Legislation,
whether it is the word of an autocrat or the act of a parliament, is basically
a manipulation of rights. A law requiring every citizen to pay ten percent of
his income as tax, effectively takes away the right of each citizen to spend
ten percent of his income according to his will and transfers it to government
agencies. A person who is sentenced to five years imprisonment essentially
loses his right of free movement and free speech for that period. The concept
of democracy derived from ancient Greek literature and developed mostly in
Europe concedes the unlimited authority of sovereign kings to bodies of elected
lawmakers, leaving the electors just as subservient as before. And if someone
commits a crime or is suspected of involvement in one, he or she immediately
forfeits all his or her rights except the one to remain silent, if it is a
right at all. Indeed, a total dismissal of right-manipulation would amount to
social stagnation which has been obviated by the evolution of constitutional
democracy which guarantees certain basic rights for individuals, subject to
periodic amendments.
The
Qur'an provides believers and nonbelievers alike with certain non-negotiable
rights. These non-negotiable rights cannot be compared with constitutional
rights as state constitutions are liable to amendment by some procedure or the
other, while Qur'anic rights are permanent and inviolable in a true and absolute
sense. The rulers are not permitted to legislate in contravention of these
rights and if they do so they lose their mandate to rule. Even if the violation
of these rights is not redressed in this world, the Qur'an promises that
justice will be done on the Day of Judgment. However, in Islam also there are
transient or situational rights. If a woman dies childless, her husband and
brothers get shares in her legacy. But if she is succeeded by children then the
brothers get nothing.
In
Islamic jurisprudence, the State is responsible for apprehending criminals and
exacting retribution or compensation on behalf of the aggrieved party or
instituting punishment on behalf of God, but the right of retribution or pardon
rests solely with the aggrieved party. The State is also responsible for
ensuring that an innocent person is not punished or blamed. The emphasis on
freedom of movement is so great that if one studies carefully the Qur'anic
injunctions on crime and punishment it becomes apparent that imprisonment is
not really an acceptable mode of punishment in Islam. The underlying philosophy
can be summed up by saying: If people commit crimes, you may whip them, cut off
their limbs, even take away their lives, but do not deprive them of their
freedom. And this principle is consistently maintained in all its exhortations.
These punishments, to a naïve observer may appear to be quite inhuman. But then
the fact is that they were not instituted by a human at all. They were ordained
by a Being that created all living beings, and has the eventual declared
intention of destroying them. However, historic records indicate quite clearly
that the implementation of these punitive measures invariably results in
dramatic reduction of crime rate and thus the net measure of grief experienced
by a community is reduced to a negligible amount. Moreover, the rules of
evidence and conviction are so thorough, and the risk involved in reckless
adjudication is so alarming that the possibility of irreversible damage to
innocent individuals becomes minimal. Theoretically, in the Islamic system of
justice it is not only the witnesses that are under oath to tell the truth,
nothing but the truth; the judges are also under oath to do justice, nothing
but justice. And the lawyers are also under oath to pursue facts and nothing
but facts in the conduct of proceedings, and not to present false evidence or
make false allegations. Perhaps, it would be a good idea if the latter oaths
are also visibly and audibly taken in courtrooms at each session. Furthermore,
until a minute before the administration of punishment, the culprit has the
opportunity of regretting his conduct and offering compensation or begging
mercy from the victim or the aggrieved party. If the criminal is arrogant
enough to give a limb rather than own up a proven crime and make reparations
for it then his undoing is by his own choice. Basically, every crime stems from
its perpetrator having contempt for his victim and its effect can only be
reversed by restoring the self-respect of the victim or the aggrieved party.
Most
sociologists agree that in civilized communities, crime is not an entirely
individual responsibility. In some way or the other, the whole community has to
take a certain amount of blame. If only every individual in a community
exercised his responsibilities to others, and took good care of those in need
of attention -- physical, financial, material or psychological, then there
would simply not be any crimes. Perhaps the best way of making the members of a
community aware of their negligence is to subject them to the unsavory
spectacle of public executions and other implementations of the ordained
punishment. In this way it is not the state or government, but every member of
the entire community that shares the guilt and agony of the punishment; and
becomes aware or the need for action to eliminate the causes of crime. Open
trial and open punishment is the ideal way to prevent the possibility of
injustice or sadistic manipulation in prisons. Although it is a fact that the
Qur'an allows the use of extreme forms of punishment with incisive physical and
social impact, it is not necessary that these must be practiced thoughtlessly
and indiscriminately or whimsically to satisfy the sadistic tendencies of
certain individuals or to create political intimidation. Instead, the Qur'anic
injunctions on punishment should be regarded as legislative limits; for
example, the maximum punishment for theft can be the loss of a limb and not the
loss of life under any circumstances. At the same time, it makes sense that in
a community where police or an equivalent security arrangement does not exist,
someone who catches a thief red handed would be well advised to chop off his
hand if one does not want to be shot in the back as soon as the unrepentant
robber gets an opportunity.
Law and morality are
so closely intertwined in Islam that any attempt to separate the two strains
the social fabric and produces violent reactions. Islamic logic also differs
from Greek logic as it places ethical restraints on the length to which an
argument can be extended. The holy Qur’an repeatedly admonishes against
exceeding the limits (hudood) established by Allah e.g. killing someone for an
act of theft for which the maximum punishment is the loss of a limb.
For
purposes of the application of `Hudud'
i.e. Qur'anic limiting punishments, guilt has to be proven by the sworn
testimony of up to as many as four trustworthy eyewitnesses. The testimony of
criminals or accomplices or circumstantial evidence does not suffice for
conviction and someone who perjures himself may be barred from appearing as a
witness for life. Moreover, even if a criminal escapes punishment, he knows
exactly what he deserves, and each time he sees or hears about a public
implementation of ordained punishments, his conscience is jolted. Similarly, in
the Islamic system the criminal finds it extremely risky to conceal a crime by
committing another, or to intimidate others by boasting about his crimes since
there is no mercy after confession. The system appears to be designed to
eliminate crimes and not criminals by putting everyone even slightly suspect of
bad behavior into prison. Nor does it try to bring peace and tranquility to
society by eliminating the victims by elaborate security arrangements for those
who can afford it and ignoring the screams for help by those who can't. In
psychological terms, the Qur'anic penal code and concept of divine punishment
and reward lead people to associate crime with pain and humiliation both on an
individual and collective scale while, at the same time, linking comfort and
honor with acts of piety. The idea seems to be that initially the punishments
would help to reform the society and the effect would be sustained by the
promised rewards.
To tell
the truth, the Islamic system of extreme punishments, in order to be effective,
requires a certain amount of true Biblical heritage in the form of total
commitment, strong sense of attachment, and spiritual significance of
association. The underlying motivations can hardly be grasped by someone who
has been educated in an insurance based culture where one turns a blind eye to
the burglar so that one may buy with the insurance claim the latest model of
the article being stolen. Hence, not surprisingly, many Muslim scholars regard
insurance as being averse to the spirit of Islam. However, it is equally true
that in communities where economic fortunes of large numbers of people are
associated with the prevention and aftereffects of crime or accident, Insurance
seems to be the only institution other than public representatives which has a
genuine motive to check the rate of increase in crimes and accidents -- albeit
only to the extent that insurance itself does not become superfluous.
The real
conflict between Islamic and secular legal perceptions seems to lie in their
treatment of rules of conduct. In the secular system criminal laws and rules of
conduct are more or less clearly segregated; the breaking of law results in the
suspension of basic rights and institution of prescribed punishment whereas a
violation of rules of conduct can only be penalized by social pressures which
don't seem to be effective in modern industrial cultures. In Islam, the
distinctions between enforceable law and rules of conduct have become quite
faint due to various scholarly edicts or "fatwa" pronounced over the centuries. Much dissent and discord
has also been caused by scholarly legislation in not only Islam but also other
religions. Fortunately in Islam the superior law exists in the Qur'an and rules
of conduct can be formulated by popular or representative legislation. In doing
so, the verses preceding and following the definitive verses should also be
consulted for guidance. One example is given below:
5:38.
And (as for) the man who steals and the woman who steals, cut off their hands
as a punishment for what they have earned, an exemplary punishment from Allah;
and Allah is Mighty, Wise.
5:39.
But whoever repents after his iniquity and reforms (himself), then surely Allah will turn to him
(mercifully); surely Allah is Forgiving, Merciful.
5:40. Do
you not know that Allah-- His is the kingdom of the heavens and the earth; He
chastises whom He pleases; and forgives whom He pleases and Allah has power
over all things.
The interesting question that needs to be pondered is what happens if a community of Muslims decides unanimously or by majority vote to structured punishments for crimes within the limits ordained by Allah. Surely, Allah is merciful and forgiving.
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