Excluding the State Employee from Executive Imprisonment of a Debtor A Fundamental Study in Light of Shari'ah Intentions

Abstract

The study aimed to introduce a case of a debtor’s imprisonment, which is if the debtor is a state employee, and her/his inclusion in the exemption from imprisonment for debt in the executive law as a means of pressure on him to compel him to fulfill his obligation to the creditor, as well as forcing him to carry out the sentence by deducting his salary and allowances rather than by holding him in custody, in deference to the greater good put ahead of self-interest. This is a matter of shari'ah and consideration of its intentions in achieving welfares and preventing mischiefs, in addition to achieving the purpose of imprisonment without having to resort to it, taking into account the preservation of the right of the creditor and within the conditions and controls of the executive law. In particular, this is a matter of recent jurisprudence, which there is no text from the Holy Koran, the Prophetic Sunnah or the consensus that deals with. Also, there is no evidence from the Islamic Shari'ah to prevent or prohibit it. Yet, it is a matter of judgment that has its justifications. The study concluded, after citing evidence and justifications, that the debtor may be excluded from detention if he is a State employee under conditions and controls, and that he is compelled to carry out the sentence against him to the creditor by deducting his allowances and salary. In addition, it is one of the jurisdictions of the ruler in terms of Sharia, if he realizes in it the attainment of shari'ah intentions in achieving welfares and preventing mischiefs. When a judge gives a ruling after having tried his best to decide correctly and is right (in his decision), he will have a double reward; and when he gives a ruling after having tried his best to decide correctly and is wrong (in his decision), he will have a single reward.