A primary source of France’s new procedural system was the canon law of the Roman Catholic Church. Originally, canon law employed an accusatory procedure similar to that found in Roman law and Germanic custom. As early as the ninth century, however, the church initiated a change in procedure. If public opinion accused a person of committing a crime and the accusation was substantiated by a judge, the accused was compelled to prove his or her innocence. An accused person who refused or failed to prove his or her innocence was condemned. This early method of inquisition had not been a part of church custom; rather, it was established through church legislation that often cited scripture as its justification. The inquisitorial procedures of the church were to achieve their most famous notoriety when the inquisition of heretics was undertaken in the thirteenth century. This procedure was to remain quite popular within the ecclesiastical community until the end of the fifteenth century.

Modifications in French accusatory procedure first appeared in the royal courts in the thirteenth century. What evolved was the establishment of two kinds of procedures. One was considered ordinary and accusatory in nature. The other was extraordinary, largely inquisitorial in style, and designed for use in more important and serious cases. The new inquisitorial style called for witnesses to appear before a court in a closed session.

France 175

F O S T E R , C E D R I C 1 6 9 2 T S

Judges acted as inquirers and collected witness testimony through an interrogation process that excluded the parties to the suit. The testimony was taken down in writing, and this marked the beginning of reliance upon written evidence in the form of a deposition. Once the inquisition was completed, the parties to the suit were brought together in open court to explain their positions. At that time, the accused had access to the written depositions and was allowed to introduce witnesses on his or her behalf.

By this time, the use of torture also was accepted as a mode of proof in the inquisitorial procedure. It has been suggested that the use of torture had its roots in Roman law. The Romans were apparently of the opinion that slaves only told the truth when subjected to pain. In ancient times, therefore, torture had become an important and universally acceptable method in cases involving people who were not free (Esmein, 1968). By the medieval period, it had become an acceptable mode of proof, irrespective of the accused’s social standing.

From the thirteenth through the early sixteenth centuries, the French employed both accusatory and inquisitorial procedures. In 1539, however, King Francis I (1494–1547) issued the Ordinance of Villers-Cotterets, which called for the standardization and utilization of inquisitorial methods in all French courts. What follows are the major characteristics of that procedure. In every criminal case, the king’s prosecutor became a party to the suit. Thus, the notion that trials were duels between private parties, which was developed under the accusatory scheme, ceased to exist. The state’s interest, through the prosecutor, was recognized and aired in a criminal trial.

Two types of magistrates were used during the course of a criminal investigation and trial. One magistrate, called “the criminal judge,” was responsible for collecting evidence and examining all parties in a case. The accused, when interrogated by the judge in private, was sworn to tell the truth but was not told of the accusation. Moreover, all interrogations of the accused, victim, and witnesses were reduced to a written transcript that became the principal source of evidence at the trial. The other kind of magistrate sat as part of a group to adjudicate the case. It was at this stage that the trial became public, and judges determined the accused’s guilt or innocence. It was also at this time that the accused was confronted with the accusation and witnesses against him or her. Although a number of changes have been made since the sixteenth century, the Ordinance of Villers-Cotterets explains the basic characteristics of the inquisitorial procedure.

Today, much of the inquisitorial process remains closed to the public. In the more serious cases, judges retain an important role in the investigative process and the collection of evidence, of which written documentation is highly prized and considered central to a case. Once the case is bound over for trial, aspects of the adversarial process become apparent. The trial, for the most part, is open to the public, and the prosecution and defense are permitted to offer oral arguments. Nevertheless, the most important element of the trial is the written record of the pretrial investigation.

Finally, brief mention should be made of the codification movement. As was indicated in the previous section, the discovery of the law books of the Byzantine Emperor Justinian prompted a renaissance in legal studies during the twelfth century. These books were originally compiled around the year 534 and consisted of four parts. The Code was a collection of ordinances approved by Roman emperors before Justinian’s time. The Novels

176 France

F O S T E R , C E D R I C 1 6 9 2 T S

contained the laws passed during Justinian’s reign. The Digest was a collection of legal opinions by Roman jurists on a host of legal issues. The Institutes was a handbook designed to introduce students to the study of law. Collectively, these books are referred to as Justinian’s Code or the Corpus Juris Civilis. Though these books do not constitute a code in the sense that the term has been used since the sixteenth century, the codification move - ment does trace its early origins to the discovery of Justinian’s Code.

Throughout the sixteenth, seventeenth, and eighteenth centuries, attempts were made to establish a single legal code in France. The goal was to create some general statutes that would be enforceable throughout the country. This met with a moderate degree of success, but regional codes remained in force. It has been suggested that the evolution of the codification movement succeeded in establishing a number of characteristics that helped prepare the country for Napoleon’s successful attempt at codification in the late eighteenth century (Maillet, 1969–1970).

The codification movement attempted to establish a unified law and in the process solve the problem of social inequality. Under the ancient régime, different classes of people were subject to special rules that were based on social class. This feature of the ancient régime was one of the causes of the French Revolution. Codification attempted to eliminate that feature by establishing a single codified system of laws.

The codification movement also explained how the law would be administered. For example, because French jurists were trained in Roman law, they borrowed some of the substantive features of that system during their attempts at codification. In addition, judges, as officers of the king, were expected to interpret the law rather than to create new law or modify existing law in some fashion. Thus, judge-made law or case law had no place in the emerging French legal system.

As one might expect, the Revolution of 1789 totally disrupted French society. With the country in a state of disarray, it was imperative that the institutions of the ancient régime be transformed to meet the needs of the new social order—needs built on the social and political principles of the Enlightenment. The establishment of a new system for the administration of justice was central to this process. During the reign of Napoleon, a commission was created to codify the law. The Civil Code was completed in 1804, followed by the Code of Civil Procedure in 1807, the Code of Commerce in 1808, the Code of Criminal Procedure in 1808, and the Penal Code of 1810. These codes either have been completely revised since that time or have had parts superseded by statutes passed in parliament.

Criminal Law

The French criminal justice system is regulated by two principal legislative enactments: the Code of Criminal Procedure, which was completely revised in 1959, and the new Penal Code, which became law in 1994 and replaced the 1810 version that had been modified over the years. The Code of Criminal Procedure explains the methods of investigating and adjudicating a person charged with violating the criminal law. The Penal Code identifies the various types of offenses and the appropriate sanctions.

France 177

F O S T E R , C E D R I C 1 6 9 2 T S

The most important source of criminal law is the Penal Code. The new code is divided into five books or parts. In Book I, general provisions in the penal law explain criminal liability and responsibility, lengths of sentences, and kinds of punishments. Book II focuses on crimes (felonies) and délits (serious misdemeanors) against the person. These would consist of offenses committed against an individual but also include crimes against human rights. Book III addresses crimes and délits against property. Book IV is devoted to crimes and délits against the nation, the government, and the public order. Book V addresses other crimes and délits that are not associated with the categories already mentioned, such as crimes against the environment.

The French have divided criminal offenses into three categories: crimes, délits, and contraventions. This classification scheme not only makes distinctions between the gravity of the offense and the subsequent sanctions, but it also signifies which court in the hierarchy would hear the case. The French also include in the preliminary provisions of the code the principle that the law has no retroactive application; that is, an offender cannot be punished if the action was not illegal at the time it was committed. As was the case with the previous code, sections of it could be superseded in the future by statutes passed in parliament.

Criminal Procedure

It should be pointed out that for several years now there have been questions raised and a growing criticism of some basic criminal procedural issues. Specific concern has been directed at whether France was in compliance with the European Convention on Human Rights. Much of this criticism focused on matters of police custody and specifically whether France was in compliance with Article 5(2) of the Convention, which states: “Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.” In addition, Article 6 of the Convention, which deals with rights to defend oneself of a criminal charge, has also received a good deal of attention from the critics of the status quo.

As was mentioned earlier, the 1993 report of the Criminal Justice and Human Rights Commission that was chaired by Professor Mireille Delmas-Marty proposed several significant reforms. One involved abolishing the position of investigating judge, because only about 5 percent of the criminal cases are supervised by such a judge. Of course, these cases are among the most serious and complicated. It was recommended that procurators assume the responsibility for all investigations. While this recommendation was not acted upon, in recent years there has been a renewed interest by the executive branch of government to eliminate the position of investigative magistrate and hand over that responsibility to procurators. There continues to be strong opposition to this idea, especially from magistrates.

Another reform suggested that a defendant be permitted to have access to a lawyer during the garde à vue (police custody). The rationale for this recommendation was to assure that a defendant was aware of his or her rights, in particular, the right to silence. While this right of access was approved in 1994, questions have been raised as to whether indigent defendants will actually see a lawyer. Finally, the commission recommended that the trial

178 France

F O S T E R , C E D R I C 1 6 9 2 T S

judge refrain from questioning the accused and witnesses during a trial. Instead, the judge should assume the role of arbitrator. Such a recommendation would transform the existing criminal procedure from an inquisitorial to an accusatorial method. This recommendation was rejected. Some have suggested the change in the political climate contributed to the limited success of the Commission’s report (Trouille, 1994).

The issues of how a defendant was treated during the garde à vue and the number of people held on remand awaiting trial was raised in the 1997 report of the Justice Commission chaired by Pierre Truche, the president of the Court of Cassation. At issue was the need to protect the presumption of innocence. With regard to the garde à vue, the Truche Report recommended that a suspect have the right to see a lawyer at the beginning of the police custody. It was also suggested that police questioning should be recorded. In reference to the large number of people held on remand, the Truche Report recommended that custody decisions should be made by a panel of three judges rather than the investigating judge. While the government has implemented some reforms, it has been reluctant to adopt all the recommendations, especially in light of the public’s concern over crime and order issues (Elliott and Vernon, 2000).

In 2010, the Constitutional Council concluded that sections of the Code of Criminal Procedure that dealt with the garde à vue were unconstitutional, because it limited or prevented a defense attorney from being present during an interrogation and limited the attorney’s access to his or her client’s file. The Council called on the government to correct this problem. In late 2010, the Court of Cassation joined in this debate when it ruled in three decisions that some aspects of the garde à vue violated Article 6, the right to a fair trial, of the European Convention on Human Rights. The specific issues mentioned by the Court involved restrictions on the right to be assisted by an attorney and the right to be notified to remain silent. In May 2011, the French Parliament adopted legislation that is designed to address the aforementioned concerns. These are explained in greater detail in the next section.

This examination of France’s criminal procedure is divided into two categories. The first includes the preliminary investigation, which involves an examination of police powers and other pertinent pretrial procedural issues. The second category is concerned with the trial process, which consists of the main hearing and appellate review procedures. France’s Code of Criminal Procedure is the legal document that essentially explains the manner in which these procedures are executed.

It should be noted that even before the Delmas-Marty and Truche reports were issued, there were proponents who had been recommending changes to the Code of Criminal Procedure. One such recommendation was to offer some basic guiding principles at the beginning of the Code. In 2000, a preliminary article was added to the Code that provided these principles:

(i) Criminal procedure should be fair and adversarial and preserve a balance between the rights of the parties. It should guarantee a separation between those authorities responsible for prosecuting and those responsible for judging. Persons who find themselves in a similar situation and prosecuted for the same offences should be judged according to the same rules.

France 179

F O S T E R , C E D R I C 1 6 9 2 T S

(ii) The judicial authority ensures that victims are informed and that their rights are respected throughout any criminal process.

(iii) Every person suspected or prosecuted is presumed innocent as long as his guilt has not been established. Attacks on his presumption of innocence are proscribed, compensated and punished in the circumstances laid down by statute. He has the right to be informed of charges brought against him and to be legally defended. The coercive measures to which such a person may be subjected are taken by or under the effective control of judicial authority. They should be strictly limited to the needs of the process, proportionate to the gravity of the offence charged and not such as to infringe human dignity. The accusation to which such a person is subjected should be brought to final judgment within a reasonable time. Every convicted person has the right to have his conviction examined by a second tribunal.

It is very important to clarify one word that is found in the first principle. The word is “adversarial.” Adversarial is frequently associated with the procedures of the common law legal family, and it is often contrasted with the inquisitorial procedure that is associated with the Romano-Germanic legal family, of which France is a member. In the French context, “adversarial” means something different from the common law usage. It is meant to convey that all parties in a case are accorded the same rights in the procedural process. In particular, it is designed to assure that the defense will have an opportunity to review all the evidence and be made aware of the case against the accused. This is designed to afford the accused an opportunity to answer the charges against him or her in a timely and thorough manner (Hodgson, 2005; Spencer, in Delmas-Marty and Spencer, 2002).

Preliminary Investigations

Following the commission of an offense, a preliminary investigation is undertaken to determine who committed the act or who is reasonably suspected of involvement in the offense. According to Article 11, “[p]roceedings in the course of inquiry and investigation shall be secret, unless otherwise provided by law and without prejudice to the rights of the defense.” The goal is to acquire an independent investigation of the facts in a case by an officer who impartially examines all aspects of the case.

During the early stages of an investigation, there was a concern regarding bias toward the person being questioned. As mentioned earlier, in 2010 both the Constitutional Council and the Court of Cassation raised concerns about the manner in which people were held by police during the initial questioning (garde à vue). To illustrate, they only needed to be told that they were assisting with a police investigation. Police did not have to provide a probable cause explanation. The person could be held for 24 hours without being formally charged, and this period of custody could be extended to 48 hours with the permission of a procurator. Although a person had a right to remain silent, there was no requirement that they be informed of this right. Moreover, a person did not have access to an avocat for the initial 20 hours of a garde à vue, and when they did, the meeting was limited to 30 minutes.

180 France

F O S T E R , C E D R I C 1 6 9 2 T S

As a result of the legislation passed in 2011, detailed guidelines provide greater clarity for procedures associated with police custody. First, there must be probable cause to suspect that a person committed or attempted to commit a crime or délit that is punishable by imprisonment before placing them in custody. Second, when a person is placed in custody, he or she must be informed of the following: the length of the custody and any possible renewals in the length of the custody, the nature and presumed date of the offense in question, the right to notify a relative or employer, the right to be examined by a physician, the right of assistance by an attorney, and the right to remain silent. Third, the suspect must be brought before a procurator to enable that official to determine the course of the investigation. Fourth, the rationale for the custody must involve one or more of the following: to preserve evidence, to prevent tampering with the victim or witnesses, to prevent communications between suspects and accomplices, and to terminate the crime or criminal enterprise or a repetition of the crime or enterprise.

Fifth, the overall supervision of the police custody ultimately resides with the procurator. Sixth, the period of custody cannot exceed 24 hours, but it can be extended an additional 24 hours with the approval of the procurator. The grounds for an extension are that the offense under investigation includes a term of imprisonment of at least one year or that the continued custody will safeguard concerns listed in point four mentioned earlier. Seventh, when a person is in custody, the first interrogation must be delayed for up to two hours following the request for the assistance of an avocat for the suspect. Under some circumstances, the procurator or a liberty and detention judge (whose role is explained later) can authorize a delay in the access to the avocat for up to 12 hours. Granting such a delay would be associated with circumstances pertinent to the ongoing investigation by the authorities. Moreover, the presence of the avocat can be delayed by the liberty and detention judge at the request of the procurator for 24 hours if the offense in question could lead to a minimum five-year term of imprisonment. Finally, the avocat for the suspect has access to any statements made by the suspect and to any medical certificate prepared by a physician, if the suspect had requested an examination by a physician when he or she was placed in custody. The avocat is not provided a copy of these items but is permitted to take notes from these documents. The avocat is not allowed to review any other police evidence at this stage in the process. Only time will tell if these new guidelines satisfy the Constitutional Council and the Court of Cassation.

There were exceptions to the old rules, but the Constitutional Council and the Court of Cassation did not find them to be unconstitutional. For example, consultation with an avocat can be delayed even longer than those previously spelled out in certain circumstances. In cases alleging conspiracy, aggravated extortion, or organized crime, a person can be prohibited from seeing an avocat for 48 hours. In those cases involving serious drug trafficking or terrorism, the garde à vue can last 96 hours and the consultation with an avocat delayed for 72 hours. When a detention involves drug offenses or terrorism, a judge from a court of major jurisdiction must approve the extension. In all the other instances, a judicial hearing is not provided to determine the validity of a detention. Finally, the French do not have a legal equivalent of a writ of habeas corpus.

Once a person is charged with an offense, the procurator and avocat for the defendant are given access to the findings of the investigator. Moreover, both parties can suggest

France 181

F O S T E R , C E D R I C 1 6 9 2 T S

specific kinds of leads for further inquiry. The principal participants involved in a preliminary investigation are the judicial police (who are members of the criminal investigation branch of the French police), a procurator, and—if the offense is serious— an investigating judge selected from the ranks of judges rather than from procurators of the judiciary.

If the offense is classified as flagrant, all the previously mentioned parties could be involved in the investigation. Article 52 explains what constitutes a flagrant offense:

The felony or misdemeanor that is in the process of being committed or which has just been committed is a flagrant felony or flagrant misdemeanor. There is also a flagrant felony or misdemeanor when, in the period immediately following the act, the suspected person is pursued by clamor, or is found in possession of objects, or presents traces or indications, leading to the belief that he has participated in the felony or misdemeanor. Every crime or misdemeanor which, though not committed in the circumstances provided in the preceding paragraph, has been committed in a house the head of which asks the prosecuting attorney or an officer of the judicial police to establish it shall be assimilated to a flagrant felony or misdemeanor.

In cases of flagrant crimes or délits, the judicial police are expected to take immediate action. They are granted wide powers under the circumstances.

The first duty of the judicial police is to inform the procurator of the Republic. Within each of the 35 districts of the courts of appeal, there is a procurator of the Republic responsible for the prosecution of all cases in the district. The judicial police then are expected to go immediately to the scene of the offense. If the judicial police arrive before a procurator, they are empowered to do a number of things. For example, they preserve the crime scene, they search and seize all evidence and weapons pertinent to the case, and they interview and detain people at the crime scene who are knowledgeable about the case. These investigative responsibilities pass to the procurator upon arrival. Actually, the judicial police continue to perform these tasks, but under the procurator’s direction.

In cases that are considered serious (that is, all crimes and many flagrant délits), the procurator of the Republic could request that an independent investigation be undertaken by an investigating judge, a judge responsible for conducting a complete and impartial examination of the facts. An investigating judge is mandated to conduct an instruction (or information). The mission of an investigating judge is to establish the truth in the matter. Assisted by the judicial police, the judge interviews witnesses and follows leads believed to be beneficial to the resolution of the case. The judge will issue the necessary warrants to have places searched and suspects and evidence seized. Once certain who has committed the offense, an investigating judge will issue a mandate that, depending on the type of case, authorizes the police either to bring the suspect before the investigating judge or to have the suspect arrested and held.

The obvious advantage to this system is that there is only one investigation. This eliminates the need for the police, procurator, and avocat for the defense to make separate inquiries into the matter, because the findings of the official investigation are made available

182 France

F O S T E R , C E D R I C 1 6 9 2 T S

to all parties in the case. Moreover, the procurator and the avocat can request an investigating judge to follow leads that they believe are pertinent to the case. The investigating judge, whose role is to discover the truth in the matter, is usually amenable to these suggestions.

As mentioned earlier, it should be noted that the role of the investigating judge has been the subject of a good deal of controversy for some time. It has received the most media publicity of all the actors in the French criminal justice system. Some critics of the position allege that it provides too much power to a single individual. Given the complex nature of some criminal enterprises, questions have also been raised regarding the ability of some judges. In early 2009, however, the president of France, Nicholas Sarkozy, proposed to eliminate the role of investigating judge and to turn the investigative process over to procurators. Part of the argument in opposition to the proposed plan is that procurators are not independent from the executive branch of government, because they report to the Ministry of Justice. Moreover, this would give procurators more political power at a time when some of the cases being handled by investigating magistrates involve political cases. There have been cases, however, in which magistrates have made errors in their investigations, and in some instances there has been the perception that the investigating magistrate was either overwhelmed with the case or abused his or her powers. To address this problem and perception, teams of investigative magistrates, rather than a single magistrate, have been assigned to the more complex cases since 2008.

In the more serious cases, a second review of the charges is entertained by a chamber of instruction before the case is brought to trial. Chambers of instruction are a permanent feature of courts of appeal. A chamber of instruction is composed of three judges from the local court of appeal. During this phase of the investigation, a hearing is conducted by the chamber, and briefs are filed by the parties to the case. The chamber also reviews petitions (for example, regarding the accused’s detention) or appeals such as those involving the impropriety of the initial investigation. The chamber can order the appearance of the parties or evidence and can request a supplemental investigation if it deems it appropriate. An investigation can be directed by either a member of the chamber or an investigating judge. Following this hearing, the chamber can dismiss the case, issue an indictment that binds the accused over for trial, or reduce the charges to a misdemeanor violation and have the case heard in the appropriate court.

In cases that are not considered flagrant offenses, the judicial police have limited powers to conduct an investigation on their own or under the supervision of the procurator of the Republic. Thus, all other délits and contraventions are handled in this manner. The judicial police have the authority to question suspects and witnesses, to visit the scene if the owner agrees, and to decide if a person should be detained. In these less serious cases, a procurator directs the investigation.

Power to Detain and Arrest

There are three instances under French procedural rules in which persons can be deprived of their liberty prior to the determination of guilt. One is the garde à vue, a temporary detention measure. This power may be utilized by the judicial police when they are

France 183

F O S T E R , C E D R I C 1 6 9 2 T S

conducting their preliminary investigation. According to the rules, the police have the authority to call on or summon any person who is capable of aiding in an investigation. This could include a suspect or a witness. If a person is unwilling to cooperate, the procurator has the authority to order the person to appear before the police. As was mentioned earlier, the police have the power to detain a suspect for up to 24 hours. If the police desire to extend the detention for a longer period, they must request an extension from either a procurator or an investigating judge. These requests are usually handled by a procurator, and an extension can be awarded for an additional 24-hour period. A liberty and detention judge or a chamber of instruction has the authority to cancel a detention measure if it is deemed unlawful. The role of the liberty and detention judge will be explained shortly. People who are detained under this procedure can be given a medical examination either during or after the termination of the 24-hour period.

Another method of depriving persons of their liberty before guilt has been determined is through the execution of a warrant. In cases involving flagrant crimes or délits, a procurator can issue a warrant for a suspect’s arrest if an investigating judge has not yet received the case. An investigating judge can issue four kinds of warrants: appearance, attachment, confinement, or arrest. Article 122 states:

A warrant for appearance has as its object placing the accused under a duty to present himself before the judge on the date and at the hour indicated by the warrant. A warrant of attachment is the order given by the judge to the police immediately to produce the accused before him. A warrant for confinement is the order given by the judge to the supervisor of the jail to receive and to detain the accused. This warrant also permits searching for or transfer of the accused if he has been notified previously. A warrant of arrest is the order given to the police to seek out the accused and to produce him at the jail indicated in the warrant, where he shall be received and detained.

In cases involving a warrant for appearance, the investigating judge is expected to interrogate the person immediately. If this is not possible, the person can be held for 24 hours at most. A person held on a warrant for attachment also must appear before an investigating judge within 24 hours. Warrants for confinement are issued only after an investigating judge has already interrogated the suspect and the case begins to focus on a person who could be imprisoned for the offense if found guilty. Warrants for arrest require that the suspect be brought before an investigating judge for questioning within 48 hours of the time of the arrest.

The third method of depriving people of their liberty before trial is a result of the Security and Liberty Law of 1981. A procurator can request a judge of a court of major jurisdiction to restrict a defendant’s liberty if the person is charged with a délit that is punishable by up to five years’ imprisonment.

It should also be pointed out that the Security and Liberty Law gives the police the legal authority to require any person to identify themselves during the course of a criminal investigation or during a public order disturbance. A person without adequate identification may be brought to a police station and permitted to contact people who can assist in their identification. In such instances, the person can be held for up to six hours. A person refusing

184 France

F O S T E R , C E D R I C 1 6 9 2 T S

to offer identification has the right to have a procurator notified. Refusal to cooperate in the identification process is an offense punishable by a jail sentence of 10 days to three months and a fine (Pugh and Pugh, 1982).

Interrogations

The Code of Criminal Procedure makes a distinction between two kinds of interrogations: (1) the hearing of witnesses, and (2) interrogation and confrontations. In the hearing of witnesses, witnesses are placed under oath and examined separately by an investigating judge. The accused is not present at this proceeding. Witnesses who do not appear for questioning can be picked up by the police and fined. Witnesses who have declared knowledge of a crime or délit but refuse to answer questions posed by an investigating judge can be jailed for a period of at least 11 days but not more than one year. In addition, a fine also can be imposed in conjunction with a jail sentence.

Interrogations and confrontations involve the questioning of the accused and the civil party (or victim). The investigating judge must acquaint the parties with a number of rights. For example, an investigating judge must inform the accused of the offenses with which he or she is being charged and advise the accused of the right to remain silent and the right to an avocat for his or her defense. If the accused is willing to make a statement without counsel, the investigating judge is free to accept the information. The accused also must inform the investigating judge of his or her place of residence, whether he or she is being detained, and any change in residence. The civil party also has a right to be represented by counsel.

An accused individual who is being detained has a right to communicate with counsel. With the exception of counsel for the accused, an investigating judge can issue a prohibition that prevents the accused from communicating with other people. This right of prohibition lasts for 10 days and can be renewed only once for an additional 10-day period. The accused and victim cannot confront one another unless counsel is present or the right to have counsel present is waived. A procurator can assist an investigating judge in interrogating the accused or in hearing the victim. The procurator, counsel for the accused, and counsel for the victim can present only those questions that have been approved by the investigating judge. Even if the investigating judge rejects the question, it still appears in the official report.

Power to Search and Seize

The powers of search and seizure are also governed by the Code of Criminal Procedure. A search and seizure can occur either with or without a warrant. Searches and seizures that are considered legal without a warrant involve offenses labeled flagrant crimes. Following the commission of a flagrant crime, the judicial police are expected to notify a procurator before proceeding to the scene of the offense. Upon their arrival, the police are expected to secure the crime scene and to collect evidence. According to Article 56 of the Code, if the judicial police believe additional evidence is likely to be uncovered at the residence of a suspect, they are expected to conduct a search of the premises immediately.

France 185

F O S T E R , C E D R I C 1 6 9 2 T S

Moreover, procedures require that either the suspect or a representative be present during the search. If this is not possible, the judicial police may select two witnesses to observe the search. Finally, Article 59 states that “the absence of a demand made from the interior of a house or the exceptions provided by law searches and domicility visits may not be begun before six o’clock in the morning or after nine o’clock at night.”

These procedures are also followed in cases in which a flagrant délit has been committed and a suspect could be imprisoned if found guilty. Warrantless searches and seizures at any other location must have the written consent of the owners of the property. The police, however, are authorized to enter and search without a warrant under certain circumstances that have been established by specific statutes. These statutes deal with illegal gambling, immoral acts, and drug offenses.

According to Article 92, an investigating judge has the authority to “go anywhere in order there to effectuate all useful determinations or to conduct searches. He shall advise the prosecuting attorney, who may accompany him.” In searching the residence of an accused or another person, an investigating judge is expected to follow the rules that apply to the judicial police.

Searches and seizures also are undertaken with a warrant issued by an investigating judge. The judicial police conduct the search. Before the search starts, the police are expected to identify themselves and present the warrant to the occupant. Either the occupant, a designated representative, or two witnesses must be present during a search. The police may search an occupant and the premises and are permitted to seize any item believed to be related to the offense. While searches of a person are conducted to secure evidence, a frisk of a person is also permissible to ensure the safety of a police officer.

It is the responsibility of the chamber of instruction to review the manner in which evidence is collected. The chamber has the authority either to void the proceedings because of illegal actions taken by the authorities or to exclude from the trial evidence that was obtained in an illegal manner. The judicial police who conducted the illegal activities also can be subject to a number of sanctions including disciplinary procedures, temporary or permanent suspension from the ranks of the judicial police, penal sanctions, and civil proceedings.

Pretrial Detention and Supervision

In law, detaining a person before trial is considered an exceptional measure. When it is instituted, it must comply with the rules that are explained in Articles 144 and 145 of the Code of Criminal Procedure. Article 144 states:

Pretrial detention may only be ordered or extended if it is the only way:

1. to preserve material evidence or clues or to prevent either witnesses or victims being pressured, or fraudulent conspiracy between persons under judicial exam - ination and their accomplices;

2. to protect the person under judicial examination, to guarantee that he remains at the disposal of the law, to put an end to the offence or to prevent its renewal;

186 France

F O S T E R , C E D R I C 1 6 9 2 T S

3. to put an end to an exceptional and persistent disruption of public order caused by the seriousness of the offence, the circumstances in which it was committed, or the gravity of the harm that it has caused.

Prior to 2000, it was primarily the responsibility of the investigating judge to determine if a defendant involved in a serious offense should be released or held in custody pending trial. In certain cases, pretrial detention could also be determined by a judge of the court of major jurisdiction or by the chamber of instruction. In 2000, however, as part of the effort to reform various procedures, the French introduced a new person in the criminal proceedings: the liberty and detention judge. Like the investigating judge, the liberty and detention judge is a member of the magistrates who elected a career as a judge. Like the investigating judge, the liberty and detention judge is assigned a specialized responsibility in French criminal procedure. As the name implies, the judge is the person primarily responsible for determining if a person will be released or detained prior to the trial. In certain cases, a judge of the court of major jurisdiction or the chamber of instruction retains the authority to detain a defendant.

The liberty and detention judge makes this determination to release or detain by holding an adversarial hearing. At this hearing, the procurator, defendant, and the avocat for the defendant are given an opportunity to provide reasons and evidence as to why the defendant should be held or released. The judge must provide in writing the reasons for the decision, and the reasons must be based on the points mentioned earlier in Article 144 of the code— that is, preserve evidence, protect the person, or prevent public disorder.

Article 144–1 states: “Pre-trial detention may not exceed a reasonable length of time in respect of the seriousness of the charges brought against the person under judicial examination and of the complexity of the investigations necessary for the discovery of the truth.” The length of a detention is determined by the nature of the offense. If the defendant is accused of a délit, the detention cannot exceed four months unless the person has already been sentenced for committing a crime or sentenced to a term of more than a year.

If the defendant is accused of a crime, he or she cannot be held for more than a year, unless the liberty and detention judge elects to extend the period of detention an additional six months following an adversarial hearing. Periods of pretrial detention are further elaborated in Article 145–3 of the code:

The person under judicial examination may not be kept in custody for more than two years, where the applicable sentence is less than twenty years’ imprisonment, and for more than three years in all other cases. The time limits are extended to three and four years respectively where one of the elements of the offence has been committed outside the national territory. The time limit is also four years where the person is being prosecuted for one or more felonies mentioned in Books II and IV of the Criminal Code, or for drug trafficking, terrorism, living off immoral earnings, extortion of money or for a felony committed by an organized gang.

Obviously, if a defendant is released, conditions are frequently imposed that restrict the accused’s freedom of movement and spell out the obligations of the accused while at liberty.

France 187

F O S T E R , C E D R I C 1 6 9 2 T S

It has been suggested that bail is not used much in France (Ingraham, 1987). Application for bail can be made by the accused or the accused’s counsel at any time during a case. When bail is requested initially during an investigation into a serious offense, an investigating judge decides the matter. As the case proceeds during the pretrial phase, bail requests would transfer to the liberty and detention judge. Once bail is granted, the accused must inform the authorities of an established residence within the area of investigation.

Article 142 of the code explains how bail is secured and the methods by which it is either returned or forfeited, depending on the outcome of the trial. Before bail is granted, the judge can order the accused to furnish a security. A security is always in the form of money and is deposited with the clerk of the court. Moreover, the security is allotted for two purposes, and thus consists of two parts. Part of the security is designed to assure that the accused will appear at all stages of the trial. The other part is held in the event that costs are awarded to the civil or public party, a fine is imposed, or restitution and damages are awarded. The first part of the security is returned if the accused appears throughout the trial or is acquitted, or if the case is dismissed. The second part also is returned if the accused is acquitted or the case dismissed. In cases of conviction, only the balance of the security is returned after costs, fines, restitution, and damages are awarded. Those people who either were not detained or were released on bail during the preliminary investigation must surrender to the court no later than the evening before commencement of the trial.

Legal Aid

Since the early 1970s, legal aid has become more readily available in France. Legal aid is granted either in total or in part, but the applicant must live in France and must be without sufficient means to pay for counsel. A person can apply for legal aid at any time during the course of a proceeding. A judge does not grant legal aid; instead, commissions have been established in courts of major jurisdiction, courts of appeal, and the Court of Cassation to dispense aid.

The commissions are composed of members of the judiciary, members of the legal profession, and local government authorities. Once legal aid is approved, the application is sent to the president of the local bar association, who then appoints counsel. Legal aid can be withdrawn during the course of the proceedings if the beneficiary acquires funds to employ his or her own counsel or if the commission discovers that a person did not accurately disclose his or her financial status.

Many lawyers appear to be either hostile or indifferent to the legal aid scheme. The opposition usually stems from two considerations. Legal aid means that an avocat is being financially supported by the state. Avocats oppose this on the grounds that they are indirectly becoming a part of the civil service. Moreover, legal aid only covers an avocat’s expenses but does not provide a fee for services. At a time when the income of the profession has declined, this has resulted in avocats’ lack of enthusiasm for the scheme.

The Trial

There are three kinds of courts in France that are responsible for adjudicating specific types of criminal offenses. The courts of assize handle cases involving crimes. The courts of major

188 France

F O S T E R , C E D R I C 1 6 9 2 T S

jurisdiction entertain cases involving délits. The courts of minor jurisdiction hear cases involving contraventions. Each is examined here separately.

It should be pointed out that guilty pleas are not accepted unless the offense is a minor one that could lead only to the sanction of a fine. This essentially eliminates the possibility of plea bargaining as it is usually applied in the United States. Confessions before trial and guilty pleas at trial are simply treated as part of the evidence in the dossier. Obviously, an uncontested trial is considerably shorter, for all it requires is a confirmation of accuracy of the defendant’s admission by the president of the court.

A court of assize exists in each of the 96 departments of France. It handles cases involving crimes that have been remanded on indictment. The court holds a regular assize every three months, but supplementary sessions can be called for by either the president of the court or the procurator of the Republic. The court is presided over by the president, who is a judge from the regional court of appeals. In addition to the president, the bench is composed of two assesseurs, who are judges from either a court of appeals or a court of major jurisdiction. Before a trial begins in a court of assize, a number of preliminary procedural issues must be completed. The accused, who has been remanded to the jail where the assize is held, is brought before the president or one of the assesseurs at the start of the assize. The judge confirms the identity of the accused, and if counsel has not been secured, permits the accused to select counsel from a list of avocats provided by the local bar association. If the accused does not select counsel, the judge will appoint an avocat.

At least 24 hours before the start of a trial, the parties in the case exchange lists of witnesses they wish to have called. The names of experts who assisted in the investigation and who will be called are supplied, and a list of potential jurors for the session is provided. In exceptional cases in which the president is not satisfied with the original inquiry, the president can call for the suspension of the trial and order the reopening of the preliminary investigation. The president, an assesseur, or an investigating judge can undertake this investigation. This is considered an exceptional matter because the case was originally investigated by an investigating judge (if it was a serious crime) and then it was sent to the chamber of instruction of the regional court of appeal for a second review.

Finally, at the opening of a session of the court, potential jurors are selected through a lottery method from an annual list of jurors. This lottery selects 35 potential jurors and 10 potential alternate jurors. The next step is the actual selection of the jurors for a trial. Although this was explained in the previous section on the judiciary, it is worth summarizing briefly how a French jury is formed. It is significant to note that this is the only French court that utilizes a jury.

In a public session before the accused, the names of the potential jurors are placed in an urn. The names of nine jurors must be drawn unchallenged before the jury is considered formed. If it is anticipated that a trial will be quite lengthy, one or more alternate jurors are selected at this time. As the name of each juror is drawn, the procurator and counsel for the accused have the opportunity to challenge the juror. Under the French system, this is simply a verbal challenge; counsel does not state a reason. The procurator is allowed no more than four challenges, while counsel for the accused has five challenges. Once nine jurors are selected, they take their seats beside the judges and are sworn in by the president of the court.

France 189

F O S T E R , C E D R I C 1 6 9 2 T S

While most trials are open to the public, Article 306 of the code states that the “trial shall be public unless the publicity would be dangerous for public order or morals.” It also states that “the president may prohibit access to the courtroom to all or some minors.” The civil party in a case can request that the trial be closed to the public. For the most part, these requests are made when the case involves rape, sexual attacks that included torture, or some other barbaric activity.

The president is a principal participant in the trial, with significant discretionary powers. Criminal investigations in France traditionally have emphasized a thorough written record of the preliminary investigation. Thus, as was the case in centuries past, a dossier remains an important feature of a trial. In a case involving a crime, a dossier is prepared under the direction of an investigating judge. Despite extensive pretrial preparation, the president still can order the appearance of extra witnesses that may be of assistance and can request the collection of new or additional evidence. The president’s mission during a trial is to see that all avenues are explored with the aim of discovering the truth.

The assesseurs and jurors also have an important role, but they must obtain the permission of the president to ask questions of witnesses or the accused during a trial. The procurator, who is representing the interests of society while prosecuting the case, may pose questions directly. The accused or the accused’s counsel asks questions through the president. In cases in which a victim sues for damages and the suit is entertained jointly with the criminal trial, the civil party (or victim) or counsel also can raise questions through the president.

The standard trial procedure in a court of assize includes the following steps:

1. With all the principal participants of the trial in attendance, the president will ask the clerk to read the names of witnesses who will be heard for each party in the case. The witnesses will then be taken to a separate room where they will remain until it is their turn to testify. If a witness does not appear at the trial, the court can issue an order to the police to bring the person to the trial. Unless there is a legitimate excuse for nonappearance, the witness is charged the costs of being brought to the court. The court may not require the police to find witnesses and bring them to court because the witnesses’ earlier testimony is already a part of the dossier.

2. The clerk of the court reads the decree of remand of the accused to the court. This is essentially a summary of the dossier and includes the allegations, evidence of witnesses and the defendant’s response to the witnesses’ evidence, the personal history of the defendant, the results of any psychological or psychiatric examinations, and the criminal history of the defendant.

3. The accused is afforded the opportunity to make a statement. This is followed by questioning from the president and procurator directly. Assesseur and jurors must seek the president’s permission to ask questions. Finally, counsel for the civil party and defense must submit their questions to the president.

4. Each witness is called to testify separately. Usually, the police case officer is called first to give an account of the investigation. This is often followed by an expert witness, such as a psychiatrist. Witnesses first take an oath and are then free to make their statement. Witnesses are not interrupted when making their statement, as long as the

190 France

F O S T E R , C E D R I C 1 6 9 2 T S

testimony is relevant to the facts in the case. This is followed by questioning from the principal participants in the case. After completing his or her testimony, each witness remains in the courtroom unless the president grants them a leave of absence.

5. At any time during the testimony, the president can order evidence for the case presented to the court or the person on the witness stand.

6. The civil party or his or her counsel is then heard. 7. The procurator presents arguments. 8. The accused or his or her counsel offers the defense. 9. The civil party and the procurator are allowed to reply to the defense.

10. The accused or his or her counsel is offered a final opportunity to respond. 11. The president declares the termination of the trial. There is no summing up of the

charges or of the defense. The president then suspends the hearing, and the judges and jurors retire to the court’s conference room for deliberations.

12. After the judges and jurors have deliberated, they vote on secret written ballots regarding the charges against the accused. Unmarked ballots are considered favorable to the accused. To affirm a person’s guilt, a majority of eight votes must favor conviction.

13. Once convicted, the judges and jurors vote to determine an appropriate sanction. Again, ballots are used and a majority must agree to the punishment.

14. The court then reconvenes with the accused present and the pronouncement is read. If the accused is acquitted, he or she is immediately set free. If convicted, the accused is informed of the sanction and told of the privilege to petition for a review of the case to the Court of Cassation. Petitions for review will be explained later in the chapter.

15. If a civil claim has been introduced, the judges retire alone to decide that issue. If the civil party is awarded damages, the accused must pay the costs. According to Article 372, “[t]he civil party, in case of acquittal as in the case of absolution, may request reparation of damages resulting from the fault of the accused to the extent that it results from the facts that were the object of the accusation.” Article 375 states:

The civil party who has obtained damages shall never be held for [court] costs. One who has lost shall be condemned to costs only if he himself initiated the prosecution. However, even in that case he may, with regard to the circumstances of the case, be relieved of all or part of the costs by special decision of the court, stating reasons.

When a person is accused of committing a délit, the case is tried in a local court of major jurisdiction. Courts of major jurisdiction are divided into three divisions: civil, juvenile, and correctional courts. It is the correctional court that handles the adjudication of délits committed by adults. With one exception, the procedures and the participants are the same as those found in a court of assize. The exception is that the court is composed of three magistrates: the president of the court and two judges. Lay jurors are not used to deliberate a case involving a délit. As was indicated earlier, it is now permissible for a single judge of this court to hear cases involving certain kinds of délits, such as traffic offenses, some forms of drug abuse, and the misuse of a credit card.

France 191

F O S T E R , C E D R I C 1 6 9 2 T S

With the passage of the Security and Liberty Law of 1981, summary procedures are now permitted in the correctional court. This procedure usually is invoked when the evidence clearly points to the guilt of a defendant. For example, when a person is caught committing a délit, the procurator brings the defendant to trial while still in police custody. Thus, the defendant’s first appearance in court also serves as his or her trial. Defendants do have a right to postpone the trial for up to five days in order to secure an avocat and to prepare a defense. On the one hand, this law is designed to assure swift and certain punishment. On the other hand, critics are concerned about the consequences this process has for the defendant’s rights; because trials are quickly handled, there is often an absence of counsel for the accused (Tomlinson, 1983).

Once a judgment is rendered in a correctional court of a court of major jurisdiction, all the principal parties involved in the case have the right to appeal to the court of appeal in that district. Appeals are based on either factual errors or on a point of law. A three- judge panel, consisting of the president of the court and two conseillers, hears the appeal. An appeal consists of an oral hearing, at which time witnesses can be called, the accused questioned, and arguments presented by the principal parties in the case. If the appeal is based solely on a factual discrepancy, the court of appeal serves as the final arbiter in the case. If the issue on appeal involves a point of law, the person can request that the Court of Cassation review the matter.

Depending on who initiated the appeal and what issue is involved, the court has a number of options available in deciding the case. For example, Article 515 indicates that:

1. When an issue is on appeal by prosecuting counsel, the Court of Appeal may either confirm the judgment or reverse it all or in part in a sense favorable or unfavorable to the accused.

2. The Court of Appeal may not, on the appeal only of the accused, of the person civilly responsible, of the civil party, or of the insurer of one of these persons, aggravate the position of the appellant.

3. The civil party may not form any new claim in a case on appeal; however, he may ask for an increase of the damages for prejudice suffered since the decision at trial.

Moreover, the court also can conclude that no offense was committed in cases in which there is insufficient evidence. Thus, the prosecution would be dismissed. According to Article 518, “[i]f the judgment is annulled because the Court of Appeal decides that the act constitutes only a contravention, it shall pronounce the penalty and decide on the civil action, if that is appropriate.” Finally, Article 519 states that “[i]f the judgment is annulled because the Court of Appeal decides that the act is of such a nature as to be followed by a felony penalty the court shall declare itself incompetent. It shall remand to official counsel [procurator] that he may proceed as he sees fit.” This could lead to the accused being brought to trial in a court of assize.

Finally, people accused of committing a contravention have the case heard in one of the 473 local courts of minor jurisdiction. Courts of minor jurisdiction are divided into two divisions: a civil tribunal for civil claims and a police court for criminal matters. The procedures are similar to those found in courts of major jurisdiction, but because of

192 France

F O S T E R , C E D R I C 1 6 9 2 T S

the nature of the offenses, they are generally handled in a summary fashion. The police court differs from the other tribunals in that a single judge hears the case.

A majority of cases in this court never go to trial. The procurator simply attaches to the dossier a request for a particular disposition. If the judge and defendant agree to the disposition, which is usually a fine, the case is terminated. Of course, if a judge or defendant opposes the disposition, the case is bound over for trial.

Cases heard in this court also can be appealed. Appeals involving facts or law are sent to the court of appeal in the district. If the matter involves a point of law that is not resolved in the court of appeal, the person can petition the Court of Cassation to review the matter further.

Among the ordinary courts in the French judicial hierarchy, the Court of Cassation is the tribunal of last resort. The role of the court is to assure that judicial decisions are consistent throughout France and are in conformity with the law. Although the court can intervene at any time on any issue to assure conformity, intervention is usually limited to points of law. It does not, as a rule, consider disagreements that involve facts. Those issues are brought to a court of appeal, which serves as the final arbiter.

In order to have a case brought to the Court of Cassation, a person must petition for a review with the court that handed down the decision that is being disputed. Criminal cases would go to the criminal chamber of the court. The chamber would be composed of about seven judges, who entertain only the disputed part of the case. The court can either reject the petition and let the original decision stand, or quash the original decision and send the matter back to a new court at the same level at which the case was originally heard. This new court is known as the court of rehearing. When it hears the case, it can adopt the position of the Court of Cassation in the matter. In such instances the decision is final. However, the court of rehearing is not obliged to follow the Court of Cassation’s directions. If a second petition to the Court of Cassation results from the court of rehearing’s unwillingness to follow the high court’s direction, then the matter comes before the full court. If the full court quashes the decision and sends the matter back to a second court of rehearing, that court must comply with the wishes of the Court of Cassation.

It should be pointed out that a petition filed by a person convicted of a crime can be supported by the procurator. This may appear odd because the procurator was attempting to convict the accused during the course of trial. Nevertheless, if a person is convicted and sentenced to a sanction that does not apply to the crime committed, the convicted person could petition for a review of the sentence (for it is an issue that involves a point of law). The procurator may join in the petition in the interests of society.

Critical Issues

Procurator

The heightened concern for swift and certain punishment and the enactment of the Security and Liberty Law have enhanced considerably the discretionary authority of the procurator. This has raised concerns among critics of the system. Procurators have long dominated the investigative stage, because they initiate investigations by filing the charge. This procedure

France 193

F O S T E R , C E D R I C 1 6 9 2 T S

is followed even if the offense is serious enough to require that an investigating judge oversee the actual investigation.

Because the number of investigating judges is small, they tend to be overworked. Procurators increasingly have been circumventing the investigating judge in the name of efficiency by reducing charges from a crime to a délit. Although defendants can protest this action, it is often not in their best interests to do so. As a result of the reduction in charges, investigating judges handled less than 10 percent of the cases under investigation (Levy, 1993; Hodgson, 2005; Tomlinson, 1983). More recently, it has been suggested that the percentage has declined to about 5 percent.

Critics are concerned that the exercise of this kind of discretion puts the legal rights of the defendant at risk. As indicated earlier, defendants are afforded more procedural rights when an investigation is supervised by an investigating judge than when it is handled initially and solely by the police. Circumventing the investigating judge has been resolved to some extent with the passage of the Security and Liberty Law, for this legislation changed the status of some offenses from a crime to a délit.

Another principal concern about procuratorial discretion involves the introduction of summary procedures in courts of major jurisdiction. Again, the defendant’s legal rights are placed at risk. Summary procedures were introduced in these courts through the Security and Liberty Law, which was designed to assure swift and certain punishment, particularly when the guilt of a defendant was overwhelming. Critics argue that the swiftness of this process may inhibit a fair trial, especially if the defendant is pressured in some way against securing legal counsel.

With the issuance of the Truche Report in 1997 (mentioned earlier), procurators once again became the subject of scrutiny. Of particular concern was the extent to which politicians may influence decisions of procurators. While procurators are trained as judges and considered part of the judiciary, they nevertheless are members of the Public Ministry and thus accountable to the Ministry of Justice. In more recent years, a number of political corruption cases have been brought to the attention of procurators, in which they ruled that no further action was necessary. These cases are seen as illustrations of politicians interfering with the judicial process. These cases should not be judged in isolation, but rather considered in the larger context of procurators recommending no further action in cases. In 1995, for example, 5.2 million offenses were brought to the attention of procurators assigned to the courts of major jurisdiction. In one-half of these cases, a suspect was named in the case, yet 80 percent of the total number of cases (4.2 million) were classified as warranting no further action (Elliott and Vernon, 2000).

The policy of no further action has led to calls that the discretionary authority of procurators should be curbed. As mentioned earlier, some critics have argued that the introduction of the principle of mandatory prosecution, which is found in a number of civil law countries, would eliminate the concerns of procurators exercising too much discretion. The Truche Report did not support this idea. It favored retaining procuratorial discretion, for it is illustrative of the independent role that the judiciary plays in the judicial process. It did recommend the establishment of a right to appeal a decision of no further action. A number of recommendations of the Truche Report that would retain the independence of the procurators but also place a check on their discretion were submitted in the form of

194 France

F O S T E R , C E D R I C 1 6 9 2 T S

new legislation. Because of the ongoing concerns of a number of political factions, it has not been enacted into law.

Victim Assistance

Another critical issue involves victim assistance. It has already been pointed out that a victim can sue for damages and that the suit can be entertained during a criminal trial. Although this is a progressive procedure, it has flaws. For example, the court is responsible only for enforcing the penal sanction, not the damages awarded a victim. Most damages, therefore, are not paid by the offender because the offender is indigent, refuses to pay, or possibly has not been identified.

Although very little research has been conducted on victimization in France, successive governments have taken steps to address the problem. The first state compensation law was adopted in 1977. It was initially designed for victims of bodily injury but has since been extended to include victims of burglary. Originally, the state was viewed as a secondary source for compensation. The victim was supposed to exhaust efforts at securing damages from the offender. Given the difficulty victims have had with collecting damages from offenders, legislation enacted in 1990 permits a victim to seek compensation through a process that is independent of any criminal proceeding—in some cases, even before a defendant is identified. A Commission for the Compensation of Victims of Crime is found in each of the courts of major jurisdiction. Victims of serious crimes against the person may receive a total compensation for the damages, for example, if they are unable to work for more than a month. If a person is a victim of a property offense, he or she may be entitled to a limited compensation that is determined by the victim’s financial assets.

Legislation was passed in 1986 to create a special system for granting compensation to victims of terrorism. Through the Guarantee Fund for Victims of Acts of Terrorism, compensation is provided for physical and material damages. Funds are also available to the family in the event of death. Finally, an attorney is provided through legal aid for representation in any legal proceeding.

In addition, the National Council for the Prevention of Delinquency was created in 1983. It has corresponding local councils at the department and municipal levels. There are presently more than 413 local associations. A National Institute has been established to train volunteers in victim assistance. The hope is that this training will be extended to include professionals in the field, such as police, judges, medical personnel, and social workers. The work of victim assistance illustrates the efforts to decentralize governmental administration in France. In addition to the formation of local associations, funding for these programs comes from the national ministries of Justice, Women’s Rights, and Welfare, as well as from local grants (Piffaut, 1989).

CORRECTIONS At the end of World War II, the Ministry of Justice turned its attention to reforming the correctional system through the introduction of a progressive regimen. The plan called for the use of a minimum amount of force when handling inmates and the establishment of

France 195

F O S T E R , C E D R I C 1 6 9 2 T S

Once this phase of the program is complete, the candidates must pass a national examination before commencing careers as either assistant judges, public procurators, or practicing attorneys.

LAW Japan’s criminal law and procedure has evolved through four fairly distinct periods. The first phase existed from ancient times until approximately the twelfth century. This phase was marked by early attempts at the codification of law, specifically the Code of 702 (Taiho) and the Code of 718 (Yo-ro). Both were modeled after Sui and T’ang Codes of China. These early codes required that the injured party in a criminal case level a complaint against the accused. The person’s guilt was then determined by either a confession or the testimony of witnesses. Torture was permissible for securing a confession, and there was also a system of appeals (Dando, 1965). Although these procedural nuances were similar to those emerging in the West, historians have concluded that these developments were separate, indigenous creations.

The second phase occurred during what is characterized as the medieval period of Japanese history. It started before the twelfth century and ended with the Meiji Restoration in 1868 and was marked by the emergence of Japanese feudalism. Feudalism destroyed the notion of centralization and, with it, the early legal codes. Feudal codes that emphasized an inquisitorial method for determining fault and encouraged the frequent use of torture were introduced. While physical evidence is of value at a trial, torture was employed principally to elicit a confession. Once again, there were similarities with procedural developments in the West, but these were also indigenous creations.

The restoration of the Meiji in 1868 is usually cited as the beginning of the third phase in the evolution of Japanese law. The restoration was noted for its extensive borrowing from Western continental legal thought. At first, the restoration led to a revival in the use of the old Chinese-style codes, with the abandonment of the feudal codes. It was quickly discovered, however, that these codes were too dated to meet the needs of a society that was entering the modern era. The Japanese began to borrow heavily from the French, largely because the Napoleonic Code had received worldwide attention. However, toward the end of the nineteenth century, a more absolute and militaristic attitude emerged in Japan. This led to yet another shift in the search for a Western model to emulate. Japan turned to German legal scholarship for inspiration in adopting its Meiji Constitution of 1889 and assistance with implementing other reforms in their codified legal system. This association with German legal thought lasted until the end of World War II.

The fourth phase began with the American occupation following the war. As has already been indicated, the adoption of the Showa Constitution in 1946 led to some significant changes in criminal law and criminal procedure. The largest number of changes was in the Penal Code, which had been in force since 1908. The Penal Code was only partially revised with regard to the sanctioning and treatment of offenders. New classifications of crime were added as more sophisticated kinds of deviant behavior associated with modern society emerged. A total revision of the Code has been considered, and a draft for a new penal code has been written, but as yet, it has not been approved by the Diet. According to Yoshio

Japan 253

F O S T E R , C E D R I C 1 6 9 2 T S

Suzuki (1977), the 1908 Code has retained its usefulness because of the document’s flexibility. The definitions of various crimes are written in fairly general terms, leading to a more extensive use of judicial interpretation. In addition, the court’s discretion for imposing a sentence is quite broad. Although many of the codes involving criminal justice reflect the Romano-Germanic tradition, the procedures have become more adversarial in nature, reflecting the increased Anglo-American influence.

Criminal Law

The Showa Constitution is quite clear on how the Japanese criminal justice system is regulated. The Diet is responsible for enacting laws, although the initiative in this process is generally controlled by the cabinet. Article 31 of the Constitution states that “no person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” Thus, the legal norms of nullum crimen sine lege and nulle poena lege, which were absent from the Meiji Constitution, were incorporated into the Showa Constitution. While article 77 invests the Supreme Court with certain rule- making authority, article 76 also states that all judges are bound by constitutional law and other laws. The Diet, therefore, is preeminent in enacting criminal legislation.

It has been suggested that the criminal law should be viewed as a tri-part system: the Penal Code, the Code of Criminal Procedure, and the Prison Law (Dando, 1965). Each law is interrelated with the others in the totality of the criminal justice process. The Penal Code defines the crimes and the types of punishment. The Code of Criminal Procedure assures that legal standards will be followed in determining guilt or innocence and in the execution of the sentence. Finally, the Prison Law governs the policies related to the nature of commitment and confinement to a correctional facility.

All crimes appear either in the Penal Code or in a supplementary statute. Because of the general wording of the code, judges are given extensive authority to interpret the law. This has led the judiciary to establish precedents based on the case-law method, always relating precedent to the interpretation of a specific written law. Japanese judges, therefore, employ the practice of following judicial precedents when rendering decisions, but they have not officially adopted the principle of stare decisis.

The most important source of the criminal law is the Penal Code, which went into force in 1908 and since has been revised to some extent. The code is divided into two books or parts. The first book covers general provisions. These illustrate an absence of any gradation of offenses. The Japanese, therefore, have not established a formal distinction between felonies and misdemeanors. They have recognized the existence of minor violations, however. These are regulated by the Minor Offense Law (1948).

The code recognizes the importance of the mental state of the offender. Only people who have acted with criminal intent can be punished, unless “special provisions to the contrary exist.” Thus, some negligent crimes are punishable. Ignorance of the law is not a defense, but the penalty can be reduced if the circumstances warrant such a considera- tion. Provisions also exist to avoid punishing offenders who are mentally deranged and to reduce sanctions for those who are “weak-minded.” The code establishes the age of criminal

254 Japan

F O S T E R , C E D R I C 1 6 9 2 T S

responsibility at 14. Offenders who have not attained the age of 20 are generally treated under the rules of the Juvenile Law. Finally, a sanction can be reduced if a person admits guilt before the offense is brought to the attention of the authorities.

The code also explains the types of sanctions available. These include death, imprison - ment with compulsory labor, imprisonment without compulsory labor, detention, fine, and confiscation.

The second book of the code lists the major crimes and elements that constitute each offense. The crimes are not grouped into categories, such as “crimes against the person” and “crimes against property,” as is the case with modern codes. Because the code is worded in a fairly general manner, distinctions are not made with regard to the gravity of the offense. For example, the crime of homicide is defined as “a person who kills another.” There is no distinction or consideration for degrees of intent or malice, as is made by differentiations between first-degree and second-degree murder and manslaughter. This further enhances the discretionary authority of the judiciary.

Criminal Procedure

A scholar comparing the criminal procedural systems of the United States and Japan offered these summary generalizations that should prove useful in this section of the chapter. First, the American system places procedural fairness at the center of the process, whereas the Japanese system is more focused on achieving the correct decision. Second, the approach to sentencing an offender in the United States is more punitive, while the principal objective of the Japanese is rehabilitation. Finally, there is less public trust of agents of the justice system in the United States, whereas in Japan the public tends to trust its public officials (Goodman, 2003).

This examination of Japan’s criminal procedure is divided into two categories. The first involves the pretrial process, including an examination of police powers and other issues pertinent to the preliminary investigation. The second category is concerned with the trial process, consisting of the hearing and the appellate review. The Code of Criminal Procedure, in force since 1949, explains the aforementioned procedures.

Suspension of Criminal Proceedings

In examining the pretrial process of the preliminary investigation, it is important to recognize that the Japanese suspend criminal proceedings in a number of cases. It is not imperative that all people accused of a crime have their day in court. The significance of the suspension rests with both the underlying philosophy behind the Japanese procedure and the official authorities who are permitted to make such a decision. It should also be noted that plea bargaining is illegal in Japan.

It was pointed out by Reischauer (1977) that the Japanese place a good deal of emphasis on the importance of belonging to a group. A person is valued more as a member of a team rather than for his or her individual contributions. Because of this kind of social posturing, cooperation and conformity are highly prized attributes. In addition, the Japanese

Japan 255

F O S T E R , C E D R I C 1 6 9 2 T S

have never embraced the Judeo-Christian heritage that has long encouraged criminal offenders to feel a sense of guilt because they have “sinned.”

In light of these cultural attitudes, deviant and criminal behavior is viewed quite differently in Japan than in most Western countries. People who are unwilling to conform are pitied rather than held in contempt and condemned. The offender is more likely to feel a sense of shame because he or she has violated the cultural norms of the group rather than a sense of guilt because he or she has in some way sinned. Because the emphasis is placed on pity for the transgressor rather than condemnation, the deviant is usually handled with leniency by the agents of the administration of justice.

The manner and extent to which the formal adjudication process is avoided is a principal difference between Japanese and Western systems of justice. Both the police and the public procurators employ this kind of discretion quite frequently. It should be pointed out that law enforcement’s use of this discretion is neither codified nor established as part of a written policy (Bayley, 1976a). It is more or less a custom—long exercised by the police and familiar to the public—that has acquired the stamp of legitimacy. This type of discretion is exercised in cases involving minor theft, fraud, buying stolen goods, and gambling. These cases, however, must be reported to the procurator for approval. In other cases of minor violations, such as public drunkenness, the officer may simply warn the offender or demand that a formal written apology be made as an alternative to arresting the person or issuing a citation.

David Bayley (1976a) has identified at least five factors that usually influence the officer’s willingness to avoid the formal sanctioning process. These factors include: (1) the public’s tolerance of the deviant act in a particular location, (2) the officer’s acceptance of such behavior, (3) police priorities regarding law enforcement, (4) the effect that the officer’s option to utilize discretion will have on the future behavior of the offender, and (5) the sincerity of the offender’s contrition. This last factor is considered very important. Bayley has pointed out that an offender’s apology is a sign that the person will not commit the offense again. The acceptance of the apology not only holds the person to that promise but is also a sign that the offender has been forgiven.

Even more significant, however, is the extent to which the public procurator can suspend the prosecution of a case. Unlike the police, the procurator’s use of this kind of discretion is explained in the Code of Criminal Procedure. Article 248 states: “In case it is unnecessary to prosecute according to the character, age and environment of an offender, the weight and conditions of an offense as well as the circumstances after the offense, the public prosecution may not be instituted.”

The Japanese custom of allowing procurators to suspend prosecutions has been in existence for more than 100 years (Satsumae, 1978). The initial argument offered for utilizing the scheme was that it would free the courts from handling trivial matters. It is even used today to resolve serious offenses, because the law does not limit the applic- ability of this authority. Offenses such as robbery, rape, and homicide have been handled by suspended prosecutions. Another cogent argument put forth for utilizing suspended prosecution is that it might prove more effective in rehabilitating the offender because the offender would avoid the stigma of being formally processed through the justice system.

256 Japan

F O S T E R , C E D R I C 1 6 9 2 T S

The application of the suspension scheme has been attributed to five major factors. One is the quasi-judicial nature of the procurator’s office, which is common in countries with a Romano-Germanic tradition. Another is the public’s faith in the procurator’s use of discretion. This kind of trust and the deference that is paid to the procurator is common for most agents of the Japanese justice system, because they are perceived as moral authority figures as well as agents of the law. The procurator is also vested with broad powers to investigate alleged criminal activity. From another perspective, the willingness to forgive has long been a feature of Japanese custom. Finally, there is a traditional belief that the family is capable of assuring and regulating the conduct of its members. The importance of belonging to a group is again evident (Satsumae, 1978).

The suspension of prosecution is devoid of any court involvement. The offender is usually required to write a letter of apology and make a promise to avoid further criminal activity. The apology often includes compensation to the victim or the family. The offender’s family might also be alerted and advised on how to assist the person in leading a more law-abiding lifestyle. Takeshi Satsumae (1978) has pointed out that the procurator will occasionally place the offender in the custody of his or her family or employer, who, in turn, is requested to promise in writing to supervise the offender. Although the effectiveness of the suspension of prosecution scheme has not been studied extensively, the Japanese appear to be pleased with its results.

Finally, it should be pointed out that the system has established three mechanisms to assure that there is not an abuse of authority by the procurator. Within the procurator’s office, there are guidelines stating that if a procurator elects to suspend prosecution in a case, reasons must be given in writing and the decision must be reviewed by a senior member of the staff. There are also 207 inquest committees throughout the country. A committee consists of 11 citizens who were selected at random from the voter registration rolls. They have the authority to receive complaints about suspended prosecutions, investigate the matter, and recommend a change in the procurator’s initial decision. Although the procurator is not bound by the committee’s decision, Satsumae is of the opinion that it serves as an informal check on procuratorial discretion. The RC21 report suggested that an inquest committee’s recommendations to a procurator should be legally binding. This recom - mendation reflected two general themes of the report: agents of the justice system should listen to public opinion, and the public should participate in the administration of justice. Finally, the concept known as “analogical institution of prosecution” enables the court to conduct its own hearing into a suspended prosecution when it is alleged that procuratorial authority has been abused in this regard. The court initiates such hearings when it receives a complaint, and it either can agree with the suspension or order a trial. Thus far, courts have overwhelmingly sided with the procurator’s initial decision. In those instances in which a trial is ordered, the court would select an attorney to assume the duties of the public procurator.

The suspension of the formal adjudication process by the police and the procurators assists in clarifying a number of points about the Japanese criminal justice system. It is a graphic illustration of why the police are portrayed as a source of both legal and moral authority. The judicious use of cautioning people rather than issuing citations or arresting

Japan 257

F O S T E R , C E D R I C 1 6 9 2 T S

offenders undoubtedly enhances the public’s perception of the police. Suspensions of prosecutions also illustrate the extensive authority that has been mandated to the public procurators. Moreover, suspensions by either the police or procurators offer a clear example of the interrelatedness of the Japanese criminal justice system. Judges are not solely empowered to adjudicate criminal acts, because the police and procurators share in that responsibility. This has led to the perception that there is a greater degree of cooperation between the various components of the system.

Preliminary Investigation

Once it has been determined that a crime has been committed, a preliminary investigation is undertaken to determine who committed the act or who can be reasonably suspected of being involved in the crime. Preliminary investigations are usually conducted by police detectives. The procurator can issue instructions regarding the course of an investigation. After receiving the police report, the procurator can elect to conduct another investigation into the matter. If the decision is to prosecute rather than to suspend the prosecution, the procurator files an indictment that names the offender, cites the facts in the case, and identifies the nature of the offense.

Power to Arrest and Detain

Most of the rules pertaining to arrest and detention are codified in the Code of Criminal Procedure; the Constitution does address itself to this issue. Article 31 states: “[n]o person shall be deprived of life or liberty, nor shall any other criminal penalty be imposed, except according to procedure established by law.” Article 33 contains the provisions that “[n]o persons shall be apprehended except upon warrant issued by a competent judicial officer which specifies the offense with which the person is charged, unless he is apprehended, the offense being committed.” Finally, article 34 states that “[n]o person shall be arrested or detained without being at once informed of the charges against him or without the immediate privilege of counsel; nor shall he be detained without adequate cause; and upon demand of any person such cause must be immediately shown in open court in his presence and the presence of his counsel.” As was stated in the section on police, some critics question the extent to which some agents of the justice system comply with these provisions.

The power to arrest involves two sets of circumstances: arrests with a warrant and arrests without a warrant. Most arrests are made by the police who have obtained a warrant from a judge. There is one condition, however. If the offense is punishable by a fine of under 100,000 yen, penal detention, or a minor fine, the accused cannot be arrested unless he or she is found to have no fixed residence or has failed to appear before a procurator when requested to do so. A flagrant offender also can be arrested without a warrant. Flagrant offenders are people who are caught in the act of committing a crime or have been determined within reason to have just committed a crime. The Code of Criminal Procedure also calls for emergency arrests. There are cases in which the police or the procurator have the authority to arrest a suspect without a warrant. This occurs when police have reasonable grounds to believe that a suspect has committed a crime that is punishable by

258 Japan

F O S T E R , C E D R I C 1 6 9 2 T S

death or imprisonment for more than three years, but they are unable to secure a warrant from a judge.

When the police arrest a person, they must inform the suspect of the reason for the arrest and of the suspect’s right to counsel. The suspect is also given an opportunity to provide an explanation for the alleged behavior. If the police believe that detention is not necessary, the suspect can be released. Decisions to detain a suspect must be made within 48 hours of arrest. The suspect, along with the police report, must be sent to the procurator’s office. The procurator has an additional 24 hours to determine whether the suspect should be released or detained. With regard to the suspect’s right to counsel, the Code of Criminal Procedure makes a distinction between a suspect and a defendant. A suspect is not entitled to the services of a state-appointed counsel. This situation has changed slightly with the creation by local bar associations of a lawyer-on-duty scheme. Under this scheme, an indigent suspect can consult with counsel for an initial visit free of charge. If a detained person’s status remains that of a suspect, rather than a defendant, they would be charged a fee for any subsequent meetings with a lawyer.

Before 72 hours have elapsed from the initial arrest, a judge must authorize the continuance of a detention. The judge receives such requests from the procurator. If the grounds are reasonable to hold the person, the judge issues a warrant of detention. Reasonableness is based on the belief that the suspect indeed committed the offense and either has no fixed residence, may destroy evidence, or may flee the jurisdiction. Arguments for or against the detention are heard in court with counsel present. One can apply to a higher court to rescind the initial warrant of detention. The propriety of the warrant is determined by a three-judge panel. If the warrant is upheld, the suspect can be detained for up to 10 days, and extensions can be granted for an additional 10 days if requested by the procurator. Thus, a person could be detained for up to 23 days while the police and procurator continue to investigate the matter. One should realize that approximately 90 percent of all offenders are not detained to guarantee their appearance in court.

The police have the authority to stop and question people on the street if they believe them to be suspects or witnesses, or to have some knowledge of a crime. They also can stop and question people who they believe are about to commit a crime. The police may detain the person at the scene for purposes of questioning or may request that the person accompany them to a police station or koban. The person must freely agree to accompany the police, however. Police who are found guilty of abusing this authority are subject to criminal prosecution. If the person is injured in the course of a detention, a civil suit can be filed for damages.

Power to Search and Seize

The laws governing searches and seizures are contained principally in the Constitution and the Code of Criminal Procedure. Article 35 of the Constitution states, in part, that “[t]he right of all persons to be secure in their homes, papers and effects against entries, searches and seizures shall not be impaired except upon warrant issued for adequate cause and particularly describing the place to be searched and things to be seized.” The Constitution further states that only a judge can issue a warrant to search. There are exceptions to this

Japan 259

F O S T E R , C E D R I C 1 6 9 2 T S

rule, however. When an arrest is of a flagrant offender or when an emergency arrest is undertaken without a warrant, the investigating officers have the authority to search for and seize evidence.

Public procurators and police investigators have the authority to conduct search and seizure, and specific procedures have been established for when this is carried out. For example, a search cannot be conducted in a private home before sunrise or after sunset unless a judge orders a nighttime search. Warrants are to indicate the persons, places, and things to be searched and seized. Upon arrival at the premise to be searched, the investigating officer must present identification and show the occupant of the premise the search warrant. The search is to be conducted in the presence of the occupant or a witness if the occupant is absent. The police are permitted to frisk a person for the purpose of discovering weapons.

Some judges in lower courts have excluded evidence seized during an irregular search (Suzuki, 1978b). In 1978, the Supreme Court acknowledged the application of an exclu - sionary rule in serious cases. Thus, evidence seized in an illegal or improper manner may be excluded from the trial. Under the Penal Code, police are subject to criminal prosecution if they have abused their authority in such a manner. In addition, a victim of police abuse may bring a civil suit for damages.

The reader should be apprised of the fact that an accused person has the right to remain silent. Article 38 of the Constitution states, in part, that a “[c]onfession made under compulsion, torture or threat, or after prolonged arrest or detention shall not be admitted in evidence.” Moreover, a person cannot be convicted of a charge when the only proof is the suspect’s confession.

Bail

The Code of Criminal Procedure also has established rules pertaining to the issuance of bail. Bail can be requested by the accused, the accused’s counsel, or relatives of the accused. The judge grants bail but may seek the opinion of the procurator before approving the request. Bail is paid in money or negotiable securities, and the court can permit any person to post the bail. The court has the authority to revoke bail, while the public procurator may only recommend this action to the court. Upon a revocation, the court can confiscate all or part of the bail.

Various categories of suspects are excluded from bail consideration, for example, people who are charged with a crime that could lead to imprisonment for more than a year, recidivists who have served lengthy prison terms, and offenders who habitually commit offenses. If the authorities believe a suspect might destroy evidence or harm a witness, the suspect is excluded from the privilege of bail. Suspects whose name or residence is unknown are also declared ineligible.

The Trial

Following World War II, the Japanese clearly established the principles of an adversarial trial emulating the Anglo-American legal system. Trials are open to the public, and both the prosecution and defense counsel have the opportunity to present their case orally.

260 Japan

F O S T E R , C E D R I C 1 6 9 2 T S

The standard trial procedure for the main hearing is as follows:

1. The public procurator reads the information explaining the criminal charges. 2. The judge then advises the defendant of the right to remain silent and of the right to

refuse to answer questions. The accused or the accused’s counsel also has the opportunity to make a statement. In the course of such a statement, the defendant usually admits or denies guilt. If the accused admits guilt, the trial simply moves to an examination of the evidence before the imposition of a sentence. About 95 percent of the defendants in Japanese courts plead guilty.

3. If the defendant does not admit guilt, the public procurator is afforded the opportunity to make an opening statement and present an outline of the case.

4. The evidence is introduced and examined. Included are real evidence, documents, and witnesses. The witnesses are examined and cross-examined at this time. The defendant has the opportunity to introduce evidence designed to refute the procurator’s case.

5. The procurator then introduces the accused’s prior arrest record, if there was one. Statements supportive of the accused’s character are presented by the defense counsel.

6. The defendant is then questioned by the procurator, defense counsel, and the court; however, he or she has the right to remain silent.

7. Closing arguments are made by the procurator. 8. Closing arguments are presented by the defense counsel. 9. The court then concludes the fact-finding phase of the trial and announces a date at

which a judgment will be rendered. If the case is fairly simple, an immediate judgment might be announced.

Minor cases are heard in a summary court, and the proceedings found there are rather informal. No public hearing is held; rather, the procurator offers the documentary and real evidence in the matter to the court. In a summary proceeding of this kind, a sanction cannot exceed 500,000 yen. If the sanction is not mutually agreeable to both sides, a formal trial is initiated. A formal trial in a summary court follows the same steps as just presented.

Once the trial is concluded with the court passing judgment, the parties have an opportunity to appeal the decision to a higher court. Criminal appeals from both the summary and district courts are entertained in a high court. The Supreme Court has the principal responsibility of handling appeals involving constitutional issues. In the Japanese system, the appeals process is open to the public procurator, the accused, or anyone else to whom the court has rendered a judgment.

The Code of Criminal Procedure has established three kinds of appeals. Kokoku appeals are made against court rulings during the course of a trial but prior to the rendering of a judgment. Koso appeals are made against the judgment of either a district court, family court, or summary court. The appeal can be based on a point of law or some factual discrepancy. The appellate court can affirm the original judgment, or it can reverse it and remand the case either to the original trial court or another trial court. The new trial court cannot render a decision that is contrary to the appellate court’s judgment in the appeal. Finally, although most issues involving interpretations of the law are resolved through koso appeals, there are some exceptions. Questions of constitutional interpretation, errors

Japan 261

F O S T E R , C E D R I C 1 6 9 2 T S

pertaining to precedents already established by the Supreme Court, and any other issues that involve a significant question of legal interpretation are resolved through jokoku appeals. Jokoku appeals are heard by the Supreme Court.

Critical Issues

Speedy Trials

Criminal trials in Japan had not been held on consecutive days until a verdict was reached. The judge determined when the court met. In light of the significant workload of the courts, some trials continued for years. This procedure raised questions about the system’s commitment to article 37 of the Showa Constitution and its proclamation that people have a right to a speedy trial.

The RC21 report has addressed this problem in several ways. One, which has been mentioned and has implications for the speedy trial issue, is that the growth in the size of the legal profession will result in more judges, procurators, and defense attorneys. This alone should aid in resolving the problem over time. A second change resulting from the RC21 report is that suspects will now have the right of access to a lawyer. In the past, a suspect could not see a court-appointed attorney until after the indictment had been handed down. A third change, which is associated with the court-appointed attorney scheme, is the establishment of legal support centers throughout the country. The fact that these centers will provide legal aid and mediation services should reduce the volume of cases that are litigated in court.

Finally, another new feature that was recommended in the RC21 report was the introduction of a new procedure before the start of a trial. In order to improve the efficiency and effectiveness of the trial process, it was recommended that a “preparatory procedure” be introduced and presided over by the court. The purpose of the procedure would be to resolve contested issues between the procurator and defense, especially those involving evidentiary matters, that have frequently contributed to impeding the flow of a trial. The ultimate goal is to expand the disclosure of evidence before the trial commences. This recommendation was adopted, and the Code of Criminal Procedure was revised to require its use in all trials involving serious crimes. In addition, once a trial begins, it is expected to meet daily, thus, expediting the trial process.

Crime Victims

Throughout this chapter, we have noted the importance the Japanese place on the group versus the individual, which places a good deal of value on cooperation and conformity with community norms. It was further pointed out in this section that the suspension of prosecution is devoid of any court involvement. In that context, what is being sought is usually a letter of apology from the offender, the promise to avoid further criminal behavior, and sometimes compensation to the victim or the victim’s family. Much of this is done informally by the offender or his or her family through an attorney in conjunction with an attorney for the victim or his or her family. The procurator is aware of this, but it is not

262 Japan

F O S T E R , C E D R I C 1 6 9 2 T S

part of formal judicial process (Haley, 1998). Finally, it was noted at trial that the vast majority of offenders who reach the trial stage admit guilt. In such an environment, questions are raised about the extent to which the justice system directs any attention to the victims of crime.

In many justice systems throughout the world, the plight of crime victims has been acknowledged in the formal judicial process in only roughly the past 25 to 30 years. Because the Japanese system has often relied upon an informal process, it has been criticized for lagging behind other advanced countries in looking out for the rights and welfare of the victims. However, it should be pointed out that the Japanese system has not totally ignored the victims of crime. For example, the Crime Victims Benefit Payment Law was introduced in 1981 and is specifically designed for the family of a deceased victim of a random murder or victims of unprovoked acts of violence. The victim makes application to the Prefectural Public Safety Commission in the area, and the Commission determines the eligibility of the applicant and the amount of the compensation.

The national government has set aside funds to support this scheme. It is interesting to note that a victim is excluded from these benefits if he or she is not a Japanese national or does not reside in Japan.

Nevertheless, the Ministry of Justice has acknowledged that it needs to do more in aiding victims of crime. In more recent years, the ministry conducted a series of surveys in an effort to understand the problem and establish a strategy to address it (Hamai, Yokochi, and Okada, 2000). With regard to the issues of apology and compensation, it was discovered that 48 percent of the offenders apologized. When the issue involved professional negligence that resulted in death or bodily injury, the percentage was higher at 60 to 79 percent. For homicide and larceny, however, the percentage was considerably lower at 25 and 35 percent. Information about the victim’s feelings toward the offender was also collected. Of those who would never forgive the offender, the percentage was 64, and this rose to 84 percent for rape victims and 91 percent for families of homicide victims. Only 16 percent were of the opinion that they could forgive the offender.

The victims were also asked what was the most important thing that an offender could do to atone for his or her crime. The most popular response at 34 percent was that the offender should reintegrate themselves back into society through rehabilitation. This was followed by obey the court order, 22 percent; provide compensation, 14 percent; apologize, 12 percent; and get a pardon from the victim or the victim’s family, 7 percent.

What the ministry learned from these survey results was the extent to which crime victims and their families suffer—not only from the direct impact of the event but also the subsequent damage that was caused in part by the criminal justice process and, most importantly, the long-term mental suffering that impacts the victims’ emotional well-being and life beyond the specific damage caused by the crime. Because the information was such a revelation, the ministry plans to conduct victimization surveys each year.

The results from such surveys have assisted the initiative to provide more assistance to crime victims. In 2001, the Crime Victims Benefit Payment Law was amended to enable expanded benefits to crime victims and their families. Survivor benefits are determined by the age and income of the victim. Disability benefits are determined by the severity of the injuries. Benefits are also available for medical expenses beyond that covered by the

Japan 263

F O S T E R , C E D R I C 1 6 9 2 T S

victim’s health insurance. Finally, the family of a deceased victim can claim medical expenses incurred prior to the death of the victim.

The National Police Agency had taken the lead on support for crime victims. It initiated several measures that are being implemented across the country at the prefectural police level. Once a crime occurs, the police provide a brochure for crime victims, assign crisis intervention officers and counselors to help victims of serious crimes, promote counseling to crime victims that is provided by the police, assign female officers to investigate sex crimes, and install a hotline for counseling. After the investigation is completed, the police establish a victim support network and provide a victim liaison on the case. Finally, the police are developing networks with administrative agencies and medical institutions to aid the victims. They are also assisting in the establishment of private victim support organizations.

The Ministry of Justice has also become more actively involved in the support for crime victims. Legislation was introduced that would allow victims to recover the cost of damage to property. The legal support centers that were created as a result of the RC21 report will also be involved in providing information and support to crime victims, in particular the access to an attorney who is familiar with victim rights. Moreover, some victims or their families can participate at the trial. In the past, families of deceased victims could make a statement at the trial. Now, victims or families of victims involving certain offenses can request the public procurator to permit them to participate at the trial. Among the types of offenses that are included within this policy are murder, rape, assaults, and death caused by negligent driving. If participation at trial is granted by the public procurator, either the victims or families of victims can make a statement at trial and question the defendant and witnesses. Participation at trial can occur in person, or the victim can elect to utilize the state-appointed attorney service.

Capital Punishment

The United States and Japan are the only highly advanced industrialized countries that have retained capital punishment. The Japanese Penal Code lists 13 crimes that identify the death penalty as an appropriate sanction, and an additional five are cited in other statutes. Since 1967, capital punishment has been limited to murder, death caused in a robbery, and death caused by explosives. The method employed to carry out the sentence is hanging. While the United Nations, Amnesty International, and other human rights organizations have called for the abolition of the death penalty throughout the world, the Japanese government has consistently rejected this position.

Opposition to capital punishment within Japan began to receive notoriety in the early 1980s. What led to this development was a 1975 Supreme Court decision that made it easier to seek retrials. Essentially, the court indicated that it would grant retrials if new evidence came to light that, along with existing evidence, led to a conclusion that reasonable doubt exists. As a result of this ruling, four men who had been on death row for years (each on separate murder convictions) sought and were granted retrials. In each case, the person had originally confessed to the crime but had recanted and claimed innocence either before or during the original trial. Each had maintained his innocence since the first trial.

264 Japan

F O S T E R , C E D R I C 1 6 9 2 T S

The retrials were granted between 1983 and 1989, and each man was found not guilty. It was revealed that the police had acted inappropriately during their investigations, and the actions of the procurators and judges were also the subject of criticism. The notoriety of these cases was based not so much on exposing the inappropriate behavior of members of the justice system as on the fact that these crimes were committed between 1948 and 1955. As a result, these men had been on death row for 34, 33, 31, and 27 years, respectively. Proponents of capital punishment contend that the circumstances surrounding such cases would not occur today. When these cases were adjudicated, Japan was still suffering from the social upheavals caused by World War II (Foote, 1992). It should be noted that there have not been any death penalty retrials since 1989 (Johnson and Zimring, 2009).

Another concern voiced by opponents of capital punishment is the nature of the process, specifically the length of time it takes to carry out the sentence and the secrecy surrounding it. It often takes 20 years to carry out a death sentence in Japan, given the various appeals and clemency hearings that are available. Critics argue that an appellate process that takes so long to complete is inhumane. Once the appeals are exhausted, the minister of justice must sign the execution order, which can lead to further delays. Once the order is signed, however, the execution is carried out within five days. It is interesting to note that the actual execution is shrouded in secrecy, so much so that the inmate is not told in advance, and the family of the offender is informed of the execution after it has occurred. Critics maintain that this also is inhumane, but the authorities argue that they are protecting the privacy of the family.

Prompting some criticism of the sanction was the fact that death penalty abolitionists had apparently been hoping that the various human rights organizations were having an impact on their government. In 1993, however, seven prisoners were executed. This was an unusually large number, topped only by 12 people executed in 1976. From 1979 to 1989, the death sentence was carried out on one person per year. No one was executed from 1990 to 1992, which is attributed to the fact that the justice minister was a Buddhist. From 1993 through 2000, 33 people were executed, for an average of about five executions per year. In addition, the defense attorney for one of the people executed in 1993 argued that his client was mentally unstable when the sanction was handed down, and the doctor at the detention center who examined his client indicated that the client was unstable at the time of the execution. According to the Penal Code, these are grounds to stay the execution (Dean, 1994). Nevertheless, a survey was conducted by the government in 1994 to assess public attitudes about capital punishment. Approximately 13.5 percent supported abolition of the sanction, while almost 74 percent favored its retention. Later surveys by the media reported results similar to those of the government (Kurata and Hamai, 1998).

Another issue that has been raised is whether the saiban-in system will have any impact on the extent to which the death penalty is employed (Johnson and Zimring, 2009). Saiban- in, which was explained earlier, is the use of lay assessors in trials. The lay assessors sit with the professional judges and together decide the outcome of the trial. If the accused is found guilty, the group would collectively impose a sentence. Since saiban-in was introduced relatively recently, in 2009, it is too early to tell if it will have any impact on the use of capital punishment in Japan.

Japan 265

F O S T E R , C E D R I C 1 6 9 2 T S

Finally, it has been suggested that the abolition of the death penalty will come to Japan only with a revision of the Penal Code, because the nature of the Japanese judiciary is such that it will not act independently of the legislative branch (George, 1990). The abolitionists recognize the difficulties that they face in gaining converts to their cause. One observer suggested that a compromise might be reached by substituting capital punishment with the sanction of life imprisonment without parole (Kikuta, 1993). Nevertheless, a 2004 government opinion poll found that 81.4 percent supported the death penalty, while only 6 percent were opposed to it. The poll noted that supporters were of the opinion that only capital punishment could provide closure for families of the victims. Supporters also maintained that the punishment had a deterrent effect.

CORRECTIONS It should come as no surprise that Japan’s correctional system has evolved in a manner not unlike that of their police, judiciary, and law. The Penal Code of 1908 and other legal measures related to corrections were initially influenced by French and German ideas from the mid-nineteenth century through the early twentieth century. Some of this legislation remains in force today, albeit with some modifications. In addition, the American occupation had many effects on the correctional system, the introduction of probation and parole being most notable. Finally, a clearly distinct juvenile justice system also was created following the war.

The significant influence of Western ideas on corrections must be placed in the Japanese context. Although the form the correctional community has taken appears strikingly Western, the substance of the system must be viewed and understood within the social and cultural framework of Japan. The purpose of this section is to offer a brief explanation of the sentencing philosophy, a description of the organization and adminis - tration of the correctional system, an examination of both the institutional and non - institutional forms of sanctioning, and the identification of some of the critical issues confronting the correctional system.

Sentencing Philosophy

The traditional objectives behind sanctioning an offender are retribution, deterrence, isolation, and rehabilitation. Most countries emphasize one or more of these objectives as a rationale for their sentencing philosophy. In that regard, Japan is no different than the others. However, both practitioners within the Japanese justice system and foreign observers of it are in agreement that the Japanese tend to emphasize retribution and rehabilitation.

Before these two objectives are examined, it is important to mention why there is a greater impetus directed at them than at deterrence and isolation. Japanese and foreign commentators are fond of pointing out the homogeneity of Japan’s population and the social cohesiveness of the people, as illustrated by the importance placed on group associations. It is within this context that the Japanese sentencing philosophy must be understood.

In determining how to proceed with the disposition of an offender, the paramount concern for the Japanese is how the decision will benefit society. This goal is strikingly

266 Japan

F O S T E R , C E D R I C 1 6 9 2 T S

the reliability and competence of some assessors as factors in delays and postponements of trials. Related to these concerns was the cost of the assessor program in light of an underfunded court system (Gordon, 2006; Seligson, 2001; South African Law Commission, 1997).

LAW As was mentioned in the introduction to this book, South Africa is an example of a country that borrowed from both the Romano-Germanic and common law legal families. When the Dutch established an outpost in 1652 at the Cape of Good Hope for the United East India Company, they brought with them Roman-Dutch law. Roman-Dutch law was the law of the Netherlands in general and of the province of Holland in particular; it is considered a subset of the Romano-Germanic legal family. When the Cape came under the control of the British in 1806, the common law was introduced, but not totally, for the British guaranteed the continued use of Roman-Dutch law.

It is interesting to note that Roman-Dutch law was losing influence in the country of its origin, because at the beginning of the nineteenth century the Netherlands had embraced the codification movement by importing the Napoleonic code of France. As the British colonial power expanded in the region now called South Africa, English law influenced, and in some cases was adopted in, certain areas of law. For example, the English law of criminal procedure and the law of evidence were incorporated into the South African legal system in 1828 and 1830, respectively. Moreover, the English court system replaced the Dutch court hierarchy, and trial by jury, another common law feature, was introduced. When the Union of South Africa was established with a constitution in 1910, the position of English law was enhanced further. This would remain the case both before and during the period of apartheid (1948 to 1994).

It has also been suggested that the South African legal system in a sense incorporated characteristics associated with the socialist legal family during the period of apartheid. Just as socialist law was utilized by the Communist Party to advance its agenda in the Soviet Union, law, in the South African context, was a central feature of the National Party’s development and implementation of its apartheid policy. With the official demise of apartheid, the new political and constitutional order renewed its association more completely with the Romano-Germanic law and common law legal families. As a general rule, the Romano-Germanic, or more specifically, Roman-Dutch law is employed in the following areas: Roman-Dutch common law, law of contracts, law of delict (tort), law of the family, and law of persons. English law has influenced company law, laws of evidence, and the laws of procedure.

It should also be noted that customary law has had and continues to have a limited role to play in the legal system of South Africa. Customary law is associated with the indigenous legal systems that existed before the Dutch arrived in 1652. Customary law is unwritten and orally passed on to the next generation. It is associated with the original people living in South Africa and relates to the cultural traditions of a specific native group. Customary law, however, is not employed to decide issues associated with criminal law or

South Africa 337

F O S T E R , C E D R I C 1 6 9 2 T S

criminal procedure. Customary law tends to deal with issues associated with marriages, guardianship, land tenure, and succession.

Law Reform Commission

In 1973, the Law Reform Commission was created through the South African Law Reform Commission Act. Members of the Commission are appointed by the president of the Republic. It must include a judge either from the Constitutional Court, the Supreme Court of Appeal, or a High Court. Other Commission members may be judges, professors of law, advocates, or attorneys. The principal purpose of the Commission is to conduct research on any aspect of law with the objective of making recommendations to the government on improving, modernizing, or reforming the law. Programs of study must first be approved by the minister of justice and constitutional reform. The research is carried out by teams of in-house lawyers who have a good deal of experience in research and law reform. Among some of the more recent projects are community dispute resolution structures, family law and law of persons, adult prostitution, review of the law of evidence, and expunging certain criminal records.

Criminal Law

South Africa does not have a Criminal Code. Criminal laws essentially fall into one of two categories: common law offenses and statutory offenses that are recorded in the Govern- ment Gazette. Common law offenses are those crimes that have existed for centuries and are common to most societies. The tradition in some societies was that a number of these offenses were created by judges. With the establishment of modern democratic states, the judiciary has been prohibited from creating new crimes, as that responsibility has passed to the legislature. The common law offenses in South Africa include abduction, arson, assault, bestiality, bigamy, contempt of court, crimen injuria (impairing the dignity or privacy of a person), culpable homicide (negligent killing of a person), defamation, defeat - ing or obstructing the course of justice, exposing an infant (exposure and abandonment in which death is likely), extortion, forgery and uttering (forgery is making the document and uttering passing off a forged document), fraud, high treason, housebreaking with intent to commit a crime, incest, indecent assault, kidnapping, malicious injury to property, murder, perjury, poisoning, public indecency, public violence, rape, receiving stolen property, robbery, sedition, theft, violating a corpse, and violating a grave.

Statutory crimes are recorded in the Government Gazette, the official record of the government of South Africa. The Gazette publishes all government notices, presidential proclamations, regulations, and for our purposes, acts or amendments to existing acts of parliament. Thus, statutory crimes emerged as more modern forms of deviant behavior that often threatened the collective welfare of society—for example, crimes associated with environmental laws, road traffic offenses, substance abuse, and white-collar offenses. Organized crime has also generated offenses related to various criminal enterprises.

The judiciary does retain a role to play in defining new crimes, that is, in the context of judicial review. In those countries that have established a constitutional system

338 South Africa

F O S T E R , C E D R I C 1 6 9 2 T S

of govern ance in which the constitution is supreme, it is ultimately the responsibility of courts—in the case of South Africa, the Constitutional Court in particular—to monitor all legislation in order to determine if it is in compliance with the Constitution in general and the Bill of Rights in particular.

Criminal Procedure

Section 35 of the Constitution of the Republic of South Africa is devoted to several issues associated with criminal procedure. The section is referred to as “Arrested, detained and accused persons,” and it is divided into five parts. The first part is concerned with the rights of a person who has been arrested. These include the right to remain silent, which consists of being informed promptly of this right and the possible consequences of not exercising this right; the right not to be compelled to make a confession or admission; the right to appear in court within a reasonable time, which is not later than 48 hours after the arrest; the right to be informed of the charges at the first court appearance and the reasons to continue the detention, if necessary; and the right to be released from detention, if the circumstances are reasonable in the interests of justice.

The second part focuses on the rights of a person who is detained, and this includes people sentenced to a term of incarceration. The specific rights include the right to be promptly informed of the reason for the detention; the right to be informed promptly of the right to select and consult with a legal practitioner; in the event the person cannot afford a legal practitioner and in the interests of justice, the person should be promptly informed of the right to have a legal practitioner assigned at state expense; the right to challenge the lawfulness of the detention in a court; the right to have the conditions of confinement be consistent with human dignity, which consists of adequate accommodation, nutrition, medical care, and reading materials; and the right to communicate with and be visited by a spouse or partner, relatives, a chosen religious counselor, and a chosen medical practitioner.

The third part addresses issues associated with a fair trial. This deals with the right to be informed of the details of the charges; the right to have adequate time to prepare a defense; the right to a public trial in a regular court; the right to have the trial commence and conclude within a reasonable period of time; the right to be present during the trial; the right to choose and be represented by a legal practitioner, and in the event the person cannot afford a legal practitioner and in the interests of justice, the person should be promptly informed of the right to have a legal practitioner assigned at state expense; the right to be presumed innocent; the right to remain silent and not testify during the trial; the right to provide and to challenge evidence; the right not to be compelled to give self- incriminating evidence; the right to be tried in a language that the accused understands, and if this is not possible, the right to have a translator present; the right not to be convicted of an act of commission or omission that was not an offense under national or international law at the time of the alleged offense; the right not to be tried for an offense in which the accused has already been either acquitted or convicted; the right to receive the least severe of the sentences if the severity of the sentence has been changed from the time when the offense was committed and the time of imposition of the sentence; and the right to appeal to or have a review by a higher court.

South Africa 339

F O S T E R , C E D R I C 1 6 9 2 T S

The fourth part requires that all information communicated to the accused must be in a language that he or she understands. Finally, the fifth part states that the manner of collecting evidence must be excluded if it violated any right in the Bill of Rights on the grounds that the trial and interests of justice would be compromised. The rights listed in the Bill of Rights were cited earlier in the section on government, specifically the subsection on the Constitution.

In light of the history under the apartheid regime, the Constitutional Court has an important role to play in determining if the various agencies of the criminal justice system are in compliance with the aforementioned rights spelled out in section 35 of the Constitution that are associated with criminal procedures. The court was active straightaway in interpreting various rights in the justice process. As mentioned earlier, in the case of S v. Makwanyana (1995), the court ruled that the death penalty was unconstitutional because it violated the ninth (equality), tenth (human dignity), and eleventh (right to life) rights found in the Bill of Rights. In S v. Zuma (1995), involving the constitutionality of section 217 of the Criminal Procedure Act (1971) dealing with the admissibility of a confession in which a defendant had to prove his claim that a written confession was forced under duress, the court ruled that this was unconstitutional on the grounds of the presumption that a confession was made freely and voluntarily.

In addition, the case of S v. Ntuli (1995) centered on the issue of a provision in the Criminal Procedure Act (1971) that denied a prisoner the automatic right of appeal after having been convicted in a magistrate’s court without legal representation. The court ruled that this was unconstitutional on the grounds that the defendant was denied a fair trial. In S v. Williams (1995), the court ruled that corporal punishment of juveniles was unconstitutional because it violated the tenth (human dignity) and twelfth (freedom and security of the person) rights found in the Bill of Rights. Finally, in S v. Bhulwana (1996), the court addressed a section of an old law that did not support the notion of the presumption of innocence. The Drug and Drug Trafficking Act (1992) indicated that if a person had 115 grams of marijuana in his or her possession it was assumed that they were dealing in drugs. As such, the burden of proving otherwise fell to the accused. The court ruled that this was unconstitutional on the grounds that it violated such rights as the presumption of innocence, the right to remain silent, and the right to a fair trial.

Pretrial

Before the commencement of a criminal trial, it is the police and the public prosecutor who have investigated the alleged crime and determined that the case should be bound over for trial. It should be noted that South Africa’s criminal procedures enable a private prosecution to occur in the event that the public prosecutor declines to bring the matter to trial. A private person or his or her legal representative may conduct the private prosecution if the person can prove that he or she has a significant interest in the case or is a member of the victim’s family or a legal guardian of the victim. While the costs of a private prosecution are the responsibility of the prosecutor, the court may order the accused, if convicted, to pay the costs and expenses. If the private prosecution is unsuccessful, the court can order the private prosecutor to pay the costs and expenses of the accused. Before the start of a trial

340 South Africa

F O S T E R , C E D R I C 1 6 9 2 T S

involving a private prosecution, the public prosecutor may apply for a motion to stop the proceedings and institute a public prosecution.

With reference to the defense, the Legal Aid Act (1969) provides legal aid and representation to indigent people. The notion that all people should have representation in court irrespective of their ability to pay is enshrined in section 35 of the Constitution, which states that people detained have a right to consult with a legal practitioner or have one assigned at state expense. For a trial, people have a right to choose a legal practitioner or have one assigned at state expense. Legal Aid South Africa was created as a result of the Legal Aid Act (1969); it facilitates providing indigent people with legal assistance. With regard to criminal cases, Legal Aid South Africa first determines if the person is indigent. If this is the case, they then determine if the charges against the person could lead to a period of incarceration if convicted. If a sentence to prison is possible, the person would be granted aid through Legal Aid South Africa. Justice centers as well as law clinics associated with universities exist to provide legal aid.

Bail

The right to bail is addressed in section 35 of the Constitution, which indicates that accused persons may be released from detention when it is in the interests of justice. Conditions may be imposed. When the offenses are minor, the police may issue bail before the accused’s first appearance, which is secured only with a cash bond. Prosecutorial bail permits the release of the accused until the first court date. It is secured by a cash bond and has conditions imposed on the released person’s freedom. After the accused’s first court date, the ultimate decision to grant or continue bail passes to the courts. Conditions of bail include the typical restraints of requiring reporting to a specific person at a specific time, compelling the accused to remain within the jurisdiction of the court, restricting places the accused can frequent, and prohibiting communications with witnesses. The prerequisite for release on bail is a sum of money deposited with the court that may or may not require sureties.

The public outcry over the level and volume of violent crime in the country has led to restrictions on the use of bail by people accused of serious crimes. According to the Criminal Procedure Second Amendment Act (1997), it is the responsibility of the accused to claim that “exceptional circumstances” exist to warrant the granting of bail. This essentially precludes people charged with serious offenses, such as murder, rape, serious fraud, and major theft from being considered for bail. In S v. Dlamini (1999), the Constitutional Court supported the statute’s “exceptional circumstances” requirement, in part on the grounds that it was sensitive to public order issues, that is, the need to maintain the peace and security of the public. This was in reference to public disturbances over the release on bail of some people who had been charged with serious crimes.

Plea Bargaining

The Criminal Procedure Second Amendment Act (2001) codified the approach to plea bargaining. It permits the prosecutor and defense counsel to agree on the sentence to be

South Africa 341

F O S T E R , C E D R I C 1 6 9 2 T S

imposed. The court does not participate in the plea negotiations, and the agreement needs to be reached before the start of the trial. The court’s responsibility is to determine if the agreement is just and to examine the accused in order to determine if he or she understands the agreement and is admitting guilt to the allegations in the case.

The Trial

While the South African approach to criminal procedure is clearly accusatorial in nature, it should be noted that the court can subpoena a witness to appear at a trial and give evidence in the interests of justice. The party that is opposed to this is given an opportunity to offer a rebuttal. The court is entitled to question any witness for purposes of clarifying an issue but generally plays a passive role in the course of a trial. The standard trial procedures for the main hearing include the following steps:

1. While an opening statement by the prosecutor is not required, it can be helpful in complicated cases to assist the court in understanding the dimensions of the case.

2. The prosecutor then calls and examines witnesses. With the exception of some specific provisions in the law, witnesses must give their evidence orally.

3. Defense counsel is then permitted to cross-examine witnesses as they appear. 4. The prosecution may reexamine a witness after they have been cross-examined by

defense counsel. 5. If after the prosecution has closed its case and the court concludes that there is no

evidence or insufficient evidence to prove that the accused committed the offense charged with or any other offense, the court can return a verdict of not guilty.

6. Assuming the accused has not been discharged, the defense presents its case. Rarely does the defense make an opening statement about its case, because that has become clear through the cross-examination of the prosecution’s witnesses. While the defendant has the constitutional right to remain silent, if he elects to testify, he would speak first before any other witness for the defense and must testify under oath. The prosecution is permitted to cross-examine the accused. This is followed by defense counsel reexamining the accused.

7. Other defense witnesses are then called to testify. 8. The prosecution is then permitted to cross-examine defense witnesses as they

appear. 9. Defense counsel may reexamine a witness after they have been cross-examined by the

prosecutor. 10. The prosecutor may address the court with closing remarks. 11. The defense then offers closing remarks. 12. The court then returns a verdict. If the defendant is found not guilty, the person

is released immediately. If the defendant is found guilty, the court would impose a sentence. The sanction should not only fit the crime but also the defendant, that is to take into consideration the pre-sentence report on the offender and any mitigating or aggravating factors.

342 South Africa

F O S T E R , C E D R I C 1 6 9 2 T S

The Criminal Procedure Act (1977) explains the types of sentences that are available to courts. They include imprisonment, committal to a treatment center, a fine, or correctional supervision. The offender might also be considered for a suspension of the sentence with various conditions, a conditional or unconditional postponement from imposing the sentence, and a caution and discharge.

According to section 35 of the Constitution, everyone has the right to a fair trial, and this includes the right to appeal their case or to have it reviewed by a higher court. The purpose of an appeal or a review is to set aside either the conviction or sentence or both. An appeal is concerned with the substantive manner in which the decision was made. Thus, an appeal might challenge the facts of the case or the law and how it was interpreted. A review raises issues associated with the correctness of the proceedings.

It should be noted that some sentences of a magistrates’ court are automatically reviewed. There are two situations that prompt this automatic review. The first relates to whether the magistrate has served a minimum of seven years as a member of the judiciary. Less than seven years of service automatically leads to cases adjudicated in that person’s court being reviewed. The second reason for an automatic review deals not only with the length of service but also the nature of the sentence imposed. For example, if a magistrate with less than seven years of experience sentences a person to more than three months of incarceration, then an automatic review occurs. If a magistrate had more than seven years of experience and sentenced the defendant to more than six months in prison, then an automatic review would be justified.

Victims

According to section 234 of the Constitution of the Republic of South Africa, parliament can adopt various charters that are in keeping with enhancing the democratic provisions in the constitution. With reference to criminal justice, an important example of this is the Service Charter for Victims of Crime in South Africa. This charter was approved in late 2004 and implemented in late 2007. Essentially, the Charter states that victims of crime are entitled to services that are designed to eliminate the victim being victimized by the justice process, focus attention on the victim through the justice process, identify the services that are available to a victim, and provide victims with recourse if the justice process is out of compliance with the standards.

Among the rights spelled out in the Charter is the right to be treated with fairness and respect, especially as it relates to dignity and privacy. The police during an investigation and the prosecutors and other court personnel at trial have important roles to play here. The victim has the right to offer information. This could involve the police and prosecutors at the investigative and trial stages, but it also includes parole hearings. Another right is for the victim to receive information. This may include explanations in one’s own language, the availability of various services, the victim’s role in the case, the approximate duration and dates of the case, information about the witness protection program, information on the status of the case and that of the offender (arrested, charged, bail granted, indicted, convicted, and sentenced), and reasons to or not to prosecute. The right to be free from harassment and fear may lead to protection from such threats. The right to assistance may

South Africa 343

F O S T E R , C E D R I C 1 6 9 2 T S

involve counseling, health, or social services. The right to compensation deals with the loss or damage to property. Finally, there is the right to restitution for goods or property taken or damaged.

With regard to victim services, it has been suggested that the government should improve its funding for civil society organizations that assist with victim services. It is also recommended that research be conducted to identify best practices in providing such services, that minimum standards of service be established, and that effective methods to measure and regulate these services be created. Another suggestion is to explore the value of restorative justice with victims. The examples noted included family group conferences and victim–offender mediation. Finally, it is important to acknowledge that victimization can occur by the state while a person is in state custody. Of particular concern are the most vulnerable, that is children, the disabled, and the elderly (Frank, 2007).

CORRECTIONS In the new South Africa, two pieces of legislation are designed to regulate the correctional authorities. The Bill of Rights in the Constitution of the Republic identifies rights that were either not recognized or were disregarded under the apartheid regime. To illustrate, section 10 indicates that human dignity is a right that should be respected and protected. Section 11 proclaims the right to life, and as mentioned earlier, the Constitutional Court has ruled that the death penalty is unconstitutional. Section 13 prohibits people from being subjected to forced labor. Black prisoners were often forced to work during periods of incarceration, including in the private sector, such as on large farms during harvesting seasons.

It is section 12, however, that mentions a number of conditions to which prisoners were frequently subjected and that are now prohibited by the Bill of Rights. The Bill of Rights includes prohibitions against the denial of freedom without just cause, detention without a trial, torture, and cruel and inhuman treatment. Thus, like the police, courts, and law, the correctional system during the apartheid era was complicit in supporting the regime’s policies (Suttner, 2001).

The other piece of legislation that is significant is the Correctional Services Act (1998), which provides the regulations for the administration of the Department of Corrections in South Africa. The regulations encompass issues associated with prisons, community corrections, and parole.

Sentencing Philosophy

There are essentially four categories or rationales in sentencing: retribution, isolation, deterrence, and rehabilitation. The most prominent South African rationale tends to emphasize retribution often with isolation. The aim is usually to isolate the offender from the general public because of the harm and suffering caused by his or her criminal actions. Such a sanction may also include a fine and a period of correctional supervision. In light of the Constitution of the Republic of South Africa, capital and corporal punishments, which were common under the apartheid regime, are no longer permitted.

344 South Africa

F O S T E R , C E D R I C 1 6 9 2 T S

Also related to the issue of the law school curriculum is the lack of attention paid to professional ethics. In light of the documented concerns over corruption and malfeasance within the judicial system, there is an obvious need to address the apparent lack of a moral foundation in the legal profession. Those concerned with this dilemma argue that law schools should provide courses that teach how to address ethical conflicts in the workplace and establish professional rules of conduct. Thus far, such courses do not exist (Shepeleva and Novikova, 2014).

LAW The essential idea behind the democratization movement has been a recognition of the significance (indeed the necessity) of government by rule of law. The leadership of the Russian Federation has acknowledged its importance by indicating in Article 1 of their Constitution that “[t]he Russian Federation is a democratic and federal state based on the rule of law, with a republican form of government.” This acknowledgment is a first step, because throughout the history of the Soviet Union, government was ruled by ideology— specifically that of the Communist Party. Moreover, as has been indicated elsewhere, creating law does not in itself assure that it will be implemented or enforced.

As it relates to the criminal justice system, the rule of law is often associated with issues such as due process, presumption of innocence, and rules of evidence. What follows is a presentation of the changing nature of such issues, first in the context of the Soviet Union and then considered under the circumstances found in the Russian Federation. Of particular interest is the impact on criminal law and criminal procedure as the country moves from a set of assumptions based on government by rule of ideology to a government based on the rule of law.

The history of socialist law began in November 1917 when the Bolsheviks assumed power in Russia and established a new order that was intended to lead to the emergence of a communist society. In that society, both the state and law were to disappear as a result of becoming superfluous in a communist society. The Soviet leadership, however, never claimed to have established a communist society.

Starting in 1917, they were in the process of creating a socialist state in the Soviet Union. The purpose of a socialist state was to prepare for the emergence of a communist society. According to Soviet jurists, all law was used to exploit the masses. However, they held that socialist law was unique. In fact, they argued that there were only two kinds of law: nonsocialist law and socialist law. Nonsocialist law was more maturely developed in capitalist countries; its purpose was to assure the protection of private interest through the exploitation of the masses. Socialist law was dominated by the doctrines of Marxism– Leninism; its purpose was to establish a collective interest by exploiting conformity in accordance with the goals of the Communist Party. Soviet society was considered imperfect because of its dependence on the use of coercion to achieve some of its ends. Nevertheless, Soviet leaders contended that their use of law was far superior to that found in capitalist countries.

Although the history of socialist law began in 1917, the Bolshevik break with the past was not a total rejection of previous practices. Admittedly, the substance of law changed

Russia 417

F O S T E R , C E D R I C 1 6 9 2 T S

drastically, causing socialist law to become a distinct legal family, but much of its form could be traced back to the Romano-Germanic tradition. The importance placed on codifying the law, the retention of many of the formal judicial organizations, and the rules of pretrial procedure were noticeably similar to those found in Romano-Germanic countries.

With the advent of Gorbachev’s leadership and his attempts at redefining communist ideology, the reform of law was raised to a new status. The impetus for this reform was based on Gorbachev’s views of democratic socialism. To summarize, democratic socialism required governance through the rule of law. Law assured individual rights and freedoms and was designed to control the potential abuse of power by the authorities. In order to achieve this form of democracy within the Soviet Union, constitutional and other legal reforms were necessary. Reforms had already been introduced in the judiciary. Efforts were also underway to change substantive and procedural law.

From a Western perspective, the history of socialist criminal law was marked by a lack of clarity, while criminal procedure suffered from arbitrary enforcement. Both were products of the Bolshevik leaders’ failure to create an orderly plan to replace the law of the tsarist regime that they had abolished. Some efforts at codification were undertaken following the adoption of the 1918 Constitution, but it was not until the early 1920s that an extensive attempt to systematize the law was commenced in earnest. In 1922, the Criminal Code of the RSFSR (Russian Socialist Federative Soviet Republic)—the largest of the 15 republics— was adopted. Its purpose was to unify the criminal law and to check the indiscriminate practices of revolutionary tribunals and the Cheka. It also served as a model code for the other union republics.

Although the code systematized the law to some extent, it did not really clarify its limits. In the general section of the code, two principles were introduced establishing both the uniqueness of socialist criminal law and perpetuating its vague and arbitrary characteristics. One of those principles was the material definition of crime; it was expressed in Articles 6 and 7 of the code:

A crime is any socially dangerous act or omission which threatens the foundations of the Soviet structure and that system of law which has been established by the Workers’ and Peasants’ Government for a period of transition to a Communist structure.

A person is dangerous if he commits acts which are injurious to the community, or if his actions present a serious menace to the established laws of the community.

The Soviets, therefore, established a principle stating that acts or omissions that were criminal did not have to be specifically described in the code. Rather, any act or omission that was deemed “socially dangerous” was a crime. Thus, the code lacked a specific definition of crime. Such an approach was alien to the Western method of codification. It also assured the continuance of broad discretionary powers for the investigative arms of the Soviet criminal justice system.

The second principle, known as the principle of analogy, was a logical extension of the first. It was found in Article 10 of the code:

418 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

In the case where the Criminal Code makes no direct reference to particular forms of crime, punishment or other measures of social protection are applied in accordance with those Articles of the Criminal Code which deal with crimes most closely approximating, in gravity and in kind, to the crimes actually committed, and in conformity with the regulations laid down in the General Section of the Present Code. . . .

With such a principle in force, a formal criteria for criminal liability was absent from the code. Defenders of the principle alleged that the revolutionary nature of the time warranted the use of this concept. However, it further enhanced the elastic interpretation the courts and investigative agents could apply to an accused’s criminal conduct.

The codes were revised again in 1926, but the principles of material definition and analogy remained intact. In fact, they were more harshly interpreted throughout Stalin’s regime, especially during the purges of the 1930s. Stalin’s measures led a number of prominent scholars to criticize these principles. They were abolished when the Soviet leadership attempted to divorce itself from the methods of Stalin in the late 1950s. Although attempts were made to reduce the ambiguity of the law and to modify its severe application, the leadership did not totally abandon Stalin’s methods. Critics contend that despite the fact that the principle of analogy was rescinded, it remained effective in spirit. In fact, it has been suggested by some scholars that everything was prohibited in the Soviet Union unless a law stated otherwise.

Finally, one of the most persistent causes for ambiguity in socialist law was the number of government branches with authority to enact law. Although this problem had existed since 1917, it was illustrated by the current guidelines established under the 1977 Constitution. These were essentially the same rules that existed under the 1936 Constitution, so they had been a part of the legislative process for some time. Unlike a common law country that finds its sources of law in legislation, judicial decisions, and custom, the socialist legal system more closely subscribed to the continental legal system’s method of legal sources. The supreme law-making authority was vested in the popularly elected legislative bodies. In the Soviet Union, this included the Supreme Soviets of the 15 republics as well as the ultimate legislative authority, the Supreme Soviet of the USSR. Moreover, the doctrine of separation of powers had been absent from the Soviet political system. Both the judiciary and the executive were ultimately accountable to the legislative branch.

At this point in this discussion, it would appear that the Soviet Union had a highly efficient and orderly lawmaking system. However, although law was enacted by the Supreme Soviet and the various union republics, the Constitution authorized other government branches to legislate as well. The Supreme Soviet could issue decrees and acts; the Presidium of the Supreme Soviet could amend legislation, issue edicts, and adopt resolu - tions; the Council of Ministers could issue decrees and resolutions; and the various local units of state administration could adopt and execute decisions and orders. There was concern that many of these units of government did not publish their decrees or resolutions. For example, it had been suggested that 80 percent of the acts issued by the Council of

Russia 419

F O S T E R , C E D R I C 1 6 9 2 T S

Ministers were not published (Dobek and Laird, 1990). Thus, the people were left unaware of acts (by commission or omission) that violated established policy.

The number of agencies empowered to legislate and the amount of legislation enacted had created a serious dilemma. This situation was compounded further when the legislation was not published. This problem had existed since 1917. Despite Soviet attempts to reduce the ambiguity through codification, it persisted. The situation created difficulties for agencies responsible for interpreting and enforcing the law. For the Soviet criminal justice system, this overwhelming amount of legislation merely added to the ambiguity of the law and the arbitrary fashion with which it was administered.

In the 1980s, the Soviets attempted to address the issues of ambiguity and arbitrariness in their legal system. For example, the Institute of State and Law of the USSR Academy of Sciences produced a document called the “Theoretical Model of a Criminal Code (General Part)” in 1985. It was used as a point of departure in the debates about revising the criminal law, and in 1990, it was instrumental in the draft and adoption of amendments to the Fundamentals of Criminal Legislation of the USSR. In the course of these discussions, it became obvious that a more liberal sentencing policy would likely receive the most immediate benefit from these efforts at reform (Butler, 1988).

In another development, the Law of Appeals went into effect in 1988. It provided citizens with a right of appeal when they thought that the actions of an official of the government had in some way violated their rights. This legislation was expected to curtail the arbitrary actions of bureaucrats—particularly those involved with employment and housing law. According to Soviet legal experts, the law would not have a significant impact on agents of the criminal justice system because provisions in the act limited the actions that could be taken against members of the KGB, and complaints against the Ministry of Internal Affairs appeared to be excluded from the legislation (Quigley, 1988a). Nevertheless, these developments suggested that a new climate of opinion was emerging in the Soviet Union, and if it was permitted to continue, additional legislation might be forthcoming that would specifically address concerns related to arbitrary actions of agents of the criminal justice system.

Criminal Law

In an attempt to revise the criminal law, the Supreme Soviet of the USSR adopted several new laws in 1958. These included the Fundamentals of the Criminal Legislation of the USSR and the Union Republics, the Law on Criminal Responsibility for Crimes against the State, the Law on Criminal Responsibility for Military Crimes, and the Fundamentals of Criminal Procedure of the USSR and the Union Republics. The Fundamentals served as a binding model, with each Soviet republic establishing its own laws. The intent behind these reforms was to clarify the laws and to eliminate the arbitrary fashion with which they were previously enforced. In short, it was an attempt to de-Stalinize the Soviet criminal justice system. In addition, each union republic was required to amend its existing laws to conform with the new basic principles established by the Supreme Soviet and to enact new criminal codes and codes of criminal procedure. This was largely accomplished during the early 1960s.

420 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

With the collapse of the Soviet Union, the government of the Russian Federation adopted the Criminal Code of the RSFSR as its own and then proceeded to make incremental amendments to it. Much of this effort had been directed at eliminating issues that were based on ideology rather than the rule of law. To illustrate, a person in the Soviet Union could be imprisoned for involvement in a commercial activity. Today, the Russian leadership wants its citizens involved in commercial activities in order to strengthen its market economy. Thus, one of the obvious changes in the criminal code was that it was no longer a crime to be involved in a commercial venture. It also should be pointed out that the change in economic system resulted in several new types of economic crime. They included violating securities procedures, false business activities, violating antimonopoly laws, divulging commercial secrets, and violating the tax laws.

One of the more troublesome issues with the adoption of the old Criminal Code was the retention of the general definition of crime. The Russians insist on retaining the old Soviet term “socially dangerous act” in the definition (Finckenauer, 1995; Van Den Berg, 1992). From a Western perspective, we expect our criminal laws to meet objective standards that are rational, certain, and impartial. By meeting these standards, there is a greater likelihood that people will be treated fairly and equally. Including the concept of “socially dangerous” lends itself to arbitrary, capricious, and discriminatory interpretations of a person’s actions. The history of criminal justice in the Soviet Union offers numerous illustrations of arbitrary investigations and questionable convictions. The concern then is that the Russians are apt to continue such practices, which has led one scholar to suggest that “the rule of law in Russia is, as of yet, an illusory goal” (Finckenauer, 1995).

In 1996, a new Criminal Code of the Russian Federation was introduced. It replaced the Criminal Code of the RSFSR that was originally enacted in 1960 and amended after the demise of the Soviet Union. The new Criminal Code of the Russian Federation took effect in 1997 and was amended in 1998. It is divided into two parts: the general part and the special part. The entire code is subdivided further into 12 sections, 34 chapters, and 360 articles. The general part is subdivided into six sections that are titled: (1) criminal law, (2) crime, (3) punishment, (4) relieving from criminal responsibility and punishment, (5) criminal responsibility of minors, and (6) compulsory measures of medical character.

The principal purpose of the Soviet criminal law was to protect the socialist political and economic system, along with the socialist legal order. The purpose of the 1996 Criminal Code is strikingly different, and the tasks are spelled out in Article 2: “protection of the rights and freedoms of man and citizen, ownership, public order and public security, the environment, and the constitutional system of the Russian Federation against criminal infringements, ensuring the peace and security of mankind, and also the prevention of crimes.”

While “socially dangerous act” has been retained in the definition of crime, critics of the term, when employed in the Soviet context, should note that it is not being used as it had been in the past. Moreover, other principles and standards have been introduced into the new Code that are designed to prevent arbitrary, capricious, or discriminatory investi - gations that could lead to questionable convictions. To illustrate, Article 1 states: “Criminal legislation of the Russian Federation shall consist of the present Code. New laws providing for criminal responsibility shall be subject to inclusion in the present Code.” Thus, the Code

Russia 421

F O S T E R , C E D R I C 1 6 9 2 T S

is supposed to be an all-inclusive document. Article 3 points out that “[t]he criminality of an act, and also the punishability thereof and other criminal-law consequences, shall be determined only by the present Code. The application of a criminal law by analogy shall not be permitted.”

In addition to the principle of legality, the new Code includes other principles that are designed to differentiate this Code from the codes of the Soviet era. Article 4 speaks to the principle of equality of all persons before the law; Article 5 addresses the principle of guilt, that is, the need of the authorities to establish guilt; Article 6 is devoted to the principle of justness, which is concerned with determining an appropriate level of punishment; and Article 7 is concerned with the principle of humanity, which prohibits the assessing of sanctions that cause either physical suffering or are demeaning to an individual.

The issues of intent and negligence are considered under Articles 25 and 26, respectively. Article 25 states:

An act committed with direct or indirect intent shall be deemed to be a crime committed intentionally.

A crime shall be deemed to be committed with direct intent if the person was aware of the social danger of his actions (or failure to act), foresaw the possibility or inevitability of the ensuing of socially dangerous consequences and wished the ensuing thereof. A crime shall be deemed to be committed with indirect intent if the person was aware of the social danger of his actions (or failure to act), foresaw the possibility of the ensuing of socially dangerous consequences, did not wish them, but consciously permitted these consequences or was indifferent to them.

Article 26 explains negligence:

An act committed through thoughtlessness or carelessness shall be deemed to be a crime committed through negligence. A crime shall be deemed to be committed through thoughtlessness if the person foresaw the possibility of the ensuing of socially dangerous consequences of his actions (or failure to act) but without sufficient grounds arrogantly counted on the prevention of these consequences.

A crime shall be deemed to be committed through negligence if the person did not foresee the possibility of the ensuing of the socially dangerous consequences of his actions (or failure to act), although with necessary attentiveness and prudence these consequences should and could have been foreseen.

Two factors influence criminal responsibility: age and mental capacity. People who have reached 16 years of age are subject to criminal responsibility. Although people under the age of 16 are generally not subject to criminal responsibility, there are a number of exceptions made to this rule. Young people who have attained the age of 14 and have committed certain serious crimes may be prosecuted. The crimes for which a young person may be prosecuted include homicide; intentional causing of grave harm to health; intentional causing of average gravity of harm to health; stealing a person; rape; forcible actions of

422 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

sexual nature; open stealing; assault with intent to rob; extortion; unlawful taking possession of an automobile or other means of transport without the purpose of stealing; intentional destruction or damaging of property under aggravating circumstances; terrorism; taking a hostage; knowingly making a false communication concerning an act of terrorism; hooligan - ism under aggravating circumstances; vandalism; stealing or extortion of a weapon, ammunition, explosive substances, or explosive devices; stealing or extortion of narcotic means or psychotropic substances; and the destruction of transport or railways into unfitness.

By way of clarification, it should be noted that the term hooliganism refers to a specific criminal offense that existed under Soviet law and has been retained with the new Russian law. According to Article 213, hooliganism is defined as “the flagrant violation of public order expressed by a clear disrespect for society accompanied by the application of force to citizens or by the threat of the application thereof, and likewise by the destruction or damaging of another’s property. . . .” It has long been one of the most common types of offenses committed in the country.

The other factor that determines a person’s criminal responsibility involves mental capacity. People who are in a state of nonimputability (that is, not aware of the character and consequences of their actions because they suffer from chronic or temporary mental disturbance, feeble-mindedness, or other mental illnesses) are not subject to criminal responsibility. Article 21, however, states that “compulsory measures of a medical character provided for by the Code may be assigned by a court to a person who has committed a socially dangerous act in a state of nonimputability. . . .” This could possibly lead to the person’s commitment to a general or special psychiatric hospital. The use of psychiatric hospitals in the Soviet Union had been a topic of intense dispute, because political dissidents often found themselves sent to such facilities. At issue in those cases were the criteria used to determine mental illness, derangement, or deficiency. For example, critics of the Soviet system alleged that the desire to emigrate to Israel should not have been grounds for such a commitment, but such a criterion was used for that purpose in the past. It should also be noted that defendants who commit crimes while in a state of intoxication are not free from criminal responsibility. According to Article 23, the state of intoxication can be caused by alcohol, narcotics, or other stupefying substances.

The general part of the code also contains a section on punishments. The code lists three purposes for punishment that include restoring social justness, reforming the convicted person, and preventing the commission of a new crime. As was the case during the Soviet era, the Russians make a distinction between punishments that are considered either basic or supplementary measures. These were identified in Article 45:

Obligatory tasks, correctional tasks, limitation in military service, limitation of freedom, arrest, confinement in a disciplinary military unit, deprivation of freedom for a determined period, deprivation of freedom for life, and the death penalty shall be applied only as basic types of punishments.

A fine and deprivation of a right to occupy determined posts or to engage in a determined activity shall be applied either as basic or as supplementary types of punishments.

Russia 423

F O S T E R , C E D R I C 1 6 9 2 T S

Deprivation of a special, military or honorary title, class rank, and State awards, and also confiscation of property, shall be applied only as supplementary types of punishments.

Notably absent from this list of punishments are the sanctions of exile and banishment. These sanctions were utilized for a number of years during the Soviet regime; both were eliminated shortly before the collapse of the Soviet Union.

The death penalty is considered an acceptable sanction in exceptional cases and those instances include homicide, infringement on the life of a State or public official, and genocide. The method of carrying out the sanction is through shooting a bullet in the back of the head. It is interesting to note that the code prohibits carrying out the death penalty on women, people who committed the crime before reaching the age of 18, and men who have attained the age of 65 at the time of sentencing. In addition, through the pardon process, a death sentence can be replaced by a sentence of deprivation of freedom for life or deprivation of freedom for 25 years. Finally, the Russian Federation suspended the use of capital punishment in 1997 (Mikhlin, 1999).

The special part of the 1996 Criminal Code is subdivided into six sections that represent the major crime categories: (1) crimes against the person, (2) crimes in sphere of economy, (3) crimes against public security and public order, (4) crimes against the state, (5) crimes against military service, and (6) crimes against peace and security of mankind. Each crime is listed under one of these categories with the specific elements that constitute the offense and the type of sanction that may be imposed. To illustrate, Article 162, the crime of assault with intent to rob, states: “Assault with intent to rob, that is, an attack for the purpose of stealing another’s property committed with the application of force dangerous for life or health, or with the threat of the application of such force shall be punished by deprivation of freedom for a term of from three up to eight years with or without confiscation of property.” This article also includes subsections devoted to when this offense is committed either by a group of persons or by an organized group. In those instances, the sanction of deprivation of freedom ranges from seven to 12 years and from eight to 15 years, respectively.

Russia is clearly a country in transition, moving from one set of political ideals and economic principles to a profoundly different set of ideals and principles. The 1996 Criminal Code of the Russian Federation illustrates that fact well, for it is similar to criminal codes found in Western democratic countries. Many similarities have to do with Russia’s attempt to establish a market economy. Some parts of the code, however, are unique to the country’s experience. They reflect either the Soviet past or the current transitional phase that the country is and will continue to confront for the foreseeable future.

Criminal Procedure

When the Code of Criminal Procedure of the RSFSR was introduced in October 1960, it was designed (like the criminal code) to de-Stalinize the Soviet criminal justice system. It is worthwhile to note some of the basic or fundamental principles that were expressed in the code. Among the more important principles, Article 2 stated that no innocent person

424 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

would be prosecuted or convicted. Unfortunately, the application of this principle was largely ignored in practice—an allegation that has been supported by critics both in and out of government. Article 13 assured that only the courts would administer justice, suggesting that counterrevolutionary trials would no longer be handled by military tribunals. Article 16 proclaimed that judges and people’s assessors were independent and subordinate only to the law. The principle of judicial independence must be viewed within the context of Soviet ideology, for the article also stated that court decisions were made “in conformity with socialist legal consciousness,” which was determined by the CPSU.

Article 14 stated that the administration of justice was based on equality of all citizens before the law and courts. Nationality, race, religion, and social or economic status were not supposed to affect the outcome of the case. Soviet jurists had been fond of claiming that this principle was frequently violated in capitalist countries. This was one of the reasons frequently offered for the superiority of socialist law over capitalist law. Article 17 assured that judicial proceedings would be conducted “in the language of the majority of the local population.” This was considered an important principle because of the number of ethnic groups that resided in the Soviet Union. The right to a public trial was granted under Article 18. There were some exceptions to this rule, however. For example, trials involving state secrets were not open to the public, and the court could decide to conduct closed trials if the defendant was under 16 years of age or when the case involved a sex crime.

Finally, the Soviets maintained that there was an implied presumption of innocence in their law. Whether the presumption truly existed has been a hotly debated issue among both Soviet jurists and Western experts on socialist law. If one accepts–at least in theory—the role of the procurator, a case could be made for the existence of this principle. Although the presumption of innocence was implied in a number of articles in the code and in other pieces of Soviet legislation, Article 20 was often cited as an important illustration of this sentiment. It proclaimed that “a thorough, complete and objective analysis of the circumstances of the case” was an obligation of the procurator, the investigators, and the court. A number of critics argued that this was not the case, and they pointed to countless examples of accusatory bias by judges and procurators to prove their point. Much of the bias was the result of the Soviet procedure’s focus on the “objective truth” of the case, that is, the factual guilt of the accused. This procedure did not make a distinction between factual guilt and legal guilt, which is an important feature of the adversarial process. As such, courts frequently permitted the procurator to conduct supplementary investigations into a case after the trial had started.

Though the code was designed, in part, to de-Stalinize the Soviet criminal justice system, experts on the earlier codes argued that the procedural codes were not substantially different from the codes in force during Stalin’s regime. Obviously, the hope was that Soviet citizens would be assured legal protection as a result of these procedural guarantees. A number of Western experts believed that the average Soviet citizen was protected, but they were quick to point out that this was not the case for political dissidents. Critics of the Soviet system contended that procedural abuses continued despite attempts at reform, but that the abuse was not nearly as blatant nor as harsh.

Upon the dissolution of the Soviet Union, Russia continued to use the Code of Criminal Procedure of the RSFSR in an amended form as the Code of Criminal Procedure of the

Russia 425

F O S T E R , C E D R I C 1 6 9 2 T S

Russian Federation. There was a healthy skepticism regarding the ability or willingness of agents of the Russian justice system to comply with the new procedural protections. Of course, the Russian Federation’s new Constitution assured a commitment to a number of fundamental procedural rights that were designed for people involved in the justice process. Article 15 states: “Bodies of state power, bodies of local self-government, officials, citizens and associations of citizens, must observe the Constitution of the Russian Federation and the laws.” Article 46 proclaims: “Everyone is guaranteed judicial protection of his or her rights and liberties.” Article 49 indicates: “Everyone accused of committing a crime is presumed innocent until his or her guilt has been proved according to the procedure stipulated by federal law and established by a court verdict that has entered into force. An accused person is not obligated to prove his or her innocence.” Finally, Article 50 assures: “No one may be convicted more than once for the same crime.” Some of these constitutional rights were strikingly similar to the protections enunciated in the old Code of Criminal Procedure of the RSFSR. As a result, there was some uncertainty as to whether the agents of the justice system would display deference toward these constitutional rights. At issue was whether the agents of the justice system had accepted the principle of government by rule of law.

While a new Criminal Code was approved in 1996, the initial attempts were unsuccess - ful at drafting a new Code of Criminal Procedure. Some commentators were concerned that the office of the procurator retained too much authority. Critics argued that the new code should enhance the independence of the judiciary and strengthen the role of defense counsel in the process (American Bar Association Central and East European Law Initiative, 1996). Finally, on July 1, 2002, and after having been amended four times, the 2001 Code of Criminal Procedure of the Russian Federation went into effect.

The new Code is significant because it introduces several changes to the criminal procedural process that did not exist in the old Soviet code. As such, a new approach to criminal procedure has been introduced with this Code. Chapter 2 of the Code is devoted to explaining the philosophical principles that are the foundation for the rules that guide the procedural changes. The purpose of the criminal court proceedings is to protect the rights of people and organizations who are victims of crime and to protect the rights and freedoms of people who have been unlawfully accused or convicted of an offense. The principle of legality states that any violation of the procedural norms of the Code by a court, procurator, investigator, or body of inquiry in gathering evidence would lead to that evidence being declared inadmissible. Other principles point out that justice will be administered only by a court and that the procedures employed in the court will be of an adversarial nature. Thus, the court is independent of the procurator, and the accused will be represented by counsel in many circumstances. With the declaration of the presumption of innocence, the burden of proof is clearly placed on the procurator. A number of principles speak to prohibiting violations to the honor and dignity of participants in a criminal proceeding, protecting people from illegal arrest and detention, protecting peoples’ rights and freedoms, prohibiting illegal searches and seizures, guaranteeing the right of a defense, and the right of appeal against procedural actions or decisions of the trial court. The two most prominent changes are judicial supervision at the pretrial stage, which still employs

426 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

an inquisitorial approach while also enhancing the independence of the judiciary, and an adversarial process during the trial.

An examination of criminal procedural issues is divided into two categories. The first involves the pretrial process, which includes police and procurator powers, along with other issues pertinent to the preliminary investigation. The second category is concerned with the trial process. It consists of the main hearing as well as appellate reviews.

Preliminary Investigation

Once a complaint has been received by the police or procurator, a decision to initiate a case has to be made. Even before that, a written report is entered into the record that confirms the complaint was received by the appropriate authority. Anonymous complaints are not grounds for starting an investigation. The decision to proceed must be made within 72 hours of receiving the complaint, but the period can be extended by a procurator for up to 10 days. Either an investigator with the consent of a procurator or the procurator will issue a decree to initiate an inquiry into the matter. After a decree has been approved, a preliminary investigation begins. Either an investigator from the procurator’s office or the politsia usually conducts the investigation. The procurator, however, is mandated at all times to supervise the entire process. If a decree is issued that refuses to initiate an inquiry, obviously with reasons for such a decision, an appeal can be made to the procurator or to the court. The Code also permits a private accusation, which enables the victim of a crime to initiate a prosecution through an application to the court.

The preliminary investigation should normally be completed within two months, with a possible extension of up to six months. Further extensions are possible depending on the complexity of the case. It should also be noted that during this investigative stage the Code now permits defense counsel or the suspect and a victim or a civil plaintiff the right to interrogate witnesses, to conduct their own investigation, and to collect evidence that they may deem pertinent to the case.

There are a number of legal issues—most importantly, the rights of the accused—that are of great concern during a preliminary investigation. These will be examined presently. For the moment, though, assume that the preliminary investigation has been completed. At this stage of the process, a decision must be reached either to indict the defendant or to terminate the case based on the evidence collected. The procurator scrutinizes the investigator’s recommendation in all instances. If the investigator recommends the issuance of an indictment, the procurator can concur and prosecute the case or vacate the recom - mendation and terminate the case. If the investigating officer favors terminating the case, the procurator will either concur or decide to indict the defendant. In all cases, the ultimate decision rests with the procurator.

Articles 24 through 28 of the Code explain the reasons for terminating a criminal prosecution. Among the more obvious reasons for refusing to initiate a prosecution are the absence of a crime, the absence of evidence, the expiration of the time to initiate a prosecution for the specific offense, and the death of the suspect or the accused. Other reasons for declining to prosecute include whether the parties have reconciled and the

Russia 427

F O S T E R , C E D R I C 1 6 9 2 T S

incident was a first-time offense that is considered of average gravity, and whether the accused is no longer considered socially dangerous. Finally, a prosecution might be halted in connection with Article 75 of the Criminal Code of the Russian Federation. Article 75 states in part:

A person who committed a crime for the first time of average gravity may be relieved from criminal responsibility if after the commission of the crime he voluntarily acknowledged his guilt, facilitated the eliciting of the crime, compensated the damage caused or otherwise made amends for the harm caused as a result of the crime.

If an indictment is sought in the case, the next phase of the process is a trial in a court of first instance. Before that process is described, however, it is important to examine some of the procedural issues involving the rights of the accused during the preliminary investigation.

Power to Detain

According to the Code, the investigators have the right to detain a person suspected of committing a crime for which punishment may be assigned in the form of deprivation of freedom, only if one of the following grounds exists: if the person is caught committing the crime or immediately after committing it, if the person is identified by eyewitnesses, and if the person has traces of the crime on him or her or at his or her place of residence. Other reasons for detaining a person include when information suggests that the person is a suspect and he or she either attempts to flee, has no permanent address, or his or her identity cannot be established.

Following such a detention, the procurator must be notified within 12 hours. Within 48 hours, the procurator must either approve the confinement or order the person’s release. The Constitution of the Russian Federation lends further credence to this policy, for Article 22 states “[a] person may not be subjected to detention for more than 48 hours before a court decision is rendered.” Once a person is detained, he or she has the right to see counsel, and this must be honored within the first 24 hours of detention. Unfortunately, breaches of this right occur frequently.

Before a suspect is interrogated, the suspect must be informed of his or her rights, which include the right to know what crime(s) he or she is accused of committing, and the opportunity to offer explanations, submit petitions, and appeal from the actions and decisions of the person conducting the investigation. If the suspect is being detained, he or she must be interrogated within the first 24 hours of detention, and defense counsel has the right to be present during this initial interrogation. This right is also circumvented by the police by claiming that the person is not being detained, but is present in an informal capacity to assist the police with their enquiries.

If sufficient evidence has been collected, the investigating officer may issue a decree to prosecute the suspect as the accused. Once the accusation is presented, the investigator is “obliged to explain to an accused his rights.” These rights are explained in the Code, which states, in part:

428 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

The accused shall have the right: to know what he is accused of and to give explanations concerning the accusation presented to him; to present evidence; to submit petitions; to become acquainted with all the materials of the case upon completion of the preliminary investigation or inquiry; to have defense counsel; to participate in the judicial examination in the court of first instance; to submit challenges; and to appeal from the actions and decisions of the person conducting the inquiry, the investigator, procurator and court.

It is important to point out that under Soviet procedure the accused was not permitted assistance of counsel until after a formal charge had been submitted. The Constitution of the Russian Federation, however, changed this timetable to benefit the accused. Article 48 states: “Everyone who is detained, put in custody or charged with committing a crime has the right to avail himself or herself of the assistance of a lawyer from the time he or she is detained, put in custody or charged.” Although a suspect has a right to counsel, many do not have representation during this initial phase of the process. Often, the person cannot afford to pay for this service and the authorities often allege that they are having a difficult time finding counsel that is available and willing to take on the case at this initial stage. This is unfortunate, because it is at this phase in the process that a suspect often needs counsel the most to protect his or her rights.

Power to Search and Seize

Article 12 of the basic principles of the Code focuses on the inviolability of the living quarters. It states in part that “[a]n examination of the living quarters shall be carried out only with the consent of the persons residing in them, or on the ground of a court decision . . .” Searches may be permitted:

If an investigator has sufficient grounds to suppose that the instruments of a crime, or articles or valuables criminally acquired, or other articles or documents which may be of significance for the case, are on some premises or in any other place or are in someone’s possession, he shall conduct a search to find and remove them.

A search may also be conducted for finding wanted persons, as well as corpses. A search shall be conducted in accordance with a reasoned decree of the

investigator and only with the sanction of a procurator. In instances not permitting delay, a search may be conducted without the sanction of a procurator, but the procurator must be informed subsequently within one day of the search.

Witnesses should be present during searches and seizures. The accused, an adult member of the family, or a representative of the manager of an apartment complex may serve as witness to the investigation. Moreover, only items pertinent to the investigation may be seized. Article 13 of the basic principles addresses the issue of privacy. “Restrictions of the citizen’s right to the privacy of the correspondence, of the telephone and other talks, of the postal, telegraph and other communications shall be admissible only on the ground of a court decision.”

Russia 429

F O S T E R , C E D R I C 1 6 9 2 T S

Searches of persons are subject to the same regulations as searches of objects. In addition, a personal search may be conducted during detention or confinement or in any other place if there is sufficient cause to believe a person is concealing information that is pertinent to the case. Personal searches are conducted in the presence of witnesses of the same gender. These policies have essentially been reiterated in Chapter 2 of the Constitution of the Russian Federation dealing with human and civil rights and liberties.

Measures of Restraint

In order to assure cooperation throughout the preliminary investigation and trial, the investigator, procurator, or court can impose measures of restraint upon the accused. A number of factors are taken into consideration when selecting a measure. These include the seriousness of the accusation as well as the accused’s criminal history, personality, employment status, age, state of health, family situation, and other circumstances.

Several options available to the authorities are categorized as measures of restraint. For example, an accused’s written promise not to depart from his or her residence without the investigator’s approval may be a sufficient restraint in some cases. Personal surety is another method. This is a signed promise from a minimum of two people who are willing to ensure the good conduct of the accused. Surety of a social organization is similar to a personal surety. The difference is that the restraint is ensured by a social organization with whom the accused is associated. Confinement under guard is yet another method. The standard term of confinement cannot exceed two months, but extensions are permitted in exceptional cases. Finally, bail (in the form of money or valuables that are deposited with the court) is a method of restraint. When people evade the authorities while on bail, the money is turned over to the state.

Defense Counsel

Out of all the members of the Russian courtroom work group, defense counsel has the potential for the most significant role expansion. In the Soviet system, defense counsel’s involvement was permitted only after the preliminary investigation was completed. Thus, until counsel was selected, the procurator was the sole guardian of the accused’s rights. During the last few years under the Soviet system, this policy was superseded by a law that permitted suspects, the accused, and defendants access to counsel at the time of their detention, arrest, or the filing of charges. Some experts have alleged that under the Soviet system, the primary role of defense counsel was to attempt to mitigate the accused’s responsibility based on the circumstances of the case. In addition, the accused could choose to refuse the assistance of counsel.

In the Russian Federation, a person now has a constitutional right to assistance of counsel. Article 48 states: “Everyone is guaranteed the right to receive qualified assistance. In cases stipulated by law, legal assistance is provided free of charge. Everyone who is detained, put in custody or charged with committing a crime has the right to avail himself or herself of the assistance of a lawyer (defender) from the time he or she is detained, put in custody or charged.” It is this constitutional right that provides the basis for the potential

430 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

expansion of defense counsel’s role in the courtroom work group. With the new Code of Criminal Procedure, the role of defense counsel has been enhanced further.

According to Article 49 of the code, the accused has a right to counsel at various stages in the procedural process. These include the moment a criminal case is instituted, the moment a person is detained, the moment a person is declared a suspect, the moment a person’s rights and freedoms are procedurally infringed upon, and the moment a ruling orders a person to trial.

The accused has the right to refuse the use of counsel, but he or she must state this request in writing. There are some occasions when the utilization of defense counsel is required. These are cited in Article 51 of the code and include cases in which the suspect has not refused the use of counsel, the suspect is underage, the suspect cannot exercise his or her rights because of a physical or psychological defect, the suspect does not have a command of the language in which the case is being conducted, the suspect is accused of an offense in which the punishment is a form of deprivation of freedom of at least 15 years or harsher, or the suspect is scheduled to have a jury trial.

There are also several rights and duties given to defense counsel. These include meeting with the accused; collecting and presenting evidence; employing specialists to assist with the defense; being present when the accusation is brought; taking part in the interrogation of the accused, as well as other investigative actions; acquainting oneself with the materials of the case and copying the necessary information; entering petitions; taking part in the judicial proceedings of the case; and lodging complaints against actions and decisions of the investigators, procurators, and the court.

The Civil Plaintiff

People who have suffered a material loss as a result of a crime can bring a civil suit against the accused, and it can be entertained by the court, along with the criminal case. A victim who brings a separate civil suit by way of civil proceedings and has had that civil suit dismissed cannot then jointly introduce the same suit with the criminal case. If a civil suit is not brought, the court can compensate the victim for material losses on its own initiative.

Concern for victims of crime was also entertained in the Constitution of the Russian Federation. Article 52 states: “The rights of victims of crimes and of abuse of power are protected by law. The state ensures the victims access to the judicial system and compensation for damages incurred.” Article 53 further indicates: “Everyone has the right to reimbursement by the state for damages incurred through illegal actions (or inaction) by bodies of state power or their officials.”

The Trial

Once a procurator decides to refer a case to trial, the court (in an administrative session) must make a preliminary determination regarding the case. The composition of the court in an administrative session is a single judge. Both procurator and defense counsel are eligible to present their positions at this session. While in an administrative session, the court entertains various petitions from the participants in the case. It also resolves various

Russia 431

F O S T E R , C E D R I C 1 6 9 2 T S

questions that pertain to the trial. The judge can refer the case for a preliminary hearing or bind the case over for trial to the appropriate jurisdiction. The judge has 30 days in which to make a decision if the accused is not in custody and 14 days if the person is in custody.

If the case is to be bound over for trial, the judge determines the type of trial and location, whether the accused needs counsel for his or her defense, and whether measures of restraint should be applied or altered. The trial should begin within 14 days of this decision, unless it is a jury trial, in which case the trial should begin within 30 days.

A preliminary hearing is conducted by a single judge at the request of one of the parties in a criminal proceeding. It is held to entertain requests that evidence be excluded, to request time to obtain additional evidence, and to interview witnesses. The judge rules on the admissibility of the evidence, and in such instances, the procurator may amend the accusation. This, in turn, may influence which court has jurisdiction and determine the type of trial that is appropriate for the case. The judge may bind the case over for trial, return the matter to the procurator for further consideration, suspend the proceedings, or terminate the case.

Having concluded the preliminary phase of the trial, the main hearing or judicial examination is ready to begin. Under the 2001 Code of Criminal Procedure, the various roles of the courtroom workgroup have changed to reflect the adversarial nature of the trial process. The judge now has a neutral passive role, while both the procurator and defense counsel have a more active role. Emphasis is also placed on the openness of the procedural process, with the court’s judgment based on the evidence presented at trial. While closed trials or sessions of trials are still permitted, they are limited to cases involving state or other secrets protected by federal law, an accused under the age of 16, or crimes of a sexual nature or other crimes that demean the victim.

What follows are the various steps in a standard trial:

1. The procurator explains the accusation and identifies the precise offenses cited in the Criminal Code. The judge asks if the accused understands the charges that have been brought against him or her. The judge asks if the accused wishes to enter a plea or if he or she wishes to make a statement regarding the accusation.

2. The procurator then submits evidence to the court, and it is cross-examined by the defense. Defense counsel submits evidence to the court, and it is cross-examined by the procurator.

3. If the accused agrees to give testimony, he or she may do so at any stage of the trial with the approval of the judge. The accused would be first questioned by defense counsel and any other participants of the defense, if more than one defendant was being tried. The procurator would then question the accused, which would be followed by counsel for any civil plaintiff. The judge may reject any leading or irrelevant questions put to the accused. Once the counsel for each side has finished questioning the accused, the judge may ask questions of the defendant.

4. If the victim gives testimony, this may also occur at any stage of the trial with the approval of the judge. The victim would be first questioned by the procurator and counsel for any civil plaintiff. Defense counsel or multicounsels would then pose questions to the victim. Again, the judge may reject any leading or irrelevant questions

432 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

put to the victim. Finally, the judge may put questions to the victim. While being questioned, the victim may use notes and read from documents to elaborate on their testimony.

5. Then, witnesses in the case are interrogated. Each witness is questioned first by the party that called him or her as a witness. The judge may ask questions after both sides have completed their interrogation of the witness. While being questioned, the witnesses may use notes and read from documents to elaborate on their testimony. In addition to being kept separate from other witnesses, they are not permitted in the courtroom until called to testify. Witnesses must remain in the courtroom after the completion of their interrogation until the judicial investigation is completed, unless the judge grants them permission to leave early.

6. Next, the expert witnesses who provided testimony during the preliminary investigation are interrogated. They do so when either petitioned by one of the parties in the case or at the request of the judge. The interrogation questions are submitted in advance to the expert in order to give the person time to prepare his or her answers. Initially, the questions are read out in court in order to solicit the views of the parties to the case. This may lead to questions being amended or rejected by the judge. If expert witnesses contradict one another, the judge may seek the opinion of another expert.

7. Material evidence may be introduced for examination at any point in the trial at the request of one of the parties. Once the evidence has been examined, the judge asks the parties if they wish to add anything to this judicial investigation. The judge would rule on any requests. Once any actions are completed the judge would declare the judicial investigation completed.

8. The trial then moves to the oral argument or pleading phase. Oral arguments are speeches presented by the procurator, defense counsel, defendant, victim, and participants in any civil issues being aired during the trial. While the court determines the sequence of these speeches, the rules call for the accuser being heard first and the defendant always being heard last. The speaker may not be interrupted as long as the presentation does not digress from the issues raised in the case. These speeches may only refer to evidence that has already been introduced during the judicial investigation.

9. Following the oral arguments, the participants are allowed to rebut. Defense counsel and defendant always have the right to the last rebuttal.

10. The defendant is then permitted to make a final statement, at which time no questions may be put to him or her.

11. Before the court retires to consider the case, the major participants have the right to propose in writing their views as to how the court should resolve the standard questions raised during the trial (see Item 12). The court is not bound to entertain these proposals.

12. The judge then retires to a conference room to consider the case. The court is mandated to return a judgment that is both legal and well reasoned. Chances of the court reaching such a judgment are enhanced by the court discussing and responding to a series of questions. The questions posed include: Did the criminal act take place? Did the act contain the elements of a crime as described in the Criminal Code of the Russian Federation? Did the accused commit such an act? Is the accused guilty of committing the crime? Is the accused subject to punishment for the crime committed by him or

Russia 433

F O S T E R , C E D R I C 1 6 9 2 T S

her? Exactly which punishment must be assigned to the accused and are there either mitigating or aggravating circumstances? Are there grounds for finding guilt but not imposing a punishment? To what type of correctional facility should the prisoner be sent? Is the civil suit subject to satisfaction? Is the material loss subject to compensation? On whom and in what amount must court costs be imposed? What will be the measure of restraint with respect to the prisoner? While considering these questions, the court may decide to reopen the judicial investigatory phase of the trial to clarify points of interest.

13. The court must then reach a judgment either to convict or acquit. A judgment to convict must be based upon a reasoned evaluation of the information presented during the judicial investigation. Acquittals are permissible if the event of a crime is not established, the elements of a crime are not in the act of the accused, and participation of the accused in the commission of the crime is not proved. If a civil suit was entered jointly in the criminal case, its outcome also is determined at this time.

14. The court returns to the courtroom to render its judgment. All people in the room are required to stand when the judgment is announced. If the defendant has been found guilty, the sentence is passed.

When a case is heard by a three-judge panel, the questions raised in the aforementioned item 12 of the trial process are determined by a simple majority vote. Any member of the court may explain in writing his or her dissent from the majority opinion. This dissent is not revealed when the judgment of the court is announced, but is included in the case file. Thus, the dissent may be considered if the case is appealed or subjected to judicial review.

In 2002, the Russians introduced a special proceeding, which is a form of plea bargaining. In the event the accused admits guilt to the charges leveled against him or her and if the parties to the case agree, a judgment can be issued by the court without a trial. In such cases, the sanction for the offense cannot exceed five years of imprisonment. The procedure calls for the court to certify that the accused understands the consequences of his or her decision to plead guilty and that it is being made voluntarily. If the court or another party to the case is not satisfied, the trial would proceed.

One study has indicated that since its introduction the special proceeding has become increasingly popular among the legal community. To illustrate, while only 11.2 percent of cases (153,354) handled in the three types of trial courts were resolved through the special proceeding in 2004, that percent rose to 42.5 (476,489 cases) by 2008. The study also reported, however, that the public was not very supportive of the procedure. At issue, apparently, for the respondents in the survey was questioning the fairness of such a process (Semukhina and Reynolds, 2009).

The jury trial was introduced in 1993 on an experimental basis in nine regions of the country. Support for its use was reaffirmed with the new Constitution of the Russian Federation. Article 123 states: “In instances stipulated by federal law, judicial proceedings are conducted with the participation of jurors.” By 2003, the experiment was extended to the other 69 regions of the country. Guidelines for the use of the jury are found in the 2001 Code of Criminal Procedure. The procedure allows the defendant, if he or she has been accused of a specific kind of crime, to choose between a jury trial or a traditional trial. The list

434 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

of crimes that fall under this category include murder, kidnapping, rape with aggravating circumstances, child trafficking, gangsterism, large-scale bribery, treason, terrorist acts, calls for violent change in the constitutional system, and some other select crimes against the state.

Any Russian citizen who lives in the district where a trial will take place can serve as a juror. A juror must be at least 25 years of age, legally competent to serve, and without a criminal record. Twelve people are selected by the procurator and defense counsel after having their names drawn from a list of 30 to 40 eligible to serve. In addition to the 12 jurors, two alternates are also selected. Potential jurors are questioned by the procurator and defense counsel, and a written challenge can be submitted to the judge objecting to the possible selection of a juror.

At trial the Russian jury sits separately from the judge in the courtroom. The responsibility of the Russian jury is to decide matters of fact, while the judge determines issues of law that arise during the trial. The opening procedures of a jury trial are slightly different from those of a nonjury trial that were explained earlier. At the beginning of a jury trial the procurator and then the defense counsel provide an introductory statement that essentially outlines the case that they are about to present. Russian jurors are permitted to ask questions of the accused, victim, and witnesses during the course of the trial. They submit their questions in written form through the jury foreman to the judge. The judge may reject questions that are deemed irrelevant. In addition, information about the accused’s prior criminal record cannot be introduced, as it might prejudice the jury.

According to Article 334 of the 2001 Code of Criminal Procedure, the responsibility of the jury is to determine three questions: (1) Did a criminal act take place? (2) Did the accused commit the criminal act? and (3) Is the accused guilty or not guilty of the charges? Before the jury commences its deliberations, the judge will provide them with a list of written questions that they must answer in the course of their deliberations. The parties to the case are able to examine and comment on the questions before they are presented to the jury. The defense is permitted to put questions to the jury that deal with the factual circumstances of the case that the judge must include in his or her list of questions. After receiving the questions but before leaving the courtroom, the judge sums up the case for the jurors by reviewing the accusation, the evidence, and the positions of procurator and defense. The judge further explains the rules surrounding the evaluation of the evidence and the important principle of the presumption of innocence. Russian juries are expected to return unanimous verdicts during the first three hours of deliberations. Majority verdicts are permitted after that time. A not-guilty verdict is adopted if at least six jurors cast such a vote. If a jury finds the accused guilty, they can request that the judge show leniency at sentencing or they may decline to make such a request. If a jury finds the accused guilty, but the judge is of the opinion that the person is innocent, the judge may dissolve the jury and send the case back to a new preliminary hearing.

After the jury has submitted its verdict to the judge, it is dismissed. The trial would then continue with the matters involving any civil litigation that may be attached to the trial. For example, funeral expenses, medical costs, or other damages that might be at issue would be entertained only by the judge.

Once the trial (traditional or jury) in a court of first instance is completed, the next stage in the criminal process involves any possible appeals. The court that heard the case

Russia 435

F O S T E R , C E D R I C 1 6 9 2 T S

is responsible for informing participants of this right. The procurator and defense counsel have the right to appeal the judgment of the court by way of cassation. Those involved in the civil suit may also do the same, as long as it involves the judgment of the civil suit. The procurator, through the cassation process, has a professional obligation to protest any illegal or unfounded judgment.

When a cassation has been filed, the original judgment of the court of first instance is suspended. The cassation is entertained by the court at the next level in the court hierarchy. Actually, when an appeal is made against the judgment of a justice of the peace, there is an automatic retrial in the district court. All courts hearing cassation appeals must do so within 10 days of receipt of the petition. There is one exception, however, in that the Supreme Court has a 20-day period.

Cassation is not an entire review of the case. Its purpose is to verify the legality of the original decision. There are four reasons for vacating or altering the judgment of the trial court: the judgment of the court is not based on the factual circumstances of the case, the procedural rights of the accused as spelled out in the Code of Criminal Procedure were violated, the Criminal Code was misinterpreted, or the punishment is unjust. Cassation sessions are open to the public. The major participants in the original trial are eligible to participate in the appeal. A panel of three judges hears the cassation petition. The court hearing the appeal may return one of four decisions: to uphold the original judgment, to vacate the judgment and refer the case for new investigation or a new judicial consideration, to vacate the judgment and terminate the case, or to change the judgment. When the court changes the original judgment, it cannot increase the punishment or issue a sanction for a more serious crime. The court can only reduce the original punishment for the original offense or sentence the defendant to a less serious offense. After the cassational judgment is rendered, the case is returned to the court of first instance for execution. This is done within five days of the cassational court’s ruling.

Once the cassational judgment has been rendered, the overwhelming majority of cases are considered final. Nevertheless, there is one final method by which a judgment can be protested. This is referred to as judicial supervision. A judicial supervision is considered only after a judgment has taken legal effect. A supervision can be initiated only by the chair of a court that ranks above the court that rendered the judgment or by a procurator who is above the rank of the procurator who participated in the protested judgment. Judicial supervisions are initiated to check illegal procedures or unfounded judgments. The court may return one of five decisions when considering a judicial supervision: (1) uphold the judgment; (2) vacate the judgment and all subsequent judicial rulings and decrees, and terminate proceedings in the case or transfer it for new investigation or new judicial consideration; (3) vacate the cassational ruling as well as subsequent judicial rulings and decrees (if any have been rendered) and transfer the case for new cassational consideration; (4) vacate the rulings and decrees rendered by way of judicial supervision, leaving the judgment of the court and cassational ruling either unchanged or changed; or (5) change the judgment, ruling, or decree of the court. As in the cassational proceedings, a panel of three judges renders the judgment. Russian procedure also provides for the reopening of a case if new evidence is discovered.

436 Russia

F O S T E R , C E D R I C 1 6 9 2 T S

CORRECTIONS The Russian people have been subjected to authoritarian governments throughout their history, whether it was the capricious and at times benevolent direction of the tsars or the planned and calculated leadership of the Communist Party. In both cases, the majority of Russian citizens displayed a good deal of respect for the power and authority imposed by their leaders. This attitude has been attributed to the fact that the Russian people are essentially patriotic and nonpolitical. This created a conformist attitude toward the state by the citizenry. Since 1917, deference was paid to the authority of the CPSU because the party was the principal interpreter of Marxism–Leninism, the ideology upon which the Soviet socialist system was based.

Irrespective of the country, there tends to be general agreement as to the purpose of a correctional system. It is designed and responsible for those individuals who have been sanctioned for failing to abide by society’s norms as articulated by law. It has been pointed out that the Soviet Union placed a greater emphasis on ideology than on law, while the Russian Federation is attempting to establish a society based on the rule of law. Thus, the present dilemma facing Russia is that of transforming the basis for the correctional system to a set of legal principles. Considering the history and present circumstances, a good deal of progress has been made in this endeavor.

The correctional system of the Soviet Union had been established primarily to handle two types of norm violators. There were those people who had violated “traditional” dictates of Soviet criminal law. The term “traditional” is defined here as crimes that are found in all countries; that is, offenses described either as street crime or white-collar crime. The other norm violators were political prisoners, referred to by Amnesty International as “the prisoners of conscience.” Depending on how one wants to interpret this category, most countries are likely to have some people who are depicted as “prisoners of conscience” or who view themselves as such. The Soviet Union appeared to have more political prisoners than would be found in most other countries. This was largely attributed to two factors. The first was the unwavering faith of the Soviet leadership in the Marxist–Leninist philosophy and the desire to have all citizens conform to its dictates. The other factor was the leadership’s ongoing policy objective of assuring the country’s internal and external security. Soviet corrections served as an important mechanism in the government’s attempts to enhance and assure security within the country.

Some experts were of the opinion that the introduction of glasnost would lead to a reduction of the number of people labeled political prisoners. They based this view on the fact that Gorbachev had made it known that he was committed to strengthening socialist legality. This was translated to mean that he favored ensuring greater social justice by providing citizens with more rights and legal safeguards. There were at least two tangible signs that this was occurring. In 1985, the Institute of State and Law of the USSR Academy of Sciences drafted for circulation and discussion the “Theoretical Model of a Criminal Code (General Part),” and in 1990, amendments were introduced to the Fundamentals of Criminal Legislation of the USSR.

It was stated earlier that correctional systems are designed and responsible for those people who have been sanctioned for failing to abide by society’s norms as articulated by

Russia 437

F O S T E R , C E D R I C 1 6 9 2 T S

economy. The third approach would be designed for students to acquire basic legal knowledge that would enable them to work in courts or government agencies. The political- legal committees had been critical of the Chinese legal programs borrowing extensively from Western concepts of law; as such, another aim in the reform efforts is to integrate Chinese socialist law in the political context of the country (Minzner, 2013).

LAW The historical development of law in China was dominated by two schools of thought: Confucian and Legalist. The Confucians were followers of the philosophical and political ideas of Confucius (551–479 BCE). While Confucius acknowledged that positive or written law (fa) had a role to play in state governance, he maintained that moral virtue or a moral code (li) was far superior. Confucius stated his position clearly in this oft-quoted passage from the Analects:

Lead the people with governmental measures and regulate them by law (fa) and punishment, and they will avoid wrongdoing but will have no sense of honor and shame. Lead them with virtue and regulate them by the rules of propriety (li), and they will have a sense of shame and, moreover, set themselves right.

The Confucians favored relying upon li as the source for regulating human behavior and social order. The Confucian position was based on the following arguments. Humankind is either basically good or is capable of learning goodness. The study of li shapes a person into an acceptable human being, because li is in conformity with human nature and the cosmic order. When a government is based on li, it operates harmoniously. Because li is unwritten, it has the flexibility to be interpreted to meet the needs of a particular situation.

It is important to stress the context in which these arguments were played out. The early development of li occurred when China was a feudal society. Society was highly stratified, and hierarchical differences were emphasized and considered very important. The emphasis placed on social stratification would continue into the twentieth century, even after the demise of the Qing dynasty in 1911.

The other school of thought was the Legalist perspective. The Legalists were pragmatic government bureaucrats for the most part. Their goal was to expand and secure the authority of the state or empire. For them, law (fa) was a written standard imposed by a superior upon an inferior. It was viewed essentially as a method of controlling people in a highly stratified society within the jurisdictional boundaries of the empire.

The position of the Legalists was based on the following rationale. Humans act out of self-interest. Law is used to control and punish selfish motives. The basis of a stable government can be law, as long as it is impartially applied to all and is publicized. The existence of harsh laws serves to deter people from committing wrong. In the long run, the existence of strict laws will enable society to be free from conflict.

The Legalist position was successful at helping the Qin dynasty (221–206 BCE) establish the first unified empire in China. During the Han dynasty (206 BCE–220 CE), however, the Confucian view was in the ascendancy. Throughout the long imperial period (2205

526 China

F O S T E R , C E D R I C 1 6 9 2 T S

BCE–1911 CE), both schools of thought would influence how law was perceived and utilized in China, and thus the basis for traditional Chinese law was formed (Bodde and Morris, 1967).

The characteristics of traditional Chinese law distinguish it from legal systems that emerged in the West. The traditional law was developed when the country was a feudal society with a patriarchal system that recognized and protected the hierarchical status of people. Thus, equal rights before the law was not recognized as a viable legal principle. The traditional legal system was founded on totalitarian rather than democratic political principles. Therefore, it followed the dictum of government by rule of humans rather than government by rule of law. The traditional law included an extensive legal code that was primarily devoted to criminal law. In this context, law was meant to be viewed as a vehicle for suppression. Under traditional law, government officials functioned as both adminis - trators and adjudicators of the legal system. Thus, a distinct judicial branch with separate powers was absent. It also followed that there was no need for a separate legal profession. Finally, the specific purpose of the traditional law was to protect the government and its interests rather than those of a private individual.

As China began to open up to the rest of the world during the Qing dynasty, it recog - nized the need to modernize its legal system. In the middle of the nineteenth century, it sought the assistance of Japanese legal scholars to advise on law reform. Although these efforts were not successful, China was introduced to Western legal concepts. During the second half of the nineteenth century and the first half of the twentieth century, China was exposed to other aspects of the civil law and common law systems. With the founding of the People’s Republic of China in 1949, China turned to the Soviet Union and its socialist legal system for guidance in determining the role that law should play in a socialist society. To understand the purpose of law in China today, in particular as it relates to criminal justice, one must be attentive to the manner in which law was perceived and utilized throughout China’s past.

Criminal Law

Since the founding of the People’s Republic of China in 1949, the country functioned without a codified version of its criminal law until 1980. In that year, the Criminal Law of the People’s Republic of China took effect. The law was revised in 1997 to further reflect the country’s efforts to establish a society that acknowledged the importance of the rule of law. The Criminal Law is divided into two parts, subdivided into 16 chapters, and consists of 452 articles. The section on general provisions is subdivided into five chapters that include basic principles and scope of application, crimes, punishments, concrete application of punishments, and other provisions.

Clearly the 1997 law is a more mature form than that of the 1980 version. It attempts to spell out legal principles and has reduced significantly the ideological flourishes found in the 1980 version. To illustrate, Article 1 of the 1980 version of the law stated:

The Criminal Law of the People’s Republic of China, which takes Marxism-Leninism- Mao Zedong Thought as its guide and the Constitution as its basis, is formulated in

China 527

F O S T E R , C E D R I C 1 6 9 2 T S

accordance with the policy of combining punishment with leniency and in light of actual circumstances and the concrete experiences of all of our country’s ethnic groups in carrying out the people’s democratic dictatorship led by the proletariat and based on the worker-peasant alliance, that is, the dictatorship of the proletariat, and in conducting socialist revolution and socialist construction.

In the 1997 version, Article 1 is free of political commentary. It reads: “In order to punish crimes and protect the people, this Law is enacted on the basis of the Constitution and in light of the concrete experiences and actual circumstances in China’s fight against crimes.” Moreover, the term “counterrevolutionary crime,” which was associated with political crime, has been deleted from the 1997 version. This change may appease some of China’s human rights critics, but it does not mean that political crime has been completely eliminated. The word “counterrevolutionary” may have been deleted, but it was replaced with “crimes that endanger national security.”

Of particular interest is the definition of crime that is found in Article 13:

A crime refers to an act that endangers the sovereignty, territorial integrity and security of the State, splits the State, subverts the State power of the people’s democratic dictatorship and overthrows the socialist system, undermines the public and economic order, violates State-owned property, property collectively owned by the working people, or property privately owned by citizens, infringes on the citizens’ rights of the person, their democratic or other rights, and any other act that endangers society and is subject to punishment according to law. However, if the circumstances are obviously minor and the harm done is not serious, the act shall not be considered a crime.

While the Chinese have specifically described certain kinds of criminal behavior elsewhere in the law, they have retained this rather vague and therefore flexible notion of declaring certain behavior as criminal because it is a danger to society. Critics suggest that this broad definition enables the authorities to conduct arbitrary investigations that can lead to questionable convictions. Some of these concerns may be reduced by the addition of a new principle in the 1997 version of the law. Article 3 states: “For acts that are explicitly defined as criminal acts in law, the offenders shall be convicted and punished in accordance with law; otherwise, they shall not be convicted or punished.”

Another change in the 1997 version of the law was the repeal of the principle of analogy, which had long been a part of the Chinese legal tradition. This principle was explained in Article 79 of the 1980 version of the Criminal Law: “Crimes that are not expressly defined in the Special Provisions of this Law may be determined and punished in according to whichever article in the Specific Provisions of this Law that covers the most closely analogous crime,. . . .” This principle inhibited the establishment of formal criteria for criminal liability. It also enabled the authorities to interpret an accused’s conduct with a tremendous amount of discretion that enhanced further the likelihood of abuse. In addition to being a part of the Chinese legal tradition, this principle was for many years a standard feature of socialist law; and it was accepted by those countries that subscribed to the socialist

528 China

F O S T E R , C E D R I C 1 6 9 2 T S

legal system. The principle was simply no longer compatible with China’s efforts to acknowledge the importance of the rule of law.

Issues of intent and negligence are also considered in this law. According to Article 14, “an intentional crime refers to an act committed by a person who clearly knows that his act will entail harmful consequences to society but who wishes or allows such consequences to occur, thus constituting a crime.” Article 15 states that “a negligent crime refers to an act committed by a person who should have foreseen that his act would possibly entail harmful consequences to society but who fails to do so through his negligence or, having foreseen the consequences, readily believes that they can be avoided, so that the consequences do occur. Criminal responsibility shall be borne for negligent crimes only when the law so provides.”

A person is generally responsible for his or her criminal actions upon reaching the age of 16. The law, however, offers some exceptions for young people who attain the age of 14. Article 17 states, in part: “a person who has reached the age of 14 but not the age of 16 commits intentional homicide, intentionally hurts another person so as to cause serious injury or death of the person, or commits rape, robbery, drug-trafficking, arson, explosion or poisoning, he shall bear criminal responsibility.”

The law also authorizes assessing a lighter sentence for people between the ages of 14 and 18. If punishment is not given to a young person because he or she has not attained the age of 16, the law calls upon the family to provide appropriate discipline and education needed to correct the behavior. The law further states that, if it becomes necessary, the government might take control of a young person for purposes of rehabilitation.

For those claiming mental incapacity or intoxication, the issue of criminal responsibility is addressed in Article 18. It states:

If a mental patient causes harmful consequences at a time when he is unable to recognize or control his own conduct, upon verification and confirmation through legal procedure, he shall not bear criminal responsibility, but his family members or guardian shall be ordered to keep him under strict watch and control and arrange for his medical treatment. When necessary, the government may compel him to receive medical treatment.

Any person whose mental illness is of an intermittent nature shall bear criminal responsibility if he commits a crime when he is in a normal mental state.

If a mental patient who has not completely lost the ability of recognizing or controlling his own conduct commits a crime, he shall bear criminal responsibility; however, he may be given a lighter or mitigated punishment. Any intoxicated person who commits a crime shall bear criminal responsibility.

Finally, the General Provisions section includes a chapter on the kinds of punishments that are available. They are grouped as principal and supplementary punishments. The principal punishments consist of public surveillance, criminal detention, fixed-term imprisonment, life imprisonment, and the death penalty. The supplementary punishments include fines, deprivation of political rights, and confiscation of property.

China 529

F O S T E R , C E D R I C 1 6 9 2 T S

The Specific Provisions section consists of a series of chapters devoted to the major crime groups. They include crimes of endangering national security; crimes of endangering public security; crimes of disrupting the order of the socialist market economy; crimes of producing and marketing fake or substandard commodities; crimes of smuggling; crimes of disrupting the order of administration of companies and enterprises; crimes of disrupting the order of financial administration; crimes of financial fraud; crimes of jeopardizing administration of tax collection; crimes of infringing on intellectual property rights; crimes infringing upon citizens’ right of the person and democratic rights; crimes of property violation; crimes of obstructing the administration of public order; crimes of impairing judicial administration; crimes against control of national border; crimes against control of cultural relics; crimes of impairing public health; crimes of impairing the protection of environment and resources; crimes of smuggling, trafficking in, transporting, and manufacturing narcotic drugs; crimes of organizing, forcing, luring, sheltering, or procuring another person to engage in prostitution; crimes of producing, selling, or disseminating pornographic materials; crimes of impairing the interests of national defense; crimes of embezzlement and bribery; crimes of dereliction of duty; and crimes of servicemen’s transgression of duties.

This list of the various major crime groups in the 1997 edition of the Criminal Law is significantly different from the categories found in the 1980 edition. Specific chapters devoted to various forms of economic crime and the attention directed at illicit drugs illustrate that China is attempting to grapple with a host of new forms of deviancy that did not exist in the country, at least to any significant degree, only two decades earlier. The emergence of these types of crime is a result of the country’s efforts to modernize its economy by embarking on a plan to create a socialist market economy.

Criminal Procedure

For our purposes, the examination of China’s criminal procedure is divided into two categories. The first includes the preliminary investigation, which involves an examination of police powers and other pertinent pretrial procedural issues. The second category is concerned with the trial process, which consists of the main hearing and appellate review procedures. The legal document that explains the manner in which these procedures are executed is the Criminal Procedure Law of the People’s Republic of China. Like the Criminal Law, the Criminal Procedure Law took effect for the first time in 1980. The law was revised in 1996 with the new version becoming effective in 1997. The law is divided into four parts, subdivided into 17 chapters, and consists of 225 articles.

In 2003, a number of legal experts were petitioning the government for further reforms of the Criminal Procedure Law. While this led to a committee formed to look into the concerns, the investigation, however, was stopped in 2007. What prompted the most recent amendments to the Criminal Procedural Law in 2012, which became effective in 2013, were two notable cases: the She Xianglin case and the Zhao Zuoha case. She Xianglin was sentenced to prison for murdering his wife. After serving 11 years of the sentence, his wife appeared very much alive. Zhao Zuoha was sentenced to death for killing his neighbor.

530 China

F O S T E R , C E D R I C 1 6 9 2 T S

Before the sentence was carried out, the neighbor was discovered alive. In both cases, torture was employed to get the confessions from the accused. Cases such as these and other miscarriages of justice led to public outcries domestically and concerns expressed by international organizations over the inability of the agents of the judiciary to provide fair, equitable justice through the courts. The government then initiated another examination into reforming the rules of criminal procedure, which led to the amended Criminal Procedure Law of 2012. A central feature of this reform effort was to protect human rights (Yanyou, 2012).

Chapter One of Part One deals with basic principles. It is useful to draw attention to some of these principles for comparative purposes, because they point out not only substantive philosophical differences but also similarities in which legal ideas and concepts are expressed. For example, Article 1 states: “This Law is enacted in accordance with the Constitution and for the purpose of ensuring correct enforcement of the Criminal Law, punishing crimes, protecting the people, safeguarding State and public security and maintaining socialist public order.” This statement highlights a basic distinction between the ideals of the judicial process in China with those found in many democratic countries in the West. The modern judicial process in many Western countries has a tendency either to emphasize or be highly sensitive to protecting individual rights and interests. In China, the judicial process is primarily concerned with the protection of the public interest. The idea of the public interest taking precedent over that of the individual’s interest has a long tradition in Chinese history. It has assumed a modern rationale with the establishment of a socialist system of governance in 1949. Moreover, this is another illustration of the emphasis placed on the social stability of the country, which is a specific mandate of agents of the criminal justice system, and has been alluded to throughout this chapter.

This is not to suggest that the position of the individual is ignored by this process. To illustrate, Article 2 indicates:

The purposes of the Criminal Procedural Law of the People’s Republic of China are as follows: to ensure that the fact of crimes are ascertained in an accurate and timely manner, that the law is correctly applied, that criminals are punished and innocent people are protected from criminal prosecution, and that citizens are educated to abide by the law and vigorously fight against criminal acts, so as to maintain the socialist legal system, respect and protect human rights, safeguard citizens’ personal rights, property rights, democratic rights and other rights, and ensure the smooth progress of the socialist cause.

Note that property rights were mentioned for the first time in the 1996 version of the law, reflecting the changing nature of the economic system in the country, and now human rights have been added in this 2012 version.

The basic principles also provide several fundamental procedural assurances for citizens involved in the judicial process. Article 3 spells out the division of labor among public security agencies, procuratorates, and courts, and indicates that “Except as otherwise provided by law, no other organs, organizations or individuals shall have the authority to exercise such powers.” When conducting a criminal proceeding, it also points out that police,

China 531

F O S T E R , C E D R I C 1 6 9 2 T S

procurators, and courts “must strictly observe this Law and any other relevant stipulations of other laws.”

The issue of independence was mentioned rather prominently in the 1996 procedural law. For example, it states in Article 5: “The People’s Courts shall exercise judicial power independently in accordance with law, and the People’s Procuratorates shall exercise procuratorial power independently in accordance with law, and they shall be free from interference by any administrative organ, public organization or individual.” It is important to point out that the use of the word “independent” should not be equated with a form of separation of power. The Organic Law of the People’s Courts and the Organic Law of the People’s Procuratorates also speak of the independence of these two components of the justice system. Other legislation clearly indicates that courts and procuratorates are similar to other administrative agencies of the state. To illustrate, Article 3 of the Constitution of the People’s Republic of China states, in part: “All administrative, judicial, and procuratorial organs of the state are created by the people’s congresses to which they are responsible and under whose supervision they operate.” Case studies confirm that courts and procurators are subject to the policies of the Chinese Communist Party and the dictates of political authorities.

Here, the principle of dual leadership is more prominent than efforts to allow courts and procurators to function in an independent fashion. Dual leadership means that local courts and procurators are not only accountable to the court or procurator that is at a higher level within their respective organizational hierarchies, but that courts and procurators are also responsible to the local people’s congress and its standing committee. As was mentioned in the previous section, local congresses and standing committees have the authority to elect, appoint, and remove from office members of the judiciary.

Some of the rights mentioned in the Constitution of the People’s Republic of China are reiterated in Article 11 of the Criminal Procedure Law. For example, a trial is heard in public unless otherwise prohibited by law, and a defendant has a right to a defense. Article 10 states that “the People’s Courts shall apply the system whereby the second instance is final.” This means that after a case is tried in first instance, there is a right to appeal the case to the next level in the court hierarchy, but this can only be exercised once.

Article 9 addresses the issue of language. Although Mandarin is the official Chinese dialect, local dialects are used in some regions of the country. Moreover, there are various minority ethnic groups living in the country. In an attempt to address potential conflicts over the language of choice in the courtroom, Article 9 states:

Citizens of all nationalities shall have the right to use their native spoken and written languages in court proceedings. The People’s Court, the People’s Procuratorates and the public security organs shall provide translations for any party to the court proceedings who is not familiar with the spoken or written language commonly used in the locality.

Where people of a minority nationality live in a concentrated community or where a number of nationalities live together in one area, court hearings shall be conducted in the spoken language commonly used in the locality, and judgments, notices and other documents shall be issued in the written language commonly used in the locality.

532 China

F O S T E R , C E D R I C 1 6 9 2 T S

Another feature of the 1996 Criminal Procedure Law that was absent from the 1980 version is found in Article 12: “No person shall be found guilty without being judged as such by a People’s Court according to law.” Previously, it was often assumed that a suspect was guilty. This perspective had its roots in traditional Chinese law. It is too early to determine if this principle of presuming the person not to be guilty will be taken seriously in the Chinese context. In light of the government’s serious attempts and early successes at improving the judiciary’s basic educational level and technical sophistication with legal materials, there is probably room for cautious optimism—particularly in cases that are clearly criminal and have nothing to do with political issues.

Preliminary Issues

Once a crime is committed or alleged, the matter can be reported to a public security agency, procurator, or court. Following a preliminary examination of the evidence, if it is determined that the matter should be investigated, then a case would be filed. Either a public security agency or procurator would initiate an investigation. If the evidence is insufficient to warrant an investigation, a case would not be filed. The agency receiving the initial report from the complainant would report its decision to the complainant.

In the event that the police are unwilling to file a case, the law offers remedies. Article 87 states:

Where a People’s Procuratorate considers that a case should be filed for investigation by a public security organ but the latter has not done so, or where a victim considers that a case should be filed for investigation by a public security organ but the latter has not done so and the victim has brought the matter to a People’s Procuratorate, the People’s Procuratorate shall request the public security organ to state the reasons for not filing the case. If the People’s Procuratorate considers that the reasons for not filing the case given by the public security organ are untenable, it shall notify the public security organ to file the case, and upon receiving the notification, the public security organ shall file the case.

If none of the agencies of the justice system are inclined to pursue an allegation, the victim can elect a private prosecution. According to Article 88, “the victim shall have the right to bring suit directly to a People’s Court. If the victim is dead or has lost his ability of conduct, his legal representatives and near relatives shall have the right to bring suit to a People’s Court. The People’s Courts shall accept it according to law.”

Power to Detain and Arrest

A public security agency can detain a suspect initially under the following circumstances:

1. if he is preparing to commit a crime, is in the process of committing a crime or is discovered immediately after committing a crime;

2. if he is identified as having committed a crime by a victim or an eyewitness; 3. if criminal evidence is found on his body or at his residence;

China 533

F O S T E R , C E D R I C 1 6 9 2 T S

4. if he attempts to commit suicide or escapes after committing the crime, or he is a fugitive;

5. if there is likelihood of his destroying or falsifying evidence or tallying confessions; 6. if he does not tell his true name and address and his identity is unknown; or 7. if he is strongly suspected of committing crimes from one place to another,

repeatedly, or in a gang.

The public security agency is expected to secure a detention warrant from the local procurator. The public security agency is supposed to inform the suspect’s family of the reason for the detention and the whereabouts of the person detained. This should be done within 24 hours of the suspect’s detention, unless notification would hinder the investigation. Moreover, public security is expected to interrogate the detainee within 24 hours of detention.

In order to arrest a suspect who is not in custody, a public security agency must submit a request for a warrant to the local procurator. The request would include the case file and evidence. In major cases, the procurator might send his or her own personnel to participate with public security in the investigation of the case. If a person is already being detained, public security must submit a request for an arrest to the procurator within three days of the initial detention. Where a person is strongly suspected of committing crimes at multiple scenes or is a member of a criminal gang, the time limit for submitting the request may be extended to 30 days.

The procurator is expected to make a decision regarding a request for an arrest warrant within seven days. In the event it is approved, the public security agency must produce a warrant when making the arrest. The public security agency is expected to notify the suspect’s family of the reasons for the arrest and where the person is being held. This should be done within 24 hours of an arrest, unless notification would hinder the investigation.

According to article 154, the time period in which a suspect may be held during an investigation is not to exceed two months. A one-month extension can be granted if circumstances justify delay. The approval for an extension would come from a procurator at the next level in the procuratorate hierarchy from that of the procurator who is involved in the case.

The recent revisions of the Criminal Procedure Law have expanded the ability to extend the life of an investigation further. For example, Article 156 states:

[I]f investigation cannot be concluded within the time limit specified in Article 154 of this Law, an extension of two months may be allowed upon approval or decision by the People’s Procuratorate of a province, autonomous region or municipality directly under the Central Government:

1. grave and complex cases in outlying areas where traffic is most inconvenient; 2. grave cases that involve criminal gangs; 3. grave and complex cases that involve people who commit crimes from one place

to another; and 4. grave and complex cases that involve various quarters and from which it is difficult

to obtain evidence.

534 China

F O S T E R , C E D R I C 1 6 9 2 T S

An additional two-month extension of an investigation can be granted under Article 157 if a suspect in one of the aforementioned cases could be sentenced to 10 or more years of imprisonment. After an investigation is completed by a public security agency and if the facts and evidence are sufficient, public security would submit a written recommendation to a procurator to initiate a prosecution.

Interrogation

A person must be interrogated within the initial 24-hour period of custody following arrest. The people conducting an investigation should be members of the investigative staff of either the procuratorate or public security agency. The law requires that at least two investigators be present during an interrogation. When the interrogation is completed, Article 120 mandates:

The record of an interrogation shall be shown to the criminal suspect for checking; if the criminal suspect cannot read, the record shall be read to him. If there are omissions or errors in the record, the criminal suspect may make additions or corrections. When the criminal suspect acknowledges that the record is free from error, he shall sign or affix his seal to it. The investigators shall also sign the record. If the criminal suspect requests to write a personal statement, he shall be permitted to do so. When necessary, the investigators may also ask the criminal suspect to write a personal statement.

In light of the miscarriages of justice and allegations of torture by agents of the justice system, article 50 of the amended Law addresses the issue of self-incrimination and illustrates the new sensitivity in the document regarding human rights. Article 50 states:

Judges, procuratorial personnel and investigators shall adhere to statutory procedures when gathering and obtaining evidence that may prove whether criminal suspects or defendants are guilty or innocent, or whether cases involve serious criminal offenses or not. They are strictly prohibited from extorting confessions by torture, collecting evidence through threats, enticement, deception or other unlawful means, or forcing anyone to provide evidence proving his/her own guilt. They shall ensure that all citizens who are involved in a case or who have information about the circumstances of a case can furnish all available evidence in an objective manner and, except under special circumstances, may ask such citizens to provide assistance in investigation.

Moreover, article 54 also indicates: “All cases shall be judged according to the principles that emphasis shall be laid on evidence, investigation and research, while credence shall not be readily given to oral statements.”

According to article 33, upon the completion of the first investigation, the suspect must be informed of his or her right to seek counsel. After the procurator receives the case file, but before prosecution, the suspect would again be informed of the right to secure counsel. Finally, the court that receives the case for trial would also inform the accused of the right to secure counsel.

China 535

F O S T E R , C E D R I C 1 6 9 2 T S

Other procedural improvements for the defendant in the 2012 law include the following. In the event a defendant cannot afford to have a lawyer, article 34 enables the person to petition with a legal aid agency for assistance. This could be granted if the person meets the conditions of the agency. In one reference to conditions, if the defendant is charged with an offense that could lead to life imprisonment or the death penalty, and does not have a lawyer, either the court, procurator, or police would notify legal aid of the need to secure a lawyer for the accused.

Article 37 indicates that all requests of the lawyer to meet with a client should be arranged within 48 hours of the receipt of the request. In cases involving state secrets, however, a lawyer must seek the permission of investigators in order to meet with a client. This could be delayed in light of the circumstances of the case. Moreover, the meeting between the lawyer and defendant should not be monitored.

Finally, according to article 46, the “defense lawyer shall be entitled to keep confidential the information about their client that comes into their knowledge. . .” The exception to this rule involves state or public security matters. Obviously, agents of the state determine what is a security matter, rather than an independent, disinterested entity. In such cases considered a security issue, the lawyer must inform the judicial authority of the information.

Power to Search and Seize

Investigative personnel are authorized to search persons, places, and things of a defendant, as well as other appropriate places. According to Article 135, “Any entity or individual shall have the obligation to submit the physical evidence, documentary evidence, audio- visual materials and other evidence that may serve as the evidence of guilt or innocence for a criminal suspect as required by a people’s procuratorate or public security organ.” A search should be conducted with a warrant, but this requirement is waived in the event of an emergency.

When a search is conducted, according to Article 137, “the person to be searched or his family members, neighbors or other eyewitnesses shall be present at the scene. Searches of the persons of women shall be conducted by female officers.” A record of a search is maintained by the authorities and is signed and sealed by investigative personnel and by the person searched or his or her family members or other eyewitnesses.

According to Article 141, investigators have the authority “to seize the mail or telegrams of a criminal suspect.” In the course of an investigation, it might be necessary to conduct a physical examination of victims or defendants. If a defendant refuses to cooperate with an examination, Article 130 authorizes investigators to conduct a compulsory examination when they deem it necessary. Moreover, investigative experiments may be conducted if approved by the director of a public security bureau. In the course of conducting such experiments, Article 133 states: “It shall be forbidden to take any action which is hazardous, humiliating to anyone, or offensive to public morals.”

Compulsory Measures

If a defendant is awaiting trial but is not in custody, the people’s courts, procuratorates, and public security agencies can issue compulsory measures that impose restrictions on the

536 China

F O S T E R , C E D R I C 1 6 9 2 T S

defendant. These generally include compelling the defendant to appear before one of the aforementioned authorities, securing a guarantor before the trial, or subjecting the person to a residential surveillance. Defendants and suspects under custody have a right to obtain a guarantee or bail to await trial out of custody. The period of a guarantee pending trial cannot exceed 12 months, and a residential surveillance cannot exceed six months. Guarantors must be able to meet certain requirements that include not being involved in the case, being able to fulfill the guaranty obligation, enjoying political rights and freedoms, and having a stable residence and income.

Defendants awaiting trial out of custody are subject to the following regulations, according to Article 69. They cannot leave the city or county of residence without permission, they must be present in court when summoned, they cannot interfere with witnesses, and they may not destroy evidence or collude with others to devise a consistent account. The article also indicates that if there is a failure to comply with these requirements, “part or all of the bail bond paid shall be forfeited, and depending on the specific circumstances, the criminal suspect or defendant shall be ordered to write a recognizance of repentance, pay bail bond again or provide a guarantor, or be placed under residential surveillance and be arrested.”

Guarantors are expected to monitor the activities of the defendant and report any conduct that violates the requirements explained in Article 69. Failure to comply could lead either to a fine or a criminal investigation into their behavior. If the defendant fulfills the obligations, bail would be refunded.

Defendants who are subject to residential surveillance must abide by the following requirements, according to Article 75:

1. Not to leave the domicile or place of residence under residential surveillance without the permission of the executing organ;

2. Not to meet or correspond with any one without permission of the executing organ; 3. To appear before a court in time when summoned; 4. Not to interfere, in any form, with the witnesses who give testimony; 5. Not to destroy or falsify evidence or collude with others to make confessions tally;

and 6. To surrender his/her passport and other travel documents, identity certificate and

driver’s license to the executing organ for safekeeping.

If the original charges against the defendant are serious and the defendant violates the conditions of residential surveillance, he or she may be subject to arrest. The decision to arrest is made by either a procurator or court, with the actual arrest being carried out by a public security agency.

Initiation of a Public Prosecution

It is the responsibility of the people’s procuratorate to determine if a case should be prosecuted. Once a public security agency has transferred a case to a procurator recom - mending that a prosecution be undertaken, the procurator is given one month to concur or oppose the recommendation. Additional time may be granted to decide the matter if the

China 537

F O S T E R , C E D R I C 1 6 9 2 T S

case is either significant or complex. During this time, the procurator can interrogate the defendant, interview the victim, speak with defense counsel, and examine the evidence.

The procurator may request a supplementary investigation be undertaken by a public security agency or decide to conduct an investigation on his or her own. According to the law, supplementary investigations should be completed within a month. Moreover, the number of supplementary investigations should be limited to two. If the evidence remains insufficient following a supplementary investigation, the procurator may decide not to initiate a prosecution.

If the evidence is reliable and sufficient, the procurator will usually initiate a prosecution unless the case conforms to Article 15 of the Criminal Procedure Law. According to this article, a prosecution shall not be initiated under the following circumstances:

1. if an act is obviously minor, causing no serious harm, and is therefore not deemed a crime;

2. if the limitation period for criminal prosecution has expired; 3. if an exemption of criminal punishment has been granted in a special amnesty

decree; 4. if the crime is to be handled only upon complaint according to the Criminal Law,

but there has been no complaint or the complaint has been withdrawn; 5. if the criminal suspect or defendant is deceased; or 6. if other laws provide an exemption from investigation of criminal responsibility.

Article 173 of the Criminal Procedure Law indicates that the procurator has an option not to initiate a prosecution if criminal punishment is not warranted because the issue involves a minor crime. The article also states that while an individual might not be prosecuted, he or she could be subject to administrative punishment and sanction. If that is the case, the procurator would transfer the matter to the appropriate public security agency. Adminis - trative punishments and sanctions will be explained later in this section.

If a procurator decides not to prosecute, this decision must be delivered in writing to the defendant and to his or her work unit. In this case, a defendant in custody would be released immediately. The public security agency that initially requested the prosecution would also receive written notice. The public security agency can request that the procurator reconsider the matter. If this request is rejected, the public security agency could request that a procurator at the next level within the hierarchy of the procuratorate review the matter. The victim must be notified of the procurator’s decision not to prosecute. If the victim disagrees with this decision, he or she can petition a procurator at the next level within the hierarchy of the procuratorate to review the case. If the victim’s petition is rejected at this higher level, the victim could engage in a private prosecution of the case, which would occur in a people’s court.

Trial

Once a procurator decides to initiate a prosecution, a trial would be scheduled in a court with the appropriate jurisdiction. The court would determine the composition of the

538 China

F O S T E R , C E D R I C 1 6 9 2 T S

collegial panel hearing the case. Cases of first instance that are heard in basic and intermediate people’s courts are conducted by a collegial panel composed of three judges or a judge and two people’s assessors. If the nature of the case is such that simplified procedures can be employed, then basic people’s courts may utilize a single judge alone. First-instance trials in the higher people’s courts or the Supreme People’s Court are conducted by a collegial panel composed of three to seven judges or a combination of three to seven judges and people’s assessors. While performing their duties, people’s assessors enjoy equal rights with the judges.

Trials that are held because of an appeal or protest are conducted by a collegial panel composed of three to five judges. The president of the people’s court or the chief judge of a division designates one judge to serve as the presiding judge of the panel. If the president of the court or the chief judge of a division participates, they would serve as the presiding judge.

Judicial decisions are based on majority rule. If a minority opinion exists, it would be entered into the record. The record of the deliberations is signed by all members of the collegial panel. In the event that a panel cannot reach a decision, it would report to the president of the court, who would decide if the case should be submitted to the judicial committee of the court. In such cases, the collegial panel that originally heard the case would execute the decision that was handed down by the judicial committee.

In trials of first instance, in which the case is a public prosecution, the court would first examine the case that was initiated by the procuratorate. If a decision was made to open a court session, several administrative matters would be addressed. These are noted in Article 182 of the Criminal Procedure Law and include:

1. to determine the members of the collegial panel; 2. to deliver to the defendant a copy of the bill of prosecution of the People’s

Procuratorate no later than ten days before the opening of the court session. If the defendant has not appointed a defender, he shall be informed that he may appoint a defender or, when necessary, designate a lawyer that is obliged to provide legal aid to serve as a defender for him;

3. to notify the People’s Procuratorate of the time and place of the court session three days before the opening of the session;

4. to summon the parties and notify the defenders, agents ad litem, witnesses, expert witnesses and interpreters, and deliver the summons and notices no later than three days before the opening of the court session; and

5. to announce, three days before the opening of the session, the subject matter of the case to be heard in public, the name of the defendant and the time and place of the court session.

Although cases of first instance are heard in public, there are exceptions to this general rule that include state secrets or private matters pertaining to individuals. Article 183 also states that “except for the cases involving State secrets or personal privacy, cases involving trade secrets may be tried in closed court sessions if the parties concerned so applied.” When a case is not heard in public, a reason is provided and announced in court.

China 539

F O S T E R , C E D R I C 1 6 9 2 T S

When a court session opens, the presiding judge determines if all the parties are present. The judge informs the people of the issue that is being presented in the case. Next, he or she announces the names of the members of the collegial panel, the court clerk, the public procurator, the defender, the expert witnesses, and the interpreter. The presiding judge also advises the parties of their right to ask any member of the collegial panel, the court clerk, the public procurator, any expert witnesses, or the interpreter to withdraw from the case. Finally, the presiding judge informs the defendant of his or her right to a defense.

After these preliminary matters have been attended to, the court is ready to conduct the main hearing of the trial. What follows are the various steps in a standard trial:

1. The procurator reads the bill of prosecution in court. 2. The defendant can make a statement about the charges in the bill of prosecution. 3. The victim can make a statement about the charges in the bill of prosecution. 4. The procurator can interrogate the defendant. 5. With the permission of the presiding judge, the victim, as well as the plaintiff and

defender in an incidental civil action, can question the defendant. 6. Judges can interrogate the defendant. 7. With the permission of the presiding judge, witnesses and then expert witnesses are

questioned by the procurator, parties, defendants, or defense counsel. The presiding judge may halt the line of questioning if he or she deems it irrelevant to the case. The parties and defendant have the right to request that new witnesses be summoned to the session, that new material evidence be collected, that a new expert evaluation be conducted, or that another inquest be held. The collegial panel would rule on the merits of each request. If the request is granted and the hearing postponed, the procurator would be granted one month to complete the supplementary investigation.

8. Judges can question witnesses and expert witnesses. 9. Procurators and defendants can present material evidence in the court for parties to

identify. 10. The records of the testimony of witnesses who are not present in court, the conclusions

of the expert witnesses, the records of inquests, and other documents serving as evidence are read out in court. In the event the collegial panel has questions about the evidence presented, it can adjourn the session in order to verify the evidence.

11. The opinions of the procurator, parties, defendant, or defense counsel are heard by the judges. They can debate the quality of the evidence and facts in the case.

12. After the presiding judge has declared the debate concluded, the defendant has a right to present a final statement.

13. The presiding judge announces an adjournment, and the collegial panel begins its deliberations with the goal of making the following decisions:

a. If the facts are clear, the evidence adequate, and the defendant guilty by law, the court should pronounce a verdict of guilty.

b. If the defendant is found not guilty by law, the court should pronounce a verdict of not guilty.

540 China

F O S T E R , C E D R I C 1 6 9 2 T S

c. If the evidence is insufficient, the defendant cannot be found guilty. The court would pronounce a verdict of not guilty on the grounds of a lack of evidence or that the charges were not substantiated.

14. Judgments are pronounced publicly in court. A written copy of the judgment is delivered to the parties and to the procuratorate that initiated the prosecution. The written judgment is signed by all the members of the collegial panel and the clerk of the court. The judgment indicates the time limit for appealing the decision and the appellate court to which the appeal should be directed.

For a case to proceed as a private prosecution in a trial of first instance, it must meet the following criteria. There must be a complainant; the victim in a minor criminal case must have evidence; the victim’s evidence must prove that the defendant violated his or her personal or property rights; the defendant ought to be investigated for criminal responsibility; and the public security agencies or the people’s procuratorate must not have investigated the defendant for criminal responsibility.

The people’s court can conduct a trial for a private prosecution if the facts of a crime are clear and the evidence is sufficient. In the event the evidence is not adequate to proceed, the court would advise the private procurator to withdraw the prosecution or order its rejection. The court can also conduct a mediation in a case of private prosecution. Before the court pronounces a judgment, the private procurator has the option of arranging a settlement with the defendant or withdrawing the prosecution. Finally, during the course of the proceeding in a private prosecution, the defendant can raise a counterclaim. The rules governing a private prosecution would apply to a counterclaim.

While cases of first instance are heard by collegial panels of judges or judges and people’s assessors, some cases are adjudicated by a single judge in the basic people’s court. The 1996 Criminal Procedure Law offered greater detail as to when a single judge might preside over such cases and the procedures involved. Cases that can be entertained by a single judge included minor criminal cases in which a private prosecution had been initiated and the victim had evidence of an alleged crime. Publicly prosecuted cases could still be handled in this simplified manner, provided they meet the following criteria: (1) the procurator recommends or agrees to the simplified procedure; (2) it is clear that a crime occurred and that the evidence is sufficient; and (3) if found guilty, the defendant’s sanction would be limited to either less than three years’ imprisonment, criminal detention, public surveillance, or a fine.

The simplified procedure calls for a reading of the bill of prosecution, which is followed by the introduction of evidence and a discussion or debate by the parties involved. These cases can be handled rather informally, and this process is explained in articles 210–214. The judge examines the defendant on the facts of the charges, informs him or her of the procedures, and confirms if the accused agrees to this summary procedure. The defendant has the right to debate the public procurator or the private prosecutor. The entire process should conclude within a 20-day period. Cases of this kind can be utilized with the understanding, in particular on the part of the defendant, that a finding of guilt can lead to a fixed term of imprisonment for no more than three years. It should also be pointed out that, according to article 215, if in the course of this summary trial it is determined that

China 541

F O S T E R , C E D R I C 1 6 9 2 T S

the summary procedures are inappropriate for the case, the proceedings would cease and the case would be transferred for a regular trial.

The defendant and a private procurator can appeal based on a judgment or order. If a civil action has been part of the adjudication process, a party to the civil action can file an appeal against the judgment or order that deals with the civil action. In the event a procurator identifies an error in the judgment or order, he or she would present a protest to the people’s court at the next higher level. A victim who does not accept the judgment or order can request that the procurator file a protest on his or her behalf. The ultimate decision to file such a protest rests with the procurator. It should be pointed out that a protest from a procurator can be withdrawn by the procuratorate at the next level within the hierarchy if it finds the protest inappropriate.

A people’s court would form a collegial panel to handle an appeal. The panel would read the file, interrogate the defendant, and listen to the opinions of the parties involved. If the facts in the case are clear, the panel may decide not to hold a hearing. In the event the case is entertained because of a protest from the procurator, then the people’s court would hold a hearing.

A court essentially handles an appeal or protest in one of three ways. First, if the original judgment was correct based on the facts, the law, and the appropriate punishment, the original judgment would be affirmed by the court, and the appeal or protest would be rejected. Second, if there was no error in fact but the problem of the original judgment centered either on an incorrect application of the law or an inappropriate punishment, the court would revise the judgment. According to Article 226 of the Criminal Procedure Law: “When trying an appeal case filed by the defendant or his/her statutory representative, defender or close relative, a people’s court of second instance shall not aggravate the punishments on the defendant.” This provision does not apply to cases appealed by private procurators or protests lodged by the procuratorate. Third, if the facts in the original judgment are unclear or the evidence insufficient, the court could revise the judgment after the facts are discovered, or it could remand the case for retrial to the people’s court that originally tried the case. Finally, according to Article 233 of the procedural law, the appeal process is limited, because “All judgments and orders of second instance and all judgments and orders of the Supreme People’s Court are final.”

It should be noted that in cases in which the death penalty is imposed there is an automatic review of the sentence. A collegial panel of three judges reviews the case. In the event that an intermediate people’s court imposes the death sentence and the defendant does not appeal, then a higher people’s court reviews the case. If the higher people’s court disagrees with the original sentence, it can try the case or remand it for retrial. If a higher people’s court serves as the court of first instance and imposes a death sentence, the Supreme People’s Court reviews the case.

Finally, there are procedures designed to reopen a case if new evidence is discovered. According to Article 242, the case would have to conform to one of the following situations in order to secure a retrial:

1. Where there is new evidence to prove the errors in the facts ascertained in the original judgment or ruling, which may affect case conviction and sentencing;

542 China

F O S T E R , C E D R I C 1 6 9 2 T S

2. Where the evidence that serves the basis of the conviction and sentencing is unreliable and insufficient, or shall be excluded in accordance with the law, or where the main evidence establishing the facts of the case contradict with each other;

3. Where the original judgment or ruling is erroneous in the application of law; 4. Where the case is tried in violation of statutory proceedings, which may affect the

impartiality of the trial; or 5. Where the judge committed bribery and corruption, practiced favoritism for

personnel gains or bended the law in the trial of the case.

If an error in a legally effective judgment or order is brought to the attention of the president of a people’s court at any level, the president would refer the matter to the judicial committee of the court. If a people’s court at a higher level finds an error in a judgment or order of a people’s court at a lower level, it has the authority to try the case itself or to direct a people’s court at a lower level to conduct a retrial. If a people’s procuratorate at a higher level finds any error in a legally effective judgment or order of a people’s court at a lower level, it has the authority to protest the judgment or order.

In commenting on the level of reform efforts, one scholar pointed out that “the main change is more one of tone” (Peerenboom, 2014). The reforms are more or less warnings to agents of the justice system and politicians that egregious abuses will not be tolerated. As a result, there will still be room for ignoring the law and the Supreme People’s Court’s interpretative rules for the judiciary. In addition, another scholar has indicated that the “political system is still not accustomed to abiding by the written laws” (Yanyou, 2012). Agents have ignored the spirit and letter of the law in the past. As such, there is little reason to think that some of the abuses will not continue, in particular if the claim is made that the specific tactics employed were designed to maintain the social stability of the nation.

Finally, it should be noted that in recent years China has turned its attention to the victims of crime by providing a degree of assistance. From 2009–2011, it was reported that 25,996 victims received financial assistance and 11,593 secured legal assistance (Anonymous, 2012).

Administrative Regulations

The preceding description provided a brief orientation to the pretrial, trial, and posttrial phases of the criminal process. It included a consideration of the role of the police and their powers, especially in the investigative process. Most of this process has its basis in the revised Criminal Procedure Law that went into effect in 2013. It is important to caution the reader, however, that this is not the only method by which a person can be found guilty and sanctioned by the authorities.

Reference was made previously to the extrajudicial nature of the Chinese justice system. It was also pointed out that the People’s Republic of China was without a formally approved Criminal Law or Criminal Procedure Law until 1980. From 1949 to 1979, the administration of criminal justice was often controlled or dominated by public security agencies. As was mentioned in the section on police, public security agencies were often

China 543

F O S T E R , C E D R I C 1 6 9 2 T S

accorded wide-ranging powers to enforce laws and to maintain public order. They were given the obvious powers to arrest, detain, and investigate suspected criminals. Their authority was expanded further and given legal force with two pieces of legislation. The Act for Security Administration Punishment (1957) enabled public security agencies to impose fines and detain people. The Decision of the State Council Relating to Problems of Reeducation Through Labor (1957) authorized public security agencies to send people to labor camps for up to four years without a trial.

In spite of the fact that the Criminal Law and the Criminal Procedure Law have been enacted, public security agencies retained extensive administrative powers that they acquired in the 1950s. In China, the Criminal Law is limited to the more serious criminal offenses. The less serious offenses against public order are covered by administrative regulations. Thus, public security agencies have the authority to impose administrative punishments on people who violate rules and regulations against less serious forms of public order. This authority is based on the current legislation within the Regulations of the People’s Republic of China on Administrative Penalties for Public Security.

The context in which this legislation is available to public security agencies is explained in Article 2 of the Regulations:

Whoever disturbs social order, endangers public safety, infringes upon a citizen’s rights of the person or encroaches upon public or private property, if such an act constitutes a crime according to the Criminal Law of the PRC, shall be investigated for criminal responsibility; if such an act is not serious enough for criminal punishment but should be given administrative penalties for public security, penalties shall be given according to these regulations.

There is a fairly long list of social order offenses that fall under the jurisdiction of this legislation. The general kinds of offenses include disturbing public order; carrying or manufacturing firearms or dangerous objects; minor assaults; breaking and entering; theft of property in small amounts; purchasing stolen goods; violating drug laws; damaging or destroying property; disturbing the peace; violating fire safety regulations; violating motor vehicle regulations; violating the resident control system; producing narcotics; and cases involving prostitution, pornography, and gambling.

When imposing a sanction on a person who has violated some aspect of the regulations, three kinds of penalties are available to public security agencies. They include a warning, a fine of up to 2,000 yuan, or detention up to a maximum of 15 days. The manner in which a sanction is imposed under the Regulations is as follows. If the violation calls for a warning, a maximum fine of 50 yuan, or a fine above 50 yuan to which the offender does not object, then the matter can be handled immediately by the public security officials. If the violation calls for a fine larger than 50 yuan or a period of detention, then the public security agency would issue a summons to the offender. The offender would be interrogated and evidence collected. The public security agency would issue a written ruling in the matter. If the sanction includes a fine, the regulations call for it to be paid within five days. An offender or a victim has the right to protest the ruling made by the public security agency. Within five days of the initial ruling, the person can petition the public security agency at the next

544 China

F O S T E R , C E D R I C 1 6 9 2 T S

level within the hierarchy. Because such cases are handled through the administrative regulation process, the offender does not have any right of appeal through the regular courts.

CORRECTIONS In the previous section, brief mention was made of the important role that two schools of thought—the Confucians and the Legalists—played in the evolution of law in China. The philosophical position of both schools also influenced Chinese attitudes about the purpose of sanctions and the development of a penal system. The Confucians espoused a belief that humankind was essentially good or capable of becoming good. Thus, humans are malleable and have the capacity to reform their own behavior. The Legalists were of the opinion that harsh laws were necessary in order to deter people from committing wrong, which was likely because humans basically act out of self-interest. For those who transgressed the law, punishment was an appropriate consequence. Throughout the long history of the country, the notions of rehabilitation and punishment played dominant roles in Chinese penology.

From ancient times through most of the imperial age, the “five punishments” were employed as the principal legal sanctions. The first and second punishments were a beating with light bamboo and a beating with heavy bamboo. A beating was administered on the buttocks. The seriousness of the offense determined the number of blows, which were administered in units of 10. The third punishment was penal servitude, which called for the convicted person to be removed from the community and transported to another province where he or she would perform hard labor for a fixed period of time. The range of time was generally one to five years. This sanction also included several blows with heavy bamboo. The fourth sanction was exile for life. The length of the distance that the person was exiled from his or her family and community determined the severity of the sanction. Like people sentenced to a period of penal servitude, those in exile were required to work. It should be noted that there was also a punishment known as military exile. It was initially used to punish soldiers found guilty of crime. They would be sent to a distant military base for a lifetime of military service. Eventually, this form of exile was imposed on civilians as well. The fifth punishment was death, which was administered either by strangulation or decapitation.

It should be pointed out that while prisons existed in China during ancient times, they were not used for imposing punishment in the strict legal sense. Instead, prisons were utilized for holding people who were either being detained before trial or were awaiting the final execution of their sentence. Although a fine could be imposed, and often was, it did not constitute a punishment in its own right. Rather it was considered a substitute punishment. Fines were frequently employed for certain types of offenders, including women, people over 70 years of age, children under 15 years of age, government officials, and a select group of other people. Fines were often used for certain kinds of offenses, in particular accidental injury or death (Bodde and Morris, 1967).

With the demise of the imperial era, contemporary ideas about prisons were introduced in the early twentieth century. When the Chinese Communists introduced a socialist ideology and practices to the country, the influence of the Soviet Union became evident.

China 545

F O S T E R , C E D R I C 1 6 9 2 T S

Chapter 7

Islamic Law

CONCEPTS TO KNOW

• Prophet Muhammad • The Quran • The Sunna • The Pillars of Islam • Sunni • Shia • Ulama • Sharia • Mazalim • Siyasa Sharia • Madhahib • Ijma • Ijtihad • Hudud • Quesas • Tazir • Muhammad ibn Abd al-Wahhab • Consultative Council • Senior Council of the Ulama • Supreme Judicial Council • Bureau of Investigation and Public Prosecution • Commission for the Promotion of Virtue and the Prevention of Vice • Matawain • Mujtahid • Ayatollah Ruhollah Khomeini • Faqih

F O S T E R , C E D R I C 1 6 9 2 T S

• Council of Guardians • Basij • Mustafa Kemal Ataturk • Supreme Council of Judges and Public Prosecutors • Constitutional Court

INTRODUCTION

IN THE INTRODUCTION to this text it was mentioned that some countries view the purpose and function of law in a different context from that which emerged in the West. For our purposes, Islamic law will illustrate this fact. It is important to point out that Islam is primarily a religion, a belief system that espouses a specific moral code. Islam means submitting to God’s will. From its inception, the most important group associated with Islam was the umma, the community of believers, and the ultimate goal of Islam was to establish a theocratic society. In such a context, the state is viewed as a vehicle to enhance and foster the revealed religion throughout the community of believers.

Islam is often referred to as one of the three Abrahamic faiths; the other two are Judaism and Christianity. What these three religions have in common is monotheism, the belief in one God. Today, Islam is the second largest religion in the world with more than 1.3 billion followers; Christianity is the largest with more than 2.1 billion adherents, of which 1.1 billion are Roman Catholic.

The Quran

It should be noted that it was not the intent of the Prophet Muhammad (570?–632) to establish a new religion; rather, his objective was to reform the religion of one God. The Quran (trans. 2004) clearly states:

We sent Jesus, son of Mary, in their footsteps, to confirm the Torah that had been sent before him: We gave him the Gospel with guidance, light, and conformation of the Torah already revealed—a guide and lesson for those who take heed of God. So let the followers of the Gospel judge according to what God has sent down in it. Those who do not judge according to what God has revealed are lawbreakers.

We sent to you [Muhammad] the Scriptures with the truth, confirming the Scriptures that came before it, and with final authority over them: so judge between them according to what God has sent down (5:46–48).

Thus, Muslims believe that Muhammad was the last of the great prophets. Those preceding him were Abraham, Moses, and Jesus.

Before proceeding further, it should be noted that when citing the Quran, the first number following the quote refers to the chapter, and the number or numbers following the colon indicate the specific verse(s). Because there is not one standard method of transliteration of Arabic to English, names and terms often have several different spellings.

568 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

I have attempted to use a simplified form that is free of many diacritical marks. Any quotations, however, are retained in the original form.

As the aforementioned passage indicates, according to the Quran, Muhammad received messages from God through the angel Gabriel. These messages represented God’s final revelations to humankind, with the previous noteworthy revelations coming to Moses and Jesus. As a result, Muslims believe that Islam supersedes Judaism and Christianity, for it is the culmination of God’s message to humankind.

Muhammad received the revelations over a 23-year period, which represented two distinct phases of the Prophet’s life in Mecca and Medina. Initially, Muhammad had tried to introduce the revelations to the people of Mecca, but they were unwilling to believe in the principal feature of his message: that there was one God. As such, he left Mecca, the place of his birth, for Medina, where he would establish the first Islamic government and where he also died in 632.

While the largest number of revelations was received during the initial 12 and one- half years in Mecca, it was during Muhammad’s time in Medina that the legal rules and various regulations pertaining to everyday life were revealed. According to the Quran, “We sent it in this way to strengthen your heart [Prophet]; We gave it to you in gradual revelation” (25:32). In light of this approach, the Prophet and his Companions were able to memorize the Quran. The Quran also states: “[Prophet], do not rush your tongue in an attempt to hasten [your memorization of] the Revelation: We shall make sure of its safe collection and recitation. When We have recited it, repeat the recitation and We shall make it clear” (75:16–18). Because the Arab population was largely illiterate at the time, they found this gradual method of revelation beneficial. During the Prophet Muhammad’s life, parts of the Quran were written. It was not until after his death, however, that a single authorized version of the entire text became available.

Thus, the Quran is Islamic scripture; it is the primary source of these revelations or the Word of God. The Quran consists of 114 chapters or surats (surah, singular) and 6,342 verses or ayas (ayah, singular). Each chapter has a title, with the longest of the chapters appearing first and the remainder getting progressively shorter in the text. It has been pointed out that the “contents of the Qur’an are not classified subject-wise. The ayat [signs of God] on various topics appear in unexpected places, and no particular order can be ascertained in the sequence of its text” (Kamali, 1989).

Of the 6,342 verses in the Quran, scholars offer differing figures on how many verses deal with legal issues. It ranges from 350 to 500, and many of these are concerned with religious duties, such as prayer and fasting. With regard to the legal verses, it has been suggested that “most of which were revealed in response to problems that were actually encountered. Some were revealed with the aim of repealing objectionable customs such as infanticide, usury, gambling and unlimited polygamy. Others laid down penalties with which to enforce the reforms that the Qur’an had introduced. But on the whole, the Qur’an confirmed and upheld the existing customs and institutions of Arab society and only introduced changes that were deemed necessary” (Kamali, 1989). It was further estimated that approximately 30 verses dealt with crimes and corresponding sanctions, while another 30 pertained to matters of justice, equality, and rights and obligations of people.

Islamic Law 569

F O S T E R , C E D R I C 1 6 9 2 T S

In the introduction to his translation of the Quran, which is used in this chapter to cite Quranic verses, M.A.S. Abdel Haleem pointed out:

The Qur’an was the starting point for all the Islamic sciences: Arabic grammar was developed to serve the Qur’an, the study of Arabic phonetics was pursued in order to determine the exact pronunciation of Qur’anic words, the science of Arabic rhetoric was developed in order to describe the features of the inimitable style of the Qur’an, the art of Arabic calligraphy was cultivated through writing down the Qur’an, the Qur’an is the basis of Islamic law and theology; indeed, as the celebrated fifteenth-century scholar and author Suyuti said, “Everything is based on the Qur’an.” The entire religious life of the Muslim world is built around the text of the Qur’an.

Muslims consider the Quran as a moral and ethical blueprint for a civilized society, which is neither unique to nor restricted to the society of believers, that is, the Muslim community. The Quran explains the importance of compassion, fairness, honesty, and justice. Although the Quran addresses how a devout Muslim should conduct himself or herself with regard to other people, it is especially concerned with the relationship that a devout Muslim has with God. Moreover, the right to interpret the Quran was not restricted to an elite group. Anyone with a pious disposition and the willingness and aptitude could study the Quran.

The Sunna

The Quran is the primary source of Islamic scripture, because it reveals the Word of God, but another primary source is the Sunna. Sunna means “clear path” or, in this context, established practice. Various approaches have been taken to organize the Sunna. First and foremost, the Sunna consists of three basic methods in which a message was transmitted: verbal, practical, and approved. The verbal method consists of the sayings of the Prophet Muhammad that are called hadiths. The practical method includes the actual deeds of the Prophet. The approved method encompasses the actions or sayings of the Companions that the Prophet approved. The Companions were the initial small group who were followers of Muhammad and who referred to themselves as his Companions.

The Quran indicates the importance of the Sunna on several occasions:

You who believe, obey God and the Messenger, and those in authority among you. If you are in dispute over any matter, refer it to God and the Messenger, if you truly believe in God and the Last Day: (4:59).

By your Lord, they will not be true believers until they let you decide between them in all matters of dispute, and find no resistance in their souls to your decisions, accepting them totally (4:65).

When the true believers are summoned to God and His Messenger in order for him to judge between them, they say, “We hear and we obey.” These are the ones who will prosper (24:51–52).

570 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

What makes the Quran the superior source of Islamic teaching is that it is believed to be received from God. The Sunna, on the other hand, consists of recollections of people who witnessed either a verbal, practical, or approved hadith from the Prophet.

The Sunna is a significant source of Islam in its own right for at least three reasons. It reiterates the rules and standards that were already revealed in the Quran, thereby confirming its authenticity. It is a significant aid in explaining or clarifying Quranic verses that are vague or unclear. Finally, it is the source of pronouncements on which the Quran was silent. The rulings from the Sunna, however, could not contradict or oppose a standard that was clearly stated in the Quran. Obviously, it is this last characteristic that makes the Sunna such an important independent source.

The Pillars of Islam

The central beliefs of Islam that unite the umma, the community of believers, and that are prescribed in the Quran are referred to as the Pillars of Islam. The Pillars of Islam are the five practices that devout Muslims are required to follow. Thus, these practices or tenets unite the worldwide community of Islam. The first tenet is the shahada (testimony): “There is no god but God, and Muhammad is His messenger.” The second tenet is the salat (ritual prayer) that is said each day at five different times: dawn, noon, afternoon, sunset, and evening. The third tenet is sawm (the obligatory fasting) during the month of Ramadan. Fasting includes refraining from food, drink, and sexual activity from sunrise to sunset during this month. Exceptions are made for people who are old, ill, or traveling. The fourth tenet is the obligation to participate in the hajj (pilgrimage) to the Kaba in Mecca at least once in a lifetime. The Kaba is a cube-shaped structure that is the major shrine of Islam. Muslim tradition claims that it was built by Abraham and Ishmael. It contains the Black Stone that Muslims believe was given to Abraham by the angel Gabriel. As such, it is considered the sanctuary of the “House of God.” It should also be noted that the pilgrimage is expected of those who are physically and financially able. The fifth tenet is the imposition of the zakat. Zakat means purification and is considered a religious obligation. It is a tax on Muslims for the care of the poor (see Aslan, 2006; Esposito, 2002).

Sunni and Shia

Christianity is divided into several denominations that embrace the basic Christian message. There are differences among the denominations that often deal with biblical interpretations and church governance. Islam is not divided along these same lines, because all devout Muslims adhere to certain core beliefs that include a belief in God, the Quran as divine revelation, the Prophet Muhammad and his teachings, and the basic tenets found in the Pillars of Islam. It should be noted that there are some differences on theological questions, but those are beyond the scope of our purpose.

The significant division in Islam was over the political and religious leadership of the umma, the community of believers, upon the death of Muhammad. When Muhammad died in 632, his efforts to reform the religion of one God was still in its infancy. Because

Islamic Law 571

F O S T E R , C E D R I C 1 6 9 2 T S

Muhammad had not designated a successor, the elders of Medina, the seat of his reform movement, selected Abu Bakr as leader. Abu Bakr had excellent credentials in that he was noted for his piety and wisdom and the fact that he was an advisor and father-in-law to Muhammad. Abu Bakr’s tenure as caliph (successor to Muhammad) lasted only two years. Upon his death, he was succeeded by Umar, who ruled from 634 to 644 and is credited with expanding Islam to additional cities in the region. The third caliph was Uthman, who managed to antagonize a number of people in the Muslim community, which led to his assassination in 656. He was succeeded by the fourth caliph, Ali, who was both a cousin and son-in-law of Muhammad. Some within the Muslim community were angry over Uthman’s murder and opposed Ali’s selection. This led to Ali’s murder in 661.

Two groups emerged over the leadership issues that plagued the umma during its first four decades of existence. Sunni Muslims (from followers of the Sunna of Muhammad) are the main or orthodox branch of Islam. They noted that Muhammad did not name a successor; as a result, they were of the opinion that the most qualified person should be selected as leader or caliph, and the selection should not rely on hereditary succession. From the Sunni perspective, because Muhammad was the last prophet, a caliph’s authority would be limited to the political realm and would not be given a theocratic status. Of course, the caliph was expected to be a protector and defender of the Islamic faith. Thus, Sunnis believe that an Islamic government is a civil matter without any religious authority. Sunni Muslims account for about 85 percent of the adherents to the Islamic faith.

Shia Muslims (from the party of Ali) gradually developed a movement that asserted the hereditary succession of Ali’s descendants to the position of leader, because they believed that Muslims should be ruled by a male descendant of Muhammad. As such, the people should have no voice in determining the ruler, because it is a prophetic matter. These leaders, who were descendants of Ali, were called Imams, and their leadership authority extended to the realms of both religion and politics. As religious leaders, they were considered the interpreters of God’s will. Although they did not have the status of a prophet, the speeches and writings of Imams are considered important religious texts. Shias became the largest sect in Islam, and Shia Muslims, known as Shiites, represent about 15 percent of Muslims worldwide.

Within Shia Islam there are divisions that are based on differences over how many Imams succeeded the Prophet Muhammad. Today, the largest of these divisions are known as Twelver Shias. They believe that Muhammad, the twelfth Imam, who was born in 869 and a descendant of the Prophet Muhammad through his son-in-law Ali, went into hiding in the ninth century. Originally, it was thought that this period of seclusion would not last long. As the period of Occultation continued over centuries, there emerged the belief that the Imam Muhammad would return on Judgment Day.

While the Imam was in seclusion, there emerged the belief among the Shia community that the ulama, the religious scholars, were the only legitimate authority to offer guidance on governance, for it was the ulama who had undertaken long years of study of the Quran and Sunna. The ulama were not mandated to govern, but they were to offer moral and ethical guidance to the Shia community. The Shia community had its greatest concentration and development in Persia (modern-day Iran). Over time, the ulama of the Shia community

572 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

established a clerical hierarchy. The upper echelons of this hierarchy are senior leaders who are called ayatollahs (signs of God) that are noted both for their piety and religious knowledge.

What makes this sect of Islam significant and different from Sunni Islam is that from its inception Islam had not established a church hierarchy or an ordained clergy, as those terms are used in a Christian context. Any Muslim could lead a prayer service or preside over a religious ceremony. Today, every mosque has an imam. Here, the term imam is used in a different context from that mentioned previously. An imam is a respected member of the community who is recognized for his piety and knowledge; he leads the prayer service and provides a Friday sermon (Alsaif, 2007; Aslan, 2006; Esposito, 2002; Martin, 2003).

It is important to interject here that the ulama is not unique to Shia Islam. The term ulama is associated with all Muslim men of extensive religious learning. They initially studied at a madrassa, an informal Islamic religious school. These men went beyond merely memorizing the Quran though. They studied the subject in greater depth and were identified by their community for their religious learning. They became the guardians of the beliefs, values, and practices of the umma. Some became noted as famous theological scholars, while others were noted for their legal scholarship and were referred to as jurists. The elite among the ulama were called upon to serve as judges in important courts, as teachers at the famous schools, and as preachers in the major mosques.

HISTORICAL DEVELOPMENT OF ISLAM As mentioned in the Preface and Introduction, Islamic law will not be examined in the context of a single country, but rather it will be viewed in the manner in which it has influenced the justice system of a few countries associated with Islam. Three countries have been selected; today they are called Saudi Arabia, Iran, and Turkey (see Figure 7.1.) Each was selected because the overwhelming majority of their populations are Muslim, but also because each has embraced Islam in distinct ways. Some of the distinctions are based on the cultural traditions of each country that predate the arrival of Islam; some are based on when Islam was received and how Islam evolved in the geographical areas that we call Saudi Arabia, Iran, and Turkey. In light of this, a brief sketch is presented of the historical reception of Islam to these three regions.

The Arabian Peninsula

In pre-Islamic times, the Arabian Peninsula was inhabited by Bedouins, whose culture was based on a patriarchal tribal social structure. The various tribes initially created unwritten rules that over time established customary laws for a tribe. A single executive and legislative authority, as we use those terms today, did not exist. As a result, there was no organization for the administration of a central government in general or for criminal justice in particular. Law and order was based on rules established by the tribes.

Much of the region consisted of a vast desert terrain, and its significance to the rest of the known world was limited to that of providing important trade routes, especially when the principal empires in the region—Persian and Byzantium—were at war with one another.

Islamic Law 573

F O S T E R , C E D R I C 1 6 9 2 T S

574 Islamic Law

During the fourth, fifth, and sixth centuries, however, these empires experienced a period of peaceful coexistence. As a result, the significance of the region for trade routes declined somewhat. With regard to religion, it should be noted that the Zoroastrian faith was dominant in Persia, while Christianity was establishing a strong foothold in Byzantium. Both of these, along with the Jewish faith, were more sophisticated than the primitive pagan practices of the Arab region. Through the various trade routes across the peninsula, Arabs were becoming familiar with these religions.

In or around the year 570, Muhammad was born in the small market town of Mecca. His family was a member of the Quraysh tribe. When Muhammad was about 40 years of age, it is said that he began to receive messages from God through the angel Gabriel. For Muhammad, these were God’s final revelations to humankind. Because of his monotheistic beliefs, he was associated with the prophets of the Jewish and Christian religions. Both of these religions had small communities within the Arabian Peninsula. While Muhammad

SAUDI ARABIA

IRAQ IRAN JORDAN

TURKEY

SYRIA

Black Sea

KUWAIT

Caspian Sea

Mediterranean Sea

Red Sea

Persian Gulf

FIGURE 7.1 | Saudi Arabia, Iran, and Turkey Map courtesy of Bruce Jones Design Inc.

F O S T E R , C E D R I C 1 6 9 2 T S

began to gather around him a small group of followers, most people in the Arabian Peninsula in general and his Quraysh tribe in particular worshipped multiple gods. As such, they rejected his message, which caused him to leave Mecca and move to Medina, an oasis community. In time the people of Mecca would accept Muhammad’s message and welcome him back.

According to one scholar, “Muhammad worked to create a community based on shared religious beliefs, . . . which would transcend the traditional social structure based on families, clans, and tribes and would unite disparate groups into a new Arabian society.” He further pointed out that the “idea of the family was at the core of the Muslim conception of the individual person and the umma, the community of believers. The family ideals reinforced the concept of individuality by stressing the religious importance of individuals as God’s creatures rather than as mere objects in the clan system of society, and by stressing the individual’s responsibility for moral relations within the family” (Lapidus, 2002). It is important to note that the Middle East is another region of the world where there is a long cultural tradition in which the group is more important than the individual. This is a very significant cultural feature that impacts personal responsibility in general and issues associated with criminal justice in particular.

While creating his community of believers in Medina, Muhammad established the first Islamic government. It has been pointed out by one scholar that unlike the founder of Christianity, Jesus of Nazareth, who said, “Render therefore unto Caesar the things which are Caesar’s; and unto God the things that are God’s” (Matthew 22:21), Muhammad was establishing an Islamic state that would be ruled by God’s messenger, Muhammad, on behalf of God. Thus, whereas Christianity made a distinction between the functions of the imperium and sacerdotium, Muhammad did not acknowledge such a division. His state would be governed by a law found in a new scripture that was designed to supplant the two previous religious testaments revealed by this same God.

That scholar has also pointed out:

There is thus a crucial difference between the career of Muhammad and those of his predecessors, Moses and Jesus, as portrayed in the writings of their followers. Moses was not permitted to enter the promised land, and died while his people went forward. Jesus was crucified, and Christianity remained a persecuted minority religion for centuries, until a Roman emperor, Constantine, embraced the faith and empowered those who upheld it. Muhammad conquered his promised land, and during his lifetime achieved victory and power in this world, exercising political as well as prophetic authority. As the Apostle of God, he brought and taught a religious revelation. But at the same time, as the head of the Muslim Umma, he promulgated laws, dispensed justice, collected taxes, conducted diplomacy, made war, and made peace. The Umma, which began as a community, had become a state. It would soon become an empire (Lewis, 1996).

Thus, this was a religious reform movement with a difference. Its leader set out to conquer territory and to preach his spiritual message. The spread of Islam throughout the Arabian Peninsula set the stage for a rapid expansion beyond these borders. Islam would extend its

Islamic Law 575

F O S T E R , C E D R I C 1 6 9 2 T S

reach throughout the Middle East and beyond to include northern Africa and Spain. While this was carried out by conquest and colonization, a number of scholars have indicated that the objective was not to impose this new faith by force, for the Quran clearly states, “There is no compulsion in religion” (2:256).

When Muhammad died in 632, his reform movement was still limited to the Arabian Peninsula. The caliphs that succeeded him continued the military expeditions that he had initiated. By the end of the reign of the second caliph, Umar, Arabs controlled all of the Arabian Peninsula and areas in the Persian and Byzantium empires that are known today as Iran, Iraq, Syria, and Egypt. By the middle of the seventh century, the political climate in the region had been transformed in a unique way, and it was the direct result of God’s revelation to Muhammad. As Islam spread through Arab conquest, so also did the Arab language. The Quran was the first book written in Arabic. Arabs were given a heightened status because Islam originated in their region. It should also be noted that it was during the reigns of the first four caliphs that the introduction of Islamic law or Sharia began to develop through the interpretation of the Quran. Finally, many of the early converts to Islam tended to live in urban areas. As their numbers grew, Islamic institutions were established. Among the most notable were the mosque and law court. The emergence of these courts will be discussed later.

The Arab empire that had been created as a result of these military conquests was short- lived, however. Like most empires, it failed because of internal decay, which is frequently precipitated by a combination of internal political, social, and economic factors coupled with an external superior military threat. Through various battles in 749 and 750, the Arab Umayyad dynasty was defeated by the Persian leader, Abu’l-’Abbas, which established the Abbasid Caliphate. With this development, the center of political power moved from Medina to Baghdad. Of course, the spiritual center would remain in Mecca, the site of the Kaba. Nevertheless, the Arabian Peninsula receded in significance until oil was discovered and it became a significant resource in the twentieth century.

Persia

Persia had a long and famous cultural tradition that extended back to the Achaemenid dynasty that ruled from 559 to 330 BCE. Among the famous rulers associated with this ancient dynasty were Cyrus II, Darius I, and Xerxes I. It was the Sasanian Dynasty (224–651 CE) of the Persian Empire that was weakened by prolonged wars with the Byzantine Empire that ultimately led to its defeat by the Arabs. In the 650s, Arab culture was in the ascendancy throughout the region, and many Persians converted to Islam. In spite of this change in faith, Persians retained their language and their long-standing cultural traditions. While they may have embraced Islam, they were not Arabs, but Persians. One hundred years after their defeat in 651, the fortunes of war were reversed with the creation of the Abbasid Caliphate. This dynasty would remain in power until 1258.

For our purposes, Persia was important in the development of Islam because of its cultural and intellectual traditions that were enhanced further by the fertilization of Greek and Roman ideas. Two examples, which are intimately related and intertwined at times, will suffice to illustrate both this tradition and its continued significance that has evolved

576 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

up to the present time. One deals with politics and political theory, while the other example focuses on the long-standing significant place of religion in Persian culture and society.

Ever since the death of the Prophet Muhammad, there was an ongoing debate over who was the legitimate ruler of the umma, the community of believers. Initially, the umma was small and highly localized in Medina. At the time of his death, however, Muhammad had established an Islamic state that was essentially within the boundaries of the Arabian Peninsula. With further military conquests by succeeding caliphs, an Islamic empire had been created that extended well beyond the geographical confines of Arabia. The principal participants in this leadership debate were members of the ulama, the religious scholars. They had long been acknowledged as the only legitimate authority to offer guidance on governance, for it was the ulama who had undertaken long years of study of the Quran and Sunna.

At issue in this leadership debate was not only who should be the legitimate ruler, but also what should be the extent of the leader’s authority. One of the more fruitful areas for this debate occurred in Baghdad, a center of intellectual activity. Two of the contributors to this debate were Abu Al-Hasan Al-Mawardi (972–1058) and Abu Hamid Muhammad al-Ghazali (1058–1111). Al-Mawardi had a distinguished career in the service of the Abbasid Caliphate, which began with a judgeship, progressed to Chief Justice at Baghdad, and also led to ambassadorial service. He was noted for making scholarly contributions as a jurist, sociologist, and political scientist. Al-Mawardi favored a powerful caliphate and indicated that support for this position could be found in the Quran: “You who believe, obey God and the Messenger, and those in authority among you” (4:59). The ultimate purpose of the caliphate was to protect the umma and administer justice that was based on Islamic jurisprudence.

In the matter of the extent of the leader’s authority, a good deal of tension developed over the authority of the ruler and the specific role of the ulama, who were considered the guardians of Islam. Abu Hamid Muhammad al-Ghazali contributed to this issue. He was a scholar who wrote a number of books on such diverse subjects as theology, philosophy, psychology, science, and jurisprudence. From al-Ghazali’s perspective, the caliphate consisted of three parts or duties. First, the caliphate was the appropriate successor to the Prophet as the political leader of the umma. Second, the caliph was also responsible for the administration of government and the military. Finally, the caliph had a duty to guard and defend the faith. Al-Ghazali was of the opinion that each of these responsibilities should be placed in the care of a single person, the caliph. If this was not possible, the caliph should retain the position of successor to the Prophet and the remaining duties should be distributed to others in positions of leadership. The role of the ulama was always that of guardian of the beliefs and practices of Islam. The issue over the amount of power accorded the secular political leaders and the authority granted to the religious leaders of Islam was not resolved in the tenth century, although the debates did help to clarify the issue. As empires emerged and then declined, and as nation states were parceled out of these old empires with populations overwhelmingly Muslim, the issues of power and authority were addressed, and they continue to be addressed in a number of contexts up to the present time.

Islamic Law 577

F O S T E R , C E D R I C 1 6 9 2 T S

How this aforementioned political debate specifically played out in Persia and later Iran can be traced in part to the long-standing significant place of religion in Persian culture and society. For our purposes, the significant role of religion for Persia began with Zoroastrianism. Zoroaster (630?–550 BCE) was a Persian religious prophet who taught a form of monotheism. Rather than believing that there were many gods, which was a much more common belief at the time, he maintained that there were two forces in the world. Ahura Mazda is the Creator who represents the powers of light, good, and order. Ahriman is the Destroyer who represents the powers of darkness, evil, and disorder. The concepts of paradise and hell were important features of this religion. People determined their fate regarding the hereafter by the manner in which they responded to the battle between good and evil on earth. A significant feature of Zoroastrian beliefs was social justice, that is, the ultimate goal of humankind’s battle against evil was to improve society for all. It was believed that the elimination of disorder and the establishment of order could be achieved by a powerful king ruling in the name of justice. It is important to note that in this context and period of time the administration of justice was a duty of the king and not a right of an individual. Thus, this religion had not only a spiritual dimension but also a social and political mission. The first king of Persia to acknowledge this religion was Darius I (558?–486 BCE). Zoroastrianism had become the dominant faith in Persia during the period of the Sasanian dynasty and served an important role in supporting the role of the king throughout the Persian Empire. It has been suggested that the “Persian theory of kingship was basically religious. . . . [It] had introduced a kind of state Church, which in turn sanctified the royal power, and took an active part in social and political life” (Lewis, 1996).

Shia Islam, which was explained earlier, emerged as a distinct but small sect in the late ninth century and had devout followers throughout the Islamic world. It was in Persia, however, where a significant number of followers were found, and Persia’s rich intellectual tradition enabled the nurturing and development of the Shia sect of Islam. It would eventually become the state religion of Iran in 1501, when the Safavid dynasty (1501–1736) established it as such. Thus, it has been suggested that “Islam broke the centuries-old Zoroastrian bond between subject and ruler, faith and state. In its place, Muslims were called to commit to something greater than the state—the Ummah, the community of believers whose only boundaries are faith” (Mackey, 1996).

Over time, there emerged the belief among the Shia community that the ulama, the religious scholars, were the only legitimate authority to offer guidance on governance. As noted earlier, although the ulama were not mandated to govern, they were to offer moral and ethical guidance to the Shia community. Within this community, the ulama established a clerical hierarchy that assumed the legitimate mantle of authority to offer guidance on governance. This clerical hierarchy is a unique feature of Shia Islam, for Sunni Muslims, who represent the largest number of adherents to the Islamic faith, do not subscribe to a clerical hierarchy. The role of religious leaders in the Iranian Revolution of 1979 and the subsequent creation of the Islamic Republic of Iran illustrate the most recent chapter in the debate surrounding the amount of power accorded the secular political leaders and the authority granted to the religious leaders of Islam.

578 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

The Ottoman Empire

A noted scholar on the history of the Arab world pointed out:

By the end of the tenth century there had come into existence an Islamic world, united by a common religious culture expressed in the Arabic language, and by human links which trade, migration and pilgrimage had forged. This world was no longer embodied in a single political unit, however. There were three rulers claiming the title of caliph, in Baghdad, Cairo, and Cordoba, and others who were in fact rulers of independent states. This is not surprising. To have kept so many countries, with differing traditions and interests, in a single empire for so long had been a remarkable achievement. It could scarcely have been done without the force of religious conviction, which had formed an effective ruling group in western Arabia, and had then created an alliance of interests between that group and an expanding section of the societies over which it ruled (Hourani, 1991).

By the eleventh century, however, another group, the Turks, was moving across the northern frontiers of the Islamic empire. Turkish military slaves had been used in Islam since the eighth century. Now Turks were migrating into Islamic territory and converting to Islam. One group, led by the Seljuk family, was noted for their military prowess. The leader of the family, Tughrul, assumed the title of sultan following his conquest of Baghdad. This illustrated not only his political right to rule as a king but also was claiming the Islamic right to be the defender of the Islamic faith. It was noted that “Turkish Islam was dedicated from the start to the defence or advancement of the faith and power of Islam, and never lost this militant quality” (Lewis, 1996). To illustrate, it was largely Turkish-led armies that fought the medieval European crusaders who sought to recapture the Christian religious sites in and around Jerusalem. As a result of a number of factors, the caliphate was being eclipsed by the Ottoman sultanate.

The conquests would continue under Ottoman sultans. They conquered Constantinople in 1453, which had been the capital of the Byzantine Empire. They seized Athens in 1458, Damascus in 1516, Cairo in 1517, Baghdad in 1534, and Tripoli in 1551. In 1529, they had reached the outskirts of Vienna and were a threat to that city for more than a century. In light of these developments, it is understandable why devout Muslims would view so many successes as proof that they had a sacred duty to continue to expand their true faith over more regions of the world. While retaining the use of their Turkish language, the Ottomans succeeded in centralizing their administrative governing authority and with expanding the size of the Islamic empire through military expeditions. The Western world had not seen such dominance since the time of the Roman Empire.

Scholars have often commented on the large bureaucratic state that was created and that enabled the Empire to operate for so long. One summarized it in this manner: “Ottoman rule was based upon a mixture of imperial and patrimonial modes of governance” (Sunar, 2004). The sultan was at the top of this governing hierarchy. He relied upon two groups to administer the day-to-day functions of the empire. The military corps already had a long tradition among the Turkish people; the development of a civil service bureaucracy benefited

Islamic Law 579

F O S T E R , C E D R I C 1 6 9 2 T S

from Persian influences. Of course, the sultan had a fundamental duty to defend and protect the Islamic faith. Because Islam was not organized along the lines of a church with a bureaucracy, the sultan recognized the ulama as a third element in the administration of the empire. They were the official guardians of the beliefs and practices of Islam.

The height of the Ottoman Empire was between the sixteenth and eighteenth centuries. This empire, with its capital in Istanbul, had come to dominate all Arab-speaking countries. It has been suggested that the “Turks consider the Ottoman period to have been a golden age of ethnic harmony and cultural diversity” (Kinzer, 2001). Three languages dominated the Middle East: Arabic, Persian, and Turkish. Each contributed in its way to the administrative, legal, religious, and secular culture of the region. The principal centers of power were Turkey, Iran, and Egypt. It would be the Ottoman Empire that was “the last great expression of the universality of the world of Islam” (Hourani, 1991).

The Ottoman Empire began its decline in the nineteenth century. The decline “was due not so much to internal changes as to their inability to keep pace with the rapid advances of the West in science and technology, in the arts of both war and peace, and in government and commerce” (Lewis, 1996). One example will illustrate the dilemma facing the empire. From its inception, the Ottoman Empire employed three sources of law. First and foremost was Sharia, the Islamic law, derived from the Quran and Sunna. Second were the rules and principles established to address issues that were not explained in the Sharia. The very process of creating these rules, however, was guided by the Quran. A third source of law was official rulings or directives to cope with various social circumstances at a particular time and a specific place in the vast empire. A fourth source of law emerged during the nineteenth century. As a result of the importance of commercial enterprises and the borrowing of scientific and technological advances from the West, the empire sought additional assistance with nagging problems in other areas of governance. Initially, the empire adopted legal ideas from the codes of European countries. By the late nineteenth century and with specific reference to criminal justice, they were adopting a Penal Code (1857) and a Code of Criminal Procedure (1879) that was based on the contemporary legal codes of France.

This has been a very brief sketch of the historical reception of Islam to the regions that we now call Saudi Arabia, Iran, and Turkey. We will return to these three countries later in this chapter in order to examine the role that Islamic law plays in the contemporary context of each country. First, it is important to provide the reader with an orientation to Islamic law in general and its application to issues associated with criminal justice in particular.

SHARIA

Historical Development

The primary objective of the Prophet Muhammad was religious reform and not the transformation of the customary traditions of Arabia (Khadduri, 1961). Those in opposition to Muhammad maintained that he was indeed violating the tenets of the established law. At the time, religion and law were interrelated in Arabia, as was the case in most primitive

580 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

societies. It was difficult to suggest that one was reforming one without impacting the other. To illustrate, Muhammad claimed he was simply replacing the idols that had been worshipped in the past with the one true God, Allah. Idolatry, however, was part of the customary tradition of Arabia.

During the early formative years of Islam’s development, law emerged from the decisions of the Prophet and upon his death by his political successors, the caliphs. As a result of these decisions and a familiarity with the Quran and Sunna, jurisprudential debates arose over the interpretation of law in the Muslim community. From these debates emerged the theory that the Sharia was “the comprehensive and preordained system of God’s commands, a system of law having an existence independent of society, not growing out of society but imposed upon society from above” (Coulson, 1969).

Upon the death of the Prophet in 632, the caliphs led a series of military campaigns that significantly expanded the geographical region associated with Islam. These conquests were instrumental in the development of Islamic law. The decrees of the early caliphs introduced answers to some legal problems that confronted them in their new territories. Caliphs could initiate legal rules that were outside the realm of Sharia, for the Quran gave them that authority: “You who believe, obey God and the Messenger, and those in authority among you” (4:59). Issues that tended to deal with a specific local problem, however, were resolved through the customs and legal traditions of the local community.

The caliphs were interested in the introduction of Islamic law, for it was considered both a code of law and a code of morals. Thus, a distinction was not made between the two concepts. The Quran, in particular, is the fundamental vehicle that defines what is appropriate in the Islamic community of believers. Various Quranic verses clearly illustrate what is right and wrong or what is proper or inappropriate. For example, “[T]hey say, ‘Trade and usury are the same,’ but God has allowed trade and forbidden usury” (2:275–276); “You who believe, intoxicants and gambling, idolatrous practices and [divining with] arrows are repugnant acts” (5:90); and “Do not go near the orphan’s property, except with the best [intentions], until he reaches the age of maturity” (17:34).

In Islamic society, religious morality was instilled in people through both religious teachers and preachers but also by public officials, like the Muhtasib, the market inspector, who had some authority to sanction law violators. Islamic law established “the code of life for the Muslim community, covering religious obligations (ibahat) as well as social relations (muamalat). Thus, law (fiqh) plays a more vital role in Islamic society than that played by modern or secular law in western societies” (see Kamel, in Bassiouni, 1982).

For the most part, the caliphs retained the administrative organization that existed in the territories that they conquered. The local chiefs of police and judges that were appointed by the provincial administrator and given the authority to hold a court to adjudicate local disputes were expected to utilize local law or custom to resolve issues. It should be noted that in addition to local customs, some of these new territories had been previously influenced by Roman, Byzantine, and Persian legal ideas. Moreover, because there was no hierarchy of courts from which a local judge could seek guidance, he was left to his own discretion in deciding disputes. Initially, the extent to which Islamic legal norms were integrated into legal decisions was totally dependent on the extent to which the judge understood Islamic law. Even with an understanding of the Quran, the legal verses were

Islamic Law 581

F O S T E R , C E D R I C 1 6 9 2 T S

still often subject to interpretation when confronting the facts in a specific case. Thus, the judge was still dependent on his discretion. In light of this situation, legal historians of Islam questioned whether the law of the Quran was actually being implemented in these newly conquered territories.

Although there were no appellate judges in a court hierarchy, a litigant could appeal a judgment to the head of state. When the sovereign elected to sit as a court himself or through his designate, it was known as the court of mazalim (complaints). This was based on the notion that the ruler, whether a caliph or a sultan, had a responsibility to correct any wrong and ultimately to guarantee justice to all his people. In the context of criminal cases, the political authority or the delegate exercised a legal prerogative to resolve an apparent wrong that had occurred in an Islamic court. There were no rules or texts that defined the limits of the jurisdiction of mazalim. Whereas judges in the regular Islamic courts were bound by rules based on Islamic law, mazalim judges were free to exercise their discretion beyond such procedural or evidentiary rules in order to achieve the goal of righting a wrong.

The criminal law was singled out as a facet of law in which the jurisdiction had been essentially delegated to the police by the wali al-jara’im, who was the official authorized to handle criminal offenses by the political leader. Thus, criminal law became a particular focus of mazalim jurisdiction. Senior police could hold a court, and they often ignored the procedural rules established by the Sharia. For example, they entertained the use of circumstantial evidence; they heard the testimony of questionable witnesses; they imprisoned suspects; and they extorted confessions. While the police courts could apply the punishments of hudud offenses (which are explained later), they were not required to do so if the Sharia standards of proof were not met. These highly flexible criminal procedural standards enabled them to use a good deal of discretion when determining an appropriate sanction for the convicted offender (Coulson, 1964). Thus, very early in the development of Islam there was a dual court system. One court was clearly Islamic and was presided over by an Islamic judge that handled a host of legal issues, especially those that related to family law (marriage, divorce, and inheritance). The other court was of local origin and dealt with local issues, often assuming in particular the responsibility for issues associated with criminal offenses.

It has been pointed out that there emerged a tension among the jurists, the Islamic legal scholars, who were the guardians of the ideal interpretation of Sharia and how the law was actually interpreted in practice in the various courts that existed throughout the expanding Islamic territories (Coulson, 1969). At issue was the fact that Sharia represented the ideal order of things for Islam, but the political rulers of Islamic territories had to be concerned with practical matters associated with the community of believers or what we would today call the public interest.

By the eleventh century, the tension began to dissipate. The notion of mazalim courts and judges eventually led to the development of the doctrine of siyasa (administrative justice policy). Essentially, siyasa permitted the sovereign a good deal of authority in the administration of justice. It is important to remember that this doctrine was embraced because it was assumed that the sovereign was ideally qualified to serve in his capacity. The most significant qualification was a degree of religious piety and an understanding of God’s purpose for the community of believers.

582 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

One of the early responsibilities that the political leaders assumed under the doctrine of siyasa and focused on was the development of criminal procedural rules. While a procedural process could conform to cultural and societal norms, it ultimately had to be in compliance with Sharia. The term siyasa sharia means an administration of justice policy that is essentially in conformity with Sharia. Therefore, a distinction was made between Sharia and siyasa. Sharia is that blend of both a code of law and a code of morals. Siyasa sharia is the method of introducing practical pragmatic policies for the administration of justice that are in conformity with the spirit of Sharia, especially when Sharia does not provide specific guidance.

Many contemporary scholars maintain that Islamic law has a rich and important history that introduced concepts and principles that would not be achieved in other legal systems for hundreds of years. For example, they maintain that the idea of equal treatment before the law was introduced to Muslim societies at the beginning of the Islamic era. In pre-Islamic Arab society, customary criminal law placed more severe sanctions on the accused if his victim was of a higher social rank, which was obviously associated with wealth and power. With regard to a retributive sanction, an entire tribe might suffer the consequences of the crimes of one of their tribe because of the collective responsibility of the tribe for its members. With the advent of Islam, Muslims were guided by Quranic verses that such societal distinctions were no longer applicable. For example, “People, We created you all from a single man and a single woman, and made you into races and tribes so that you should recognize one another. In God’s eyes, the most honoured of you are the ones most mindful of Him: God is all knowing, all aware” (49:13). As such, the laws of Islam did not permit the gradation of sanctions based on the social rank of the perpetrator or the victim.

Madhahib

It has been pointed out that: “The first 150 years of Islam were characterized by an almost untrammeled freedom of juristic reasoning in the solution of problems not specifically regulated by divine revelation” (Coulson, 1969). In the eighth century, however, there emerged conflict in Islamic jurisprudence. The basis for the conflict was the tension between divine revelation from Islamic scriptural sources and human reason associated with legal questions and practical cases. This tension was central to the debates and emergence of Islamic legal theory. From these disagreements emerged an acknowledgment to establish a coherent Islamic legal doctrine that would be found in the Quran and Sunna. There was also a recognition that legal reasoning had to become more consistent and less arbitrary. This would lead to the use of analogical deduction.

Unlike the common law of England, which was originally based on case law decisions of the judiciary, Islamic law was developed by jurists, the legal scholars of Islam. Initially, the term sunna was employed to speak in a general way of established practices of the community of believers and those of the Companions. It has been pointed out that the Sunna of the Prophet Muhammad was introduced as legal theory by jurists at the end of the seventh century, and by the end of the eighth century the juristic use of the term Sunna was in reference solely to the Prophet. It should also be noted that originally, hadith was a

Islamic Law 583

F O S T E R , C E D R I C 1 6 9 2 T S

narration of some act of the Prophet, while Sunna was an example or law that could be deduced from a hadith. Hadith also was used to cite statements attributed to the Companions and their Successors. Eventually, hadith was only used when mentioning an act or saying of the Prophet. As a result, the distinction between Sunna and hadith was eliminated (Kamali, 1989).

Initially, there were many madhahib (singular, madhhab) or schools of Islamic law. They existed throughout the expanding territories of Islam and participated in the debates on legal theory. Two of the central features associated with the debates focused on jurisprudential methods. The first of these was the importance and emphasis placed on established doctrines that were gleaned from the Quran and Sunna. The second was a significant reliance on reasoning based on analogical deduction rather than the arbitrary views of judges that were expressed in court decisions.

Historians consider the formative period of the development of Islamic law between the seventh and ninth centuries, and this coincides with the emergence of two major schools of Islamic legal theory in the late eighth century. One school was located in Kufa and was therefore influenced by Persian ideas, while the other school was located at Medina, a significant city in Arabia. In addition to Arab and Persian influences on Islamic legal theory, contact with the Byzantine Empire brought another dimension to the discussions on law. Ultimately, Islamic law was developed through the doctrines of the jurists and appeared in medieval texts. It has been suggested that by the tenth century “the law was cast in a rigid mould from which it did not really emerge until the twentieth century” (Coulson, 1964).

Since the fifteenth century, four legal schools in Sunni Islam have continued to exist. What follows is a brief sketch of these schools. The sketches are followed by some examples of how these schools either agree or disagree when addressing various legal issues.

Hanafi

The Hanafi madhhab was founded by Abu-Hanifa (d. 767), who was open to ideas from other legal systems. Given the ongoing territorial spread of Islam at the time and in light of local conditions, this school favored the freedom to recognize supplementary sources of law. This school originated in Kufa, an urban center, and was influenced by Persian ideas. The jurisprudential approach to Sharia of the Hanafi madhhab was adopted by the Abbasid dynasty (750–1258) of Islam. The Hanafi madhhab came to dominate much of the Middle East region. Today, this encompasses Turkey, Syria, Lebanon, Iraq, Jordan, and Egypt in addition to India.

Maliki

Medinan scholar Malik ibn-Anas (d. 796) produced the first compendium of Islamic law. His name is associated with the Maliki madhhab. It is noted for adhering closely to the traditions of Arabian tribal society. It also favors recognizing supplementary sources of law in the name of the public interest. The Maliki madhhab is noted for emphasizing a moralistic approach to law, and it is dominant in various regions of Africa.

584 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Shafii

Muhammad ibn-Idris ash-Shafi-i (767–820) was noted for his theory of the sources from which law is derived. His treatise, Risala, states this theory. According to Shafi-i, there are four principal sources of Islamic law. The first source was obviously the Quran. He interpreted the Quranic verses that commanded devout Muslims to obey God and to obey the Prophet to mean that Muhammad was also a source of law, albeit a secondary source when compared to God. The pronouncement that Muhammad was a lawgiver was an important theme in Shafi-i’s treatise. The second source was the Sunna of Muhammad, which displaced the sunnas of local legal schools. Thus, instead of multiple sunnas representing various schools, there was now recognized in this theory a single Sunna, that of Muhammad. The third source was ijma or consensus. Shafi-i rejected the authority of a single school to establish a consensus. From his perspective, a consensus must be reached among the entire community of Islamic scholars. The fourth source was reasoning by ijtihad or analogy. This method was employed to resolve issues in which the other sources did not provide an answer; however, the other sources should serve as a guide in the resolution of an issue. This source of Islamic law is considered strikingly significant by today’s scholars, because it has enabled Islamic legal scholars to develop new theories of law. This is especially pertinent with the development of modern fields of law. While Shafi’i’s theory acknowledged the obvious importance of God’s will in law, he enhanced the status of human reason through the resolution of legal issues. The Shafii madhhab dominates southern Arabia, east Africa, and Southeast Asia.

Hanbali

Ahmad ibn-Hanbal (d. 855) collected hadiths into a work titled Musnad. He rejected human reason as a source of law and claimed all legal rules could be found either in the Quran or the Sunna of the Prophet. Thus, the followers of this school rejected judicial reasoning by analogy. They were of the opinion that the prophet’s Sunna, in particular, was being compromised through the broadening of the sources of Islamic law by the other schools. They strongly favored the traditional approaches or sources of Islamic law and focused on both the legal and moral teachings that could be derived from the Quran. This madhhab did not dominate a region until it was adopted by the Wahhabi movement in the eighteenth century. It then became the official interpreter of Sharia in Saudi Arabia.

There was agreement among the four madhahib regarding the principal tenets of the Islamic faith, the Five Pillars of Islam. There was also a consensus among the schools regarding the political sovereignty in the Islamic state. All supported the doctrine of the Caliphate, the successor to Muhammad would be the political leader of the Islamic com - munity, and the caliph would assume this position following his election by the qualified representatives of the community of believers. Moreover, his authority would be limited by law. There were differences among the schools, however, when interpreting the actual implementation of certain laws. A few examples that relate to criminal law and procedure should illustrate these differences.

Islamic Law 585

F O S T E R , C E D R I C 1 6 9 2 T S

For instance, the Quran states that: “. . . if anyone repents after his wrongdoing and makes amends, God will accept his repentance: God is most forgiving, most merciful” (5:39). Jurists differed on how this verse should be interpreted. While the Hanifa madhhab maintained that repentance did not eliminate punishment in this life, but only in the hereafter, the Shafii madhhab were of the opinion that repentance meant the elimination of punishment in this life and the hereafter. In reference to the conditions of witnesses, Islamic law established certain standards that potential witnesses were required to meet before they were permitted to testify in court. One of the standards was that the witness must be able to speak. The madhahib had varying opinions on the testimony of people who could not speak or hear. The Malik and Hanbali madhahib accepted the written testimony of a person who could not speak, whereas the Hanafi madhhab rejected the testimony.

On the subject of confessions, the Hanafi madhhab maintained that a valid confession had to occur in court, whereas the Maliki, Shafii, and Hanbali madhahib were of the opinion that a confession was valid outside of court, if there were two witnesses to the testimony. In reference to compensation as a legal punishment, it was considered a payment by the perpetrator, as a ransom for a lost life or an injury received. In cases of murder, however, it was argued by some that if the perpetrator was to undergo the penalty of retribution, the victim’s family could not impose upon him a demand for compensation. The Shafii and Hanbali madhahib disagreed with that position and maintained that a murderer was obliged to pay compensation if the victim’s family demanded it. On another matter, the Shafii madhhab employed ijtihad to justify inflicting the penalty of stoning for sodomy. The other schools claimed that this was not necessary, because the legal definition of fornication already included sodomy.

Finally, in the matter of wine drinking as an offense, the various madhahib had been in disagreement over whether it should be expanded to include other alcoholic beverages and other drugs. In addition, the Hanafi and Maliki madhahib maintain that the sanction for this offense is 80 lashes, but the Shafii madhhab is of the opinion that the penalty should be 40 lashes. They make this distinction based on the practices of the first Caliph, Abu Bakr, and the fourth Caliph, Ali.

Legal Theory and Shia Islam

There is agreement between Sunni Islam and Shia Islam regarding the principal tenets of the Islamic faith, the Five Pillars of Islam. With regard to law, Shia Islam maintains that the Quran established a new legal system. The principal sources of Shia law are the Quran and Sunna. As such, customary law was eliminated, unless it was supported in the Quran. One of the major distinctions between Shia Islam and Sunni Islam is associated with legal sovereignty. Sunni Islam supported the doctrine of the Caliphate, that is, the successor to Muhammad would be the political leader of the Islamic community, and the caliph would assume this position following his election by the qualified representa- tives of the community of believers. Moreover, his authority would be limited by law. With regard to legal sovereignty, the Shia Imam had supreme authority of the divine lawgiver. The difference politically has been characterized as that between a constitutional form versus an absolute form of government. Finally, a significant difference with Sunni Islam is in the

586 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

area of inheritance. Whereas Sunni Islam emphasized the customary law of the tribal heirs, that is, the male agnate relatives of the deceased person, the inheritance law in Shia Islam emphasized the immediate family. It was based on the closeness of the deceased to the relation. Moreover, gender was irrelevant under this legal interpretation. The origins of these distinct legal interpretations are usually traced to the Ja ‘fari school of jurisprudence. Associated with Ja ‘far as-Sadiq, a sixth-century Imam, this school is noted for the importance it places on ijtihad, that is, the role of applying reason when interpreting the laws of Islam. A further elaboration of ijtihad is offered below. Moreover, the Ja ‘far school is the principal school of jurisprudence in Shia Islam. Shia legal theory has been dominant in Iran, India, East Africa, and Iraq.

Sources of Sharia

Islamic law is characterized as a series of standards that are religious and moral in nature and that are designed to establish and to explain appropriate conduct of the believers of Islam. As the Quran proclaims: “Be a community that calls for what is good, urges what is right, and forbids what is wrong: those who do this are the successful ones” (3:104). Thus, Islamic law emphasizes a series of duties rather than focusing on rights, which is often a major concern of legal systems in the West. The principal sources of the Sharia are the Quran and Sunna.

Quran

Throughout the Quran there are several verses that provide the devout Muslim with an explanation for the legitimacy of Islamic law. For example, scholars cite: “Authority belongs to God alone, and He orders you to worship none but Him: this is the true faith, though most people do not realize it” (12:40), and “Follow what has been sent down to you from your Lord; do not follow other masters beside Him” (7:3).

By extension, the legitimate authority bestowed on the agents of the theocratic community is also noted. One was specifically directed at Muhammad: “So [Prophet] judge between them according to what God has sent down. Do not follow their whims, and take good care that they do not tempt you away from any of what God has sent down to you” (5:49). Scholars have interpreted that other verses are directed at state leaders and those authorized specifically to adjudicate civil and criminal disputes. To illustrate:

You who believe, obey God and the Messenger, and those in authority among you (4:59);

Those who do not judge according to what God has sent down are rejecting [God’s teachings] (5:44);

Those who do not judge according to what God has revealed are doing grave wrong (5:45); and

Those who do not judge according to what God has revealed are lawbreakers (5:47).

Islamic Law 587

F O S T E R , C E D R I C 1 6 9 2 T S

It is important to point out that the Quran is not a constitutional document or legal code. The Quran clearly states: “This [revelation] is a means of insight for people, a source of guidance and mercy for those of sure faith” (45:20). The Quran is a blueprint for establishing a civilized society that speaks to such notions as fairness and compassion. Because it is a source of guidance, many of the legal-oriented verses are presented as general principles in recognition that societal conditions might change. The Quran is specific, however, with regard to issues that are considered immutable (Kamali, 1989). The distinction between general principles and that which is immutable will become clear when explaining the range of crimes and corresponding punishments.

It was mentioned earlier that the Quran consists of 6,342 verses and that scholars often differ over how many verses deal with legal issues. The debate ranges from 350 to 500. Those verses that are clearly legal in nature usually begin with either a command to enhance the security of the Muslim community or a prohibition to prevent acts that are detrimental to the well-being of Islamic society. In order to comprehend the meaning of the legal verses, Muslims relied on the analysis of jurists, scholars of Islamic law.

Sunna

Sunna or established practice is also considered a scriptural source for Muslims. The Quran states: “accept whatever the Messenger gives you, and abstain from whatever he forbids you” (59:7). The Sunna consists of the spoken words of Muhammad and deeds attributed to him that were reported by authoritative sources. Whereas the Quran is the revealed Word of God, the Sunna is another source that is both sacred and divinely inspired. The Quran proclaims: “Obey God; obey the Messenger” (24:54). Upon Muhammad’s death, the significance of the Sunna was enhanced in guiding the Islamic community. It has been suggested: “The Sunna plays its significant role as a source of Islamic law either by comple - menting the Quran or by interpreting its texts” (Sanad, 1991).

For our purposes, the Sunna can be divided between legal and nonlegal criteria. For the most part, the nonlegal consists of the normal everyday activities of the Prophet that had nothing to do with Islamic law. The legal consists of the verbal, practical, and approved that address or explain some aspect of Islamic law found in the Quran. As mentioned earlier, the verbal are the sayings of the Prophet Muhammad; the practical are the actual deeds of the prophet; and the approved are the actions or sayings of the Companions that the Prophet approved. These legal explanations occurred either in the prophet’s capacity as messenger of God, as head of state, or as judge. It should also be noted that reference to the hadiths by the founders of the major legal schools reinforced the importance of the Sunna.

Ijma

In the early years (roughly the seventh through the ninth centuries), when Islam was estab - lishing its foundation in various geographical areas, there was a good deal of diversity in interpreting Islamic law. Part of this diversity was associated with differences of opinion

588 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

regarding interpreting the Quran or the context of the Sunna. Part had to do with accommodating the local customary law and procedural customs of tribunals with the introduction of the Sharia. As a result of this diversity, there gradually emerged another source of Islamic law, ijma. Ijma is a general consensus about a legal ruling that is reached among jurists, Islamic legal scholars.

In support of the use of ijma, jurists cited the Quranic verse: “[Believers], you are the best community singled out for people: you order what is right, forbid what is wrong, and believe in God” (3:110). A unanimous general consensus among jurists meant that the ruling was binding. Such a consensus, however, could not conflict with rulings based on the superior sources of Islamic law, namely the Quran and Sunna. The Quran is very clear on this point: “if anyone opposes the Messenger, after guidance has been made clear to him, and follows a path other than that of the believers, We shall leave him on his chosen path—We shall burn him in Hell, an evil destination” (4:115). Thus, although inferior to the Quran and Sunna, ijma became another source of Islamic law, as long as it was consistent with the superior sources of law. Of course, a consensus established at one point in time could be overturned with a new consensus. It has been pointed out that a decision based only on ijma was rare (Sanad, 1991).

Ijtihad

A final source of Islamic law is ijtihad or legal reasoning by analogy. Ijtihad is the process in which jurists determine a rule based on analogy. It is utilized when a rule conflicts with another rule or when a rule is rather vague and somewhat questionable. Moreover, jurists turn to ijtihad when neither the Quran nor the Sunna has specifically addressed the issue at hand. The ultimate goal of ijtihad is to resolve a conflict or clarify an issue that is in the best interests of the Muslim community. Originally, the use of ijtihad led to contentious debates over its validity. Opponents cited the Quranic verse, “We have missed nothing out of the Record. . .” (6:38), to justify their position. Proponents, however, also cited the Quran with a rejoinder: “Learn from this, all of you with insight!” (59:2). Ijtihad eventually won the day and is an especially valuable legal source in modern times, because it is the mechanism that allows Islamic law to evolve with time. To illustrate, originally the Quran forbade the drinking of wine, which was common in ancient times. Over time and through ijtihad, all alcoholic beverages were prohibited. More recent translations of the Quran now refer to intoxicants, which enables the inclusion of illegal drugs. Like ijma, ijtihad is not a totally independent source, because it must be consistent with the superior sources of law, namely the Quran and Sunna.

Basic Assumptions

In order to understand Islamic law, it is important to begin with an understanding of two basic assumptions that Muslims embrace. First, God is the sole source of authority and the lawgiver.

Islamic Law 589

F O S T E R , C E D R I C 1 6 9 2 T S

The Quran states:

Judgment is for God alone: He tells the truth, and He is the best of judges (6:57);

Your Lord is God, who created the heavens and earth in six Days, then established Himself on the throne; He makes the night cover the day in swift pursuit; He created the sun, moon, and stars to be subservient to His command; all creation and command belongs to Him (7:54); and

Authority belongs to God alone, and he orders you to worship none but Him: this is the true faith, though most people do not realize it (12:40).

While God is the sovereign lawgiver, “God has made a promise to those among you who believe and do good deeds: He will make them successors to the land, as He did those who came before them; He will empower the religion He had chosen for them; He will grant them security to replace their fear” (24:55). This verse has been interpreted as acknowledging that man is God’s trustee on earth and thus has the authority to make law, but it must be in conformity with Sharia. Thus, while God is the lawgiver, man has the authority to be a lawmaker. These passages illustrate the basis for the Islamic theocratic state. Obviously, it differs from the modern political tradition of the West that places sovereignty with the people.

The other basic assumption is the emphasis of both the individual and collective moral duties of Muslims. While many Western societies speak to the importance of individual rights, the Quran focuses on community obligations. One of the most important examples of a collective duty is the call of the community to prayer five times a day, but especially on Friday. “Believers! When the call to prayer is made on the day of congregation, hurry towards the reminder of God and leave off your trading—that is better for you, if only you knew—then when the prayer has ended, disperse in the land and seek out God’s bounty” (62:9–10). Another is related to the notion of man as a trustee of God on earth. “It was He who created all that is on earth for you” (2:29). Collectively, man has a duty to care for all of God’s creations. He has a particular obligation to help maintain the social order of the community. “The believers are brothers, so make peace between your two brothers and be mindful of God, so that you may be given mercy” (49:10). Finally, man has a collective duty to pursue justice. The Quran states: “You who believe, be steadfast in your devotion to God and bear witness impartially: do not let hatred of others lead you away from justice, but adhere to justice, for that is closer to awareness of God” (5:8). Moreover, “God commands justice, doing good, and generosity towards relatives and He forbids what is shameful, blameworthy, and oppressive” (16:90). The importance of community, an obligation to care for one another and all things created, and a duty to pursue justice are lofty objectives. These are among the general assumptions found in the Quran that explain why scholars have referred to it as “a constitution and an organic law which concerns fundamental rights. These general principles are immutable. But particular provisions may be modified as long as they remain subordinate to the spiritual interest of the community” (see Kamel, in Bassiouni, 1982).

590 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Principles of Islamic Criminal Justice

Islamic law deals with a wide range of legal topics that include the person, property, the family, and inheritance. For our purposes, we focus only on that which relates to crime and the penal law. The aforementioned verse of the Quran points out that “God commands justice.” Three principles are gleaned from the Quran that explain how justice is pursued within the realm of Islamic criminal justice. The first principle is that of criminal responsibility. According to contemporary scholars, “Islam guarantees five essential things to all persons and prevents unwarranted infringement of them by the state. These include (1) religion, (2) life, (3) mind, (4) posterity, and (5) property” (see Abd-el-Malek al-Saleh, in Bassiouni, 1982). Collectively, this is known as the theory of protected interests. Essentially, these scholars maintain that this theory is designed to allow a person to live his or her life with dignity.

In order to benefit from participating in this arrangement with the state, people were expected to be individually responsible for their actions. The Quran states: “Each soul is responsible for its own actions; no soul will bear the burden of another” (6:164). Thus, an important condition for imposing a punishment on a person was that he or she intended to commit a criminal act. With reference to criminal justice, the person is also entitled to a degree of security when accused of a crime. It also states, “Whoever does good does it for his own soul and whoever does evil does it against his own soul”(41:46), and “anyone who does wrong will be requited for it and will find no one to protect or help him against God” (4:123). Therefore, a person is responsible only for acts of commission or omission that he or she committed and is not answerable for crimes committed by others. This is a significant change from the ancient notion of collective tribal responsibility, which was the norm in Arab society. But it is important to point out that the collective responsibility of the family was retained with regard to paying any damages for a crime committed by one of its members.

Moreover, degrees of accountability were recognized, based upon the extent to which one participated in a criminal offense; that is, was the person a principal or an accomplice? If a person had not reached the age of majority, he or she could not be held criminally responsible for his or her actions. Thus, legal penalties could not be imposed on children; however, a judge could reprimand young people who had committed a criminal act. Moreover, people with insufficient mental capacity were not held liable. Islamic scholars maintain that the principle of individual responsibility was established in Islamic law much earlier than in other legal systems.

The second principle deals with legality, specifically the issue of crime and punishment. Throughout the Quran, there are countless examples of God refraining from imposing a punishment until he had first told man through a messenger that a specific behavior was wrong. To illustrate, the Quran states: “No soul will bear another’s burden, nor do We punish until We have sent a messenger” (17:15). Moreover, a person cannot be punished for acts that were not criminal at the time they were committed. Islamic scholars cite several Quranic verses to support the origin of this principle. Some verses are general announcements of the important role of the messenger. For example, “They were messengers bearing good news and warning, so that mankind would have no excuse before God, once the messengers

Islamic Law 591

F O S T E R , C E D R I C 1 6 9 2 T S

had been sent: God is almighty and all wise” (4:165), and “This Qur’an was revealed for me to warn you [people] and everyone it reaches” (6:19). Other verses are a bit more specific and clearly warn that certain conduct will lead to punishment:

Your Lord would never destroy towns without first raising a messenger in their midst to recite Our messages to them, nor would We destroy towns unless their inhabitants were evildoers (28:59); and

We have sent you with the Truth as a bearer of good news and warning—every community has been sent a warner. If they call you a liar, their predecessors did the same: messengers came to them with clear signs, scriptures, and enlightening revelation and afterwards I seized the disbelievers—how terrible My punishment was! (35:24–26).

As a result of such guidance, jurists concluded that no person could be accused of a crime or suffer punishment unless it was specified in a law. This concept is now well known and embraced in the modern world.

In the context of Islam, only those offenses expressly cited by God the lawgiver and those legislated by the duly authorized lawmakers of a government have the force of law. Like the principle of criminal responsibility, the principle of legality is designed to protect the security of an individual from arbitrary, capricious, and discriminatory intrusions by the government. It is also designed to curb the possible excesses of a judge at the sanctioning phase of a criminal procedure. “Those who do not judge according to what God has revealed are lawbreakers” (5:47). Thus, judges were expected to impose sanctions that were in compliance with the Quran.

The third principle addresses the nonretroactivity of criminal law, which is associated with the principle of legality. Once again, this is designed to protect the individual who may be a recent adherent to Islam and ignorant of the law. We turn to the Quran for examples. On the subject of marriage, “Do not marry women that your fathers married— with the exception of what is past—this is indeed a shameful thing to do, loathsome and leading to evil” (4:22). On the subject of usury, “Trade and usury are the same, but God has allowed trade and forbidden usury. Whoever on receiving God’s warning, stops taking usury may keep his past gains—God will be his judge—but whoever goes back to usury will be an inhabitant of the Fire” (2:276). The prohibition against adultery and the drinking of wine are also noted as behavior that did not constitute a crime in the pre-Islamic period but was now deemed forbidden. In modern times, the principle of nonretroactivity tends to focus more on protecting the individual from the abuse of governmental power.

Crime and Punishment

With regard to punishment, the Quran offers a general guideline: “If you [believers] have to respond to an attack, make your response proportionate” (16:126) and “Let harm be requited by an equal harm, though anyone who forgives and puts things right will have his reward from God Himself—He does not like those who do wrong” (42:40). It is important to interject at this point that the sanctions imposed under Islamic law are also considered

592 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

religious decisions, because they are either directly or indirectly inspired by religious texts. They often not only speak of a temporal punishment for a crime against the community of believers but also indicate that a punishment will be imposed in the hereafter for the sin against God. To illustrate, “if anyone kills a believer deliberately, the punishment for him is Hell, and there he will remain: God is angry with him, and rejects him, and has prepared a tremendous torment for him” (4:93). For the crime of highway robbery or unlawful rebellion, the perpetrator will experience “a disgrace for them in this world, and then a terrible punishment in the Hereafter” (5:33).

With regard to violations of Islamic law, the Quran alerts all Muslims to the consequences of their actions:

These are the bounds set by God: God will admit those who obey Him and His Messenger to gardens graced with flowing streams, and there they will stay—that is the supreme triumph! But those who disobey God and His Messenger and overstep His limits will be consigned by God to the Fire, and there they will stay—a humiliating torment awaits them! (4:13–14)

The significance of this religious element should not be ignored or overlooked, for it has been pointed out that for the devout Muslim “each person becomes in effect his own judge, with his faith in God preventing him from indulging in forbidden pursuits and doing injury to the rights of others” (see Salim al-’Awwa, in Bassiouni, 1982). What makes the Islamic legal system unique compared to other legal systems is that it traces its origins to divinely inspired sources. Therefore, with regard to criminal justice there is no distinction between the criminal law and the moral law.

Islamic law recognizes two categories of crime and punishment. Determined crimes and the corresponding sanctions refer to those offenses and punishments that have been specified either by God in the Quran or by the Prophet Muhammad in the Sunna. Discretionary crimes are those not mentioned specifically in the aforementioned sources; however, the Quran and Sunna did offer examples of sanctions that are associated with discretionary crimes. As such, scholars note that there is an important relationship with these discretionary offenses and the original sources of Islamic law. Discretionary crimes are categorized as criminal by an appropriate authority and process within an Islamic state.

Hudud

Determined crimes are of two types. The crimes of hudud (which means limits), in which a hadd punishment is imposed, are associated with threatening the social order and security of the community of believers. Because hudud crimes are specified in the Quran or Sunna, the corresponding punishment is also cited. In such a context, a judge is not permitted to exercise discretionary judicial authority that might contradict the punishment found in the sacred texts.

Hudud offenses include theft, banditry, and rebellion against a legitimate (political) authority, because they threaten public property and security; adultery and fornication, because they threaten the family structure; defamation, because it threatens a person’s

Islamic Law 593

F O S T E R , C E D R I C 1 6 9 2 T S

reputation; apostasy, because it threatens the religious order of the community; and the drinking of wine, because it threatens the moral conduct of individuals. Scholars of Islamic law suggest that the rationale for the sanctions of hudud offenses were an early version of general and specific deterrence.

The sanctions associated with hudud crimes are harsh and are designed to protect the public interest of Muslim society. To illustrate, the Quran clearly states what the hadd (singular for hudud) punishment is for theft: “Cut off the hands of thieves, whether they are man or woman, as punishment for what they have done—a deterrent from God: God is almighty and wise” (5:38). Over time there was a good deal of discussion among jurists, usually after consulting the Sunna, as to when such a sanction could be imposed for theft. For example, the intention to take fraudulently another’s property had to be established. It was concluded that the sanction should not be used for petty theft, which was when the value of the item(s) was less than 20 dirhams. The sanction could only be imposed when the theft occurred in a private area rather than a public space. Finally, the sanction would not be imposed if the theft occurred among members of a family.

Banditry or highway robbery and the endangering of public safety through unlawful rebellion were addressed in one Quranic verse: “Those who wage war against God and His messenger and strive to spread corruption in the land should be punished by death, crucifixion, the amputation of an alternate hand and foot, or banishment from the land: a disgrace for them in this world, and then a terrible punishment in the Hereafter” (5:33). The amputation of the right hand and left foot is often associated with highway robbery. In addition, banishment or exile could also be interpreted to mean imprisonment. Given the variety of punishments mentioned, the Maliki madhhab concluded that the judge would determine the sanction in light of the specific criminal act and the person’s involvement in the act. The other Sunni madhahib (Hanafi, Shafii, and Hanabli) developed a rank order of sanctions that was dependent on the gravity of the act committed. Accordingly, “If a bandit kills, he will be subject to execution by sword; If he steals money, his hands and feet will be cut off from opposite sides; If he only threatens the travelers and frightens them without killing or stealing, he will be expelled out of the land (this includes imprisonment); If the bandit kills and steals property at the same time, he will be crucified” (Sanad, 1991). With this system no discretion is extended to the judge. Finally, if an offender repented before being caught and turned himself in, the punishment could be suspended, for it was written: “unless they repent before you overpower them—in that case bear in mind that God is forgiving and merciful” (5:34).

Rebellion against a legitimate political authority was considered a serious offense against the public order. While legal scholars have disagreed over a precise definition, there is agreement that it involves treason or some type of armed rebellion. According to the Quran: “If two groups of the believers fight, you should try to reconcile them; if one of them is oppressing the other, fight the oppressors until they submit to God’s command, then make a just and even-handed reconciliation between the two of them: God loves those who are even-handed” (49:9). Early in Muslim society it was determined that rebels who refuse to be reconciled should be put to death. It has been pointed out by scholars, however, that lesser sanctions had been imposed.

594 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Adultery and fornication were both considered crimes against the family structure and public morality. The Quran warns: “And do not go anywhere near adultery: it is an outrage, and an evil path” (17:32). As for other hudud offenses, the punishment was fixed. In such cases, the Quran states: “Strike the adulteress and the adulterer one hundred times. Do not let compassion for them keep you from carrying out God’s law—if you believe in God and the Last Day—and ensure that a group of believers witnesses the punishment” (24:2). Some jurists, however, made a distinction between offenders who were single and those who were married. If the offender was single, then the aforementioned punishment was considered appropriate. If, however, the offender was married, the Sunna cited the punishment was death by stoning. Not all jurists adopted this position; some imposed exile for a year in addition to the flogging. Others limited the punishment to flogging in order to comply with the Quran. Whereas hudud offenses generally require the testimony of two men of sound reputation, in matters of adultery and fornication, four witnesses or a confession by the adulterer were required. Finally, it is important to note that any sexual activity less than intercourse was not considered a hadd offense. Other acts would fall under the category of a tazir crime, which is explained later. The crimes of adultery and fornication are excellent illustrations in the Islamic context of how the Sharia is both a code of law and a code of morals for the community of believers.

The most common example of defamation cited by Islamic legal scholars is associated with fornication. For those falsely accused, the Quran states: “As for those who accuse chaste women of fornication, and then fail to provide four witnesses, strike them eighty times, and reject their testimony ever afterwards: they are the lawbreakers, except for those who repent later and make amends—God is most forgiving and merciful” (24:4). Only an innocent accused person can file a grievance in such a case.

Apostasy threatens both the public order and the spiritual order of the community in a significant way. As mentioned earlier, Islam is first and foremost a religion. An apostate is a person who once embraced Islam and is now rejecting it. According to the Quran, “If any of you revoke your faith and die as disbelievers, your deeds will come to nothing in this world and the Hereafter, and you will be inhabitants of the Fire, there to remain” (2:217). Moreover, “As for those who believe, then reject the faith, then believe again, then reject the faith again and become increasingly defiant, God will not forgive them, nor will He guide them on any path” (4:137). Obviously, these passages suggest that the punishment for an apostate will occur in the hereafter.

During the formative years of Islam, when the leaders were attempting to establish a theocratic society, a consensus was reached that the sanction for apostasy in this life should be death. Before this sanction is imposed, however, it must be clear that the accused committed an act that illustrates rejection of the Islamic faith. Denying the existence of God or any of the five tenets of the faith (the five Pillars of Islam explained earlier) would be sufficient grounds. In addition, the person must be given an opportunity to repent his or her actions and return to the Islamic faith. A consensus was not reached among jurists on the length of time a person should be given to recant.

The prohibition against drinking wine has been expanded over the years to include all alcoholic beverages and even the use of illegal drugs. As such, a modern translation of

Islamic Law 595

F O S T E R , C E D R I C 1 6 9 2 T S

the Quran states, “you who believe, do not come anywhere near the prayer if you are intoxicated, not until you know what you are saying” (4:43). It also admonishes: “With intoxicants and gambling, Satan seeks only to incite enmity and hatred among you, and to stop you remembering God and prayer. Will you not give them up? Obey God, obey the Messenger, and always be on your guard: if you pay no heed, bear in mind that the sole duty of Our Messenger is to deliver the message clearly” (5:91–92). The sanction for this offense is 80 lashes, but the Shafii madhhab is of the opinion that the penalty should be only 40 lashes.

It is important to interject that the Quran points out that: “. . .if anyone repents after his wrongdoing and makes amends, God will accept his repentance: God is most forgiving, most merciful” (5:39). Jurists differed on how this should be interpreted. The Shafii madhhab was of the opinion that repentance meant the elimination of punishment in this life and the hereafter, whereas the Hanifa madhhab maintained that repentance did not eliminate punishment in this life, but only applied to the hereafter.

It is also important to note that neither the victim nor the state may pardon a person for a hadd crime. Moreover, because hudud crimes threatened the social order and security of the community, the execution of the sanction was carried out in public. For those who object to such severe hudud penalties, such as amputation, proponents maintain that “[t]hose who protest amputation should consider the welfare of society, since the occasional use of that sanction has proven to be an effective deterrent in Islamic societies” (see Mansour, in Bassiouni, 1982).

Moreover, on the subject of theft, Muslims maintain that one of the Pillars of Islam, the five required practices that devout Muslims are required to follow and that unite the worldwide community of Islam, is specifically designed to reduce the need to steal. The zakat, which means purification, is a religious tax on Muslims. The purpose of the tax is to help the poor, sick, disabled, and elderly. The beneficiaries of such a tax were not limited to Muslims but included the People of the Book, in particular Christians and Jews. Because Christians and Jews did not pay zakat, they were assessed the jizya tax, which not only provided them with a protective status in a Muslim community, but also enabled them to contribute to this community chest for the poor, sick, and elderly.

Finally, scholars of Islamic law offer a final rationale for the use of hudud sanctions. They point out that these are physical penalties over a limited time frame, which inflict severe pain that is designed to prevent the perpetrator from ever forgetting the sanction and to cause the offender to cease his or her criminal lifestyle. In addition, because the sanction occurs over a limited period of time, the perpetrator is able to return to his or her family and assist in their support. Scholars also question the wisdom of relying too much on the use of imprisonment as a sanction. The downside to imprisonment, they maintain, is that imprisonment not only reduces the deterrent effect over a period of time but it also reduces the inmate’s sense of responsibility: a sense of responsibility not only for his or her criminal actions but also for the support of his or her family. In other words, the inmate has all of his or her basic needs provided by the state and often the family of the inmate becomes a recipient of welfare. In addition, the precarious state of the inmate’s family may lead to delinquency and serious criminal activity among other family members (see Mansuor, in Bassiouni, 1982).

596 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Quesas

The other type of determined crimes is quesas (which means equality). These offenses are deemed violations against the rights of an individual. As a result, these offenses are associated with retribution and compensation or diyya (also known as blood money). In light of the fact that there was no organized system of criminal justice administration during the emergence of Islamic societies, this was viewed as a sound method for imposing a sanction on a criminal while at the same time attempting to preserve the social order. The Quran warns: “You who believe, uphold justice and bear witness to God, even if it is against yourself, your parents, or your close relatives. Whether the person is rich or poor, God can best take care of both. Refrain from following your own desire, so that you can act justly— if you distort or neglect justice, God is fully aware of what you do” (4:135). The rationale for the sanctions of quesas crimes were like those for hudud offenses, that is, an early version of deterrence.

Homicide, assaults, and other offenses associated with the physical security of a person are included among these offenses. With quesas crimes, the punishment was of a retributive nature, equal to the harm suffered by the victim. If the victim waived his or her right to retribution (and in some cases this waiver was not necessary), the offender or the offender’s family paid compensation to the victim or the victim’s family for the harm caused.

With regard to homicide, the Quran admonishes: “Do not take life, which God has made sacred, except by right: if anyone is killed wrongfully, We have given authority to the defender of his rights, but he should not be excessive in taking life, for he is already aided [by God]” (17:33). The Quran essentially acknowledges two kinds of homicide: intentional and accidental. With regard to intentional homicide and assaults, the Quran continued the Judeo-Christian tradition of lex talionis (retaliation): “In the Torah We prescribed for them 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, an equal wound for a wound: if anyone forgoes this out of charity, it will serve as atonement for his bad deeds” (5:45). What this verse clearly indicates is that murder is punishable by death. The Quran offers additional guidance on this matter. “You who believe, fair retribution is prescribed for you in cases of murder: the free man for the free man, the slave for the slave, the female for the female. But if the culprit is pardoned by his aggrieved brother, this shall be adhered to fairly, and the culprit shall pay what is due in a good way” (2:178). In this verse there is the assurance that diyya (blood money or compensation) would be paid, even if the family elected to pardon the murderer and not seek the ultimate form of retribution.

With regard to lex talionis, scholars of Islamic law have pointed out that a number of rules were developed by the various legal schools. They included that the retaliatory punishment inflicted cannot be greater than the harm caused by the offender. In the case of murder, the right to decide to inflict the sanction or forgo it belonged to the male parents of the victim, that is, the father and then the grandfather. Distinctions were made with the killing of a male versus a female. The family of a female victim was only entitled to diyya, and its value was half what it would be if the victim had been a male. If the victim was an infant, insane, or physically handicapped, the victim or the victim’s family was also treated differently, with the sanction less harsh than if the victim were a healthy male.

Islamic Law 597

F O S T E R , C E D R I C 1 6 9 2 T S

It is important to keep in mind that these rules were developed in a patriarchal setting, when men were considered the essential economic source for the family in particular and society in general. These rules clearly fail any equality test based on the policies that have emerged in the West. It would be prudent, however, to keep in mind that many of our modern Western policies of equality were primarily introduced during the twentieth century.

In cases of accidental homicide, the Quran states:

Never should a believer kill another believer, except by mistake. If anyone kills a believer by mistake he must free one Muslim slave and pay compensation to the victim’s relatives, unless they charitably forgo it; if the victim belonged to a people at war with you but is a believer, then the compensation is only to free a believing slave; if he belonged to a people with whom you have a treaty, then compensation should be handed over to his relatives, and a believing slave set free (4:92).

In cases associated with assaults and other physical injuries, whether intentional or accidental, reference was again made to the Quranic verse: “In the Torah We prescribed for them 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, an equal wound for a wound: if anyone forgoes this out of charity, it will serve as atonement for his bad deeds” (5:45). Thus, an equal amount of pain was called for, but a monetary compensation was also expected in those cases that were intentional. It was further determined that only a monetary compensation was required for accidental physical injury.

Although the punishment for quesas crimes is of a retributive nature, equal to that suffered by the victim, scholars of Islamic law have argued that the Quran is supportive of forgoing the retributive sanction and replacing it with a just compensation or diyya. For example, they cited the following Quranic verses: “By an act of mercy from God, you [Prophet] were gentle in your dealings with them—had you been harsh, or hard-hearted, they would have dispersed and left you—so pardon them and ask forgiveness for them. Consult with them about matters, then, when you have decided on a course of action, put your trust in God: God loves those who put their trust in Him” (3:159). Moreover, “God commands you [people] to return things entrusted to you to their rightful owners, and, if you judge between people, to do so with justice: God’s instructions to you are excellent, for He hears and sees everything. You who believe, obey God and the Messenger, and those in authority among you. If you are in dispute over any matter, refer it to God and the Messenger, if you truly believe in God and the Last Day: that is better and fairer in the end” (4:58–59). Acts of mercy and forgiveness are reminders that the Quran is a religious text. Some scholars have suggested that replacing the retributive sanction with the diyya is a predecessor to the modern notions of victimology.

With regard to diyya, it is important to note that it is not completely divorced from having a punitive quality. Moreover, the state is involved in the process to assure that the victim or the victim’s family receives the compensation from the perpetrator or the perpetrator’s family. Debates have occurred among the legal schools as to the responsibility for paying the diyya. As mentioned earlier, one of the fundamental principles of Islamic law from its inception was individual criminal responsibility: “Each soul is responsible for

598 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

its own actions; no soul will bear the burden of another” (6:164). As a result, why is the family of a criminal required to pay or assist in the payment of diyya? The Quran maintains that there is a collective duty to secure social order and to pursue justice. It was pointed out that “the overriding policy is one of social solidarity by which the family knows that it has responsibility for its members. Such a policy leads to a system of social compliance by having family members exert control over one another because all fear a certain financial responsibility for the deeds of each individual member of the family” (Bassiouni, 1982). It was mentioned earlier in the chapter that the Middle East is another region of the world where there is a long cultural tradition in which the group is more important than the individual. This aforementioned Quranic policy is an illustration of how it impacts personal and group responsibility for issues associated with criminal justice.

Finally, in order to prove a quesas offense, certain evidentiary rules had to be met. For example, some crimes required at least one eyewitness or a confession. The judge had to be assured that the confession was given voluntarily and without coercion. In cases of homicide, two male witnesses were required or one male witness and two female witnesses. In the event there was insufficient evidence to prove a quesas offense, the judge might be able to impose a tazir sanction, which is explained later.

A useful summary of the rules associated with quesas offenses was developed and is cited here.

1. The accused must be an adult who is of sound mind and understanding at the time of the act, and the act must have been done intentionally.

2. The victim must be a male Muslim or a Dhimmi (Christian or Jew), or according to a majority of writers, a Musta’amin (a non-Christian or non-Jew who has entered the Land of Islam pursuant to a peace treaty or guarantee of safe conduct).

3. Only the male blood relative (father or grandfather) in line of ascendancy can claim Quesas in case of the death of the victim. Only the victim can claim it in case of maiming, although some jurists require that the ascendant male parent agree.

4. A Muslim or Dhimmi cannot be executed or maimed (based on the equivalency principle) for the killing or maiming of someone not ma’asoum (immune), that is, in the case of a Kafir (an idolater, not a Musta’amin), one who has abandoned Islam, or a rebellious Muslim (one who commits the Had crime of rebellion as set forth under Islamic law).

5. According to most jurists, the Had crime must be inflicted with the sword (the weapon known in early Islam to be swiftest and least capable of inflicting more pain than necessary).

6. The infliction of the Quesas must be in the least painful manner. 7. As responsibility is personal, the death of the offender extinguishes all other claims. 8. Pardon or forgiveness extinguishes Quesas but not Diyya, according to some jurists,

while others say it also extinguishes Diyya. 9. If the offender is a minor or is insane there is no Quesas but only Diyya, which a

majority of jurists impute to his family. Others say that there also is no Diyya if the aggressor is a minor or insane.

Islamic Law 599

F O S T E R , C E D R I C 1 6 9 2 T S

10. Female Muslim victims or their families are only entitled to Diyya, the amount being equivalent to half that of the male. This rule exists by analogy to the rule that the male’s inheritance is twice that of a female.

11. Reconciliation is encouraged between the parties even before adjudication, although the collectivity retains the right to impose a Ta’azir penalty.

12. The Diyya is otherwise applicable to all other forms of killing and maiming and to those cases in which the requirements of Quesas are not met. The Diyya does not require that the victim or aggressor be an adult, sane, or male. No Diyya is payable for one who is not a ma’asoum (see supra number 4).

13. An exception to Quesas is made in the case of Quesama (oath), that is, when fifty members of the community, who are adult, sane, and devout Muslims, swear that the accused could not have committed the crime (Bassiouni, 1982).

Once again, it is important to be mindful that these rules were developed in a patriarchal setting, when men were considered the essential and often the sole economic source for the family in particular and society in general. Obviously, these rules fail any equality test based on the policies that have emerged in the West during the modern era.

Tazir

Discretionary crimes are referred to as tazir offenses. The rationales for hudud or quesas offenses have already been noted as focusing on deterrence. The sanctions associated with tazir crimes are also designed to seek an effective deterrent, but they also claim that the primary purpose is to achieve a corrective or rehabilitative purpose. It has been suggested that both the Quran and Sunna illustrate examples of sanctions that are associated with tazir crimes. Thus, the sanctions for tazir offenses have a basis in the original sources of Islamic law and are not solely determined by the authorities of the Islamic state (see Salim al-’Awwa, in Bassiouni, 1982). It has also been argued, however, that tazir offenses are not determined by religious law. As a result, the sanction is left to the discretion of the judge or some public authority (see Kamel, in Bassiouni, 1982). Strictly speaking, this discretionary authority actually belongs to the sovereign and is delegated to the judge by the sovereign.

When compared to hudud or quesas offenses, it has been pointed out that “[c]rimes of Ta’azir, by contrast, are not subject to the principle of legality in the same manner. Islamic law has not specified all violations subject to Ta’azir to the same extent as for other crimes. However, it considers that regardless of circumstances, all acts that infringe on private or community interests of the public order are subject to Ta’azir” (see Benmelha, in Bassiouni, 1982). Thus, the goal of maintaining the public and moral order of the community of believers, which is a significant theme throughout the Quran, provides a valid though expanded interpretation of the principle of legality.

Tazir offenses are considered less serious because they do not involve physical injury to a victim. It has been suggested that these crimes can be grouped into two categories: (1) offenses against religion, public order, and public morals, and (2) offenses that violate the rights of individuals. Because the Quran does not state a specific sanction, yet the behavior

600 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

is clearly prohibited, judicial discretion is relied upon to determine an equitable punishment (Khadduri and Liebesney, 1955).

While violations of religious obligations of Muslims are punished in the hereafter, it is generally recognized in Islamic countries that such failure can also lead to a tazir punishment in this life. In reference to public order and morals issues, the Quran admonishes: “You who believe, intoxicants and gambling, idolatrous practices, and [divining with] arrows are repugnant acts—Satan’s doing—shun them so that you may prosper” (5:90). Here a judge would determine the sanction that is appropriate and in the process take into consideration the age, gender, and social standing of the person in conjunction with the seriousness of the offense. The typical punishments include flogging, imprisonment, warning, and fines.

Fraud is a good example of a tazir offense that violates an individual. The Quran states: “Do not withhold from people things that are rightly theirs, and do not spread corruption in the land” (11:85) and “Give full measure: do not sell others short. Weigh with correct scales: do not deprive people of what is theirs. Do not spread corruption on earth” (26:181–183). These practical examples clearly indicate that it is wrong to violate the rights of individuals and that there was no physical injury to the victim. Moreover, the Quranic verses are silent on an appropriate sanction. Thus, the judge determines the punishment, while always being guided by the Quran and Sunna.

Sanctions for tazir crimes are divided into two categories. One group consists of traditional sanctions that include corporal punishment, deprivation of liberty, and fines. The corporal punishment sanctions consist of the death penalty and flogging. While the death penalty is normally associated with hudud or quesas crimes, there are a few tazir offenses that can lead to a death sentence. They include espionage and heresy. Both are considered a serious threat to the public and moral order of the community. The logic for employing flogging as a sanction for tazir crimes is the same justification for its use with hudud offenses. The sanction can be imposed quickly, which allows the offender to return to his or her family and place of employment. Thus, the offender and the offender’s family do not become a financial burden on the community. Moreover, as a term of imprisonment might lead the offender to become a more dangerous or a persistent violator, that concern is eliminated by imposing a corporal punishment. One scholar has pointed out that flog- ging is usually carried out by using a stick or an unknotted whip. After protecting those parts of the body that might prove fatal to the whipping, the individual lashes are supposed to be administered over the entire body and not limited to one area, such as the back. Jurists disagree on the number strokes an offender should receive, with the range as high as 65 to as low as three (see Benmelha, in Bassiouni, 1982).

Imprisonment was employed when flogging did not appear to work. The period of incarceration could generally range from one day to one year, with the period of time determined by the judge. Islamic law also utilized an indeterminate sentencing scheme. It was reserved for offenders who were recidivists, especially those deemed dangerous. Moreover, other offenders may be sentenced to a term of restricted liberty or probation.

A fine is another form of traditional sanction for tazir crimes. It was introduced with some degree of reluctance on the part of legal scholars. Part of the concern was that judges might utilize the fine too much. While some jurists viewed a fine as a principal penalty,

Islamic Law 601

F O S T E R , C E D R I C 1 6 9 2 T S

others considered it only as a supplemental sanction. It is interesting to note that when a fine was imposed by a judge, part of the wealth or possessions of the offender were confiscated. If the offender was contrite for his or her actions and displayed a rehabilita - tive change in general behavior, he or she might possibly have the money or possessions returned.

The other category of sanctions for tazir crimes tends to have an educational and moral purpose within the context of Islamic society. For example, an offender could be fired from his or her place of employment if the job and actions were a threat to the public interest; the offender could be summoned to court where a judge would admonish him or her either in public or in private; or the offender could be sent a letter indicating the wrong committed and the expectation that the behavior will cease.

Criminal Procedure

It is important to note that Islamic law or Sharia did not provide a detailed process for criminal procedure in general or the investigative and prosecutorial stages in particular. With regard to the practice of justice, the Quran offers a general principle: “God commands you [people] to return things entrusted to you to their rightful owners, and, if you judge between people, to do so with justice: God’s instructions to you are excellent, for He hears and sees everything” (4:58) and “You who believe, be steadfast in your devotion to God and bear witness impartially: do not let hatred of others lead you away from justice, but adhere to justice, for that is closer to awareness of God” (5:8).

The responsibility for developing procedural rules was a delegated authority to the sovereign or ruler. While the process could conform to cultural and societal norms, it ultimately had to be in compliance with Sharia. This delegated authority to a ruler is a feature of siyasa, which literally means administrative justice policy. More specifically, the term siyasa sharia means an administration of justice policy that is in conformity with Sharia. Therefore, a distinction was made between Sharia and siyasa. Sharia is that blend of both a code of law and a code of morals. Siyasa sharia is the method of introducing practical pragmatic policies for the administration of justice that are in conformity with the spirit of Sharia, especially when Sharia does not provide specific guidance.

Ultimately, the objective was to establish an administrative justice process that was in the best interests of the Muslim community. As such, “Islamic law has adopted rules of criminal procedure based on the principle that justice not only requires the offender to be punished for his guilt but also protects the innocent from punishment for crimes committed by another” (see Abd-el-Malek al-Saleh, in Bassiouni, 1982). Originally, the administration of Islamic criminal justice was delegated to a number of different officials, depending on the region in question. Among the officials delegated this authority were the Caliphate, the Office of Complaints, the military commander, the governor, the chief of police, and the judge.

It should be noted that this delegated authority has not escaped criticism from some scholars, especially during the second half of the twentieth century. For example, with specific reference to criminal justice, it was pointed out that:

602 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

many state officials have in the past inflicted unwarranted exemplary penalties on suspects on the assumption that the matter was purely political (or administrative) and not a matter for the Shari’a. They wrongly believed it was their right and duty to regulate such matters without restrictions. Their ignorance of the true meaning of the Shari’a cause grave injustice and impermissible changes in administrative practice and policy (siyasa) which were either falsely attributed to the Shari’a or blatantly substituted for it. They have further claimed that the Shari’a was inadequate and failed to protect the public welfare and thereby replaced it with generalities that contradicted sound Shari’a teachings and precepts (see Awad, in Bassiouni, 1982).

What follows is a general sketch of how a criminal offense might be investigated and prosecuted under the rules and guidelines of Islamic law.

Initiation of a Criminal Action

The initiation of a criminal action generally takes one of two forms. If the offense is an act of commission or omission against God, it is considered against the public interest. In such cases, the state would commence the criminal action. While the victim does not have a right to initiate such an action, he or she does have the right to seek damages. For example, in the case of theft, both the state and the victim have an interest in the case. The state would have the right to seek and inflict a punishment on the guilty party, while the victim would have the right to seek compensation or restitution. If an offense is an act of commission or omission solely against an individual, the criminal action is considered a violation of a private right. As such, the victim would initiate the action. Crimes dealing with assault, defamation, and tazir offenses fall under this category. Once the victim requests that an action be taken, then the agents of the state would assume responsibility for the investigation and prosecution of the matter.

Presumption of Innocence

As mentioned earlier, Islamic law embraced the presumption of innocence as a right for all people. Without such a presumption it would generally be difficult in the extreme for people to prove that they had not committed the crimes of which they were accused. As a result, the burden of proof rested with the accuser. Moreover, the evidence produced must lead to a conviction that was based on a certainty of guilt and not based on a mere probability.

An indictment, which was carried out by a specific agency, charged a person with a crime by confronting them with an accusation or in the case of some suspects their arrest and detention for preventive purposes. The indictment limited the rights and freedoms of the accused. This was justified on the grounds that it was in the interests of seeking truth and justice. The person under indictment had a number of rights, however, the most important of which was the right of a defense.

Jurists frequently cited the comment the Prophet Muhammad made to Ali when he named him governor of Yemen. “O’ Ali, people will appeal to you for justice. If two

Islamic Law 603

F O S T E R , C E D R I C 1 6 9 2 T S

adversaries come to you for arbitration, do not rule for the one, before you have similarly heard from the other. It is more proper for justice to become evident to you and for you to know who is right.” As such, the accused must be informed of what he or she was charged with and be presented with sufficient and valid evidence that supported the accusation. The purpose of the defense was either to deny the accusation by placing doubt on the nature or quality of the evidence or by introducing evidence that proved the person is innocent.

While acknowledging that a person had a right to a defense, this did not necessarily mean that he or she had a right to retain counsel. Islamic law was not explicit in this regard. Moreover, it is interesting to note that scholars have suggested that defendants did not often secure legal counsel. The reason for this was that judges consulted with jurists on complex issues in the course of an investigation and trial. As such, it was often felt that there was no need for an independent and disinterested opinion in the matter at hand, because the jurist had often already provided it to the judge (see Awad, in Bassiouni, 1982).

Criminal Responsibility

In Islamic law a person could not be held criminally responsible for his or her actions under the following conditions or circumstances. The first involved the age of the accused. A child under the age of seven was considered not to have reached the age of reason. Children between the age of seven and the beginning of puberty may be partially responsible for their criminal actions. It should be noted that there was a lack of agreement on defining puberty in Islam. Some jurists were of the opinion that one must differentiate between males and females. In addition, there was disagreement over citing a specific age—11 or 12 were often mentioned—or simply making a determination based on the signs of puberty. While children between seven and the onset of puberty could not be held responsible for either a hudud or quesas offenses, they could be disciplined for any tazir crimes. With reference to tazir cases, the Shafii madhhab maintained that any damages imposed by a court should be paid from the child’s money, while other madhahib suggested that the family should incur the expense. Once puberty had begun, a person was considered criminally responsible, as long as he or she was of sound mind.

The second condition dealt with the mental state of the accused. A person was not held responsible if he or she was insane when they committed the offense. Certain kinds of mental deficiencies, like retardation, might not protect the accused from criminal responsibility unless it was proven that the offender did not know the difference between right and wrong. Voluntary intoxication was another condition. Jurists were of the opinion that hudud or quesas penalties should not be imposed but that tazir sanctions were appropriate.

Investigation

In earlier periods of Islamic society, there was often an investigative phase before a trial. What was different at that time was that there was not a clear distinction between the investigative and trial phases. The reason for this was that it was not unusual for a judge to conduct the investigation and then also sit as the trial judge.

604 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

On the subject of searching for evidence, the Quran acknowledged that a person should have a right to privacy. “Believers, do not enter other people’s houses until you have asked permission to do so and greeted those inside—that is best for you: perhaps you will bear this in mind. If you find no one in, do not enter unless you have been given permission to do so. If you are told, ‘Go away’, then do so—that is more proper for you. God knows well what you do” (24:27–28). And “Believers, avoid making too many assumptions—some assumptions are sinful—and do not spy on one another or speak ill of people behind their backs:” (49:12). These verses have been interpreted to mean that a person was free from unreasonable searches and seizures. Moreover, the second verse reminded agents of the justice system that they must be sensitive to and cautious of baseless accusations. Generally, the search of a person or their property was achieved by seeking a warrant from the Mazalim (Minister of Complaints).

There was a recognition that society benefits from permitting agents of the state to enter a home with the purpose of discovering the truth in a criminal case. As such, a person did not have an absolute right to privacy in his or her home, as long as the state abided by various criteria and adhered to certain restrictions. Contemporary laws have been approved that provide the individual person with a right to privacy that extends beyond his or her home. Because the state has a compelling interest in maintaining order and securing the safety of the public, an investigator is permitted to arrest, search, and seize relevant evidence at the home or on the person of the accused and to hold the person in preventive detention. Accused persons are given an opportunity to present a defense to the investigator in the case, which could involve introducing evidence that contradicts that of the accuser or providing witnesses in support of their innocence. This could even involve the use of a technical expert.

The seizure and preventive detention of a suspect was also a concern among Islamic legal scholars. On the one hand, they recognized that preventive detention was a necessary state function. On the other hand, a basic assumption of Islam was that humans should be free. Scholars frequently cited the Quranic verse: “It is He who has made the earth manage able for you—travel its regions; eat His provision—and to Him you will be resurrected” (67:15). As a result, scholars tended to oppose detention unless it was absolutely necessary.

Interrogation

A distinction was made within Islamic law between simple questioning and an interroga- tion. An interrogation involved charging the suspect and presenting evidence that was the basis for the charges. The interrogation enabled the suspect either to admit guilt or object to the authenticity of the evidence. If the accused admitted guilt, then the interrogation had produced another piece of oral evidence.

During an interrogation, the accused was not required to speak; he or she could remain silent and could not be forced to admit guilt. Legal scholars were in agreement that neither the Quran, Sunna, or ijma condoned tactics that lead to a forced confession. Of course, torture was an acceptable method of securing a confession throughout the ancient world and on into the European Middle Ages. According to one scholar, “Islamic law expressly

Islamic Law 605

F O S T E R , C E D R I C 1 6 9 2 T S

prohibits torture, beating, and other cruel and inhumane treatment. The Prophet forbade torture[,] saying: ‘God shall torture on the Day of Recompense those who inflict torture on people in life’ “ (see Abd-el-Malek al-Saleh, in Bassiouni, 1982). In the modern era, constitutions and due process rules of procedure have prohibited such conduct. Nevertheless, agents of the criminal justice system in many countries continue to use physical coercion, especially psychological techniques, to intimidate a suspect, which often leads to incrimin - ating statements.

According to scholars of Islamic law, a system was established that was designed to reduce the likelihood of abuse during the interrogation stage. In addition to a judge, the Mohtasib was authorized to receive reports of alleged crimes and to investigate them. The work of the Mohtasib was then submitted to the Mazalim (Minister of Complaints), who referred the matter to a judge who would in turn adjudicate the matter. In the event the complaining party did not prosecute the matter, it was the responsibility of the Mohtasib to prosecute the case at trial (see Abd-el-Malek al-Saleh, in Bassiouni, 1982).

In the case of both hudud and quesas crimes, the accused could not be forced to take an oath during an investigation. With specific reference to hudud offenses, the accused had the right to remain silent and refuse to answer the questions of an investigator. Moreover, exercising the right to remain silent was not admissible as evidence against the accused. Finally, under Islamic law the accused had the right to withdraw a confession before the execution of a sentence. As a result, the confession could not be used as part of the evidence to convict the individual.

Evidence

Because the presumption of innocence for the accused was fundamental in Islamic law, an accuser must prove his or her claim that a crime had occurred. The rules that had emerged over time had a basis in the Quranic verse: “As for those who accuse chaste women of fornication, and then fail to provide four witnesses, strike them eighty times, and reject their testimony ever afterwards: they are the lawbreakers, except for those who repent later and make amends—God is most forgiving and merciful” (24:4–5). For a period of time, three madhahib (Hanafi, Shafii, and Hanbali) maintained that evidence was limited to oral testimony, in part because of the aforementioned Quranic verse. In time the acceptance of other types of evidence was accepted. There was one exception; hudud crimes required the testimony of witnesses.

Because of the harsh penalties associated with hudud crimes, the admissibility of evidence had to conform to some specific rules: (1) two eyewitnesses were required for most crimes and four witnesses in cases involving unlawful sexual intercourse, (2) hearsay accounts were unacceptable, (3) the testimony had to be unambiguous, (4) the witnesses had to possess moral integrity, (5) the testimony had to be provided expeditiously from the time of the alleged offense, and (6) the witnesses had to maintain their adherence to their testimony and not deviate from it. With specific reference to the crime of adultery, special conditions for the testimony were established. The four prosecution witnesses had to be male. The testimony of women for the defense was accepted, but it was often required

606 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

that two females had to testify for every male witness. There was also disagreement among the legal schools over the admissibility of testimony from the husband.

Islamic law established various standards that a person had to meet in order to be a witness. First, it has already been mentioned that the witness had to be an eyewitness and not someone providing hearsay testimony. This rule met the authenticity standard. Second, the witness had to meet a moral integrity standard by being of good character. It should be noted that there was not a consensus on how to determine the probity of a witness. The Maliki and Shafii madhahib maintained that a person’s good character was based on their trustworthiness and their avoidance of sin. The character of a person was presumed to be good unless proof was offered to the contrary. Third, individuals must be rational, that is, they must have been in possession of their mental faculties when they observed the event and when they testified. Fourth, the person had to be an adult. The testimony of a minor was inadmissible, unless in a case of homicide where a minor’s testimony was used to refute the testimony of another minor, and both witnesses had been deemed rational. Fifth, the witness must have the ability to retain and recollect past events. Those who possess a bad memory were deemed not competent to testify. Sixth, the person must be able to speak. Different madhahib had varying opinions on the testimony of people who could not speak or hear. The Malik and Hanbali madhahib accepted the written testimony of a person who could not speak, whereas the Hanafi madhhab rejected the testimony. Seventh, an individual had to have seen the event about which he or she was testifying. As such, most jurists claimed that the testimony of a blind person was inadmissible. Finally, the acceptance of the Islamic faith was a prerequisite to permitting a person to testify in an Islamic law court. This was based on the Quranic verse: “Call two just witnesses from your people and establish witness for the sake of God” (65:2). However, if a Muslim witness did not exist or was not available, a non-Muslim could testify. This deviation from the previous standard was also supported by another verse: “You who believe, when death approaches any of you, let two just men from among you act as witnesses to the making of a bequest, or two men from another people if you are journeying in the land when death approaches” (5:106). With respect to hudud and quesas crimes, most jurists maintained that the witnesses must be male.

Confession was another type of evidence in Islamic law. The admissibility of a confession was based on three standards. First, the confession was being offered freely, that is, the accused was not being tortured or coerced in any way. Second, the person understood the legal consequences of admitting guilt. Third, the person must describe or explain his or her specific actions that had been deemed criminal. It should be noted that the Hanafi madhhab maintained that a valid confession must occur in court, whereas the Maliki, Shafii, and Hanbali madhahib concluded that a confession was valid outside of court, as long as there were witnesses to the testimony. The judge determined the admissibility of the confession.

Although eyewitness testimony was the primary form of evidence, secondary forms of proof were considered. Several Quranic verses had been interpreted to support the use of secondary proofs. They included: “Our messengers came to them with clear signs,” (5:32); “Say, I stand on clear proof from my Lord,” (6:57); “The disbelievers say,

Islamic Law 607

F O S T E R , C E D R I C 1 6 9 2 T S

‘Why does he not bring us a sign from his Lord?’ Have they not been given clear proof confirming what was in the earlier scriptures?” (20:133); and “those who were given the Scripture became divided only after they were sent [such] clear evidence” (98:4). Thus, any kind of evidence was acceptable as long as it enabled the process to reach the truth of the matter at hand. Nevertheless, and not surprising, Islamic law favored criminal evidence that was based on eyewitness testimony.

One scholar of Islamic law concluded that “the Shari’a rules of evidence reflect the idealism of the Muslim jurists. The strict burden of proof imposed upon the plaintiff or prosecutor requires him to establish his claim to a high degree of certainty, on the principle that it is better for several actual offenders to escape liability than for one innocent person to suffer liability.” He went on to point out that “the rule of oral testimony places an unrealistic burden on the prosecution,” in light of the fact that most crimes were usually not committed in the presence of two adult males that were noted for their integrity (Coulson, 1969).

Rights of the Accused at Trial

The Quran emphasized the importance of justice and equality among people. “So [Prophet] judge between them according to what God has sent down. Do not follow their whims, and take good care that they do not tempt you away from any of what God has sent down to you”(5:49). Also “God commands you [people] to return things entrusted to you to their rightful owners, and, if you judge between people, to do so with justice: God’s instructions to you are excellent, for He hears and sees everything” (4:58).

It was the practice of the Prophet Muhammad and the caliphs that succeeded him who established rights for the accused. To illustrate, the admonition of Caliph Omar to a newly appointed judge was:

The right to adjudication is an absolute duty in accordance with the Sunna. Investigate any case you suspect (to bring about right), for right without execution is futile. Equalize between the parties before you in your expressions and in your judgment. Your judgment should not be on the basis for the noble to hope for your favor, and for the poor to despair from your justice. . . . If you render a judgment and after a period of time you find it to be unjust, do not hesitate to revise it, unless it is so old that no one can change it. The revision of judgments is better than preserving injustice (Sanad, 1991).

In the early development of Islamic law, the jurists maintained that trials should not be conducted in private. In addition, the decision of the court should also occur in a public setting. Because Islamic law employed an accusatorial procedural method, the accused was guaranteed certain protections from abuse, especially by the authority of the state. For example, the accused had the right of assistance of counsel in his or her defense to prove either that he or she was not legally guilty or was factually innocent.

The right to assistance of counsel traced its origin to the theory of protected interests, which was mentioned earlier in the section on the principles of Islamic criminal justice. This theory essentially stated that people are guaranteed protection from the unwarranted

608 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

infringement of the state with regard to: religion, life, the mind, posterity, and property. The right to assistance of counsel was specifically designed to protect or assure the accused of his or her right to live with dignity. The right to assistance commenced at the investigative stage of the process and in particular at the interrogation phase. In those cases in which the accuser was a private citizen, both the accuser and the accused had the right to appoint another person to represent their interests before a judge.

It is important to note that within the Islamic legal system there were no attorneys, at least as the term is employed in legal systems that originated in the West. For purposes of legal representation in court, a person hired a wakil (an agent). These people were not members of any professional organization, like a bar association, nor were they required to achieve certain conditions, such as passing an examination, in order to serve in this capacity. These wukala (the plural of wakil) were recognized as unique because they possessed a good deal of legal knowledge and were particularly familiar with court procedures.

The ability of a wakil to utilize his powers of persuasion on behalf of his client was indeed important in light of the various procedural rules. To illustrate, a person could not be convicted of hudud or quesas offenses if there was reasonable doubt as to the guilt. This rule prevented a judge from imposing a hadd punishment. In the case of theft, for example, the amputation of the accused’s hand would be prohibited if the value of the property was minimal or the items taken were not personal property. Of course, a person found innocent of a hudud offense because of reasonable doubt could be convicted with a tazir punishment. In the event the prosecution failed to provide adequate evidence to make a case or if the evidence presented by the prosecution and defense contradicted one another, the judge would be required to acquit the accused of the crime and not subject the person to a tazir sanction.

Judge

A judge (qadi) was a representative of the governor of a region. As such, his authority was not independent but rather a delegated authority. Thus, Sharia courts never attained independent judicial authority, for the judiciary always held office at the pleasure of the political authority. Moreover, because it was a delegated authority, the governor retained the right to administer justice. Obviously, under this arrangement, the concept of separa- tion of power did not apply. The role of the judge was to apply the basic customary law of the Islamic territory. There was no hierarchy of courts to which a trial judge could turn. Thus, the decision was often his personal judgment, based on knowledge of local law and the Quran.

Although judges served at the pleasure of the political authority, there were certain requirements that a person had to attain before seeking such an appointment. First and foremost, an Islamic judge was a religious judge. As such, they had to be a Muslim. Second, they must know the Quran and Sunna, the principal sources of Islam and Islamic law. The judge acquired this knowledge by attending a special school, a madrassa, which was an Islamic religious school. Each madrassa was associated with one of the four madhahib, which were discussed previously, that contributed to the development of Islamic legal theory. It has been pointed out that the religious nature of a judge’s job also made him qualified

Islamic Law 609

F O S T E R , C E D R I C 1 6 9 2 T S

to preside over religious functions. This included presiding over Friday prayers, preach- ing at a mosque, reciting the ritual funeral prayer, opening the Ramadan fast, and being present at the ceremony of conversion of a non-Muslim to Islam (Khadduri and Liebesny, 1955).

During the early period in the development of Islam, a person appointed as a judge did not solely function as a judge. He was often given other delegated responsibilities, such as law enforcement. As mentioned earlier, the right to prosecute belonged to the judge in addition to the pretrial examination of witnesses. In Islamic law, a judge acted only when a request was submitted by an interested party. In the realm of criminal law, this meant that the victim must initiate an action. If the case involved a hudud offense or involved a threat to the public interest, a judge could initiate an action. Only later did a judge focus solely on his judicial duties.

The ultimate responsibility of the judge at a trial was to determine the guilt or innocence of the accused. In the event the accused was found guilty of a tazir offense, the judge determined the appropriate sanction. In the course of reaching a punishment, the judge considered the personality of the criminal, the nature and circumstances of the offense, and the harm caused to the victim. These criteria were important for they were in keeping with a frequent Quranic exhortation that God is most forgiving and merciful. As such, these factors could mitigate the punishment. There could also be grounds to aggravate the sanction, with the most frequent justifications being that the offender committed the same crime in the past or appeared to have embraced a life of crime.

The tradition of permitting a single judge to handle a case in an Islamic court was justified by the fact that the judge often consulted with jurists on technical or difficult legal issues. These jurists were private scholars who were noted for interpreting Islamic law. When they issued an opinion or ruling on a specific interpretation of law, the opinion was known as a fatwa. While fatwas were acknowledged as a legal authority, they were not considered law. Thus, although a single judge was imposing a ruling, the ruling was often based on the advice received from a jurist. While a judge was not obligated to consult with jurists, they usually did. Moreover, it was common for jurists to be present during trials.

During the eighth and ninth centuries, a chief judge (qadi al-qudat) was appointed to a region that enabled the chief to appoint and dismiss deputy judges on behalf of the political authority. In spite of this development, there were no appellate judges in a court hierarchy as that term is understood in legal systems that emerged in the West. A litigant could ultimately appeal a judgment to the head of state. When the sovereign elected to sit as a court himself or through his designate, it was known as the court of Mazalim (complaints). This was based on the notion that the ruler, whether a caliph or sultan, had a responsibility to correct any wrong and ultimately to guarantee justice to all his people. In the context of criminal cases, the political authority or the delegate exercised a legal prerogative to resolve an apparent wrong that had occurred in an Islamic court. There were no rules or texts that defined the limits of the jurisdiction of mazalim. Whereas judges in the regular Islamic courts were bound by rules based in Islamic law, mazalim judges were free to exercise their discretion beyond such procedural or evidentiary rules in order to achieve the goal of righting a wrong.

610 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

In some geographical areas, Sharia courts were restricted to the field of family law, while in other territories they retained an almost comprehensive jurisdiction. It has been pointed out that over time Islamic law had essentially developed two kinds of courts: “the distinction between the Mazalim and Shari’a jurisdictions came very close to the notion of a division between secular and religious courts” (Coulson, 1964). The Sharia court judges were characterized as being representatives of God’s law, while Mazalim court judges were portrayed as representatives of the ruler’s law.

Police and Sanctions

Shurta (police) was a police organization with responsibilities for order maintenance. Because Islamic procedural law did not provide for a prosecutor, the jurisdictional duties of the shurta were extensive. They were authorized to investigate crimes in Sharia that were punishable by a fixed penalty or hudud and carried out the corporal penalties imposed. They carried out the retaliatory sanctions of quesas offenses, such as the death penalty, and they were authorized to identify acts considered devious, although not infractions of law. This kind of power suggests a type of autocratic political authority that was prevalent at that time in territories where Islam was the dominant faith.

Senior police had the authority not only to investigate criminals, but also to serve as a judge and to execute a sentence. When the shurta sat as a court, it was supposed to respect Sharia standards of proof, but it was not bound by them. As a result, circumstantial evidence could be introduced, and the testimony of witnesses whose integrity was questionable was admitted. This kind of procedural flexibility led to an enhanced degree of discretion when determining an appropriate sanction. While on some occasions this could be an exercise in compassionate power, there was also a concern that it could illustrate autocratic power.

With regard to sanctions in the context of Islamic law, the primary purpose was deterrence (both specific and general) rather than retribution. The sanctions were ultimately viewed as mechanisms designed to maintain the stability of the umma, the community of believers. The punishments for hudud and quesas crimes were illustrative of a deterrent goal in light of the fact that the sanctions were carried out in public. It is important to note, however, that an equally important rationale for imposing some sanctions was the rehabil - itation of the criminal.

Imprisonment had been legitimized under Islamic law and employed as a form of punishment for tazir crimes. In this context, there was an acknowledgment that prisoners were entitled to certain protections, for example, against torture or other forms of physical and verbal abuse. In addition, it was thought that imprisonment should be limited to dan - gerous or recidivist criminals. It is interesting to note that because the state was depriving the prisoner of his or her freedom, it was the state’s responsibility to provide the inmate with the necessities of life. This included conjugal visitations of prisoners who were married.

This section has provided the reader with an introduction to Islamic law, Sharia, within the context of criminal justice. Brief mention was made of the historical development of this legal system and the important role played by the madhahib in establishing Islamic

Islamic Law 611

F O S T E R , C E D R I C 1 6 9 2 T S

jurisprudence. The principal sources of Sharia were identified. The basic assumptions that make this legal system unique from other systems were explained, and the principles associated with Islamic criminal justice were clarified. The various categories of crimes and punishments were described to a considerable degree. Finally, critical issues associated with criminal procedure and the authorities appointed to carry out the procedural rules were described.

SHARIA: THREE CONTEMPORARY CASE STUDIES The remainder of this chapter will return to the three regions of the Middle East that are identified when discussing the historical reception of Islam: the Arabian Peninsula, Persia, and the Ottoman Empire. By way of an introduction and orientation, it is important to note that the Ottoman Empire had reached its peak between the sixteenth and eighteenth centuries. In the initial years of the empire, Islamic armies had successfully invaded parts of Christian Europe. These centuries were fairly stable periods for the region of Islam. The various Muslim societies in the Middle East were loosely connected to the notion of the caliphate or successor to the Prophet Muhammad. This period of stability and self- sufficiency, however, was about to change. It is also important to remember that although Islam viewed the ideal Muslim community or umma as under the political administration of one caliph, the reality was that Islam was divided politically into several independent states, both worldwide and in the Middle East.

From the eighteenth through the twentieth century, the Middle East was influenced and at times dominated by Western ideas. Initially, this was limited to European countries, especially under British and French colonial rule. By the twentieth century, they were joined by the Soviet Union and the United States. Part of the influence in the region had to do with trade and strategic military interests. With the advent of the industrial revolution in the eighteenth and nineteenth centuries in Europe and America, modern science and technology were transforming the world with a host of developments, such as steamships, railroads, and the telegraph. No longer could a stable region of the world be free from the significance and power of these technological advances. The discovery of oil and natural gas in the region enhanced the significance of this colonial and Western domination further. The economic and military interests of the West are factors that have created a good deal of tension for a considerable period of time in the Middle East. With the advent of the cinema, radio, television, and most recently the Internet, Western popular culture has had a further significant influence on more recent generations of people living in the Middle East. For older generations, Western culture has often been characterized as decadent, and this has been a factor causing tension in the region. The principal concern for these people was that the Middle East, like Europe, would forsake its religious roots and embrace a more secular society.

The interest in acquiring modern military technology from the West began in the nineteenth century. The importance was not limited to weaponry, however; it included tactics in training and organization. This led to an interest in broader ideas associated with the emerging science of public administration. Of particular interest was the desire to centralize the administrative authority of government further in order to weaken any dissidents. With

612 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

concerns about government administration, law was singled out for particular benefit. A degree of familiarity with Western European legal systems had already been achieved during the colonial period, because European countries arranged to have their citizens, who were residing in the Middle East, subject to the laws of their mother country rather than those of the local jurisdiction. Initially, the Ottoman Empire adopted legal ideas from the codes of European countries. By the late nineteenth century and with specific reference to criminal justice, they were adopting a Penal Code (1857) and a Code of Criminal Procedure (1879) that was based on the contemporary legal codes of France.

Although there was opposition by Islamic jurists to this reception of European law, there were two long-standing traditions in Islam that justified these adaptations. First, the responsibility for developing procedural rules had always been a delegated authority to the sovereign or ruler. While the process could conform to cultural and societal norms, it ultimately had to be in compliance with Sharia. As mentioned earlier, this delegated authority to a ruler was a feature of siyasa, that is, administrative justice policy. As noted earlier, the term siyasa sharia means an administration of justice policy that is in conformity with Sharia. Therefore, a distinction was made between Sharia and siyasa. Sharia is that blend of both a code of law and a code of morals. Siyasa sharia is the method of introducing practical pragmatic policies for the administration of justice that are in conformity with the spirit of Sharia, especially when Sharia does not provide specific guidance.

Second, the Islamic legal tradition had long recognized the right of the sovereign to sit as a court himself or through his designee; it was known as the court of Mazalim (complaints). As mentioned earlier in the chapter, this was based on the notion that the ruler, whether a caliph or a sultan, had a responsibility to correct any wrong and ultimately to guarantee justice to all his people. In the context of criminal cases, the political authority or the delegate exercised a legal prerogative to resolve an apparent wrong that had occurred in an Islamic court. There were no rules or texts that defined the limits of the jurisdiction of mazalim. Whereas judges in the regular Islamic courts were bound by rules based in Islamic law, mazalim judges were free to exercise their discretion beyond such procedural or evidentiary rules in order to achieve the goal of righting a wrong.

In spite of these justifications to borrow from the Western legal tradition, this legal reception was cause for tension. After all, Sharia explains to the umma what is the will of God. According to one legal expert, “Islamic law is the epitome of the Islamic thought, the most typical manifestation of the Islamic way of life, the kernel of Islam, itself ” (Schacht, 1964). Moreover, it has been pointed out that the acceptance of Western legal ideas raised questions about “the role and nature of the divine command in law. The attitude of classical and traditional jurisprudence to this question rested upon two fundamental and unassailable propositions; first, that the divine revelation prescribed rules and standards that were valid in all conditions and for all time; second, that divine revelation answered, directly or indirectly, every legal problem. In short the divine command was comprehensive and eternally valid” (Coulson, 1969).

As if these aforementioned tensions were not enough, a final, all-encompassing issue confronting many of the countries in the Middle East centered on a basic societal dilemma: What is at the core of a society? As was mentioned in the introductory chapter to this text, the concept of the nation state emerged in the eighteenth century and has been a significant

Islamic Law 613

F O S T E R , C E D R I C 1 6 9 2 T S

political unit of analysis throughout the world since that time. The intellectual milieu of the Enlightenment helped foster the qualities associated with this nation state, as the Age of Reason replaced the Age of Faith that had dominated Europe since the medieval period. Among the characteristics associated with this nation state are performing political activities over a specific sovereign territory and sharing certain common societal features that may include language, religion, and a common cultural or historical experience. In addition, the institutional development of a nation state has often placed a good deal of emphasis on secular law, because law has usually played a significant role in establishing various legitimate political processes. Finally, the most successful of the nation states in the modern era have embraced democratic principles. The core ideals associated with a modern secular democracy include a recognition of the importance of government by rule of law, a goal to achieve equality for all members of the community, an objective to establish a right for all members of the community to participate in the conduct of government, and a policy to control and limit government by representatives of the community. The basis for these ideals is the notion that people have individual rights and freedoms.

It is important to remember that the ideals of modern secular democracy are a fairly recent development in the history of political theory. Like the nation state, another concept that emerged in the eighteenth century was the notion of popular sovereignty, that is, the source of political authority rests in the will of the people. Initially, popular sovereignty was an ideal that took hold in the early nineteenth century, but it did not represent reality. In many countries, monarchs, the nobility, and members of other elite classes opposed the idea and for a time were successful at preventing it from coming to fruition. Over time, popular sovereignty gained the ascendancy in the West. By the late nineteenth century, and especially in the first half of the twentieth century, it became a reality in the form of modern secular democracy.

The concept of a nation state did not emerge in the Middle East until the twentieth century. As a result, the countries in the region are only now grappling with a host of issues associated with this newfound independence as a nation state. Creating a good deal of tension within each country and among the countries in the region is a central issue confronting each country: the ongoing debate over where their allegiance lies. Is their allegiance to an Islamic society? From the inception of Islam, the most important group associated with it was the umma, the community of believers. Today, because Islam is a worldwide religion, the umma extends beyond the borders of any and all nation states. Because God is considered the supreme head of the umma, in countries that have embraced all aspects of Islam, the state is considered subordinate to Islam. This kind of state is often described as a theocratic state. The purpose of such a state is to secure the maintenance and enforcement of God’s will or law. This is designed to prepare the believers for life in the hereafter. To assist in that preparation, the state seeks to purge society of all sources that create a decadent secular society.

In this aforementioned debate, one alternative allegiance is toward a secular democratic society. While not precisely mimicking what happened in eighteenth-century Europe, some within the Islamic Middle East want to replace their age of faith with an age of reason. The proponents of a secular democratic society see the Muslim world’s failure to modernize

614 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

as the cause of both economic and social poverty among the people and often political tyranny in the governance of the states in the region. One scholar has warned that there is “an unstable mix” of a growing population in the Middle East that includes many uneducated and unemployed young people, especially men, who are increasingly frustrated by their plight (Lewis, 2003). Social scientists have long noted and cautioned that political democracy is impossible without social democracy.

Another scholar contends that “there is no inherent and irreconcilable contradiction between Islam and democracy. Circumstantial variables and contextual factors have constrained the growth of democracy in large parts of the Muslim world” (Ayoob, 2008). Muslim countries had neither the time, centuries of political evolution, nor the independence of countries in Europe, and have only recently achieved their geographical boundaries as nation states. As such, it is not surprising that the ruling elites that assumed political positions of leadership in these new nation states were authoritarian in their approach to governance in light of the internal and external issues that they were confronting. No doubt, these factors have contributed to a delay in some Muslim countries even considering, let alone embracing, democracy. Since the end of World War II, three factors have inhibited some countries in the Middle East from pursuing a democratic form of government: (1) regional issues, often of a security nature; (2) ruling elites’ negative attitudes toward representative government; and (3) the policies of external Western powers toward Muslim countries that at times have been detrimental to democratic development in favor of support for autocratic regimes (Ayoob, 2008).

The choice between an allegiance to an Islamic society or to a secular society offers fundamentally different views of society. To explore how the region is grappling with this significant debate, we turn to the nation states of Saudi Arabia, Iran, and Turkey. The objective is to examine the role that Islamic law plays in the contemporary context of these countries. Specifically, our attention is directed at the law and its application within the context of criminal justice.

KINGDOM OF SAUDI ARABIA The Kingdom of Saudi Arabia is roughly one-fifth the size of the United States at 784,233 square miles. Much of its territory is desert. It shares land borders with Jordan, Iraq, Kuwait, Qatar, United Arab Emirates, Oman, and Yemen. It has a coastline along the Red Sea and the Persian Gulf. The population is almost 29 million, of which 5.6 million are foreigners. Until the 1960s, much of the population was described as being nomadic or semi-nomadic. The development of the economy, especially in the petroleum and petrochemical industries and the mining of natural resources, and urban growth have led more than one-third of the people to settle in four metropolitan areas. Of the native population, 90 percent are Arab and 10 percent are Afro-Asian. Approximately 85 percent are Sunni Muslims, and 15 percent are members of the Shia sect of Islam. Saudi Arabia is also home to two of Islam’s holiest sites: Mecca and Medina.

When discussing the Arabian Peninsula, it was pointed out that the region was largely populated by Bedouin patriarchal tribes. Given the desert terrain and sparse vegetation in

Islamic Law 615

F O S T E R , C E D R I C 1 6 9 2 T S

the region, the most significant social unit was the family. These units often existed in isolation; therefore, people were totally dependent on their family for support and survival. As a result, the importance of the family was a significant Bedouin value that remains part of the Saudi cultural and social tradition. The teachings of Islam simply reinforced the importance of the family further. This attitude about family and tribe led to Arabian society not being terribly receptive to assimilating other peoples or ideas. Today, Saudi society continues to emphasize the family or extended family. Protecting the family and the security of its members is paramount. In addition, the rigid patriarchal familial structure from Bedouin times continues. As such, the notion of individuality is essentially absent. Thus, individual rights and freedoms are alien concepts to many people of the region.

The Arabian Peninsula was the birthplace of Islam and Mecca, the spiritual center. Various military skirmishes with the Persians in the eighth century led to the defeat of the Arabs and the transfer of Islamic political power to Baghdad. As a result of these events, the Arabian Peninsula receded in political and economic significance until oil was discovered and became an important resource in the twentieth century. Throughout these centuries of self-imposed isolation, Mecca retained its status as the spiritual center of Islam.

While the modernization of a society usually follows an evolutionary trajectory, this has not been the case for Saudi Arabia. Efforts at modernization, which were initiated during the last third of the twentieth century, have been abrupt and often have no relationship with the past cultural traditions. It has been suggested: “The people and their leaders believed that they could buy the physical development that they wanted without disturbing the stability of their traditional society. It is an illusion they still fight to preserve” (Mackey, 2002). Today, the most important stabilizing factor of that traditional society is Islam. “Islam for the Saudis is more than a theology, it is an entire way of life. Religion is the central force of their existence. Religion is life and life religion. Such an intense theology immensely complicates the Saudis’ accommodation to modernization” (Mackey, 2002).

The Kingdom and Wahhabism

The Kingdom of Saudi Arabia was officially founded in September 1932. The origins of the kingdom, however, began in the middle of the eighteenth century with an alliance between two men: Muhammad ibn Saud (1710–1765), who was a local ruler in the market town of Dir’iyya, and Muhammad ibn Abd al-Wahhab (1703–1792), who was a religious reformer. Their objective was to establish a Muslim state that would follow the teachings of Islam as explained by the Hanbali madhhab. As mentioned earlier, this legal school claimed that all legal rules could be found in either the Quran or the Sunna of the Prophet. Thus, they strongly favored the traditional approaches or sources of Islamic law and focused on both the legal and moral teachings that could be derived from the Quran. Over the course of 150 years, the Saud family would expand and surrender the territory of their Islamic state through conflicts with other Arabian families and with Egypt and the Ottoman Empire. In 1902, Abdul Aziz al-Saud (1880?–1953) recaptured Riyadh, which the Saud- Wahhabi alliance had established as its capital back in 1824. He then led a succession of campaigns to recapture more territory throughout the peninsula. In 1932, he proclaimed himself king and named his consolidated territories the Kingdom of Saudi Arabia.

616 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

It has been pointed out by a contemporary scholar that:

Wahhabism is rarely defined. Many of the regimes and movements labeled as Wahhabi in the contemporary era do not necessarily share the same theological and legal orientations. The reality is that Wahhabism has become such a blanket term for any Islamic movement that has an apparent tendency toward misogyny, militantism, extremism, or strict and literal interpretation of the Quran and hadith that the designation of a regime or movement as Wahhabi or Wahhabi-like tells us little about its actual nature. Furthermore, these contemporary interpretations of Wahhabism do not necessarily reflect the writings or teachings of Ibn Abd al-Wahhab (Delong-Bas, 2007).

When Muhammad ibn Saud and Muhammad ibn Abd al-Wahhab formed their alliance in 1744 to establish the Saudi state, it was understood that Saud would serve as emir or independent ruler and Wahhab would assume the duties of imam or leader of the Islamic community. Saud created a political system that merged the religious and secular aspects of life into one. Wahhab was one of several religious reformers in the eighteenth century concerned about the state of the Islamic faith. Part of the decline in piety of the adherents to the faith was associated with increased contact with Europeans. One of Wahhab’s goals was to emphasize tawhid, that is, the Islamic belief in absolute monotheism. There is only one God, and only God should be worshipped. What had happened over the centuries was the erection of monuments to the companions of the Prophet and to previous caliphs. These monuments attracted people who venerated the memory of the person. For reformers like Wahhab, these displays of reverence should have been reserved for God alone. As a result, his followers destroyed such monuments that venerated either Muslims or non-Muslims.

Wahhab’s most important concern was directed at the ulama. As mentioned earlier, the ulama were men who had pursued a religious education of the Quran, Sunna, and Sharia. Because Islam did not have an ordained clergy or a method to certify scholars, they were simply identified by their community for their religious learning. They became the guardians of the beliefs, values, and practices of the umma, the community of believers. Some became noted as famous theological scholars, while others were noted for their legal scholarship and were referred to as jurists. The elite among the ulama were called upon to serve as judges in important courts, as teachers at the famous schools, and as preachers in the major mosques. By Wahhab’s time, members of the ulama were not studying the original sources of Islam, the Quran and Sunna in particular, but were relying on legal manuals and secondary literature. The reformers, like Wahhab, called for a return to the study of the original sources of Islam and the gleaning from those sources of the true meaning of Islam and what it meant to be a devout Muslim.

Wahhab wrote The Book of God’s Unity, which was a theological treatise that focused on the importance of monotheism. Although Wahhabism is associated with the Hanbali madhhab, this text did not address legal issues, rather it was concerned with what beliefs and practices were appropriate for a member of the umma (Commins, 2009). As a preacher, Wahhab’s message was to return to the original, purer form of Islam through a strict obedience to the Quran and a rejection of the newer interpretations of Islam. He maintained

Islamic Law 617

F O S T E R , C E D R I C 1 6 9 2 T S

that a Muslim should evaluate the context of the messages derived from the Sunna and then make comparisons with the Quran in order to discover the truth. It was during this time that the Saud-Wahhabi state adopted the Hanbali madhhab version of Sharia as the only legitimate law of their state.

In keeping with his approach of relying on the original sources for guidance, Wahhab maintained that the Prophet Muhammad went to war only as a defensive tactic in order to protect the Muslim community. Scholars have pointed out that his writings indicate that jihad was a special kind of war that was designed to protect the Muslim community from an aggressor. The ultimate goal was to end the aggression by establishing a truce or a treaty. Moreover, Wahhab has been described as opposing violence because it would reduce the likelihood of converting people to Islam, which was one of the original goals of the Prophet, and he was not a proponent of Muslim martyrdom. On the subject of women, scholars have indicated that Wahhab’s writings indicate a concern for the rights of women that were similar to those of the Prophet Muhammad.

Wahhab’s Islamic conservatism was clearly evident in his support for the Hanbali method of Islamic jurisprudence and his rejection of the notion that Islamic law and local custom should be synthesized. It has been pointed out that he was more focused on the intent of a person in a legal case rather than on the act itself. Thus, he was skeptical of legal decisions that were based solely on a literal interpretation of the Quran or Sunna (Delong-Bas, 2007).

Wahhab was recognized as both a theologian and a jurist or legal scholar. While he took strong exception to the ulama of his day and their distortions of the faith, he was also concerned about the lack of knowledge that both religious and political leaders had of Islamic law. His principal means of reform was through education. He was of the opinion that discussion and debate was the approach that should be taken to teach people about their faith, and possibly even to convert people to Islam.

Muhammad ibn Saud’s objective of expanding the territory of his state took precedence over Muhammad ibn Abd al-Wahhab’s desire to reform Islam. In 1773, Wahhab resigned as imam and withdrew from public life. When he died in 1791, the Saud-Wahhabi alliance had only started to achieve its significance in the region. Today, while some who hold fundamentalist positions in the Kingdom appear to trace their beliefs to Wahhab’s conservative views, they prefer to be referred to as salafi, one who adheres to the traditions of the forefathers of Islam, or muwahhidun, the upholders of monotheism (Commins, 2009). In light of Wahhab’s concern for the rights of women and his opposition to making legal decisions solely on a literal interpretation of the Quran, it is questionable whether he would support some of the fundamentalists of today that employ his name to describe and advance their social policies.

Government

The government of Saudi Arabia is based on a near absolute monarchial system. The Saudi Arabian king exercises very broad powers in his capacity as head of state and head of the government. From its inception in 1932, the legitimate foundation for the Kingdom of Saudi Arabia was the Sharia. While King Abdul Aziz acknowledged that Sharia was the only law

618 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

of the kingdom, he astutely expanded his right to legislate through royal decrees. This was justified through siyasa sharia. As mentioned earlier, this is the method of introducing practical pragmatic policies for the administration of justice that are in conformity with the spirit of Sharia, especially when Sharia does not provide specific guidance. With regard to contemporary legal reform, Saudi Arabia is clearly a work in progress. Over the past three decades a number of factors have led to incremental changes in the law and legal system. Those factors include attempts to grapple with the Kingdom’s modern societal changes, pressures from international human rights groups, and events in Iran since 1979 (which will be discussed later in the subsection of this chapter on Iran). To illustrate, a fairly recent and important use of siyasa sharia occurred in 1992 when the Basic Law of Government was adopted by a royal decree from King Fahd. It serves as the constitution of the Kingdom. It is alleged that no government body was consulted on the contents of the Basic Law other than members of the House of Saud (Human Rights Watch, 1992).

Article 1 of the Constitution states: “The Kingdom of Saudi Arabia is a sovereign Arab Islamic state with Islam as its religion; God’s Book and the Sunnah of His Prophet, God’s prayers and peace be upon him, are its constitution.” Even before the Basic Law of Government was adopted, there was a prohibition against the open practice of any other religion in the country. This is generally not the case in other countries where the dominant religion is Islam.

The importance of Islam is ever present in this document. To illustrate, article 7 indicates that “Government in Saudi Arabia derives power from the Holy Qur’an and the Prophet’s tradition,” and article 8 explains that “Government in the Kingdom of Saudi Arabia is based on the premise of justice, consultation, and equality in accordance with the Islamic Shari’a.” This article is an expression of the long-standing uniqueness that the Kingdom of Saudi Arabia exhibits among the various Islamic countries in the world. Whereas many Islamic countries might adhere to various Sharia principles, they have reformed their legal system in light of modern contemporary society. With specific reference to Sharia, that is not the case in Saudi Arabia. One scholar has described this unique character.

The legal system of Saudi Arabia is an exceptional one in the world of Islam. In most countries where the Shari’a is applied, the state determines which parts of the Shari’a are enforced. Moreover, in order to assert their power to determine what is law, states as a rule have codified—and thereby modernized—those parts of the Shari’a that are applied by the courts. In Saudi Arabia, however, the state does not interfere with the substantive laws of the Shari’a. The Saudi state regards uncodified Shari’a as the law of the land, and enacted law is subordinate to it (Peters, 2005).

Without a modern codified context, judges are trained and refer to commentaries of the Sharia that were written for the most part in the Middle Ages.

The long-standing policy of the House of Saud to ban any political dissent is given added legal support with article 12 of the Basic Law. It declares: “The consolidation of national unity is a duty, and the state will prevent anything that may lead to disunity, sedition and separation.” As such, people do not have the right to assemble unless the government authorizes a demonstration that is in support of one of its policies. Of course, there are

Islamic Law 619

F O S T E R , C E D R I C 1 6 9 2 T S

people in the country that hold a range of views across the conservative to liberal political spectrum, but there are no formally established political parties in the country. The nature of the political groups that have emerged in the Middle East over recent decades has only reinforced the position of the House of Saud to prohibit organized political groups. Moreover, the notion of the importance of a free press is absent. The government generally determines all the news that it deems fit to print. Finally, the Ministry of Information owns and operates Saudi radio and television.

Constitution

The Basic Law of Government or Constitution of Saudi Arabia is divided into nine chapters and includes a total of 83 articles. While some facets of the constitution will be discussed in other parts of this section on government, it is worth highlighting two chapters that illustrate that Sharia remains intimately part of the constitution and central to an understanding of the Saudi legal system. Chapter 3 of the Basic Law is titled “Features of the Saudi Family.” Article 9 declares: “The family is the kernel of Saudi society, and its members shall be brought up on the basis of the Islamic faith, and loyalty and obedience to God, His Messenger, and to guardians; respect for and implementation of the law, and love of and pride in the homeland and its glorious history as the Islamic faith stipulates.” Article 10 states: “The state will aspire to strengthen family ties, maintain its Arab and Islamic values and care for all its members, and to provide the right conditions for the growth of their resources and capabilities.” Article 11 explains that “Saudi society will be based on the principle of adherence to God’s command, on mutual cooperation in good deeds and piety and mutual support and inseparability.” These articles illustrate the Saudis’ ongoing commitment to the most significant social unit of their society, the family, which was also the centerpiece of ancient Bedouin society. Finally, article 13 indicates: “Education will aim at instilling the Islamic faith in the younger generation, providing its members with knowledge and skills and preparing them to become useful members in the building of their society, members who love their homeland and are proud of its history.”

Chapter 5 is devoted to rights and duties. The state’s duties are placed within the context of Islam and Islamic law. For example, article 23 proclaims: “The state protects Islam; it implements its Shari’a; it orders people to do right and shun evil; it fulfills the duty regarding God’s call.” Article 26 declares: “The state protects human rights in accordance with the Islamic Shari’a.” Individual rights and those associated with criminal justice issues in particular are prominent in this chapter. To illustrate, article 36 indicates: “The state provides security for all its citizens and all residents within the territory and no one shall be arrested, imprisoned, or have their actions restricted except in cases specified by statutes.” Article 37 continues along these lines in stating: “The home is sacrosanct and shall not be entered without the permission of the owner or be searched except in cases specified by statutes.” Finally, article 38 indicates: “Penalties shall be personal and there shall be no crime or penalty except in accordance with the Shari’a or organizational law. There shall be no punishment except for acts committed subsequently to the coming into force of the organizational law.” A more detailed discussion of criminal procedure follows.

620 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Monarch

Many countries in the world that were historically associated with monarchial governance have abandoned this form of government, especially during the course of the twentieth century. Those that have retained the monarchy have often limited the role to symbolic and ceremonial duties. This is clearly not the case in Saudi Arabia. As mentioned previously, article 7 of the Basic Law states: “Government in Saudi Arabia derives power from the Holy Qur’an and the Prophet’s tradition.” This is in keeping with the Sunni Islam tradition that grants the leader authority in the political realm but does not bestow a theocratic status. Of course, the leader is expected to be a protector and defender of the Islamic faith. Thus, Sunnis believe that an Islamic government is a civil matter without any religious authority. It would be the responsibility of the ulama, the religious scholars, to offer moral and ethical guidance to the community, although they are not actually mandated to govern. Thus, the office of monarch is a sacred trust imposed on and accepted by the individual, which includes protecting Islam. Moreover, article 6 commands: “Citizens are to pay allegiance to the King in accordance with the Holy Qur’an and the tradition of the Prophet, in submission and obedience, in times of ease and difficulty, fortune and adversity.”

Chapter 2 of the Basic Law of Government is devoted to monarchy. Article 5 states: “The system of government in the Kingdom of Saudi Arabia is that of a monarchy.” The article continues with four statements that outline the act of succession to the mon- archy.

Rule passes to the sons of the founding King, Abd al-Aziz Bin Abd al-Rahman al- Faysal Al Sa’ud, and to their children’s children. The most upright among them is to receive allegiance in accordance with the principles of the Holy Qur’an and the Tradition of the Venerable Prophet.

The King chooses the Heir Apparent and relieves him of his duties by Royal order. The Heir Apparent is to devote his time to his duties as an Heir Apparent and to

whatever missions the King entrusts him with. The Heir Apparent takes over the powers of the King on the latter’s death until the

act of allegiance has been carried out.

A few comments are in order regarding this method of succession. First, the Saudis have always employed an agnatic order of succession, that is, only males are eligible to become the monarch. This is not surprising in light of the historical and contemporary patriarchal character of the society. It should be noted, however, that countries with monarchies that have long been associated with democratic principles have only recently either adopted or are considering the introduction of cognatic succession, that is, the eldest child (male or female) is the heir. Second, most monarchial methods of succession, whether agnatic or cognatic, claim the right to the eldest child. That is not necessarily the case in Saudi Arabia, where the Basic Law reiterates the tradition of selecting “the most upright among” the heirs of King Abdul Aziz. Because the King had so many children, there is unlikely ever to be a shortage of royal princes eligible for consideration. The king selects his heir, the crown prince, among the royal princes, but this is always done in consultation with senior members

Islamic Law 621

F O S T E R , C E D R I C 1 6 9 2 T S

of the royal family and religious leaders. Article 8 of the Basic Law speaks of the importance of government by consultation, and this important decision is an illustration of that principle in action. In the past, the selection of the crown prince was a rather secretive and somewhat informal process. In 2006, King Abdullah announced that an Allegiance Commission was formed to handle the selection process and thus bring some sense of transparency to the procedure. Finally, it is noted that the heir apparent would take over upon the king’s death. There have been instances in which a crown prince has actually functioned in place of the monarch when the reigning king was incapacitated.

In his capacity as head of state and head of the government, the monarch’s duties are extensive, and most are cited throughout the Basic Law of Government. They include overseeing the administration of the government, chairing the Council of Ministers, appointing ministers to the Council and heads of various departments, appointing members to the Consultative Council, declaring states of emergency as the commander-in-chief of all armed forces, carrying out the policies of the country, overseeing the implementation of Sharia, issuing royal decrees that have the force of law, appointing judges, and implementing judicial rulings. The king delegates some of the breadth and depth of these duties to others.

Although the king’s authority is significant, he should not be considered an absolute monarch, for he must adhere to Sharia and Saudi traditions. Thus, the monarch’s authority is rooted in two sources: Islam and Bedouin society. It was already mentioned that the Sunni tradition acknowledges that the political leader is responsible for the administration of the Islamic government as a civil matter. He does not have any religious authority, but in his capacity as leader, he is expected to be a protector and defender of the Islamic faith. This is particularly the case in Saudi Arabia, the home of two sacred sites: Mecca and Medina. The king, however, would consult with the ulama, the religious scholars, whose responsibility it is to offer moral and ethical guidance for the community.

As mentioned earlier, Bedouin society was based on a patriarchal tribal social structure. The various tribes initially created unwritten rules that over time established customary laws for a tribe. As such, a single executive or legislative authority did not exist in the Arabian Peninsula. Each sheikh held the leadership position in his tribe. These sheikhs would meet periodically to resolve disputes among the various tribes in the region. When Abdul Aziz declared himself king of the newly formed Kingdom of Saudi Arabia, he became the first sheikh among the sheikhs in the region. To assure their allegiance, King Abdul Aziz continued the Bedouin tradition of consultation with the local leaders. What follows are three examples of the consultative process in Saudi governance. They illustrate the value of forming a consensus on policy matters for the Kingdom.

Council of Ministers

In addition to holding the title of king, the monarch is also the prime minister, for he chairs the Council of Ministers. As article 56 of the Basic Law indicates in part, “The Council of Ministers establishes the prerogatives of the Council regarding internal and external affairs, the organization of and co-ordination between government bodies. It also establishes requirements to be fulfilled by ministers, their prerogatives, the manner of their questioning

622 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

and all issues concerning them.” King Abdul Aziz created the Council in 1953 as an advisory body to the king. By 1958, Crown Prince Faisal had enhanced the authority of the Council by giving it both administrative and legislative duties. While the Council can issue decrees, this authority is not separate from that of the king, who must approve all of the Council’s decisions.

In addition to the king, the Council is composed of the crown prince, some royal advisors, and the heads of various ministries. The most prominent ministries include defense and aviation, foreign affairs, finance, interior, justice, education, health, industry, information, labor and social affairs, petroleum and mineral resources, public works and housing, pilgrimage affairs and religious trusts, and the Saudi Arabian National Guard.

Consultative Council

Muslims believe that God is the sole source of authority and the lawgiver. As mentioned previously, the Quran states: “Authority belongs to God alone, and he orders you to worship none but Him: this is the true faith, though most people do not realize it” (12:40). While God is the sovereign lawgiver, “God has made a promise to those among you who believe and do good deeds: He will make them successors to the land, as He did those who came before them; He will empower the religion He had chosen for them; He will grant them security to replace their fear” (24:55). This verse has been interpreted as acknowledging that man is God’s trustee on earth and thus has the authority to make law, but it must be in conformity with Sharia. Thus, while God is the lawgiver, man has the authority to be a lawmaker.

While the Council of Ministers has both administrative and legislative functions, the Consultative Council can be characterized as a type of legislature within the context of Saudi governance. Article 68 of the Basic Law of Government created this Council in 1992, and article 69 indicates that “The King has the right to convene the Consultative Council and the Council of Ministers for a joint meeting and to invite whoever he wishes to attend that meeting to discuss whatever matters he wishes.” Once again, this passage illustrates both the king’s broad authority and the important role that consultation plays in the governance of the Kingdom.

The Consultative Council is composed of 150 people selected by the king for a four- year term. Half of the members must be newly selected every four years. Until recently, membership on the Council was limited to men. In early 2013, King Abdullah appointed 30 women to the organization and indicated that forthwith the composition of the Council should always include at the very least one-fifth of the seats reserved for women. Membership on the Council consists of highly educated people who do not hold govern - mental or private management positions, unless the king waives this rule. The Council is designed to serve as a sounding board on government policy, and it can propose new or amended legislation. It does not, however, have the independent authority to legis- late. Any legislation under consideration must secure the approval of two-thirds of the members of the Consultative Council for it to become law. Ultimately, for legislation to become law, it must be approved by the Consultative Council, the Council of Ministers, and the monarch.

Islamic Law 623

F O S T E R , C E D R I C 1 6 9 2 T S

Senior Council of the Ulama

In 1971, the Senior Council of the Ulama was created. It is composed of between 30 and 40 of the leading senior religious scholars and is chaired by the Grand Mufti. A mufti is a specialist in Islamic law and is authorized to issue fatwas. Although this Council is not part of the legislative process as the aforementioned councils are, it is consulted on various pieces of proposed legislation to seek its guidance on conformity with the moral and ethical teachings of Islam in general and Sharia in particular. One of its principal duties is to provide fatwas that establish general rules regarding questions submitted to it by the government. Traditionally, a fatwa was a legal opinion from any religious scholar or jurist on an issue. While fatwas are acknowledged as a legal authority, they are not considered law. A fatwa is distinct from a judge’s ruling in a court of law, although a judge can be guided in his deliberations by a fatwa.

Judiciary

There have been two kinds of courts in Saudi Arabia: Judicial Courts and the Board of Grievances. In October 2007, King Abdullah issued a royal decree designed to modernize the judiciary and impact both types of courts. The Board of Grievances, which is now referred to as Administrative Courts, have a parallel structure to that of the Judicial Courts. The Administrative Courts are responsible for disputes among government departments and cases involving administrative decisions by the government or an independent corporate entity. The other type of courts are referred to as Judicial Courts, and they are of particular interest for our purposes. While some of the reforms are still being introduced, the new judicial system is presented here. Before the court system is described, however, it may prove beneficial to explain the role of the Supreme Judicial Council, which has a significant responsibility for the administration of justice.

Supreme Judicial Council

Prior to the introduction of the 2007 judiciary reforms, the Supreme Judicial Council functioned as the highest court in the court hierarchy. It also had several administrative functions. As a result of the reforms, the Supreme Judicial Council is primarily limited to handling administrative matters. To illustrate, it has supervisory authority over the courts and judges. This includes appointing judges, issuing regulations on the role of judges, inspecting courts, and addressing court organizational issues. The Ministry of Justice maintains financial control over the judiciary along with some administrative duties.

Members of the Council include the Chief Judge of the High Court, four chief judges of the Appellate Courts, a deputy Minister of Justice, the Chief of the Bureau of Investigation and Prosecution, and three members who have the qualifications of judges from Appellate Courts. With the exception of the Chief Judge of the High Court, the Chief of the Bureau of Investigation and Prosecution, and the deputy Minister of Justice, all the other appointees are selected directly by the king. The term of the appointment is for four years, which can be renewed.

624 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Islamic Law 625

Judicial Courts

There are three tiers in the hierarchy of the Judicial Courts: High Court, Courts of Appeal, and First-Degree Courts (see Figure 7.2).

The High Court is located in Riyadh, the capital of Saudi Arabia, and it has two functions. It has certain administrative responsibilities that include overseeing the implementation of Sharia in the courts and regulations decreed by the king. It also reviews the decisions made by and upheld by the Courts of Appeal. The court’s other function is to entertain appeals that are essentially based on questions of law or questions of procedure. A panel of three judges would normally hear appeals to the court. There is one exception to this rule. In cases coming from a criminal circuit of a Court of Appeal, the panel will consist of five judges, because the court is mandated to review judgments involving major punishments, such as the death penalty, stoning, amputation, or quesas cases other than death. At least one Court of Appeal is located in each of the 13 provinces of the country. Courts of Appeal are subdivided into specialized circuits: Civil, Commercial, Criminal, Labor, and Personal Status. These circuits entertain appeals from the First-Degree Courts.

First-Degree Courts are located throughout the country. These courts are also subdivided into divisions of specialization: Commercial, Criminal, General, Labor, and Personal Status. With regard to the Criminal Court, it is further subdivided into circuits that specialize in hudud, quesas, tazir, and juvenile offenses. The hudud, quesas, and tazir offenses were explained in the previous section, “Crime and Punishment.” They indicate the manner in which criminal offenses are categorized in Islamic law. The Criminal Court is composed of a three-judge panel. Any other offense that does not fit under the aforementioned categories would be handled by a single judge.

In 2008, a Specialized Criminal Court in Riyadh was established to deal with terrorism cases. Particular attention is directed at those accused of joining Al-Qaeda or threatening national security. Charges can involve implementing a terrorist act, such as armed attacks,

The High Court

Courts of Appeal

Civil Circuits

Criminal Circuits

Personal Status Circuits

Commercial Circuits

Labor Circuits

First-Degree Courts

Commercial General Personal StatusCriminal Labor

FIGURE 7.2 | Organization of the Judicial Courts of Saudi Arabia

F O S T E R , C E D R I C 1 6 9 2 T S

the manufacture and processing of explosives, car bombings, and hiding known terrorists. Other terrorist charges may include collecting information about people and places, recruiting members, training recruits, fundraising for a movement, illicit arms trading, and facilitating members of a terrorist cell. If a person is found guilty, the sanctions can range from a fine, travel restrictions, house arrest, imprisonment, and the death penalty.

Judges

According to article 1 of the Law of the Judiciary: “Judges are independent and, in the administration of justice, they shall be subject to no authority other than the provisions of Shari’a and laws in force. No one may interfere with the Judiciary.” The objective of this statement is to give the appearance that the power of the executive branch of govern- ment is reduced regarding the judiciary. The revised Law of the Judiciary has essentially removed the minister of justice from a significant role either in the appointment of judges or in the judicial decision-making process, but the ministry is still responsible for the budget. Ultimately, the executive branch is involved, because of the role that the king plays either directly or indirectly in the appointment of members to the Supreme Judicial Council.

The role of the judge is not that of a disinterested umpire, as common law judges are often described; rather, their task is to seek the truth through an inquisitorial method of probing questions of the parties, witnesses, and evidence, and then concluding by dispensing justice. The judges are guided by one of two types of procedures employed in the adjudication process, depending on the nature of the case. The procedural rules are titled the Law of Procedure before Sharia Courts and the Law of Criminal Procedure.

Article 31 of the Law of the Judiciary explains the qualifications necessary to become a judge. Requirements include being a Saudi national, of good character and conduct, qualified to hold the position in accordance with the Sharia, meeting the educational requirements, and not having been sentenced for a crime affecting his religion or honor or dismissed from public office for disciplinary reasons, unless the person has been rehabilitated. With regard to the education requirement, the judge must hold a degree from one of the Sharia colleges within the Kingdom. This is designed to assure that the person is capable of practicing ijtihad. As mentioned earlier in this chapter, ijtihad is the process in which jurists determine a rule based on analogy. It is utilized when a rule conflicts with another rule or when a rule is rather vague and somewhat questionable. Originally, jurists turn to ijtihad when neither the Quran nor the Sunna specifically addressed an issue at hand. The ultimate goal of ijtihad is to resolve a conflict or clarify an issue that is in the best interests of the Muslim community.

If a candidate has not been schooled in one of the Sharia colleges but holds an equivalent certificate elsewhere, he must pass a special examination. A candidate must be at least 40 years of age for appointment to an appellate court and at least 22 years of age for appointment to the other courts. Newly appointed assistant judges serve a two-year probationary period. All of their decisions are reviewed by more senior judges before they are announced in court.

626 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

One of the criticisms directed at Saudi judges is their overly broad use of discretion when interpreting Sharia. On the one hand, people in the West favor judicial independence and see it as a good thing. In the Saudi context, on the other hand, some features of judicial independence impede the development of a uniform and just legal system. To illustrate, Saudi judges do not rely on precedent; rather, they may depend solely on their own reasoning. Moreover, because judges are religiously educated men, they tend to be from a fairly conservative mind-set.

This often extreme conservative interpretation of the law prompted efforts at judicial reform. For example, the authority of the Supreme Judicial Council to function as the ultimate court of appeal was removed. The goal is to make the High Court more sensitive to modern legal issues that are associated with a broad range of concerns, from busi- ness ventures to human rights. In addition, the very narrow legal schooling that judicial candi dates have received at Sharia colleges was another concern. As a result, the Judicial Academy and an Institute of Public Administration were established in 2000 and are designed to offer additional training by enhancing the expertise and skills of members of the judiciary. While these reforms are welcome, it is important to keep in mind that implementing them will be extremely slow given the conservative nature of the society in general and the current judges in particular.

Saudi Arabia is below the international average for the number of judges per 100,000 people. The international standard suggests that the Kingdom should have 5,200 judges, yet the Ministry of Justice identified 662 active judges in 2006 (Human Rights Watch, 2008d). The aforementioned educational reforms are designed to rectify this problem. Nevertheless, the current active judges are overworked, which inevitably leads to errors. Given the nature of the pretrial and trial processes, these errors can contribute to issues associated with human rights violations against those accused of crime.

Bureau of Investigation and Public Prosecution

With regard to the Saudi criminal justice process, the Bureau of Investigation and Public Prosecution is the most important component of their system. As the name suggests, the Bureau may investigate crimes, but it does not have exclusive responsibility for that. Other law enforcement agencies might have jurisdictional authority, depending on the nature of the offense and where the crime occurred. The Bureau is also responsible for the prosecution of criminal offenses.

The Bureau is under the administrative leadership of the Ministry of the Interior. The Chairman of the Bureau is responsible for the management of the organization, which has offices throughout the country. Article 14 of the Law of Criminal Procedure states: “The Bureau of Investigation and Prosecution shall conduct its investigation and prosecution in accordance with its Law and the implementing regulation thereof.” The Law that article 14 refers to is the Law of the Bureau of Investigation and Public Prosecution. This piece of legislation explains the organization, management, and jurisdiction of the Bureau. It also provides an extensive internal procedure for disciplining members of the Bureau who are accused of either a criminal or noncriminal violation.

Islamic Law 627

F O S T E R , C E D R I C 1 6 9 2 T S

While the name of the Bureau explains two of its key responsibilities, article 3 of the Law of the Bureau of Investigation and Public Prosecution offers a more encompassing list of its duties. The article states, in part:

The Bureau shall have jurisdiction, in accordance with the law and as specified by the implementing regulations, as follows:

a. Investigating crimes; b. Taking action with respect to an investigation through filing a case or taking no

action in accordance with relevant regulations; c. Prosecuting before judicial bodies in accordance with the implementing

regulations; d. Appealing judgments; e. Supervising the execution of criminal sentences; f. Monitoring and inspecting prisons, detention centers and any places where criminal

sentences are executed, as well as hearing complaints of prisoners and detainees, insuring the legality of their imprisonment or detention and the legality of their remaining in prison or the detention center after the expiry of the period, taking necessary steps to release those imprisoned or detained without a legitimate cause and applying the law against those responsible for such action. The Minister of Interior shall be informed of any relevant observations, and a report shall be submitted to him regarding the conditions of the prisoners and detainees every six months;

g. Any other power conferred upon it by the law, regulations issued pursuant to this Law, the resolutions of the Council of Ministers or the High Orders.

Thus, in addition to investigating some cases and prosecuting all offenses, the Bureau appeals court judgments, supervises the execution of sentences, and oversees the manage - ment of the prison system and detention centers. Critics have suggested that the Bureau’s oversight of prisons and detention centers has been minimal at best. Finally, article 25 of the Law of Criminal Procedure authorizes the Bureau to supervise the overall investigation of an offense that is being handled by criminal investigators from another law enforcement agency. Indeed, this agency wields a significant amount of authority throughout the Saudi justice system. In light of that authority, it has been suggested that the Bureau should not fall under the jurisdiction of the Ministry of the Interior but rather under that of the Ministry of Justice.

Finally, within the Bureau there is a Bureau Administration Committee composed of senior members, including the Chairman and Vice Chairman of the Bureau. While much of the Committee’s duties focus on administration, such as studying issues associated with investigation and prosecution and the production of an annual report, it does have one significant substantive responsibility: It is charged with the review of all indictments in which the death penalty, amputation, or stoning are sought. The Saudis are well aware of the objections that many nations and international organizations have with regard to some of the Sharia sanctions. In view of that, in those cases where such a sanction is sought, the

628 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Bureau examines the indictment even before the case goes to trial. Because the Saudis have proclaimed their adherence to Sharia in a host of legal documents, they are unlikely to deviate from their support for the sanctions that others find objectionable. From the Saudi point of view there are several steps in their criminal process that are designed to prevent miscarriages of justice. With regard to the aforementioned sanctions, the review of the indictment by the Bureau Administration Committee is the first step, which may be followed by a trial, an appeal, and then ultimately a review by the High Court.

Law

There are three main sources of law in Saudi Arabia: Islamic law, statutory law, and royal orders. The principal sources of Islamic law or Sharia are the Quran and Sunna. These sources, along with ijma and ijtihad, were explained in the previous section, “Sources of Sharia.” The application of Sharia is guided by the interpretation of the Hanbali madhhab. This is one of the four orthodox madhahib or Islamic legal schools that were discussed earlier in the section on madhahib. It is important to reiterate the importance and uniqueness of Islamic law. Sharia is “the comprehensive and preordained system of God’s commands, a system of law having an existence independent of society, not growing out of society but imposed upon society from above” (Coulson, 1969). Moreover, Sharia is considered both a code of law and a code of morals. Thus, a distinction was never made between the two concepts. The Quran, in particular, is the fundamental vehicle that defines what is appropriate in the Islamic community of believers. As mentioned earlier, not only is the law unique, but the Kingdom of Saudi Arabia’s application of Sharia is essentially different from other Islamic countries in the world. Whereas many Islamic countries might adhere to various Sharia principles, they have reformed their legal system in light of modern contemporary society. With specific reference to Sharia, that is not the case in Saudi Arabia.

Statutory laws and regulations are the result of deliberations of the Council of Ministers, the Consultative Council, and the monarch. These statutes deal with a host of private and public law issues associated with a modern contemporary society. They include drug-related offenses, embezzlement, explosives, and official abuses of power. In order to become law, these pieces of legislation have to be in compliance with Sharia. Finally, the king also has the authority to issue royal decrees, of course, in conformity with Sharia. Royal decrees may or may not be subjected to consultation, either with the Council of Ministers or possibly with that Council as well as the Consultative Council. That decision rests totally with the monarch.

One of the ongoing criticisms directed at the Saudi justice system is the fact that the criminal law has not been codified. A number of Saudis have indicated the merits of codification, but it has not come to fruition. Presently, there are three kinds of crime. The origins of this categorization are explained in the previous section, “Crime and Punishment.” Crimes of hudud are considered against God, because they threaten the social order and security of the community of believers. Quesas crimes are violations against the rights of an individual. These are associated with retribution and compensation. Finally, tazir offenses are considered less serious, because they essentially do not involve physical injury to a victim. They are also referred to as discretionary crimes, because the judge has the

Islamic Law 629

F O S T E R , C E D R I C 1 6 9 2 T S

discretion to determine if the action or inaction is a crime and what constitutes an appropriate sentence. Because Saudi judges are not required to follow precedent, they exercise a considerable amount of discretion in this context, which has led to allegations of serious abuse. Obviously, an accused person is placed in a very difficult situation if he or she cannot refer to a formally approved definition of the offense they are accused of committing. Among the examples left to a judge to define are defrauding people, failure to observe prayer, and lewd behavior (Human Rights Watch, 2008d).

As mentioned earlier, there are two types of procedural law: the Law of Procedure before Sharia Courts and the Law of Criminal Procedure. Some of the contents of the Law of Criminal Procedure were borrowed from Egyptian and French procedural law (Ansary, 2008). Naturally, it is the Law of Criminal Procedure that is of interest for our purpose. Attention is paid to both the pretrial and trial processes.

It is important to point out straightaway that this law was approved in 2001. A number of the provisions of the law have been criticized as deficient in either protecting or securing due process rights. A reoccurring point of contention is that this procedural law suffers from far too many vague statements (Human Rights Watch, 2008d; Human Rights Watch, 2013; Human Rights Watch, 2013a; Human Rights Watch, 2014). As is the case with any procedural law, its successful implementation is often totally dependent on a vigilant judiciary. Criticisms have been raised that various aspects of the pretrial and trial processes have not always been implemented or adhered to in the spirit in which they were intended. This may in part be attributed to the document’s vagueness, but it may also be an expression of opposition on the part of the judiciary. Time will tell if these concerns can be resolved, especially in light of the implementation of reforms associated with judges.

Pretrial Procedures

Chapter 5 of the Basic Law of Government is devoted to rights and duties. Within this chapter, individual rights and those associated with criminal justice issues in particular are prominently featured. Article 26 declares: “The state protects human rights in accordance with the Islamic Shari’a.” To illustrate, article 36 indicates: “The state provides security for all its citizens and all residents within the territory and no one shall be arrested, imprisoned, or have their actions restricted except in cases specified by statutes.” Article 37 continues along these lines, stating: “The home is sacrosanct and shall not be entered without the permission of the owner or be searched except in cases specified by statutes.”

It is the Law of Criminal Procedure that establishes guidelines for agents of the justice system on how they are to proceed with a criminal investigation. These guidelines are similar to those found in many countries of the world, irrespective of the legal family with which they are associated. Following some general comments about the Saudi investigative process, the rules associated with the right to assistance of counsel, the powers associated with searches and seizures, the powers associated with interrogations, and the powers associated with arrests and detention will be explained.

With regard to the general comments, there are essentially two ways in which a case can be opened and an investigation initiated. The law authorizes the Bureau of Investiga- tion and Prosecution to initiate a criminal investigation. Moreover, article 17 of the Law

630 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

of Criminal Procedure indicates: “The victim or his representative and his heirs may initiate criminal action with respect to all cases involving a private right of action, and shall follow- up any such case before the competent court.” In such cases, the court would inform the prosecutor of the matter, and the prosecutor would then initiate an investigation if it deemed that it would serve the public interest.

According to article 26 of the Law of Criminal Procedure, there are a number of government agencies that are authorized to conduct a criminal investigation within their respective jurisdictions. The agencies include members of the Bureau of Investigation, directors of police and their assistants, public security officers, secret service officers, passport officers, intelligence officers, civil defense officers, prison directors and officers, border guards, National Guard officers, and military officers. The heads of the Commission for the Promotion of Virtue and the Prevention of Vice are also authorized to conduct investigations with respect to matters falling within their jurisdiction. (The Commission for the Promotion of Virtue and the Prevention of Vice is explained below.) Irrespective of the agency conducting the investigation, article 25 indicates that they are all “subject to the supervision of the Bureau of Investigation and Prosecution.” Critics have suggested that the Bureau has not been terribly vigilant in its oversight of other law enforcement agencies, singling out secret service and intelligence officers as examples, which should come as no surprise given the nature of their work. They have also avoided supervising the Commission for the Promotion of Virtue and the Prevention of Vice, which is politically accountable only to the monarch.

With roots both in Islamic procedural law and with modern procedures borrowed from some Romano-Germanic countries, the Saudi procedure acknowledges the standing of the person harmed in the course of the commission of a criminal offense. While the prosecutor is primarily representing the public as a victim in a criminal case, which is referred to as the public right of action, the actual victim also has a claim with respect to a private right of action. In that context, article 69 addresses the pretrial rights of a victim during the course of an investigation. “The accused, the victim, the claimant in respect of the private right of action, and their respective representatives or attorneys may attend all the investi - gation proceedings. The Investigator may, however, conduct the investigation in the absence of all or some of the above mentioned, whenever that is deemed necessary for determining the truth. Immediately after the necessity has ended, he shall allow them to review the investigation.”

With regard to the right to assistance of counsel, article 4 of the general provisions of the procedural law declares: “Any accused person shall have the right to seek the assist- ance of a lawyer or a representative to defend him during the investigation and trial stages.” This right is reiterated at article 64: “During the investigation, the accused shall have the right to seek the assistance of a representative or an attorney.” Thus, a person has the right to assistance when suspicion is directed at him or her. Critics have pointed out that many accused people are never told of their right to representation. Moreover, there is no public defender system. Therefore, when the accused is made aware of the right to assistance, he or she may not, and often does not, have the means to employ an attorney (Human Rights Watch, 2008d; Human Rights Watch, 2013; Human Rights Watch, 2013a; Human Rights Watch, 2014). In early 2010, the Consultative Council, the legislative

Islamic Law 631

F O S T E R , C E D R I C 1 6 9 2 T S

body mentioned earlier, did approve legislation that would create a public defender program. The government has yet to implement this law, however. This is another example of the extremely slow pace of implementing reform in light of the very conservative nature of Saudi society and government in particular.

The powers associated with searches and seizures may involve a person, place, or belongings. Regarding a person, article 42 indicates: “A criminal investigation officer may search the accused where it is lawful to arrest him, which may include his body, clothes, and belongings. If the accused is a female, the search shall be conducted by a female assigned by the criminal investigation officer.”

With specific reference to places, article 41 focuses on the importance of a search warrant. It states:

A criminal investigation officer may not enter or search any inhabited place except in the cases provided for in the laws, pursuant to a search warrant specifying the reasons for the search, issued by the Bureau of Investigation and Prosecution. However, other dwellings may be searched pursuant to a search warrant, specifying the reasons, issued by the Investigator. If the proprietor or the occupant of a dwelling refuses to allow the criminal investigation officer free access, or resists such entry, he may use all lawful means, as may be required in the circumstances, to enter that dwelling.

Article 45 points out that searches are designed to collect information associated with the crime under investigation. It indicates, however, that if a search “incidentally reveals unlawful material the possession of which is unlawful or any evidence associated with any other crime, the criminal investigation officer shall collect such evidence and a note to that effect shall be entered into the record.”

Article 51 states: “The search shall be conducted during the daytime, after sunrise and before sunset in accordance with the powers conferred by law. No access to dwellings during the night shall be allowed except during the commission of a crime.” Moreover, article 46 indicates that a search of a dwelling should be conducted in the presence of either the owner or his representative. If this is not possible, two witnesses should be secured to oversee the search.

Article 55 indicates: “Mails, cables, telephone conversations and other means of com - munication shall be inviolable and, as such, shall not be perused or surveiled except pursuant to an order stating the reasons thereof and for a limited period as herein provided for.” Article 56 elaborates on this qualification: “The Director of the Bureau of Investigation and prosecution may issue an order authorizing seizure of mail, publications, and parcels and surveillance and recording of telephone conversations, if such procedure is deemed useful in determining the truth related to a crime that has actually been committed. Such order shall state the reasons thereof and shall be for a period not exceeding ten days renewable according to the requirements of the investigation.”

With regard to the whole issue of searches and seizures associated with a person, place, or belongings, critics claim that these rights have been violated to a significant degree (Human Rights Watch, 2008d). The lack of compliance with the rules can be attributed in part to the fact that they are still a fairly new feature of the Saudi judicial process.

632 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

With appropriate training, the next generation of police officers might be more willing to follow these procedural rules. Even this will not totally eliminate abuses, a result to which many democratic countries that embraced due process rights long ago can attest. Moreover, the reforms that were introduced in 2007 to improve the quality of the judiciary should also assist in this endeavor. Of course, the slow pace in which those reforms are being implemented will contribute to the continued criticism over the lack of compliance with criminal procedure rules.

In reference to the powers associated with interrogations, article 101 offers only brief guidelines: “When the accused appears for the first time for an investigation, the Investigator shall take down all his personal information and shall inform him of the offense of which he is charged. The Investigator shall record any statements the accused expresses about the accusation. The accused may be confronted with any other accused person or witness. After statements of the accused have been read to him, he shall sign them. If he declines to sign, a note to that effect shall be entered into the record.” According to article 126, if the investigator is of the opinion that there is sufficient evidence against the accused, the investigator refers the matter to the court, which would then issue a summons if the accused is not already in custody. It is important to note that the Saudi Law of Criminal Procedure does not provide a person with the right to remain silent. Moreover, a number of claims have been made that the accused is often subjected to various forms of poor treatment and even torture, if the person does not comply with the investigator’s interrogation (Human Rights Watch, 2008d; Human Rights Watch, 2013; Human Rights Watch, 2013a; Human Rights Watch, 2014).

The Saudi Law of Criminal Procedure addresses issues associated with both arrest and detention. Depending on the circumstances of the case, either a summons or an arrest warrant may be issued. If the person under suspicion ignores the summons, an arrest warrant is issued. Article 104 points out that “an arrest warrant shall instruct the public authority officers to arrest and bring the accused promptly before the Investigator in the event he refuses to appear voluntarily. Furthermore, the detention warrant shall instruct the detention center officer to admit the accused into detention center after explaining the offense with which he is charged and the basis thereof.” With specific reference to an arrest, article 109 indicates: “The Investigator shall promptly interrogate the accused, who has been arrested. If this is not possible, he shall be kept in a detention center pending his interrogation. The period of detention shall not exceed twenty-four hours.” And article 33 states: “. . .In all cases, the person under arrest shall not be detained for more than twenty-four hours, except pursuant to a written order from the Investigator.”

A good deal of attention in the procedural law is devoted to the issue of detention. For example, article 112 states: “the Minister of the Interior shall, upon a recommendation by the Director of the Bureau of Investigation and Prosecution, specify what may be treated as a major crime requiring detention.” This decision is often based on the interrogation of the accused and an evaluation as to whether evidence might be compromised if the person remains free or the possibility that the accused is a flight risk. In such cases, article 113 authorizes the investigator to “issue a warrant for his detention for a period not exceeding five days from the date of arrest.” According to article 114, the investigator can seek an extension of the detention order from the provincial branch of the Bureau of Investigation

Islamic Law 633

F O S T E R , C E D R I C 1 6 9 2 T S

and Prosecution. He may be granted an order that extends “the period of the detention for a period or successive periods provided that they do not exceed in their aggregate forty days from the date of arrest, or otherwise release the accused.” If there is a desire to extend the detention further, the article indicates that “the matter shall be referred to the Director of the Bureau of Investigation and Prosecution to issue an order that the arrest be extended for a period or successive periods none of which shall exceed thirty days and their aggregate shall not exceed six months from the date of arrest of the accused. Thereafter, the accused shall be directly transferred to the competent court, or be released.”

While the accused is detained, the procedural law notes certain protocols that are to be followed. For example, article 119 states: “In all cases, the Investigator shall order that the accused may not communicate with any other prisoner or detainee, and that he not be visited by anyone for a period not exceeding sixty days if the interest of the investigation so requires, without prejudice to the right of the accused to communicate with his representative or attorney.” Article 120 indicates: “An Investigator in charge of the case may, at any time, whether of his own accord or pursuant to a request by the accused, issue an order for the release of such accused, if he considered that there is no sufficient justification for his detention, that his release would not impair the investigation, and that there is no fear of his flight or disappearance, provided that the accused undertakes to appear when summoned.”

Once again, a number of claims have been made that agents of the Saudi justice system are not complying with the spirit of the rules associated with detention. In some instances, people are being held without formal charges being brought against them. One justification for this policy is that the person is being reeducated. The person is eventually released upon a successful period of reeducation. “Substituting such a program of involuntary ‘reeducation’ for an impartial adjudication of criminal charges in a court of law denies defendants the chance to prove their innocence and clear their names. A senior Saudi official told Human Rights Watch that the reeducation approach largely replaces trials.” This strategy has been employed for both violent and nonviolent detainees (Human Rights Watch, 2008d; Human Rights Watch, 2013; Human Rights Watch, 2013a; Human Rights Watch, 2014).

Trial Procedures

As indicated earlier, trials occur in First-Degree Courts, which are located throughout the country. These courts are also subdivided into divisions of specialization: Commercial, Criminal, General, Labor, and Personal Status. With regard to the Criminal Court, it is further subdivided into circuits that specialize in hudud, quesas, tazir, and juvenile offenses. The hudud, quesas, and tazir offenses were explained in the previous section, “Crime and Punishment.” They indicate the manner in which criminal offenses are categorized in Islamic law. Recall that the Criminal Court is composed of a three-judge panel. Any offense that does not fit under the aforementioned categories would be handled by a single judge.

In all cases involving a major crime, the accused must appear in person, while accused persons in a minor offense may have their attorney or another person represent their defense.

634 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

In 2002, the Ministry of the Interior specified the following offenses as major crimes: murder, rape, kidnapping, drug or intoxicant abuse or dealing, theft through forced entry, using weapons or implements, forming a gang, fighting, firing weapons resulting in serious injury, impersonating a security officer, bribery, embezzlement, and forgery. According to article 140 of the procedural law, the court can order a person to appear in any case. Article 141 indicates that if the accused fails to appear and has not sent a representative, the court can proceed to hear the plaintiff and enter the evidence into the court record: “The judge shall not render a judgment except in the presence of the accused. If the accused fails to appear without an acceptable excuse, the judge may issue a warrant for his detention.”

Reference was made earlier to the private right of action in which a person harmed during the course of a crime could seek a private action against the accused. Article 148 indicates that if the private action was rejected following the investigation into the offense, it could be resubmitted to the trial court for its consideration. Moreover, article 149 authorizes the court to appoint a person to pursue the action if the victim “lacks the capacity and has no guardian or trustee.” Article 150 provides the same service if the accused is in similar circumstances to that of the victim.

The courtroom work group for a court hearing involving a major crime would consist of the following people: a three-judge panel, in which the senior judge would be recognized as the chair; a prosecutor; representatives or attorneys for the accused; and any victim seeking a private right of action. Civilians are not used as jurors or as lay judges in Saudi courts. Although the procedural law calls for court hearings to be open to the public, it has been suggested that “few trials appear to be open to the public” (Human Rights Watch, 2008d; Human Rights Watch, 2013; Human Rights Watch, 2013a; Human Rights Watch, 2014). Article 155, however, indicates: “The court may exceptionally consider the action or any part thereof in closed hearings, or may prohibit certain classes of people from attending those hearings for security reasons, or maintenance of public morality, if it is deemed necessary for determining the truth.” Although the accused is under guard during the proceedings, he or she is not restrained, according to article 158, “unless he gives cause thereof. In that case, the proceedings shall continue and the accused may be admitted to the hearing whenever such cause for his removal ceases to exist. The court shall keep him informed of any action that has been taken during his absence.”

When the hearing commences, the court is not “bound by the description included in the memorandum of the charges” (article 159). Moreover, article 160 permits the prosecutor to amend the charges “at any time.” The article also indicates that the accused is to be informed of any amendment and given sufficient time to revise his or her defense. These procedural rules again illustrate that the role of the Saudi judge is not that of a disinterested umpire, as common law judges are often described. His task is that of an inquisitor to seek the truth during the hearing and then conclude by dispensing justice.

The standard court hearing would follow these steps:

1. The court would inform the accused of the charges against him or her and provide him with a copy of the charges.

2. If the accused admits guilt either at the beginning of the hearing or at any time during the hearing, the court would hear his statement and examine him on the details of the

Islamic Law 635

F O S T E R , C E D R I C 1 6 9 2 T S

matter. If the court was satisfied with the validity of the confession, it would decide the case.

3. If the accused denies guilt in the matter or stands mute, the court would proceed to hear the evidence.

4. The court would first hear from the prosecutor. 5. The accused or his representative would then respond to the charges. The court would

examine the accused regarding the charges and the evidence. 6. The court would then hear the claimant of the private right of action. 7. Each of the parties is permitted to comment on the statements of the other parties. 8. All witnesses may be cross-examined by the parties. Moreover, the court may call

witnesses to hear or cross-examine them. Witnesses are kept separate from one another and testify separately.

9. The court can assign expert witnesses on technical questions. Their report is provided not only to the court but also to the litigants.

10. The accused has the last opportunity to speak to the court. 11. The court would then render a judgment either by acquitting the accused or convicting

the person and imposing a sentence. If a private right of action was also being entertained, the court would also rule on that matter.

With regard to determining the outcome of a hearing, article 8 of the Law of Criminal Procedure indicates: “Decisions shall be rendered either unanimously or by majority vote. A dissenting judge shall declare his dissent and explain the reasons thereof, and the majority shall explain their opinion in the response to the dissent, which shall be entered into the record.” The procedural law permits the accused, prosecutor, and claimant of the private right of action to appeal the conviction or acquittal. The law also authorizes both the convicted person and the prosecutor the right to appeal the sentence of the court. Following a reading of the judgment in the court, all the parties to the case must receive a copy of the judgment within 10 days from the date of the reading. The parties then have 30 days to file any appeal.

As mentioned earlier, at least one Court of Appeal is located in each of the 13 provinces of the country. Courts of Appeal are subdivided into specialized circuits: Civil, Commercial, Criminal, Labor, and Personal Status. These circuits entertain appeals from the First-Degree Courts. A panel of three judges would normally hear appeals to the court, except in certain criminal cases in which the panel will consist of five judges, because the court is mandated to review judgments involving major punishments, such as the death penalty, stoning, amputation or quesas cases other than death. If a sentence involving the aforementioned major punishments is affirmed by a Court of Appeal, it must still be affirmed by the High Court. If the High Court does not affirm the sentence, then the case is remanded for another hearing before another panel of judges. If the sentence is affirmed for one of these major punishments, it can only be carried out following the issuance of a royal order from either the king or his representative.

Finally, it is interesting to note that article 201 of the procedural law indicates that “A judgment shall be reversed if it contradicts the text of the Qur’an or Sunnah or the consensus of Muslim jurists.” Once again, this is another illustration of the Quran as the

636 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

fundamental source that defines what is appropriate in the Islamic community of believers and that Islamic law has always been considered both a code of law but also a code of morals.

In 2006, Human Rights Watch conducted a study of the application of the Saudi Law of Criminal Procedure. They interviewed a number of people, including defendants, lawyers, judges, prosecutors, prison officials, and officials from the Ministry of the Interior. While they offered a good deal of comment and criticism on how the procedural law was either being employed or ignored, they recommended reforms in four general areas. First, the Saudi Law of Criminal Procedure should be more in compliance with international human rights law. Second, there is a need for greater transparency in the procedures associated with the arrest and interrogation of suspects. Third, the rights of defendants should be enhanced, including providing free counsel to indigent defendants. Finally, the Bureau of Investigation and Public Prosecution should not be reporting to the Ministry of the Interior, but rather to the Ministry of Justice. In addition, they contend that the Bureau should not have the power to arrest, detain, and release suspects from prosecution (Human Rights Watch, 2008d; Human Rights Watch, 2013; Human Rights Watch, 2013a; Human Rights Watch, 2014). As mentioned earlier, efforts are under way to introduce a public defender system. It remains unclear when this might actually be implemented.

Critical Issues

While commenting on the Saudi criminal justice system, one Western author who is familiar with the Kingdom pointed out: “Whether it is due to severe punishment or public humiliation, Saudi Arabia unquestionably enjoys a remarkably low rate of crime” (Mackey, 2002). The author also reminded her readers that “the legal system is designed to protect society, not the rights of individuals.” As mentioned earlier, a number of nations and several international organizations have objected to some processes employed by agents of the Saudi criminal justice system. This section identifies some examples that illustrate either how the Saudi justice system places a good deal of emphasis on protecting society rather than an individual, or the nature and context of severe punishment or public humiliation.

Status of Women

From a Western perspective, a significant amount of humiliation appears to be directed at women. Much condemnation is directed at the Kingdom for the perceived lack of freedom for women. Saudi women must seek permission from their male guardian, who is often either their father or husband, to work, travel, study, or marry. In the case of a widow, her son is often called upon to serve in this capacity as “guardian.” For some, male guardianship has led to concerns about family violence and varying levels of potential abuse that are neither easily identified nor likely to be reported given the patriarchal nature of the society.

Human Rights Watch recently reported that a series of articles published in 2010 addressed the issue of domestic violence. The articles suggested, among other things, that domestic violence be classified as a crime, that police should be trained to deal with this issue, that cases of domestic violence should be expedited through the system, and that

Islamic Law 637

F O S T E R , C E D R I C 1 6 9 2 T S

obstacles should be removed for women who are seeking a judicial resolution of their case. The government has not acted on these suggestions (Human Rights Watch, 2010b). It should be noted that in 2005 the government established the National Family Safety program that is designed to provide assistance to victims of domestic violence. Moreover, in 2012, at least some police stations were staffing women to assist other women in addressing concerns or complaints to police. Unfortunately, the government has not enacted a draft law designed to address violence against women and children.

This secondary status is associated both with Saudi cultural traditions and Islam and is justified by the claim that these traditions are designed to protect the personal honor of women. To understand this justification, one must begin with the understanding that in Saudi society men are considered superior because they are responsible for protecting the family and maintaining it economically. The Quranic verse frequently cited to support this claim is: “Husbands should take good care of their wives, with [bounties] God has given to some more than others and with what they spend out of their own money. Righteous wives are devout and guard what God would have them guard in their husbands’ absence” (4:34). Critics of this logic suggest that this position may have made sense during premodern times when “women were more vulnerable to poverty, harm, and exploitation than men,” but that it is no longer justified in contemporary society (Human Rights Watch, 2008c).

Some women work, but for a long period of time, professional occupations have been limited primarily to teaching and nursing. There are no female judges or prosecutors in Saudi Arabia. In 2008, the first class of female law students graduated from King Abdul Aziz University, but the Ministry of Justice refused to grant women the license to practice law (Human Rights Watch, 2008c). In 2010, it was announced that a new law would enable women lawyers to appear in court as consultants representing female clients involved in personal status matters, such as child custody, divorce, marriage, and other issues associated with the family. Once again, this reform had yet to come to fruition (Human Rights Watch, 2010b). Recently, the Ministry of Justice approved the granting of a license to practice law to Saudi female lawyers. To qualify, they must have a law degree and have three years of practical experience.

It should be noted that many women accept this arrangement of not seeking employment and staying at home for the security of the family. Moreover, one commentator on Saudi society has pointed out: “It is estimated that forty percent of private wealth in Saudi Arabia is held by Saudi women, and even though women are not permitted to hold a business directly, many do so through the front of a male representative, often a family member” (Ahmed, 2008). No doubt, the role that women play in contemporary Saudi society has probably not gone unnoticed by those who recall that the Prophet Muhammad had a similar role after he married Khadija, a 40-year-old widow who was a wealthy merchant and who enabled him to associate with the societal leaders of Mecca.

It is important to point out that the various dress codes, in particular the veil, date back to around 1500 BCE. Thus, these dress codes do not have a basis in Islam, but are rather part of the cultural traditions of the region. The lack of freedom of movement for women is also associated with Saudi cultural traditions, namely, protecting the personal honor of

638 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

women. Thus, women must often be escorted by a male family member if they leave their home. It was this attitude that led King Saud in 1957 to issue a royal decree that forbade women to drive. Again, this decision was based on Saudi culture and did not have its basis in Islam. Although it was announced that the ban on women driving cars would be lifted, this has not occurred. This is another example of the slow pace of reform on a host of social issues.

Some have offered a telling argument that given the male-dominant society, the real honor that is being protected is that of the man. The ird, or sexual honor of the females of a family, is often cited in support of this position. Finally, the cases in which a daughter is killed for dishonoring the family is not an issue that was determined by an Islamic court, rather this has been a matter associated with urf or traditional local law, which predates the emergence of Islam. In fact, a number of commentators have pointed out that when Islam was introduced, it actually granted women some protections by providing them with various legal rights that did not exist in the patriarchal tribal society at that time (Mackey, 2002).

Although the second-class status of women in Saudi society may be traced originally to the cultural traditions of the region that predate Islam, presently senior religious leaders have a significant role to play in perpetuating this attitude through their involvement with determining the social policies of everyday life that impact women. These religious leaders control the educational system, sit as judges, and have a profound influence on the Commission for the Promotion of Virtue and the Prevention of Vice, which will be explained shortly. To illustrate the role that religious leaders play, a few examples should indicate the significant authority associated with the Senior Council of the Ulama that was created in 1971. The Council is composed of between 30 and 40 of the leading senior religious scholars and is chaired by the Grand Mufti. As noted earlier, a mufti is a specialist in Islamic law. It was the Senior Council of the Ulama that caused Saudi Arabia to withdraw from attending a 1994 United Nations conference on population and development that was being held in Cairo, Egypt. Among the topics discussed that the Council claimed were against the laws of God and nature included birth control as well as equality between men and women.

Although this Senior Council is not part of the legislative process, it is consulted on various pieces of proposed legislation to seek its guidance on conformity with the moral and ethical teachings of Islam in general and Sharia in particular. One of its principal duties is to provide fatwas that establish general rules regarding questions submitted to it by the government. Among the fatwas issued by the Council on women, two will suffice to indicate how they impact not only the everyday life of women now but also the prospects of future generations. On the subject of postponing marriage in order to finish secondary or university education, the Council proclaimed:

For women to progress through university education, which is something we have no need for, is an issue that needs examination. What I see [to be correct] is that a woman finishes elementary school and is able to read and write, and so she is able to benefit by reading the Book of God, its commentaries, and Prophetic hadith, that is sufficient

Islamic Law 639

F O S T E R , C E D R I C 1 6 9 2 T S

for her. This is so unless she excels in a field that people need, such as medicine or its like, and as long as this study involves nothing prohibited, such as the mixing of the sexes and other things.

On the subject of employment, the Council announced: “God Almighty . . . commended women to remain in their homes. Their presence in the public is the main contributing factor to the spread of fitna [strife]. Yes, the Shari’ah permits women to leave their home only when necessary, provided that they wear hijab and avoid all suspicious situations. However, the general rule is that they should remain at home” (Human Rights Watch, 2008c). These examples clearly indicate that the religious leaders of Islam in Saudi Arabia are facilitating the maintenance of a perpetual second-class citizenship for Saudi women. One frequent visitor to the Kingdom, however, has suggested that the “gender apartheid committed in the name of Islam is already dying, rasping its last, soured breaths” (Ahmed, 2008). One small illustration of this is that the Ministry of Labor announced in 2012 that women no longer needed the permission of their guardian to work in amusement parks, as cashiers, in clothing stores, or in food preparation. Nevertheless, the segregation of women and men in the workplace continues. Finally, on a somewhat lighter note, two women were permitted to participate in the 2012 Summer Olympics, which was a first.

Moreover, it is important to note that the encroachment of values associated with Western societies into Saudi Arabia is often considered an attack on the family in general and possibly women in particular. As such, the attitude that women must be protected is advanced further. To illustrate, this Islamic patriarchal society observes modern Western culture forsaking its religious roots and embracing a more secular society. They read of the large number of divorces and the significant number of births to single women throughout the West and conclude that the dignity of women is being compromised. This reinforces their abhorrence of that which is associated with secularism and individualism.

Law Enforcement

There are essentially two kinds of police in the Kingdom: the civil or Public Security Police, and the religious police or matawain. The Public Security Police are a national law enforcement organization that is accountable to the Ministry of the Interior. It is responsible for the typical law enforcement and order maintenance issues that confront any society. One of the main criticisms directed at the security police is the manner in which they handle foreign guest workers when they skirt Saudi law. The pretrial rules found in the Law of Criminal Procedure may alleviate some of these concerns, once they are further refined in light of the criticisms just mentioned. There is also a Directorate of Intelligence that collects, analyzes, and coordinates the intelligence work of all agencies; it reports directly to the king.

Within the Public Security Police is a directorate called the Mabahith or secret police. They are responsible for domestic security and counterintelligence functions of the ministry. In recent years, they have come under increased criticism for their program to reintegrate jihadists back into Saudi society. These jihadists have essentially included three groups of people: those who experienced fighting outside the country before 2001; those who had

640 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

been identified as part of the new generation of radicals who were often planning to attack domestic targets after the invasion of Iraq by the United States in 2003; and those Saudi Guantanamo detainees that had been transferred to Saudi Arabia. The transfer was specifically to a mabahith prison.

At issue for the critics have been three areas of particular concern regarding the mabahith policies. First, international standards regarding what constitutes a fair trial have been raised. To illustrate, there is no presumption of innocence; defendants are not informed of the charges against them; they are not provided legal assistance or adequate time to prepare a defense; and they are denied the right to a public trial. Second, mabahith prisons are not part of the regular Saudi prison system. Many inmates in the mabahith prisons remain incarcerated even after they have completed serving their sentence. In addition, those identified as suspected jihadists have been detained without having been charged or convicted of a crime. It has been suggested that part of the reason why inmates are not released after serving their sentence relates to the third criticism, that is, religious counseling. Mabahith prisons employ both a religious and a psychological counseling program. The religious counseling focuses, among other things, on the correct understanding of jihad, rather than the distorted interpretation employed by various radical groups. Failure to participate in these counseling programs can lead to an inmate remaining in detention following serving his sentence (Human Rights Watch, 2009; Human Rights Watch, 2010b).

It is the matawain (matawain is the plural of matawah, an enforcer of religious law) or religious police that are the subject of a good deal of criticism associated with Saudi law enforcement. The matawain are the enforcement arm of the Commission for the Protection of Virtue and the Prevention of Vice that was briefly alluded to earlier. The Commission holds ministerial status, and it is recognized for building mosques, distributing Qurans, and providing religious educational programs. It has also been criticized for being too zealous in its attempts to uphold the morals of Saudi society. Some have suggested that it is too powerful and should be placed under the Ministry of the Interior.

The matawain were created by King Abdul Aziz early in his reign. Although such an enforcement agency seems out of place in contemporary society, there is a certain logic for its existence. Since the establishment of the Islamic faith, the political leader of the umma or community of believers was always expected to be a protector and defender of the faith. The matawain are the group that assists in that endeavor. The focus of their attention is on public morality, and it is the basis for the criticism directed at them.

One of the principal problems associated with the matawain is that the vice they are empowered to prevent has not been defined to any significant degree. As a result, the matawain are associated with the following types of enforcement actions: raiding homes in search of bootlegged alcohol or illegal drugs; reprimanding men and women in cars who are not related; homosexuality; overseeing that shops close for the five daily prayers; identifying those wearing a Christian cross or a star of David; monitoring business establishments to assure that women are not employed in certain occupations, of which there are many; discouraging members of the opposite sex who are not related from congregating in public; detecting gambling; raiding photo-developing labs to evaluate the type of pictures being printed; preventing foreign books and magazines from entering the Kingdom; censoring images in magazines, especially pictures of women and ads for

Islamic Law 641

F O S T E R , C E D R I C 1 6 9 2 T S

alcohol; preventing barbers from providing Western-style haircuts for men; forbidding women from riding bicycles or jogging; and enforcing a modest dress code. Given the nature of their very broad mandate, the matawain have been characterized as a very powerful vigilante force that even politicians are reluctant to confront (Ahmed, 2008; Alrabaa, 2010; Human Rights Watch, 2008d; Human Rights Watch, 2013; Human Rights Watch, 2013a; Human Rights Watch, 2014; Mackey, 2002).

What critics find particularly troubling are the matawain who are out on the streets enforcing this rather vague definition of vice. The matawain consist of two groups of people: the religious police and volunteers. Neither group wears a uniform, but they carry a badge. Although both are characterized as religious fundamentalists, the volunteers are identified as people who are recruited from local mosques and who are young, often uneducated, and poor. The matawain carry whips that are often used to encourage virtue and to deter vice. They can arrest people, and in some instances, they will take the offender to one of their jails for further harassment. Cases have been reported in which people were not only whipped in public but beaten further while in custody. In some cases, people died from their treatment at the hands of the matawain (Alrabaa, 2010).

It is unlikely that the government will curb the work of the matawain. They have been a useful tool in maintaining Saudi morality throughout the Kingdom. Moreover, critics acknowledge that they help address two social problems confronting the Kingdom: the high unemployment rates, especially among young people, and the surplus of graduates from various religious studies programs.

Status of Juveniles

In addition to the typical petty offenses associated with juveniles throughout much of the world, young people in Saudi Arabia are frequent targets of several of the kinds of vice- related issues that are generally enforced by the matawain. When confronted with the matawain, some incidents are yet another illustration of humiliation for girls and young women. For boys and young men, however, it is not uncommon for them to receive the brunt of the physical abuse. For example, eating in restaurants with young women or walking in groups in family-only sections of malls has led to punishments such as flogging (see Gilani, in Friday and Ren, 2006).

One of the central criticisms raised regarding juveniles is the matter associated with the age of criminal responsibility and how that is determined. In 2006, the age of criminal responsibility for boys was raised from seven to 12; however, the law did not set a minimum age for girls. Human Rights Watch has argued that this law is not well publicized or enforced (Human Rights Watch, 2008a). Moreover, young people are often treated like adults even though their crime was committed when they were under the age of 18. At issue is when a child can be tried as an adult. In Saudi Arabia, it frequently depends on the child’s physical development rather than a consideration of the mental and emotional maturity of the person. Usually, judges decide this question based on the physical signs of puberty. This method has been employed by Islamic judges for centuries and was discussed previously under the subsection on criminal procedure of the section on Sharia.

642 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

This situation is exacerbated further by weaknesses in the justice system that directly impact juveniles. For example, the Bureau of Investigation and Public Prosecution does not employ investigators that specialize in juvenile cases. It is also worth repeating that there are no female prosecutors or judges that would likely offer a different perspective on handling young people. Finally, juveniles are most vulnerable in that they frequently are without legal counsel to defend them.

In their 2008 report, Adults Before Their Time: Children in Saudi Arabia’s Criminal Justice System, Human Rights Watch offered several recommendations for improving the plight of juveniles caught up in the Saudi justice system. Among the recommendations were the following: detain children only as a last resort and for the shortest period of time; protect children from abuse while in detention; eliminate the use of corporal punishment, solitary confinement, and denial of family visits; provide access to adequate legal assistance; and abolish the sentence of death for those who committed their offense while under the age of 18. Human Rights Watch continues to highlight the plight of young people in the Saudi justice system, but change does not appear any time soon (Human Rights Watch, 2013a; Human Rights Watch, 2014).

Nature of Punishment

It has been pointed out that “Saudi Arabia’s criminal justice system, perhaps more than any other, encompasses the true philosophy of ‘an eye for an eye and a tooth for a tooth.’ In the customs of Arabia, a person convicted of harming his neighbor was punished by the same act suffered by the victim” (Mackey, 2002). In addition to the status of women, also leading to much of the criticism directed at the Saudi criminal justice system are the public beheadings of those sentenced to death, the amputation of a hand or foot for a less serious offense, and the flogging of people for offenses that in some cases are not even considered criminal in most countries. The objections have been led by various international organizations associated with human rights and have been supported by a number of countries.

With specific reference to the death penalty, Human Rights Watch reported at least 69 people were executed between January and September 2012. The crimes were usually murder or drug offenses. Moreover, eight people between 16 and 19 years of age had received a death sentence (Human Rights Watch, 2012a). In the period between January and September 2013, at least 64 people were executed; these were primarily for murder, drug offenses, and armed robbery. The common method of carrying out the sentence is by public beheading (Human Rights Watch, 2014).

Thus far, international criticisms have been largely ignored by the authorities within the Kingdom. As mentioned earlier, not only is Sharia unique, but Saudi Arabia’s application of it is essentially different from many other Islamic countries in the world. Whereas many Islamic countries might adhere to various Sharia principles, they have reformed their legal system in light of modern contemporary society. With specific reference to Sharia, that is not the case in Saudi Arabia.

Most experts on Saudi Arabia maintain that the House of Saud will remain wedded to their highly conservative interpretation of Islam. They do so because the faith of the leaders

Islamic Law 643

F O S T E R , C E D R I C 1 6 9 2 T S

of the House is rooted in that orthodoxy. From a pragmatic point of view, it is also in their political interests to do so. As described earlier, the government of Saudi Arabia is based on a near absolute monarchial system. The Saudi Arabian king exercises very broad powers in his capacity as head of state and head of the government.

The greatest concern for the House of Saud has been the military and ideological threat that Iran poses in the region. That ideology is associated with the religious and political authority granted to a highly structured clerical organization in Iran following the 1979 revolution. From the House of Saud’s perspective, its form of Islam provides it with a degree of security from that Iranian ideology. Where one finds some agreement between the two countries, however, is over the threat that modernization poses to their religious and cultural traditions.

Recently, another concern for the House of Saud has been the Arab spring or Arab awakening, that is, the series of demonstrations and protests in 2011 that brought down the autocratic rulers in Tunisia, Egypt, and Libya. Various protests have also occurred in other Middle Eastern countries, such as Bahrain, Jordan, Syria, Yemen, and Saudi Arabia. In the case of Jordan and Saudi Arabia, the protests were not designed to remove the monarchs— rather, they were seeking more freedom. Late in 2011, Amnesty International released a report expressing concerns that the Saudi security forces were arresting and detaining demonstrators. While many were released without charges being brought against them, others remain detained without charges for specific offences. When coupled with the creation of the Special Criminal Court in 2008 to handle terrorism cases and a draft of a new law on terrorism, Amnesty is concerned that these developments will lead to further human rights violations in the country (Amnesty International, 2011).

One should not be left with the view that all or most of the criticism of the Saudi justice system is coming from outside the kingdom. There are some social and political rights activists attempting (at a price) to change not only the justice system but also to seek greater political participation among both male and female citizens. They have been utilizing social media to garner support for their endeavors. They have been victims of harassment, arrest, and detention without charges filed.

As mentioned earlier, one criticism of the Saudi justice system is that the criminal law has not been codified. As such, tazir offenses, which were explained earlier, are referred to as discretionary crimes, because the judge has the discretion of determining if the action or inaction is a crime and what constitutes an appropriate sentence. This kind of judicial discretionary authority has led to serious abuses in general and against these rights activists in particular. To illustrate, they have been charged with such arbitrary “crimes” as “attempting to distort the reputation of the kingdom,” “breaking allegiance with the ruler,” “inciting public opinion against the state,” and “insulting the judiciary.” In spite of these difficulties and the tremendous uphill battle confronting them, activists continue to advocate for greater human rights and freedoms within the country (Human Rights Watch, 2013a).

ISLAMIC REPUBLIC OF IRAN As noted earlier, since the end of World War II, Muslim countries in the Middle East were inhibited from even considering democratic forms of governance in light of regional

644 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

security issues, the ruling elites’ opposition to democracy, and the policies of Western powers who favored supporting autocratic regimes (Ayoob, 2008). In the middle of the eighteenth century, the Saud family began incrementally to acquire more real estate and power in the Arabian Peninsula, which led to the official formation of their kingdom in the twentieth century. The Islamic Republic of Iran is a more recent phenomenon. Like Saudi Arabia, Iran proclaims itself and its policies Islamic; that is, Islamic values are considered the ideal for a practicing Muslim, and Sharia law has a profound impact on the administration of justice in particular and governance in general. The form and function of governance in Saudi Arabia and Iran, however, are different. At the core of what differentiates these respective states are the roles accorded religion versus secularism in the public sphere.

Saudi Arabia adheres to a Sunni interpretation of Islam, and as noted above, follows a strict version of the Hanbali school of jurisprudence. Iran embraces the Shia perspective of Islam and the Ja ‘fari school of jurisprudence. This difference illustrates that there has almost never been one way to interpret Islam, and that is certainly the case in the modern era. Both countries grapple with issues associated with modern forms of governance. Moreover, they differ significantly in how the religious establishment in each country is accorded a voice in the governance of their countries. Whereas Saudi Arabia employs a near absolute monarchical system, Iran may best be described as a theocratic republic with some curious democratic characteristics. We now focus our attention on the Islamic Republic of Iran.

Iran is slightly larger than the state of Alaska, at 636,295 square miles. Its territory consists of both desert and mountains. It shares land borders with Iraq, Turkey, Armenia, Azerbaijan, Turkmenistan, Afghanistan, and Pakistan. It has a coastline along the Caspian Sea, the Persian Gulf, and the Gulf of Oman. The population is estimated at almost 81 million, of which 61 percent are Persian. Among the important industries are petroleum, petrochemicals, textiles, cement, and building materials. Most Iranians are Muslims with between 90 to 95 percent Shia and 5 to 10 percent Sunni. Other religions represented in the population are Zoroastrian, Jewish, Christian, and Bahai.

It was mentioned earlier that Persia’s rich intellectual tradition enabled the nurturing and development of the Shia sect of Islam. It would eventually become the state religion of Iran in 1501 when the Safavid dynasty (1501–1736) established it as such. Over time, there emerged the belief among the Shia community that the ulama, the religious scholars, were the only legitimate authority to offer guidance on governance. Although the ulama were not mandated to govern, they were to offer moral and ethical guidance to the Shia community. Within this community the ulama established a clerical hierarchy that assumed the legitimate mantle of authority to offer guidance on governance. This clerical hierarchy is a unique feature of Shia Islam, for Sunni Muslims, who represent the largest number of the adherents to the Islamic faith, do not subscribe to a clerical hierarchy. The role of religious leaders in the Iranian Revolution of 1979 and the subsequent creation of the Islamic Republic of Iran illustrate the most recent chapter in the debate surrounding the amount of power accorded the secular political leaders and the authority granted to the religious leaders of Islam.

To provide context for this struggle over the degree of authority accorded to the secular and religious leaders in contemporary Iran, a brief outline of the country’s twentieth-century

Islamic Law 645

F O S T E R , C E D R I C 1 6 9 2 T S

political events is in order. Historians have pointed out that the Safavid period (1501–1722) had created three institutional sources of authority in Iran. One was the state, which was often weakly centralized because it was vying for power with the second source, the provincial tribal groups. The third source was the independent Shia religious establishment.

The Safavid dynasty was followed by a period of anarchy until the Qajar dynasty (1779–1925) established itself. During its tenure in power, it did not succeed in changing these three centers of authority. At the onset of the twentieth century, the Qajar’s were offering the country weak leadership and a bankrupt treasury, in part because of their extravagant royal spending. This led to an alliance among the ulama, merchants, and intellectuals, who were demanding a parliamentary government. They succeeded in forcing Shah Muzaffar ad Din to sign a constitution into law in December 1906. A good deal of turmoil followed, including civil war, suspending the constitution, and World War I.

Finally, Reza Khan, an army officer, seized power in 1921. Following periods in which he was minister of war and prime minister, the Iranian Majlis (parliament) gave Reza Khan and his heirs the crown, having earlier deposed the Qajar dynasty. Reza Khan became Reza Shah Pahlavi; thus began the Pahlavi period (1925–1979). Reza Shah initiated an effort both to modernize the country along Western lines and to enhance the power of the central government. He modeled his efforts of reform after another army officer who had assumed the position of leadership in another country in the region, Mustafa Kemal Ataturk of Turkey. Reza Shah needed to curb the independent power of the ulama and bring it under the control of his centralized government. He achieved this largely through his efforts at modernizing the country. For example, he created a secular education system and placed religious schools under the oversight of the government. He introduced Western law codes to replace Sharia. As a result, judges were required to hold law degrees from the secular Tehran University faculty of law or a foreign law school, which disqualified members of the ulama from sitting as judges in the secular state courts. While the Islamic law courts were not eliminated, they were noticeably curtailed in the issues they were permitted to address, such as marriage and wills. The position of women was significantly improved in terms of educational opportunities and freedom of movement in public. The Iranian chador, or veil, that covered the head and body, but not the face and hands, was outlawed. Finally, Reza Shah changed the name of the country from Persia to Iran.

Reza Khan would serve as shah from 1925 to 1941. He helped extend the institution of Persian kingship that dated back to the fourth century BCE. Part of his success can be attributed to the cultural traditions of the country. It has been pointed out that “Iranian culture has held within itself a deep-rooted authoritarian tradition in which society demands submission to the will of those who hold a position, higher than oneself ” (Mackey, 1996). What Iranians often seek from this authority figure is the assurance of internal security and national independence. Clearly, Reza Shah was that authority figure during the 1920s and 1930s. He had removed the independent source of power that the Shia religious establishment had held during the Safavid and Qajar dynasties. For their part, the ulama were unable to find among their group a figure that could serve as an alternative religious source of authority to counter the secular vision of Reza Shah.

Reza Shah was succeeded by his son, Muhammad Reza Shah, who ruled from 1941 to 1979. A brief period, 1951 to 1953, marked a time when the weak shah lost control of

646 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

the country. Muhammad Mossadeq, a popular politician, assumed greater control, which led to the shah fleeing the country. Following a coup that was organized by Britain and the United States, the shah returned to power. While Muhammad Reza Shah continued his father’s efforts at modernizing the country, he also enhanced efforts to consolidate more power solely to the House of Pahlavi and to spend lavishly on the royal family. At a time when he was losing the support of his people through his autocratic style of rule, he was also claiming to be God’s agent to save his country from both internal and external threats (Hiro, 2005). Hence, the shah perceived himself to be the only authority figure capable of assuring both the internal security and national independence for the country. Both secular and religious opposition grew against the shah; it finally came to a head in 1978 and in early 1979, the Pahlavi dynasty was deposed. For a more detailed examination of the nineteenth- and twentieth-century Iranian political developments, see Keddie, 2006; Lapidus, 2002; and Lewis, 1996.

Shia Islam and Ayatollah Khomeini

Some of the differences between Sunni and Shia Muslims have already been explained in the section, “Sunni and Shia.” To place Shia Islam in the context of twentieth-century Iran, a brief summary of that explanation of Shia Islam is in order. Shia Muslims (from the party of Ali) gradually developed a movement that asserted the hereditary succession of Ali’s descendants to the position of leader, because they believed that Muslims should be ruled by a male descendant of Muhammad. Ali was the Prophet Muhammad’s cousin who also became his son-in-law when he married the Prophet’s daughter, Fatima. With this claim of hereditary succession, the people would have no voice in determining the ruler, because it was considered a prophetic matter. These descendants of Ali were called Imams, and their leadership authority extended to the realms of both religion and politics. As religious leaders, they were considered the interpreters of God’s will. Although the Imams do not have the status of a prophet, their speeches and writings are considered important religious texts.

Today, the largest group within Shia Islam is known as Twelver Shias. They believe that Muhammad, the twelfth Imam, who was born in 869, went into hiding in the ninth century. Originally, it was thought that this period of seclusion would not last long. As the period of “Occultation” continued over centuries, there emerged the belief that the Imam Muhammad would return on Judgment Day. While the Imam was in seclusion, there emerged the belief among the Shia community that the ulama, the religious scholars, were the only legitimate authority to offer guidance on governance, for it was the ulama who had undertaken long years of study of the Quran and Sunna. The ulama were not mandated to govern, but they were to offer moral and ethical guidance to the Shia community. The Shia community had its greatest concentration and development in Persia, which is now Iran.

As stated earlier, Persia’s rich intellectual tradition helped to nurture the development of the Shia sect of Islam, which would eventually become the state religion in 1501 when the Safavid dynasty (1501–1736) established it as such. It is important to note that this tradition was associated with the study of philosophy and other subjects, and it represents another difference between Sunni and Shia. Sunni scholars tend to focus only on the Islamic

Islamic Law 647

F O S T E R , C E D R I C 1 6 9 2 T S

sources, such as the Quran, Sunna, and Sharia. Hence, their intellectual interests tend to emphasize issues associated with Islamic law. Shia scholars are learned not only in the traditional Islamic sources, but their interests also extend to other fields of study. For example, philosophy remains an important area of study, and this no doubt has contributed to their recognition as leaders in theological debates.

It has also been suggested that from the sixteenth to the twentieth century people did not make a pronounced distinction between being a Shia Muslim or a Persian. When these concepts were distinguished, people were more apt to identify with Shia Islam (Keddie, 2006). Within this context there emerged the belief among the Shia community that the ulama were the only legitimate authority to offer guidance to political leaders. This, in turn, led the ulama to establish a clerical hierarchy that assumed the mantle of authority to offer that guidance on governance. The upper echelons of this hierarchy are senior leaders who are called ayatollahs (signs of God), who are noted both for their piety and religious knowledge.

It is important to note that within the clerical hierarchy there is a group who are referred to as mujtahid. The mujtahid are jurists who are recognized as qualified to interpret Islamic law through independent reasoning or ijtihad. Ijtihad was discussed earlier in the section on sources of Sharia. Briefly, it is the process by which jurists determine a rule based on analogy. It is utilized when a rule conflicts with another rule or when a rule is rather vague and somewhat questionable. Jurists turn to ijtihad when neither the Quran nor the Sunna has specifically addressed an issue. Thus, a mujtahid is a cleric who has achieved distinction with the study and interpretation of Sharia. These men hold significant positions throughout the governmental system of the Islamic Republic.

Finally, it should be further noted that the vast majority of Shia clerics have simply studied for a time at an Islamic college, with much of their studies focusing on Islamic jurisprudence. To become an entry-level cleric, the male Muslim need not complete a specific course of study that would lead to a degree, and there is no ceremony of ordination. A person who has achieved a level of competence that is acknowledged by others would be called a mullah. Mullahs staff most of the religious posts in Iran; they also serve as judges in the lower courts.

Throughout the twentieth century, the Pahlavi dynasty curtailed the authority of the Shia clerics in general and the clerical hierarchy in particular. Specific examples were mentioned earlier. Throughout the 1960s and 1970s, they were highly critical of Muhammad Reza Shah and his government. When a significant secular opposition emerged in the late 1970s, the ulama joined with them in the Iranian Revolution of 1979 to depose the shah.

Before highlighting the significant role that Ayatollah Khomeini played in the Iranian Revolution, it is important to note that there were two general groups that could claim victory with the overthrow of the shah. The secularists wanted to democratize the political system, while the Islamists wanted to install Islam as the basis of governance. Initially, the country experienced a significant level of Islamization at the expense of the secularists. This Islamization movement would impact all aspects of society: political, economic, judicial, educational, and social.

Before the Revolution, Shia religious institutions, like the mosque and seminaries, were viewed as part of civil society but separate from the government. During the initial decade

648 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

of the Revolution, clerical authority would extend over political and legal institutions as the most significant illustration of Islamization. It was at this time that authoritarian rule was enhanced in a religious guise at the expense of the secular revolutionaries’ desire to associate with democratic principles and the rule of law.

Shia Islam focused on the religious duties of pious Muslims, not on human rights. It was based on the rule of clerics, not on the rule of law. It was interested in fostering an authoritarian theocracy, not on democracy. In 1979, the first modern theocracy was being created in an environment in which a crime was also a sin and a sin was also a crime. Ayatollah Khomeini was the principal architect of this Islamization movement (Mohammadi, 2008).

Ayatollah Ruhollah Khomeini (1900–1989) had been a leading critic of the shah and his government since the early 1960s. His opposition led to imprisonment for a while and eventually to his exile from 1964 to 1978. It has been suggested that “Khomeini was popular because of his uncompromising attitude to the shah, his anti-imperialist and populist rhetoric, his simple lifestyle and language, and his religious status” (Keddie, 2006). Khomeini had established himself as a serious Shia scholar who had written treatises on ethics, law, and philosophy. He also had a good deal of support from the working class, who deferred their allegiance largely to him. Khomeini would emerge as the cleric who would lead the revolution that would overthrow the shah and his regime.

One of his treatises on Islamic government would become a guide, if not a blueprint, for the form of government that would be created following the removal of the shah. The work, Velayat-e faqih or Guardianship of the Jurist, argued that monarchy was an unsuitable form of government for Islam. Moreover, while God is the lawgiver, as reflected in the Quran and Sunna, man is God’s trustee on earth and has the authority to make law, as long as it is in conformity with Sharia. While awaiting the return of the Twelfth Imam, it is left to the Islamic jurists to govern, for it is they who have studied and understand God’s law. Thus, Khomeini was arguing that the ulama should not limit their authority only to offering moral and ethical guidance, but rather they should assume a significant degree of actual political power. This thinking became the basis for the establishment of a type of Islamic theocratic state. Finally, it was maintained that the ulama had a responsibility to cleanse Iran, because much of society during the Pahlavi dynasty was corrupted by the many years of secular materialistic ideas from the West.

With the Islamic revolution not only was the type of government changed from a monarchial system to a curious republican theocratic form, but the secular laws introduced by Reza Shah were abandoned and the Sharia prominently reinstated. On the subject of the form of government, Khomeini supported a republic system in which a parliament elected by all citizens would have a role in the legislative process. Not all Shia clerics were supportive of Khomeini’s ideas, though. Some maintained that the ulama’s historical role of offering guidance to the political authorities should be retained rather than members of the ulama actually assuming positions of governance. Some opposed the proposed form of government on the grounds that it was associated with Western political ideas. Nevertheless, the style of government was eventually formulated, and “the constitution reflects the goals and values of Khomeini’s Islamist movement and of Khomeini himself ” (Martin, 2003). One scholar reminds us: “In Iran as elsewhere, the so-called Islamic

Islamic Law 649

F O S T E R , C E D R I C 1 6 9 2 T S

Revival does not mean that most people are more religious than they used to be: for the majority the degree of religiosity shows no sign of significant change. Rather, it means that Islam is reentering politics and government in a stronger and more militant way than it had in most areas for many decades” (Keddie, 2006). Finally, another scholar maintains that the reason there has been a good deal of political unrest in Iran since the late 1990s can be attributed to the inability of velayat-e faqih and the institutions that it spawned to gain national acceptance (Afshari, 2011).

The Islamic Republic of Iran is unique in that it is the only modern Muslim country that has turned legal and political power over to the clergy. Within that governmental system, Ayatollah Khomeini would hold the ultimate position of authority, as Supreme Leader, until his death in 1989. Other Shia clerics would head many of the other important units of the government. All laws had to conform to Sharia, and all judges had to base their decisions on Sharia. With the secular law of the shah being abandoned, most judges were removed and replaced by Shia jurists. A few secular judges retained their positions after a period of training in Sharia. Today, either all or almost all the judges are Shia clerics whose knowledge of law is almost exclusively limited to Sharia.

Government

On March 30 and 31, 1979, all Iranians who were at least 16 years of age were encouraged to vote in a referendum on whether the monarchy should be abolished and an Islamic republic created. The provisional government announced that 98 percent of the voters approved the creation of the Islamic Republic of Iran, and its 1979 Constitution was subsequently approved in December of that year. The document was revised slightly in 1989, following the death of Ayatollah Khomeini.

It is in the first chapter of the Constitution that the reader is presented with some general principles regarding governance in this Islamic Republic. First among these is the “long- standing conviction in the rule of truth and justice of the Quran.” Article 2 states, in part:

The Islamic Republic is a system based on faith in:

1. The One and only God [There is no God but Allah], His exclusive Sovereignty and Legislation and the necessity of submission to His commands.

2. The Divine Revelation and its basic role in exposition of laws. 3. The concept of Resurrection and its constructive role in the course of evolution

of Man toward God. 4. The justice of God in the Creation and Legislation. 5. Perpetual Imamat and leadership and its fundamental role in perpetuation of the

Islamic Revolution. 6. Eminent dignity and value of Man, his freedom coupled with his responsibility

before God, which provides justice and political, economic, social, and cultural freedom and national unity.

Thus, the criteria for all laws and regulations would be based ultimately on the Islamic sources of the Quran and Sunna.

650 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Another constitutional principle is the importance placed on the development of policy through consultation with various institutions of government, and ultimately, the role that the public plays through elections. Like the Saudi constitution, the Iranian document acknowledges the important role of the family in an Islamic society. Article 10 states: “Since the family is the basic unit of the Islamic society, all laws and regulations and pertinent [plannings] shall strive to facilitate the setting up of a family to protect its sanctity and to stabilize family relations on the basis of Islamic laws and ethics.”

Finally, while the official religion of Iran is Shia Islam, article 12 specifically acknowledges that the Sunni branch “shall enjoy full respect.” This includes not only how they practice their Islamic faith, but also suggests that deference should be paid to differences in legal interpretations, as a result of the four Sunni legal schools mentioned earlier, when a lawsuit reaches a court. Unlike the Saudis, the Iranians recognize certain rights of three religious minorities: Zoroastrians, Jews, and Christians. Article 13 indicates that they “shall be free to carry out their religious rites and practice their religion in personal status and religious education.”

Constitution

The Constitution of the Islamic Republic of Iran is divided into 14 chapters and includes a total of 177 articles. Some features of the Constitution will be discussed later in other parts to this section on government. First, it is worth highlighting Chapter 3, which is titled “The Rights of the People.” Article 19 states: “The people of Iran, of whatever tribe and clan, shall enjoy equal rights, and color, race, language and the like shall not be a privilege.” Article 20 continues: “All members of the nation, both men and women, shall receive equal protection of the law and enjoy all human, political, economic, social, and cultural rights, with due observance of the principle of Islam.” The rights of women are singled out, in particular, for attention in article 21:

The government shall be required to guarantee the rights of women in all respects, by observing the principles of Islam, and shall carry out the following:

1. To create a suitable environment for the growth of personality of woman and to restore material and moral rights.

2. To protect mothers, particularly during the period of pregnancy and custody of children, and to protect children without guardians.

3. To create competent courts for preserving the existence and survival of family. 4. To create special insurance for widows, elderly women, and women without

guardians. 5. To grant guardianship of children to worthy mothers for protecting the children’s

interests, in case there is no legal guardian.

Issues that are often associated with the privacy rights of an individual are also addressed in this chapter. For example, article 23 states: “Investigation of one’s beliefs shall be prohibited. No one may be offended or reprimanded simply because of having a certain belief.” Article 25 indicates: “It shall be prohibited to inspect or fail to deliver letters,

Islamic Law 651

F O S T E R , C E D R I C 1 6 9 2 T S

to record and divulge telephone conversations, to disclose telegraphic and telex com muni - cations, to censor them or fail to communicate or deliver them, to eavesdrop or to make any other search whatsoever, unless by order of law.”

Issues that are often associated with group or societal rights are explained, although there are some generalized qualifiers that are associated with Islam. To illustrate, article 24 notes: “Publications and the press shall have freedom of expression unless they violate the essentials of Islam or public rights. Its details shall be set forth by law.” Article 27 states: “It shall be allowed to hold assemblies and marches, without carrying arms, provided that it does not violate essentials of Islam.” Finally, the freedom to associate with others is covered in article 26: “It shall be allowed to form parties, societies, political or professional associations and Islamic or other religious societies of the recognized minorities, provided that they do not violate the principles of freedom, independence, national unity, Islamic standards and essentials of the Islamic Republic. No one may be stopped from participating in them or forced to participate in one of them.” The formal development of political parties is a relatively new feature. Various reform groups have emerged in recent years. People, however, are more apt around election time to associate with a particular group and its agenda, which then usually disbands following an election.

Finally, Chapter 3 addresses rights that are often associated with protecting the individual from abuse by agents of the criminal justice system. Article 32 points out:

No one may be arrested unless by order of and in the manner provided for by law. In case of an arrest, the accused person must immediately be served with in writing and made to understand the charges he is accused of and the grounds thereof. The preliminary files must be sent to competent judicial authorities within a maximum period of 24 hours and the trial proceedings must be started within the shortest period of time. The violator of this article shall be punished in accordance with the provisions of law.

Article 34 continues: “It shall be the established right of every one to plead for justice. Every one may refer to competent courts to seek justice. All members of the nation shall have the right to have access to such courts. No one can be stopped from referring to the court to which he has a right to refer according to law.” Moreover, article 35 states: “Both parties to a lawsuit have the right to appoint a lawyer in all courts and if they are not able to appoint a lawyer, facilities for appointing a lawyer shall be provided for them.”

Article 37 proclaims: “Innocence is always presumed and thus no one shall be regarded as guilty in the eye of law unless his guilt is proven in a competent court.” Article 36 indicates: “Penal judgments can only be passed by and enforced through a competent court in accordance with law.” Article 38 cautions: “It shall be prohibited to apply any form of torture to obtain a confession or information. It shall not be allowed to force a person to give testimony, make a confession or take an oath; such testimony, confession or oath shall have no validity whatsoever. The violator of this article shall be punished according to law.” Finally, article 39 concludes: “Defamation or aspersions in any manner whatsoever of persons arrested, detained, jailed, or exiled by order of law shall be prohibited and punishable by law.”

652 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

All of these aforementioned rights, whether they are associated with basic human rights, privacy rights, associational rights, or those that focus on procedural protections involving agents of the criminal justice system, are essentially dependent on two factors. First, a country that proclaims these rights in its constitution must have an executive branch of government that is willing to abide by the ideals spelled out in the constitution. Second, it must have a judiciary that is truly independent from other branches of government. As such, there can be no interference with the judiciary, especially when it is exercising its constitutional authority to interpret the spirit and letter of the law. Another important feature of judicial independence is that individual judges are free to exercise their discre- tion in reaching a judgment that is based on their understanding of the law rather than encumbered by political or ideological considerations.

Iran has been criticized by a number of commentators and international human rights groups for failing to adhere to its constitutional provisions. One scholar has pointed out that in the rather short history of the Islamic Republic it has “behaved remarkably similar to other authoritarian states.” It has permitted and in some cases authorized actions on the part of agents of state security that are in clear violation of human rights. Moreover, it is suggested further that relying solely on Sharia is an inappropriate legal foundation for a contemporary state (Afshari, 2011).

Much of the criticism is coming from a democratic, rule-of-law perspective that envisions an independent judiciary determining constitutional issues associated with rights. As one scholar has pointed out: “The Constitution is not what the courts say it is; the ruler and the circle of his loyalists (the Guardian Council) say what the Constitution is” (Mohammadi, 2008). The roles of the ruler and the Council of Guardians, among other groups, are explained below. Each illustrates the absence of rule-of-law principles in the Islamic Republic of Iran.

The Faqih

In the office of Faqih or Leader, one sees the hand of Ayatollah Khomeini. His treatise, Velayat-e faqih, or Guardianship of the Jurist, argued that while awaiting the return of the Twelfth Imam, it is left to the Islamic jurists to govern, for it is they who have studied and understand God’s law. Moreover, while God is the lawgiver, as reflected in the Quran and Sunna, man is God’s trustee on earth and has the authority to make law, as long as it is in conformity with Sharia. This thinking became the basis for the establishment of a type of Islamic theocratic state. Article 5 of the Constitution indicates that the Islamic Republic is under the leadership of a Faqih, “who is just, virtuous, has contemporary knowledge, is courageous and an efficient administrator,” while article 107 recognized Ayatollah Khomeini as the first person to occupy this office. Thus, the Leader is the head of state.

Article 109 outlines the qualifications and attributes of the Leader. They include: “1. Academic qualifications necessary for issuing decrees on various issues of religious jurisprudence[;] 2. Fairness and piety necessary for leading the Islamic Nation[;] 3. Proper political and social insight, prudence, courage, authority and power of management necessary for leadership.” The article further states that “[i]n case there are many individuals who qualify the above conditions, the one who has stronger insight in religious jurisprudence

Islamic Law 653

F O S T E R , C E D R I C 1 6 9 2 T S

and politics shall be preferred.” The Assembly of Experts, which is discussed shortly, is responsible for selecting the Leader when the office becomes vacant.

The functions and authority of the Leader are explained in article 110 and include both general and specific duties. To illustrate, the Leader is tasked to determine and to supervise the general policies of the Islamic Republic; to decree referendums; to be the Supreme Commander of the Armed Forces; to declare war and to make peace; to resolve disputes among the executive, legislative, and judicial branches of government; to resolve problems that cannot be settled by the Expediency Council; to approve candidates for the presidency, sign the order of appointment once a president has been elected, and dismiss a president impeached by the Majlis or found negligent by the Supreme Court; and to pardon or mitigate sentences of condemned people upon the recommendation of the Head of the Judiciary. In addition to these duties, the Leader has the authority to appoint and dismiss a number of people from specific offices of the central government. These include the jurists of the Guardian Council, the chief judges of the judicial branch, the head of the Islamic Republic of Iran Broadcasting Corporation, the chief of staff of the armed forces, the chief commander of the Pasdaran or Islamic Revolutionary Guards, and the chief commanders of the armed forces and the police forces. This office is obviously an extremely powerful position of authority. While only two people have held this office in the relatively recent creation of the Islamic Republic of Iran, the requirements for the office limit the candidates to those Shia clerics who are already members in the upper echelons of the clerical hierarchy. These senior clerics are called ayatollahs (signs of God) and are noted both for their piety and religious knowledge. In reference to only two people holding the office of Leader thus far, Ayatollah Ali Khamenei succeeded the Ayatollah Khomeini upon his death in 1989.

The Assembly of Experts

Articles 107 and 108 explain the singularly important duty of the Assembly of Experts. It is the responsibility of this group to select a Leader when that office becomes vacant either through death, resignation, or removal by the Assembly. The Assembly is composed of 86 clerics, of which some would hold the status of mujtahid, who are elected by the people to an eight-year term. The chairman of the Assembly of Experts holds the rank of ayatollah in the Shia clerical hierarchy.

President

Article 113 of the Constitution states that “the President shall be the highest official State authority who is responsible for the implementation of the Constitution and, as the Chief Executive, for the exercise of the executive powers, with the exception of those matters that directly relate to the Leader.” The president of Iran is elected by the people to a four- year term, and can be reelected consecutively to one additional term. As mentioned earlier, the Leader must approve the candidacy of all contestants for the office of president. Candidates must be Shia Muslims of Iranian citizenship and possess distinguished religious and political qualifications. In order to secure the office, a candidate must achieve an

654 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

absolute majority of the votes. If no candidate achieves the majority, the two candidates that achieved the most votes would participate in a run-off election. Article 99 authorizes the Guardian Council to supervise the presidential election.

As noted earlier, Iran is a theocratic republic with some curious democratic char - acteristics. The office of president is one of those democratic characteristics in that citizens have the right to vote for a candidate. Unfortunately, this quasi-democratic process is seriously flawed at the front end. The Council of Guardians is authorized to vet all of the candidates for the office. In the presidential election of 2013, more than 680 people registered as candidates for the office, among them 30 women; all but eight—all men— were disqualified by the Council of Guardians (Human Rights Watch, 2014).

The president functions as the head of the government of the Islamic Republic. His duties consist of responsibility for state planning, the budget, and administering the civil service; appointing members to the Council of Ministers; signing bills approved in the Majlis into law; and signing treaties and other types of international agreements. The Council of Ministers consists of 21 people who head various government departments. The responsibilities of the departments are common to many governments throughout the world and include agriculture, commerce, defense, education, foreign affairs, interior, and justice. There is also a Ministry of Culture and Islamic Guidance.

The Expediency Council

This Council was created in 1988 by the Ayatollah Khomeini. Originally, it was called upon to resolve differences between the Majlis and the Council of Guardians over legislative matters. More recently, it has been given the mandate to resolve conflicts throughout the system of governance. The Council is composed of approximately 40 people, and it includes the president, speaker of the Majlis, the clerical members of the Council of Guardians, the chief justice, and others appointed by the Leader to three-year terms. Again, some of these appointments by the Leader would be from the ranks of those clerics who have attained the status of mujtahid. The chair of the Expediency Council holds the rank of ayatollah in the Shia clerical hierarchy.

Majlis

The Majlis or National Assembly is the unicameral legislative branch of the Islamic Republic’s government. The Majlis is composed of 290 deputies who are elected by the people to a four-year term. Each deputy represents a specific geographical constituency. Five seats are reserved for the non-Muslim religious minorities: two for Armenian Christians and one each for Assyrian Christians, Jews, and Zoroastrians. Before a person can run for a seat in the Majlis, the person’s candidacy must receive the approval of the Council of Guardians. The Majlis is the other quasi-democratic branch of the Iranian government. Like the office of president, the process is flawed at the front end. To illustrate, the Council of Guardians disqualified 2,000 people from running for a parliamentary seat in the 2012 elections (Human Rights Watch, 2013).

Islamic Law 655

F O S T E R , C E D R I C 1 6 9 2 T S

The leader of the Majlis is the speaker who is selected from among the deputies. The Majlis has a number of permanent committees that focus on specific government departments. Ministers of those departments can be called before the Majlis and questioned about government policies. One responsibility of the Majlis is to approve the president’s choice of members to the Council of Ministers. The Majlis can also vote no confidence on a minister’s performance or that of the government. While most legislation is presented through bills approved by the Council of Ministers, a deputy may submit a bill if it receives the support of at least 15 other deputies. According to article 72, “The Majlis may not enact laws contrary to the principle and rules of the official Faith of the country or the Constitution.”

Council of Guardians

The Council of Guardians consists of 12 members. Six of the members are appointed by the Leader, and according to article 91, they are jurists who have a reputation as “just and acquainted with the needs of the time and issues of the day.” The other six, also according to article 91, are “jurists specializing in various branches of law, elected by the Majlis from among Muslim jurists proposed to the Majlis by the Head of the Judiciary.” Members of the Council hold their position for a six-year term. Half of the membership is changed every three years. No doubt, people who have attained the status of mujtahid would be represented on this Council, and the chairman of the Council holds the rank of ayatollah in the Shia clerical hierarchy.

One of the responsibilities of the Council of Guardians is to assure that laws passed in the Majlis are not contrary to the principles of Islam or of the Constitution. Article 96 specifically mandates: “The majority of faqihs (jurists) of the Guardian Council shall decide whether or not the legislation passed in the Majlis is in conformity with the precepts of Islam. The majority of all members of the Guardian Council shall decide whether or not the same complies with the provisions of the Constitution.” If the Council finds inconsistencies in a bill, it is returned to the Majlis for reconsideration. In this context the Council functions like a second house of a parliament. In determining if a bill is in compliance with the Constitution, it is functioning like a constitutional court. Even before such judgments are issued, however, article 97 enables members of the Council to attend the Majlis and “express their views” about bills that are under consideration.

In addition to this legislative function, the Council of Guardians provides oversight for all the major elections. Article 99 indicates that the Council “shall be charged with the responsibility of supervising the elections of the Assembly of Experts, the President, the Majlis, and referendums.” Obviously, the Council of Guardians has extraordinary power and has consistently utilized it to protect the authority of the Islamists at the expense of those who favor a more secular approach to governance.

Judiciary

Like the executive and legislative branches of government, the judiciary has a prominent place in the Constitution of the Islamic Republic. Article 156 states:

656 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

The judiciary shall be an independent power that protects individual and social rights, shall be responsible for implementing justice and shall carry out the following functions:

1. To examine and pass judgments in respect of litigations, violations, complaints; to settle lawsuits, resolve hostilities and to take necessary decision and action in respect of that part of matters of personal status to be laid down by law.

2. To restore public rights and to promote justice and lawful freedoms. 3. To supervise the proper implementation of laws. 4. To uncover crimes, to prosecute and punish the criminals and implement hudud

and the Islamic codified penal provisions. 5. To take suitable measures for preventing the commission of crime and to reform

the offenders.

To reiterate the importance of judicial independence, article 170 indicates that “Judges of courts shall be required to refrain from implementing Government decrees and regulations which are contrary to law or the rules of Islam or beyond the limits of authorities of the Executive.” In order to carry out the aforementioned duties of the judiciary, several offices have been created to address specific responsibilities. These, for the most part, are explained in the Constitution.

At the top of the Iranian judicial hierarchy is the head of the judiciary. This person is appointed to the position by the Leader for a five-year term. The person must have attained the status of mujtahid, explained earlier. Presently, the head holds the rank of ayatollah in the Shia clerical hierarchy. Article 158 authorizes the head to develop an organizational structure to administer justice. The head is also responsible for all things associated with judges. This includes defining their jurisdictional duties and their appointment, transfer, promotion, and dismissal.

The minister of justice is responsible for coordinating relations with the executive and legislative branches of government. The person who holds this position is appointed by the president, but the head of the judiciary proposes individuals who are suitable for appointment to the post. The head of the judiciary can delegate to the minister of justice those administrative responsibilities that fall under his constitutional mandate, for example, dealing with budgetary or personnel issues.

The attorney general is the chief state prosecutor. This person is appointed by the head of the judiciary after consulting with members of the Supreme Court. The attorney general is appointed to a five-year term and has already attained the status of mujtahid. He is responsible for the prosecution of criminal offenses.

The Iranian judiciary has never been an independent branch of government. None of the various governmental iterations in the twentieth century were able to embrace the rule of law, even if they had wanted to, because an unstable political climate prevented any serious attempt at judicial reform. As such, the goal of establishing an impartial, equitable, and effective judicial system was never seriously considered. While the present constitu- tion speaks of the “independent power” of the judiciary, that is simply not the reality. When Islamic reforms of the judiciary were introduced following the Revolution, the criticisms and concerns illustrated the judiciary’s lack of independence in a number of

Islamic Law 657

F O S T E R , C E D R I C 1 6 9 2 T S

contexts. For example, the judiciary was accountable only to the Leader’s office and not to any elected group. This led to a good deal of incompetence and the inability to control corruption. There is a serious backlog of cases, which has led to people being held in jail without bond. The public also objected to the harsh sentences of the Islamic Penal Code: amputation, decapitation, lashing, and stoning (Mohammadi, 2008).

Moreover, the judiciary has served as the principal vehicle of the Islamist reform of criminal procedure. To illustrate, there are numerous reports of torture and abuse at the pretrial stage. People are not being promptly charged with an offense. Access to a lawyer is often denied, and when it is, there is little time to prepare a defense. The courts are found to be neither impartial nor competent. The accused is often not allowed to examine the state’s evidence or to present his or her own. Courts have been found to ignore scientific and social science methods of investigation. A conviction is often denied a review by a higher court. The types of sanctions already alluded to are executed both in public and in prisons. The death penalty carried out on people under the age of 18 has sparked a good deal of criticism. The failure to adopt principles associated with due process and the rule of law clearly points to the absence of an independent judiciary (Human Rights Watch, 2012a; Human Rights Watch, 2013; Human Rights Watch, 2014; Mohammadi, 2008).

The proponents of the Islamic state counter such criticism by pointing out that rule of law, due process, and democracy are Western concepts associated with Western perceptions of jurisprudence and governance. Some dismiss these concepts, especially the Western definitions ascribed to them, as alien to their intellectual tradition. From the Iranian Islamist perspective, Sharia is an ideal law that provides structure for a pious Muslim. It is a guide to all aspects of a person’s life. Moreover, Shia Islam’s political doctrine enables a unique association between religious institutions and political institutions. What is somewhat unique is that the Islamic Republic of Iran has been able to establish itself as a religious state in the modern world, with some clerics serving as members of the political elite and others dominating the judiciary as jurists (Ayoob, 2008; Mohammadi, 2008).

Courts

There are several courts operating in Iran, with varying degrees of judicial responsibility (see Figure 7.3). At the top of the court hierarchy is the Supreme Court. According to article 161, the Supreme Court supervises “the proper implementation of law by the courts of law, creating uniform and binding judicial precedent and carrying out the responsibilities assigned to it by law.” The head of the judiciary determines the rules of the Supreme Court and appoints the president of the court, who would serve a five-year term. The president of the Supreme Court must have attained the status of mujtahid. The Supreme Court essentially has appellate jurisdiction over the Iranian court system.

The public courts are essentially divided into two categories: civil and criminal. First- and second-level civil courts deal with a variety of noncriminal issues. The first-level courts deal with issues in which the value of the property in dispute or the level of punitive damages is high, whereas the second-level courts deal with minor civil disputes. Correspondingly, the first-level criminal courts are responsible for the more serious criminal offenses, and

658 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Islamic Law 659

the second-level criminal courts handle offenses that may lead to sanctions that are less punitive. There is also a separate civil court that specializes in family law, such as divorce and child custody matters.

According to article 173, the Administrative High Court was established to deal “with complaints, grievances and objections of people against Government employees, institutions or administrative regulations and redressing their rights.” Article 172 established special military courts that are designed to investigate “crimes related to the special military or police duties of the members of the Army, Police and Islamic Revolutionary Guard Corps.” The article also indicates, however, that ordinary crimes committed by such people “in their capacity as law enforcement officers shall be investigated by the public courts.”

As is the case with any successful revolutionary movement, there is an immediate need to establish a system to hold trials against the enemies of the movement. The victors in Iran’s revolution continued that tradition by forming revolutionary tribunals that tried opponents quickly and often harshly. Today, the responsibility of the revolutionary courts has been curbed considerably with the creation of the public courts. Nevertheless, they are mandated to handle cases dealing with terrorism or other issues associated with national security.

Two additional specialized courts have been established. The Clerical Court was created in 1987, and it handles cases in which a cleric is charged with a flawed interpretation of Islamic principles. While the court might have this as one of its responsibilities, it has been suggested that it is primarily employed to stifle clerical criticism of the status quo. As mentioned earlier, not all Shia clerics were supportive of Khomeini and the ideas expressed in the Velayat-e faqih. One group argued that while the ulama’s historic role of offering guidance to political authorities should be retained, members of the ulama should not assume positions within the government. Some of these critics had attained the status of ayatollahs, that is, senior leaders of the Shia clerical hierarchy. Clerical critics have continued to express their concerns that this has led to some being imprisoned

Supreme Court

Public Courts Specialized Courts

• Administrative High Court • Military Courts • Revolutionary Courts • Press Court

Civil Courts First Level

Criminal Courts First Level

Civil Courts Second Level

Criminal Courts Second Level

Family Courts

FIGURE 7.3 | Organization of the Courts of the Islamic Republic of Iran

F O S T E R , C E D R I C 1 6 9 2 T S

or placed under house arrest, the loss of clerical positions, and the detainment and alleged torture of associates (Afshari, 2011). The Clerical Court is unique in that it is not part of the judiciary hierarchy and does not have a procedure for appeals. It is accountable only to the Leader.

Finally, a Press Court was formed in 1990 to handle cases involving the media. Like the Clerical Court, the Press Court was established to curb and at times silence the media that were publishing reasoned opinions in opposition to velayat-e faqih. This also led to the arrest and imprisonment of writers, editors, and owners of the media. In some cases, publications ceased to exist.

Critical Issues

Time and space do not permit a more extensive coverage of the Islamic legal system of Iran, in particular that part associated with the criminal justice system. It is important, however, to mention at least briefly some of the criticisms that have been directed at the justice system of the Islamic Republic of Iran. Some of the criticisms come from those who either live or have lived for extended periods of time in the country since the 1979 revolution or from independent commentators or international human rights organizations.

Constitutional Rights

The first criticism is directed at the law, the Constitution of the Islamic Republic of Iran (Tamadonfar, 2001). Three examples should suffice to illustrate the concern. Article 24 states: “Publications and the press shall have freedom of expression unless they violate the essentials of Islam or public rights. Its details shall be set forth by law.” As alluded to earlier, this is simply not the case in actuality. There have been a number of instances in which the press has been censored and even required to close down. When the United Nations was preparing its report on human rights in Iran, it found that “some 22 newspapers and journals have been closed, and at least an equal number of publishers and writers have been convicted, jailed or fined, or served with a summons by one of the various tribunals now exercising jurisdiction over the press.” The report also stated that the “press court seems to have become simply another control agency dedicated to the suppression of free expression rather than the protection of that right” (Copithorne, 2000). Human Rights Watch has been monitoring the arbitrary detention, torture, and sentences of four Internet journalists since 2004 and has continued into 2009. Recently, Reporters without Borders indicated that 48 journalists and bloggers were in prison in late 2012 (Human Rights Watch, 2013). Furthermore, the government owns the Iranian radio and television broadcasting corporation and thus controls the news that it sees fit to disseminate. With regard to satellite television, the police periodically remove the dishes from houses and apartment buildings (Moaveni, 2009). While the media is censored by the government, Internet access is available.

Article 27 states: “It shall be allowed to hold assemblies and marches, without carrying arms, provided that it does not violate essentials of Islam.” Of course, the crux of the problem here is how the agents of the government interpret violations of the “essentials of

660 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Islam.” The United Nations report mentioned earlier was particularly critical of the treatment of students protesting in 1999. Some Iranians have been able to offer eyewitness examples of such violations (Ghahramani and Hilman, 2009; Moaveni, 2005; Moaveni, 2009; Nafisi, 2003). Human Rights Watch has not only reported on prohibitions against assembly, but also on speech and association (Human Rights Watch, 2008e; Human Rights Watch, 2012a). The government essentially does not permit demonstrations that question its authority or any aspect of its policies (Afshari, 2011).

A final example of criticism regarding the constitution focuses on the rights associated with protecting the individual from abuse by agents of the criminal justice system. Articles 32 through 38 explain these rights and were cited already. Unfortunately, the United Nations, Human Rights Watch, and independent commentators maintain that people have been subjected to violations of these rights. People have been arbitrarily held without a warrant, deprived of meeting with an attorney, and tortured while being interrogated. The government often justifies such tactics on the grounds that the person is suspected of violating the country’s national security. Many of these people are eventually released, but the experience obviously creates a chilling effect regarding how one lives (Afshari, 2011; Human Rights Watch, 2012a; Human Rights Watch, 2013; Human Rights Watch, 2014; Ghahramani and Hilman, 2009; Mohammadi, 2008).

Status of Women

A second criticism is associated with the status of women. Iran and Saudi Arabia are similar in that they are both based on a traditional patriarchal society. They differ in that Iran’s House of Pahlavi, for all of its mistakes, introduced a number of rights for women. This involved greater educational opportunities and more equitable treatment in the event of a divorce. Moreover, women were not subjected to a mandatory dress code. However, all or most of that changed with the 1979 revolution. For example, the Family Protection Law was suspended. It had raised the age of marriage for girls to 18 and granted women the right to seek a divorce without their husband’s permission. Following the revolution, all matters dealing with the family were delegated to Sharia courts rather than secular courts (as they had been abolished). As a result of these reversals, there has been a concern over the vulnerability of women as victims to violence in general and domestic violence in particular (Copithorne, 2000; Sahebjam, 1994). In addition, when a woman is murdered and her family seeks the death penalty for the perpetrator, her blood price is only half that of a man. It is important to note that this tradition dates back further than the establishment of Islam.

Gender segregation in public places was also reintroduced. With the exception of universities, coeducation was abolished, and in universities, classroom seating segregates men and women. In 1981, the Majlis passed the Islamic Dress Law, which required all women to wear the hijab. They were also required to avoid wearing jewelry, hairstyles, and makeup that was considered un-Islamic. Violators could receive a sentence of up to one year in jail (Hiro, 2005). Women strongly objected to this. While it is still the law, there have been periods when the dress law is not enforced to any significant degree. For example, women can wear a scarf as a veil during times when the political climate is willing

Islamic Law 661

F O S T E R , C E D R I C 1 6 9 2 T S

to allow people a degree of personal freedom. The political climate can quickly change, however, and women find themselves singled out in particular for public humiliation by the morality police for such transgressions (Afshari, 2011; Moaveni, 2005, 2009; Nafisi, 2003).

Human Rights Watch has recently identified several issues that highlight how women are treated in this patriarchal state. It alleges that women are discriminated against in matters of marriage, divorce, inheritance, and child custody. Moreover, they must seek their guardian’s permission to marry or to apply for a passport. Finally, at some universities, women are prohibited from enrolling in some majors, such as engineering and sciences, and quotas are placed on the number of women permitted in some courses (Human Rights Watch, 2013).

Law Enforcement

The morality police or basij is the source of a third criticism directed at the Islamic Republic. Iran has two regular law enforcement agencies that are modeled somewhat after the French. The National Police handle the regular law enforcement and order maintenance needs of larger cities, while the Gendarmerie is responsible for the rural areas of the country. Both are accountable to the Ministry of the Interior.

The basij (mobilization) is accountable to the Iranian Revolutionary Guard or Pasdaran. The Guard was created by Ayatollah Khomeini to assist in the establishment and protection of the Islamic revolution. The basij are an auxiliary militia force. They are the frontline “soldiers” that have a mandate to protect Islamic society from the threat of cultural and moral decay either from within or influences from Western societies. The basij is composed of both a full-time force as well as volunteers. Members include young boys who are often too young to join a branch of the military and older men who have concluded a military career. The basij is not limited to men, however; there is a large contingent of women who assist in the mission of policing public spaces. The basij is often used to quell demonstrations, which has led to a good deal of criticism regarding the tactics it employs. It has also been employed to secure information about university students. In policing public spaces, it is specifically in search of any behavior that might appear un-Islamic. Road blocks have been set up to check motorists for alcohol, other drugs, inappropriate CDs or DVDs, passengers of opposite sexes who are not married, and dress code violations. People have been detained, beaten, and in some cases brought to court. The extrajudicial tactics of the basij have been noted by various human rights groups and commented on by independent observers (Afshari, 2011; Copithorne, 2000; Ghahramani and Hilman, 2009; Hiro, 2005; Human Rights Watch, 2008e; Moaveni, 2005, 2009; Nafisi, 2003).

In recent years, the tactics of the basij have subsided somewhat. It has been pointed out that revolutionary vigor can only be sustained for so long before strong objections are raised by the citizenry that initially embraced the revolutionary movement. Presently, the political climate has permitted more freedoms and has relaxed the religious order maintenance agenda of old. Of course, the political climate could change again and the role of the basij be enhanced once more.

662 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Nature of Punishment

A fourth criticism is directed at the sanctions imposed on people found guilty of crimes in Iran. The types of Sharia sanctions for hudud, quesas, and tazir offenses have already been explained in general and noted in particular in contemporary Saudi Arabia. As was the case with Saudi Arabia, the human rights concern is over the physical harshness of the sanctions. Immediately following the overthrow of the Pahlavi dynasty, revolutionary courts were established and began to dispense justice according to the laws of Islam. In the early 1980s, a series of laws were passed that essentially codified Islamic criminal law. Some of the more modern offenses were incorporated into these laws, but the punishment was changed. For example, driving a car without a license could lead to the offender being flogged. Flogging appears to be the most common of the traditional sanctions employed. Moreover, quesas offenses were associated with retribution, that is, the victim had the right to seek a retaliatory punishment, but it could not be greater than the harm caused to the victim. This characteristic of ancient forms of justice has been retained. To illustrate, in late 2008, an Iranian court ordered a man blinded with acid after he had been convicted of blinding and disfiguring a woman with acid whom he had been stalking. The 1991 Penal Code essentially consolidated these earlier pieces of legislation. The objections to the harshness of a number of sanctions have been led by various international organizations associated with human rights and have been supported by a number of countries (Peters, 2005).

With regard to the case of ordering the man blinded with acid, this decision was reached by the court when the victim sought this punishment because the offender’s crime was a quesas offense. Shortly before the sanction was to be carried out in 2011, the victim pardoned her attacker. Thus, he was not blinded; however, he must continue to serve his 10- to 12-year prison sentence. Moreover, the victim originally sought compensation for the medical expenses she incurred as a result of her injuries. Until the compensation is paid, the offender could remain incarcerated beyond the original sentence.

Until recently, the types of offenses that could lead to the death penalty were murder, rape, drug trafficking, drug possession, armed robbery, espionage, sodomy, adultery, and apostasy. In 2011, more than 600 offenders were executed; in 2012, more than 540 were executed. In 2013, official government sources claimed that 270 prisoners had been executed as of October of that year, but it was believed the numbers were higher (Human Rights Watch, 2013; Human Rights Watch, 2014).

Of particular concern is the use of harsh sanctions imposed on juveniles, especially imposing the death penalty on young people who committed their crime before they reached the age of 18. The Iranian Penal Code exempts children who have not reached puberty from criminal responsibility. The Civil Code of 1991, however, is more specific regarding the age of responsibility by citing boys at 15 and girls at nine. According to Human Rights Watch, the majority of juvenile executions were the result of the child being found guilty of murder (Human Rights Watch, 2008b). Moreover, it is believed that Iran executes more juveniles than any other country. Between 2007 and 2009, it is believed that 26 juveniles under the age of 18 were executed. The common method of carrying out the sentence is by hanging. Moreover, it was estimated that at least 130 juveniles were presently on death row.

Islamic Law 663

F O S T E R , C E D R I C 1 6 9 2 T S

In 2008, two policy changes were announced regarding executions. The head of the judiciary ordered a halt to all public executions unless authorized by him. Late in the year, judges were instructed not to impose the death penalty on juveniles. Unfortunately, these policy changes have not been implemented. Human Rights Watch reported that at least eight juvenile offenders were executed in 2007, seven in 2008, five in 2009, one in 2010, and at least three in 2011. Of the 13 people executed in the first four months of 2011, two were identified as people who were convicted when they were 17 years of age. In late 2012, there were 100 juveniles on death row. Changes in the Penal Code prohibit the death sentence for discretionary crimes, such as drug offenses, but a death sentence can still be applied for crimes of murder, rape, and sodomy, as long as the offender understood the nature and consequences of the act.

In 2012, the Council of Guardians gave their final approval to amendments to the Penal Code. While one notable issue has changed when sentencing juveniles, much of the harsh treatment that the international community has condemned for years has been retained. For example, the amended Code left standing the age of criminal responsibility at the age of puberty under Sharia law, that is, girls at age nine and boys at age 15. The Code also retains the sanctions that have long been condemned by the international community, such as amputation, flogging, and stoning. Activities that may not even be considered crimes in many countries have been retained for sanction, including adultery, sodomy, selling illicit drugs, and insulting the Prophet Mohammad or his daughter, Fatima, or any of the 12 Shia Imams.

Another concern is expanding the definition of the crime of “sowing corruption on earth,” which is punishable by death and previously was used against terrorists. This crime’s definition has been expanded to include: the publication of lies, damaging the economy, serious disturbance to the public order, and operating centers of corruption (e.g., houses of prostitution).

Finally, the amended Code retains the death penalty for juveniles in two key areas where the sanction is required by Sharia law. If a juvenile commits a retribution crime, such as intent to murder, which is one of the most common offenses, the death penalty is retained. Moreover, when the juvenile commits a crime against God, which includes apostasy or consensual sex outside of marriage, the death sentence is also retained. As noted, the death sentence is no longer employed for offenses deemed discretionary crimes, such as drug offenses; rather, the juvenile would be sent to a correctional or rehabilitation facility. Discretionary crimes are tazir offenses, which were explained in the section on Crime and Punishment. One caveat regarding the abolition of the death penalty for discretionary crimes, however, is in the area of national security. In this context, political offenders are tried in the revolutionary courts and could receive a death sentence (Human Rights Watch, 2012a).

Democracy or Theocracy

A final criticism impacts many of the other concerns and is associated with the political and administrative system of the government. The Islamic Republic has some quasi- democratic features with an elected parliament and presidency. Unfortunately, candidates

664 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

for either branch of government must first be approved by the Council of Guardians, which is dominated by senior Shia jurists. The Leader, who holds the ultimate and extensive political and spiritual authority, is a senior Shia cleric. He is selected by the Assembly of Experts, whose membership is limited to Shia clerics. The Expediency Council, which is charged with resolving conflicts among the various branches or departments of government, is dominated by Shia clerics. Finally, a number of deputies in the Majlis are also Shia clerics.

While it should be noted that the vast majority of Shia clerics do not hold positions in the government, there is a good deal of criticism over the degree to which Shia clerics control the political system by occupying so many key governmental offices. Among those concerned are Shia clerics themselves, and some are high-ranking clerics in the hierarchy. Nonclerical critics are generally concerned about the theocracy that has been created since 1979. Many Iranians who supported the overthrow of the shah were not seeking to replace him with a theocracy. Within that group there was a good deal of support to establish a democratic system of government.

Unfortunately, a new conservative political movement emerged at the beginning of the twenty-first century composed of young reactionaries. The conservative ascendance has attempted to focus on economic development, which has attracted the attention of many people. At the time, the liberal agenda of continuing attempts at reforming government was not considered as intriguing as the conservative goal of improving people’s economic condition (Takeyh, 2009). In light of the status quo, the conservative political leaders and their agenda will continue to inhibit efforts by the political opposition to move the country in the direction of establishing a democratic system of government.

A recent example of suppressing any attempt to move in the direction of establishing some type of democratic system of government occurred during the protests over the presidential election in June 2009. In addition to the claim of election fraud, there were a host of charges that indicated the authorities did not adhere to the provisions in their constitution, specifically issues associated with violating the right to assemble, arbitrary arrests and detentions, various other due process violations, the prohibition against torture, and extrajudicial killings (Human Rights Watch, 2010a). While various agents of the criminal justice system participated in suppressing the protests over how the election was carried out and the ultimate result, the basij, the auxiliary militia force that is mandated to protect Islamic society from threats to cultural and moral decay, was a prominent force in the government’s efforts to silence the protestors.

A number of well-educated people left the country following the 1979 revolution, and that trend has continued as the theocracy took hold and stifled various forms of individual freedom. This “brain drain” in a host of professions has had an adverse impact on the country. Since the death of Ayatollah Khomeini in particular, the tension over the desire for more democracy and less clerical hegemony rises and subsides depending on the success of internal political policies, especially those associated with the economy.

Exacerbating this tension is the often continued visible acquisition of significant wealth by the Shia hierarchy. While some of this wealth is used for worthy causes, it is also noted that a select group of Shia clerics has enhanced its personal wealth considerably since the 1979 revolution. By way of comparison, this is another difference between Iran and Saudi Arabia. The Sunni religious establishment in the Kingdom receives almost all of its

Islamic Law 665

F O S T E R , C E D R I C 1 6 9 2 T S

finances from the government, which is controlled by the House of Saud (Mackey, 1996). It is important to remember that opposition to clerics in government is not a rejection of Islam.

Finally, a number of commentators have addressed the issue of whether Iran is capable of introducing a truly democratic system of governance. The proponents within the country for establishing a democratic system of government are confronted with two pressing issues. First, democracy tends to advocate support for individual rights. The cultural traditions— namely, the dominant patriarchal society and the tenet within Islam that the most important group is the umma, the community of believers—has long subordinated the individual in Iranian society. Though both of these traditions are capable of changing and have done so in other countries, the question for Iran remains, how long would this transformation take? Second, conservative elements of society have some reservations about democracy because of its secular nature. For many conservatives, that secular nature is associated as the vehicle that ultimately leads to the moral decay of society.

In spite of these issues, the ongoing decline of support for clerics in positions of government has not abated, and this should enhance the interest to change the status quo. Moreover, it is clear that Islam has not been able to address many of the problems confronting Iran’s fairly modern society, a society whose basis for modernity is not rooted in Islam. One scholar has noted: “In the Islamic Republic, Islam is at stake. A vigorous push towards democracy will put an end to the contention over the capacity of religion to foster modernity.” He also rightly points out that “[m]odernisation and democratisation are long and continuous processes. The complete transformation of a traditional society requires time and enormous efforts” (Alsaif, 2007). Obviously, the opposition to the Islamic Republic must first grow significantly in numbers and then be in a position to change the system of governance in Iran. If and when that happens, and if the proponents of a truly democratic system assume positions of leadership as agents of change undertaking this long and enormous task, they may be in search of a primer. One might suggest that they look to the far northwest reaches of their own neighborhood—to the Republic of Turkey—as one example for such a transformation.

REPUBLIC OF TURKEY Unlike Saudi Arabia, a near absolute monarchy in which the government is based on substantive laws based on Sharia, and unlike Iran, which established a type of theocratic state during the last quarter of the twentieth century along with Sharia law prominently reinstated, Turkey has embraced a secular form of governance and justice, although the overwhelming majority of the population is Muslim. The demise in the significance of Islamic law came about in the 1920s, and Islamic law has remained of little public significance to this day. The Turks are an example of a people that have largely embraced modernity with all of its problems while still accommodating those citizens who remain devout members in varying degrees to their Islamic faith.

At 300,948 square miles, Turkey is slightly smaller than the combined area of the states of Washington, Idaho, and Montana. Its territory consists of hilly, fertile regions and rugged, mountainous areas. It shares land borders with Bulgaria, Greece, Georgia, Armenia, Iran,

666 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Azerbaijan, Iraq, and Syria. It has a coastline along the Black, Mediterranean, and Aegean Seas. The population is more than 81.5 million, and the principal ethnic groups are Turkish and Kurdish. The Turks represent 75 percent of the population, while the Kurds are the largest ethnic minority representing approximately 18 percent. Until recently, the Kurds were a nomadic tribal people. They are presently divided among six countries in the region. In each of those countries, with Turkey being but one example, there are tensions over issues associated with Kurdish nationalism. Muslims represent 99 percent of the population of Turkey, with about 80 percent of them Sunni. The Shia population at 18 percent tends to be located in the southeast region of the country. Minority faiths include Christian, Bahai, and Jewish.

It was mentioned earlier that the height of the Ottoman Empire was between the sixteenth and eighteenth centuries, and that it was this empire that was “the last great expression of the universality of the world of Islam” (Hourani, 1991). Even before the empire began to decline, two groups had emerged regarding the direction it should take to assure its viability. On the one hand were the restorationists, who essentially looked back to the glorious period of the reign of Sulayman the Magnificent (1520–1566) and wanted to recapture that kind of prominence for the empire. On the other hand, the modernists encouraged the adoption of European ideas, especially those associated with military training, organization, and administration (Lapidus, 2002). By the nineteenth century, the modernists had won that debate. Nevertheless, the Ottoman Empire was in a state of decline. Scholars point out that the decline “was due not so much to internal changes as to their inability to keep pace with the rapid advances of the West in science and technology, in the arts of both war and peace, and in government and commerce” (Lewis, 1996).

It is instructive to point out that the Ottoman Empire was noted for its goal of inclusiveness as part of its political agenda. Although Islam was the established religion, the Empire was not ruled as a theocratic state. Religion was viewed as a moral guide to good governance. While there was a strong centralized political authority for a number of years, there was also an acknowledgement of the diversity of the peoples within the empire. This was illustrated in the millet system in which select people within a religious community acted as intermediaries with the political authorities. Muslims had millets, but non-Muslims, such as the Armenian, Greek Orthodox, and Jewish communities, also had millets. This strategy helped facilitate an integrated, diverse, and pluralistic population throughout the empire. That sense of inclusiveness has been absent since the demise of the empire (see Barkey in Kuru and Stepan, 2012).

Finally, as noted earlier, the Ottoman Empire from its inception employed three sources of law. First and foremost was Sharia, the Islamic law, derived from the Quran and Sunna. Second were the rules and principles established to address issues that were not explained in the Sharia. Of course, the very process of creating these rules was guided by the Quran. A third source of law was official rulings or directives to cope with various social circumstances at a particular time and a specific place in the vast empire. A fourth source of law, however, emerged during the nineteenth century. As a result of the importance of commercial enterprises and the borrowing of scientific and technological advances from the West, the empire sought additional assistance with nagging problems in other areas of governance. Initially, the empire adopted legal ideas from the codes of European countries.

Islamic Law 667

F O S T E R , C E D R I C 1 6 9 2 T S

By the late nineteenth century and with specific reference to criminal justice, they were adopting a Penal Code (1857) and a Code of Criminal Procedure (1879) based on the contemporary legal codes of France.

The large Ottoman bureaucratic state has long been noted for contributing to the longevity of the empire. The Turkish military was also a key component of the Ottoman system of governance. It had a storied tradition before the empire was established and was largely responsible for its creation. At the top of the government was the sultan who had the additional title of caliph. It should be remembered that the title of caliph was given to the successors of the Prophet Muhammad as the temporal rulers of the umma or community of believers. Thus, the sultan was the political and religious head of the Muslim community. The sultan, as caliph, did not have any spiritual responsibilities to the community; rather, his fundamental duty, as the political leader, was to defend and protect the Islamic faith. Because Sunni Islam did not have a clerical bureaucracy, the ulama’s official role was limited to that of guardian of the beliefs and practices of Islam. Moreover, the sultan acknowledged the ulama as an important component of his administration.

Ataturk and His Legacy

The dissolution of the Ottoman Empire occurred following the end of World War I in 1918. Although Turkey was a loser in terms of the warfare, it was actually a winner in that it emerged as an independent nation state. It was also fortunate to have a person with leadership skills to step forward during this extraordinary time for the country and lead it toward the establishment of a modern society. That person was Mustafa Kemal (1881–1938), who would later add the surname Ataturk, or “father of the Turks.” He was an Ottoman army officer who had been active in the political intrigues among the army, liberals, and Muslim conservatives before and during World War I. It was Ataturk who founded the Republic of Turkey in 1923 and was named president for life. This is the man (briefly mentioned in the section on Iran) to whom Reza Shah turned as a model to emulate when he initiated efforts to modernize Iran along Western lines and to enhance the power of his central government.

Whereas most revolutionary transformations in government, like those in the United States, France, and Russia, are associated with endeavors at the grassroots level, Turkey was somewhat unique in that its revolution is often referred to as a revolution from above. Ataturk’s first task was to control the territory that was the new nation state of Turkey. For his fledgling republic he retained the civil service and military from the Ottoman Empire to assist in this process. Those two bureaucracies, along with the Republican People’s Party, which he had founded, would serve to carry out his agenda for the country (Sunar, 2004). His principal goal was to emulate the West, and to achieve this, the strategy was to transform Turkey both economically and culturally into a modern society. During his tenure as president, Ataturk frequently had to adjust the balance between liberty and order. One established commentator on Turkey has pointed out: “Ataturk’s priority was order. It is because the order which he established has largely held, that the Turks can now embrace democracy, as the new secular, universal religion” (Mango, 2004). That order would be of a secular kind; Islam would no longer be needed to secure the social order in this new

668 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

emerging country. Scholars tend to agree that Ataturk’s authoritarian style of governance was undoubtedly necessary initially in order to move his country in the direction of a modern democratic state. Ataturk died in 1938 and was succeeded by his trusty lieutenant, Ismet Inonu, who carried on the pragmatic policies of the founder of the republic.

One of the principal targets of Ataturk’s reform efforts was directed at Islam. He had a radical secularized agenda which was achieved in several ways. For example, the position of sultan was abolished in 1923, and this was followed in 1924 with the elimination of the office of caliph. The position of caliph had served as an important symbol throughout the Muslim community. A new government office, the Directorate of Religious Affairs, was placed in charge of the ulama. Among its responsibilities that continue to this day is the appointment of imams to mosques. Moreover, the Directorate is charged with preparing the Friday sermon that is then read by the hatip. He also authorized that people had the right to change their religion, and he closed the religious courts. The weekly day of rest was changed from Friday to Sunday. In 1925, he decreed that traditional male headgear should be replaced with European-style hats. Although he did not prohibit the wearing of the veil for women, it has been suggested that the veil was abolished “by a kind of social pressure and osmosis, without the apparatus of legal enforcement” (Lewis, 1996). In addition, a new Latin script was introduced to replace the Arabic alphabet in 1928. He also replaced the Muslim calendar with the Gregorian or Western calendar. Finally, the educational system was secularized.

Ataturk’s ultimate goal was to control religion and reduce it to a private affair; however, he was not trying to separate the state from the mosque (see Hanioglu in Kuru and Stepan, 2012). Recently, the secularism debate in Turkey has been classified as one of two types. Passive secularism is illustrated when the state avoids “the establishment of any religion, but allows for the public visibility of religion.” Assertive secularism, in contrast, appears when “the state excludes religion from the public sphere and plays an assertive role as the agent of a social engineering project that confines religion to the private domain” (see Ozbudun in Kuru and Stepan, 2012). Ataturk’s agenda was clearly of the assertive sort. The issue of secularism and Islam has become a central feature in a number of contemporary political debates in Turkey. That issue will be touched on below.

As mentioned earlier, the Ottomans had already begun to abandon some aspects of Islamic law in the nineteenth century. The Turks would continue that endeavor and borrowed extensively from European legal codes during the 1920s and 1930s, in particular the Swiss civil law, the Italian criminal law, and French administrative law. Specifically, a new family law was gleaned from the Swiss, replacing Sharia. Legislation abolished polygamy and enhanced efforts at equity in divorce. Muslim women were permitted to marry non-Muslim men. Women had already experienced new economic opportunities because of the shortage of men resulting from World War I. Both employment and educational opportunities were increased for women, with the changes introduced by Ataturk’s government. These changes established the foundation for a new type of society: the “crucial difference is that in Turkey women are much more emancipated and better able to realize their potential than in most Islamic countries” (Mango, 2004). All the aforementioned changes were significant in the cultural transformation of the new secular Turkish society that Ataturk was creating. It is also important to note that he had the full support of the educated classes and professions.

Islamic Law 669

F O S T E R , C E D R I C 1 6 9 2 T S

Most scholars agree that the twentieth-century history of Turkey can be divided into two periods. The first occurred from 1921 to 1950 and essentially was dominated by the one-party, authoritarian rule of Ataturk and Inonu. It was during this period that the foundations of a constitutional, democratic, multiparty political system were established and the initial stages of an industrial, modern, economic society were created. Since 1950, Turkey has experienced rapid economic change, which, in and of itself, can create a good deal of tension. Another type of tension is associated with political governance as it relates in particular to the role of the military, a multiparty political system, and ideological conflict (Lapidus, 2002).

While the post-1950 tensions are important in order to understand the country, a detailed examination of them is beyond the scope of our purpose. Nevertheless, two tensions are summarized that are interrelated with the military, politics, and ideology. The first tension is associated with the military. On two occasions, there have been military coups to rescue the country from ineffective governments. The first occurred in 1960 and lasted one year. The generals abolished the Democratic Party, which had been in power and had altered Ataturk’s secular policy by supporting greater tolerance of Islam in public life. The generals were also instrumental in writing a new constitution for the country. In 1980, the army would again take control of the country as a result of political and economic instability. They suspended the constitution and dissolved parliament and all political parties. This coup also led to a new constitution that was submitted to the people in a referendum in November 1982. It was approved by 91 percent of the voters. In addition to these coups, there have been other occasions in which there were threats, subtle and not so subtle, that the military might intervene in the governance of the country.

It is important to note that there are some segments of the population, often referred to as Kemalists (for the founding father of modern Turkey, Mustafa Kemal Ataturk), who have preferred an authoritarian style of government when it is in their economic or political interests. To illustrate, in a poll published in August 2003, 88 percent of the sample stated that the armed forces were the most trustworthy institution in the country. The army has long been viewed as facilitating Turkey’s efforts at modernization. One of their specific tasks has been to intervene if politicians are not capable of maintaining the law and order that are vital to achieving modernization. They have been called upon to reintroduce a level of Ataturk’s style of authoritarianism in order to assure the continued nurturing of democratization throughout the political process (Mango, 2004).

It has been suggested that having the army in the background, ready to intervene when voters make mistakes at the polls and civilian governments become inept at handling issues often of a domestic nature, leads to a “permanently immature” electorate. “It allows them to avoid ultimate responsibility for the consequences of their votes. . . . As long as the army is around to do the system’s dirty work, voters can avoid confronting the urgency of political change. . . . It does not, however, serve the cause of democracy” (Kinzer, 2001). Presently, the power of the military to intervene in domestic political affairs has been curbed signifi cantly over the past decade (Ayoob, 2008). While this is viewed as a positive development for those citizens who wish to see politicians take seriously the goal of establishing a more mature form of democratic governance, it is unlikely that this will happen anytime soon.

670 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

The other tension presently dominating Turkish political life is associated with the Justice and Development Party. To understand the current crisis, it is important to review briefly the tensions created by opposition parties that either have an active Islamic political agenda or are at least willing to accommodate the existence of a religious political party. First, opposition political parties were for the most part suppressed while Ataturk was alive. On only two occasions did parties emerge, but they were short-lived: the Progressive Party of 1924 and the Liberal Party of 1929 and 1930. A competitive political party system did not develop until the 1950s. Second, Ataturk’s emphasis on the secular state leading the country to modernity and a higher standard of living as seen in the West had led to Islam being removed from having a prominent voice in public life. With the emergence of a multiparty political landscape in the 1950s, those with an Islamic political agenda began to organize themselves. It was the Democratic Party that was instrumental in allowing this to happen. It had won a parliamentary majority in 1950 by defeating the Republican People’s Party, the party of Ataturk. One of its agendas was to relax the overly strict secularist policies that Ataturk considered essential to enabling Turkey to transform itself into a modern state.

As noted, Ataturk was not trying to separate the state from the mosque. There are illustrations of how his political party, in particular following his death, continued to assert its control over Islam, while relaxing some policies. For example, elective religion courses were permitted in middle schools, and theology faculty gained admittance to colleges. The Democratic Party relaxed Ataturk’s secularist policies in some ways. One of its notable changes was to permit state vocational high schools to create a curriculum tract to train imams and hatips. These schools employed the same curriculum as other high schools but added the religion courses for those seeking a career in those vocations. Of course, it was the Democratic Party that was banned as a result of the military coup in 1960.

By 1970, the first Islamic party emerged as the National Order Party, but it was quickly eliminated in 1971 on the grounds that it opposed the secular nature of the state. It was replaced by the National Salvation Party in 1972, and it called for a return to an Islamic way of life. This party lasted until the military coup of 1980, when all political parties were banned. Shortly after the reemergence of a civilian government in 1982, the Welfare Party became the standard bearer for political Islam in Turkey throughout much of the 1980s and 1990s. It was clearly opposed to Western influences. In 1998, it was eliminated with the help of the military, and several of its members were banned from politics for five years. The Virtue Party replaced the Welfare Party and established a position that was not hostile to Western influences. Nevertheless, the Constitutional Court closed its operations in 2001 on the grounds that it advocated an anti-secular position. The ability to ban a religious political party that carries its agenda too far has a basis in Turkish constitutional law. Article 68, which deals with political parties, states in part: “The statutes and programmes, as well as the activities of political parties shall not be in conflict with the independence of the state, its indivisible integrity with its territory and nation, human rights, and principles of equality and rule of law, sovereignty of the nation, the principles of the democratic and secular republic; they shall not aim to protect or establish class or group dictatorship or dictatorship of any kind, nor shall they incite citizens to crime.” This has been the legal basis to ban such political activities that are considered in conflict with “the principles of the democratic and secular republic.”

Islamic Law 671

F O S T E R , C E D R I C 1 6 9 2 T S

Two groups emerged following the demise of the Virtue Party. The more conservative group formed the Felicity Party, while the moderates established the Justice and Development Party. In the 2002 parliamentary elections, the Justice and Development Party won 34 percent of the vote, which was ahead of the Republican People’s Party, which received 19 percent of the vote. With 363 seats in the new parliament, the Justice and Development Party formed a government. During this time it was pointed out that “official Islam in Turkey is developing a philosophy of religious humanism as an alternative to the secular humanism of the intellectual elite. . . . Turkish Islam is emerging from decades of intellectual stagnation to meet the modern world on its own terms” (Mango, 2004). Moreover, one scholar indicated that “. . . there are now hurried attempts by even secularist official circles to introduce an Islamic morality and larger doses of nationalism into the socialization process of school children and the young. Islam, therefore, will continue to play an important role in society—not, however, in the form of a mass movement, an Islamic revolution or revolt, but largely as an ethical guide to promote good civic behavior and social peace, and as a private experience for individuals” (Sunar, 2004). As such, the Justice and Development Party attempted to accommodate itself to the secular society that Kemalists were determined to maintain.

For many people, the Justice and Development Party was considered a center-right party rather than a religious party. It had pursued a moderate approach, especially on issues associated with Islam. One of its principal objectives was to initiate reforms in the law and in particular the administration of criminal justice in order to establish grounds for gaining Turkey’s admission into the European Union. In the 2007 parliamentary elections, the Justice and Development Party received 46.6 percent of the vote, for 341 seats, while the Kemalist Republican People’s Party secured 20.8 percent of the vote, for 112 seats. Following its second victory, the government in early 2008 proposed lifting the ban on women wearing headscarfs at Turkish universities. The ban had been introduced in 1997. This prompted the Chief Public Prosecutor to request that the Constitutional Court ban the Justice and Development Party and 71 of its leading members, which included the President and Prime Minister of the country, from active involvement in politics for five years, because of their active antisecular activities. In addition to the headscarf controversy, there was a charge that the education minister was attempting to insert Islamic teachings in school textbooks. The leadership of the Justice and Development Party denied that they were attempting to transform the country into an Islamic state.

It is important to interject that “polls show that there is little support in Turkey for an Islamic state. A large majority of Turks, including religious Turks, support the secular state” (Rabasa and Larrabee, 2008). To illustrate, in one respected poll from 2006, only 9 percent of the population supported a state that was based on Sharia. Nevertheless, one commentator of contemporary Turkey has pointed out that: “The relatively low proportion of Islamic fundamentalists revealed by social surveys has not stilled the fears of defenders of secularism or reduced the vigilance of the armed forces, which see themselves, and are seen by society, as the ultimate guarantors of the modern, secular republic” (Mango, 2004).

In the summer of 2008, the Constitutional Court handed down two decisions that would address the concerns that Turkey’s secular state was in jeopardy. First, it reimposed the ban on headscarfs, indicating that the government’s policy was a violation of the secular

672 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

principles of the constitution. With regard to banning the Justice and Development Party and its leaders from politics for five years, six of the 11-member Court voted yes, but the rules required a majority of seven members to secure such a decision. Ten of the justices agreed that the party had been involved in antisecular activity, but they disagreed on the punishment. As a result, the party was fined for its activities. The events of 2008 created both a political and constitutional crisis for the country. At the core of that crisis was the issue of ideology: secularism and Islam.

These tensions did not abate, for in 2010 the Justice and Development Party secured passage of several amendments to the constitution through a referendum. The most sensitive amendments were authorizing military personnel to be tried in civilian courts for crimes against the state or constitution and enabling the president to have an increased role in the selection of candidates to the Constitutional Court. In June 2011, the Justice and Development Party won its third general election, but it did not win a super majority, which would have enabled it to draft a new constitution without consulting the opposition parties. Replacing the 1982 Constitution has long been a central goal of the party, for the constitution was a product of the last military coup and is not considered reflective of today’s human rights standards. At issue in any future debate over a new constitution will be the matter of freedom for religion or beliefs. Thus, the tension between secularism and Islam will remain a particular focus of attention.

It has been suggested that the Party “can no longer be considered an Islamist party, even though its top leadership came from Islamist roots. It can more correctly be described as a conservative democratic party inspired by faith-based values in social and cultural matters” (see Ozbudun in Kuru and Stepan, 2012). While many would accept this characterization, others would take issue with the extent to which the party is democratic, as opposed to a party that strives to embrace democratic values.

Many of the Justice and Development Party’s democratic reform efforts were prompted by Turkey’s interests in joining the European Union, and the Union’s requirements imposed on the country in the application process. Examples include the supremacy of the constitution and a reform of the present document; other legal reforms; curbing the power of the military; assuring an independent judiciary; and generating civil reforms. While Turkey is making strides in some of these endeavors, critics (among them the European Union and Human Rights Watch) have raised several concerns. Central features of a true democracy are institutions that assure the existence of the rule of law, the establishment and protections of human rights, and the concern for minorities in this context of rights. Unfortunately, the Justice and Development Party has emphasized at times its majoritarian political power over the rule of law. The judiciary is not an independent branch of the government. The police have utilized excessive force oftentimes when dealing with the Kurds and more recently in 2013 with the protests against the urban development plan of Istanbul’s Gezi Park. Restrictions on speech and assembly were also illustrated in a pronounced way with the Gezi Park protests. These concerns have led to the government being characterized not as espousing democratic principles, but rather as an uncomprom - ising authoritarian entity that thinks it knows what is best for the country. This strategy is strikingly similar to the approach taken by Ataturk and the Kemalists throughout the first half of the twentieth century. In fact, some critics argue that while the Justice and

Islamic Law 673

F O S T E R , C E D R I C 1 6 9 2 T S

Development Party has curbed the power of the military, it is employing the police and judiciary to impose their form of authoritarian governance (Akca, Bekmen, and Ozden, 2014; Aydin, Erdal, Sancar, and Atilgan, 2011; Ayoob, 2008; Hammarberg, 2011; Kuru and Stepan, 2012). Finally, the government’s actions toward the media (for example, intimidating statements by government officials, judicial investigations of editors and journalists, and in some cases the jailing of journalists) has led to a chilling effect on the media that results oftentimes in a period of self-censorship (European Union, 2013; European Union, 2014; Human Rights Watch, 2014b).

It should be noted further that one of the laws, the infamous article 301 of the Turkish Penal Code, enables judicial investigations and arrests of people with detention before trial, which is not solely limited to journalists, but could involve other writers and is vague enough to encompass curbing free speech. The earliest iteration of this law has existed since 1926 and was designed to protect Turkish values and the state. Under both the old and newer versions, people could be found guilty of committing the crime of insulting Turkishness. If a person was found guilty, they could receive a sentence of between six months and three years in prison (Algan, 2008). While domestic and international criticism has been leveled at this law, the government elected to amend it rather than strike it from the Penal Code. The amendments attempt to address two issues. First, the concept of Turkishness is too vague, so it would be replaced by the “Turkish nation,” and second, the penalty is too harsh, so the amendment proposes to reduce the maximum punishment from three to two years.

The face of the Justice and Development Party is Recep Tayyip Erdogan. Until Erdogan’s election to the office of president of Turkey in August 2014, he was the prime minister. In the presidential election, he received 52 percent of the vote, while the National Action Party’s candidate garnered 38 percent. Turks have long viewed the state as providing the infrastructure to transform the country into a modern state. While Ataturk and his party initiated those efforts, Erdogan and his party have continued in their pursuit of that goal. A tremendous building boom has fueled the recent successes of the Turkish economy, and universal health care was established.

Like Ataturk, Erdogan is viewed as a very charismatic figure, especially among women. A number of the policies he initiated have helped women in particular. According to the human development index, improvement can be seen in the education level of women, maternal health care, and maternal mortality rates. Unfortunately, a 30 percent participation rate of women in the official labor force is considered good. Informal jobs that are not counted for social security and unpaid family farm workers are not counted in the official labor statistics. Erdogan is also a proponent of helping the poor. He comes from a squatter settlement himself and rose to mayor of Istanbul before entering national politics. This is another characteristic that contributes to his favorable image among women, but not all people are enamored with his policies and leadership style. A Pew poll conducted shortly before the presidential election found that 48 percent of respondents thought Erdogan was a positive influence, while the same percentage was of the opinion that he was having an adverse effect (Pew Research Center, 2014).

While criticisms of Erdogan’s authoritarian style and policies will be noted below in the sections on government and critical issues, it should be noted that the citizenry have indicated their displeasure with him and his party by denying them a parliamentary majority

674 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

in the recent legislative elections in June 2015. The Justice and Development Party remains the largest party with 258 seats in the 550-seat legislature, but it does not have enough seats to govern alone. Other parties that increased their membership in parliament included: Republican People’s Party (132), Nationalist Movement Party (80), and Peoples’ Democratic Party (80).

Before turning to the section on government, one should not be left with the notion that there are not critical issues confronting women in Turkey. In some quarters, it remains a very patriarchal society. Like many countries in the alleged civilized world, there is a problem with domestic violence. There are also issues associated with forced marriages and honor killings (see Pervizat in Idriss and Abbas, 2011). To its credit, the government implemented the Law on the Protection of Family and Prevention of Violence against Women in 2012. A report on the action plan to implement this legislation is scheduled for late 2015 or early 2016. Initial concerns focus on the number, training, and abilities of the staff dealing with domestic abuse. The legislation calls for the establishment of shelters for abused women, but some local governments have lacked the funding to comply with this mandate. Finally, official statistics do not exist on the extent of the problems of domestic violence, forced marriages, and honor killings (European Union, 2014).

Government

In the twentieth-century history of Turkey, the country has been guided by four constitutions. The Constitution of 1921 was essentially a transitional document during the Turkish War for Independence. It consisted of 23 articles and introduced the principle of national sovereignty. While it delegated governing authority to the executive and legislature, there was no discussion of a role for the judiciary. The Constitution of 1924 was enacted following the proclamation in 1923 declaring Turkey to be a republic. With this document, the authority of the executive, legislature, and judiciary are noted. Ataturk had a fundamental role to play in the preparation of both the 1921 and 1924 constitutions. Following the 1960 coup, the Constitution of 1961 was approved, and it was noted for two things: the establish - ment of a bicameral legislature and, most important, the acknowledgment of individual human rights. Following the military coup in 1980, the constitution was suspended and parliament dissolved. In 1982, the people voted overwhelmingly in a referendum to approve a new constitution. In form it was modeled in several ways after the 1958 Constitution of the Fifth Republic of France. This does not mean that it functions precisely within the Turkish context like that of the French constitution. For example, the 1982 constitution abandoned the bicameral legislature for a unicameral legislature.

Constitution

The 1982 Constitution of the Republic of Turkey consists of seven parts and contains 177 articles. The Preamble to the document begins with the following statement: “In line with the concept of nationalism and the reforms and principles introduced by the founder of the Republic of Turkey, Ataturk, the immortal leader and the unrivalled hero, this Constitution, which affirms the eternal existence of the Turkish nation and motherland and the indivisible

Islamic Law 675

F O S T E R , C E D R I C 1 6 9 2 T S

unity of the Turkish state.” Thus, the father of modern Turkey, Ataturk, remains a revered figure.

Part One of the Constitution establishes the general principles. While article 1 indicates that Turkey is a Republic, article 2 identifies characteristics that are central to the Republic. They state, in part, that Turkey “is a democratic, secular and social state governed by the rule of law; bearing in mind the concepts of public peace, national solidarity and justice; respecting human rights; loyal to the nationalism of Ataturk.” Article 4 is of interest because it declares that articles 1 through 3 of the Constitution are irrevocable and indicates that they cannot be amended. What is of particular interest for our purposes is that the article is essentially proclaiming that Turkey is to remain a secular society. Article 6 acknowledges that sovereignty rests in the nation and that it cannot be “delegated to any individual, group, or class.”

Part One also indicates that political power and authority will reside in the legislative, executive, and judicial branches of government and that each is subject to the provisions of the Constitution. Although Turkey has two offices associated with the executive branch, it essentially functions as a parliamentary system. Finally, article 10 addresses the issue of equality before the law. It states:

All individuals are equal without any discrimination before the law, irrespective of language, race, colour, sex, political opinion, philosophical belief, religion and sect, or any such considerations.

Men and women have equal rights and the State is responsible to implement these rights. No privilege shall be granted to any individual, family, group or class.

State organs and administrative authorities shall act in compliance with the principle of equality before the law in all their proceedings.

Of particular interest here, given the previous discussion in the sections on Saudi Arabia and Iran, is the statement that religion and gender are protected by the principle of equality before the law.

Part Two is devoted to a host of fundamental rights and duties that are frequently associated with a modern democracy. It was mentioned earlier about the tension created over the agenda of religious political parties and the constitutional principle of Turkey as a secular state. We return to that theme in the area of fundamental rights and duties. For our purposes, article 24, dealing with freedom of religion and conscience, is of interest. It states, in part: “Everyone has the right to freedom of conscience, religious belief and conviction. Acts of worship, religious services, and ceremonies shall be conducted freely, provided that they do not violate the provisions of Article 14.” Article 14 is titled “Prohibition of Abuse of Fundamental Rights and Freedoms.” It declares:

None of the rights and freedoms embodied in the Constitution shall be exercised with the aim of violating the indivisible integrity of the state with its territory and nation, and endangering the existence of the democratic and secular order of the Turkish Republic based upon human rights.

676 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

No provision of this Constitution shall be interpreted in a manner that enables the State or individuals to destroy the fundamental rights and freedoms embodied in the Constitution or to stage an activity with the aim of restricting them more extensively than stated in the Constitution.

The sanctions to be applied against those who perpetrate these activities in conflict with these provisions shall be determined by law.

This is another illustration (of which there are several in the Constitution) that adheres to Ataturk’s goal of establishing a secular democracy in which Islam would no longer have a prominent independent role in securing or maintaining the social order. Article 24, however, also states: “Education and instruction in religion and ethics shall be conducted under state supervision and control. Instruction in religious culture and moral education shall be compulsory in the curricula of primary and secondary schools.”

Whereas secularism in the West has meant a separation of church and state, this is not the case in Turkey. The Kemalist policy toward religion in general, and Islam in particular, was to control or regulate it. As mentioned earlier, this strategy is an illustration of assertive secularism in which the state removes religion from the public sphere and limits it as a private matter. This decision was based on the history of Islam in the region and its role not only as a religious faith but also as a source for establishing a system of law and a political philosophy that acknowledges a role for it in the governance of the umma or society of believers. As such, article 136 acknowledges that the “Department of Religious Affairs, which is within the general administration, shall exercise its duties prescribed in its particular law, in accordance with the principles of secularism, removed from all political views and ideas, and aiming at national solidarity and integrity.”

Part Three of the Constitution is devoted to the three branches of government. Turkey has a unicameral legislature called the Turkish Grand National Assembly. It consists of 550 deputies who are elected by citizens who have reached the age of 18 through open, free, and competitive elections. The deputy serves a four-year term. The principal duties of the National Assembly consist of proposing, amending, and repealing laws; supervising the Council of Ministers; and approving the budget.

The executive branch is composed of three elements. Until 2007, the president of the Republic was the head of state and elected by colleagues in the National Assembly. The candidate had to achieve a two-thirds majority of the vote, and once elected, he resigned his seat in the Assembly and severed any affiliation with a political party. The term of office was for seven years, and it was not renewable. A constitutional amendment that was approved by the voters in late 2007 now permits the citizens to vote directly for the president to a five-year term that is renewable once.

As mentioned earlier, the first presidential election by the citizens of Turkey occurred in August 2014. The president has duties that are associated with all three branches of the government. For example, with regard to the legislature, the president calls it into session, promulgates the laws passed, can appeal to the Constitutional Court regarding a law, and calls for new elections of the Turkish Grand National Assembly. Among the executive duties of the president are appointing a prime minister, appointing ministers to the Council of

Islamic Law 677

F O S T E R , C E D R I C 1 6 9 2 T S

Ministers on the recommendation of the prime minister, ratifying treaties, mobilizing the Turkish armed forces, appointing the chief of the General Staff, presiding over the National Security Council, proclaiming martial law or a state of emergency, and signing decrees. Although it appears on paper that a good deal of responsibility resides in the office of the president of Turkey, the Constitution illustrates in an important way the parliamentary nature of the system of government. Article 105 deals with presidential accountability and nonaccountability. Essentially, the president is not authorized to sign decrees alone. Rather, a decree must be countersigned by the prime minister and the minister who is responsible for implementing the policy associated with the decree. Finally, with regard to the judiciary, the president has the authority to appoint members to the Constitutional Court, one-fourth of the members to the Council of State, the chief public prosecutor and deputy chief public prosecutor, members of the Military High Court of Appeals, members of the Supreme Military Administrative Court, and members of the Supreme Council of Judges and Public Prosecutors.

The other two elements of the executive branch are the prime minister and the Council of Ministers. The prime minister is appointed by the president from a member of the Turkish Grand National Assembly. He is the head of the government. The ministers of the Council of Ministers are nominated by the prime minister and appointed by the National Assembly. Ministers are responsible for various departments of the government that include defense, education, finance, foreign affairs, health, industry and commerce, interior, and justice.

Judiciary

The judiciary is the third branch of government for the Republic of Turkey. Article 9 states: “Judicial power shall be exercised by independent courts on behalf of the Turkish Nation.” Article 138 is more specific in its definition of what is meant by independent courts.

Judges shall be independent in the discharge of their duties; they shall give judgment in accordance with the Constitution, law, and their personal conviction conforming with the law.

No organ, authority, office or individual may give orders or instructions to courts or judges relating to the exercise of judicial power, send them circulars, or make recommendations or suggestions.

No question shall be asked, debates held, or statements made in the Legislative Assembly relating to the exercise of judicial power concerning a case under trial.

Legislative and executive organs and the administration shall comply with court decisions; these organs and the administration shall neither alter them in any respect, nor delay their execution.

It is clear from these provisions that both the executive and legislative branches of government are expected to comply with the decisions of the courts and not interfere with their judicial deliberations. Both domestic and international critics contend that the judiciary is not functioning as an independent entity in the governance of the country. Specific concerns are cited below in the critical issues section.

678 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Before a description of the organization of Turkish courts is presented, it is important to mention three offices associated with the work of the judiciary as well as one court. The Supreme Council of Judges and Public Prosecutors is chaired by the minister of justice and includes a deputy minister of justice and five senior judges appointed by the presi- dent of the Republic. They serve a four-year term and may be reappointed. Article 159 of the Constitution explains that the Council is responsible for “the admission of judges and public prosecutors of courts of justice and of administrative courts into the profession.” They also determine the appointment, transfer, promotion, discipline, and removal from office of judges and public prosecutors. Criticism has been directed at both the composition and method of selecting people to serve on this Council. Members are either part of and or selected by the executive branch of government. This raises serious questions about the independence of the judiciary (European Union, 2013; European Union, 2014; Hammarberg, 2011). If a person wishes to become a judge following graduation from a secular law school, he or she would apply to the Ministry of Justice. If selected, the person would serve a two-year apprenticeship before being eligible for appointment by the Council.

It is the minister of justice, a member of the government’s Council of Ministers, who proposes the aforementioned personnel issues to the Council. The Ministry of Justice is responsible for preparing any new or amended legislation to the National Assembly. Public prosecution also falls under the authority of the Ministry of Justice. The prosecutorial service exists throughout the country; it is the responsibility of the state to prosecute those cases that it deems appropriate after a preliminary investigation into a matter has been completed. Finally, the chief public prosecutor represents the state in the Constitutional Court and in any of the High Courts of Appeal. The person is appointed by the president of the Republic to a four-year term and may be reappointed to the post.

Constitutional Court

A number of countries permit the highest appellate court in the regular court hierarchy to entertain issues associated with the constitutionality of its law. Others have elected to create a separate Constitutional Court that has exclusive judicial control over such matters. Turkey opted to establish such a court in the 1982 Constitution. Article 148 explains the functions and powers of the Court.

The Constitutional Court shall examine the constitutionality, in respect of both form and substance, of laws, decrees having the force of law, and Rules of Procedure of the Turkish Grand National Assembly. Constitutional amendments shall be examined and verified only with regard to their form. However, no action shall be brought before the Constitutional Court alleging unconstitutionality as to the form and substance of decrees having the force of law issued during a state of emergency, martial law or in time of war.

In its appellate capacity the Constitutional Court receives cases in one of two ways. First, article 150 of the Constitution permits the president of the Republic, a parliamentary group of either the government’s party or the main opposition party, or one-fifth of the membership

Islamic Law 679

F O S T E R , C E D R I C 1 6 9 2 T S

of the National Assembly, to raise an issue of unconstitutionality. Second, an individual can seek judicial review with the claim that his or her individual rights have been violated. It should also be noted that the Constitutional Court is authorized to function as a trial court if senior members of the government, the president of the Republic and members of the Council of Ministers, or members of high courts are scheduled for trial for an offense associated with their constitutional functions.

The Constitutional Court is composed of 17 members. The president of the Republic is authorized to make the appointments to the Court; however, most of the candidates are actually nominated by the other high courts. These include the Court of Cassation, Council of State, Military Court of Cassation, the High Military Administrative Court, and the Court of Accounts. In addition to these candidates, the president will select one member to the Court from among the nominees put forward by the Board of Higher Education, and he will personally select three members from among the senior civil service and lawyers who have practiced for at least 15 years. Members of the Court retire at the age of 65, which is the retirement age for other members of the judiciary.

It has been noted that neither the Constitution nor the Constitutional Court were implemented to protect the rights of citizens; rather, they were designed to guard the ideology of the state (Kuru and Stepan, 2012). Recently, however, this perception of the court is changing. The court has annulled parts of Erdogan’s autocratic legislation as unconstitutional. To illustrate, when the government tried to ban Twitter, the court overturned the order. They also stepped in to prevent the government from blocking YouTube and Facebook. These rulings have led to Erdogan’s government attacking the court for defending certain basic democratic freedoms and opposing an increasingly powerful authoritarian executive branch. Specific examples identified by critics as executive power reach involve enhancing the minister of justice’s authority, which further puts in jeopardy any independence of the judiciary. In addition, the government has attempted to grant to the Communications Technologies Institute the authority to protect the privacy of users on the web. The opposition maintains that the Institute is controlled by the government. (Human Rights Watch, 2014b).

Courts

Within the civilian justice system there are two kinds of courts: administrative courts and judicial courts. For our purposes, it is the judicial court hierarchy that is associated with criminal justice issues (see Figure 7.4).

At the top of the judicial court hierarchy is the Court of Cassation. It handles all appeals associated with the legality of lower civil and criminal court decisions. This court is divided into chambers that specialize in issues associated with the lower courts. Presently, there are 21 civil law and 11 criminal law chambers. Serious concerns have been raised regarding the efficiency of the appellate court process. The number of cases pending before the Court of Cassation as of July 2014 was 582,642. This was an increase from the 544,169 cases awaiting a resolution in July 2013 (European Union, 2014). Legislation that had introduced a regional appeals court system was scheduled for implementation in 2007 and would obviously have reduced the workload of the Court of Cassation.

680 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

Islamic Law 681

Central Criminal Courts handle offenses for which the penalty could be at least 10 years of imprisonment. These cases are handled by a panel of three judges. It should be noted that Turkey does not use a jury of laypersons in any of its courts. Whereas the Penal Courts of the Peace handle minor misdemeanors, the Penal Courts of First Instance are responsible for adjudicating cases not handled by the other two criminal trial courts. Moreover, a single judge would handle cases in the Penal Courts of First Instance and the Penal Courts of the Peace. Finally, Juvenile Courts would handle cases involving people under the age of 18. In Turkey, the age of criminal responsibility is 12. Young people who are found guilty of offenses committed while they were between the ages of 12 and 17 would receive a reduced sentence from that imposed on an adult. For example, if an adult is found guilty of a crime that usually calls for a sentence of life imprisonment, a juvenile found guilty of the same offense would receive a sentence of between seven to nine years.

It should also be noted that while Saudi Arabia and Iran have retained the death penalty, the most severe punishment imposed on people convicted of a crime in Turkey is life imprisonment without parole. The last time the death penalty was carried out in Turkey was in 1984. In 2002, the sanction was abolished for ordinary crimes; in 2004, it was abolished for all crimes.

Critical Issues

For a number of years, agents of the criminal justice system have been the focus of a good deal of criticism associated with Turkey’s human rights record. These criticisms have come from international organizations such as Amnesty International, Human Rights Watch, and Transparency International. Concerns have also been expressed by other countries, such as the European Union, and from the work of journalists and scholars. To illustrate the peculiar nature of the country’s problem, it has been suggested: “Of all the countries with bad human-rights records, Turkey is the freest. To put it the other way, Turkey has the worst human-rights record of any free country. This is its deepest and most troubling contradiction” (Kinzer, 2001).

Court of Cassation

Central Criminal Courts Civil Courts of First Instance

Penal Courts of First Instance

Penal Courts of the Peace

Juvenile Courts

Commercial Courts

Civil Courts of the Peace

FIGURE 7.4 | Organization of the Judicial Courts of the Republic of Turkey

F O S T E R , C E D R I C 1 6 9 2 T S

Although this point is troubling, there is, nevertheless, a reasonable explanation for it. First, the authoritarian nature of the government has been an entrenched feature for centuries. It existed throughout the Ottoman period; it continued under Ataturk as he began a process that was designed to introduce Western concepts of democratic principles and the rule of law; and all indications are that it continues under the government of President Erdogan. Second, the Republic of Turkey remains a fairly young country in terms of its attempt to adopt democratic principles. A type of parliamentary democracy did not begin to emerge until after the death of Ataturk. Third, the country has suffered from a number of political scandals. One scholar has bluntly noted: “Turkey has a very corrupt political past” (Cerrah, in Haberfeld and Cerrah, 2008). Some of that corruption has infiltrated the criminal justice system. The ebb and flow of corruption, especially political corruption, is one reason why the army has on occasion taken over the governance of the country. While many of the problems associated with human rights are long-standing and will not be resolved overnight, the country has begun in recent years to turn its attention to improving the justice system by attempting to address problems associated with accountability, transparency, and zero-tolerance for corruption. This was in part prompted by Turkey’s interest in joining the European Union. While several critical issues remain, of which some will be highlighted below, they are at least identified as problems to the country’s goal of becoming both more democratic and adhering to the rule of law. No doubt, the country will continue to grapple with many of these issues into the foreseeable future.

With regard to police, it should be noted that the country has two kinds of police organizations: the Turkish National Police and the Gendarmerie. Like all units of Turkey’s government, the Turkish National Police is a highly centralized organization. For many years its approach to law enforcement and order maintenance was to impose it on the citizenry from above. The Gendarmerie is a highly disciplined military police force that serves rural areas of the country. Because it is a military organization, it has always been somewhat remote from the community of citizens. An illustration of the separateness of the Gendarmerie is that they live in barracks; as such, the opportunities to interact with the citizenry outside the job are reduced considerably.

Some of the criticism directed at the police over human rights concerns involved the style of policing employed by the two agencies. Specific concerns cited include police violence against those demonstrating in public, arbitrary detentions, police violence while in custody, the use of torture, and on occasion cases of employing lethal force (see Uysal, in Khalili and Schwedler, 2010). A recent example of this was how the police were authorized to handle the Gezi Park demonstrations in 2013. While condemnation was expected from Human Rights Watch, it was also noted as a serious problem in the Progress Reports of Turkey to join the European Union (European Union, 2013; European Union, 2014; Human Rights Watch, 2014b). One scholar stated “. . .policing in Turkey can be described as policing by coercion. Policing by coercion is policing without consent and with the hostility of the community” (Aydin, 1997). It was further pointed out that coercion is a characteristic of any authoritarian regime and over time had become an accepted feature of the state. In recent years, attempts have been made to introduce community policing, that is, inviting the support and participation of the community in reducing crime and maintaining order within their community.

682 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

While these efforts at community policing remain a work in progress, two other forms of coercion are in need of solutions. For years, Turkish detectives relied more on informers and rough-handed tactics on an initial suspect to solve crimes rather than a careful attempt to collect evidence to establish a case. The harsh tactics often led to various forms of brutality. Article 94 of the Criminal Law states: “Any public officer who causes severe bodily or mental pain, or loss of conscious or ability to act, or dishonors a person, is sentenced to imprisonment from three years to twelve years.” In spite of this provision in the law against torture, prosecutors and judges have looked the other way. This type of abuse continued until human rights groups, both domestic and international, began to complain about the matter. While it remains a problem, it has subsided to some extent. Another example of coercion is associated with problems of police corruption. One survey conducted in 2001 attempted to capture the public’s perception of corruption and found the citizenry suspecting the police, in particular, of the practice. According to one commentator, “Official figures confirm the findings: nearly 40,000 policemen were disciplined and nearly 1,000 expelled from the force in the two and a half years to July 2003. These figures show also that action is being taken to improve the service and re-establish public trust” (Mango, 2004).

In spite of the criticisms directed at the police for human rights violations, a recent Pew poll found that police, along with the military, had a favorable rating compared to other national organizations. The poll was conducted in July 2014, just before the presidential election. Among the institutions addressed in the survey were the military, police, courts, and media. The military and police both had the highest favorable rating, both at 55 percent. The police rating had declined from 68 percent in a poll conducted in 2010. In the 2014 poll, respondents were asked to reveal their level of religiousness when rating the aforementioned national organizations. Religiousness was placed in a Muslim context; that is, respondents were asked how often do you pray (five times a day or more, less than five times, or hardly ever). Police received a favorable rating of 72 percent by those praying at least five times a day, 59 percent by those praying less than five times a day, and 33 percent by those who seldom prayed (Pew Research Center, 2014).

Coercive tactics with prisoners have not been limited to police, however. The Turkish Human Rights Association has identified the brutal treatment of people detained in both police stations and jails. One study of human rights in Turkey concluded: “Due process rights have been frequently violated in Turkey, and abuse in detention or prison, including torture, have been endemic” (Arat, 2007; see also Bargu, in Khalili and Schwedler; and Micallef, in Khalili and Schwedler, 2010). In addition to the poor treatment, another problem associated with Turkish prisons is the degree of overcrowding. This has been attributed to the lengthy sentences handed out and by the fact that half the prison population often consists of people awaiting a final judgment in their case (Mango, 2004). Approx - imately one-fifth of the prison population consists of detainees awaiting trial. Many of these people have been held for more than one year and some for more than three years (European Union, 2013; Human Rights Watch, 2014).

It is unlikely that some or all of these problems will be addressed soon. This is based on the view that there is a tendency for governments to address problems associated with human rights and policing before they even consider strategies for greater accountability

Islamic Law 683

F O S T E R , C E D R I C 1 6 9 2 T S

and transparency in the prison system. While this is common in many countries, it should be noted that the government has directed some resources to its correctional system. For example, 10 new prisons were recently constructed. Moreover, issues associated with the prison staff have begun to be addressed by offering training in European and international standards and by recruiting more prison guards (European Union, 2014).

The judiciary, that is, judges and prosecutors, has also been the subject of a good deal of criticism. They have been part of the problem associated with the other components of the criminal justice system, and many commentators suggest that they are central to the solution of abuses throughout it. To illustrate, Human Rights Watch has accused prosecutors of not conducting effective investigations into allegations of human rights abuses. Moreover, it is claimed that they often do not even initiate a preliminary investigation into a complaint (Human Rights Watch, 2007). To resolve problems like this, one commentator has pointed out that “[j]udges and prosecutors need to become more independent from the state apparatus and, like newspaper editors, begin to think of themselves as servants of the nation rather than of the state” (Kinzer, 2001).

A telling research study on the judiciary from 2007 to mid-2009 was published in 2011 by the Turkish Economic and Social Studied Foundation (Aydin et al., 2011). The authors selected this topic because of the paucity of research on the judiciary and the acknowledge - ment that the judiciary was an essential feature in the country’s efforts at democratization and establishing the rule of law. Both judges and prosecutors were interviewed and asked perceptions of the judiciary. A number of them indicated that they joined the judiciary because it provided a good salary with decent benefits and a guaranteed retirement plan. They perceived themselves as civil servants of the state, and they considered the adminis - tration of justice as politicized. Furthermore, they acknowledged that judicial impartiality did not exist, as the state is favored in judicial decisions.

The subject of judicial independence was also explored and defined as independent from the other branches of government and security of tenure in office. The participants indicated that the judiciary was very weak, in particular with regard to the executive branch. To illustrate, courts did not have their own budget, and were thus dependent on the executive branch. Moreover, they were critical of the High Council of Judges and Public Prosecutors, which is essentially controlled by the minister of justice, a member of the executive branch. Judges have been dismissed, relocated, or assigned to another position because of decisions they have made. A transfer of a judge or prosecutor to a new location can mean either a punishment or a reward based on political reasons. There appears to be no respect for the rule of law.

Like the members of the judiciary, the public also associated the judiciary with the state. They either did not understand the concept of the separation of powers, or they did not consider it a credible feature of their political system. Moreover, participants did not see the courts as providing a service, but saw the justice system as designed to favor the powerful, in particular those with money. The researchers found that most participants were generally ignorant of the legal system.

As a result of these impressions of the public, it should come as no surprise that the courts did not fare very well in the Pew research poll alluded to earlier. In rating four

684 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

of Turkey’s national institutions (military, police, courts, and the media), the courts were viewed as good by 37 percent of the respondents and bad by 58 percent. Only the media had lower scores (32 percent and 65 percent, respectively). When the respondents were asked about their religiousness, again as alluded to earlier, those who prayed five times a day or more had a 60 percent favorable rating of the courts; those who prayed less than five times a day had a 38 percent favorable rating; and of those who seldom prayed, only 20 percent offered a favorable rating (Pew Research Center, 2014).

In its investigation on judicial corruption, Transparency International indicated that there is too much political interference by the Turkish Ministry of Justice in filling judicial positions, especially in its control of appointments to the Supreme Council of Judges and Public Prosecutors. Other concerns include the lack of open information about court proceedings and the disciplining of members of the judiciary. It was noted in their report that a number of judges and prosecutors had been found guilty of accepting bribes and trying to influence other courts. This is in part attributed to the inadequate salaries provided to members of the judiciary. Finally, questions were raised about the accuracy of reports submitted by technical experts. Transparency International offered a number of recommendations to address these issues. They included removing the minister of justice and his deputy from the Supreme Council of Judges and Public Prosecutors; providing the Supreme Council with its own budget and offices separate from the Ministry of Justice; creating more training programs for judges, prosecutors, and lawyers; drafting a code of ethics for judges and prosecutors; and abolishing the private expert pool and establishing a pool of public experts for case analysis (Transparency International, 2007). Finally, it should be noted that in 2006 the High University Board increased the years of study in law school from four to five.

Two recent reports by international organizations remain highly critical on the lack of progress toward Turkey establishing an independent judiciary. Human Rights Watch argues that the political influence over the police and judiciary is a principal reason why the rule of law is ignored and human rights are placed in jeopardy. With specific reference to an independent judiciary, the report calls on the executive branch of government to cease all political interference. There is particular concern about the obstructions related to criminal investigations of corruption within the government. Singled out again for condemnation is the rotation and demotion of prosecutors and judges involved with cases of corruption involving government officials. Other concerns noted were limiting the time people could be held in pretrial detention, speeding up the trial process, and ending the lack of impartiality among prosecutors and judges when the defendants are Kurds (Human Rights Watch, 2014b).

The European Union’s Progress Report on Turkey for 2014 echoed many of the concerns from previous years. They identified no real improvements in the lack of impartiality of judges and prosecutors in trials. Progress toward an independent judiciary, embracing the concepts of the separation of power, and the rule of law were deemed noticeably absent. As has happened in the past, a good deal of criticism was directed at the High Council of Judges and Public Prosecutors, especially the role played by the minister of justice. In some cases where prosecutors and judges were investigating corruption, it

Islamic Law 685

F O S T E R , C E D R I C 1 6 9 2 T S

was noted that they themselves became the focus of disciplinary or criminal investigations. Moreover, in some of these corruption cases, the police officers were removed, reassigned, and even detained.

The report did acknowledge that Turkey is in a “challenging environment.” It praised the country for its humanitarian efforts, in particular with aiding the influx of refugees from Syria and Iraq, of which many are Kurds. Nevertheless, the report noted little progress in establishing an independent judiciary and highlighted concerns already expressed in such reports as the Commissioner for Human Rights for the Council of Europe in 2011 and the European Union’s Turkey Progress Report for 2012 (European Union, 2014).

It is also important to note that some of the heavy-handed tactics of the agents of the justice system can be attributed to issues associated with terrorism. For many people in the West, terrorism did not become an issue until September 11, 2001 (“9/11”). From the perspective of the Turks, they have been confronting terrorists for a considerably longer period of time (Mango, 2005). Of course, the old adage that one man’s freedom fighter is another man’s terrorist comes into play here. Nevertheless, two groups from the Turkish perspective are a threat to the country maintaining the Kemalist goal of a nation state based on democratic and secular principles. Those groups are the Kurdish nationalists and the Islamic revivalists.

The Kurdish people number between 15 and 20 million and are largely Sunni Muslims. They were essentially a nomadic people who lived in the mountainous regions of what is today Turkey, Iran, Iraq, and Syria. After World War I, the aforementioned countries were created into new nation states. Although the Kurds were promised a similar arrangement, it never materialized. Thus, they became a minority group within each of these new countries. Throughout much of the twentieth century, the Kurds have maintained that they should also be given a separate nation state. This would require altering the boundaries of the states of Turkey, Iran, Iraq, and Syria. Because the largest group of Kurds lives within the modern boundaries of Turkey, they have often been the most vocal for the establishment of their own nation. Over the years they have employed a number of tactics to voice their plight, and this has included terrorist incidents. The Turkish military and agents of its justice system have responded in kind. Kurdish nationalism remains a concern for Turkey.

Clashes continue to erupt among the Kurdish population of Turkey and the police. Various peaceful demonstrations and riots have led to death, mass arrests, and the destruction of property. What follows for the demonstrators are often lengthy periods of incarceration without a trial date and allegations that they are terrorists. Recently, the government of President Erdogan introduced a new police bill that will enhance the powers of the police when dealing, in particular, with protestors. This legislation is not only directed at the Kurds, but also other groups, for example the Gezi Park demonstrators of 2013, who were critical of the government. Human Rights Watch has identified five major concerns in this legislation: increasing the power of the police to carry out searches based on reasonable suspicion; broadening the power of courts to seize assets of individuals who are perceived to be attempting to overthrow the government; enhancing the court’s authority to authorize wiretaps; restricting defense lawyers’ access to evidence; and establishing a new crime, that is, making threats against government officials. Furthermore, the legislation would permit the police to detain people for between 24 and 48 hours, depending on the

686 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

alleged criminal offense, without prosecutorial or judicial approval. The sanctions for violent protest that appear to aid a terrorist organization would increase to a three- to five-year prison sentence. Finally, the right of police to use firearms in certain situations has been expanded. None of the enhanced powers delegated to the police will ingratiate them to their critics (Human Rights Watch, 2014a).

Critics of this legislation consist of domestic groups as well as the traditional international organizations, like the European Union and Human Rights Watch. All view this as the latest illustration of Erdogan’s authoritarian style of leadership, which will have an adverse impact on the country’s commitment to democratic ideals and the rule of law. In spite of the increased criticisms, it is important to point out that thousands of Syrian Kurds have been permitted to flee the onslaught of the jihadist Islamic State and enter Turkey as refugees. Thus, while Kurdish nationalism remains a concern for Turkey, it has not prevented the government from offering humanitarian aid to Kurdish refugees.

Islamic revivalists are those members of the faith that wish to turn the clock back to the Middle Ages, with the reintroduction of Sharia as essentially the only law that governs the region. Ottoman rulers rejected such a position long ago. Part of Ataturk’s agenda was to control the role that Islam would play in his secular state. With the success of that strategy, other Islamic activists complained that Islam had been eclipsed and isolated from the lives of Muslims. It has been limited to the basic tenets of prayer, fasting, pilgrimage, and alms- giving (Al-Azam, in Ozdalga and Persson, 1997). In the view of the revivalists, Islam can offer much more for the betterment of the umma, community of believers. This kind of tension is why the headscarf issue mentioned earlier in this chapter created such a stir, and explains in part why the Constitutional Court temporarily resolved the matter.

As noted earlier, when Ataturk assumed the mantle of leadership of the Republic of Turkey, he introduced an assertive style of secularism. The state excluded religion from the public sphere and confined it to the private domain. This was clearly an example of the state undertaking a social engineering project. Since the Justice and Development Party assumed control of the executive and legislative branches of government, they have begun to introduce a more passive approach to secularism; that is, religion should be allowed to have greater public visibility. They maintain that Islam has always been an important feature of the country, irrespective of Ataturk’s and the Kemalists’ secular agenda. The Justice and Development Party suggests that religion in the public sphere has a social value, but it is not the basis for the political system.

Turkey is the only Muslim country that has engaged in representative government and embraced secular values for such a long period. Gradually, over the course of the past half century, an “Islamic tone” has emerged in society. Proponents claim it is not designed to threaten the secular state. Erdogan has spoken of his desire to see a more pious genera- tion, suggesting that Islam might provide a moral compass for people who are adrift. From this perspective, that “Islamic tone” illustrates the value religion may have to improve social values as a whole (Ayoob, 2008; Kuru and Stepan, 2012; Ozbudun in Grote and Roder, 2012).

In October 2013, the ban on headscarves was lifted in state institutions. The government considered this an illustration of the country’s efforts at democratization, but some critics feared this could become an initial step in the subjugation of women. On the subject of

Islamic Law 687

F O S T E R , C E D R I C 1 6 9 2 T S

female dress, Turkey is clearly not Saudi Arabia or Iran. In Saudi Arabia, the hijab style clothing dates back centuries, even before the emergence of Islam as a religion. While it may have religious overtones today, it has long been part of the cultural tradition. As mentioned earlier, the House of Pahlavi in Iran had introduced a more equitable treatment of women and did not subject them to a mandatory dress code. That changed with the 1979 Revolution, which initially required women to wear the hijab. Since the initial requirement was introduced, the enforcement has fluctuated with the political climate of opinion. In Turkey, the headscarf issue is viewed by many as a political matter. For many, it is a political statement of choice, not an imposition. The argument presented is that while women wearing the headscarf may not look Western, they are modern women who happen to take their religion, Islam, seriously.

In the 2014 Pew poll mentioned earlier, a clear majority of the respondents (69 percent) indicated that Islam plays a large role in political life, while only 26 percent suggested it plays a small role. In 2002, before the Justice and Development Party assumed power, the two groups were much closer in agreement, with 45 percent of the respondents claiming it played a large role and 43 percent indicating a small role. The 2014 poll also noted that those who perceived Islam playing a significant role in politics tended to be male, young, and have completed post-secondary education. Finally, 47 percent of the respondents think it is a good thing that Islam plays a larger role in politics, while 40 percent consider it a bad thing (Pew Research Center, 2014).

Today, some Kemalists fear that radical Islamic groups outside the country might enhance the efforts of the revivalists through various methods of social conflict, which could include violence. Admittedly, this has not been as pressing a concern as the issues associated with the Kurds. Nevertheless, as long as various radical groups that claim allegiance to Islam attempt to wreak havoc in various Muslim countries throughout the world, the agenda of Islamic revivalists will remain a concern for Turkey. Obviously, the emergence of the Islamic State in Syria and Iraq, countries that share a border with Turkey, is a totally new feature in this discussion.

Among the countries in the region that have overwhelming Muslim majorities, Turkey is unique. Its government continues to harbor efforts at democratization, and its policies are modern. It can serve as a model for those who wish to embrace a Western style of governance, while accommodating the faithful of Islam and the role Islam can play in society. The process of achieving such a goal will take some time to implement, as is the case with Turkey. Like all emerging democratic countries, Turkey is and will remain a work in progress.

SUMMARY This chapter has offered an introduction to Islamic law, specifically as it relates to criminal justice. Some countries view the purpose and function of law in a different context from that which emerged in the West, and Islamic law is an example of that difference. Because Islam is primarily a religion, which espouses a specific moral code, it was important to sketch out some of the basic characteristics of the religion. As such, the principal sources of the faith, the Quran and Sunna, were explained. Moreover, the Pillars of Islam, the basic

688 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S

tenets of the faith, were described. The difference between Sunni and Shia Muslims was also summarized. Finally, the development of Islam was outlined in the regions called the Arabian Peninsula, Persia, and the Ottoman Empire.

A large section of the chapter was devoted to explaining Sharia or Islamic law. The section began with the historical development of Sharia, noting that religion and law were interrelated in the Middle East, which was a common feature among societies at that time. An outline was provided of the different madhahib or legal schools that emerged, especially those associated with Sunni Islam. Islamic law is characterized as a series of standards that are religious and moral in nature and that are designed to establish and to explain appropriate conduct of the believers of Islam. The sources for those standards were examined next, and they included the Quran, Sunna, ijma, and ijtihad.

The three principles that highlight how justice is pursued within the realm of Islamic criminal justice were also identified. These included criminal responsibility and the degrees of accountability, legality related to crime and punishment, and the nonretroactivity of the criminal law. Sharia recognizes two categories of crime and punishment. Determined crimes and the corresponding sanctions refer to those offenses and punishments that have been specified either by God in the Quran or by the Prophet Muhammad in the Sunna. Determined crimes are further subdivided between hudud and quesas offenses. The other category of crime and punishment is discretionary, and these are referred to as tazir offenses. Because Sharia did not provide a detailed method of criminal procedure, this process was left to the delegated authority of the sovereign or ruler. The nature of the process that emerged is also explained, and the treatment touches on such issues as the presumption of innocence, criminal responsibility, the investigation and nature of evidence, the trial process, and what today is referred to as the courtroom workgroup.

The third and final section of the chapter returns to the regions where Islam developed but as contemporary case studies. Thus, attention focuses on the Kingdom of Saudi Arabia, the Islamic Republic of Iran, and the Republic of Turkey. These countries were selected in part because each views Islam and the role of Sharia in a different historical and contemporary context. The Kingdom of Saudi Arabia has long been noted for its embrace of a very conservative interpretation of Sunni Islam. The Islamic Republic of Iran is an example of a country that fairly recently established a curious republican theocratic form of government that is based on principles of Shia Islam. What is also unique about Iran is that for much of the twentieth century it had established a secular legal system that reduced significantly the role of Islamic law. Finally, the Republic of Turkey is an example of a country in which the overwhelming majority of the population is Muslim, but Islamic law no longer influences the justice system of the country. The Turks are an example of a people who have largely sought to establish a secular and democratic system of governance while remaining devout members to their Islamic faith.

By way of backdrop to the examination of these three countries, it was pointed out that a good deal of tension exists throughout the region. Part of that tension has been caused by the economic and military interests of the West that have existed since the eighteenth century. Throughout the twentieth century, generations of people living in the Middle East were exposed to Western popular culture. For some of the older generations, that Western culture has often been characterized as decadent, and this belief has been another factor

Islamic Law 689

F O S T E R , C E D R I C 1 6 9 2 T S

causing tension in the region. The principal concern has been that the Middle East, like Europe, would forsake its religious roots and embrace a more secular society.

Another factor that has created tension in some circles within the Middle East is the extent to which the countries in the region have borrowed ideas and whole codes from the Western legal tradition of Europe. Although there was opposition by Islamic jurists to this reception of European law, some rulers introduced Western ideas in order to address practical pragmatic policies for the administration of justice in areas for which the Sharia did not provide specific guidance. In spite of this justification to borrow from the Western legal tradition, the legal reception was cause for tension, for the Sharia had long been viewed as the only law necessary to guide Muslims because it represented the will of God.

A final factor creating tension in the region is an all-encompassing issue that is associated with the concept of the secular nation state. The nation state did not emerge in the Middle East until the twentieth century. As a result, the countries in the region are only now grappling with a host of issues associated with this newfound independence as a nation state. A central issue confronting each of them is the ongoing debate over where their allegiance lies. Is their allegiance to an Islamic society? From the inception of Islam, the most important group associated with it was the umma, the community of believers. Today, because Islam is a worldwide religion, the umma extends beyond the borders of any and all nation states. In countries that have embraced all aspects of Islam, the state is often considered subordinate to Islam. This kind of state is often described as a theocratic state. The purpose of such a state is to secure the maintenance and enforcement of God’s will or law. This is designed to prepare the believers for life in the hereafter. To assist in that preparation, the state seeks to purge society of all sources that create a decadent secular society.

In this aforementioned debate over allegiance, an alternative lies with a secular democratic society. While not precisely mimicking what happened in eighteenth-century Europe, some within the Islamic Middle East want to replace their age of faith with an age of reason. Social scientists have long noted and cautioned that political democracy is impossible without social democracy. The proponents of a secular democratic society see the Muslim world’s failure to modernize as the cause for both economic and social poverty among the people and often political tyranny in the governance of the states in the region.

Whether allegiance is to an Islamic society or to a secular society depends on different views of society. By describing the political and legal system of Saudi Arabia, Iran, and Turkey, an attempt was made to show how three countries in the region are grappling with this significant debate and the other tensions associated with it, especially within the context of criminal justice.

690 Islamic Law

F O S T E R , C E D R I C 1 6 9 2 T S