By Aiman Reyaz, New Age Islam
31 January, 2014
The one image of Sharia that is most prominent in the minds of the people is that it is brutal and inhumane. Its goal is only to kill, cut limbs, and crucify. It is, in short, people believe, “barbaric”.
There are so many points to deal with the above mentioned belief about Sharia. First, who has the right to infer that Sharia is brutal, severe, inhumane and barbaric? Is there total agreement regarding these definitions? And has it been settled yet? The debate, however, still goes on...
Take for example of the issue of capital punishment. Amnesty International says about capital punishment as “the ultimate denial of human rights”, it is a “cruel, inhuman and degrading punishment”. 1 But in the most advanced country of the world, i.e. in the United States, in the state of Texas, there is capital punishment, and over 1,264 people have been executed. 2
Who has the authority to “categorise” punishments: “oh, this is ok”; “no, this is bad”; “this is barbaric” etc? Except arousing of emotions, there is no authority and no criteria that objectively one can categorise punishments.
Secondly, let us ask this question, what has been the result of being “lenient”? Does “leniency” deter criminals?
Another point is that who can say for sure which one is more “inhumane”, lashing a person 80 times or putting him in prison for 10 or 15 years, in the company of other hardcore criminals, and thereby giving him ample opportunity to learn even more crimes?
Fourthly, what right should any person have who commits aggression and disregards the basic rights of other people, like the right of life, honour, wealth etc and says that others should not punish him because it is a matter of his human dignity and human rights? When that person has not respected the rights of others, then how can he expect others to respect his right?
Fifthly, if we really look at the severest of punishments in Sharia we will find that it has been subjected to very severe and very strict controls. This point has a few offshoots that must be highlighted. I will try to summarise them in brief.
The first thing is that when strict Sharia law is applied it should be applied equally to the ruler and the ruled. You don’t punish the commoner and let the ruler and his cronies go scot-free. The Prophet (pbuh) made it clear:
"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."
Secondly, a Muslim should not be too eager to report a moral slip of other people. The Prophet (pbuh) actually taught that a person should not be too enthusiastic to report a moral mistake to the authorities. It is said that Allah, on the Day of Judgement, will conceal the faults of those people who had concealed the faults of other people.
Thirdly, even if the crime is reported to the judge or the ruler then the judge or the ruler should not be too eager to punish. There are two subcategories in it. First, if a crime is committed, which has a specific and fixed punishment in the Quran, and the person who has committed the crime, say adultery, but does not say anything about the crime, then that man should not be punished.
Once a man came to the Prophet and told him that he had committed a sin which requires a fixed punishment. He didn’t tell the Prophet what the crime was, and the Prophet did not even ask him. Then the Prophet asked that man to join the prayer and after the prayer the man again reminded the Prophet that he had done something which requires him to be punished. The Prophet replied “You prayed with us and Allah has forgiven you” (some versions say “Allah has forgiven your mistake”).
The second case is that when the person specifies the sin, or offence or crime that he did. Even here the ruler or the judge should not be too eager to inflict punishment and should give a chance to the person.
A man came in the mosque and said “O Messenger of Allah I committed adultery”. The Prophet turned away his face, as if he did not want to listen. The man kept facing the Prophet and kept repeating “O Messenger of Allah I committed adultery”; he did this four times (thus indicating that he has given four witnesses against himself!). Now the Prophet said “Are you mad?”, the man says “no”; then the Prophet asked “are you married?” and the man said “yes”. The Prophet wanted him to just go. But this was too much. At any time that man could have recanted, his issue would have been ignored but the man was too eager. Ultimately he was given the punishment.
Another point is that when the person has recanted, even after the ruling, he can go free. Then even after the punishment has started and the person cannot control himself, and he somehow manages to run away from it, he should be forgiven.
This next point is very important. Rules of evidence are very strict. First of all there must be four witnesses, in the case of adultery, who have seen everything in detail and those four witnesses must persist in their testimony and if any one of them changes the mind, then all four could be punished. Number two: pregnancy should not be taken as a definite proof for adultery. It is also possible that the act may not have been consensual. Rape could have been the case. Furthermore, when the woman even says that she was forced, then also she is not to be punished. So one should not victimise the victim but the culprit should be punished.
“Whenever possible, refrain from awarding or meeting punishment..., if there is the slightest excuse or doubt. Leave him or her alone; it is better for the judge to err in acquitting the accused rather than erring in meeting the punishment.”
2. http://en.wikipedia.org/wiki/Capital_punishment_in_Texas#cite_note-1, http://users.bestweb.net/~rg/execution/TEXAS.htm, http://www.tdcj.state.tx.us/stat/executedoffenders.htm