Islamic Criminal Law
It is unfortunate that the Common Law system used in many Muslim countries has made such a great impact on the minds of even Muslim lawyers and Scholars that, they too criticise Shariah as a 'harsh and brutal' legal system. It will take a long time to remove this impression from the minds of Western educated Muslim scholars. The non Muslims, on their part, have not been given an opportunity to understand the Islamic, Legal System. The result is the vicious campaign against Shariah. The most forceful part of the criticism is the West's denunciation of the harshness of the Hadd punishments provided by the Shariah. Obviously this stems from their self-styled conception of human dignity which evokes unnecessary sympathy for criminals too. For a moment, the Western sociologist forgets the heinous deeds of the criminals, their impact on the society and prescribes lighter punishments with all politeness. Contrary to it, Islam imposes a rigid code of punishment for the microscopic minority of criminals and ensures an atmosphere of peace and security for the rest of the society. If this basic difference is kept in mind while striking a comparison between the two, the whole matter can be understood easily.
Crimes and punishments have their own long history behind them. From inhuman punishments of the monarchical past to the soft policy of the present-day democratic age, the punishments have been showing an upward trend. This is how the so-called humanising process has yielded results. The spurt in crimes following the economic boom in the West has brought its own strange interpretation from the Western sociologists, who, till only a few days back were ascribing unsatisfactory economic and social conditions to the increasing criminal mentality. The very sociologist now harps a different tune. He unabashedly calls the criminal mentality an essential element of human nature. This clear succumbing to the situation has come as a result of the West's failure to dam the advancing wave of crimes. More sorrowfully the West has committed the folly of taking a few retrograde steps, so to say, to improve the situation merely on the paper. This has been done in order to cut down the burden on national exchequer; which has been claiming an increasingly bigger slice of the financial cake for the maintenance of Police, Jails, and Courts. This foolish tampering with the situation has been affected mindless of the future repercussions by de-listing a few crimes.
For example, Norway and Sweden have stolen the march by legalising homosexuality and lesbianism. West Germany and almost all the Scandinavian countries have respectively lifted the ban on import and circulation of pornographic literature. England and Italy have allowed abortions (either for a mother or spinster). The fresh blow to the existing ethical values has come from Spain where, according to an approved bill of cabinet, adultery will no longer be a crime. In sharp contrast to this situation, the Islamic world presents a peaceful and much cleaner society. When we cast a glance at the Muslim countries where Shariah is applied, crime rate has become negligible to the extent that Saudi Arabia reported just one murder in one year. This can wholly be attributed to the deterrent punishments of Islam. Turning a blind eye to these facts, the West is solely guided in its criticism by the superficial understanding of Islamic code.
Primarily, the emphasis of Islamic code is on preventing the crimes by prescribing harsh punishments while contemporary code deals with a criminal individually. The treatment thus meted out does not consider the impact of the crime and its aftermath but simply suggests a punishment to be awarded to criminal.
The detailed study of the Shariah penal system reveals a few more salient features of it which are unique in their character and kind. One can find blessings of the Shariah while glancing through the pages of history. A few basic qualities of Islamic system shows the marked difference from the European legal system.
In order to avoid any discrimination between rich and poor, Shariah enjoins similar treatment to all in the event, of crimes of social and moral nature. Islam does not prescribe monetary fines or penalties. Had this been the case, the wealthy people would have easily got rid of punishments after paying the required sum as fine. It could have promoted criminal mentality among wealthy sections of the society. This equality before the law in Islam has deterred even the rich people to indulge in crimes. Western society today suffers from the same deficiency. The provisions of their legal system have given the rich society a license for crimes.
Another disapproved form of punishment is imprisonment. It isolates the offender from the society and does not arouse in him a feeling of shame or repentance. Contrary to this, the modern prisons have served as a rendezvous for all sorts of criminals. After their release an offender is found to be far more skilled in his art.
Punishments like amputation of hand, whipping, stoning to death and beheading have the dual impact of preventing the individual from committing the same crime in future and serving a stern warning to others. Treatment meted out to an ex-convict plays the greatest role in rehabilitating him. West's scornful attitude towards an ex-convict has resisted his return towards a dignified life. One's conviction in life should not become a stigma to his name. He should be allowed to lead a normal life. Constitutions of the modern democracies contain clauses which disqualify an ex-convict from contesting for seats in legislature, holding key positions in administration, and public offices.
Islamic Penal Code sternly prohibits this dual disability for an ex-convict. Once the official punishment ends, the convict is a dignified citizen of the state enjoying civil rights in its totality. He need not carry any appendage of conviction with his name. No hurdles would be placed in his economic or social progress on the basis of his conviction. A return to the normal life is thus facilitated by the whole society and state under Shariah. The Prophet strictly admonished his friends from giving any bad names to Ma'izz Bin Aslami and Ghamiddiya, two sahabi who, out of fear of punishments in the life hereafter, self-confessed the sin of adultery and wore stoned to death. The Prophet called their confession as the most courageous and noblest act. This is how Islam refines the society. If you assure the criminals of a respectful place in society, there is no reason for them to hesitate from turning a new leaf in their lives. In most cases, it is fear of contemptuous treatment by society that deters the convict from becoming a normal citizen. Shariah adopts a realistic and practical attitude towards life. In life, one cannot depend too much on the moral and spiritual qualities of good individuals. If all men were equally spiritual, and if all could fear Allah, then there would be no need of law. But most men are not afraid of Allah so much as they are afraid of their society, public opinion and the punishment for evil-doing which they receive from the court of law. Therefore, the fear of Allah is and will remain confined to a few persons. Most men will continue to avoid committing any crime not from the fear of Allah and the Day of Judgment but from the fear of men and the fear of punishment by the authority. Since the Shariah seeks to build society and a political community, it has to take account of all kinds of men, good or bad, virtuous or vicious.
For men fearing Allah, it inculcates love and charity and holds out the promise of reward in the hereafter, but for the greater number of people in whom the fear of Allah is not very strong, it prescribes laws. and lays down punishments. Thus it makes use of both moral and legal sanctions because it realises that both morality and law are necessary for political and social life.
It is merely an allegation that harsh Islamic laws would convert the society into a den of crippled and indolent persons. It is mainly due to the partial understanding of the Islamic System. Islam solves the social and economic problems of a man on a priority basis so that one should not be stimulated to commit crimes due to social and economic injustices. Secondly, the Islamic punitive measures are implemented through a gradual process. With the advent of the Prophet and his party at Medina, the Islamic Penal Code was not suddenly clamped over the city. Had it been the 'case the results would have been the same what critics allege.
The Prophet enforced the Islamic order in 10 years of time after due training and education of masses. The Qur’an, itself imposed total prohibition in three phases. Crime detection has also its own effect on criminal psychology. Islam has a distinctive advance here too over its Western counterparts, Mere suspicion is no ground for punishing a criminal until crime is reported through a reliable source by the prescribed number of
witnesses. In the event of a person being apprehended on inadequate evidence and, later on, the charges having been proved false the integrity of that individual would be impaired. The present codes do not guarantee such safeguards. An individual may be acquitted. after a lengthy process of humiliations. This generates an atmosphere of suspicion where every individual lives as a suspect. Similarly, Islam prohibits ‘crime digging’.
These are a few virtues of Islamic Penal Code. In the light of these, the Prophet said that a time would come when one will traverse the distance between Yemen and Hadrmaut, without any danger to his life and property.
This came out true in the later years when Islam conquered the whole area. Its impact may still be seen in countries where Islamic law is even partially in force. In the so called highly advanced countries like the United States of America, it is dangerous even to move out of one's residence after it is dark.
The high rate of crimes in Western countries can be imagined from the following figures:
More interesting is the way the criminologists attribute reasons of spurt in crimes and suggest measures to check the rate. A study of recent crime report from France will reveal the approach the Westerners now adopt to tackle the grim situation, prevailing in western countries.
A ten member committee headed by the Minister of Justice, M. Alain Peyreffite indicated that according to 80% of the French people the violence has been mounting. The committee came out with more disturbing statistics. Between 1967 and 1976 armed robberies against other institutions (called hold-ups) increased twenty fold. The murder rate in France remained below one per cent per 100,000 inhabitants compared with approximately 10 in one hundred thousand in the United States.
The report attributes the growth of criminal acts to urbanisation. It says 60% of violent crimes occur in Paris and five other large urban centres and calls for a return to smaller, more cohesive communities. The conclusion is reached that cities must not be allowed to surpass a population of 200,000 if they have yet not attained it. The committee says, it had formed a link between rising crimes and the height of apartment buildings and notes that housing projects with 1,000 units of six storey have one third fewer criminal incidents than a 1,000 unit project that was higher than six stories. The report also contends that the long distance between homes and places of employment foments a sense of alienation that contributes to crimes.
Punishment and Legal Penalties:
Legal penalties are specified in the Qur’anic Text for: (a) Murder, (b) Theft, (c) Adultery, (d) Cluminous accusation of adultery, and (e) Offence against public security. No apology is needed for death being the Islamic penalty for premeditated murder, its very severity makes the punishment a deterrent, especially if one considers how simple and expeditious judicial machinery is in Islam and how rapid the procedure and beneficial its effects for social tranquillity and the protection of human lives.
Theft, except for the doubtful cases, for example stealing prompted by starvation, its punishment is amputation of the hand. Stealing is too frequently perpetrated by force and often entails murder of the victim. One wonders whether, in such case is it is better to have more pity on the hand of the thief than on the life of the victim.
Punishment for Adultery:
The penalty for adultery for a married person is stoning to death, (to be witnessed by a crowd of people) but there are very strict injunctions regarding the proof. The offence must be testified to by four witnesses of unimpeachable veracity. And, if a person levels a charge of adultery against someone and is unable to bring four such witnesses, he is liable to be punished with, eighty strokes of the whip. By enjoining such punishment, Islam has prevented dislocation of the family, and confusion with regard to paternity. More important it establishes the basis for a peaceful life in human society. Peace at this price is not at all costly compared to modern measures introduced and expenses incurred for a peaceful life but it is no where to be found because the murderers, the thieves, the fornicators and others get away too easily. They are a constant source of fear and disturbance because of the potential threat to life and property. The Shariah provision nips the evil in the bud with a firm hand and puts down its foot strongly to stop mischief and to ensure peace to the society. Islamic punishments are, therefore, the most suited to bring about peace and peaceful conditions. Islam deals with the culprit rather heavily in the interest of his would-be victims.
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