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But many of the human rights activists
in Pakistan will. So long as the hand is not masculine. We have all ‘heard
that it was said by them of old time, Thou shalt not kill’. Now, hear this:
[Woman] Thou mayst kill. Thou mayst take the life of another human and
yet live thine.
O Judgement!
Thou art fled...
And men have
lost their reason
There are many in our society who hailed
efforts of the federal cabinet of the previous government to exempt women
from capital punishment. That government is gone for now. But those who
raised victory signs after the federal cabinet’s decision in June 1996
to have this law passed are very much there. The issue is therefore alive:
Should the Pakistani woman be exempted from capital punishment?
There is no doubt about the fact that
women face many hardships in our society and that a great part of the work
being done by human rights and women’s rights activists to alleviate the
suffering of the average Pakistani woman is truly worthy of praise in spite
of being merely palliative at best. There is also no doubt that unfortunately
many of her troubles are the result of misinterpretation of Islam. Yet,
the solution lies neither in breaking away from a religion which pervades
society nor in using impractical strategies to implement the directives
of such a religion.
What is required is a thorough study
of Islam vis-a-vis the social problems in question so that correct interpretation
of religion is made and viable solutions of the problems are worked out.
For this purpose, religious scholars should also be consulted.
Governments which deviate from religious
norms of our society to solve its problems not only face scorn from many
religious quarters, which have a strong hold on the minds of the masses,
but also fail to realise that in a society as ours it is almost impossible
to convince the majority of people, including the victims of misinterpreted
religious directives, to alienate themselves from long held views.
Similarly, those who, in their haste
to score political wins, resort to badly worked out strategies to implement
Islamic laws either retrieve embarrassingly from their own stance (which,
by the way, rarely makes any difference to them) or unnecessarily make
the victims of religious misinterpretation and their sympathisers averse
to Islam.
Without correct interpretation based
on thorough research work on Islam and wise policies for implementing its
directives, social problems as are usually confronted by women in our society
are bound to remain. Those working for women’s rights may have helped many
women, but the cries of thousands of others still remain unheard. How many
women -- and their male relations -- would benefit if it were conclusively
proved to our legislature that at no place does the Qur’an
even concern itself with the worth of a woman’s testimony in contrast with
that of a man’s?1 How much
confusion could have been avoided if it were known that Diyyah2
of a woman is not half that of a man and that the Qur’an
leaves the question of the amount of Diyyah,
whether of a man or of a woman, to equitable conventions of society?3
How much of the embarrassment and pain many young ladies and their families
faced could have been averted if it were clear that the condition of Wali’s4
consent in marriage is not one the absence of which makes a contract of
marriage void ab initio (therefore there are no grounds for indicting those
who have had court marriages for fornication), and, that in cases where
deviation is made from this norm of an Islamic society of having Wali’s
consent in marriage5, the
fate of the marriage should be decided by the court, which should keep
in mind the principle that in the absence of a general awareness of the
correct law, there is a great room in Islam for lighter penalties and in
some cases even for exoneration?6.
In all these cases, an in-depth study
of the original sources of knowledge on Islam and greater discretion in
the implementation of its laws would have solved the problems which many
had to face unnecessarily.
The idea of exempting women from capital
punishment is also not consistent either with Islam or with dictates of
common sense.
The point that needs to be understood
here is that in Islamic law, just as in any other system of law, the punishments
for various crimes are the ultimate form of legal chastisement prescribed,
which means that there is room, on the basis of extenuating circumstances,
for lighter sentences. Whether or not the circumstances in a particular
case are extenuating is a matter for the court to decide.
Among factors on the basis of which
allowance may be given, mental, moral and social condition of the offender,
his or her intention and the elements of coercion and undue influence must
also be given their due weight.
For example, in the following instances,
there is an obvious ground for alleviation:
i) theft of food to assuage pangs
of sheer hunger.
ii) killing an assailant who, if left
alive, would have taken the person’s life; in other words, killing for
self-defence.
iii) a crime committed in innocence
by a mentally delinquent person or a child.
iv) prostitution by a woman under
coercion (see the Qur’an 84:33)
v) fornication by a woman brought
up in conditions of such deprivation that she never had a proper
chance to imbibe the norms of morality; for example, only half the punishment
for fornication was prescribed for slave-girls in the Prophet’s time (sws).
(See the Qur’an 4:25)
There is even room for lighter sentences
in cases of recidivists and perverts who become a danger to the society
or the state, and to this category belong the likes of rapists, robbers
and serial killers for whom the punishments in Islam are more harsh than
for the ordinary criminal. For example, a person found guilty of fornication
is given a hundred stripes whereas a pervert who shatters the honour of
scores of families is killed in a ruthless manner (for example by stoning
him to death) so that the punishment may serve as a reminder to all.7
But even in such cases, a lighter sentence of banishment may be given if
there is a reasonable basis for such allowance.8
In all these cases, the basis for
alleviation is extenuating circumstances, not sex. The context of the relevant
verses in the Qur’an refuses
to accept any distinction in this regard merely on the basis of gender9.
In fact, in case of extramarital sex, the woman has been mention before
the man, even though in this case Women’s Lib workers would probably prefer
a deviation from their cherished principle of Ladies First.10
It should be obvious from the points
made above that the severity in meting out these punishments is justified
by virtue of the fact that these punishments are awarded only after it
is thoroughly determined that there is no reasonable basis for any alleviation.
Thereafter, acquitting or exonerating a criminal amounts to condoning his
or her crime, and this attitude often leads to personal vendettas, which
shake the foundation of society.
In Mario Puzo’s novel, The Godfather,
Amerigo Bonesera decides to go to Don Corleone (a Mafia chief) when a New
York judge acquits the two young ruffians -- one of them the son of a powerful
politician -- who had brutally assaulted Amerigo Bonesera’s lovely, young
daughter. It is then that the law-abiding Amerigo Bonesera, who had always
believed in America, says to his uncomprehending wife: ‘They have made
fools of us. We must go to Don Corleone for Justice.’ The Qur’anic verse ‘in
Qisas11
there is life for you...’ (2:179) refers to the fact that when the state
lets a criminal walk away and in that way deprives people of justice, more
often than not they go to Don Corleone for it.
The following words of the Prophet
of Allah (sws) indicate how important justice is in such matters:
By God, if Mohammad’s daughter Fatimah had committed theft, I should have definitely cut off her hand (Muslim,
Kitab-al-Hudud)
If the Prophet of Allah (sws) was not
ready to give allowance on any basis apart from ‘extenuating circumstances’,
no one else has the right to.
This principle, however, does not
mean that due weight should not be given to other dictates of common sense
and good judgement. For example, while deciding whether a person is guilty
of theft or not, it should not be ignored that the words used by the Qur’an
are Al-Sariq and Al-Sariqah (the thief -- man and woman) not man saraqa (one who commits theft),
which implies that only such a person as can be called a ‘thief’ in the
usual sense of the word be awarded the punishment of amputation. In other
words, if a child takes out a few candies from his or her mother’s cookie
jar, it cannot be said that the child is a ‘thief’ in the usual sense of
the word. Similarly, if a wife takes out a few rupees of her husband, without
his permission, to meet some immediate need, she does not become a ‘thief’.
Any woman -- or man -- deserves alleviation
on the basis of the factors mentioned above. But to say that the Pakistani
woman inherently deserves exemption from capital punishment is tantamount
to an insult to her intellect and to the society as a whole.
Those who advocate a general immunity
for women from capital punishment may be asked many questions before their
point of view is accepted:
i) Are women to be generally categorised
among those whose intellectual level is close to that of a child or a mentally
delinquent person, who are inherently not liable for their actions?
ii) What if a woman murders a woman? What
if no extenuating circumstances whatsoever exist in case of the murderess?
Will she be exonerated merely because of her femininity?
iii) Wouldn’t it be better to decide the fate of
each criminal -- man or woman -- on a case to case basis rather than granting
women general immunity and then incriminating a woman as an exceptional
case when no basis for any allowance is found?
iv) If our society has deteriorated to the
extent that all women, or most women, live in such deplorable conditions
as give them a reasonable basis to commit murder to allay their suffering,
then isn’t much more required to wipe such an ugly blot from the face of
our society than just legal immunity for a murderess? And if our society
has truly degenerated to that extent, then why even life sentence for a
woman?
v) Is the cure for social evils permission
to fight them with greater evil? If a woman is harassed by a man (or a
woman -- as is the case in many domestic disputes), why not make effective
laws to punish the man at that point rather than letting things go so far
that the women feel compelled to do murder and then giving her a life sentence?
Why not try to make her family life better rather than facilitating her
in becoming a murderess? Is this sympathy with women? Is that the kind
of mother we are helping a woman to become?
To allow a lesser evil to avert a greater one is understandable,
but to allow a greater evil to avert a lesser one is simply beyond comprehension.
Isn’t it this perverse line of thinking which makes people sympathise with
a woman who decides to murder her unborn child -- the consequence of rape
-- but does not encourage society to bow down its head in shame and to
show her respect and to regard it a matter of great honour and privilege
if some young, respectable man comes forward to take her hand and share
her grief?
The truth of the matter is that the wisdom in the Divine
law cannot be surpassed. There is no doubt that the Qur’an
has discriminated between a man and a woman as far as social responsibilities
of each are concerned.12
But as far as responsibility towards God is concerned, each of them is
liable for his or her actions:
And covet not the thing in which Allah has made some
of you excel others. To men shall be a reward [in the Hereafter] for what
they had done [in the worldly life] and for women a reward for what they
had done. (4:32)
Similarly, the Qur’an says:
Whoever works evil shall be requited accordingly and
he will not find, besides Allah, any protector or helper. If any do deeds
of righteousness, be they men or women, and have faith, they shall enter
Heaven and not the least injustice shall be done to them.(4:123&124)
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