Islam set - Legal consequence for secret-disclosure in Islam

"The Islamic Vision of Some Medical Practices"

LEGAL CONSEQUENCE FOR
SECRET -DISCLOSURE IN ISLAM

Dr. Tawfiq Al-Wa'i
Professor
Faculty of Sharia & Islamic Studies
Kuwait University

Keeping of secrets is a natural thing that is cherished by human nature. Every person loves to keep as many secrets as he can be they good as what is traditionally quoted "Ask help in fulfilling your needs by keeping them or bad as in that which is a wrong-doing is what is kept in the bosom and one hates people to know about it".

People have kept, since early times, enumerating many shapes of virtue, some of the most eminent of them: keeping of secrets, promises, and contracts especially if they were entrusted by other people. Doctors, in the past and the present have been among the first of those who are entrusted with people's secrets. Those taking up this profession are committed to keeping secrets throughout time. Doctors of ancient Egypt and Greece had abided by it. An oath to be taken and a pledge to be adhered to by doctors before they practice this profession have been part of this commitment.

With the advent of Islam whose teachings are based on abiding by values and revivication of those which have fallen into oblivion, this commitment has been made a religion, a creed and a way of life.

Muslim doctors have abided by this. Ibn Abi Usaibia lists in his book entitled "Uyoun Al-Anba' Fi Tabaqat Al-Atiba' (Choicest Reports on Doctors Classes)" some of these pledges taken by doctors in his time, among which "..and I shall not disclose things I see or hear whilst treating patients or in any other time, which should not be talked about off limits". Ibn Abi Usaibia also lists some ethics which were taught to doctors and which they were required to adhere to, such as: prefect morality, intelligence, being careful about keeping patient's secrets, chastity, abstention from undertaking abortion and such other good morals(1).

Medical Secret Between Habit and Creed

Secrets vary in respect of significance from a person to another and from one society to another.

There may be a person with tender feelings who is affected by a thing that does not bring to anyone else. Some societies see that sex, in certain cases, does not cause embarrassment, whereas chastity - some societies deem a taboo. Certain things may be regarded as crimes during a specific period of time; then law, for instance, or custom changes and the matter completely changes.

Some laws have set forth definitions for secrets, some of which I ascribe to custom and practice, and some to defamation or detriment to dignity.

All these, undoubtedly, come under the definition of Islam of a secret. Ibn Abi Usaibia had come so near to this definition by his statement 'which should not be talked about off limits'. This is what is required in all customs, times and places. He had derived it from the Islamic tradition "about which one hates people to know". Anything - in the Muslim society - sinful or disreputable, private parts or weaknesses disclosure of which is prohibited by Allah for the good of Muslim society, is added to this. There is no difference, as far as disclosure of secret is concerned, between the doctor and anyone else.Yet, it is more emphasized and obligatory for the doctor, for he is entrusted with people's honour, private parts, weaknesses and secrets. If he discloses them, he is, besides being sinful, a betrayer of trust and delinquent of duty with which he is entrusted.

Anyone who is in a position similar to his is thus judged. There are penalties for this but which are not discussed in the present paper.

Islam has so much endeared consideration of human feelings to people, for this is a means of progression and elevation to the superiority of mankind on this Earth and for which Divine Honouring was bestowed unto Man through investing him with viceroyship, on behalf of Allah, in the earth. That is why Allah has protected man's honour so that no cover of his is ravished, nor a secret is exposed. He has legislated for him things that should be followed; among which is keeping of secrets and preservation of dignity and honour.

Kinds of Such Secrets

Ordinary Secrets:

Secrets are not the same. There are secrets that are deemed ordinary matters disclosure of which does not harm dignity, run an interest or thwart an advantageous plan. Nevertheless, it is better not to be revealed except by permission of the one to whom a secret belongs.

In this connection there is the 'Hadith related on the authority of Abdullah Ibn Omar from Omar, when his daughter Hafsa was widowed,

"I went to Othman Ibn Affan and presented Hafsa (for marriage) to him. He said, "I will Think it over". I waited for a few days, then he met me and said, "It seems that it is not possible for me to marry at present." Omar further said, "I met Abu-Bakr As-Siddeeq and said to him, "If you wish I will marry my daughter Hafsa to you". Abu-Bakr kept quiet and did not say anything to me in reply. I became more angry with him than with Othman. I waited for a few days and then Allah's Messenger asked for her hand, and I gave her in marriage to him. Afterwards I met Abu-Bakr who said, "Perhaps you became angry with me when you presented Hafsa to me and I did not give you a reply?" I said, "Yes". Abu-Bakr said, "Nothing stopped me to respond to your offer except that I knew that Allah's Messenger, may the blessings and peace of Allah be upon him, had mentioned her, and never wanted to let out the secret of Allah's Messenger, And if Allah's Messenger, had refused her I would have accepted her."

(Related by AI-Bukhari).

Anas said to Thabit:

"the Prophet came to me as I was playing with playmates. He greeted and sent me on an errand and I made delay in going to my mother. When I came to her she said: what detained you? I said: Allah's Messenger, may the blessings and peace of Allah be upon him, sent me on an errand. She said: what was the purpose? I said: It is something secret. Thereupon she said: Do not then divulge the secret of Allah's Messenger, to anyone. Anas said: By Allah, if I were to divulge it to anyone, then O Thabit, I would have divulged it to you."

(Related by Muslim & AI-Bukhari).

Ibn Hajar said: Some scholars suggested: it appeared as though that secret belonged to the Prophet's women. Otherwise if it was a sort of knowledge, no one would be entitled to conceal it. Ibn Battal said: the opinion held by the learned people is that a secret is not revealable if that will hurt the one entrusting it. The majority of them maintain that what is required to be kept of it while he is alive is no longer so when he dies unless there is something objectionable to it for him. I say: This, it seems, is divided, after death, into three categories: secrets permissible to be revealed, or perhaps recommended, even if the one entrusting would object, as it is the case when there is something in them that ennobles him, such as a miraculous deed or an outstanding virtue and the like. Secrets, disclosure of which is reprehensible in general, or perhaps prohibited, are the ones referred to by Ibn Battal. Secrets necessary to be revealed, are those that must be disclosed such as a right due to him which he has so far been not claimed it, but after he dies, should be told to its legitimate claimer (2).

It appears to me that the secret with which Anas was entrusted was an ordinary one, for a major secret that is definitely desired to be kept is not entrusted to a young child playing with mates.

Yet Anas, however, did not want to disclose the secret of the Messenger of Allah, Likewise the secret of the Prophet known by Abu-Bakr, namely the one concerning his "mentioning" Hafsa, was also an ordinary secret. If Abu-Bakr had revealed it, Omar would have been pleased with it; but he wanted to keep the secret, though it was of no major significance, until the Messenger of Allah, revealed it himself.

Non-ordinary Secrets :

There is controversy about certain things concerned with disclosure of Muslim's secret and unveiling of cover. Among these are: pursuing a Muslim's weaknesses, spying on him, defamation, backbiting, communication of evil gossip, exposing of what disgraces him and subjects him to distress and humiliation.

With respect to not exposing the Muslim and keeping his secret in what disgraces, distresses or humiliates him, whether a person knows this secret from his brother in a certain way or from the party concerned, there are traditions that necessitate, keeping such secrets, among which:

The Messenger says:

"He who relieved a Muslim from hardship Allah would relieve him from the hardships to which he would be put on the Day of Resurrection, and he who did not expose (follies of a Muslim) Allah would conceal his follies on the Day of Resurrection."

This was also relayed as:

"and he who does not expose a Muslim Allah will not expose him in this world or in the Hereafter"

(Related by Muslim.)

And the Prophet also says:

"The servant (who conceals) the faults of others in this world, Allah would conceal his faults on the Day of Resurrection."

(Related by Muslim.)

Another Hadith of the Prophet is:

"He who sees a "private part" and does not expose it, his act will be tantamount to bringing a newborn girl buried alive back to life."

(Related by Abu-Dawud & Al-Nisa'i.)

Muslim scholars have talked about "not to expose" and the relationship binding the "one who does not expose" with the "one who is not exposed, insofar as commanding what is reputable and prohibiting what is disreputable are concerned - they said: "Not exposing" neither negates commanding that which is reputable nor prohibiting what is disreputable and giving advice. Moreover, the "one who does not expose" must advise the "one who is not exposed and show him his fault and ask him to desist from disreputable things if there was any.

Conditions Concerning One Who Is Not Exposed:

Imam Al-Nawawi stipulated that one who is not to be exposed must be a person who is not known for harmfulness and corruption. But if he is corrupt it is advisable that such a person is to be exposed, for not exposing him will encourage him to do more harm, corruption and violation of what is inviolable as well as embolden others to follow suit. Rather, he must be reported to authorities if an evil that is entailed by such reporting is not feared.

Conditions Concerning That Which Is Not To Be Exposed:

All this so far concerns not exposing a sin that has been done. But as to a sin that is being committed and the culprit is seen in the act, it must be immediately denounced and the perpetrator must be prevented from it as far as it is feasible, delaying of that is impermissible. But if it is not possible to stop him, the matter should be reported to those responsible if such reporting will not bring about an evil. This is deemed an act of due advice and not a calumny.

Secondly: When sin is done openly. Al-Kamal Ibn Al-Humam states in "Fath Al-Qadeer" : 'This is about one who does not habitually commit sin and show it off. But if the matter reaches the point of announcing and showing it off and bragging about it as some do, testifying to it should be better than keeping silent about it, because the intention of Sharia is to clear the land from sins and vile deeds by restraints and obligations. And this is realized by turning penitent on the part of wrong - doers and by reprehending them. If voracity, say, for committing fornication and drinking in an indifferent and flagrant way becomes common and obvious, clearing the land of such evils by means of penitence is a propability that is countered by failure to turn penitent on the part of the evil-doers. Therefore, the other measure for realizing this objective must be taken; namely application of prescribed provisions. But, as to he who commits fornication once, or several times, covertly, timidly and repents then it is better not expose him" (4).

The Law-maker calls For "Not Exposing" and Emphasizes It.

The Legislator emphatically asks the Muslim not to expose his brother Muslim who does not do evil openly. Some scholars even made lying permissible in order not to expose the Muslim: Al-Ghazali, said 'the Prophet, may the blessings and peace of Allah be upon him, said:

"A liar is not one who tries to bring reconciliation amongst people and speaks good in order to avert dispute".

This indicates the necessity of reconciling between people. Abstinence from lying is necessary. And anything necessary does not become unnecessary except by something that is more imperative, such as when man has to resort to lying in a state of war and in not exposing the weaknesses of all the muslim army.

This is what Ibn Hajar meant when he said: 'Lying may be permissible and may be necessary. "The determinant in A-Ghazzali's opinion is: "The ill effect of lying should be compared with that resulting from telling the truth. If the latter is graver, lying then, is permissible. And if the reverse is true or its superiority in graveness is doubtful, lying, therefore, is prohibited. If the end is commendable and cannot be attained except through lying, as when one whose blood is forbidden to be shed goes into hiding when an oppressor wants to kill him, lying here is necessary. If such an oppressor inquires about a trust to seize it, lying, or denial, is necessary. If a person is asked by the ruler about sin he has covertly committed, he may lie. A person, in such a case, may deny his brother's secret.

The Prophet, may the blessings and peace of Allah be upon him, said:

"He who does not expose a Muslim, Allah will not expose him in this world or in the Hereafter".

and said,

"The person (who conceals) the faults of others in this world, Allah would conceal his faults on the Day of Resurrection".

Abu Said Al-Khudri, said 'The Prophet, said:

"Never will a Muslim see a "private part" of his brother and does not expose it, but Allah will let him enter His Gardens for this".

and the Prophet said to Hazzal who brought in Maaiz to confess to committing adultery,

"O Hazzal, had you covered (not exposed) him with your garment, it would have been better for you".

Then he went on saying: 'This is one of the most significant proofs of the Legislator's desire for not exposing sins, since adultery is the gravest of them: Four competent witnesses are required by the Legislator to testify to seeing the adulterer actually committing the act of adultery.. with penis like "the little stick when fully inserted in a Kohl bottle, and this is quite impropable. Even if Judge himself knew it for sure, he would not be in a position to reveal it.. look how Allah does not expose sinners in His creation by restricting the means of exposing them! (5).

Not To Detect A Muslim's "Private Part"

'Aura is anything that is not desired to be exposed to people whether physical, as strict pudenda or deformities, or moral, as ill doings and utterings.

Not to detect it, means refraining from spying on, looking for or being inquisitive about it. It also means abstension from unveiling its cover either by looking, listening, or by other means. For it has been covered by Allah.

The Messenger of Allah, says:

"If Allah does not expose a subject's fault in this world, He would not expose it in the Hereafter, and if He exposes it in this world, He would not expose it in the hereafter".

(Related by Al-Termizi, Ibn Maja and Al-Hakem: A "sound" Hadith.)

In Muslim's version,

"The servant (whose fault) Allah conceals in this world, Allah would conceal on the Day of Resurrection"

The Messenger, may the blessings and peace of Allah be upon him, prohibited tracing Muslims' faults. He said:

"Oh, you who have believed by their words and in whose hearts faith has never entered, never backbite Muslims, nor trace their weaknesses, for he who traces his brother's weakness, Allah will trace his, and he whose weaknesses are traced by Allah, shall be exposed by Him even if inside his own house".

The Prophet said to Mu'awiya:

"If you trace the weaknesses of people you vitiate them or almost cause them to"

(Related by Abu-Dawud with "sound" ascription).

This indicates that keenness on questing for faultiness and secrets is one of the sins that wipe out faith from hearts and wreaks wrath of Allah on the perpetrator of this crime who is threatened to be exposed by Him. It is also conducive to spreading of corruption, panic and apprehension among Muslims, as well as causing them to get busy with personal or other people's affairs that are harmful and disadvantageous, and, at the same time, abandoning important matters, and neglecting great aspirations and ends.

Hence, Allah warned us against that and threatened those who do not obey Him. He, highly exalted, says:

VERILY THOSE WHO LOVE THAT INDECENCY SHOULD BE PROPAGATED AMONG THOSE WHO BELIEVE, FOR THEM SHALL BE A TORMENT AFFLICTIVE IN THIS WORLD AND THE HEREAFTER.

(S24:V19)

Prohibition of Spying on Muslims:
Or Suspecting Them.

Allah, has also prohibited spying on Muslims or suspecting them. He, highly exalted, says:

O YE WHO BELIEVE! AVOID MUCH SUSPICION, VERILY SOME SUSPICION IS A SIN. AND ESPY NOT, NOR BACKBITE ONE ANOTHER: WOULD ANY OF YOU LOVE TO EAT THE FLESH OF HIS DEAD BROTHER. YOU DETEST THAT.

(S49:V12)

The Prophet, may the blessings and peace of Allah be upon him, says: "Do not spy upon each other, and do not listen to the evil talk of the people about other people's affairs, and do not have enmity with one another or be opposed to one another and be brother bondmen of Allah".

Al-Awza'i said to "spy" is to search for something, and to "spy" is to listen to what the people say while they hate you to do, or to eavesdrop, and in the Hadith,

"if somebody listens to the talk of some people who do not like him (to listen), then molten lead will be poured into his ears on the Day of Resurrecion".

(Related by Al-Bukhari).

These are the ethics of Islam and of its society. They command Muslims to advise and not expose when they see something wrong. They also order not to spy, suspect or eavesdrop in order to unveil secrets covered by Allah.

"Beware of suspicion (about others), as suspicion is the falsest talk, and do not spy upon each other, and do not listen to the evil talk of the people about other people's affairs ".

(Riyad Al-Saleheen 602).

Abu-Dawud and some other narrators quoting laid Ibn Wahb:

"We said to Ibn Mas'oud : Do you want to see Al-Waleed Ibn Oqba Ibn Abi Ma'it while drops of wine are on his beard? Ibn Mas'oud said we were forbidden to spy, so if something is apparent before our eyes, then it is evidence".

Keenness on prohibiting what is disreputable may instigate one to spy and forget these strict instructions that forbid spying. This is what happened to Omar Ibn Al-Khattab, may Allah be pleased with him.

Al-Khara'iti quoted in "Makarim Al-Akhlaq" on the authority of Thawr Al-Kendi that Omar Ibn Al-Khattab, was making nightly rounds in Al-Madina when he heard a man singing in a house. He entered by scaling a wall and found a woman with him and wine. Omar said "you! enemy of Allah. Do you think that Allah, glorified be he, would not expose you whilst you commit a sin? The man said: "And you O commander of the Faithful! don't be so harsh on me. I disobeyed Allah in one thing, while you disobeyed Him in three: He, highly exalted be He, says:

AND ESPY NOT

and you spied. He, glorified be He, says:

SO ENTER THE HOUSES BY THE DOORS THEREOF

and you have scaled a wall. He, highly glorified be He, says:

ENTER NOT HOUSES OTHER THAN YOURS UNTIL YE HAVE ASKED LEAVE AND INVOKED PEACE ON THE INMATES THEREOF

(S24:V27)

and you have entered without permission".

Omar, may Allah be pleased with him, said 'would you be a better one if I pardon you?'. He answered 'Yes' Omar pardoned him and went out (6).

Backbiting or Defaming a Muslim:

Allah, highly exalted and glorified be He, prohibited backbiting Muslims. He says:

DO NOT BACKBITE ONE ANOTHER: WOULD ANY OF YOU LOVE TO EAT THE FLESH OF HIS DEAD BROTHER. YE DETEST THAT

(S49:V12)

The Prophet, said:

"All affairs of a Muslim are inviolable for his brother in faith; his blood, his wealth and his honour".

(Related by Muslim and Al- Termizi).

And He also said:

"Do you know what is backbiting? They (the companions) said: Allah and His Messenger know best. Thereupon he said: Backbiting implies your talking about your brother in a manner which he does not like. It was said to him: what is your opinion about this that if I actually find (that failing in my brother which I made a mention of? He said: if (the failing is actually found (in him) what you assert, you in fact backbited him, and if that is not in him it is also a slander".

(Related by Muslim and Abu-Dawud).

Islam also forbids calumny. Hudhaifa narrated that the Messenger of Allah may the blessings & peace of Allah be upon him, said:

"A tale-bearer shall not enter the Gardens"

and in another version

"A bearer of false tales".

(Related by Al-Bukhari and Muslim).

Calumny as a word is the fact of disclosing what is hated to be disclosed, whether the "hater" is one who is reported about or one who is reported to or a third party, and whether act of disclosure is conducted by speaking, writing, hinting or gesturing; and whether the reported thing is an act or an utterance, be it about a demerit or a defect in one who is reported about or not. Calumny is, in fact, divulgence of secret and unveiling the cover of what is hated to be uncovered. If seen by a person, they should not be disclosed, except for those things which, if told, will advantage a Muslim or prevent a graver sin., as when someone is seen taking a property of another, he should be testified against, in order to preserve the right of the one who is testified for. If what is calumniated about pertains to an existing shortcoming or defect in one who is calumniated, the debaser will, thus, join calumny and backbiting. The desire of defaming one who is reported about, demonstrating affection toward one who is reported to or seeking fun in conversation, indulging in telltale talk and falsehood and driving a wedge between Muslims whereas Allah and His Messenger have commanded reconciliation between them as Allah, says:

AND RECONCILIATION IS BETTER

and

WHEREFORE MAKE RECONClLIATION BETWEEN YOUR BRETHREN

(S49:V10)

and the Prophet, says:

"shall I tell you of a devotional act better than fasting, giving charity and prayers" He said: we said "Yes. He said: Bringing peace between people, since lack of conciliation is destructive rupture of relations".

If that is so, it is then the very thing that is prohibited and it is surely destructive as the munificient Hadith states.

What the Ulama say to whom Calumny is Told:

Anyone who is told a calumny should do six things:

First

He is not to believe calumniator for he is a transgressor and; accordingly, ineligible as a witness. Allah says:

IF AN EVIL-DOER COME UNTO YOU WITH A REPORT, THEN INQUIRE STRICTLY

(S49:V6)

Second

He is to forbid him from doing that, advise him and denounce his action, Allah, glorified be He, says:

AND COMMAND THAT WHICH IS REPUTABLE AND PROHIBIT THAT WHICH IS DISREPUTABLE

(S31:V17)

Third

To hate his deed for the sake of Allah.

Fourth

Not to bear ill thoughts about his absent brother, for Allah says:

AVOID MUCH SUSPICION, VERILY SOME SUSPICION IS A SIN.

Fifth

What he is told must not make him inquire and investigate. (And espy not).

Sixth

He is not to allow himself to do what he had forbidden the calumniator from, and not to tell the calumny to anyone. Omar Ibn Abdulaziz, may Allah be pleased with him, was reportedly visited by a man who told him something about another man. Omar said: If you want we will consider your case. If we found you a liar, then you would be one of those meant by the verse

IF AN EVIL-DOER CAME UNTO YOU WITH A REPORT, THEN INQUIRE STRICTLY

(S49:V6)

And if you were truthful, you would be one of those meant by the verse (A defamer, spreader abroad of slander), and if you want we will pardon you. The man said "Pardon me, O commander of the Faithful. I will never do such a thing again".

Islam prescribed effective penalties for calumniators. Allah, glorified be He, says:

AND THOSE WHO ACCUSE CLEAN WOMEN AND THEN BRING NOT FOUR EYE-WITNESSES, SCOURGE THEM WITH EIGHTY STRIPES AND ACCEPT NOT THEIR TESTIMONY FOR EVER. AND THOSE! THEY ARE THE TRANSGRESSORS

(S24:V4)

This is for the sake of preserving people's honour from any attack and for safeguarding them. The Qur'an has made this penalty nearly equal to the penalty for fornication; i.e. eighty stripes along with ineligibility as witnesses and being stigmatized as transgressor. The first penalty is corporeal and the second is moral and public. It is enough that the slanderer's testimony is not accepted and that he drops in other people's estimation and lives among them untrusted in whatever he may say.

The third penalty is related to religion: He is a deviator from faith and a deserter of the straight path, unless he brings forward four eye-witnesses, or three if he himself has seen the act of intercourse, to testify to seeing fornication being committed - thus his accusation will be genuine - But this is not possible for an informer to do (7).

A believing community does not lose anything by not accusing people as it loses by prevalence of accusation, permitting it, not minding announcement, instigating many of those who would not commit the act which they used to deem detestable and forbidden by the community or at least rarely committed. This is besides the agonies that afflict honourable women and men, and the effects of such practices on people's lives and the peace of secure families.

Al-Hulaimi said "the impact of sins on the hearts of those among whom they prevail is mitigated, and the perpetrator is not encouraged to repent, if they are exposed. 'Then he added: do no ally with Satan against your brother'.

Omar was reportedly making nightly rounds of Al-Madina when he saw a man and a woman committing sin. When morning came he said addressing people 'what would you do if a ruler saw a man and a woman committing sin, and he applied the prescribed provision to them?

They said "You are the ruler and you should punish them". Ali, may Allah be pleased with him put in "you cannot do that. If you did you would be subject to the prescribed provision of slander. Allah has not made it safe that less than four should testify to this". Omar left the matter for some time. Then he asked them the same question again. The people's answer was the same so was Ali's. This indicates that Omar was hesitant as whether a ruler is entitled to judge a case that entails application of Allah's prescribed provisions on the basis of what he personally knows about it. That is why he consulted them for the sake of assessment and not just to inform, fearing that it might not be his right to do so, or else he would be a slanderer. This is one of the best proofs for the emphasis of Sharia on not exposing sins. For though fornication is the gravest sin, even a ruler is not permitted to reveal it unless the criterion of four witnesses pertains.

Disclosure of mutual secret by either or both spouses is prohibited. The Prophet says:

"The most wicked among the people in the eye of Allah on the Day of Judgement is the man who goes to his wife and she comes to him, and then be divulges her secret".

Some Cases of Secrets and Legal Consequences Thereon

After this review, I have to present cases of certain secrets, then show their legal consequences in the light of Islamic prescribed texts:

Case One: Disclosure of Secret Upon Patient's Request.

The patient may ask the doctor to tell him the kind of illness, result of examination or X-ray or of the prospect of his state of health.

In this case the doctor should answer the patient's request so long as the latter knows where his interest is and is sane and is not legally incapable. He is entitled to this and it will not be a kind of disclosure if he is told. But what if revealing the secret to him will bring in more pain, be fatal to him, or result in certain disaster or delay cure?

In this case the doctor should withhold and inform a relative instead and advise him not to tell the patient or reveal the secret except when necessity dictates. The onus of keeping the secret will lie with this relative instead of doctor.

Case Two: Disclosure of Secret of Patient Legal Administrator Or Marriage Partner.

There is no objection to revealing secret to the patient's legal guardian for he is the one who looks after him. It is also permissible to inform the spouse if it is about matters of mutual concern such as sterility or impotence. The doctor is not permitted to disclose patients' personal matters except with his permission, such as venereal diseases or pregnancy in case of husband's inability to fertilise.

Case Three: Disclosure For Prevention of Crime.

Jurists made it necessary to disclose a secret in order to thwart a crime imminent, as when a man comes and asks the doctor to abort a pregnancy, kill a patient during surgical operation or inquires about what kind of drugs is used to kill a person he wants to get rid of, ...etc.

In this case the secret must be revealed to relevant authorities after exhausting the method of advising and admonishing.

The Prophet, may the blessings and peace of Allah be upon him, said:

"He who amongst you sees something abominable should change it..." (The Hadith).

Case Four: Cases in Which Doctor is Arbiter.

An example of these cases is when a governmental department or a company asks the doctor to examine candidates to be employed and state their illnesses that would interfere with performing their prospective work. In this case the doctor is trusted, therefore he must state the truth and he is not deemed sinful. One who goes to the doctor to be examined, in such a case, is fully aware of the fact that his secret will be revealed and he does not mind that. And even if he minds, the doctor is obliged to disclose the truth even against the patient's wish.

Al-Qurtubi said: Backbiting is permissible in testifying or for preventing a harm, as when the Prophet said to Fatma Bint Qais when she sought his counsel about Mu'awiya and Abu-Jahm Ibn Hudhaifa:

"As for Abu-Jahm, he does not put his staff from his shoulder, and as for Mu'awiya he is a poor man, having no property"

(16/34.)

Case Five: Disclosure For Preserving and Safeguarding the Nation.

Certain cases are considered dangerous for the nation, such as contagious diseases.

The doctor must report these cases for safeguarding the nation and meanwhile preserving the patient's health as far as possible.

Many a prophetic tradition refer to this, such as:

"Run away from the leper as one runs away from a lion" and, "If you are in a land where plague has broken out, don't get out of it, and if you were to know that it had broken in a land then don't enter it.

Case Six: Revealing A Crime Committed.

This case requires some elaboration. The doctor is either an arbiter , as when he is asked by the state to help uncover a murder crime or to determine the cause of death of a person to know whether there is a criminal act behind it - and here the legal consequence is similar to that of case Four. But if he is asked by the family of a murdered person and finds out that there is a crime; should he report the matter to the authorities or keep silent and conceal the secret?

In this case the doctor is not obliged to inform the authorities about this crime which has already taken place. Rather, he is asked not to expose the secret. The Prophet asked Hazzal who brought in Ma'iz when he committed adultery, which is a crime punishable by stoning to death,

"Had you covered (not exposed) him with your garment". Some jurists concur with this opinion.

Ra'ouf Ibeid says: 'the general rule requires giving precedence to the special text as it is an exception from the general text. Consequently, the obligation of keeping the secret is given priority to the obligation of reporting an existing crime. The former is based on two reasons: the first is that the doctor, when asked to treat a patient, has no duty other than doing his best to cure him. The other reason is that commitment to keep secret is absolute and general and the doctor is not freed from it or forced to reveal the secret except by means of a special legal text. Law has excluded, from the commitment of keeping the secret, revealing information if it indicates a felony or misdemeanour that has yet to take place - yet it is optional - in order that the disclosure of secret is left to the discretion of the doctor with whom it is entrusted. But since exceptions made by law may not be excessively used, the doctor who knows about a crime already committed, or witnesses it on his patient, should not report or testify to it as long as there is no legal text that allows or forces him to do so (8).

It is worth-mentioning in this connection to recall that the German occupation authorities issued orders to French doctors to report about wounded resistances members treated by them. They refused and adhered to professional secrecy claiming that orders issued by occupation authorities would not make them abandon keeping a secret, which was imposed by law. Patriotism made them adhere more to it. The result was that many of them lost their lives for that cause.

Disclosure of Patient's Secret:

Therefore disclosure of patient's secret is not permitted if he does not permit it. Disclosure of secret in this case is categorized as calumny or backbiting. This pertains if secret is not related to an act of fornication. But if it is so, it must not be revealed except after bringing forward four witnesses provided that they are all competent, freeborn and Muslim, they should distinctly describe the act of fornication or adultery, name both adulterer and adulteress and the place where the act had been committed, and on condition that all witnesses be present at one place for testimony, or else they are subject to the prescribed provision for slander if they are only three or if any of the conditions is not fulfilled.

As to the question submitted before us; namely: If the husband's incurable sterility is confirmed and the wife somehow gets pregnant, the doctor should not reveal wife's secret nor inform the husband or the authorities for she is married and there, perhaps, is something that, though known to Allah medicine has not discovered yet. And we are forbidden from suspecting

"Beware of suspicion (about others), as suspicion is the falsest talk" (Agreed upon).

Furthermore, he is obligated not to expose her in something that has already taken place as scholars indicated, especially that it is a matter not void of doubt and there is no proof to substantiate it as I have previously shown when discussing adultery. It is of interest to note that pregnancy of an unmarried woman is not a valid proof for application of prescribed punishment if pregnancy was reported.

Ibn Qudama stated in "Al-Mughni": 'If a woman who has no husband or master gets pregnant, prescribed provision is not applicable to her. She is to be questioned; if she claimed that she was forced to it or there was a suspicion as to the actual act of copulation or she does not confess, she is not to be subject to prescribed punishment. This is the opinion maintained by Abu-Hanifa and Al-Shafa'i. 'Women may get pregnant without copulation by means of letting semen enter into her, either by herself or by someone else. This is why pregnancy of woman who is maiden is possible and such a phenomenon happened before. Ali and Ibn Abbas reportedly said: "If there is a "maybe" in connection with application of prescribed provisions. it is, then, inapplicable. The Prophet, may the blessings and peace of Allah be upon him, says:

"No penalty on suspicion" (9).

The doctor is concerned with treatment of the sick, not exposing secrets and not judging, investigating or assuming authority. The Prophet prohibited slandering one's lineage which are lawfully established. He also said:

"Two (things) are found among men which are tantamount to unbelief: slandering one's lineage and lamentation on the dead".

(Muslim 550).

2 -The second question: If a doctor does an act that is in contravention of the rules of the profession, and this act is discovered by a colleague; should the latter report the matter and disclose the secret?

Yes, his colleague should report to the concerned authorities for if he does not do so, he will be deemed a betrayer of trust. This is an act of obligatory advising and not prohibited backbiting.

Referring to not exposing Muslims, Imam Al-Nawawi, said: " And as to raising doubts about narrators, witnesses, trustees on charity or inalienable estates or orphans and the like, they are to be subject to that when necessity arises. Not exposing them is not permissible if something that blemishes them is observed.

This is not an act of prohibited backbiting. Rather, it is obligatory advising and an opinion held(10) by consensus.

To the doctor, being entrusted with things graver than property and more corruption-enticing i.e. inviolable things and people's honour; the legal implications should even be more rigorous.

Moreover, delinquency on the part of trustees of inalienable estates, orphans and the like can be rectified, but transgression of trustees of people's honour and inviolable affairs which Allah emphasized to preserve and not expose, can not be redressed.

Question 3 -If the doctor finds that the father of the family has a venereal disease, what should his attitude be? should he inform family or not?

I say: No, he is not obliged to inform the family or other authorities. The disease might have been transmitted to him by means other than adultery. Even if the doctor knows that it was through adultery, he should do nothing except advising him, or else if he discloses the secret he will be a backbiter and calumniator and this is prohibited. The Prophet said:

"If what you claim is actually found (in him) you in fact backbited him, and if that is not in him it is a slander".

" Moreover, such is not a thing that necessitates prescribed punishment as we earlier indicated. If the doctor accuses the patient of Adultery the doctor himself may be subject to punishment since he does not have the prescribed evidence for adultery; i.e. the four eye-witnesses.

Mending Hymen Hymenorrhaphy

Hymenal tears are either due to something congenital, an accident or sexual intercourse.

If the tear is congenital in the young girl, then there is nothing wrong in repairing it.

This is conducive to purity and chastity, and it helps rid the little girl of complexes and fear of being victim of misgivings in the present and in the future. Moreover, it may relieve relatives and Muslims of agony. There is also no objection to repairing the hymen of a grown up female if rupture is due to something congenital so that she is not liable to misgiving by the ignorant. If rupture is due to an undisgraceful cause such as, hemorrhage, surgical removal of ulcers or anything that leads to rupture of hymen such as a leap, entering of a wooden sliver or as a result of torture or anything like that, there is, then, no objection to repair.

Sin-related Rupture:

Yet, if rupture is due to sins or to something disgraceful, it is, then, necessary to consider the matter carefully!.

If the injury was inflicted forcibly, then the opinion will be the same as stated above.

But if the disreputable act is not committed forcibly, the following question is raised:

Is the repair operation to be considered assistance to committing " disreputable acts, propagating indecency and cheating prospective husbands? Traditions have forbidden that: Muslim quoted Abu-Huraira, after the Prophet,

"He who took up arms against us is not of us and he who acted dishonestly towards us is not of us".

The Prophet also said: "and do not offer a high price for something in order to cheat another"

(Agreed upon).

And in another account:

The Prophet happened to pass by a heap of eatables (corn). He thrust his hand in that (heap) and his fingers were moistened. He said to the owner of that heap of eatables (corn): what is this? He replied: Messenger of Allah, these have been drenched by rainfall. He (the Prophet) remarked:

"why did you not place this (the drenched part of the heap) over other eatables so that the people could see it? He who deceives is not of me (is not my follower) ".(Related by Muslim).

He, may the blessings and peace of Allah be upon him, said:

"He who depraves someone's wife or his slave is not of me (not my follower)".(Related by Abu-Dawud with "sound" ascription).

Therefore, is cheating in honour, pretending chastity and assisting in such cheating not forbidden?

The Prophet, may the blessings and peace of Allah be upon him, has forbidden fraud and cheating in food, prices as well as other kinds of deception and falsification. Is it not an act of fraudulence, that a Muslim is prohibited to participate or assist in, to change a deflowered female into a virgin and a besmeared woman into a chaste one? Or is this deception done in order not to blemish Muslims' honour, and this falsification becomes harmless as far as it will repair a damage, and help not to expose a repentant female whom Allah will redeem her esteem?

Traditions Favour Not to Expose

Hannad and Al-Harith quoted on the authority of Al-Shabi that a man came to Omar Ibn Al-Khattab and said "I have a girl whom I had before Islam buried alive then took her back before dying. She lived with us till Islam came and became a Muslim. Thereafter she was punished according to a prescribed provision by Allah, glorified be He, she took a blade to slay herself but we could save her after she had cut some veins. We treated her till she was cured, and she became a good penitent Muslim. Someone came proposing to her, and I told him about what was of her. Omar said: Do you come to that which Allah did not expose and you reveal? By Allah, if you tell anybody about her story I'll punish you to be an example for the people. Let her marry as a chaste Muslim. (11)

On the authority of said Ibn Mansour and Al-Baihaqi, from Al-Shabi, that a slave girl committed a sinful act and the prescribed punishment was applied to her, then they came as emigrants, she repented and became penitent. Suitors used to come to her uncle but he hated to marry her without telling what happened of her. He remained reluctant to reveal her secret till he mentioned her before Omar Ibn Al-Khattab, who said: Marry her as you marry your righteous girls.

Al-Baihaqi and Al-Shabi quoted: A woman came to Omar, and said: O Commander of The Faithful, I found a boy and found a knitpurse in which there was a hundred dinars. I took the boy and hired a wet-nurse for him. Four women used to come to him and kiss him, and I know not who his mother is? He said to her: if they come to you, inform me. So she did. He said to one of them: Which of you is this boy's mother? She said: By Allah, not well-said nor well-done O Omar! Do you come to a woman whom Allah did not expose and you want to unveil her secret. He said: You tell the truth. Then he turned to the woman who came to him and told her: If they come to you do not ask them about anything, and treat their boy well. Then he left.(12)

Abu-Dawud and Al-Nesa'i quoted Dakheer Abi Al-Haitham scribe of Oqba Ibn Amr, said: I said to Oqba Ibn Amar we have neighbours who drink(wine) and I will call the police to take them. He said: No do not do that. Advise them and threaten them. He said: I tried to make them quit(drinking) but they did not, and I will call the police to take them. Oqba said: What is the matter with you. Don't do: I heard the Messenger of Allah, may the blessings & peace of Allah be upon him, saying:

"He who sees a "private part" and does not expose it, his act will be tantamount to bringing a newborn girl buried alive back to life".

(Related by Abu-Dawud, Al-Nesa'i and Ibn Habban in his "Sahih": the wording is his. It is also related by Al-Hakem who said: "sound" ascription).

I think covering is acceptable and refraining from repairing the hymen is better if rupture is caused through fornication. The above traditions only advocate not to expose and do not endorse interference neither by means of action or by help, and Allah knows best.

Annotations

"Uyoun Al-Anba Fi Tabaqat Al-Atibba" 1 & 35.
"Fath Al-Bari" 11/82 Dar Al-Ma'rif.
Sharh "Sahih Muslim" Imam Al-Nawawi 16/135, "Fath Al-Bari" By Ibn Hajar 5/97.
"Fath Al-Qadir" 4/114 & 119.
"Ihya Ulum Al-Deen" 2/199, 200 Al-Ma'rifa Edition.
See "Rouh Al-Ma'ani" 9/157 Dar Al-Fikr Ed. and "Tafseer Ibn Katheer" 4/213 Dar Al-Ma'rifa Ed. "Ihya Ulum -Al-Deen" 2/200.
See "Al-Targheeb Wa Al-Tarheeb" 4/280.
Ra'ouf Ibeid "Crimes on person & Property" (1974 Ed.) p. 291. See, also "Medical Secret" Research by Dr. Abdulsalam Al- Tarmanini.
"Al-Mughni" -Ibn Qudama 8/210.
"Sharh Al-Nawawi Ala Muslim" 16/135.
Hayat Al-Sahaba, Part Two p. 730 from Kanz Al-ummal (2:150).
Ibid 2/730.