CAPITAL punishment is applicable to crimes committed against the five basic human rights that we mentioned: Life, property, honor, religion and intellect. The penal system can be divided into three categories: Hudood; Qisas; and Ta’zeer. Qisas has already been discussed in the first part of this article. Ta’zeer is disciplinary punishment for lesser crimes decided by the ruling authority. This could be in the form of prison sentence, fines, social service, flogging etc. The core of our discussion now is around the first category.
The most severe of all, Hudood are fixed punishments for: Zina (fornication), false allegation of unchastity (Qadhf), drunkenness, armed robbery, sedition and apostasy.
Zina is illegal sex between unmarried partners. If the perpetrators are married while they do this, they are to be stoned to death. If they are single, they are to be flogged 100 times.
Though quite severe, and perhaps the most thorny issue in our times, it has to be seen in its context. The crime is established under two circumstances: 1. Voluntary confession. 2. When four trustworthy men testify that they have witnessed the act.
Keeping the first one aside for a later discussion[i], what interests us now is the testimony of four witnesses. The condition, as required for everything else, is that the witnesses be sane, adult and trustworthy. All four should have actually witnessed the penetration clearly – the male organ into the female one. Each witness’s account of the incident – taken separately – should corroborate with the other. Furthermore there should be no room for any doubt regarding this. Such a case at best may occur when it is done in an unashamed manner, perhaps somewhat publicly.
The punishment is strict, but so are the conditions required to establish it. Nothing can explain this better than the fact that only 14 cases of stoning to death were carried out in over 1400 years of Islamic history.
In modern times, the sin of sex outside marriage has lost its gravity in the sight of people. The results are well-known – breakdown of the family structure, rise in the number of illegitimate children, increase of perverseness and decrease of modesty (whatever is that?!), spread of diseases like AIDS, and a regression that has turned us into an animalistic society.
Islam protects the society and ensures its stability from the very base: Family. It encourages marriage – the legal outlet to satisfy one’s desires – with which comes responsibility. Family is a complete institution – it’s a small nation. Responsibility and commitment to preserve it is a prime responsibility on every man and woman. It ensures the continuation of human race, preserves lineage and nurtures a productive future generation. Marriage brings maturity to the partners at every stage of life. As couples, they learn to sacrifice, share and serve; and as parents, they have a higher sense of purpose – to help build the future of their children. Our Creator created us in a manner to ensure our stability – and His Religion ensures we toe that line.
Zina – adultery, fornication – threatens this structure. It destroys the family, which you could call the DNA of society. In western countries, casual sex and one-night stands are increasingly becoming the norm. The rate of marriages has spiraled down, which means new families are not being formed. Human race in such societies are moving at jetspeed towards destruction. Concerned countries are paying attractive sums of money to encourage child birth without realizing that child birth alone will not ensure a stable and prosperous society.
Morality or Modesty could perhaps be used as a synonym for an idealistic Islamic society; such is the importance Islam gives to Haya (bashfulness, modesty). Prophet Muhammad (صلى الله عليه وسلم) said, “Every faith has an innate character. The character of Islam is modesty.” (Muwatta Malik)
The Shariah not just forbids illegal sex, but blocks every path that leads to it, in the following manner:
It encourages purification of one’s soul. Islam has mandated Salah (Islamic prayer) at least five times everyday, which as Allah says in the Qur’an, prevents us from evil and abominable deeds.
It commands men and women to lower their gaze. Lowering of the gaze is particularly more emphasized for men – they are not permitted to gaze at women, rather they must immediately turn their sight away. Men and women are required to dress modestly according to Islamic guidelines. The dress requirements are higher and more detailed for women, who must wear the Hijab in front of unrelated adult men to screen their prime asset – beauty.
It applies segregation of men and women. Interaction between the two genders has guidelines. In an Islamic society, boys and girls do not chill out with each other. Hanging out and friendship does not happen between opposite genders. Segregation is a touchy topic. To understand it in a simple way, we only need to look at the mosque. The minimum requirement there is that men form separate rows and women – wearing the Hijab – form separate rows at different corners of the mosque’s hall. Such a minimum requirement may be applied to other institutions as well. If there’s a need, they talk honorably. At the individual level, it is absolutely prohibited to be in seclusion with the opposite gender i.e. an unrelated man and woman should never be alone in seclusion. By segregating and limiting interaction to one of necessity, the problems that occur in mixed schools, colleges, and work places are almost entirely avoided.
It, by a natural extension, prohibits pornography and the like. An Islamic society will not have provocative outlets such as lewd satellite channels or prostitution dens. Sadly, there is not one Islamic country today that is free of these social evils.
It encourages and recommends early marriage. Islam recognizes the need to satisfy one’s basic instinct. It only regulates it and does not prevent it. In fact, Islamic scholars categorize sex as a basic need like food and drink for humans. A young person who wants to get married, but does not have the means to do so, is recommended to voluntarily fast to reduce his desires. The rich are encouraged to spend and facilitate marriage of those singles who cannot afford to do so. Moreover, marriage in Islam is very simple. An able man who can afford the basic necessities for his family can get married.
It encourages marrying the person one likes or loves for a successful marital relationship. Islam requires that prospective couples look at each other before marriage to see if they find each other physically attractive. The Shariah permits – in fact, encourages – them to talk (in front of the Mahram) and learn about each other’s interests and goals. It encourages one to find out more about the prospective bride’s/groom’s character through his/her relatives, friends and neighbors. If an individual falls in love with someone, it is not permitted to develop a secret relationship. Rather, he or she should approach through the legal way to see if marriage is possible.
Only after several of such checks and balances to keep society free of immorality as well as keep its members sexually satisfied that the strict punishment of committing Zina comes into picture. The punishment serves as a strong deterrent. And we have already mentioned the strict conditions required to establish such a crime.
Human beings naturally know it in their heart that Zina is wrong. Ask a growing boy or girl who for the first time stepped the boundary what his or her conscience had said. The fact of the matter is Islam regards Zina as a severe and abhorrent crime.
Qadhf (false allegation)
Penal punishment for false allegations underscores the importance Shariah has laid on the honor of an individual. Falsely accusing someone of unchastity – Zina at its worst – is subject to the Hadd punishment. If a person falsely accuses another of adultery – or if he fails to produce four witnesses, he or she will be flogged 80 times by the whip. Furthermore, such a person’s testimony will not be accepted ever in the future, unless he or she repents and proves to have mended ways.
Just as the crime carries a strict punishment, so does the false charge of the crime. This serves as a severe deterrent to mischief mongers and conspirators.
Lying and false testimony are not simple crimes in Islam. Prophet Muhammad (صلى الله عليه وسلم) has warned a number of times against bearing false witness.
Today hundreds, if not thousands, of innocent people are behind bars – facing decades in prison – in the most advanced nation purely based on false accusations. Isn’t it an irony that the symbol of human advancement, empowered by the “best brains” on earth, hasn’t come up with a solution to this problem while a law from the Middle Ages that an illiterate man brought effectively fixed it?
Legislation belongs to Allah alone. Man cannot entirely legislate himself.
Would it be sufficient as a defense of Islam’s punishment for drinking (i.e. flogging) that the majority of crimes are done under the influence of alcohol?
Alcohol is not only harmful to life, i.e. body and mind, but also to the society. It’s the primary cause of almost every type of crime in a society and this is not rocket science [pdf].
Laws against crime won’t make sense if a root cause of it is left permitted. And as with Zina, punishment for drinking comes last in the list of preventive measures. Sufficient would be to quote westerners who say that “for recovering alcoholics, Islam is a more effective ‘cure’ than the Betty Ford clinic.” In an Islamic society, alcohol-related crimes will be quite minimal or almost non-existent.
It must also be kept in mind that the punishment is meted out only when two trustworthy people testify that they have witnessed the person drinking, and the person should be a sane adult who drank voluntarily.
“As to the thief, male or female, cut off his or her hands: a punishment by way of example, from Allah, for their crime: and Allah is Exalted in Power. Full of Wisdom.” (Qur’an, 5:38)
The next most controversial Islamic law is perhaps amputating the hand of the thief. Islam takes the protection of personal wealth of individuals very seriously. It does not tolerate disruption of peace and security in a society. However, not every act of theft as we know comes under the definition of theft in Islam.
The stolen item, money, or valuables must be under a locked area. The thief must break in to get to the item he steals. Therefore, if a thief steals an item that is left outside, not cared for, then the hand of the thief won’t be cut off. Shoplifting and the like, though crimes (of a lesser degree), don’t come under this classification.
The thief must not be forced into stealing due to poverty. A starved person who steals to fill his hungry stomach will not face this punishment. The stolen goods must be above the value set by the Shariah.
Islam, further, has prescribed a specific penalty called Hirabah for crimes committed under the threat of weapon. Examples of Hirabah are: road blocking to rob the passersby, killing, breaking into peaceful residential areas, and even frightening and intimidating innocent residents. The stipulated punishment is based on the verse:
The punishment of those who wage war against Allah and His Messenger, and strive with might and main for mischief through the land is: execution, or crucifixion, or the cutting off of hands and feet from opposite sides, or exile from the land: that is their disgrace in this world, and a heavy punishment is theirs in the Hereafter; Except for those who repent before they fall into your power: in that case, know that Allah is Oft-Forgiving, Most Merciful. (Qur’an, 5:33-34)
Punishment is applied according the nature and intensity of the crime. If the thief kills and grabs the money of the victim, the punishment will be killing and crucifixion of the thief. If the thief takes the victim’ money only, but does not kill the victim, the thief’s hand will be cut off. If a thief kills the victim but does not take his money, the thief will be killed. If the thief frightens innocent residents but does not kill any of them such a threatening person must be exiled from his home country.
A secure community is essential for its members to enjoy a decent and honorable life. The Shariah leaves no stone untouched to achieve this. Capital punishments are required to keep the unruly members in check, as education alone has never been sufficient.
While freedom of practicing one’s religion is guaranteed in the Shariah, it does not tolerate embracing Islam and then rejecting it openly in an Islamic society. It cannot be conceived that a society nurtured upon Islamic teachings will produce members who will rebel against it, unless it be for a purpose to disrupt the society’s peace and produce chaos in it. Such a rebellion will be checked at its roots.
Apostasy is not about not having faith in the heart. But apostasy is about openly denying the religion, on which an Islamic society is fundamentally based. To do this is no less than sedition and treason whose punishment is the death penalty.
Such an unjust rebel of a person is given a chance of three consecutive days to repent. Mature Islamic scholars will discuss and debate with him. They will explain the religion and refute his wrong notions with clear proofs. If the person repents, he is set free. But if he insists despite all evidences presented to explain the futility of his actions, he will be executed.
It should not be misunderstood that Islam forces people into belief, as Allah says in the Qur’an, “There is no compulsion in religion. Verily, the Right Path has become distinct from the wrong path.” (Qur’an, 2:256)
Two more things we need to know about Hudood: One, the Prophet (صلى الله عليه وسلم) kind of discouraged applying the Hadd, as he said, “Stop the Hudood, capital punishment by entertaining [lawful and supported] suspicions.” (Al-Bukhari, no. 6484 and Muslim, no. 1676) So, if there is any room for doubt in a case then the Hadd should not be applied.
Second, if it is established it doesn’t matter if the culprit is a leader or a poor person. The punishment is equal for everyone. When a lady of “high society” was caught for stealing, the nobles tried to intercede to let her go, which prompted the Prophet (صلى الله عليه وسلم) to give that powerful statement: “The people before you were destroyed because they used to inflict the legal punishments on the poor and forgive the rich. By Him in Whose Hand my soul is! If Fatima (the daughter of the Prophet) did that (i.e. stole), I would cut off her hand.” (Al-Bukhari, 8/81, no. 776)[i] Muslims, and there have been instances in the past and present, may choose to voluntarily redeem their sin by facing the punishment in this world rather than in the hereafter. Though this not necessary, as Muslims are encouraged to hide their sins and turn in repentance directly and privately to Allah, the Almighty God who is Most Merciful and Oft-Forgiving, it nevertheless is still an option and a way of repentance and purifying oneself of the sin. Such a person is required to voluntarily come and confess to the judge at four different times. And each time, the judge will turn away his face with disgust and discourage the confession. After four confessions, the Hadd punishment of Zina is carried out. If the person runs away while the punishment is being carried out, he is not chased as it is considered a sign that he has retracted his confession.