Habs (imprisonment and detention)

Habs, in the technical sense, is holding a person back, preventing him from acting for himself and going about his affairs. ¹

Habs means restraint and holding back; the word also names a prison and the act of detaining. ²

Habs differs from waqf: habs applies to persons, while waqf applies to property. ³

Habs also differs from hajr (legal incapacity), which removes a person's power to act, whereas habs holds the person himself. ²

Jurists agree that habs is lawful, citing texts and cases, including the practice of detaining a killer until death in some reports and detaining a man on suspicion. ^{3 4 5}

Detention as punishment applies to offences for which no fixed penalty (hadd) is set. Most jurists treat it as a branch of discretionary punishment (ta'zir); the classical books list five cases, including detaining a person who refuses to pay a due right. ⁶

Detention may be combined with other penalties, such as flogging, and the law leaves this to the judge because people differ in how they are deterred. ^{6 7}

The least term is, in one view, a single day. Most jurists set no upper limit and leave it to the judge; some Shafiis set six months, others a year. ⁷

Jurists distinguish a short detention (under a year) from a long one (a year or more). ⁷

A judge may leave the term open and tie release to repentance, as with a man who sells wine until he repents, or rebels until their repentance is known. Life detention is also recorded: Uthman had Dabi ibn al-Harith held until he died, and Ali ordered that a man who held another for a killer be held until death. ^{8 9}

Detention ends at death. If a person goes insane after the offence, most jurists halt it; the Hanbalis do not. A pardon by the person wronged ends detention for a private right, and intercession is allowed before or after the order if it causes no harm. ^{9 10}

Detention is a pure deterrent under ta'zir and does not expiate the offence, unlike the fixed penalties which expiate their perpetrators. ¹⁰

Detention for security covers suspicion, precaution and enforcing another penalty. Most jurists allow detention of a suspect where strong evidence exists, and an unknown person may be held until his case is clear. Jurists differ over whether the ruler alone or also the judge may order it. ^{11 12 13}

Detention for precaution protects the public from a harm expected if the person is left free and does not require a suspicion. Examples include holding a person whose evil eye harms people, and holding the women and children of rebels. ¹⁷

Execution may be postponed while a person is ill, pregnant, in childbed or nursing, and a suspect of a fugitive may be held. A killer may be held while the victim's heirs include a minor or absent person, until the absent heir comes or the minor reaches maturity. ^{17 18}

Al-Qarafi lists eight grounds for detention, among them holding the perpetrator while the victim's guardian is absent, holding a runaway slave, holding a person who refuses a due right, and holding a person whose case is unclear. ^{18 19}

Jurists differ about holding a killer whose victim's heirs pardon him. The majority do not detain him, while the Malikis flog him and imprison him for a year. ²⁰

Jurists assign women a separate place of detention, guarded by women or by a trustworthy man where no women's prison exists. ^{14 15}

An ambiguous (khuntha mushkil) detainee is held alone or with a mahram, not with men or women. ¹⁴

On juveniles: Malikis, Shafiis and one Hanafi view hold that a minor is not jailed for debt but disciplined; a minority of Hanafis allow detention where the minor was authorised to sell and wronged others. ¹⁵ Some hold a minor apostate detained until he repents, and minor rebels held until the war ends. ²¹

Jurists separate those held for debts from those held for crimes, and classify criminal prisoners into the immoral, thieves and those guilty of bodily offences. ^{21 22}

Detention is normally collective, but a judge may isolate a prisoner alone in a room where it serves a purpose. ²² Detention under house arrest is permitted, as with restraining a person who harms others by the evil eye in his own home. ²²

A sick prisoner who can be treated inside is not released. Where treatment is not possible inside, there are three views: release to protect life, release only on surety, or treatment inside. Umar ibn Abd al-Aziz urged that sick prisoners be looked after. ²³

On whether a prisoner may leave for Friday and Eid prayers, opinion is divided; where the conditions for Friday prayer are met inside, it may be held there. ^{23 24} On work, the Shafiis and Hanbalis allow it, while the accepted Hanafi view forbids it so that detention keeps its force. ²⁴

Detention does not remove legal capacity: a prisoner may buy and sell, and a sale made under compulsion may be annulled. ²⁴ Abu Hanifa held that a prisoner's pledge may stand, the majority holding it depends on the judge and creditors. ²⁵ A gift of property by a prisoner sentenced to death is valid only up to a third. ²⁶

Views differ on whether a detained husband may have intercourse with his wife. Detention does not bar a husband from maintaining his wife, but views differ on whether a detained husband's wife is owed maintenance. ^{26 27} Detention for a right the husband can discharge is counted toward the oath of abstention (ila'), while detention of the wife is not; the rules on imprecation (li'an) require prompt denial, with detention an accepted excuse for delay. ^{27 28}

A detained party brought for a claim may appoint a representative to answer when he cannot appear; likewise a detained witness may appoint someone to give his testimony. ^{28 29}

Discipline aims at correction, not humiliation or destruction. Forbidden: mutilation, striking the face, chains on the neck, burning, choking or drowning, starvation, exposure to extreme heat or cold, stripping, barring wudu or prayer, insulting him, and setting animals on him. ^{29 30} Torture by oil, insects or sun-exposure is not permitted; discipline is by whip or imprisonment. ³⁰

A prisoner who goes mad is released while the madness lasts (Malikis, Hanafis and Shafiis); the Hanbalis hold that madness does not bar discipline. ³⁰ A prisoner who attacks a guard is treated as an aggressor and first warned, then restrained with the least force needed. ³¹

A jailer should be trustworthy, shrewd, pious and gentle; for women's prisons piety is more important. Ali is reported to have employed the Sababija, men known for their strength, as guards in Basra. ^{31 16} The state should oversee prisons and their conditions; Abu Yusuf held that a judge's first duty on taking office is to review the prisons. ¹⁶

The article ends at the next heading, "Habl al-Habla", on p.6789. ¹⁶