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This article has been written by Surupa Hossain Bhuiyan, pursuing the Diploma in Cyber Law, FinTech Regulations and Technology Contracts from LawSikho. This article has been edited by Smriti Katiyar (Associate, Lawsikho). 

Introduction

Our new way of life is built around computers and communication, thanks to the explosive rise of the high-technology industry. The rise of Islamic websites on the Internet such as islamqa.info/en,. muslimheritage.com, peacetv.tv, islamicmarkets.com, www.isdb.org, etc some of which are dedicated to Islamic education and propagation while others are of a more commercial or entertainment nature, demonstrates the enthusiasm of certain Muslims to embrace such technology.

On one hand, the use of information technology has indeed transformed the way people communicate and receive information around the world. On the other hand, this has led to a proliferation of computer-related crimes such as theft, fraud, forgery, and general malfeasance as well as classic criminal activities that were previously restricted to organised crime.

In general, computer crime can be defined as a criminal activity carried out with the aid of computer technology. The legal system has lagged behind technological advancements, failing to grasp and adapt as quickly as it should have. The key concern here is how Islamic law, which was founded in the seventh century, can deal with crimes stemming from the use or misuse of new technology and offer proper regulations for the protection of its computer users.

Cyber-sectarian conflict

The growth of new forms of crimes and criminals is certainly aided by the internet. The term “cybercrime” refers to a wide range of virtual illicit activities that take place in cyberspace, such as hacking and communications network sabotage. Unfortunately, an increase in so-called “cyber-sectarian conflict” has emerged from the rising Muslim presence in cyberspace. In September 2008, Sunni hackers targeted more than 300 Shia websites, including Grand Ayatollah Ali al-main Sistani’s website (http://news.bbc.co.uk/hi/arabic/news).

In the Islamic world, the issue of hacktivism (derived from combining the words ‘hack’ and ‘activism’ ) has rarely influenced religious consciences.  Religious officials did not condemn hacktivism, giving the impression that it was done to protect Islam. As a result, the internet has become a hotbed of Islamist extremism, fanaticism, and bloodshed.

‘Cyber-Islamist Advocacy’ and ‘Islamist Hacktivism’ are two sorts of cyber-sectarian warfare. The first type includes religious reading, debates, email awareness, lectures, and movies. Cyber-attacks against religious and non-religious websites are referred to as the latter. Cybercrime includes hacking, the distribution of viruses, Trojans, and worms, cyber-vandalism, password thefts, and denial of service assaults (DoS). Academics have paid the most attention to the first category. The cyber-Islamist environment, cyber-terrorism, cyber-Jihad, and a number of other cyber-Islamic issues, for example, have all been extensively researched.

Muslim hackers regard Shariah as the supreme legal system and are therefore critical to cybercrime. Muslims believe that Allah is the only one who can pass laws and that anyone who refuses to accept his law, is a non-believer. Hence, Shariah’s participation in cybercrime is crucial though cybercrime is a relatively new phenomenon.

The basis of the Islamic law or Shariah law

In Islam, the basis of law is the Quraan (Islam Holy Book) and Hadith (Prophet sayings). Shariah law is the name given to Islamic law, and Shariah means “way to follow God’s Law.” It is a set of laws, concepts, teachings, and disciplines developed from Islam’s two principal sources, the Qur’an and the Sunnah. Islamic common law dates back to the arrival of Prophet Mohammad (Peace be upon him) in the seventh century when Islam officially began. Shariah law has an all-encompassing or eclectic approach to guiding people in their daily lives. All public and private conduct is governed by Shariah law. Islam’s Shariah law has a worldly punishment as well as an afterlife.

The Islamic law’s basic premise is to safeguard Islam’s five essential necessities: religion, life, intellect, offspring, and property. Aside from protecting these five necessities, Islam focuses on awakening human awareness through moral education, which also helps to establish religious consciousness in the human soul. Second, Islamic criminal law is based on the idea that punishing a criminal serves as a deterrent to other criminals in the future.

Crimes in Shariah/Islamic law

In contrast to English common law, judges in Shariah are not bound by precedents, regulations, or previous rulings. The most serious crimes and punishments in Shariah require a very high level of proof. If the proof fails to meet the requirements, the crime must be classified as a lesser offence. Crimes in Islam are divided as follows:  

In Islam, crimes/ offences are classified as follows:

  • Hadd offences:  Murder, apostasy, declaring war on Allah and His messengers, theft, adultery, defamation, a false charge of adultery or fornication, robbery, and intoxication are the most heinous crimes in Shar’iah law. These are considered acts of blasphemy against Allah.
  • Tazir offences: It includes acts that are punishable because the perpetrator disobeys Allah’s commandments and laws and it is crime against society.
  • Qesas offence: It is the crime of retaliation. The victim has the right to seek retribution and reprisal if you commit a Qesas crime. The first statutory “Code of Hammurabi” and the law of Moses in the form of “an eye for an eye” both contain the concept of retribution. “However, it is preferable to forgive,”in Islam.

The assumptions of vengeance are still present in today’s common law. Similarly, Qesa’s crime is straightforward retribution: if a person commits a crime, he is aware of the consequences. In the same way that “civil law” is used in many countries around the world, Qesas law mixes criminal and civil hearings into one. In both common and civil law, Qesas offences are compensated through restitution. Payment (Diya) is required for every offence under the Qesas law. Diya may be traced back to the time of the Prophet Mohammad when there were various local families, tribes, and clans. The culprit/offender will compensate Diya if the victim is still alive. If the victim is no longer alive, the money is given to their family, clan, or tribe. According to the assumption, victims will be reimbursed for their losses.

Islam in cyberspace

With the advancement of technology, the mindset of Muslims is now changing, as well. There are numerous Islamic websites that might be found all over the internet. Muslims in cyberspace have a common platform for interaction and, more significantly, for the dissemination of their own opinions. Despite the fact that certain Muslim clerics issued a Fatwa (religious ruling) forbidding Muslim internet users from accessing chat rooms, this is still the case. On the other hand, for Muslims, cyberspace has become a common location to interact, socialise, and, most importantly, spread their views. It is simple to identify Islamic websites that are specifically developed and optimised to defend Islam against its adversaries. Through online, new features of crimes and criminals are being developed.

Although Shariah does not specifically criminalise any form of cybercrime, it does contain general criminalisation guidelines. The second source of Shariah law (the Prophet Tradition), according to traditionalists, gives strong support for the criminalization of online crime. Scholars have used a number of Hadiths to criminalise developing offences, such as the Prophet’s statement that “no damage shall be inflicted [on anyone] nor retaliated [against anybody].” Because cybercrime causes harm to computer systems or indirectly to an individual’s property – one of the fundamental five values – the Hadith provides a legal foundation for criminalising it.

Muslims believe that the Quran and Hadiths should be the foundation of most, if not all, laws. This is because it is believed that Muslims feel safer in this way and are aware of the law’s boundaries. Such law will otherwise be driven by a group of individuals, such as parliament, which may have flaws.

Saudi Arabia follows traditional Shariah law, a highly strict interpretation of Shariah known as Wahhabism. Though Saudi Arabia is controlled by Islamic law, the Anti-Cybercrime Act was passed by the Council of Ministers. This new act was enacted to address a modern situation, yet it is primarily founded on the fundamental principles of Islamic law. The Anti-Cybercrime Act does not define Internet fraud precisely.

Muslims resist secularisation in their countries because they think Islam is more than just a religion; it is a way of life, and Muslims’ daily activities are governed by Shariah. Because Islamic law is not a Muslim-made law, it can be followed in any country, even if the government does not declare it or believes that what they have done is in violation of Islamic law. Because Shariah contains numerous advantages, objectives, and goals, anything that is unjust or harmful is not Shariah. It changes according to the rewards, situations, times, locations, and ambitions of the individual. Nonetheless, the majority of scholars felt that Shariah has benefits and may be applied to any scenario, such as when it comes to cybercrime. Islamic law provides general norms for responding to cybercrime and constructing efficient countermeasures.

According to Muslim scholars, the internet has provided humanity with a new dilemma by facilitating crimes that know no bounds and leave no trace. Muslim academics claim that Islamic cybercrime legislation should exist because Muslims relate to and follow Islamic teachings that inculcate fear of God.

Conclusion

Computer crime research is not separate from computer ethics research. From cyber stalking to child exploitation, there are various types of computer crimes. Computer crime legislation is thought to be more of a preventative measure than a cure for many people in society as a whole, rather than a deterrent for a single individual. Lawmakers and theologians debate whether Islamic cybercrime should be referred to as a computer crime law or a computer crime ethics law because the goal is to work with human beings to prevent them from committing the crime rather than punishing them. Shariah law is rich with general principles as well as its objective urge to its followers to develop an efficient response to cybercrime, but the extreme groups: Muslim scholars, traditional and reformists face the toughest question of all that what can be done to bring the muslim law in alignment with the modern contemporary criminalisation? While traditionalists always defend the capability of Shariah law to address contemporary issues, they appear not prepared or even clueless at times so as to make a way forward and how to find responses to these comprehensive legal issues. On the other hand, reformists have tirelessly worked in making a paradigm shift and have brought sharia law in harmony with the contemporary legal issues to some extent, but none of the groups have any significant contribution in the space of cyber crime. This situation will give Muslim hackers and cyber-terrorists justification to attack cyberspace which should be prevented. 

References


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