Javed Ahmad Ghamidi /
The Shari'ah ordained by the Almighty regarding punishments has already been elaborated upon by this writer in a separate discourse1. It is shown in this discourse that the Shari'ah has specified the punishments of only five crimes2. The punishments of all other crimes have been left to the rulers of a state to legislate.
However, in this regard, as far as the prevailing concepts are concerned, four questions may arise:
(1) Has not the Shari'ah fixed the punishment of drinking as eighty stripes?
(2) Is death not the punishment for apostasy according to the Shari'ah?
(3) Can a state award death penalty in crimes whose punishments have not been ordained by the Shari'ah?
(4) Can the jail punishment be given to criminals as far as the crimes mentioned in (3) are concerned?
I now present my viewpoint in detail on these questions:
1. The Punishment of Drinking
The answer to the first question is that the punishment of drinking was fixed at eighty stripes by 'Umar (rta) after he in his capacity of a Caliph had consulted the members of his Shura. In the time of the Prophet (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. The Caliph Abu Bakr (rta) had decreed that this crime be punishable by forty stripes, and then the Caliph 'Umar (rta) in his own times increased it to eighty stripes when he saw that people were not desisting from it. In the words of Ibn Rushd:3
فعمدة الجمهور تشاور عمر والصحابة لما كثر في زمانه شرب الخمر واشارة على عليه بان يجعل الحد ثمانين قياسًا على حد الفرية فانه كما قيل عنه رضى الله عنه إذا شرب سكر وإذا سكر هذى وإذا هذى افتري
The general opinion in this regard is based on the consultation of 'Umar (rta) with the members of his Shura. The session of this Shura took place during his period when people started indulging in this habit more frequently. 'Ali (rta) opined that, by analogy with the punishment of Qadhf, its punishment should also be fixed at eighty stripes. It is said that while presenting his arguments, he had remarked: 'When he [– the criminal –] drinks, he will get intoxicated and once he gets intoxicated, he will utter nonsense; and once he starts uttering nonsense, he will falsely accuse other people'.
It is evident from this, that the punishment of drinking is not part of the Shari'ah. It is only the prerogative of the Prophet (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 so 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 H~add 4; it is a Ta'zir5, which the parliament of an Islamic State can adopt and if needed legislate afresh in this regard.
2. The Punishment of Apostasy
The answer to the second question is that the punishment of apostasy has arisen by misunderstanding a Hadith. This H~adith 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)
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~adith 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.
In the opinion of this writer, this view of our jurists is not correct. The verdict pronounced in this H~adith has a specific application and not a general one: It is only confined to the people towards whom the Prophet (sws) had been directly assigned. The Qur'an uses the words Mushrikin and Ummiyyin for these people.
I now elaborate upon this view.
In this world, we are well aware of the fact that life has been endowed 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 Rasul (Messenger of Allah), once the truth is unveiled 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 'اتمام الحجة'(Itmamu'l-H~ujjah6) this trial becomes totally complete, therefore 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 Rasul in one of the two ways depending upon the situation which arises. In the first case, after accomplishing 'اتمام الحجة' (Itmamu'l-H~ujjah) 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 A^d 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-H~ujjah) 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 H~ajj 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 Muh~arram, during which they had to accept faith, or face execution at the end of that period. The Qur'an 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)
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 Zakah, then spare their lives. God is Most-Forgiving and Ever-Merciful. (9:5)
A H~adith illustrates this law in the following manner:
أُمِرْتُ 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 (مسلم: رقم 22)
I have been directed to wage war against these people until they testify to the oneness of God and to the prophethood of Muhammad, establish the prayer and pay Zakah. 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. (Muslim: No. 22)
This law, as has been stated before, is specifically meant for the Ummiyyin 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, that even the people of the Book who were present in his times were exempted from this law by the Qur'an. Consequently, where the death penalty for the Ummiyyin is mentioned in the Qur'an, 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'an 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, 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 Ummiyyin if they did not accept faith after a certain period. Hence, it follows that if a person among the Ummiyyin 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~adith qualifies the Ummiyyin just as the words 'the people' (Al-nas) in the H~adith quoted earlier are specifically meant for the Ummiyyin. When the basis of this law as narrated in these A%hadith has been specified in the Qur'an, 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~adith 'Execute the person who changes his faith' with its basis in the Qur'an as they have done in the case of 'the people' (Al-nas) of the H~adith quoted above. Instead of interpreting the H~adith in the light of the relationship between the Qur'an and H~adith, they have interpreted it in the absolute sense, totally against the context of the Qur'an. Consequently, in their opinion the verdict pronounced in the H~adith has a general and an unconditional application. They have thereby incorporated in the Islamic Penal Code a punishment which has no basis in the Shari'ah.
3. The Capital Punishment
The answer to the third question is that 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 (32:5)
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. (5:32)
This is the verdict of the Qur'an. Hence, except for these two offences, neither a person7 nor an Islamic government has any right to administer the death sentence to a person.
4. The Jail Punishment
The answer to the fourth question is that 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 Prophet Joseph's tale of imprisonment has been narrated both in the Qur'an and in the Bible. The historian's pen also bears witness to the tragic deaths of two great scholars of Islam, ImamAbu H~anifah (d:767 AD) and ImamIbn 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.
Although various institutions akin to the prison existed in Europe in the fourteenth century like the Delle Stinche in Florence, it is generally believed that 'The Walnut Street Jail' set up in Philadelphia in 1790 was the first modern prison. Its antecedents are to be found in the reformitories and houses of correction established in London (1557), Amsterdam (1596), Rome (1704) and in Ghent (1773), an old city of Belgium. Subsequently, as the Western civilization acquired ascendancy, prisons were established all over the world. Within the precincts of these inhuman institutions, man is made to starve the personality within him for months and years; while his offspring, unaware about the concepts of crime and punishment, spend their childhood helplessly watching him bear the agony of life.
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.
Consider also, that 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. Oddly enough, through this punishment he is kept isolated from people who might have a good influence upon him. His family, clan and even the society are in no way given the opportunity to reform and rehabilitate him. He is put away for years in the company of criminals in such a manner that even if he desires to reform himself, he is not given any chance to do so. Quite expectedly, during the period of confinement, his association with other criminals becomes a perfect source for stimulating his evil instincts. His criminal tendencies develop further, as he begins to view everything on their basis. This companionship also provides him with an almost unlimited opportunity of discussing, planning and perfecting the art of breaching the law. He gets to know rare techniques and unique methods to hoodwink the law through the courtesy of an underworld especially provided to bestow him with some ingenious skills. An omnipresent mafia is a source of perpetual inspiration for him to emulate the records set by the masterminds of the trade. With such a set up what good a society expects from such a highly qualified law breaker once he is injected back in the society, is something quite beyond imagination.
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.