VIII. Punishments
1. Regarding Severity in Islamic Punishments
For many centuries now, Islamic punishments have remained one of the hottest subjects of debate both inside and outside the Muslim world. “Islamic punishments are barbaric”, “Death to the death punishment”, “Civilized societies do not flog, stone to death or amputate hands” are a few of the typical slogans and comments that echo and reverberate among the intellectual elite of this ummah.
Without refuting the fact that Islamic punishments are indeed very severe, two things may perhaps help the modern mind in understanding the nature and logic of this severity.
The first thing that needs to be kept in mind is that if one reflects on the style and linguistic constructions in which these punishments are mentioned in the Qur’an, it is clear that these punishments indicate the most extreme forms of reproof. They should be given only if the extent of the crime and the state of the perpetrator of the crime deserve no leniency. In other words, it is not simply a matter of a court determining the culpability of an individual in a particular crime or not; it is equally important that contextual information, for instance, factors which led up to the crime, is taken into account. If this information results in a judge deciding that the crime has been committed with extenuating circumstances, he has the authority to punish the criminal with lesser punishments like fining him or having him beaten up. Precisely, on such grounds, in a particular case, the Caliph ‘Umar (rta) refused to amputate the hand of a person who was forced to steal because of hunger simply because he thought the circumstances were such that the person deserved leniency. It is known that there was a severe drought during his rule and it was in this drought that the incident had taken place. People think that ‘Umar (rta) had abrogated the punishment, whereas, ‘Umar (rta) thought that the criminal deserved leniency. In other words, one can easily conclude that in this particular aspect the Islamic penal code is no different than other penal codes.
The second thing that needs to be taken into consideration is that the purpose of most Islamic punishments is not merely to punish the criminal, but to make his punishment an act of deterrence for any further instance of the crime. Everyone would agree that peace and security of a society occupy fundamental importance if it is to develop and prosper. Societies which are crime ridden and in which people feel insecure obviously soon disintegrate and eventually have no role in the development of culture and civilization. As such, it is the primary responsibility of a government to make sure that the life, wealth and honour of its citizen are protected to the utmost. Besides educating and instructing people so that they have morally sound personalities, it is necessary to severely punish people who, in spite of being provided with the opportunities of life, exceed limits by abusing the life, wealth and honour of others. In order to cleanse a society from crime as much as possible, Islam wants to make an example of people who create nuisance in the society and disrupt its peace and tranquillity. Consequently, the punishments it prescribes are instrumental in bringing to the greatest degree peace and security to a society.
2. Apostasy is Punishable by Death[55]
Our jurists believe that apostasy is punishable by death. This view is not correct. In this regard the correct view is delineated below.
The punishment of apostasy has arisen by misunderstanding a Hadith. This Hadith has been narrated by Ibn ‘Abbas (rta) in the following way:
مَنْ بَدَّلَ دِينَهُ فَاقْتُلُوهُ (بخاري، رقم: 3017)
Execute the person who changes his faith. (Bukhari, No: 3017)
Our jurists regard this verdict to have a general application for all times upon every Muslim who renounces his faith from the times of the Prophet (sws) to the Day of Judgement. In their opinion, this Hadith warrants the death penalty for every Muslim who, out of his own free will, becomes a disbeliever. In this matter, the only point in which there is a disagreement among the jurists is whether an apostate should be granted time for repentance before executing him, and if so what should be the extent of this period. The Hanafite jurists however, exempt women from this punishment. Apart from them, there is a general consensus among the jurists that every apostate, man or woman, should be punished by death.
It needs to be appreciated that this view of our jurists is not correct. The verdict pronounced in this Hadith has a specific application and not a general one: It is only confined to people towards whom the Prophet (sws) had been directly assigned. The Qur’an uses the words mushrikin and ummiyyin for these people.
An elaboration of this view follows.
In this world, we are well aware of the fact that life has been endowed to us not because it is our right but because it is a trial and a test for us. Death puts an end to it whenever the duration of this test is over, as deemed by the Almighty. Commonly, He fixes the length of this period on the basis of His knowledge and wisdom. However, in case of the direct and foremost addressees of a rasul (Messenger of Allah), once the truth is communicated to them in its ultimate form after which they have no excuse but stubbornness and enmity to deny it, they lose their right to live. The Almighty had blessed them with life to try and test them, and since after اِِتْمَام الحُُجَّة (itmam al-hujjah[56]) this trial becomes totally complete, therefore the law of the Almighty in this regard is that generally such people are not given any further right to live and the death sentence is imposed upon them.
This punishment is enforced upon the direct addressees of a rasul in one of the two ways depending upon the situation which arises. In the first case, after accomplishing اِتْمَامُ الحُجَّة (itmam al-hujjah) upon his nation, a rasul and his companions (rta) not being able to achieve political ascendancy in their territory migrate from their people. In this case, Divine punishment descends upon their nation in the form of raging storms, cyclones and other calamities, which completely destroy them. The tribes of A^d and Thamud and the people of Noah (sws) and Lot (sws) besides many other nations met with this dreadful fate, as is mentioned in the Qur’an. In the second case, a rasul and his companions are able to acquire political ascendancy in a land where after accomplishing اِتْمَامُ الحُجَّة (itmam al-hujjah) upon their people they migrate. In this case, a rasul and his companions subdue their nation by force, and execute them if they do not accept faith. It was this situation which had arisen in the case of the rasul Muhammad (sws). On account of this, the Almighty bade him to declare that those people among the ummiyyin who had not accepted faith until the day of Hajj al-Akbar (9th hijrah) should be given a final extension by a proclamation made in the field of ‘Arafat on that day. According to the proclamation, this final extension would end with the last day of the month of Muharram, during which they had to accept faith, or face execution at the end of that period. The Qur’an says:
فَإِذَا انسَلَخَ الْأَشْهُرُ الْحُرُمُ فَاقْتُلُوا الْمُشْرِكِينَ حَيْثُ وَجَدْتُمُوهُمْ وَخُذُوهُمْ وَاحْصُرُوهُمْ وَاقْعُدُوا لَهُمْ كُلَّ مَرْصَدٍ فَإِنْ تَابُوا وَأَقَامُوا الصَّلَاةَ وَآتَوْا الزَّكَاةَ فَخَلُّوا سَبِيلَهُمْ إِنَّ اللَّهَ غَفُورٌ رَحِيمٌ (5:9)
When the forbidden months are over, slay the Idolaters wherever you find them. Seize them, besiege them and every where lie in ambush for them. But if they repent from their ill beliefs and establish the prayer and pay zakah, then spare their lives. God is Most-Forgiving and Ever-Merciful. (9:5)
A Hadith illustrates this law in the following manner:
أُمِرْتُ أَنْ أُقَاتِلَ النَّاسَ حَتَّى يَشْهَدُوا أَنْ لَا إِلَهَ إِلَّا اللَّهُ وَأَنَّ مُحَمَّدًا رَسُولُ اللَّهِ وَيُقِيمُوا الصَّلَاةَ وَيُؤْتُوا الزَّكَاةَ فَإِذَا فَعَلُوا ذَلِكَ عَصَمُوا مِنِّي دِمَاءَهُمْ وَأَمْوَالَهُمْ إِلَّا بِحَقِّ الْإِسْلَامِ وَحِسَابُهُمْ عَلَى اللَّهِ (مسلم ، رقم : 22)
I have been directed to wage war against these people until they testify to the oneness of God and to the prophethood of Muhammad, establish the prayer and pay zakah. If they accept these terms, their lives will be spared except if they commit some other violation that entails their execution by Islamic law and [in the Hereafter] their account rests with God. (Muslim, No: 22)
This law, as has been stated before, is specifically meant for the ummiyyin or the people towards whom Muhammad (sws) had been directly assigned. Apart from them, it has no bearing upon any other person or nation. So much so, even the people of the Book who were present in his times were exempted from this law by the Qur’an. Consequently, where the death penalty for the ummiyyin is mentioned in the Qur’an, adjacent to it has also been stated in unequivocal terms that the people of the Book shall be spared and granted citizenship if they pay jizyah. The Qur’an says:
قَاتِلُوا الَّذِينَ لَا يُؤْمِنُونَ بِاللَّهِ وَلَا بِالْيَوْمِ الْآخِرِ وَلَا يُحَرِّمُونَ مَا حَرَّمَ اللَّهُ وَرَسُولُهُ وَلَا يَدِينُونَ دِينَ الْحَقِّ مِنْ الَّذِينَ أُوتُوا الْكِتَابَ حَتَّى يُعْطُوا الْجِزْيَةَ عَنْ يَدٍ وَهُمْ صَاغِرُونَ (29:9)
Fight against those among the people of the Book who believe not in God nor in the Last Day, and who do not forbid what God and His Prophet have forbidden and do not accept the religion of truth as their own religion, until they pay jizyah out of subjugation and lead a life of submission. (9:29)
The foregoing discussion, outlines a law of the Almighty. There is a natural corollary to this Divine law as obvious as the law itself. As stated earlier, the death penalty had been imposed upon the ummiyyin if they did not accept faith after a certain period. Hence, it follows that if a person among the ummiyyin after accepting faith reverted to his original state of disbelief, he had to face the same penalty. Indeed, it is this reversion about which the Prophet (sws) is reported to have said: “Execute the person who changes his faith.”
The relative pronoun “who” in the above quoted Hadith qualifies the ummiyyin just as the words “the people” (al-nas) in the Hadith quoted earlier are specifically meant for the ummiyyin. When the basis of this law as narrated in these Ahadith has been specified in the Qur’an, then quite naturally this specification should also be sustained in the corollary of the law. Our jurists have committed the cardinal mistake of not relating the relative pronoun “who” in the Hadith “Execute the person who changes his faith” with its basis in the Qur’an as they have done in the case of “the people” (al-nas) of the Hadith quoted above. Instead of interpreting the Hadith in the light of the relationship between the Qur’an and Hadith, they have interpreted it in the absolute sense, totally against the context of the Qur’an. Consequently, in their opinion the verdict pronounced in the Hadith has a general and an unconditional application. They have thereby incorporated in the Islamic Penal Code a punishment which has no basis in the shari‘ah.
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