i. Regarding Severity in Islamic Punishments
For many centuries now, Islamic punishments have remained one of the hottest subjects of debate both inside and outside the Muslim world. “Islamic punishments are barbaric”, “Death to the death punishment”, “Civilized societies do not flog, stone to death or amputate hands” are a few of the typical slogans and comments that echo and reverberate among the intellectual elite of this ummah.
Without refuting the fact that Islamic punishments are indeed very severe, two things may perhaps help the inquisitive mind in understanding the nature and logic of this severity.
The first thing that needs to be kept in mind is that if one reflects on the style and linguistic constructions in which these punishments are mentioned in the Qur’ān, it is clear that these punishments indicate the most extreme forms of reproof. They should be given only if the extent of the crime and the state of the perpetrator of the crime deserve no leniency. In other words, it is not simply a matter of a court determining the culpability of an individual in a particular crime or not; it is equally important that contextual information, for instance, factors which led up to the crime, is taken into account. If this information results in a judge deciding that the crime has been committed with extenuating circumstances, he has the authority to punish the criminal with lesser punishments like payment of fines or corporal punishment. Precisely on such grounds, in a particular case, the caliph ‘Umar (rta) refused to amputate the hand of a person who was forced to steal because of hunger simply because he thought the circumstances were such that the person deserved leniency. It is known that there was a severe drought during his rule and it was during this drought that the incident had taken place. People think that ‘Umar (rta) had abrogated the punishment, whereas, ‘Umar (rta) thought that the criminal deserved leniency. In other words, one can easily conclude that in this particular aspect the Islamic penal code is no different to other penal codes.
The second thing that needs to be taken into consideration is that the purpose of most Islamic punishments is not merely to punish the criminal, but to make his punishment an act of deterrence for any further instance of the crime. Everyone would agree that peace and security of a society occupy fundamental importance if it is to develop and prosper. Societies which are crime-ridden and in which people feel insecure obviously soon disintegrate and eventually have no role in the development of culture and civilization. As such, it is the primary responsibility of a government to make sure that the life, wealth and honour of its citizens are protected to the utmost. Besides educating and instructing people so that they have morally sound personalities, it is necessary to severely punish people who, in spite of being provided with the opportunities of life, exceed limits by abusing the life, wealth and honour of others. In order to cleanse a society from crime as much as possible, Islam wants to make an example of people who create nuisance in the society and disrupt its peace and tranquillity. Consequently, the punishments it prescribes are instrumental in bringing to the greatest degree peace and security to a society.
ii. Apostasy is Punishable by Death
Our jurists believe that apostasy is punishable by death. This view is not correct. While critically analyzing it, Ghāmidī, writes:
The punishment of apostasy has arisen by misunderstanding a Hadīth. This H~adīth has been narrated by ‘Abdullāh ibn ‘Abbās (rta) from the Prophet (sws) in the following way:
مَنْ بَدَّلَ دِينَهُ فَاقْتُلُوهُ
“Execute the person who changes his faith.”
Our jurists regard this verdict to have a general application for all times upon every Muslim who renounces his faith from the times of the Prophet (sws) to the Day of Judgement. In their opinion, this H~adīth warrants the death penalty for every Muslim who, out of his own free will, becomes a disbeliever. In this matter, the only point in which there is a disagreement among the jurists is whether an apostate should be granted time for repentance before executing him, and if so what should be the extent of this period. The Hanafite jurists, however, exempt women from this punishment. Apart from them, there is a general consensus among the jurists that every apostate, man or woman, should be punished by death.
It needs to be realized thatthis view of our jurists is not correct. The verdict pronounced in this H~adīth has a specific application and not a general one: it is only confined to people towards whom the Prophet (sws) had been directly assigned. The Qur’ān uses the words mushrikīn and ummiyyīn for these people.
An elaboration of this view follows.
In this world, we are well aware of the fact that life has been given to us not because it is our right but because it is a trial and a test for us. Death puts an end to it whenever the duration of this test is over, as deemed by the Almighty. Commonly, He fixes the length of this period on the basis of His knowledge and wisdom. However, in case of the direct and foremost addressees of a rasūl (messenger of Allah), once the truth is communicated to them in its ultimate form after which they have no excuse but stubbornness and enmity to deny it, they lose their right to live. The Almighty had blessed them with life to try and test them, and since after اِِتْمَام الحُُجَّة (itmām al-h~ujjah) this trial becomes totally complete, the law of the Almighty in this regard is that generally such people are not given any further right to live and the death sentence is imposed upon them.
This punishment is enforced upon the direct addressees of a rasūl in one of the two ways depending upon the situation which arises. In the first case, after accomplishing اِتْمَامُ الحُجَّة (itmām al-h~ujjah) upon his nation, a rasūl and his Companions (rta) not being able to achieve political ascendancy in their territory migrate from their people. In this case, Divine punishment descends upon their nation in the form of raging storms, cyclones and other calamities, which completely destroy them. The tribes of A^d and Thamūd and the people of Noah (sws) and Lot (sws) besides many other nations met with this dreadful fate, as is mentioned in the Qur’ān. In the second case, a rasūl and his Companions (rta) are able to acquire political ascendancy in a land where after accomplishingاِتْمَامُ الحُجَّة (itmām al-h~ujjah) upon their people they migrate. In this case, a rasūl and his companions subdue their nation by force, and execute them if they do not accept faith. It was this situation which had arisen in the case of the rasūl Muhammad (sws). On account of this, the Almighty bade him declare that those people among the ummiyyīn who had not accepted faith until the day of H~ajj al-Akbar (9th hijrah) should be given a final extension by a proclamation made in the field of ‘Arafāt on that day. According to the proclamation, this final extension would end with the last day of the month of Muh~arram, during which they had to accept faith, or face execution at the end of that period. The Qur’ān says:
فَإِذَا انسَلَخَ الْأَشْهُرُ الْحُرُمُ فَاقْتُلُوا الْمُشْرِكِينَ حَيْثُ وَجَدْتُمُوهُمْ وَخُذُوهُمْ وَاحْصُرُوهُمْ وَاقْعُدُوا لَهُمْ كُلَّ مَرْصَدٍ فَإِنْ تَابُوا وَأَقَامُوا الصَّلَاةَ وَآتَوْا الزَّكَاةَ فَخَلُّوا سَبِيلَهُمْ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ (5:9)
So when the forbidden months are over, slay the Idolaters wherever you find them. Seize them, besiege them and every where lie in ambush for them. But if they repent from their ill beliefs and establish the prayer and pay zakāh, then spare their lives. God is Most-Forgiving and Ever-Merciful. (9:5)
A H~adīth illustrates this law in the following manner:
عن عبد اللَّهِ بن عُمَرَ قال قال رسول اللَّهِ صلى الله عليه وسلمأُمِرْتُ أَنْ أُقَاتِلَ النَّاسَ حَتَّى يَشْهَدُوا أَنْ لَا إِلَهَ إِلَّا اللَّهُ وَأَنَّ مُحَمَّدًا رَسُولُ اللَّهِ وَيُقِيمُوا الصَّلَاةَ وَيُؤْتُوا الزَّكَاةَ فَإِذَا فَعَلُوا ذَلِكَ عَصَمُوا مِنِّي دِمَاءَهُمْ وَأَمْوَالَهُمْ إِلَّا بِحَقِّ الْإِسْلَامِ وَحِسَابُهُمْ عَلَى اللَّهِ
‘Abdullāh ibn ‘Umar reports from the Prophet: “I have been directed to wage war against these people untilthey testify to the oneness of God and to the prophethood of Muhammad, establish the prayer and pay zakāh. If they accept these terms, their lives will be spared except if they commit some other violation that entails their execution by Islamic law and [in the Hereafter] their account rests with God.”
This law, as has been stated before, is specifically meant for the ummiyyīn or the people towards whom Muhammad (sws) had been directly assigned. Apart from them, it has no bearing upon any other person or nation. So much so, even the people of the Book who were present in his times were exempted from this law by the Qur’ān. Consequently, where the death penalty for the ummiyyīn is mentioned in the Qur’ān, adjacent to it has also been stated in unequivocal terms that the people of the Book shall be spared and granted citizenship if they pay jizyah. The Qur’ān says:
قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا حَرَّمَ اللَّهُ وَرَسُولُهُ وَلَا يَدِينُونَ دِينَ الْحَقِّ مِنْ الَّذِينَ أُوتُوا الْكِتَابَ حَتَّى يُعْطُوا الْجِزْيَةَ عَنْ يَدٍ وَهُمْ صَاغِرُونَ (29:9)
Fight against those among the people of the Book who believe not in God nor in the Last Day, and who do not forbid what God and His Prophet have forbidden and do not accept the Religion of Truth as their own religion. [Fight them] until they pay jizyah out of subjugation and lead a life of submission. (9:29)
The foregoing discussion, outlines a law of the Almighty. There is a natural corollary to this Divine law as obvious as the law itself. As stated earlier, the death penalty had been imposed upon the ummiyyīn if they did not accept faith after a certain period. Hence, it follows that if a person among the ummiyyīn after accepting faith reverted to his original state of disbelief, he had to face the same penalty. Indeed, it is this reversion about which the Prophet (sws) is reported to have said: “execute the person who changes his faith.”
The relative pronoun “who” in the above quoted H~adīth qualifies the ummiyyīn just as the words “the people” (al-nās) in the H~adīth quoted earlier are specifically meant for the ummiyyīn. When the basis of this law as narrated in these Ahādīthhas been specified in the Qur’ān, then quite naturally this specification should also be sustained in the corollary of the law. Our jurists have committed the cardinal mistake of not relating the relative pronoun “who” in the H~adīth“execute the person who changes his faith” with its basis in the Qur’ān as they have done in the case of “the people” (al-nās) of the H~adīth quoted above. Instead of interpreting the H~adīth in the light of the relationship between the Qur’ān and H~adīth, they have interpreted it in the absolute sense, totally against the context of the Qur’ān. Consequently, in their opinion the verdict pronounced in the H~adīth has a general and an unconditional application. They have thereby incorporated in the Islamic Penal Code a punishment which has no basis in the sharī‘ah.
iii. A Woman has Half a Man’s Testimony
In the opinion of most Muslim jurists, the testimony of a woman – where acceptable to them – is half that of a man.They base their view upon the following verse of the Qur’ān:
وَاسْتَشْهِدُوا شَهِيدَيْنِ مِنْ رِجَالِكُمْ فَإِنْ لَمْ يَكُونَا رَجُلَيْنِ فَرَجُلٌ وَامْرَأَتَانِ مِمَّنْ تَرْضَوْنَ مِنْ الشُّهَدَاءِ أَنْ تَضِلَّ إِحْدَاهُمَا فَتُذَكِّرَ إِحْدَاهُمَا الْأُخْرَى (282:2)
And call in two male witnesses from among your men [over the document of loan]. And if two men cannot be found, then one man and two women from among those whom you deem appropriate as witnesses so that if either of them gets confused the other reminds her. (2:282)
While critically evaluating this view, Ghāmidī writes:
This view of our jurists concerning the testimony of a woman is not correct owing to the following two reasons:
Firstly, the verse has nothing to do with the bearing of witness to an incident. It explicitly relates to testifying over a document. It is very evident that in the second case witnesses are selected by an external agency, while in the first case the presence of a witness at the site of an incident is an accidental affair. If we have written a document or signed an agreement, then the selection of witnesses rests upon our discretion, while in the case of adultery, theft, robbery and other similar crimes whoever is present at the site must be regarded as a witness. The difference between the two cases is so pronounced that no law about one can be deduced on the basis of the other.
Secondly, the context and style of the verse is such that it cannot relate to law or the judicial forums of a state. It is not that after addressing a court of law that it has been said that if such a law suit is presented before them by a claimant, then they should call in witnesses in this prescribed manner. On the contrary, this verse directly addresses people who borrow and lend money over a fixed period. It urges them that if they are involved in such dealings, then an agreement between the two parties must be written down, and to avoid disputes and financial losses only witnesses who are honest, reliable and morally sound should be appointed. At the same time, their personal involvement and occupations should be suited to fulfil this responsibility in a befitting manner. The verse should not be taken to mean that a law-suit will only stand proven in court if at least two men or one man and two women bear witness to it. It is reiterated that the verse is merely a guidance for the general masses in their social affairs and counsels them to abide by it so that any dispute can be avoided. It is for their own benefit and welfare that this procedure should be undertaken.
Consequently, about all such directives the Qur’ān says:
ذَالِكُمْ أَقْسَطُ عِنْدَ اللَّهِ وَأَقْوَمُ لِلشَّهَادَةِ وَأَدْنَى أَلَّا تَرْتَابُوا (282:2)
This is more just in the sight of God; it ensures accuracy in testifying and is the most appropriate way for you to safeguard against all doubts. (2:282)
Ibn Qayyim comments on this verse in the following manner:
فهذا في التحمل والوثيقة التي يحفظ بها صاحب المال حقه لأفي طريق الحكم وما يحكم به الحاكم فان هذا شيء وهذا شئ
It relates to the heavy responsibility of testifying by which an owner of wealth protects his rights. It has no concern with the decision of a court. The two are absolutely different from each other.
iv.A Woman has Half a Man’s Diyat
Diyatmeans a fine a murderer has to pay the family of the murdered person in case he or she is granted pardon. It is believed that if a lady is murdered the fine that would be given to her relatives would be half the amount of what would have been given in case a man had been murdered.
Consider now the verse of the Qur’ānwhich mentions this issue:
فَمَنْ عُفِيَ لَهُ مِنْ أَخِيهِ شَيْءٌ فَاتِّبَاعٌ بِالْمَعْرُوفِ وَأَدَاءٌ إِلَيْهِ بِإِحْسَانٍ (178:2)
Then for whom there has been some pardon from his brother, [the remission] should be followed according to the ma‘rūf and diyat should be paid with goodness. (2:178)
It is evident from this verse that the diyat should be paid according to the ma‘rūf of a society. Ma‘rūf means the customs and conventions of a society.
In the times of the Prophet (sws), the ma‘rūf of the Arab society was that the diyat of a woman was half that of a man. So while following the directive of the Qur’ānregarding diyat, the Prophet (sws) enforced the ma‘rūf of his society.
The ma‘rūf of different societies may be different and therefore the ma‘rūf of each society should be followed. In other words, Islam has not obligated Muslims to discriminate in this matter between a man or a woman, a slave or a free man and a Muslim or a non-Muslim. It wants them to follow the ma‘rūf of our society. Scholars have erroneously enforced the ma‘rūf of the Arab society of the times of the Prophet (sws). Since then, the wheel of fortune has revolved through fourteen more centuries and the tide of time has sped past innumerable crests and falls. Social conditions and cultural traditions have undergone a drastic change.
As per this Qur’ānicdirective, every society is to obey its custom, and since in our own society no law about diyat exists, those at the helm of affairs of our state can re-legislate in this regard.
v. Punishment even if a Crime is not Fully Proven
It is alleged by some jurists that if a crime is not fully proven then in accordance with the following words attributed to the Prophet (sws) whereas a h~addpunishment cannot be given, a ta‘zīr punishment can be given in such cases:
اِدْرَؤُا الْحُدُوْدَ بِالشُبْهَاتْ
Do not enforce a h~addpunishment if there is a doubt.
A little deliberation shows that this argument is baseless. While pointing this out, Ghāmidī, writes:
The H~adīth in no way means that if there is some doubt, a h~addpunishment shall not be given; it only means that in case of doubt, no punishment at all can be given. The word h~addhas not been used as a term here; it is used in its literal sense for the term came into existence much later after the Prophet (sws). What he has reported to have said is based on the universal principle of the ethics of law that since in case of doubt a crime does not stand proven, the criminal cannot be punished. Consequently, if these people say that a ta‘zīr punishment can be given on the basis of a woman’s testimony, then this only means that the crime stands proven in their eyes. But then the question arises: If the crime stands proven, then why can’t a h~addpunishment be given? And if they contend that if a woman’s testimony always leaves room for doubt, then a crime cannot be considered to be proven; so on what basis should the ta‘zīr punishment be administered?
A crime, obviously, cannot be regarded to be proven ten, twenty, ninety or ninety-nine percent. It is either proven one hundred percent or not proven at all. Consequently, it is absolutely baseless to accept a state between proof and lack of proof in a crime and in no way can it be accepted that a h~addpunishment will be administered on certain grounds and ta‘zīr punishment on certain other grounds. No doubt that the nature of the crime and the circumstances of the criminal do have a bearing on the extent of punishment that is to be given. However, to imply that the “extent” of proof forms a basis for punishment is something common sense totally rejects and human nature completely discards.