Criminal Law From an Islamic Perspective: Part Two

In the first part, we have discussed the hudud crime and several example of it together with the punishments of the criminals as prescribed in Islam. Among the hudud punishments mentioned was that for murtad (apostacy).

After the demise of the prophet Muhammad Sallahllahu ‘alaihi wasallam, Abu Bakar Radhiallahu ‘anhu during his reign as Khalifah had battled the apostates of that time. The rest of the Sahabah (Champanions) did not object, in combating the apostates until the situation became calm and peace was achieved. The Islamic jurists agreed that the death punishment in the case of apostacy is considered logical and befitting the crime.

The death sentence should not be so freely imposed on apostates. Murtad cases should be judged thoroughly by the Islamic authority so that the apostate may helped to return to Islam through repentance. Allowing someone to go astray and remain misguided in darkness and devastation is a very wrong. Therefore, the Islamic authority should return the apostates to truth and guidance which they had encountered earlier.

If the authority fails to return him to the truth of Islam, this will mean that the apostate is actualy the carrier of a disease which will not only harm himself but also the nation and the state. In order to safeguard the transquility of the society, the death sentence is a just and fair punishment to be imposed on an apostate who is unwilling to come back to the true path. This is to prevent the disease from infecting others.

QISAS

Literally, qisas means "equal" or "balanced".

In the book Tafsir al-Qurthubi, qisas is also explained as "to follow the track of mark", and it comes therefore to mean that the treatment of the offender should be the same as his offence.

Qisas, according to Islamic legal terminology, is "specified punishment imposed by Shari’ (Allah) as an obligation to be implemented in order to carry out the right of mankind."

From the several terms of definition given, it can be concluded that the life of a murderer should be taken just as he had taken the life of his fellow man or someone who injures others should in turn be injured.

THE DIFFERENCE BETWEEN HUDUD AND QISAS

Hudud and qisas have almost the same meaning whereby both are the punishment prescribed by Allah subhanahu Wataala and as an obligation to be implemented by Muslim relers.

However, the right contained in hudud are different from the rights found in qisas. In implementing the hudud punishment, the right of Allah is stressed whereas in administrating qisas, it is the rights of man that is more emphasised.

For example, the punishments for offences like theft, robbery, fornication, intoxication and apostacy are imposed by Allah, and are to be fully implemented without giving any right to anyone to make any alteration, reduction or addition, and definitely not to withhold the punishment of hudud as it is the right of Allah Subhanahu Wata’ala.

Unlike qisas, which, even though it is determined by Allah Subhanahu Wata’ala and its implementation is an obligation, it remains the right of human beings whereby the final decision on its executive rests with the one seeker the punishment of qisas punishment is unvalidated. It is also permissible for both parties, the offender and the one demanding qisas punishment, to replace the qisas punishment with compensation, since qisas is the right of human beings.

OFFENSES AND THEIR PUNISHMENT

Among offences which are punishable by qisas are:

1. Murder:

   Committing murder is a big sin in Islam, an evil and cursed deed for which the death sentence is a just punishment. As promised by Allah Subhanahu Wata’ala a severe punishment awaits the murdered in the hereafter. In the al-Quran Allah say:

   "And whoever kills a believer intentionally, his recompenses is hell to abide therein, and the wrath and the curse of Allah are upon him, and a great punishment in prepared for him."

   (Sura an-Nisa: 93)

   The punishment for those who commit murder is death. This is

   Clearly shown by Allah in His word which says:

   "O you who believe! Al-Qisas (The law of equality in punishment) is prescribed for you in case of murder."

   The qisas offence explained in the above verse is very clear, where the death punishment is imposed on the murderer. It cannot be altered or cancelled after the offender has been found guilty based on suffucient evidence, unless, the family of the slained has asked for compensation (diat) in lieu of qisas punishment.

2. TO CAUSE INTENTIONAL, PHYSICAL INJURY:

To injure someone or to do so intensionally is not yaken lightly in Islam because such an act may cause permanent disbility to the victim.

The al-Quran clearly specifies the punishment for those who intentionally injure others as found in the words of Allah:

"And we ordained therein for them. Life for life, eye for eye, nose for nose, ear for ear, tooth for tooth, and wounds, equal for equal."

(Surah al-Ma’idah:45)

The punishment mentioned in the above verse was determined by Allah. An eye for an eye. Similarly with other parts of the body. Even wounds and injuries are to be mathed.

Al-Imam Bukhari and Muslim narrated that during the time of Rasulullah Sallallahu alaihi wasallam there was an incident in which an al-Nadzar girl had beaten and broken the tooth of another girl. When the case was reported to Rasulullah Sallallahu alaihi wassalam, he sentenced qisas punishment on the offender.

While during the rule of Sayidina Umar Al-Khathtab, there was an incident where a Ghassan King who had recently converted into Islam, had his robe accidently stepped on by a Muslim slave during tawaf at Baitullah. The king, who was well-known by the name Jabalah al-Aiham, suddenly punched the slave in the face. When a complaint was made to Umar Al-Khathtab, and he offender was found to be guilty, Saiyidina Umar exercised the qisas punishment upon Jabalah Al-Aiham, even though he was a king who was new to Islam.

Qisas is the law of Allah for the interest of man. However, Islam has provided a way out so that qisas need to be performed. Qisas can be replaced by compensation which is called diat for as long as both parties agree, especially the party seeking retribution, with the approval of the court.

This flexibility is given so that can be peace and to avoid enmity among man. Diat ia a way out which can benefit both parties, the murdered and the murderer. Diat does not aim at easing the punishment of Qisas but it presents a choice involved, who, for certain reasons are reluctant to carry out qisas. Diat thus becomes the alternative.

In the next, issue, we will continue with the discussion on diat so as to provide a more its administration as an alternative to qisas.

Adapted From al-Hadaf

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