Reprieve for the Condemned and Islamic Law

October 10th was marked as anti-death penalty day worldwide. Its sham that government’s July 2nd decision to commute the death sentence of 7400 death row prisoners that was applauded across the globe is yet to be honoured by deed. Despite undertakings by Prime Minister Gillani before the parliament and re-affirmed by the newly elected President Zardari in his inaugural press-conference. The lives of 7400 death row inmates still hangs by a narrow thread and their prayers of deliverance to Almighty Allah thus far remains unanswered, though they have fasted and repented through the blessed month of Ramadan. It’s reported that a few have been already executed since the announcement is alarming and scandalous.

The coalition leadership, like my brother (Mirza Tahir Hussain) have spent long terms in jails often on questionable evidence and know from experience how vital it is to reform the outdated system. That is increasingly used to settle social, political and sectarian grudges. Due to commitments of the world-wide coalition against the death penalty and our extensive lobbying efforts the EU sponsored UN resolution was passed last year with overwhelming majority to abolish the death penalty world-wide.

Islamic law is also underpinned by strong notions of mercy and compassion despite stereotypical characterization of Islam that implies it is a medieval, retributive and oppressive religion. Even when the Archbishop of Canterbury Dr Williams and Lord Philips (the highest judge in England) stand up to defend the application of Sharia in matters of personal and civil law in England, they are condemned furiously. Sharia conjures up the most horrific images of public beheadings, stoning and amputations that flash before the public’s imagination. However those with slightest of knowledge would know better that as in all religions, there are ‘progressive’ and ‘conservative’ strands of thought and Islam is no exception.

There is so much diversity within the Muslim-world even with many aspects of religious doctrine both in law and practice. This is vividly demonstrated with regards to the application of capital punishments. Almost 30 of the 60 ‘Islamic’ countries have abolished or have moratoriums in place. For instance the Republic of Maldives lead by a conservative, Al-Ahzar educated head of state, has not executed anyone for the last 55 years. Another example is Brunei Darussalam ruled by a Sultan, has not carried out any death sentence for over half a century. Benin, Ghana, Niger, Tanzania, Surinam, Tonga and Tunisia had moratoria for over 10 years. Although Algeria, Kazakhstan and Mali have death penalty on the statute book, they have decided to freeze all executions.

Another set of countries have abolished the death penalty altogether for all crimes namely Albania, Bosnia, Djibouti, Kyrgyzstan, Mauritius, Senegal, Tajikistan, Turkey and Turkmenistan.

Whilst conducting research for this article I spoke with a number of muftis and jurists in these countries and majority were of the view that this is indeed in conjunction with Quranic principles of clemency.

Although the ‘law of equivalence is ordained for murder’ however the word Qisas has a lot wider meaning in the Arabic lexicon. ‘The objective of punishment can be achieved short of death or execution’ to use a phrase from one of the conversations.

The Holy Quran contains about 6,219 verses; however no more than 600 in particular deal with legal matters, mainly with areas of family law such as divorce, marriage, inheritance and prohibitions. Only a few mention capital offences with punitive injunctions. The latter are of two types namely, ones where the punishment has also been prescribed by the Quran, secondly those where the punishment is left to Ulu’ al-Amr (experts) or jurists to determine as per exigencies of particular circumstances. For example, in the case of intoxicants (wine), its prohibition is ordained but the punishment has not been prescribed for its non-observance.

The verses dealing with capital offence of murder and carry punitive measures have an emphasis on clemency are quoted as follows;

“O believers, ordained for you is Qisas (pursuit of the offender through due process of law) for the murdered; the free for the free, the slave for the slave, the woman for the woman [murder is a punishable crime as everybody is equal before the law regardless of status and gender. The offender is alone responsible for their actions not the wider clan or his/her master so to avoid collective punishment which was a common practice in pre-Islamic times amongst Arabs]. But he who is pardoned some of it by his brother [brother mean the wider brotherhood of believers, the Muslim community or State because not all victims have a blood brother] should be dealt with equity, and recompense (for blood) paid with grace. This is a concession from the Lord and a kindness. He who transgresses in spite of it shall suffer painful punishment. In Qisas there is life (and preservation). O men of sense, you may haply take heed for yourselves. (Al-Baqarah 2-178/9)

That Qisas, in the Qur’anic terminology, is not lex talionis or law of retribution has been implied by many translators of the Quran. The law of retribution is mentioned in Chapter five, the Feast (5-32 & 45) with reference to the children of Israel and the Law of Moses. Qisas is unique in its meaning; it can not be simply translated as ‘retaliation’. The ‘literal’ meaning of this word from the classic Arabic lexicons is ‘to pursue someone’ or ‘to investigate by following ones footsteps’ [for references see Taj al-Arus (Dictionary), by Imam Muhibb al-Din abu-l-Faid Murtada] Although Al-Raghib Al-Isfahani, in Al-Mufradat fi Gharib al-Quran, The Dictionary of the Quran, does say ‘blood in pursuit for blood’ is deduced by the learned scholar and is his understanding of the verse.

In this case the criminal is pursued in such a way that he/she is held accountable. It means that in the Quran, no crime shall remain untracked and calls for a flawless and firm system of investigation and due process of law to bring to account the culprit and provide security and peace for society.

It is not for a believer to take a believer’s life except by mistake and he who kills a believer by mistake should free a slave who is a believer, and pay blood-money to the victim’s family unless they forego it as an act of charity…. But he who has no means (to do so) should fast for a period of two months continuously to have his sins forgiven by God, and God is all-knowing and all-wise.

And there (in the Torah) We had ordained for them a life for a life, and an eye for an eye, and a nose for a nose, and an ear for an ear, and a tooth for a tooth, and for wounds retribution, though he who forgoes it out of charity, atones for his sins. And those who do not judge by God’s revelations are unjust. (Al-Ma’idah 5-45)

..Nor take life, which Allah has made sacred, except for just cause. And if anyone is slain wrongfully, We have given his heir authority, (to redress); but let him not exceed bounds in the matter of taking life: for he is helped (by the same Law). (Surah Bani Isra’il’, 17-33)

Everybody should be treated justly it is said in sura, Al-Nahl, The Bees;

Verily God has enjoined justice and benevolence, the giving of gifts to your relatives and forbidden indecency, impropriety and oppression. (The Bees, 16-90)

Even the enemy should be treated with fairness and justice without bias;

O you who believe, stand up as witnesses for God in all fairness, and do not let the hatred of a people deviate you from justice. Be just: This is closest to piety and beware of God. Surely God is aware of all you do. (The Feast , Al-Ma’idah, 5-8)

It’s obvious that the above verses are addressed to the wider community of believers and not just the victim and the offending party. Since the affairs of society are regulated and constituted by State, the instrument of God’s mercy as mentioned in the Holy Quran can be exercised by both the agency of man (individual) and the State.

Right of the freedom of religion also finds explicit expression in the Quran. There is the complete freedom to adopt or forsake whatever religion one likes.

There is no compulsion in matter of faith. Distinct is the way of guidance now from error. He who turns away from the forces of evil and believes in God, will surely hold fast to a handhold that is strong and unbreakable, for God hears all and knows everything. (Al-Baqarah 2:256)

No human being can be subservient to another. Nobody can have the right to rule other people and browbeat them into following one’s religion. Not even the Prophet of God had that right.

“No human has the right, even though God may have given him a ‘code of laws’ or the power to enforce it or even Prophet-hood that he should say unto mankind: ‘Be subservient to me instead of God’ (Al-‘Imran 3-79)

It is apparent from these verses that capital offence for blasphemy is repugnant to Quran and Sunnah (the examples of the noble Prophet).

In the Holy Quran there is no punishment for ‘Murtad’ (an apostate). When freedom of religion is the basic principle, then why should there be a punishment for change of religion or for that matter blasphemy? Since no punishment for such offences is to be found in the primary sources of Islamic Law or life and examples of the Prophet Mohammed himself, then we need to re-examine these outdated laws imposed by the cruel Kings during periods of turmoil when Muslims felt vulnerable to abuse and slander. It’s about time these laws are scrutinized, reformed and brought into line with 21st century realities and universal human rights norms which are in accordance with Quranic principles. This viewpoint finds concurrence with the comprehensive report of Pakistan’s Council of Islamic Ideology published in 2007.

The death penalty is unnecessarily invoked when justice and legality can be achieved with alternative punishments. The message of the Holy Prophet Mohammed is one of mercy, compassion and sanctity of life. The Quran clearly states that; ‘retribution (eye-for-eye) shall be forgiven out of charity so that those who forego it, will atone thereby sins of the past (5:45).’ In this verse the law of retribution is described. Both Jews and Muslims are encouraged to forego it out of charity which underpins the strong notions of mercy that are found throughout the Quran.

I am sure all these 30 or so Muslim countries weren’t bewitched and succumbed to the ‘pressure’ from the ‘West’ as is being suggested in the case of Pakistan that merely granted a reprieve as per PPP governments long held policies and publicly stated commitments. Besides they won overwhelming backing at the ballot box and are empowered through the democratic process to carry forward their programme. This reprieve is not the first act of clemency granted by the State: there are several major cases in law and practice which had the approval of the Supreme Court of Pakistan.

It is also disconcerting to note that due to the behaviour of conservative ulema and some states it is inferred that ‘Islam favours death penalty’. It is obvious that there is no monolithic Islamic opinion on this issue in the Muslim world. It has probably more to do with their narrow, selective interpretations of Quran, the traditions and the unreliable precedents from history. As for Gulf States, it’s the block-voting habits of these nations along with other retentionist states like China, Singapore, Japan and USA at international forums and their tactics designed to thwart the emerging international consensus on human rights world-wide. Their speeches and arguments are based upon narrow notions of culture, religion, nationality and revolve around ‘surrendering’ national sovereignty to International Human Rights Instruments and the International Court at The Hague. In spite of misconceptions, Islamic law is balanced and objective with strong undercurrents of moderation and sympathy for the subjugated. Punishments ordained are meant to be free of any spirit of vengeance or torture with strong emphasis on reconciliation and social harmony.

However, there are wider aspects of this issue in Pakistan that remain a great concern to the international community and to those of us who have been adversely affected by it personally. Whilst recognizing that miscarriage of justice occurs in all countries and the West is no exception (ones of the reasons why death penalty has been abolished together in over 90 countries, despite the fact that some of them have well developed criminal justice institutions). Pakistan, it seems, is more susceptible to it than other places mainly due to the confused combination of secular and religious laws which run parallel to each other, neither of which are implemented in true spirit and form. For instance at the time independence in 1947 death penalty was invoked for just two crimes, namely murder and treason. Today 27 crimes carry the death sentence, including blasphemy. The sentence is applied arbitrarily. There is consensus emerging amongst reasonable and objective jurists and civil society that Pakistan needs serious help for reform.

The Asian Development bank loaned $400 million to improve the criminal justice system. However more is needed to be done in terms of organisational reform, judical independence that is free from cultural and political manipulations, as well as sectarian influences favouring a particular school of thought.

Several other reports indicate that the criminal justice system in Pakistan needs a complete overhaul. The judges are over-worked. Only 600 magistrates deal with 70% of the cases for a population of 170 million, compared with 30,000 magistrates in UK dealing with a population of 50 million people. Lengthy appeal processes leads to overcrowding in prisons. In addition to cultural and religious insensitivities, financial constraints are also a major factor. Also, Pakistan has rudimentary defence counsels that are paid approximately Rs500 per case and no legal aid is available for defendants. A majority of those sentenced to death are poor, whilst those who are able to afford legal representation and happen to come from the minority communities such as the Ahmadi’s and Christians who continue to face religious discrimination and bias. The probation and rehabilitation service is considerably undeveloped and often non-existing in practice. The welfare of inmates and those released having spent long time in prison are left to fend for themselves or at the mercy of society and the charities. The forensic facilities are outdated with broken equipment and laboratories that are not fit for purpose altogether. Hence the overwhelming reliance is placed on oral and circumstantial evidence that is calculatedly exploited by clever litigants, often resulting in gross miscarriages of justice.

It’s apparent that the higher penalties are the exception and not the norm in Quran. The emphasis is overwhelmingly towards rehabilitation of the offender, monetary compensation for the victim’s kin, forgiveness and atonement. Fraught as Pakistan’s situation is at the moment, lawlessness and terrorism only increases if we over step the rule of law itself. Human history, behaviour sciences and statistics indicate that societies based upon fairness and respects for human rights are peaceful and pluralistic then those that practice vengeance and retribution.

Under such circumstances it is expedient to exercise prudence and echoing the word of Amir-ul Momineen, Hazrat Umer bin Khtab, “better to set free 100 offenders than to put to death an innocent person.

Source : Chowk

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