The execution of Islamic penalties ...

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The execution of Islamic penalties (hudud): Myths & facts

The execution of Islamic penalties (hudud): Myths & facts

The recent brutal incident of stoning to death a married woman under the claim of committing adultery is a new horrendous crime in the series of atrocious terrorist acts that are committed by the sick-minded, cruel-hearted, inhumane group of QSIS.

This appalling incident cannot be associated to Islamic teachings in any way, shape or form as this merciless act is adversary to the merciful teachings of Islam both in letter and spirit. This self-claimed terrorist group which lives in the delusion of establishing a “state” for the sole purpose of gaining power, looting money, usurping lands, enslaving women, slaughtering opponents both Muslims and non-Muslims, recruiting half-educated men to become professional mercenaries; these terrorists cannot be remotely eligible to form a judiciary system authorized to pass judicial verdicts on citizens over alleged crimes.

In general in the criminal law of the Islamic legal system penalties (hudud) in Islam are mainly meant to act as a deterrent factor and not to be widely applicable without keeping in mind the strict restrictions and meticulous conditions that should be carefully considered before the execution of such penalties. Any rising speculations regarding meeting one or more of the conditions of applying the penalty leads it to be at halt. One of the major common elements in most of the major penalties to be applied is the element of the availability of trust worthy and honest eye witnesses to testify to the validity of the crimes committed.

There were many discussions about the issue of putting the hudud at halt at the end of the nineteenth century, many focused on the fact that the hudud had not been executed. A result of these discussions was the emergence of the term “an era of doubt”. Due to the changing circumstances and the infrequency of people who satisfied the classical requirements for testimony as set out by the jurists, our era came to be known as “the era of doubt[1].” The relevant principle in this regard was that the hudud are to be avoided in cases of doubt. The famous hadith says, “Avoid the hudud for the Muslims as much as you can. If you find a Muslim errant, let him to his way. It is better for the Imam to err in granting leniency and forgiveness than for him to err in punishing someone[2].” Also, Umar bin al-Khattab (d. 23 AH) said, “If I can cancel the hudud due to doubts, I prefer that to going through with the punishment in the face of doubt[3].”

Understanding the spirit of justice of the criminal law in the Islamic legislation is crucially important for us to realize the underlying reasons behind the contemporary scholar’s decision of halting the execution of major penalties or hudud due to the extreme difficulty of meeting the necessary conditions for applying these penalties. The modern Islamic scholars were inspired by the thinking methodology of Umar ibn al Khattab, the second Muslim Caliph who suspended the punishment for theft during the year of famine. The general command is given in the Qur’an: “The thief, male and female, cut their hands.” (Al-Ma’ida: 38). But the Prophet (peace be upon him) said, “Do not cut in times of drought[4].” And it is related of him in ahadith that he said, “No cutting hands in times of famine[5].” Famine is mostly likely a time of necessity. As such, the presence of this likelihood was thought to be sufficient to suspend the hadd in deference to the protection of one’s bodily integrity, which is part of the objective (maqsad) of protecting the self[6].

This suspension resembles what is related about Umar b. al-Khattab’s (d. 23 AH) moratorium of the punishment for theft. This did not imply that Umar denied the truth of the hadd, nor that he annulled the shari’a. It is simply an indication that applying the shari’a comes with conditions. One of these conditions is the existence of a specific state of affairs. If that state of affairs is not present, the hadd is not to be imposed. This is in fact squarely part of the shari’a, not outside of it[7].

Regarding the punishment in question of adultery in Islam for the married man or woman is meant first and foremost to work as a deterrent measure to heed people away from committing such major sin. This means that the practical application of this punishment is rare to find as meeting the strict conditions of executing the penalty is extremely difficult. One of the conditions is that four trust worthy and honest eye witnesses must have seen the incident of adultery. Another major condition is that the four witnesses must see the intricate act of the sexual intercourse with their own eyes. In fact, there is a specific punishment for accusing someone with adultery without this condition.

The Qur'an states:
*{And as for those who accuse chaste women [of adultery], and then are unable to produce four witnesses [in support of their accusation], flog them with eighty stripes and ever after refuse to accept from them any testimony - since it is they, they that are truly depraved.}* (An-Nur 24:4)

The firm conditions for the crime to be witnessed and the strict punishment for false witnessing raises the level of difficulty of executing the penalty and reinforces the essence of deterrence and not execution of such punishment.

We have to emphasize on the fact that according to the Islamic law, the authorities are not supposed to spy on people in order to check who commits adultery and who does not.

Muslim authorities are only supposed to educate their people, not spy on them. Spying is a sin, which the Qur'an is clear about:

{O you who have attained to faith! Avoid most guesswork [about one another] for, behold, some of [such] guesswork is [in itself] a sin; and do not spy upon one another.}* (Al-Hujurat 49: 12)

In fact, if one Muslim witnesses what he or she thinks is an act of adultery without the company of three other witnesses, the prescribed action is to conceal or cover these people and not to scandalize them.

Ibn Al-Mulaqqin narrated about the story of stoning Ma`iz:
`Abdullah Ibn Unais came and mentioned Ma`iz’s story to the Prophet. So, the Prophet told them: "You should have left him. Maybe Allah would have forgiven him." Then, he told Hazzaal: "O Hazzaal! You did the worst thing to that orphan. If you had covered him with your robe, that would have been better for you." Then, he called the woman who was involved with Ma`iz and told her: "Go", and did not ask her about anything. (Ibn Al-Mulaqqin, Al-Badr Al-Munir fi Takhrij Al-Ahadith wa Al-Athar Al-Waqi`ah fi Al-Sharh Al-Kabir, 1st ed. Riyad: Dar Al-Hijrah, 2004, vol. 2, p. 622)

It was narrated in Al-Bukhari and Muslim that Anas narrated that he was with the Prophet when a man came to him and said: "Oh Messenger of Allah, I deserve a hadd (corporal punishment) for something I did. So, apply it to me."

The Prophet did not ask him which punishment he deserved, until the prayer was called for and he prayed with the Prophet. After the prayer, the man returned to the Prophet and repeated his sentence.

The Prophet asked him: Didn't you pray with us? The man answered: Yes. The Prophet said: "Allah has forgiven you your sin."

Ibn al-Qayyim commented that this man came in a state of repentance without being asked by anybody, so Allah forgave him and the Prophet did not apply the punishment to him for the crime that he confessed. (Ibn al-Qayyim, I`lam Al-Muwaqi`in `an Rabb Al-`Alamin, Beirut: Dar Al-Jil, 1973, vol. 2, p. 98.)

In short, the eagerness and the zealotry of tracking people’s pitfalls and ambushing them into confessing for committing major sins for the brutal purpose of spilling their blood cannot be supported by any legislation divine or human as such crooked way of thinking only comes from hearts who lost all the meanings of mercy and minds which mentally thrives on bloodshed.

[1] Dr. Ali Gomaa, Al-Tajribah Al-Missriyyah, p. 41, 42.
[2] Al-Baihaqi, Sunan, vol. 8, p. 413.
[3] Ibn Abu Shayybah, Musanaf, (al-Rushd Book), vol. 5, p. 511.
[4] Abd al-Razzaq, Musanaf, vol. 10, p. 242, through Yahya Ibn Abu Kathir (may God be well pleased with him), (al-Maktab al-Islami Books).
[5] Abu Nu'aym, Tarikh Asbahan, vol.1, p.375, through Abu Imamah al-Bahli (may God be well pleased with him), (Dar al-Kutub al-'Ilmiyyah Book). Al-Suyuti declared the hadith weak . see Fath Al-Kabir fi Dam al-Ziyada illa Al-Jami' al-Saghir, vol. 3, p. 347, (Al-Halabi Books).
[6] Al-'Ilm 'Inda Al-Usuliyyin, p. 347, excerpted from MA thesis composed by a researcher in shari'ah department, faculty of law, Alexandria University.
[7] Dr. Ali Gomaa, Al-Tajribah Al-Missiryyah, p. 42.


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