A dialogue with Prof. Javed Ahmed Ghamidi, religious scholar and President, Al-Mawrid
By Usman Ghafoor & Aoun Sahi
The News On Sunday: Could you tell us about how Islam views capital punishment?
Prof. Javed Ahmed Ghamidi: Human life, property and honour hold a sacred place not just in Islam and other religions but also in secular societies in general. The whole world agrees that if somebody has committed the heinous crime of taking a human life, he ought to be punished. Now, one might ask, as to what should be the nature and the severity of the punishment. In my opinion, the human mind failed to think up one single formula for that, which is where guidance from Allah’s prophets helped us — so that we could be saved from taking one wrong, extreme position or the other.
The Holy Quran clearly lays down that capital punishment is mandatory in two situations: a)when a person kills the other person, and b)when a person becomes a threat to the society/nation as a whole. For no other crime whatsoever, does Islam award the death penalty.
Since there is the possibility of error of judgement in dealing with cases of murder, Islam retains the punishment so that nobody shall see it as a license to kill.
At the same time, it also shows us the path of ‘afu o darguzar‘ (forgiveness). For instance, it ordains that if the victim’s heirs agree, the murderer can be condoned.
As for crimes against humanity — what the Quran terms as ‘fasaad fil arz‘ — the court of law has the right to award the capital punishment but it also has the option of banishing the offender from the country/state/land.
To sum up, Islam ordains punishment as a deterrent for crime. But it also states how the punishment should be given so that the courts may not take undue advantage. And, finally, it shows the path of forgiveness.
Law informs the extreme options of the punishment, and the judge is bound to consider the circumstances of the offender and give the verdict. History tells us how once Hazrat Umar (RA) forgave a person who had committed theft, considering that the country had seen a period of famine.
Does the state have the right to announce general pardon, maybe in honour of its martyred leader?
No. This used to be the practice of the kings; it’s not the done thing in a civilised and a democratic society/country. The kings would forgive prisoners when there was an occasion of, say, a prince’s coronation or birthday. The idea was to reinforce the sovereignty of the ruler. But in a democratic state/government where the rule of law prevails, an individual does not have the right to make such decisions. And, I am not just talking from the religious point of view. If the court of law has found someone guilty, how can the state announce pardon? This is against the law as well as the norms of a civilised society. If you want to pay tribute to your leader, there can be a hundred other ways of doing so.
The interpretation of ‘fasaad fil arz‘ seems to have varied from time to time. When Pakistan was created, there were precisely two punishments set for the offender; today, we have more than 20. Comment.
See, the punishments that were set in our penal code are not based on the dictates of the Holy Quran. They are an amalgam of contradictions. Islam clearly distinguishes a ‘simple’ crime from ‘fasaad fil arz‘. For example, stealing is a simple offence; if it becomes a dacoity, it falls into the category of ‘fasaad fil arz‘. Likewise, ‘zina‘ is a simple crime but ‘zina bil jabr‘ is ‘fasaad fil arz‘.
The same goes for a simple act of killing — ‘qatl‘ — and acts of terrorism.
Don’t you think that awarding capital punishment projects Islam as a retributive religion?
Islam gives death penalty when there is no room for reformation of the criminal. Prophet Muhammad (PBUH) used to especially request the victim’s family to forgive the culprit. If granted, forgiveness can — in a lot of cases — help put an end to age-old differences or feuds between traditional enemies. The idea is to strike a balance in the society.
In Canada, capital punishment has been done away with, which is cited as one reason for the reduction in crime rate. Can we, as a state, introduce similar changes in our judicial system, even if on trial basis?
The purpose is not just to punish the offender — of course, conditions apply — but also to ameliorate the society by setting an example (‘ibrat‘). In Saudi Arabia, murderers are executed in public for the very same reason. This has yielded positive results.
Our social system is faulty to the core. There are so many factors that contribute towards causing crime, such as unemployment and inflation. Life has become hard for the common man. Suppose we choose to amend the punishment, what do you think should the alternative be?
…maybe 25 years’ imprisonment?
That is the most harrowing form of punishment anyone can get; the person is alive but his life has become a living hell. He is at the mercy of the jailors. He is deprived of his children, his wife and his near and dear ones. His children are deprived of their father, his wife her partner. Then the children are condemned to see their father behind bars and must also live with the social ‘stigma’ attached to being imprisoned. I consider this punishment itself against human rights.
On the other hand, when you have buried your dead, you gradually get over the mourning period and move on with life. Life imprisonment is a more recent phenomenon; it became common only in the last couple of centuries.
Is murder a crime against the society/state or the individual?
Both. It’s a crime against the victim and his family as well as against the state or society. So, it has an individual aspect as well as collective. Quran lays down that the opinion of the victim’s family does not count if the state thinks capital punishment is imperative. But if there is the question of seeking forgiveness, the state cannot offer it without the consent of the victim’s family.
In other words, Quran precludes committing a crime thinking that forgiveness can always be got later on.
In our country, the state allows forgiveness if the victim’s family has no issues. Comment.
Again, it is against the principles of Quran.
But we also find that Muslim countries such as Uzbekistan have abolished capital punishment.
Well, this way you are depriving the society of the balance that Allah wants us to maintain. It’s a human folly that man tries to decide things for which he does not have the required logical basis. So, he is always wavering between one extreme and another. Allah gave Shariah in affairs where man was handicapped to decide things. In deciding a punishment for a criminal, 10 different people are likely to come up with 10 entirely different things. So, whose word will be law?
What importance does Fiqah hold in this issue?
Fiqah is a human affair and, like all human affairs, it is affected by circumstances. That is why, whatever law was made by the Islamic jurists had flaws in it. Shariah is the given.
Islam also speaks of ‘an eye for an eye’ and so on. Is it to maintain a kind of a proportionality?
It is up to the victim to demand this sort of a punishment. ‘Qisaas‘ means that Allah gives you this right and also wants to teach the offender the importance of human life and human body parts.
What would you say about the concept of ‘wali‘ in our society? There have been cases where, for instance, a man killed his daughter; he held his son guilty while declaring himself as the ‘wali‘ and ordered forgiveness for his son. Don’t such things point to lacunas in our judicial system?
That points to flaws in our judicial system. Here, if somebody has been wronged, it is least likely that he will want to take the matter to the court, because of the various hassles involved.
In my view, the fault with our existing judicial system is that it fails to consider the conditions/circumstances in which the crime was committed.
Originally published in The News On Sunday — July 20, 2008
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