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Chapter 3: Islamic penal law – criteria for implementation

Introduction

It is the responsibility of society that anyone who suffers from any illness, physical or mental, receives the required treatment, even if the individual concerned caused his own illness. Equally, it is the responsibility of society (towards a criminal) to rehabilitate him. Therefore any punishment must be based upon two related issues:

Protecting society from the reoccurrence of crime, Rehabilitating the criminal as far as possible. Muslims use the laws that are based on Islamic teachings, and they may not make laws that are in contradiction to those teachings. The Muslim judge may therefore legislate within the framework of Islamic teachings.

The judge may prescribe the punishments for those offences that have not specifically been outlined in Islamic Shari’ah. He may prescribe the penalties for offences relating to ‘secondary’ laws, such as traffic regulations. [These regulations are implemented on the basis of the principle “no harm may reach anyone” 25]. Also a judge may, for example, prescribe the penalties for the employee who is in breach of his employment contract.

According to Islamic law, punishment may be classified into two groups:

Those defined by Islamic law, known as Hadd [plural Hodud]. 26 Those not specifically defined by Islamic law. This category of punishment is referred to as Ta’zir. A judge may prescribe the Ta’zir punishment either for offences for which no specific punishment has been prescribed in Islamic law (such as defrauding, e.g. giving short measure), or for secondary offences such as traffic law violation. The rights of prisoners according to Islamic teachings prescription of the Ta’zir punishment is made on the basis of the criteria detailed in Islamic law.

The author has detailed in some other of his works 27 that those acts that are defined as ‘offences’ under Islamic law are far less than those defined under man-made law found in western democracies. The ratio is 1 to 100 or even less. This is because of the vast number of freedoms that are naturally available under Islamic law (but are suppressed under man-made laws). Only those acts are punishable if they are recognised as offences under Islamic law. Furthermore, Islamic punishment for ‘recognised’ offences can only be implemented under an Islamic system, as discussed in the book “The Process of Change.” 28 Otherwise how can a thief be expected not to steal when he is hungry and cannot find the means of feeding himself? Or how can one who commits illegal sex be expected not to do so when he cannot afford to marry? Allah states in the Qur’an:

{On no soul does Allah place a burden greater than it can bear.} 29 {Allah puts no burden on any person beyond what He has given him.} 30 {Our Lord! Lay not on us a burden greater than we have strength to bear.} 31

Therefore as far as the offences that take place under non-Islamic environments are concerned; no punishment may be carried for some of them, [and some form of punishment, lesser than the prescribed ones – Hadd – may be handed down for others]. An example of the first category is the case of stealing and eating others’ food during a famine. Another example is the case of the woman who was impelled to commit adultery. [In the case of the second category,] offences may carry some form of preventative punishment as seen fit by the judge. This is in cases where an individual had the opportunity to refrain from committing an offence, or could have committed a lesser offence when he was compelled to do so in a given situation.

Under an Islamic system, the government provides the Islamic freedoms such as those in agriculture, manufacturing, trade, education, and freedom in procuring and utilising the earth and its resources. Under such a system, one is able to earn his living honourably.

He is able to provide food and shelter for himself. He is able to marry and provide for his family. Those who are unable to provide for themselves are supported by the public fund. The (social) environment upholds the moral and ethical conducts and does not corrupt the individual through encouraging seduction and promiscuity,

consumption of alcohol, broadcasting sex programs, etc. (hence) luring the individual to corruption in various forms. Workers earn decent levels of income and their rights are not violated. The environment should not be such that workers are forced to work day and night only to get less than their right, as detailed in the book, Economics. 32 It is under such a system, which is positive in one way and negative in another (i.e. the freedom of many rights and the denial of some others), that the religious law considers the thief guilty. It considers those who gamble, commit adultery as offenders. They will then be dealt with according to the prescribed punishments.

However, if the law of the land legalises the production, sale and serving of alcohol, prostitution, homosexuality, and other immoral conducts, then those who engage in such conducts may not be prosecuted under Islamic law. If one is unable to earn a living and subsequently resorts to either stealing or other immoral means of earning, such as prostitution, in such cases Islamic punishment may not be carried out. Otherwise it will be against the teachings of the Qur’an, the Sunnah 33, the consensus of the scholars, and reason:

The Holy Qur’an states {except under compulsion of necessity} 34. The Prophet Muhammad (S) is quoted as saying; “(in) nine cases my people would be excused.” 35

Doesn’t the consensus of the scholars agree with this? Doesn’t reason point to the necessity of the duties and obligations being humane? In addition to the general principles which makes it evident that Islam is a religion or a “set of teachings” to facilitate and make life easy for mankind, Allah states, {Allah intends every facility for you. He does not want to put you to difficulties.} 36

Imam Sadiq alayhis-salam states, “Our followers are in a greater opportunity (facility) than what is between the heaven and the earth.” 37 However, the conduct of the ignorant and the greedy individuals in power reduces and narrows down, if not eliminates, the opportunities available to mankind.The contradictions of those who claim to be Islamic governments may be as follows:

under repressive and un-Islamic laws, and in inappropriate environments (from the Islamic point of view) they implement the punishments prescribed for a truly Islamic system 38. This (policy) presents Islam as a repulsive executioner, which drives people away from Islam.

Secondly, they carry out those punishments while preconditions for their implementation are not met, as prescribed in jurisprudence texts. 39

Thirdly they go further to prescribe other forms of punishments, penalties, as well as torture and imprisonment (under the banner of Islam) whereas there is no evidence for such measures anywhere in the four sources 40 of Islamic jurisprudence, but in fact the four sources are totally against such measures.

Such conducts by governments who carry ‘Islamic’ labels have depicted Islam as a brutal and oppressive regime. Islamic penal law – criteria for implementation Criteria for executing the penal law Penal laws may only be executed if all pre-requisites and criteria for implementing the Islamic penal system are met, otherwise the pre-defined punishment – the Hadd – may not be carried out. Furthermore, all aspects of the social environment, the offender, and the offence must be taken into account before it is permissible to execute the Islamic penal code. Some of those criteria and considerations are:

Correctness and validity of the ruling government, Circumstances of the offender and the offence, Validity of the offence under Islamic law. Correctness and validity of Government A corrupt government lures the people into crime, as the Arabic saying goes: “people follow the conduct of their leaders”.

Religious scholars have pointed out that the criterion for the leadership of government is being a Marje’ (religious authority), since the Marje’ is the representative of the Imam al-Mahdi alayhis-salam 41. The author has also discussed the necessity of establishing a Council for religious authorities, if there were more than one Marje’ which is often the case 42. The criteria for the Marje’ are such aspects as knowledge, expertise, ability, faith, and being a practising Muslim, as detailed in the book of Taqleed. 43 Therefore the government may only be led by those who are sincere and qualified to do so. Allah states in the Qur’an:

{O you who believe! Why say you that which you do not? Grievously odious is it in the sight of Allah that you say that which you do not.} 44 Furthermore, Allah states in the Qur’an:

{My Promise is not within the reach of evil-doers} 45, See Islamic system of government by the author for more details. Here the author refers to the 12th Imam who has been appointed by the Prophet (S), on instructions from Allah, to lead the Muslims after the Prophet (S). alayhis-salam (A). This clearly confirms that unjust and corrupt rulers may never stand to represent the system set out in Islamic teachings.

A statement in this regard from the Prophet (S) declares, “Curse be upon those who order others to do good but do not practice it themselves, and (upon) those who preach others to refrain from evil while they follow it.”  46

In one event, someone saw the caliph cutting off the hands of a thief and said, “the overt thief cuts (the hand of) the covert thief”. Circumstances of the offender and the offence The act of the offence, as an act does not warrant punishment until it is associated with the circumstance of offence.

Some of the criteria for the offender to receive punishment are: adolescence, sound mind, consciousness, choice, comprehension and that he is not compelled by any means 47, to commit that offence. Otherwise, the underage, the insane, the non-conscious such as the sleepwalker and the one under the influence of alcohol, the compelled, the coerced, the one ignorant of the law and occasionally even the one who knows the law, may not be punished as detailed in jurisprudence texts.

There are exceptional cases, such as an underage offender who is able to distinguish, in which case the offender is disciplined in some cases. Also punishment will be waived in cases where on the basis of “questions of priorities” offences are committed. For example, in the case of a ship being in an imminent danger of sinking the cargo is dumped and, as in the case of the prophet Jonah, even some of the passengers may be thrown overboard.

(In this event, the prophet Jonah was thrown overboard, as recorded in history. 48) Another example is, damaging a ship in order to prevent it from being confiscated by pirates or despot authorities. 49 Some modern schools of thought refer to what we have discussed here on the personal aspect (of the individual who commits the crime) alongside the crime itself. Aspects of the crime and the person are not considered alone, but they are considered together. On this basis, two sets of dossiers are created for each crime. Furthermore the judge should co-operate with experts and relevant organisations such as psychiatrists, social scientists (workers) and charity organisations as a means to eradicate crime.

It is imperative to eliminate crime and not to antagonise the criminal. If the offender committed adultery and s/he does not have a partner due to factors beyond his/her ability, the judge, in co-operation with say, a marriage agency should arrange for the offender to marry. If the offender steals because s/he does not have a job, the employment agency helps the offender to find a job, etc.

There have been many references in the Islamic Shari’ah to the above criterion (circumstances of the offender and of the offence), which in fact deserves the compilation of an entire book. Some of those references are outlined below together with the nature of the consideration.

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