Ideas & Philosophy — 29 August 2012
Islamic Law and Human Rights: Hudud, Qisas and Ta’zir (Pt. 3)

Hudud

The hudud punishments are perhaps the most controversial Islamic legal provisions according to western perceptions. Being invariable punishments providing the conditions for their application are satisfied, they include: Theft (sariqah), punishable with amputation of a hand; highway robbery (hiraba), punishable with death, crucifixion, cross-amputation of hand and foot or banishment; adultery or fornication (zina), punishable with stoning to death for adultery and whipping of one hundred lashes for fornication; false accusation of adultery or fornication (qadhf), punishable with whipping of 80 lashes; apostasy (riddah), punishable with death and intoxication (sharb al-khamr), punishable with whipping of 80 or 40 lashes.[1] The consequences of their enforcement contravene peremptory norms of international law. Despite their immutable status under Islamic law, Muslim jurists have postulated qualifying elements for these to constitute a punishment. Therefore, effective legal representation can exploit the arduous standards of proof for the action to legally qualify as a penal offence. Baderin remarks:

 “The importance of adequate legal representation for an accused person by a qualified Islamic law expert in determining whether or not all legal requirements for any specified offence have been proved by the prosecution beyond any iota of doubt cannot be overemphasised”.[2] 

Seeking a restrictive definition of the hudud cannot be interpreted as an overture to the human rights community in the West, as it is pursuant to a famous aphorism of Muhammad which reads, “Avert the hudud punishment in case of doubt…for error in clemency is better than error in imposing punishment”.[3]  As a consequence, specifications of the general conditions for their application would factor penological, sociological and psychological considerations. Baderin observes:

“Where it can be reasonably proved that the offender was a product of the society’s sociological problems then his interest must be taken into consideration and the hudud punishments may be mitigated. There is evidence that the Prophet suspended the enforcement of the hadd punishment for theft during war, and the second Caliph, Umar, suspended its enforcement at a time of widespread famine in Medina”.[4]

Effective legal representation as guaranteed by Shariah can exploit the strict evidential requirements for criminal offences to not only make the implementation of these punishments rare but the regulation of their application through Shariah Law’s procedural devices can help mitigate the ignorance of many western legal commentators, who repeatedly fail to appreciate its imposition of safeguards for a valid determination of guilt.

 

Qisas

The qisas refer to the offences of bodily injuries and homicide which attract retributive punishments.[5] They raise substantive human rights concerns, due to the provisions for death penalty for homicide and in the case of bodily injuries, the prescription of lex talionis. It is often unrecognised in western legal circles that the Shariah stipulates four possible options for qisas offences, ranging from retaliation for bodily injuries or homicide (qisas or qawad); payment of blood money (diya), atonement (kaffarah) and pardon (afw). Considering how states are generally encouraged to abolish the death penalty under international human rights law, the Shariah’s guarantee of Article 14 (3) (d) is also congruent with other provisions in the treaty, including Article 7 of the ICCPR, which stipulates:

“No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation”.

Again, one must avoid the urge to view this right to the commutation of the death sentence as the selective deployment of Islamic law by Muslim jurists to make it palatable with current human rights frameworks.

Under the Shariah, a legal advocate may make a case for either diya, kaffarah or ‘afw instead of qisas and this should be made easy considering the Quran’s preference for remission of retaliation by the victim’s heirs. Anderson observes, “It is regarded as more meritorious to remit retaliation”[6] in the case of qisas, and not a demonstration of grafting modern legal principles and requirements back into the Shariah corpus.

 

Ta’zir

Ta’zir refers to the offences not mentioned in the primary sources of Islamic law, the Qur’an and Prophetic traditions known as Sunnah. There is no specifically stated punishment, rather, it proceeds “…from the discretionary authority of the sovereign as delegated to the judge”.[7] There are human rights concerns arising from ta’zir, due to the non-specificity of offences and punishments as well as what may appear as an unchecked discretion of the judge to determine a punishment, which may include the death penalty. According to An-Na’im, ta’zir encroaches on the principle of legality-nulla peona sine lege- since it involves “…determining after the fact whether the particular act or state of affairs affects the order or interest of the community in a way that warrants punishment…which is objectionable from the point of view of the principle of legality”.[8] However, one may contend that the absence of codification of ta’zir offences renders its codification a matter of ijtihad-the deriving capabilities of a judge. Baderin comments:

“As there is nothing within the sources or methods of Islamic law that prohibits codification of ta’zir offences and punishments, it is in the interest of due process of the law that they be codified for certainty and easy accessibility for all. An analogy supporting such codification under Islamic law can be drawn from the fact that the Qur’an instructs that human transactions involving obligations should be reduced to writing for certainty”.[9]

Article 14 (5): Right of appeal

Article 14 (5) states:

“Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law”.

There is a bifurcation of opinion regarding whether or not Shariah law makes any guarantee for appellate review. According to Martin Shapiro, professor of law at Berkeley Law, University of California, the legal institution of appeal is limited to hierarchical social structures of which historical Islamic communities were not members.[10] It can be disputed that such an argument does not stand up to historical scrutiny. Both the Ottoman and Abbasid Empires can be said to have developed hierarchical political structures. Examples include the mazalim tribunal during the Abbasid period and the Ottoman practice of trial de novo, presided over by the Sultan and Grand Vizier, where unsuccessful litigants could take their case to the one responsible for the appointment of the initial judge. According to Muhammad Hashim Kamali, professor of law at the International Islamic University of Malaysia, the judicial independence in Islamic law facilitates the right which grants a superior jurisdiction with the authority to review the decisions of the judges.[11]

According to David S. Powers, Professor of Arabic and Islamic studies at Cornell University, it may be concluded from an examination of 14th century Islamic court practices that a mild version of quasi-appellate structures was operating under those systems. He describes this as Islamic Successor Review.[12] His investigations are based on the Marinid dynasty of Morocco and well-documented court cases from 14th century Fez. In one case concerning a dispute over the control of family endowment revenues, the litigant dissatisfied with the issuing judge’s decision took the matter before a chief judge who reversed the former’s decision and granted the litigant exclusive control of the endowment.[13] Another case, again involving family endowments, is said to have spanned a duration of 15 years, with the dispute finding its way into the courtroom of three different judges who would nullify and reverse the decisions of each other.

It is regrettable that the examples of litigation in the history of Islamic rule and its judicial organization which catered for reversible judgements have not been repeated in the judiciaries of much of the Muslim world. The military rule and catalogue of abuses perpetrated by these regimes have on many occasions denied accused parties the right to appeal to a higher tribunal and have contributed to the perception that Islamic legal structures spawn a culture of human rights violations and are devoid of legal machinations necessary for the dispensation of justice. A thorough review of judicial law in Islam offers a sustainable alternative to international legal norms, without importing from it any principles relating to the protection for aggrieved parties and a rights-based framework in general.

 

Conclusion  

Islamic law ensures the principles of fair hearing and trial and conceives of the administration of justice in a manner which should prompt western jurists and the human rights community to acknowledge it as a workable alternative, with its own specialization and highly developed procedures. By satisfying the minimum guarantees for the criminally accused and systematizing the principles of criminal evidence, the right to impose punishment and the right to defend oneself against it is carefully negotiated by Islamic law and presents no obstacle for its application in modern courts.

An Islamic legal system, therefore, does not derive its legitimacy by becoming a party to international human rights agreements. In light of the preceding explanation, an effective mobilisation of Muslim populations against the status quo in their countries can help generate the ferment for this type of system, which being heavily immersed in Islamic textual sources, does not warrant an unprecedented revision of Islamic jurisprudence to correspond with contemporary human rights norms. Any desire for the introduction of a coherent human rights scheme in the Muslim world cannot be achieved without remaining conceptually tied to the juristic precedents of historical Islam.

 

Hasnet Lais is a journalist with the Muslim Post, with a Masters in Islamic Societies and Cultures from The School of Oriental and African Studies (SOAS), University of London.


[1] Baderin, M.A. (2006), op.cit.: p. 145

 

[2] Ibid. p: 146

 

[3] See  Al-Zuhayli, Al-Fiqh al-Islami wa Adillatuh (Arabic) (1997) Vol. 7, p. 5307

 

[4] Baderin, M.A. (2003), op. cit.: p.83

 

[5] Ibid.

 

[6] Anderson, J.N.D. (1951), “Homicide in Islamic Law”, Bulletin of TheSchool ofOriental and African Studies, p. 812, cited in El-Awa, “Punishments in Islamic law” (Plainfield: American Trust Publications, 2000), p. 134-138.

 

[7] Benmelha, G. ‘Ta’azir Crimes’, in Bassiouni, C., (Ed) The Islamic Criminal Justice System (New York: Oceana Publications Inc. 1982) p. 211-225

 

[8] An-Na’im, A.A. (1990), op.cit.: p. 119

 

[9] Baderin, M.A. (2006), op.cit.: p. 142

 

[10] Powers, S.D. (1992), “On Judicial Review in Islamic Law”, Law & Society Review, Volume 26, Number 2, p. 317

 

[11] Kamali, H.M. “Appellate Review and Judicial Independence in Islamic Law” , Accessed from: www.iais.org.my/en/publications/articles/item/download/34.html

An earlier version of this article was previously published in Islamic Studies 29 (1990) 3: 215-45.

 

[12] Powers, S.D. (1992), op.cit.: p.317

 

[13] For details of the case, See ibid. p. 331

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