UNDERSTANDING THE ISLAMIC PENAL LAW

INTRODUCTION

Islam is a religion with strong, systematic and well-designed principles and beliefs. Islam always encourages building a peaceful and fair society. Society actively discourages the engagement in criminal behaviors. The main aim of the Islamic Penal Law is to safeguard the society from violations and dangers.  The Islamic Penal Law, as the cornerstone of Islamic law, explicitly restricts criminal activities and precisely prescribes punishments for various offences. Islam widely categorizes the crimes into three as follows: Hudud crimes, Qisas offences and Taazir crimes. The Islamic Penal Law and its application can be notably varied around the globe. Some Muslim countries are directly influenced by Islamic Law while some nations incorporate their laws into Islamic laws.

This article will analyze how the Islamic Penal Law works and its branches, insights and decisions of different schools of thought and countries around the world.

HUDUD CRIMES

Hudud (limits or restrictions) crimes refer to specific serious crimes that are predetermined with certain punishments as per the Quran and the Sunnah. These crimes can be considered as crimes against Allah in Sharia. The violation of such crimes explicitly amounts to the violation of Allah’s word and is considered a direct transgression against the will of Allah (divine law). In light of Allah’s word, ‘These are the limits of Allah. Do not transgress them’ – Surah Al Baqarah.[1]

The primary characteristics of Hudud offences are that they are very stringent in nature. As discussed above, as they are pre-determined by Allah, further deliberation is precluded. Prefixed and mandatory punishments should be awarded in compliance with the Quran and the Sunnah for the specific crimes. The Hudud crimes codified in the sacred Quran are adultery/fornication (zina), theft (sarika), highway robbery (haraba), drinking alcohol (khamr) and apostasy (ridda).[2]

Apostasy (Ridda)

Apostasy or proselytization refers to ridda, which indicates the renunciation of Islam. Over the course of Islamic history, apostasy was forbidden in Islamic Sharia. There are many different thoughts and insights among Islamic scholars about apostasy and its punishments.

The Fatwa Committee of Al-Azhar University in Cairo addressing the issue of a person who has religious conversion: ‘since he left Islam, he will be invited to express his regret. If he does not regret it, he will be killed according to the rights and obligations of the Islamic Law’. Many authorities in Islamic theology have considered apostasy a hadd offense. However, Hanafi and Shafi experts have been opposed to this view. Further, scholars like Malikite Abu al-Walid al-Baji and Hanabalite Ibn Taymiyyah has agreed the opinion of Hanafi and Shafi scholars on this area.

In light of Sharia Law, the majority of medieval jurists suggested that a male who has converted to another religion must be put to death unless he is mentally disabled or under duress. As per the Shafi, Maliki and Hanbali schools of Sunni Islamic Jurisprudence, female apostates must be executed, while the Sunni Hanafi School and Shia ulemas highlighted that female apostates must be imprisoned until they reaffirm her Islamic faith.

In accordance with traditional Islamic law, the accused of an apostate may be given a period of detainment to express repentance and to encourage them to return to the faith of Allah. Experts in Islamic studies have engaged in a notable and deep division of opinion on this matter as follows:

• Hanafi School of Thoughts suggest that three days of imprisonment is recommended before the execution for apostasy. Further, they highlight that the male accused must be killed whereas female apostates are to be held in isolation and should be given corporal punishment every three days until they return to the Islamic faith.
• Maliki, Shafi and Hanbali Schools agrees with the view that both men and women apostates deserve the death penalty as per the traditional theology. Yet, they have different opinions on determining the waiting period before the execution. Maliki allows up to ten days for repudiation while the Shafi School of thoughts allows three days to return to Islam. Notably, Hanbali scholars highlight that a waiting period is not necessary, but it may be granted in few circumstances. 

In 1985, Mahmoud Mohammed Taha, religious thinker and leader, was executed due to his thoughts and views on religious matters and threats to the state and society by the Sudanese Government. Further, an Egyptian writer and human rights activist was arrested and imprisoned for 20 years for the accusation of blasphemy as his thoughts were controversial and were against Islamic theories. In recent years, in the case of Asia Bibi v The State[3], the Pakistan Court ordered a death penalty for insulting Prophet Mohammed and charged with blasphemy charges in 2010. However, due to the lack of evidence, the court overturned its decision, and she spent eight years on death row.

Adultery/ Fornication (Zina)

The most serious hadd offence prescribed in the Quran is zina. Zina refers to either adultery or fornication. Zina is outlined as a major sin in Sharia law that highlights the essence of upholding moral and ethical imperatives.

Fornication means two unmarried people have sexual intercourse outside the marriage. Allah (SWT) explicitly outlines in his Quran, ‘the woman and the man guilty of fornication flog each of them with a hundred lashes: let not compassion move you in their case in a matter prescribed by Allah’[4]. Further, the harsh form of corporal punishment for the fornication is described as follows: ‘men are stripped to the waist, women have their clothes bound tightly and flogging is carried out with a leather whip’[5]. Accordingly, the man and couple who engage in fornication accusations should be punished with 100 lashes without any discretion of judges.

Some authorities in Islamic theology suggested that exile for one year should be added to the punishment of 100 lashes for fornication. Imam Shafi, Imam Ahamed and Ibn Laila stressed that the punishment of 100 lashes and exile for one year should be upheld for the accusation of fornication. The Mailiki school of thought indicated that the male accused should experience both lashes and exile, while the execution of 100 lashes is enough for the female.

Adultery signifies extra marital sex where a married person engages in sexual intercourse with someone other than his/her partner. The Quran and the Sunnah precisely prohibited adultery, as it is a violation of Islamic principles. Prophet Mohammed prescribed stoning to death for the accusation of adultery. Notably, the zina hadd offence can be proven only when the testimony of four eyewitnesses appears in the court as evidence, and those four eyewitnesses must be male, sane and adult Muslims.

Considering the recent penal law, many Muslim countries regulate their acts and regulations to maintain a healthy society and uphold justice with regard to zina in a significant manner. In Pakistan, the Pakistani Offence of Zina (Enforcement of Hudood) Ordinance 1979[6] plays a crucial role in maintaining social fairness. It emphasizes the essence of witnesses in the evidential process, and this ordinance highlights the punishments, including imprisonment and flogging, as per Sharia. Further, the Brunei Sharia Code 2013[7] also points out the detailed procedures for the accusation of zina and underscores the essence of zina laws and regulations.

Theft (Sariqah)

Theft is a crime that is clearly highlighted in the Quran and the Sunnah as a hadd offence. It can be defined as taking others’ things from a secured place without ownership or without having rights to the valuable things. Theft is outlined in chapter 8 (197) of the Islamic Code of Iran as ‘stealing someone else’s property’. Allah (SWT) explicitly describes in the Quran how the thief should be punished. Accordingly, ‘as for the man or woman who is guilty of theft, cut off their hands to punish them for their crimes. That is the punishment enjoined by Allah’[8] (Surah 5:38). Ambulation of hands can be proceeded based on strict conditions. Not all theft should be ended in the ambulation of a hand. The stipulated requirements for the application of hand amputation as a punishment for theft are as follows:

• The thief must have the intention to steal without any duress.
• The property should belong to someone else.
• The property or thing should be stolen from a secured place.
• The specific thing must have some monetary value.

Notably, different schools of Islamic Jurisprudence have different opinions on the precise value of the stolen property. In accordance with Hanafi Jurist, the minimum value of the stolen things should be 10 dirhams, but as per the Maliki studies, the minimum amount should be 3 dirhams. Other schools of thought do not mention the specific amount in any situation. As per Sahih Muslim, ‘Aisha reported that Allah’s messenger (may peace be upon him) stated, ‘cut off the hand of a thief for a quarter of a dinar and upwards’ (Bukhari and Muslims)[9].

A comprehensive review of the legal statutes and judicial precedents regarding the offence of theft within the legal framework of Muslim countries shows that the Sudanese penal code grants an amputation when the properties and goods are stolen above a certain value and when the ownership was taken intentionally from the owner. Further, article 5 of the equivalent ordinance in Pakistan (Offences Against Property [Enforcement of Hudood] Ordinance 1979) highlights that ‘whoever, being an adult, surreptitiously commits, from any hirz (an arrangement made for the custody of property), theft of property of the value of nisab (4.457 grams of gold) or more is said to commit theft liable to hadd’.[10]

Drinking of alcohol (Shurb al-Khamr)

The drinking of wine or other intoxicating beverages amounts to a hadd offence. Prophet Mohammed stressed this offence as ‘the mother of all vices (ummal-Khaba’ith) as this intoxication may cause other severe offences. Further, the Prophet once said, ‘Every intoxicant in khamr and every intoxicant is forbidden.’ Accordingly, having alcohol is explicitly prohibited in Islamic Law. The punishment for the intoxication is 80 lashes. Aras bin Malik recorded that once a prophet ordered to punish with 40 stripes with two palm branches for a drunkard.[11]

Highway robbery (Hirabah)

Hirabah refers to the crimes in relation to robbery, but it covers robbery, forcible entry into houses and premises with weapons and attacking them with weapons. As per the Sharia, the punishments from amputation to execution may differ depending on their accusation levels before the court. As evident, Allah (SWT) says in his Kithab, ‘the punishment of those who wage war against Allah and his messenger and strive with might for mischief through the land is execution or crucifixion, or cutting of hands and feet from opposite sides, or exile from the land’[12].

QISAS

Qisas refers to ‘equality’. Qisas (retaliation) punishments are allowed for murder and physical injuries. This indicates that the inflictions on an accused must exactly equal to the injury that was on the victim.

 Murder is regarded as a severe offence within the Islamic legal framework. The Quran explicitly prohibited murder in, ‘do not kill the person God has forbidden to kill, except with justifications’[13]. The matter of unintentional killing presents a legal and ethical debate. The Quran precisely elaborates that killing by mistake cannot be included as a part of qisas and cannot be punished by death penalty.

The punishments for homicide or bodily injuries can be either qisas (retaliation) or diya (blood money). As per Islamic Law, if one person is found guilty of the accusation of murder or injuries, the punishments must not be granted at the discretion of judges; rather, it’s obvious that the victim or his heirs should decide the manner of punishments. Islam also allows the innocent party to accept monetary compensation (diya) instead of retaliation.[14]

TAAZIR CRIMES

Unlike Hudud crimes, Taazir offences are not presented explicitly in the Quranic verses and the Sunnah. These crimes are dealt with at the discretion of judges. Taazir punishments strive for preventing crimes and discouraging the accused from repeating the same offences and giving the offenders a chance to reform and encouraging them to merge into society. Ibn Farhun, in his literary work ‘Tabsirat al-Hukkam’, highlights the aims of Taazir to be a sort of disciplinary, reformative, and deterrent manner of punishments.

Why did Allah not prescribe Taazir offences in his Quran and the Sunnah? Simply, that does not mean both divine law does not have clarification about punishments. In fact, both the Quran and the Sunnah clearly outline the legal principles and their application. Yet, it was left to the judges to decide what type of punishments should be upheld based on the legal principles. Basic ideologies and legal aspects are clearly prescribed in the divine law, and the jurist should analyze the categories of crimes and decide the punishments according to it.

The punishments for these offences are not fixed and are not pre-ordained. The judges should punish based on the specific crime, prior conduct of the offender, and the physical and psychological condition of the accused. Notably, the judges are not definitely allowed to enforce punishments that are not permitted in Islamic Law. 

A comprehensive analysis reveals ten distinct forms of Taazir punishments as per the Sharia. These will be administered by judges depending on the severity of crimes that come in front of the court. The ten aforementioned punishments consist of: Admonition (Al Waz), Reprimand (Al-Tawbikh), Threat (Al-Tahdid), Boycott (Al-Hajr), Public Disclosure, Fines and Seizure, Imprisonment, Banishment, Flogging and Death Penalty.[15]

 

REFERENCES

[1] The Quran, Surah Al Baqarah, verse 229

[2] Dr.Etim E.Okan, Hudud Punishments in Islamic Criminal Law, page no 229

[3] Asia Bibi v The State, No.39L of 2015

[4] The Quran, Surah Al Noor, verse 2

[5] Schmalleger 2001:632

[6] The Offence of Zina (Enforcement of Hudood) Ordinance, 1979

[7] Syariah Penal Code Order 2013, Brunei Darussalam

[8][8] The Quran, Surah Al Maidha, verse 38.

[9] Imam Buhari Muslim, Hadees Buhari Muslim

[10] Offences Against Property [Enforcement of Hudood] Ordinance 1979, Pakistan

[11] Lawan, Sada and Alli, 2011:31

[12] The Quran, Surah Al-Maidha, verses 33-34

[13] The Quran, Surah Al- Isra, verse 33

[14] Dr.Etim E.Okan, Hudud Punishments in Islamic Criminal Law, page no 232

[15] Mashood A. Baderine, Islamic Law, A Very Short Introduction, Chapter 7