Ta’azir

Definition
Ta’zir is one of the three major types of punishment under Shariah Criminal Law. It is the
punishment inflicted in cases of crimes for which the law has not enacted written penalties. The rules
relating to it differ in accordance with the qadhi’s view of the seriousness of the offence, the offender’s
background, the public interest and welfare in deterring such conduct. It aimed at preventing a criminal from
committing crime with the vision and mission of reforming of the criminal.
Hanafi scholar Kasani stated that “crime which has no specified punishment in shariah. It is a crime
either against the right of God such as abandoning the prayer and fasting, or against the right of an
individual such as harming a Muslim with a word or deed.” Maliki jurist Khurashi stated that
“punishment [for a crime] which has no [specified retribution]. It differs according to people and their words
and deeds. Besides, Hanbali jurist Ibn Qudama provided that “legal punishment for a crime no had”
For ta’zir punishment, the judge or ruler has the authority to determine the punishment. The judge or
ruler also has the discretion to forgive ta’azir offenses. Ibn Humam provided that “A man came to the
Prophet and said ‘I met a woman and touched her but I did not have sexual intercourse with her, ‟the
Prophet asked him ‘Do you pray with us?’ to which he replied ‘Yes,’ the Prophet, then, recited the Quranic
verse: ‘Virtues clean vices’. Besides, Surah An-Nisa (4):16 stated that “And as for the two who are guilty
of indecency from among you, give them both a punishment; then if they repent and amend, turn aside from
them; surely Allah is Oft-returning (to mercy), the Merciful.”
There are several types of situations in which ta’azir punishment will be imposed instead of
imposing the hadd punishment. Firstly, criminal acts which do not satisfy the requirements of hudud and
qisas offences. For example, the requirement for theft is to be penalized under Hudud law. However, if the
requirements to conclude the crime or the means of proof is missing, then the offence of theft will be
penalized under ta’azir. Secondly, criminal acts which normally punishable by hudud, is then to be punished
under ta’azir law due to extenuating circumstances. For example, doubt arise when there is a failure of proof
at a trial, or due to insufficient of witnesses. Next, any act condemned by the Shariah or found contrary to
the public welfare and public policy and that is not subject to hudud or qisas. For example, breach of trust by
a public official, consumption of pork, and usury. Lastly, acts, which violate Islamic norms and values such
as obscenity, provocative dress or wife’s refusal to obey her husband.

Example of Quranic sanctions on Taazir crimes:

1. Prohibition of certain edibles: 禁止某些食物

Surah An-Nisa (4):16 states that “And the two among you who commit this sin—discipline them. If they
repent and mend their ways, relieve them. Surely Allah is ever Accepting of Repentance, Most Merciful.”
Surah An-Nisa (4):34 states that “Men are the caretakers of women, as men have been provisioned by
Allah over women and tasked with supporting them financially. And righteous women are devoutly obedient
and, when alone, protective of what Allah has entrusted them with. And if you sense ill-conduct from your
women, advise them ˹first˺, ˹if they persist, ˺ do not share their beds, ˹but if they still persist, ˺then discipline
them ˹gently˺. But if they change their ways, do not be unjust to them. Surely Allah is Most High, All-
Great.”
Surah Al-Maidah (5):3 provides that “Prohibited to you are dead animals, blood, the flesh of swine, and
that which has been dedicated to other than Allah, and [those animals] killed by strangling or by a violent
blow or by a head-long fall or by the goring of horns, and those from which a wild animal has eaten, except
what you [are able to] slaughter [before its death], and those which are sacrificed on stone altars, and
[prohibited is] that you seek decision through divining arrows. That is grave disobedience. This day those
who disbelieve have despaired of [defeating] your religion; so fear them not, but fear Me.”
Surah Al A'raf (7):157 provides that “Those who follow the Messenger, the unlettered prophet, whom they
find written in what they have of the Torah and the Gospel, who enjoins upon them what is right and
prohibits them from what is wrong and makes lawful for them what is good and forbids them from what is
evil and relieves them of their burden1 and the shackles which were upon them.”
It has been related on the authority of Jabir that they slaughtered horses, mules and donkeys during the battle
of Hunain. The Prophet prohibited to eat mules and donkeys and did not prohibit eating of horse. It has also
been related on the authority of Ibn Abbas that Prophet prohibited the eating of the birds and animals of prey
having talon or claw. Again, the Holy Prophet said, “The dog is unclean and its price is unclean”
Thus, eating any of these prohibited edibles or its trade is an offence liable to ta’zir
2. Breach of trust
Whether XXX had committed breach of trust against XXX
Trust or also knowns as Al-Amanah means trustworthiness, loyalty, faithfulness, integrity and
honesty. While trust of property refer to any goods or property that a person keeps with someone for safe
custody. For example, one keeps a valuable with another person solely for its safekeeping and it must be
returned after the use is over. Every Muslims are obligated to practice this concept in their daily life.
Amanah is considered by the Prophet (SAW) as a sign of faith and breaching of amanah is a sign of
hypocrisy. The elements of al-amanah includes something that are granted to a person to be performed or
properly cared for. If errors or treachery were to happen, the person who had committed the breach of trust
will be held responsible.
Surah An-Nisa (4):58 states that “Indeed, Allah commands you to render trusts to whom they are
due and when you judge between people to judge with justice. Excellent is that which Allah instructs you.
Indeed, Allah is ever Hearing and Seeing.” Besides, Surah Al Anfal (8):27 states that “O you who have
believed, do not betray Allah and the Messenger or betray your trusts while you know [the consequence].”
Surah An-Nisa (4):2 salso tates that “And give to the orphans their properties and do not substitute the
defective [of your own] for the good [of theirs]. And do not consume their properties into your own. Indeed,
that is ever a great sin.”
Besides, the Hadith had reported the Prophet said “Three are the signs of the hypocrite: When he
talks, he lies; when he makes a promise, he breaks it and when he is given a trust, he betrays.”. Moreover,
another Hadith also reported the Prophet said “Someone who cannot keep a trust is devoid of faith.
Someone who cannot keep an agreement is devoid of religion.” Moreover, the Prophet said, “He who
breaches the trust is not a complete believer”.
Also Abu Umamah al Bahili also provided that “There is a place for any habit in the nature of a true
Believer except falsehood and breach of faith.” Imam Ahmad stated that “Be informed! Those who breach
of the trust given are not among the believers.” Hence, this Hadith has made it clear that the act of breach of
trust should not be committed by a Muslim. Imam Ja’far al-Sadiq provided that “If a person makes good
the trust in his possession, he unties a thousand knots that had tied him to Hell. So, do not be sluggish in
delivering trusts. When one becomes a trustee, Iblīs orders a hundred of his assistants to follow him so that
they may deviate him and suggest him to defalcate. They continue to pursue him till he is doomed. Except
the one who is saved by Allah.”
Thus breaching of trust is an offence punishable with ta'zir
APPLY
From the facts, Amirul is an employee of Jamal and he had been given the authority to manage
Anything-in-a-Sandwich Restaurant’s bank account. Jamal had put his trust in Amirul as his employee to
manage his restaurant’s account, Amirul had breached such trust by transferring some of the money to his
own personal account. Amirul’s act of obtaining wealth by fraudulently transferring money from Jamal’s
business account. goes against the teachings of Islam which prohibits a Muslim to consume another person’s
wealth through fraudulent and illegal means. Amirul’s act of committing breach of trust against his own
employer indicates that he is a hypocrite. Amirul shall be held responsible for the losses suffered by Jamal
due to his breach of trust.

3. Fraud in weights and measures

Falsification language or known as tazwir means lies and falsehood or in other words, the words and
actions that deviate from the truth. Tazwir is the act of intentionally modifying the original state of a
document to deceive either the act of falsifying has obviously been done such as deleting some words or
changing the meaning of the content where the changing can lead to ‘dharar’ destruction or injury to the
certain public or individual person. While forgery can be defined as “Changing the original meaning of a
document with the intention to deceive by adhering to the guidelines by law and the amendment can cause
destruction to others
Surah Al-Mutaffifin (83):1-3 states that “Woe to those who give less [than due]. Who, when they
take a measure from people, take in full. But if they give by measure or by weight to them, they cause loss.”
Surah Al-Isra (17):35 states that “And give full measure when you measure, and weigh with an even [i.e.,
honest] balance. That is the best [way] and best in result.” Besides, Surah Al-Baqarah (2):188 stated that
“Do not usurp one another’s possessions by false means, nor proffer your possessions to the authorities so
that you may sinfully and knowingly usurp a portion of another’s possessions” Islam prohibits every type of
fraud and deception. Includes the manipulation and fraudulent in financial reporting since it is providing
false information and causing losses to the other parties.
Besides, according to a Hadith related on the authority of Abdullah Ibn Umar, those who bought
provisions wholesale without measures or weights in order to sell them again were punished by whipping in
the time of the Prophet (s.a.w.).” Thus using false weight and measure is an offence liable ta'zir.
4. Charging and taking interest
Surah Al Baqarah (2):275 states that “Those who take ribā (usury or interest) will not stand but as
stands the one whom the demon has driven crazy by his touch. That is because they have said: “Sale is but
like ribā.’’, while Allah has permitted sale, and prohibited ribā. So, whoever receives an advice from his
Lord and desists (from indulging in ribā), then what has passed is allowed for him, and his matter is up to
Allah. As for the ones who revert back, those are the people of Fire. There they will remain forever.”
Besides, Surah Al Baqarah (2):276 states that “Allah destroys ribā and nourishes charities, and Allah does
not like any sinful disbeliever.” Surah Al Baqarah (2):278 also states that “Surely those who believe and
do good deeds, and establish Salāh (prayer) and pay Zakāh will have their reward with their Lord, and there
is no fear for them, nor shall they grieve.”
Moreover, the Holy Prophet (s.a.w.) cursed the receiver and the payer of interest, the one who
records it and the one who is a witness to such transaction and said, “They are all alike (in guilt).” The Holy
Prophet said at the occasion of his last pilgrimage, “The interest prevailing in pre-Islamic period is annulled.
The first interest that I annul is the interest that accruing to Abbas Ibn Abdul Mutalib, it is cancelled
completely. Thus taking and granting interest is an offence punishable with ta'zir.
5. Concealment of evidence
Concealment of evidence in case when the witness is summoned by the court for giving evidence is
an offence liable for ta’azir. Surah Al Baqarah (2):283 states that “If you are on a journey, and find no
scribe, then (you may have resort to holding something as) mortgage, taken into possession. However, if one
of you trusts the other, then the one who has been trusted should fulfill his trust, and should fear Allah, his
Lord. Do not conceal testimony. Whoever conceals it, his heart is surely, sinful. Allah is All-Aware of what
you do.” Besides, Surah An-Nisa (4):135 states that “O you who believe, be upholders of justice -
witnesses for Allah, even though against (the interest of) your selves or the parents, and the kinsmen. One
may be rich or poor, Allah is better caretaker of both. So do not follow desires, lest you should swerve. If
you twist or avoid (the evidence), then, Allah is all-aware of what you do.”

6. False Evidence
Surat Al Furqan (25):72 states that “And [they are] those who do not testify to falsehood, and when
they pass near ill speech, they pass by with dignity.” Besides, Surah Al-Hajj (22):30 states that “Having
said that, whoever observes reverence of the things sanctified by Allah, it is good for him with his Lord. And
permitted to you are the cattle, except those mentioned to you through recitation (of the verses). So refrain
from the filth of the idols and refrain from a word of falsehood.”
The Prophet (s.a.w.) in a hadith has equated false testimony with partnership with God and the
disobedience of the parents and declared it a grave sin. Thus giving false evidence is an offence punishable
with ta'zir.
7. Abuses, insults and defamation
Surah Al-Hujurat (49):11 states that “O you who have believed, let not a people ridicule [another]
people; perhaps they may be better than them; nor let women ridicule [other] women; perhaps they may be
better than them. And do not insult one another and do not call each other by [offensive] nicknames.
Wretched is the name of disobedience after [one's] faith. And whoever does not repent - then it is those who
are the wrongdoers.” Surah Al An'am (6):108 states that “And do not insult those they invoke other than
Allah, lest they insult Allah in enmity without knowledge. Thus We have made pleasing to every community
their deeds. Then to their Lord is their return, and He will inform them about what they used to do.”
The Prophet (s.a.w.) said, “A Muslim is the brother of another Muslim and thus he will neither
depress him nor deride him nor insult him.” Prophet (s.a.w.) also said, “The blood, prestige and property of
a Muslim are sacred for another Muslim.” According to a tradition related by Abdullah Ibn Abbas, the
Prophet (s.a.w.) is said to have threatened with 20 lashes any man who insults another by calling him soft or
effeminate. Similarly, any insult, scorning or defamation is an offence punishable with ta'zir.
8. Bribery
Whether XXX’s act of … amounted to bribery.
Under Malaysian Anti- Corruption Commission Act 2009, instead of the word bribe, the act
defines the word “gratification,” which includes both pecuniary and non-pecuniary bribes. Generally,
gratification is defined as money, donation, gift, any valuable thing of any kind, any forbearance to demand
any money or money’s worth or valuable thing, any other service or favour of any kind, or any offer,
undertaking or promise of any such gratifications. In Islam, we must avoid any business transaction that
involves bribery because it corrupts our faith and attitude towards Halal earning.
The prohibition of bribery in Islamic law can be ssen in Quran and Sunnah. Surah Al Baqarah
(2):151-152 provided that “And do not obey the order of the transgressors, who cause corruption in the land
and do not amend.” Surah Al Baqarah (2):188 states that “Do not eat up each other’s property by false
means, nor approach with it the authorities to eat up a portion of the property of the people sinfully, while
you know (that you are unjust in doing so).” Besides, Surah Al Baqarah (2):205 states that “And when he
goes away, he strives throughout the land to cause corruption therein and destroy crops and animals. And
Allah does not like corruption.”
Surah Al-Maidah (5):42 states that “They are listeners to the fallacy, devourers of the unlawful. So,
if they come to you, judge between them or turn away from them. If you turn away from them, they can do
you no harm. But if you judge, judge between them with justice. Surely, Allah loves those who do justice.”
Further, Surah Ar-Rum (30): 41 also provided that “Corruption has appeared throughout the land and sea
by [reason of] what the hands of people have earned so Allah may let them taste the consequence of what
they have done that perhaps they will return to righteousness.” Then Abu Huraira reported in Sunan al-
Tirmidhī 1336 that “The Messenger of Allah, peace and blessings be upon him, cursed those who offer
bribes and accept bribes in judgments.” The second caliph, Umar Al-Khattab, also fought bribery and
corruption of officials through expropriation of personal wealth accumulated during the tenure of office.
Moreover, the Prophet (s.a.w.) said, “The one who gives bribes and the one who is bribed will be in
hell.” The Prophet also said, "It is bribery to give gift to an officer." The Prophet (s.a.w.) also said, "Allah
curses the one who gives bribe, the one who receives the bribe and the one who settles this matter between
them" Once Prophet (s.a.w.) sent Ibn Al-Lutbiah to collect zakat. When he came back he said, "This is
zakat and this is what was given as gift to me." The Prophet (s.a.w.) said, "What happened to the person
whom we appointed for the collection of zakat and when he returned, he said, "This is zakat and this was a
gift to me." Let him sit in his house and see as to who will give hiím gift to him." Hence, it cleary shows that
bribery is an offence punishable with ta'zir.
In order to be liable under bribery, 3 elements must be fulfilled. Firstly, the actus reus where there is
an act of bribery. It may involve commission and negative omission acts. Then, the mens rea of offender
which he has the knowledge of all elements instituting the crime and a will directed towards their
realization. Then, there must be witnesses or evidence to proof there is bribery involved.
APPLY
Harun is a worker of the bank; it is his obligation to submit Jamal’s loan application. But instead of
performing his own responsibility he had asked for RM5000 from Jamal and promised him that he will
100% get the loan and that it would speed up the loan application as well. Harun has the knowledge to
receive bribe as he had received the said bribe from Jamal. Moreover, he is the one who had asked Jamal to
pay him RM 5000 in order to speed up the loan application. The actus reus and evidence is fulfilled when he
received the money from Jamal and kept it to himself. The transaction and the cash received are solid
evidence.
9. Gambling
Surah Al-Maidah (5):90 states that “O you who have believed, indeed, intoxicants, gambling,
[sacrificing on] stone alters [to other than Allah], and divining arrows are but defilement from the work of
Satan, so avoid1 it that you may be successful.” Surah Al-Maidah (5):91 states that “Satan only wants to
cause between your animosity and hatred through intoxicants and gambling and to avert you from the
remembrance of Allah and from prayer. So will you not desist?” The Prophet (s.a.w.) said, "He who swears
and doing so says, by Al-lat and Al-Uzza! he should say, "There is no god but God." And he who says to his
companion, Let me gamble with you, he should mak a contribution to charity." Gambling is thus offence
punishable with ta’zir.
10. Spying and backbiting
Surah Al-Hujurat (49):12 states that “O you who have believed, avoid much [negative]
assumption. Indeed, some assumption is sin. And do not spy or backbite each other. Would one of you like
to eat the flesh of his brother when dead? You would detest it. And fear Allah; indeed, Allah is Accepting of
repentance and Merciful.” Surah Al-Mumtahanah (60):1 states that “O you who have believed, do not take
My enemies and your enemies as allies, extending to them affection while they have disbelieved in what
came to you of the truth, having driven out the Prophet and yourselves [only] because you believe in Allah,
your Lord. If you have come out for jihad in My cause and seeking means to My approval, [take them not as
friends]. You confide to them affection, but I am most knowing of what you have concealed and what you
have declared. And whoever does it among you has certainly strayed from the soundness of the way.” Thus,
spying and backbiting is an offence punishable with ta’zir.
 11. Entering other’s house without permission
Entering other’s house without permission and violating privacy of others is an offence liable for
ta’zir. Surah An Nur (24):27 states that “O you who have believed, do not enter houses other than your
own houses until you ascertain welcome and greet their inhabitants. That is best for you; perhaps you will be
reminded.”

12. Spreading of obscenity

Surah An Nur (24):19 states that “Indeed, those who like that immorality should be spread [or
publicized] among those who have believed will have a painful punishment in this world and the Hereafter.
And Allah knows and you do not know.” Surah Al-Isra (17):32 states that “And do not approach unlawful
sexual intercourse. Indeed, it is ever an immorality and is evil as a way.” Surah Al An'am (6):151 states
that “Do not associate anything with Him (as His partner); and be good to parents, and do not kill your
children because of poverty - We will give provision to you, and to them as well - and do not go near
shameful acts, whether they are open or secret; and do not kill a person whom Allah has given sanctity,
except rightfully. This He has enjoined upon you, so that you may understand.” Thus, demonstrateon and
spreas of obscenity is an offence to be punished with ta’zir.

13. Misuse of orphan’s wealth

Surah Al An'am (6):152 states that “And do not come near the wealth of the orphan—unless
intending to enhance it—until they attain maturity. Give full measure and weigh with justice. We never
require of any soul more than what it can afford. Whenever you speak,1 maintain justice—even regarding a
close relative. And fulfil your covenant with Allah. This is what He has commanded you, so perhaps you
will be mindful. Surah An-Nisa (4):2 states that “And give to the orphans their properties and do not
substitute the defective [of your own] for the good [of theirs]. And do not consume their properties into your
own. Indeed, that is ever a great sin.” Surah An-Nisa (4):10 states that “Indeed, those who unjustly
consume orphans’ wealth ˹in fact˺ consume nothing but fire into their bellies. And they will be burned in a
blazing Hell!” Misuse of orphan’s wealth is therefora an offence punishable with ta’zir.

14. To gain other’s wealth by illegal means:

Surah An-Nisa (4):29 states that “O believers! Do not devour one another’s wealth illegally, but
rather trade by mutual consent. And do not kill ˹each other or˺ yourselves. Surely Allah is ever Merciful to
you.” The Prophet (s.a.w.) said, "Whoever takes possession of any part of land without having a right to it,
shall be as a punishment for it sunk down into the earth on the Day of resurrection to the depth of seven
earths." The Holy Prophet said, "Your blood, your property and your prestige are sacred as this day (day of
Arafat) and this city (Makkah). Thus gaining the property of another person with illegal means is an offence
punishable with ta'zir.

15. Breach of contract

Surah Al-Maidah (5):1 states that “O believers! Honour your obligations. All grazing livestock has
been made lawful to you—except what is hereby announced to you and hunting while on pilgrimage.
Indeed, Allah commands what He wills.” Surah Al-Isra (17):34 provides that “Do not come near the wealth
of the orphan—unless intending to enhance it—until they attain maturity. Honour ˹your˺ pledges, for you
will surely be accountable for them.” The Prophet said, "The Muslims have to fulfil the conditions mutually
agreed upon in a contract except the condition which prohibits what is permissible in Shariah or permits
what is prohíbited in Shariah". Breach of contract is thus an offence punishable with ta'zir,

16. Slander
Slander is also an offence liable for ta’zir. Surah An-Nisa (4): 112 states that “And whoever commits an
evil or sinful deed then blames it on an innocent person, they will definitely bear the guilt of slander and
blatant sin.”

17. Disobedience of a woman to her husband

Surah An-Nisa (4):34 states that “Men are caretakers of women, since Allah has made some of them
excel the others, and because of the wealth they have spent. So, the righteous women are obedient, (and)
guard (the property and honor of their husbands) in (their) absence with the protection given by Allah. As
for women of whom you fear rebellion, convince them, and leave them apart in beds, and beat them. Then, if
they obey you, do not seek a way against them. Surely, Allah is the Highest, the Greatest.” Disobedience of
a woman to her husband is thus an offence punishable with ta'zir.
Since … is a crime that falls within the punishment under Taazir, which depends on the discretion of the
ruler.

Example of Hadith on Taazir crimes:

“No one will be punished with more than 10 stripes of the whip except where the offence is one for which
God has fixed punishment”.
“He who punished a convict with hadd punishment in a crime not liable to hadd, is a transgressor”.
Punishments:
The objectives of the punishment were prevention of the recurrence of the crime, deterrence to others, and
reform of the guilty party. The judge attempted to accomplish those objectives by varying the punishment
according to the circumstances of the case, of the convicted party, and of society. Consequently, acts of
preparation and repentance by the offender are relevant to a judge's sentence.
Punishments vary with the nature of crime and it include a prison term, flogging, a fine, banishment, and
seizure of property.
Generally, except the Maliki school of thought, no punishment in ta’azir can exceed a hudud punishment.
Although the death penalty is to be used only in extreme cases, all the school of thoughts allow it.

Punishments:
1- Whipping stripes
☼ Hanafi - thirty-nine lashes
☼ Shafi’i - less than 40 for a free person
- less than twenty for a slave
☼ Hanbali - limits ta’azir to ten strokes
☼ Maliki – no maximum limit for ta’azir, leave to the discretion of the qadi
2- Imprisonment
3- Banishment
4- Fine
5- Death punishment
6- Other punishments