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
(1) Has not the Shari‘ah fixed
the punishment of drinking as eighty stripes?
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
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 Hadd4; 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
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 Hadith 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.
A Hadith illustrates this law in the following manner:
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:
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 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:
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.
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, 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.
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.
1. ie, ‘The Penal Law of Islam’ translated
in the preceding pages (Translator).