By Reeza Hameed –

Many Muslims I have spoken to are opposed to the death sentence imposed on the unnamed Sri Lankan housemaid in Saudi Arabia.

The death penalty, in my view, is not in consonance with the spirit of Islam. According to a Hadith in the compilation of Prophetic traditions known as the Mishkat al-Masabih, an adulteress was forgiven for quenching the thirst of a dog. The dog held out his tongue from thirst when she passed by a well. The woman drew off water using her boot, which she tied to the end of her garment, and gave the water she drew for him to drink. We are told that she was forgiven for that act of kindness.

Islam values the sanctity of life. Killing under the guise of punishment denigrates this cardinal principle. Islam does not condone either stoning to death or any other form of killing masquerading as punishment. The imposition of the death penalty in the name of Islam gives the religion of Islam a bad image. Islam was revealed to deliver mankind from ignorance and inhumane practises and as a mercy to mankind.

Compassion is an essential part of the message of the Quran. In the very first chapter of the Quran, God is described as the Compassionate and the Merciful. The Quran reminds mankind of creation in all its forms and declares it as an act of His mercy.

The death penalty is wrapped up in medieval notions about crime and punishment forming part of the fiqh, which is the legal part of the sharia, and refers to the body of principles derived by juristic interpretation from primary sources. On many themes, the sharia provides no more than general guidelines and they have been elaborated by jurists into a detailed body of laws.

The Quran is immutable but juristic opinions are not, and the latter may be reinterpreted to accord with contemporary thinking about crime and punishment. Even during the early centuries of Islam, Muslim jurists debated issues relating to the sharia, including on crime and punishment, as is evident from the differences in opinion that exist among them on various issues. For instance, there is a difference of opinion among them as to what constitutes intentional murder.

Criminal wrongs in Islamic law

The classification of crimes in classical Islamic Law is a construct of Muslim jurists of medieval vintage. The jurists have distinguished criminal wrongs by reference to the punishment that may be prescribed, based on whether it is determined or fixed, or whether it is discretionary. Determined crimes are those for which penalties have been prescribed in the Quran or the Hadith of the Prophet. Where no such penalty is prescribed then it becomes a discretionary wrong.

Jurists have also categorised criminal wrongs as qisas, hudood and ta’zir crimes. Qisas are retribution crimes committed against a person causing physical injury. The punishment for a qisas offence may be remitted either by the victim or his heir on payment of compensation, or waived altogether. In effect, qisas crimes are virtually treated like private wrongs.

A hudud crime has been described as an offence for which a mandatory penalty is required to be imposed. Adultery and theft are hudood crimes, although they are not the only ones. In reality, though, hudud crimes require very strict proof which is virtually impossible to satisfy.

Adultery

Adultery is a hudud crime. Short of a confession, it would be impossible to prove adultery because it requires the testimony of at least four male Muslim eye witnesses of unimpeachable character. They must testify that they saw the offence being committed at the same time.

A confession to adultery is required to be repeated at least on four separate occasions. A person convicted of a hudud crime such as adultery may withdraw her confession at any time before the application of the sentence, whereupon the penalty cannot be applied. Most schools of Islamic law do not permit a conviction for a hudud offence based on circumstantial evidence.

Stoning to death for adultery is not a punishment mandated in the Quran. It is mentioned in the Hadith of the Prophet which is one of the sources from which Islamic law is derived.

Is hudud a crime against God?

The term ‘hudud Allah’ is one that appears in the Quran in many places and is used to signify the limits of tolerable conduct, and to refer to moral guidelines which the Quran has prescribed as righteous conduct. However, it is not used in the Quran to signify punishment for crime. The juristic interpretation has transformed a concept that signified the limits of acceptable behaviour into a crime that is visited with a fixed penalty.

Conventional opinion is that, because a hudud crime is intended to protect the right of God, it is a crime against God, and only Allah can forgive the sinner. This is a debatable notion. God does not require the protection of man. The real objective of a hudud crime is to protect the public interest, and in the case of adultery, to prevent indecency in public and to protect public morals.

The same act may or may not be a hudud crime depending who witnessed it. Adultery witnessed by four women of unimpeachable character cannot be punished as a hudud crime. Likewise, adultery cannot be punished as a hudud crime if the eyewitnesses happen to be non-Muslims.

Theft is classified as a hudud crime and so is rebellion against legitimate authority. How do they become crimes against God?

The God of Islam is compassionate, loving, forgiving, and kind. The Quranic philosophy on crime and punishment does not have retribution as its sole objective. It also encompasses the idea of reformation, repentance and forgiveness. The Quran in many places calls upon the believers to repent, and forgive. The juristic interpretation giving primacy to retribution seems to have foreclosed these further objectives.

In Sura An-Nisa, the verse in the Quran which is cited in support of death as the punishment for adultery, the Quran assures that Allah will accept the repentance of those who do evil in ignorance and repent soon afterwards

Qisas

In so far as the death penalty for qisas crimes is concerned, the verse in the Quran that is invoked in support does not in fact support the death penalty. It speaks of the principle of ‘an eye for an eye’ that was prescribed for the children of Israel. It is not prescribed for the Muslims. Indeed, the verse ends by saying that it did not prevent the continuation of killings and excesses being committed.

Islam does not condone the retributive philosophy of an eye for an eye. Muslims believe in the prophet-hood of both Moses and Jesus. The Law of Moses as laid down in the Torah prescribed stoning to death for adultery but Jesus came and revoked it. When the Pharisees brought a woman to Jesus and accused her of adultery, and asked Him if she should be stoned, Jesus replied, “If any one of you is without sin, let him be the first to throw a stone at her.” Jesus was no sinner but he refused to stone the woman to death. The Prophet of Islam did not revert back to the Law of Moses.

Sharia is not inflexible

The sharia is not an inflexible source of law. Caliph Omar, a companion of the Prophet, refused to enforce the Quranic injunction of amputation on a thief because the crime was committed when there was a famine. Mutilating punishments were hardly, if ever, applied in the Ottoman Empire and 19th century Egypt. Many leading jurists have argued that the sharia ought to be adapted to accommodate social change and that it has the necessary tools to accomplish such change.

There are references in the Quran to slavery but no one will condone slavery in this day and age. Every Muslim is obliged to pray five times a day and perform ablution before prayer. How will a woman with an amputated arm perform her ablution, or change her infant child’s clothing?

Finally

The death penalty cannot be condoned as Islamic, or at all. It is contrary to present day notions of justice. The punishment regime of sharia must accord with current realities. It must be tempered with compassion and mercy.

*The writer, Dr Reeza Hameed is an Attorney-at-Law