RABU, 13 APRIL 2011

PUNISHMENT IN ISLAMIC LAW

The Shari‘ah ordained by Allah regarding punishments has already been elaborated upon by this writer in a separate discourse. It is shown in this discourse that the Shari‘ah has specified the punishments of only five crimes. God command punishment for trying to do something that endanger human life and soul. The punishments of all other crimes have been left to the rulers of a state to legislate.
Based on the qoran, criminal act committed by a person responsible be punished with a penalty in accordance with justice according to the instructions of God.
Basis rather than a criminal who does, what evil deeds could be convicted and how the sentence. The first is based on faith in God and God's revelation of the Qur'an and the second is based on common sense people to get the benefit of the world and happiness in the afterlife.
1. The Punishment of Drinking
The punishment of drinking is not part of the Shari‘ah. In the time of the Mohammad (sws), this offence was punished by punching and kicking the offender, and by beating him with twisted sheets of cloth or with twisted pieces of date-palms. It is only the prerogative of Mohammad (sws) to regard anything as part of the Shari‘ah, and if he has done so in a particular case, Abu Bakr (rta) or ‘Umar (rta) can in no way alter it.
Had this punishment been part of the Shari‘ah, Abu Bakr (rta) would never have replaced it with forty stripes, nor would ‘Umar (rta) have increased it to eighty stripes. It is clear that if the Prophet (sws) punished such criminals by beating them, he did not in the capacity of a law-giver but in the capacity of a Muslim ruler. His successors punished such criminals by whipping them with forty and eighty stripes respectively in their capacity as rulers. Consequently, it can be safely said that the punishment of drinking is not a Hadd; it is a Ta‘zir, which the parliament of an Islamic State can adopt and if needed legislate afresh in this regard.
The punishment of drinking was fixed by ‘Umar bin Khottob at eighty stripes after he in his capacity of a Caliph had consulted the members of his Shura. The Caliph Abu Bakr had decreed that this crime be punishable by forty stripes, and then the Caliph ‘Umar in his own times increased it to eighty stripes when he saw that people were not desisting from it.
2. The Death Punishment
The death sentence can only be given to a person who has killed someone or to someone who is guilty of spreading disorder in a society. No other person can be punished by death. The Qur’an says:
مَنْ قَتَلَ نَفْسًا بِغَيْرِ نَفْسٍ أَوْ فَسَادٍ فِي الْأَرْضِ فَكَأَنَّمَا قَتَلَ النَّاسَ جَمِيعًا
He who killed a human being without the latter being guilty of killing another or of spreading disorder in the land should be looked upon as if he had killed all of mankind. (Al-Maidah:32)
This is the verdict of the Qur’an. Hence, except for these two offences, neither a person nor an Islamic government has any right to administer the death sentence to a person.
According Syariah a murder when a sentence is not commensurate, set a fire would cause resentment in my family who were killed. Furthermore, there will be a sequence of revenge killings could add many more. This must be stopped by applying qishos sentence, this is the wisdom contained in the execution of the sentence which was affirmed in qishos texts of the Qur'an.
The requirement is a killer Qishos must mature, intelligent, co-religionists, independent, and not the father killed his son, Qishos the limbs should be similar, such as right-to-right, and the members still work (meaning not blameless).
3. The Punishment of Apostasy
The punishment of apostasy has arisen by misunderstanding a Hadith. This Hadith has been narrated by Ibn Abbas in the following way:
مَنْ بَدَّلَ دِينَهُ فَاقْتُلُوهُ (بخاري: رقم 3017)
Execute the person who changes his faith. (Bukhari: No. 3017)
This Hadith warrants the death penalty for every Muslim who, out of his own free will, becomes a disbeliever. The Qur’an uses the word Mushrikin for these people. 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.
This punishment is enforced upon the direct addressees of a Rasul in one of the two ways depending upon the situation which arises. In the first case, after accomplishing ‘اتمام الحجة’ (Itmamu’l-Hujjah) upon his nation, a Rasul 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 Ad and Thamud and the people of Noah (sws) and Lot (sws) besides many other nations met with this dreadful fate, as is mentioned in the Qur’an. In the second case, a Rasul and his companions are able to acquire political ascendancy in a land where after accomplishing ‘اتمام الحجة’ (Itmamu’l-Hujjah) upon their people they migrate. In this case, a Rasul 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 Rasul Muhammad (sws). On account of this, the Almighty bade him to declare that those people among the Ummiyyin who had not accepted faith until the day of Hajj al-Akbar (9th Hijra) should be given a final extension by a proclamation made in the field of ‘Arafat on that day. According to the proclamation, this final extension would end with the last day of the month of Muharram, during which they had to accept faith, or face execution at the end of that period.
4. The Jail Punishment
The jail punishment is not merely a punishment, it is in fact a barbarity that man has invented for himself. It is therefore not expected from an Islamic government to include it in its penal code. No doubt, dark cells, underground dungeons and castle turrets have always existed in the known history of mankind. The historian’s pen also bears witness to the tragic deaths of two great scholars of Islam, Imam Abu Hanifah (d:767 AD) and Imam Ibn Taymiyyah (d:1327 AD), both of whom died in captivity. But it must be borne in mind, that before the eighteenth century jails were only used as temporary lock ups. Criminals were usually detained in them during the course of their inquiry and investigation, or when they awaited the infliction of punishments like whipping, execution and other similar sentences. The concept of confining an offender behind bars for two, four or ten years as a penalty for a crime, has originated and gained acceptance only in the past three centuries. It is now a fairly common practice to punish most criminals in this manner.
The whipping sentence is over in a while, hands are cut once and for all, crucifixion ends a criminal’s life after an extreme physical torture, and execution severs irrevocably every string of his relation with this world; but it is this punishment in which the inner personality of a person is continually tormented. Some of his daily routines, in which everyone has an unconditional freedom, become totally dependent on others. He sleeps and awakes upon the will of others. He sits and stands at the direction of others. His eating and drinking habits are governed by others, and even in a matter as personal as relieving one’s self, he has to seek permission from others. He is made to beg for a glass of water, a loaf of bread and even a puff of a cigarette, and on many occasions he is made to lose his self-respect to obtain them. He is deprived from the love and affection of his parents, wife and children, and is made to suppress some of his desires upon which the Almighty has posed no restriction even in the holy month of Ramadan, during which restraint and control are the keywords. In short, he faces a Hell on earth, in which he neither lives nor perishes.
Also, it is not the criminal alone who has to endure this punishment. His entire family is made to suffer with him as well. The most affected among them is his wife. The extent of moral, psychological, social and economic problems she has to bear if her husband is jailed for nine or ten years can only be estimated by the faithful wives who themselves have undergone this traumatic experience. The children also suffer an ordeal no less. Everyone knows how adversely they are affected psychologically, when they observe their father being tortured and tormented for years and years. Whipping, cutting off hands, crucifixion and execution all are punishments which either mete out extreme physical suffering for a while or decide the fate of a criminal once and for all. But in case of imprisonment, every time the children visit their father confined in the clutches of a murky cell, intense sentiments build up and strengthen in their minds, after which how can they be expected to have poised and balanced personalities. They can rightly question the society about the ethical grounds on which they were deprived of paternal care and affection when the Almighty had blessed them with it.
It should also be kept in mind that after flogging a criminal, amputating his hands and inflicting other similar punishments upon him, we have no means to know when he decides to change his ill-ways – an event that might occur anytime during his life. Common sense demands that if a criminal intends to correct himself he should be readily provided with the opportunities to change himself and to lead a life of a responsible citizen. But of all the punishments, it is this punishment in which the law fixes for him the time when he should actually change, even though it has no means of ascertaining it.
Owing to all these evils and ill-effects, the Islamic Penal Code though understandably contains a provision for house arresting a criminal or exiling him with his family if needed, it does not sanction in any way the confining of a criminal in a prison.
The aims and objectives of law of Allah In command law is to preserve Maslahah, as well as to avoid ugliness, both in the world and the hereafter. These objectives are obtained through taklif, whose implementation depends on the extent of understanding of the main sources of law, namely the Qur'an and Sunnah.
Every society wishes that after being punished and chastised, a criminal should mend his ways and correct himself. It is quite evident that the most effective way to achieve this purpose is to keep him in healthy company and in conducive environments.
Punishments in Islamic law are ways to how society life well in this world. If the punishment cannot supply peace, we have to look for another way in order we can life well without disturbing of ugliness. So, actually, all people just need justice. If everyone can feel justice, I trust this world will be peace.