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In order to properly
discuss the question of using DNA as evidence in an Islamic court of
law, we must first understand that there are two types of punishments
in Islamic Law: prescribed punishments and discretionary punishments.
First there are prescribed punishments, such as stoning the married
adulterer, flogging and exiling the unmarried adulterer, flogging the
imbiber of liquor, and the punishment for highway robbery. These
punishments are explicitly stated in the sacred texts. The judge
cannot modify these punishments, reduce them, or increase them.
Whenever a person is found guilty of a crime that has a prescribed
punishment in Islamic Law, the prescribed punishment must be carried
out to the letter.
This kind of punishment can only be carried out on the basis of a
confession or the testimony of reliable witnesses. These punishments
cannot be applied on the basis of DNA analysis or other forms of
evidence. These punishments are Allah's right on the people, and
Allah's rights are based in forgiveness. This is why we have the legal
principle which states: "Prescribed punishments must be waived when
there are doubts surrounding the case".
With DNA testing, there is always a chance for a mistake in the
analysis or in the collection of the sample. Furthermore, Islam seeks
to conceal people's mistakes. Therefore, it is better to rely on
reliable witnesses than on DNA analysis. It is worth noting that even
when a person clearly confesses to committing a crime then retracts
his confession, his retraction will be accepted. He will not be
subjected to the prescribed punishment for the crime he had originally
confessed to committing. Since the prescribed punishment cannot be
applied to him, his punishment must either be modified to a lesser one
at the judge's discretion or he may be released without punishment.
This brings us to discretionary punishments. These are the punishments
for legal violations where the method of punishment and its
specification are not prescribed by Islamic law. It is up to the judge
to decide on the punishment at his discretion, taking many factors
into consideration. He will look towards the prescribed punishment as
a standard of comparison for these undetermined punishments. The
judge, in such cases, is free to use modern, technological means of
producing evidences against the criminal.
In a case where someone is accused of a crime for which there is a
prescribed punishment and is not convicted by the proper number of
reliable witnesses or by a confession but is found guilty by way of a
DNA test, the judge will not be able to carry out the prescribed
punishment upon him. However, depending on the strength of the DNA
evidence, the judge may apply a lesser discretionary punishment. The
same can be said for other forms of evidence.
It is worth saying that it is preferable to avoid investigations of
this type unless the crime in question affects public security.
The Islamic Law Complex of the Islamic World League has decreed that:
"…there is no legal objection to using DNA analysis in criminal
investigations and in considering it as evidence in the crimes that do
not obligate the court to carry out a prescribed punishment. This can
be gleaned from the hadîth "Avoid prescribed punishments when there
are doubts". This would offer justice and security for society and
help to ensure that the criminal is punished and the innocent
released, which is an important objective of Islamic Law."
There are many possible uses for DNA evidence. The following have been
approved by the Islamic World League:
[Source: seventh decree of the Sixteenth Session of the Islamic World
League]
1. To resolve disputes over kinship for any reason such as overturning
evidence or in cases of mistaken marriage between siblings.
2. To resolve disputes over the parentage of newborn babies born in
hospitals and of test-tube babies.
3. To identify missing babies after disasters and wars, unknown
corpses, and prisoners of war.
And Allah knows best
Article taken (with Thanks) from Prophetic_Guidance@yahoogroups.com |
