Mohammad Hashim Kamali

Mohammad Hashim Kamali

Professor Mohammad Hashim Kamali is founding CEO of the International Institute of Advanced Islamic Studies (IAIS) Malaysia.

Death penalty under criminal law and syariah

Sunday, 02 June 2019 00:00 Published in Media Exposure

Following the United Nations General Assembly’s call in June 2007 for the abolition of the death penalty on the grounds of protecting human rights, the then minister in the Prime Minister’s Department, Datuk Seri Nazri Abdul Aziz, announced in October 2008 that the Malaysian government was considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.

Death punishment for murder, terrorist acts, treason, kidnapping, rape, possession of fire-arms and drug trafficking applies to this day in Malaysia.

The Dangerous Drugs Act 1952 provides for the mandatory death sentence for possessing and distributing drugs.

But total abolition has remained a debated topic ever since.

The proponents of human rights, including the Malaysian Bar, the Human Rights Commission or Suhakam and Lawyers for Liberty have called for the abolition of the death penalty as no studies have proved that it is a deterrent to serious crime, and that in the event of a miscarriage of justice, the penalty is irreversible.

As for the mandatory death sentence for drug trafficking, they have further argued that the experience of many countries, including Malaysia, showed that most of those caught under draconian drug laws are not the big timers the laws are meant to target.

Besides, there is no evidence that the death penalty is effective as a deterrent to curb drug trafficking, its production and its sale.

The proponents of the death penalty draw attention to the need to protect society from serious crime and the predicament faced by the victims and family members of murdered victims who demand the capital punishment.

Imprisoning the criminal for 20 to 25 years is costly for the taxpayer and perhaps inhumane.

Broadly, syariah law applies the death penalty to four crimes — murder, terrorism, adultery and apostasy.

The first two are prescribed in the Quran, which makes murder liable to the death penalty under qisas (just retaliation) and makes terrorism (hirabah) also subject to the capital punishment.

As for apostasy (riddah) and adultery (zina), it is the sunnah (ways of the prophet) not the Quran, that makes them liable to the death penalty.

The Quran refers to apostasy in no fewer than 21 places, yet in all of them, the offence carries severe punishment in the hereafter.

As for zina, the Quran provides 100 lashes of the whip for all cases proven by four eyewitnesses which is almost impossible to obtain — hence all cases of zina are likely to be given alternative punishments.

The death punishment for apostasy and adultery is based on the authority of the hadith (words of the prophet) that falls short, however, of decisive (mutawatir) evidence.

It is then argued that a discrepancy between the Quran and the hadith on issues of life and death must naturally be determined by referring to the Quran.

The Quran refers to qisas in several verses, yet in all of them there is a strong emphasis on forgiveness and reconciliation between the parties.

Prophet Muhammad emphasised forgiveness in all qisas cases that were brought to him for adjudication and consistently advised the parties not to insist on retaliation, but to reconcile through the payment of blood money (diyah) or grant of forgiveness.

This would suggest that qisas carries the death punishment which is, however, not mandatory.

Hirabah is described in the Quran as the “waging of war on God and His Messenger and the spreading of corruption on earth”, which provides for punishments, such as execution, mutilation of limbs and banishment.

Muslim jurists have also understood hirabah, also known as qat‘al-tariq, to mean highway robbery, banditry and terrorism which involves with or without killing, theft and looting.

They have differed widely over the order and choice of punishment for them, but the majority of Sunni schools authorise the head of state to select one or more of these punishments in proportion to the severity of the crime.

In summary, hirabah, like qisas, carries the death punishment, but since it is subject to stipulations and the discretion of the head of state, it also fails to qualify as mandatory death.

Can a death sentence be imposed on the basis of taczir (deterrent) principle in serious crimes other than murder and terrorism?

Imam Malik and some jurists of the Hanbali school have allowed for a Muslim to spy on other Muslims who work for the enemy who spread heresies.

But the majority, including the Shafini, Hanafi, and some followers of the Hanbali schools maintain that the death punishment may not be imposed under taczir.

Imam Abu Hanifah, however, has held out that the ruler may punish recidivists and hardened criminals to death under taczir.

In summary, the syariah law is restrictive on the death punishment and when it is allowed, it is carried out with stipulations and has the possibility of repentance, reconciliation, or alternative punishment.

There is no clear case for mandatory death punishment in syariah — lest it compromises the impartiality of justice.

Syariah jurists, however, leave it to the head of state the possibility of him deciding otherwise if public interest (maslahah) dictates it.

Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.

Published in: New Straits Times, Sunday 2 June 2019

Source: https://www.nst.com.my/opinion/columnists/2019/06/493289/death-penalty-under-criminal-law-and-syariah

Sustainability from Islamic perspective

Friday, 25 May 2018 00:00 Published in Media Exposure

We know that moderation (wasatiyyah) is a major Islamic principle and way of life by the clear affirmation of the Quran. In an address to the Muslim community, the Quran conveys God Almighty’s vision of this Ummah as a community of the middle path (ummatan wasatan) to make moderation, therefore as a guide and conduct of their earthy life (al-Baqarah, 2:143).

Moderation has not only much to say about the personal conduct of individuals and the community’s collective ethos, but also on the use of the earth’s resources and care for its natural environment. The substance of this teaching is elsewhere endorsed in the Quran where the text speaks of balance (al-mizan) in the creation of this earth and the terrestrial universe, all of which have been created in a state of grand natural equilibrium, “so weigh all things fairly and do not disturb the (God-ordained) balance.” (al-Rahman, 55:7).

Three other concepts of relevance to sustainability conveyed in the Quran, are firstly, humankind’s assignment as the trustees and vicegerents (Khalifah) of God on earth to act as bearers of a mission and responsibility to establish a just socio-economic order therein (al-Baqarah, 2:30). The utilisation of earth’s natural resources such as land, water, air, fire (energy), forests, and oceans are considered the right and joint property of the people. Since humankind is God’s vicegerent on earth, they should take every precaution to ensure the rights and interests of its other inhabitants, including the animals and birds, are fulfilled, not only of this but also of future generations.

The second and still related concept is that of ‘building the earth’ (i’mar al-ard), also known as ‘umran’, or building of a humane civilisation on earth, which has been expounded in much detail by Muslim scholars, notably the Andalusian scholar, ‘Abd al-Rahman Ibn Khaldun (d. 1406 CE) and others. Justice and being good to others (al-’adl wa’l- ihsan), which are essential to a humane civilisation, envisage not only the general wellbeing of the present but also of the future generation.

The third aspect of relevance to sustainability in the Quran is the avoidance of prodigality (Israf, al-A’raf, 7:31) and extravagance (al-tabdhir, al-Isra’, 17-27). The two are basically synonymous, yet a technical distinction has been drawn between them. Israf signifies prodigality and wasteful use of what is otherwise permissible, such as one who consumes food in excess, or uses water wastefully, even for purposes of cleanliness and ablution.

Tabdhir on the other hand is spending on that which is unlawful in the first place, such as the purchase of drugs and gambling tools. With regard to the former, the text says that “God does not love the prodigals — al-musrifun,” and in reference to the latter, that they are the “the devils’ brethren,” both of which expressions signify primarily moral and behavioural aspects of human conduct, but can be the subject of legal action if they amount to manifest harm (darar).

The lawful government is then authorised, under the concept of public interest (maslahah), and just policy (siyasah ‘adilah) to impose restrictions on that which may be permissible, and also to elevate to a prohibition what is reprehensible (makruh) in the shariah. The Islamic legal maxim-cum-hadith that ‘harm may not be inflicted nor reciprocated [in the name of] Islam would in principle authorise the individual and the community to take legal action against persons and organisations, even states, that are guilty of environmental damage and destruction.

The Prophet of Islam has added his voice to say with regard, for instance, to greening the earth that “anyone who plants a tree, no human nor any of God’s creatures will eat from it without it being reckoned as charity from him.”

In another widely quoted hadith, the Prophet has said that even if one hour remained before the final hour and one has a palm-shoot in his hand, he should plant it.

In yet another hadith report, Abu Barzah once asked the Prophet: “Teach me something so that I may derive benefit from it.”

He said, “Remove the trash away from the walkways of the Muslims.”

Muslim leaders, such as the first caliph Abu Baker, advised their troops that when engaged in war with the enemy forces, they must not chop down trees nor destroy agriculture, nor kill an animal, unless it be for essential human needs.

In another hadith, the Prophet has also said that anyone who “kills a sparrow in vain, God Almighty will take him to task for it in the Day of Judgment.”

Islamic teachings are also emphatic on cleanliness in both personal hygiene and the enhancement of beauty. With regard to the former, the Quran says that “God loves those who insist on cleanliness — al-mutatahhirin (al-Baqarah, 2:222), and the latter is the subject of a renowned hadith, which declares succinctly that “cleanliness is one half of the faith”.

One can elaborate further, but even from what has been said, it is clear that sustainability, moderation, and cleanliness are entrenched in Islamic teachings and are integral to the faith of the believers. Rich and resourceful as these sources are, yet many aspects of these teachings are being neglected in the personal behaviour, speech and lifestyles of Muslims generally, to which Malaysia is also not an exception.

Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.

Published in: New Straits Times, Friday 25 May 2018




Was the public caning justified?

Friday, 21 September 2018 00:00 Published in Media Exposure

Ever since the Sept 3 news of public caning of two women for lesbianism (musahaqah, also sihaq, tribadism) by the Syariah High Court of Terengganu, the issue came under public scrutiny.

Questions are asked about the fairness of the sentence, whether it was harsh and gave a bad impression of Islam and Malaysia, and whether it was sound under syariah law.

Those who defended the sentence mainly referred to syariah whereas the critics highlighted respect for human rights and dignity.

This was not the first time public caning made headlines in Malaysia, but it was the first time that the punishment was carried out in a public setting, except for the Syariah High Court in Tawau — yet, the victims always seem to have been women.

The facts of the case were that two women, aged 22 and 32, were arrested by Terengganu syariah law enforcement officers for attempting to have lesbian sex in a car in Dungun in April.

They had not actually committed, but attempted to commit musahaqah, as it is not easy to commit it in a car. They were sentenced under the Syariah Criminal Offences (Terengganu) Enactment 2001.

The actual offence of musahaqah is a syariah takzir offence “the punishment for which shall be at the discretion of the court”. Penal sentences in syariah must be founded on clear proof. The details of the act committed must be known unequivocally beyond doubt. Should there be any doubt, the judge is advised to be lenient, and avoid harshness.

The two women pleaded guilty in August to lesbianism and were sentenced to six strokes of the cane and fines of RM3,300. They were caned in front of over 100 onlookers in the court, including their family members, representatives from legal bodies and NGOs, and members of the media.

Musahaqah literally means rubbing fiercely without penetration, typically the act of two women rubbing their private parts against one another, which can also occur between two males. As for the juridical basis of musahaqah, fiqh textbooks refer to the Quranic passage that speaks in praise of believing women who “guard their private parts ( li-furujihim hafizun) except with those who joined to them in the marriage bond”.

The text continues to declare that “those whose desire exceed these limits,” to be transgressors (23: 5-7). Hence, all sex outside marriage, including musahaqah, is transgressive of the syariah limits.

Also quoted is the hadith that provides: “A woman may not look at the private parts of another woman nor may she sleep under the same cover with her.”

Another hadith quoted on musahaqah declares: “When a woman [sexually] approaches another woman, both of them are adulterers (zaniyatan).”

No punishment is, however, mentioned for musahaqah, hence, the conclusion that it is a transgression (maksiyah) that may be punished under takzir. The equation of musahaqah with zina in the second hadith is in its literal sense, as zina in Arabic means transgression and sin. But, zina and lesbianism are different in that the latter does not involve penetration nor does it threaten purity of the family lineage.

Confession under syariah law is also weak evidence as it can be distorted, obtained under pressure, and sometimes made as a way out of a vexed situation. Published information on the case indicates that the two women had initially pleaded not guilty in July, but they later changed their plea to guilty after failing to secure syariah lawyers to defend them.

From April 2018 when they were arrested until September they were under immense pressure in their private lives, and then by the media, especially the Malay media, that consistently described them as “lesbians”, “lesbian couple” and “deviant couple”. The confession they made under these conditions was, therefore, questionable.

Moreover, unlike the hudud offences and qisas (retaliation), which carry fixed penalties, takzir in syariah is an open category that can carry various sanctions: from a verbal reprimand to public warning, counselling, physical and custodial punishments — and in modern times, also probation order, suspended sentence, police attendance, etc.

There is a certain mindset on the part of syariah judges, however, that takzir must consist of caning and lashing. This was the case in times past when penal systems were poorly equipped to diversify forms of penalties.

But times have changed and when there are acceptable alternatives for takzir, an effort should be made to use them.

Aspects of takzir that the judge bears in mind are the conditions of society, public opinion, and the consequences of his judgment on Islam’s good name.

Sure enough, this case received bad publicity worldwide. Almost all major media channels carried it giving Islam and Malaysia a negative profile.

Even in Malaysia itself, women are not allowed to be caned under civil law. Then also, Tun Dr Mahathir Mohamad said on Sept 6:

“The cabinet is of the opinion that this (the caning) does not reflect the justice and mercy of Islam”, as it was the first conviction of same-sex relations under syariah law.

The prime minister added that the women should have been advised instead of being publicly whipped. 

In light of the foregoing, public caning in a blaze of publicity and humiliation for a first conviction with a questionable confession, in an unreceptive climate of opinion should have been more lenient.

A verbal admonition, or a suspended sentence of some kind might have been advisable to deter repetition, and would most likely have averted the unwanted publicity.

Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.

Published in: New Straits Times, Friday 21 September 2018

Source: https://www.nst.com.my/opinion/columnists/2018/09/413635/was-public-caning-justified

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