Thursday, December 25, 2008

Islamic crime and punishment - The Nut Graph

By Shanon Shah

A MUCH sought-after speaker, imam Feisal Abdul Rauf was born in Kuwait in 1948 into an Egyptian family steeped in religious scholarship. He has a degree in physics from Columbia University in New York, United States, and was also educated in England and Malaysia. His comfort in slipping into Bahasa Malaysia before this interview was a pleasant surprise.

Imam Feisal is also the author of Islam: A Search for Meaning, Islam: A Sacred Law (what every Muslim should know about the Shariah), and What's Right With Islam: A New Vision for Muslims and the West.

In the second part of this exclusive interview with The Nut Graph, imam Feisal discusses whether personal sins can be turned into crimes punishable by the state, and whether there is a conflict between Islam and human rights.

TNG: There's a hadith that always makes me laugh, and I'm paraphrasing here. Prophet Muhammad was passing by a date palm orchard, and he observed the way that people were going to pollinate the plants and said, "Well I don't think that's going to work." The people then stopped what they were doing. When the trees did not yield any harvest later, the prophet said, "Well, what do I know about worldly affairs? I'm a prophet!"

Imam Feisal Abdul Rauf: This hadith is actually a very important hadith, because [it] has been used by the scholars to indicate that the primary jurisdiction or mandate of the prophet was in religious affairs. And they've used [it] to indicate when the prophet makes a decision, [it is sometimes] from his wahy, or from the guidance of Allah, and that decision has a divine impact, or divine authority. [But] if it comes from his ijtihad, it is considered a different category.

In his own ijtihad, he can make a decision or recommendation which is deemed to be not working. So this hadith has been used by the scholars to define or to put a boundary to that area which is deemed to be the prophet's primary jurisdiction.

But now we go back to the issue of legislating on more divine matters. For example, we accept that there is consensus in Islam that Friday prayers are obligatory for Muslim men who fulfil certain conditions. If you don't do it then it's a sin between you and Allah. But if you legislate on that and it becomes a crime, where you can be put in jail, or fined a certain amount of money, how does that fit into this framework we are discussing?

[My] opinion is based upon Islamic history. We do know that this (penalising) was not instituted by the prophet (Muhammad) during his time. And it's very clear to many Muslim scholars that there are a variety of jurisdictional issues which need to be recognised by Muslims.

Let's say the courts in Malaysia render or make a decision. This decision has power over Malaysia, but not Singapore or Indonesia. People understand that pretty well. But jurisdiction is not just a matter of geography.

You can also have jurisdictions which apply to a particular group of people, and not to others. So for example, the syariah laws apply only to Muslims and not to non-Muslims.

Also, the syariah courts in Malaysia have jurisdiction over particular states, not other states. The syariah court in Selangor can render its decision but [its] jurisdictional authority [does not extend] over the state of Perak.

So you have that variety of jurisdiction — geographical limitation, community limitation, [and] also subject limitation. You can have, let's say, courts [with] jurisdiction over personal law cases [but not] over criminal law cases.

When you look at the laws of Islam, the crimes or the sins in Islam, there are certain sins which are very major. The Quran is very critical of both those who reject God and those who are Muslims but who are [also] hypocrites.

But the jurisdiction over penalising those people does not belong to the worldly courts. It belongs to Allah on the Day of Judgment. So no syariah court, no matter how serious the crime of hypocrisy, is granted jurisdictional authority to issue a penalty for the crime of hypocrisy. Are you going to play God?

Having said that, there is a principle in Islamic law called takzir, or warning. To give an example, let's say when a driver exceeds the speed limit, you fine him. A fine is like a slight penalty to prevent people from committing the crime itself. Because the penalty, [in] Islamic law, as it is in Western law, is a function of the seriousness of the result of the crime.

And you will notice that the penalties in Islamic law are far more punitive for damages that you do to your fellow human beings. Say if you commit murder, that's a capital crime. But if you do not perform your prayers, there's no recognised penalty for that.

It's important to note that there is no penalty that is imposed by the worldly courts for crimes committed against God. And if there is punishment for any of these things, of course, that punishment is the domain of God, not the domain of human beings.

There is no penalty for crimes or sins that you commit which do not hurt other people. For example, eating's haram. [But] there's no penalty in the Quran or hadith for eating pork. Even if you do it deliberately and you're committing a sin, there's no (worldly) penalty. Why?

It shows that not all sins are in the [worldly] jurisdiction to impose penalties.

So when Islamic teachings are used then as a source of public policy and law that affect citizens, do you think there is room for public debate to talk about these laws?

Of course. You know, when people went to, say, saidina Abu Bakar or saidina Umar for a decision, [if] he wasn't sure he would call the prophet's companions and consult with them. This whole idea of syura, consulting, means to get the opinion of the best thinkers around on a particular issue.

For instance, there's no penalty in the Quran or the hadith for the consumption of alcohol, the consumption of wine. And it was during the time of the caliph Umar, do you know this story?

I do.

This is the story of the prophet's companion who would enjoy drinking and when he got drunk, he would go around town of Medina saying slanderous things. So the people got upset about it. So they went to caliph Umar and said [something like], "There oughta be a law against this guy! This guy is saying slanderous things about us!"

Yes, there's no penalty in the Quran for drinking wine, or the hadith, but the guy is committing slander. So saidina Umar consulted, and saidina Ali said, well, when a person drinks alcohol he is prone to commit slander, and in this case this guy committed slander, so we punish him with a penalty for slander, which was 80 lashes.

So the punishment of 80 lashes was not because he consumed alcohol, it was because he was committing slander.

Correct. That's again an important thing for people to understand, the genesis, or the history of how certain things developed in our jurisprudence. So the application of 80 lashes for the consumption of alcohol is not really a correct application for the consumption of alcohol per se, but rather for a crime committed under the influence of alcohol. So if a person consumed alcohol and committed murder, the penalty would be different.

The same thing happens even under modern law. Let's say in the United States or in some countries, if you drink, there is no penalty.

But if you drink and drive...

Then you pay a fine if you get caught. Why? Because driving under the influence of alcohol is considered dangerous. But [paying a fine for] driving under the influence of alcohol, if you have not committed an accident, in fact is like a form of takzir. You're paying a penalty for not having really done any damage yet. But you could.

But if you drive under the influence of alcohol and crash into somebody's property and damage it, then your fine will be much larger. You will be liable for the damage to the property, in addition to the crime of driving under the influence of alcohol. If, because you were drunk, you were involved in an accident where someone was killed, then you will be liable for the diyah, for the blood payment (compensation for murder victim's next-of-kin).

Do you think there is a conflict between Islam and human rights? Specifically in the areas of women's rights, gay and lesbian rights, and in Malaysia, freedom of religion.

Well first, let me say this again. I have no jurisdiction in Malaysia. Now, my personal opinion is that the issue of human rights in general is something which Islamic ethics, Islamic jurisprudence is very much at the centre of. In fact, I am part of those scholars who believe that Islamic law has to always [advance] the cause of humanity, the interest of society, and the well-being of both the individual and the community.

And therefore it is the obligation of Muslim jurists to always bear in mind the well-being of the community, the well-being of the individual.

As far as women's rights, there's no doubt that Islam was about women's rights, and the prophet was very clear about that. It is [also] clear that in the 22 years of the prophet's time, he could not do everything that he would have liked to do.

It is clear, for example, that Islam is against slavery, but during the 22 years, it was not possible in that time, in that context, and in that duration to outlaw slavery entirely. But today we no longer have slavery. Islam condoned it but limited it; didn't ban it outright. But now that slavery has been banned, can anybody say that it is un-Islamic to ban slavery? Or that we should bring back slavery? I mean, this is certainly not in keeping with Islamic thought and Islamic ethics.

So, some scholars have said similarly [regarding] the status of women [and] our ability to understand issues that we did not understand before.

Gender, for example, is not a black-and-white issue. And even classical Islamic law recognised that. [For example] in estate law. Because people recognised that there were human beings born who exhibited both male and female characteristics, or were uncertain as to whether they were male or female. How do you dispose of an estate to a child when it is not clear whether he is male or female?

But you'll notice that even in classical times, there was no value judgment made against these people or against their rights.

Now, I'm of the opinion that given our modern understanding of [science], that Muslim scholars need to look at the issue of gender in light of our better ability to recognise the area where gender definition is a bit more blurred. And to ensure that whatever we do is based upon the principles of justice and ethics which are consistent with the ethics of the syariah.

Has the job been completely done? Let's say this: Islam has not been completed yet. That's how I would describe it.

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