Criminal Law From an Islamic Perspective: Part One

Crime according to Islamic law is "every deed or action which is forbidden (haram) by Shara’, be it in the case of property or life."

Crime is a moral problem considered serious in Islam, and is closely linked to the peace and harmony of human life. If crime is widely committed, benevolence in society is destroyed, but Islam itself is a religion that promises peace and harmony to the society. Therefore, in facing crime, Islam has a special view that stresses the importance of terminating the criminal actions or minimising them from becoming worse each time.

Ibn Rushd in his book Bidayah al-Mujtahid wa Nihayah al-Muqtasid had divided criminal actions into four categories:

1. Crime against physical life such as injuring people or murdering them.
2. Crime against property such as robbing, vandalizing and etc.
3. Crime against descendents such as adultery.
4. Crime against human virtues and chastity such as:

1. False accusation of unchastity(qazaf)
2. Drinking intoxicants that lead to the pollution of the mind and the destruction of that which is supposed to be properly guided.
3. Apostacy (Murtad) – Switching religion from Islam to another religion.

Punishment for criminal offences

Islamic has devised three systems of punishments for all criminal offences to be implemented by an Islamic ruler where each system is specifically for certain misdeeds. These systems of punishments are known as Hudud, Qisas and Ta’zir.

Hudud

Hudud is an Islamic legal terminology which means:

"Specified punishments imposed by Shara’ (Islamic Law) as an obligation to be implemented in order to carry out the right of Allah Subhanahu Wata’ala."

Among offences which are categorised as offences punishable by hudud are stealing, robbing, fornication, false accusation of unchasity without valid evidence, drinking alcohol and murtad (Apostacy from the religion of Islam).

If one of the offences was found to have been committed, and the court finds the offender guilty, the punishment to be meted out is determined by Shara’. Man has no right to add, alter or reduce the punishment after it had been decided as hudud is the right of Allah Subhanahu Wata’ala. Man is only commanded to fully execute and implement it.

Offences and Their Punishments

Among offences which are punishable by hudud are:

1. Robbery: It is an evil deed cursed by Allah and His Prophet, damned and hated by society. Robber destroys humanity and tranquility. Due to the great damage caused by robbery, Allah Subhanahu Wata’ala has fixed its punishment through His words:

"Cut off (from the wrist joint) the (right) hand of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise."

(Al-Ma’idah:38)

In this verse, Allah stresses that with His glory, the punishment of cutting hand is legalised. The punishment is not intended to accuse or incriminate, it is just punishment and full of the wisdom of Allah.

2. Zina (fornication): It is one of the great offences in Islam and an immoral deed which can lead the doer to the most evil path.

Fornication can lead to moral decay, be the ruination of future descendants, devastation of family life and it will burden the government with the problems of unwanted children, inadequate care and education of neglected children and etc. In connection to that, Allah Subhanahu Wata’ala has fixed a suitable punishment for Zina offence whereby He say:

"The woman and the man guilty of illegal sexual intercourse, flog each of them with a hundred stripes. Let no pity withhold you in their case, in a punishment prescribed by Allah, if you believe in Allah and the Last Day. And let a party of the believers witness their punishment."

(An-Nur:2)

In this verse, the punishment determined is for unmarried persons commit it, however, the punishment is to stone them to death, following what had been done by the Prophet Muhammad Sallallahu ‘alaihi wasallam.

This punishment is emphasised by al – Imam Shafi’e who stresses that married persons who commit adultery should be punished by stoning them to death.

3. False accusation of unchasity of chaste person (qazaf): Islam forbids false accusations without strong and valid evidence in order to protect human dignity from being tarnished by invalid and wild allegations.

   Looking at the evil consequences caused by such an accusation. Allah Subhanahu Wata’ala has prescribed a severe punishment to those who hurl such accusation. Allah says in al-Quran:

   "And those who accuse chaste women, and produce not four witnesses, flog them with eighty stripes, and reject their testimony forever."

   (An-Nur:4)

   Someone who accuses others of committing fornication should prove it by producing at least four valid witnesses in order to make the punishment applicable to the persons accused. If the accusation cannot be proved, the accuser has committed the qazaf crime and should be punished with eighty strokes, as mentioned in the above verse.

4. Drinking intoxicant or alcohol:

   Every intoxicant is haram whether it is taken in a small or large amount, and whether it intoxicates the drinker or not.

   Rasulullah Sallallahu ‘alaihi wasallam said in a hadith:

   "Every intoxicant drunk in large amount can intoxicate, so even in small amount is haram."

   (Hadith narrated by Tirmidzi)

   Intoxicants or alcohol has its side effects on the drinker, either physical or mental, which can interfere with one’s morality, mind and faith. With both physical and mental impairment caused by the intoxicant, it is proper that the offender be punished if he is found guilty. A hadith reports and it means:

   "From Abu Sa’id al- Khudri who has said: "Verily Rasulullah Sallallahu ‘alaihi wasallam has punished with stripes the alcohol drinker with 40 stripes."

5. Murtad (Apostacy): Murtad means turning back to become a disbeliever of Allah and His Prophet after converting to the religion of Islam. Murtad can occur by a clear confession of a person or by certain actions that can be judged as murtad.

People who are Muslims by birth or after embracing other religions previously are those who have received guidance from Allah. Therefore, for the safety of the human race in this world and in the hereafter, the problem of switching religions from Islam to another should be dealt with and controlled by Islam.

The apostate receives punishment not only in this world, but also in the hereafter, as Allah says:

"And whosoever of you turns back from his religion (Islam) and dies as a believer, then his deeds will be lost in this life and in the Hereafter, and they will be the dwellers of the Fire. They will abide therein forever."

(Al-Baqarah:217)

Rasulullah Sallallahu ‘alaihi wasallam has also said:

"Whosoever (Muslim) turns back from his religion (Islam) murder him."

(Hadith narrated by an-Nasa’I)

Adapted From al-Hadaf