Islam set - Secret Disclosure in Islamic Sharia

SECRET DISCLOSURE IN ISLAMIC SHARIA

Dr. Muhammad Sulaiman Al-Ashqar
Expert, Fiqh Encyclopaedia
Ministry of Waqfs and Islamic Affairs

Linguistically a "Secret" is that which is kept hidden, and likewise, "Secret thought" Allah, highly exalted be He says,

ON A DAY WHEREON SECRETS (I.E. SECRET THOUGHTS) SHALL BE OUT (S86:V9)

that is on the Day of Judgement. Secrets, which are what one keeps in the heart, of intentions, beliefs, etc., shall be exposed, unveiled, and those which are good shall be known and those which are evil shall be known.

One says "I confided a secret to someone" or I told him something confidentially" when you let him know your secret. In Arabic the "secrets" of the palm, are the lines on it.

In Surat Taha - 7

HE KNOWETH THE SECRET AND THE MOST HIDDEN

(S20:V7)

the word "secret" means that which is told to someone by way of "confidence, and that which is "most hidden" (of secret) is what one tells himself and thinks of without imparting it to another, which is also a sort of secret, yet, it is the most hidden of all secrets.

"Divulgence" of secret is "telling" and "making it known", the opposite of which is "keeping" and "withholding" and anything that is disclosed "spreads" like ink on a thin paper, and in Arabic the cattle "fashat, literally "spread" to graze, and "al-sa'ima" that is the animal grazing wherever it likes, it called "al-fashia" that is "the spreading one".

Some forms of withholding and divulgence in The Book, The Sunna and The Tradition of The Righteous.

In Surat Al-Tahreem,

AND RECALL WHAT TIME THE PROPHET CONFIDED A STORY UNTO ONE OF HIS SPOUSES, THEN SHE DISCLOSED IT, AND ALLAH APPRISED HIM THEREOF, HE MADE KNOWN PART THEREOF AND WITHHELD PART THEN, WHEN HE HAD APPRISED HER OF IT, SHE SAID: WHO HATH ACQUAINTED THEE THEREWITH? HE SAID THE KNOWER ' THE AWARE HATH ACQUAINTED ME. IF YE TWAIN TURN UNTO ALLAH REPENTANT, IT IS WELL, SURELY YOUR HEARTS ARE SO INCLINED, AND IF YE SUPPORT EACH OTHER AGAINST HIM, THEN VERILY ALLAH! HIS FRIEND IS HE AND JIBRIL AND SO ARE THE RIGHTEOUS BELIEVERS, AND FURTHERMORE THE ANGELS ARE HIS AIDERS. (S66:V3-4)

The two who supported each other against him in the verse are both Aisha and Hafsa, two mothers of the faithful. He confided to one of them that he had abstained from eating honey or, it was said, from having sexual relationship with his slavegirl Maria. Then she divulged this to the other one (1). So, Allah, highly exalted be He, sent down the two verses making the divulgence of His Messenger's secret a crime for which the two women should urgently be penitent. Allah highly exalted be He, thus educated them in such an excellent manner.

- Narrated Abdullah Ibn Umar, may Allah be pleased with him Umar Ibn Al-Khattab said, "when Hafsa bint Umar became a widow after the death of her husband - I went to Uthman 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", Umar further said, "I met Abu Bakr Assiddiq 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 Uthman. I waited for a few days and then Allah's Messenger, may the blessings and peace of Allah be upon him, 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, has mentioned her, and I never wanted to let out the secret of Allah's Messenger, And if Allah's Messenger, had refused her, I would have accepted her." (2)

In Ahmad's version:

"and it was a secret so I did not want to divulge it".

Ibn Hagar said :

The benefit to drive from this lies in excusing Abu-bakr who did not say "It seems it is not possible for me to marry" as Uthman did.

- The caliph Al-Farouk used to select those companions distinguished for their knowledge, faith and discretion to be his own counsellors. Despite being too young for such a prestigious position. Abdullah Ibn Abbas was one of them, and moreover, of the most favoured. 'I see that this man has chosen you as a counsellor. So, here are three things for you to learn from me : never divulge a secret of his : never backbite a person to him and never lie to him". His father, Al-Abbas, advised him. A man, upon hearing Al-Shabi relating this, said 'Each of these pieces of advice is worth more than one thousand. No retorted Al-Shabi, "each of them is worth ten thousand".

- Anas Ibn Malik, may Allah be pleased with him, said:

"The Prophet, confided to me a secret which I did not disclose to anybody after him. And Um Sulaim asked me (about the secret) but I did not tell her"

(Related by Al-Bukhari) (3)

Um Sulaim was Anas' mother. In another version, she asked Anas for what purpose the Prophet, sent him.

"It is something secret" said Anas. Thereupon she said, "Do not then divulge the secret of Allah's messenger".

In another version Anas said to Thabit Al-Banani:

"By Allah, if I were to divulge it to anyone, then O Thabit, I would have divulged it to you."

Confiding Secrets

A person with a sound mind would rather not do covertly things he would shun to do overtly, in other words, he must not do whilst away from the people what he would hate them to see him do, for though he is away from them, Allah is an Ever-Witness to his actions. He, also, should not bear any Muslim a grudge in his heart that may goad him into saying ill things. And he must know that as far as his secret is kept hidden in his own bosom, he is master of himself. But, if he lets anyone his secret, the option will no longer be his but another's.

Yet, if there is no way but to confide the secret to another person, then he should not disclose it to everyone. The adage goes "A wise person's tongue is in his heart and a fool's heart is in his mouth".

So, the person to be entrusted with the secret should be well chosen; he should be wise, trustworthy and honest. It is better, if possible, to select only one person for this purpose; so, in case the secret is made known, he will know that the one who divulged it is this friend of his, whereas if he has trusted more than one the secret will no longer be a secret and he will be at a loss.

And as the poet say :

Your secret is that to one only confided But with three secret is not unknown.

Keeping Secrets and Not Exposing "Aura" Private Parts and Weaknesses

The Prophet, may the blessings and peace of Allah be upon him, was quoted to have used the following invocation:

"Oh Allah, do not expose our "aurat" (sing. Aura) and give us security from that which frightens us ".

He was also quoted as saying

"He who does not expose a Muslim, Allah will not expose him in this world and in the hereafter"

(Related by Al-Bukhari and Muslim).

He also said to the Hypocrites:

"Oh you who have lip-believed and in whose hearts faith has never entered, never backbite Muslims, nor trace their weaknesses, for he who traced his brother's weakness. Allah will trace his, and he whose weaknesses are traced by Allah shall be exposed by Him even inside his own house". (4)

By "Aura" is meant anything that one dislikes people to see of him b it something material such as the strict pudenda and inborn deformities, c moral such as bad actions, words or manners. This is categorized as both a secret and a private part as long as people are ignorant of it, but not a secret if they are aware of it. A "Secret" may not be a private part 'even though the one to whom it belongs hates to make it known, such is the case with charity given covetly and prayers in private.

Virtue of Keeping a Secret

If a secret is of the kind that should not be publicly known, it is, as we previously stated, a "private part", and there is merit of not exposing a Muslim's "Private Parts" (and weaknesses) in keeping it, as the above Hadith states

"He who does not expose a Muslim, Allah will not expose him in this world and in the hereafter;"

and this is a right to every Muslim that should be observed by his brother Muslims.

In Sunna, there is, for instance, the story of Ma'iz who admitted committing adultery, so the Prophet, may the blessings and peace of Allah be upon him, applied the provision of stoning to him. Then Hazzal came, It is I who ordered him to come and confess' He boasted.

"Oh Hazzal, had you covered (not exposed) him with your garment, it would have been better for you" (5)

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

Yet, if the secret does not amount to a private part, keeping it will reflect full magnanimity, utmost trustworthiness and strong willpower.

Hence comes the proverb "Bosoms of the free are graves for secrets". A free person who is master of himself lets a secret die in his bosom, but the one who is slave to his whims lets the secret restively stir in his bosom until it slips away.

Keeping believers' secrets is indicative of perfect faith as the Prophet said,

"None amongst you believes (truly) till one likes for his brother that which he loves for himself ".

Al-Ghazali said "you, undoubtedly, would expect your brother not to expose your "private parts and overlook your demerits and shortcomings. You would be exasperated and furious if your brother showed the opposite of what you have expected him to do. But, you will be asking for too much if you expect him to do what you do not intend nor are resolved to do for him, and Woe unto him who does so, as it is explicitly stated in the text of the Book of Allah, He says in surat Al-Mutaffifeen

WOE UNTO THE SCRIMPERS: THOSE WHO, WHEN THEY TAKE BY MEASURE FROM MANKIND EXACT THE FULL, AND WHO, WHEN THEY MEASURE UNTO THEM OR WEIGH FOR THEM DIMINISH. (6)

(S83:V1-3)

The merit of keeping secrets too ignominious to be revealed, may include the purport of steadying the one who has stumbled and helping him who has slipped into error to take the right path.

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

"Help those of a social standing when they stumble except in an act for which there is a prescribed punishment". (7)

In another Hadith he said:

"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 ". (8)

Quality of secrecy

The one who is entrusted with a secret better for gets about it and convince himself that it is defunct as if he never heard of it, or forgotten he did, for this will be more conducive to keeping it than divulging it some day.

Then if he is asked about it, he is to ignore that he knows it, and if he sees that an insisting inquirer will be satisfied when told that it is a confidential matter that is not to be revealed to anyone, he should tell him so; but if he feels that the inquirer, when told so; will be more ardent and keener to probe the matter, he should abandon saying so and instead resort to using puns. The Prophet, may the blessings and peace of Allah be upon him, was quoted to have said:

"In puns there is a way-out from lying". (9)

If resorting to pun is not possible and he is compelled to give an unequivocal reply, "it is permissible for him to deny, and even lie if the secret confided to him is a trust or if he fears that detriment will undeservedly befall the one to whom the secret belongs or his family or property, and if he is asked to swear to that he is permitted to do so falsely, and the sin will fall with whoever unrightfully forces him to that". (10)

Some jurists such as Ibn Hajar Al Haitami said : "Lying may either be permissible or necessary. The determining rule for that is as per stated in "Al Ihya" "Lying is permissible if any commendable end cannot be attained save through it, then it becomes permissible and if such an end is a must it is obligatory as the case is when an impeccable person is seen hiding lest he should be killed or hurt by a certain oppressor or if such an oppressor inquires about a trust he wishes to set his hand on. Denying, even falsely, is obligatory, and if one is asked to take an oath, he must do so, resorting to pun, or else he breaks the oath and has to expiate. If the Sultan inquires about a vile deed he has perpetrated covertly, such as adultery or drinking, he is permitted to lie and say "I haven't". He may also deny knowing his brother's secret. "The adverse consequence of lying should be counter balanced with that of telling the truth, if the latter was graver, the secret keeper is then permitted to lie, and if the reverse was true or if he was doubtful as to its gravity, lying would be impermissible".

Then in order to corroborate the correctness of what is maintained, he cited the hadith of granting exception permission to lie while in war, when undertaking reconciliation among people and when a man talks to his wife in order to please her. (11)

Yet, we cannot accept what was maintained by Al Ghazali and advocated by Ibn Hajar Al Haitami without reserve. Any adverse consequence of telling the truth does not justify lying; nor every commendable end that depends on lying makes it permissible, for there is no liar who does not see that lying will either bring about a personal interest or ward off a detriment from him or from someone else. The Prophet, meant his hadith to be restrictive when he said:

"Lying is not permissible save in three cases ... etc." ..

My opinion, and what established principles necessitate, is that the basic rule governing this matter must be: lying is not to be permissible, for the sake of gaining an advantage in the first place, except in war; and as for warding off ill consequences lying is not to be permitted except in the three cases enumerated in the Hadith, or in other equally or more important ones, but not in those less serious, and Allah knows best.

And let the keeper of secret be on his guard against whoever may lure him to divulge the content of the secret unawares, for people have devious ways in this which cannot fool the smart.

Who Deserves Not To Be Exposed and Who Does Not

Al Hulaimi said : "Not to expose is a principle that must exclusively be applicable to vile deeds that do not make one an infidel. But if a Muslim was heard speaking the way unbelievers do, and was thus known to be a hypocrite, he should be exposed ... so that other Muslims can be aware that he is not truly one of them, and in order to prevent their being deceived by what he pretends to be, and thus allow him to marry from among them, eat animals he slaughters, let him lead them in prayers or be entrusted by any of them with guardianship of his children. And, furthermore, on the grounds that inviolability of whoever manifests unbelief is inapplicable, since inviolability of deeds we have deemed necessary not to be exposed exists in so much as the doer adheres to Islam, and when he renounces his religion he will no more be inviolable, and Allah knows best". (12)

Why Secrets Are To Be Kept?

First: For detriments caused by divulgence in most cases:

A Muslim should not do things to the detriment of his brother Muslims. It is not permissible for him to wilfully harm or be the cause of harm to his brother as Allah, highly exalted be He says in surat Al Ahzab:

AND THOSE WHO ANNOY THE BELIEVING MEN AND THE BELIEVING WOMEN WITHOUT THERE EARNING IT, SHALL SURELY BEAR THE GUILT OF CALUMNY AND MANIFEST SIN.

(S33:V58)

Detriments that may result from divulgence of secrets are various. Here are some:

A. Psychological and Moral Detriments:

If the secret represents a "weakness" which your brother keeps not exposed, be it a sin he has done, or a disgraceful act he has impulsively perpetrated and Allah, did not expose him then you reveal it, he will be greatly mortified, indignant and grieved, and what is worse, his testimony may be rendered unacceptable and consequently he may lose respectability and be shunned by his intimates and degraded by whoever has held him in reverence. All that may mar the relation with one's kindred, the fact which will eventually mean disruption of family ties and social relations. If a sinner's secret is exposed the effect of sin on conscience will be lessened. For one might have feared that what he does may be known, the fact which will either make him desist from going back to it, or try not to expose it. But if the secret is exposed, he will become less timid and daring and make what he has done a habit from which he will be unable to extricate himself. And this is harm inflicted upon him' (13) said Al Hulaimi.

Allah, prohibited spying which means the affairs of people that are kept concealed. The Prophet, said to Mu'awiya,

"If you pursue people's weaknesses, you vitiate or almost vitiate them". (14)

One of the predecessors commented "A word heard by Mu'awiya from the Prophet, which Allah made to his advantage", i.e. made his caliphate a good one.

B. Physical Detriments:

If secret is revealed one way have to face a prescribed punishment or penalty.

C. Professional Damages:

If they feel that their secrets are at hazard clients of professional men such as doctors and lawyers may eschew dealing with them or avoid giving information needed to successfully carry out any assignment they are entrusted with, and thus they, as well as their professions in general, are deprived of so many a chance of success.

The same thing is true for in other occupations, Even drivers or servants who keep secrets that come to their knowledge, become more trustworthy, but if not so, they will have little chances of finding jobs and most likely lose the present ones.

D. Financial Damages:

Divulgence of a secret by the keeper may result in a loss of an expected gain or a planned for advantage.

Look at how industrialists benefit from inventions they discovered and were instrumental in realizing huge amounts of profits so that they deemed them private trade secrets which they treasure. They invest them, enjoy their benefits and guard them closely. The Messenger of Allah, may the blessings and peace of Allah be upon him, said:

"Take care of what is useful to you and seek assistance from Allah".

Divulgence of people's financial secrets may result in their being under the mercy of thieves, the fact which will eventually lead to impoverishment of the rich, and the wealth diligently and honestly earned goes to transgressors' to be wantonly toyed with. Certain fines and/or financial costs that have been kept as bay may be incurred upon the one to whom the secret belongs by revealing it.

Divulgence of the secret may lead to his losing a position out of which he earns his living.

How many a king have been dethroned, a government undermined and a nation ruined by scandals!

Second: For divulgence of secret may represent a breach of confidence as illustrated in the following cases:

A. When the secret is between a man and his wife:

In his speech delivered at the Farewell Pilgrimage the Prophet, advised that woman should be taken care of, and said:

"Verily you have taken them on the security of Allah, and intercourse with them has been made lawful unto you by words of Allah".

Muslim and Abu Dawud related on the authority of Abu Said Al Khudari that the Prophet said:

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

and in a version by Muslim,

"The most important of the trust in the sight of Allah on the day of judgement" (15).

B. When your brother asks you to keep his secret before disclosing it to you and you pledged to do but later divulge it, you, then, commit a breach of confidence and of pledge (16), and therefore are a transgressor, exactly like hypocrites whose hypocrisy is known by such an ignoble act.

A person may ask his brother to keep his secret under certain circumstances or during a specific period of time and he accepts, consequently it becomes a trust as when he says: Don't reveal this secret for three days, or: as long as so and so is alive, or: as long as I am alive, or the like.

C. When your brother talks to you about some private matter that is usually kept secret does not ask you to keep it, especially if he is seeking your advice in something which he intends or is determined to do: such will be a trust, for the Prophet said:

"A counsellor is given a trust",

and consequently, disclosure of such a private talk will be a breach of this confidence.

In a sagacity reflecting narrative a man went to a caliph and backbit a sage. When the caliph wanted to avenge himself on the sage, the latter said: let me see this backbiter. When he came he addressed him saying:

You are one who, either betrays a trust or tells a lie so you are fluctuating between betrayal and sin. As if he were telling the caliph: how could you blame me for something told by one who is either untrustworthy or a liar.

D. When the secret is a matter discussed in a private meeting, and those present trust each other, so they talk freely, and would not do so if a stranger, or someone they do not trust was present. The matter they discuss unreservedly is consequently a trust. The Prophet, was quoted to have said,

"if a man talks about something then he looks around, his talk is a trust". (17)

The commentator on Al Ihiya said: "i.e. if the speaker turns right and left for this implies he does not want anyone except the hearer to know what he has talked about". (18)

E. When a man is compelled out of necessity or need to disclose a matter that if known may mortify or harm him, and which he would not reveal if he were not in need of help. As it is the case when one goes to a mufti to inquire about the legal consequence of a an action he has done. If, when explaining the matter, he does not give details enough to point out the applicable provision, the mufti will be unable to give him a clear answer and explanation. So, it what is given of description is something that hurts when made known, it is a trust in the mufti's hands; and he is untrustworthy if he divulges it, and if it so happens later that the mufti testifies before judges disclosing the confession he has heard, his testimony is not to be accepted nor heeded, for breach of confidence makes one legally ineligible and consequently, not a competent witness. This is the opinion accepted by Malikites, out of opposing views related to Malik. (19)

The same rule applies to the doctor when a patient reveals to him the cause of illness, which may actually be detestable, or part of the body which has to be uncovered for the sake of treatment and in which there, is a deformity or a repulsive disease.

He may reveal to a psychiatrist some person circumstance in his past life or conditions that concern his family in order to enable him to diagnose the illness and know the cause and treatment. Such disclosure is a trust with the psychiatrist, and he will be untrustworthy if divulged.

The same rule applies to social workers asked to cheek the living conditions of applicants for social welfare or assistance and of "Zaka". In this case what is confidentially told is a trust with social workers which must be kept and never disclosed except to the relevant authorities.

Nevertheless, this does not mean that information acquired through counselling muftis, doctors, etc., are not to be utilized in scientific research or quoted to prove or refute theories. Yet, if such information is given as confidentially it should remain anonymous.

Secretaries and employees in governmental or private departments are, likewise, ex officio entrusted. So, they must keep anything that they know, that if revealed, would inflict tangible or intangible detriment to the party that authorised them with such assignments. They will be untrustworthy if they divulge any information.

Third: For disclosure of secrets mostly represents succumbing to one's desires:

Allah, highly exalted be He, said

AND FOLLOW NOT DESIRE, LEST IT CAUSE THEE TO ERR FROM THE PATH OF ALLAH

That is because motives that instigate people to divulge other people's secrets or uncover their weaknesses are mostly attributable to desires. For instance:

A. "Selves" have a tendency to uncover things kept hidden and savour backbiting people and talking about their weaknesses especially in those gatherings where Allah, is not feared. So, whoever yields to his inclinations in such cases, will be following his own desires, and whoever discloses what he knows of his brothers' secrets, is also salve to desire and a satan's ally "What motivates such acts is grudge, ill-nature and evil intent" (20) said Al Hulaimi.

If a man becomes a bosom friend of another and, thus, each is trustful of the other and accordingly confides to him the most intimate secrets and reveals to him certain things treasured in his heart or related to acts he has done, or perhaps, confides to him an opinion he holds about a certain person, the one who is entrusted with a secret should be worthy of that trust and be careful not to reveal it to anyone. Even if bonds of friendship between the two intimates are severed, neither of them should stumble into breach of confidence or reveal what has once been entrusted to him by old friends. If one so does, this will be indicative of ill-nature and malevolence. It is, likewise, not permissible for the other to say "He exposed me, so I expose him, and he humiliated me. So I humiliate him. "The Prophet says,

"Be trustworthy with whoever trusts you and betray not whoever betrays you ".

When a Muslim is afflicted, through disclosure of secret, in person, property, body or social standing, it is mostly because of covert hostility, masked rancour or hidden envy, on the part of him who discloses the secret.

"The cause exposing others' weaknesses or endeavouring to expose them is a hidden illness, namely malice and envy, for a malicious and envious person's inmost being teems with ill feelings, but he keeps them hidden and never shows them up so long as there is no opportunity. Once he finds one the mask fails and morals vanish and the hidden ill feelings seep out" said Al Ghazali.

Such prejudice becomes more ferocious when bonds of friendship break up and it, thus, changes into enmity. If that old friend has no religion to protect him against vice, he will exploit those old secrets and use them as weapons to destroy his new enemy who once was an intimate friend; In bringing about this lamentable end prejudice has had the upper hand and satan has been the absolute master whose orders have over transgressors. It is in such cases, as a matter of fact, that the ability to keep secrets by whoever is entrusted with them is proven. He who reveals a secret when angry is base, for concealment at time of contentment is quite normal by any standard; but at the time of anger such an ability is put to the acid test. So if a secret is then revealed, this indicates baseness, ill-nature and evil intent. A sage once said "Do not befriend anyone who changes his tune in any of the following four cases: at time of anger or contentment, or when he shows greed or prejudice", on the contrary, faithfulness to brothers should not change in any case.

When is Disclosure of Secrets Permissible?

Secrets that the Sharia makes obligatory to keep as previously explained, should not be disclosed except in certain cases, inter alia:

1. Termination of Secrecy:

If a secret is announced by someone other than the entrusted person, the latter is not to blame if he discloses it. Termination of secrecy is governed by the following:

a. That the one to whom the secret belongs discloses it, consequently it is no longer a secret. Therefore, there is no harm in revealing it. Nevertheless, some details that have not been disclosed may still be secret if he hates to reveal them or if disclosure will bring him harm. Hence, whoever commits a vile deed and openly says he so did, is excluded from those whose secrets should be kept, because he was first to disclose his own secret and never cared about what is said to him. The Prophet said,

"All the sins of my followers will be forgiven except those of the Mujahirin "

(those who commit a sin openly or disclose their sins to the people). An example of such disclosure is that a person commits a sin at night and though Allah, screens it from the public eye, then he comes in the morning and says:

"I did such and such (evil) deed yesterday, though he spent his night screened by his Lord (none knowing about his sin). And in the morning he removes Allah's screen from him".

(Agreed upon).

If a man is tempted to a sin and is not witnessed save by Allah, he should keep his action veiled by the screen of Allah and turn to Him in repentance. But if he goes around uncovering the screen of Allah drawn upon him, telling this person and that about his ignoble deed. it is, then as if he were seeking praise for the ignominy and bragging about the sin: Yet, by behaving so he becomes more and more detestable. Not exposing him will consequently be insignificant, since the lawfulness of keeping a secret and not exposing the sinner ends if he is one of those who rarely fall into sin and whose overt conduct is good and agreeable.

Allah, highly exalted be He, said

AS FOR THOSE OF YOUR WOMEN WHO MAY COMMIT WHOREDOM, CALL AGAINST THEM YOUR WITNESSES FROM AMONG YOU, THEN IF THEY TESTIFY, CONFINE THEM TO THEIR HOUSES TILL DEATH COMPLETE THEIR TURN OF LIFE, OR ALLAH APPOINT FOR THEM SOME OTHER WAY

(S4:V15)

Witnesses apparently are requested in this case to testify against the woman who is habitually sinning and is known for that. This reading of the verse is in conformity with what is known in the Sharia that a sinner who has turned repentant must not be exposed.

b. When detriments and disadvantages that may befall the one for whom a secret is kept or anyone else no longer exist in any form, whether physically, psychologically, morally or financially. This is the case if the reason for lawfulness of secrecy is to prevent a harm that may ensure. But if the secret is to be kept because it is a trust, the lawfulness of keeping it does not cease unless the one to whom the secret belongs permits that it can be made known or he himself discloses it.

c. When the one to whom the secret belongs permits disclosure. If he does so, the keeper of a secret is at liberty. But if he tells it to someone, he should do so in the best manner and select the best parts of what he has heard.

d. When obligation to keep a secret ends at a certain date, and this is due.

e. When the status of the one to whom the secret belongs changes from those whose secret is lawfully permitted to be kept to those whose secrets should lawfully be exposed; as it is the case when one commits apostasy, or indulges in announcing his own sins.

2. Death of One Whom A Secret Belongs:

In this case harm resulting from disclosure of secret often ceases to exist. Yet, there is more to it. Ibn Hajar reported: "When he dies, keeping that which has been necessary during his lifetime is no more so, except if there is something offensive." He further added "The question, it seems, has three aspects: it is admissible, probably recommendable when it involves something that means praising for a good deed or a virtue, or the like. It is disliked, when it involves talking about the misdeeds of a dead person; and it may be obligatory when it involves something one is morally bound to mention". Unquote (21)

I add that such a right may be due to the deceased in the first place: which may, for instance, be a trust he has covertly left to someone's care and requested that the matter should not be made known. So the keeper must hand it over to the legatees.

3. When keeping is more harmful than disclosing:

Hence Hadith scholars have uncovered the biographies of transmitters and certain incidents concerning them that are indicative of transgression, lack of faith, or no objection to telling lies or the like, not for the purpose of defaming Muslims but in order that those transmitters may be foiled, and people may not be deceived by the Hadiths they relate and take them as sound; whereas they are either defective or forged. To allow the lie to exist and make legal consequences on the basis of Hadiths that are falsely ascribed to the Prophet is more harmful than disclosing lies of liars.

The same thing applies to testifying. If one who is superficially honest looking but actually is not is called upon as witness, he who knows him well has the right to speak ill of him and give the reasons so as to guarantee that the one who is testified against is not wronged.

4. Prevention of Hazards:

Al-Zubaidy said: If (disclosure) must be resorted to so as to save a Muslim from being killed or by telling a reliable person that a woman is alone with a man in order to commit adultery spying by way of exception, is rightful, as Al Nawawi quoted 'Al Ahkam Al Sultaniya' (The Ruler's Provisions) and deemed it "Good". (22)

Jabir related that the Prophet said,

"Gatherings are a trust, so he who attends should not reveal a talk except in matters that are impermissible to be kept secret being detrimental to Muslims".

Yet, this is a defective Hadith. In a version by Abu-Dawud:

"Gatherings are a trust except three: One in which blood is unlawfully shed, or an impermissible sex is permitted or a gathering where an unlawful property is unjustly taken".

'No comment on the part of Abu Dawud indicates that he takes it as an "approved" Hadith' said Al Zubaidi. (23) The hadith means that when a Muslim attends a meeting and finds "present company" indulged in a vile act, he should not expose them nor disclose what he has seen except if it is one of the three cases stated, for it is a big evil and not exposing it will be greatly harmful. (24)

In the light of the above-mentioned the legal consequence of some cases can be determined:

The doctor is sure that a husband is incurably sterile, then the wife, somehow becomes pregnant. The doctor plans to inform the husband or those who are concerned. Is it permissible for him to do so?

What I can positively maintain is that the doctor is not permitted to say that the wife is pregnant as a result of adultery; for if he says so, he is a transgressor and is, thus, deserving to be punished by the provision for slanderous accusation, which is eighty lashes. This is if the woman demands so and the doctor fails to bring in four witnesses to support his claim. But if he just says to the husband "Examination" shows that you are completely sterile, and no more, he is in the right and it is not secret or a trust so that he is bound not to expose it. But if he knows that the woman has sinfully committed such an act, it is better, for the sake of keeping the integrity of the family, not to disclose. For disclosure will be of no consequence as far as attribution of pregnancy is concerned; it is the husband's since the son is for the marriage bed even if the husband disavows him, unless he takes the oath of "li'an" to effect the act of repudiation.

If a doctor commits an act that is in contravention with the ethics of the profession, then a fellow-doctor discovers that, should the latter report the matter and disclose the secret?

That, I believe, differs from one case to another; if the doctor has molested the other party or taken advantage of minority, insanity or the like, not exposing the culprit is by no means more important than enabling the victim to get his/her right.

But if the act is committed with the consent of the victim, when fully competent, and it is just a slip, then the doer is penitent, the matter should not be disclosed, especially when the perpetrator seeks assistance from the colleague, who has discovered the affair, in order to redress what has happened.

But if he persists in going astray and making advantage of his position, he should be stopped.

If the doctor finds out that the husband has a venereal disease, should he tell the family?

The answer, in my opinion, is that if the disease is infectious and is feared to be passed on to his wife or the rest of his family members, the harm that is expected to afflict the innocent is greater than the one from which the patient will suffer when his condition is made known. In this case the doctor must reveal the matter if asked or when necessity arises.

A patient has an eye operation, or is injured and as a result his ability to see is weakened to an extent that driving poses a hazard that threatens him and other people; should the case be reported to authorities?

The answer, I believe, is that there is no objection to doing this to prevent him from driving temporarily, if his eyesight weakness is not permanent, or in order to take away the driving license, to prevent ensuing risks, if the illness is permanent.

An oculist does his best but fails to cure the disease, and consequently the eye is damaged, is he lawfully liable from the Sharia point of view, and should he disclose the secret?

The answer is that if he is qualified, and has done all that an experienced doctor has to do, and his work has not been the cause of damage, he is not to pay damages and there is no secret to try to conceal.

An oculist makes a mistake and damages an eye by using a certain instrument inadvertently in a part of the eye and it is, thus, damaged from where he has intended to treat it. The patient does not know that the doctor is responsible for the damage. Should the doctor disclose the matter, and pay damages?

The answer is: Since the damage is caused by the doctor's mistake, he has to pay due indemnity for the damage is the same whether caused intentionally or unwittingly. But if he did his best and the damage happens from where he does not intend and cannot prevent, he pays no damages. Yet, if it is necessary to pay such damages, he should inform about that because it is someone's right that is not forfeited except by waiver or effectuation.

If a man and a woman visit a doctor to have a pre-marriage examination, then a certain disease is found out in one of them, which may result in having a deformed child, should the doctor inform the healthy one, and is he lawfully answerable for that, and is the patient marriage partner to be informed?

The answer is:

The fact that both partners have come for examination, it seems, makes it necessary to inform them with the results, or else the doctor will have deceived them and failed to do his duty in furnishing them with the actual health condition.

If a doctor is informed by his patient who occupies a sensitive position (an aircraft pilot for instance) that he, as well as some of his fellow pilots, are drug addicts; should the doctor inform those responsible of the secret, or should he report to the authorities concerned to take the necessary measures?

The answer, in my opinion is that in the Sharia the doctor is lawfully obliged to notify the patient's superiors as well as, the authorities concerned, if there is no administrative regulations, in order to prevent the horrible hazards that may result from piloting an aircraft by a person under influence of narcotics.

If a doctor is told by a female patient that she has left her illegitimate newborn in the road or at any other place to avoid a scandal, should the doctor inform the authorities, or should he keep the secret?

My answer is that he should keep the secret especially if she requests him not to disclose it and he makes a commitment to keep it. Nevertheless, he should not reveal the secret even if he does not pledge to do so for fear of highly probable risks on her life, and because of severe moral damages that, if secret is revealed, may befall the woman herself, her family and all her children.

One of a patient's eyes has lost the power to see, then it is superficially repaired so that whoever looks at him does not doubt that he cannot actually see except with one eye. The patients requests the doctor not tell (his wife or fiance;). Should the doctor respond to his request and conceal the secret?

The answer, in my opinion, is that the doctor should not disclose this secret for the patient will be harmed, and Allah knows best.

Annotations

Original story in 'Al-Bukhari' The Book of Oppression 25. The Book of Wedlock 83.
Related by Al-Bukhari (Fath Al Bari 9/176) and by others.
Fath Al-Bari 11/82. The Book of Asking permission' 46.
Related by Abu Dawud with "good" ascription, and by Al-Tirmidhi with nearly similar wording on the authority of Ibn Omar. He described it as "approved" (Al-Ihya & Takhrig Ahadith 51/1001). By Al Iraqi.
Related by Abu Dawud. Al Nesai and Al Hakim and said: "Sound". (Takhrig Ahadith ---> Al-Ihya 5/999) see also "Al-Zawajir" By Ibn Hajar Al-Haitamy 2/120.
"Al-Ihya" 5/960.
Al-Minhay 'Fi Shu'ab Al Iman' 3/362.
Al-Iraqi said: Related by Abu Dawud, Al-Nesa'y and Al-Hakim on the authority of Ukba Ibn Aamir and said: "sound" (Sharh Ihya Ulum Al-Deen 5/216).
Related by Ibn Addy Al-Mannawi commented on Ascription to Dawud "left" by Abu-Dawud.
Al-Ghazali: Ihya Ulum Al-Deen" (Sharhul Ihya 5/216).
Al-Zawajir By Ibn Hajar Al-Haitami 2/186 - Cairo, Mustafa Al-Halabi 3200 A. H.
Al-Hulaimi: "Al-Minhaj Fi Shu'ab Al-Iman" 3/364.
Al-Hulaimi: "Al-Minhaj Fi Shu'ab Al-Iman" 3/362.
Related by Abu-Dawud with 'sound ascribtion' ("Takhriq Ahadith Al-Ihya" 5/1000).
Sahih Muslim: Verified by Muhammad Fouad Abdulbaqi. Book 16 Wedlock 123.
See Al-Hulaimi: "Al-Minhaj Fi Shu'ab Al-Iman" 3/28.
Al-Iraqi said: Related by Abu Dawud in the Book of Good Manners (Al-Adab) and Al-Trimidhi in The Book of "Al-Bir Wal-Silah" on the authority of Jabir. He commented: "approved" (Sharhul-Ihya' 5/216).
Sharhul-Ihya' 5/216.
Tabsirat Al-Hukham Bihamish Fathul-Ali Al-Malik, Fatawi Al-Sheikh Eleish 1/217 in the book of Mawani' Al-Shahada.
'Al-Minhaj Fi Shu'ab Al-Iman' 3/362.
'Ihya Ulum Al-Deen' 5/958 Al-Shab Ed.
Ihya Ulum Al-Deen 5/960.
Al-Ihya Wa Sharhu 5/278.
Fathul-Bari 9/177-178.