Are Shari’ah Punishments really harsh ?, By Asiff Hussein

We in the modern world often tend to look at the hadd punishments prescribed in the Shari’ah as something really harsh. Beheading for murder, stoning to death for adultery and amputating hands for theft sometimes strike us as punishments that belong to another age and unsuited for the times we live in.

However little do we stop to think that Islam has also stipulated certain conditions before such punishments could be applied and when we really take a deeper look at it we would realize that such punishments are not really harsh as they seem. And this becomes particularly apparent when we compare Islamic punishments with the punishments that existed in non-Muslim states until fairly recent times such as in pre-eighteenth century England when a teenager could be put to death for stealing something as little as a loaf of bread out of hunger.

Indeed as late as 1810, there are said to have been no less than 222 individually defined capital crimes in England including “being in the company of Gypsies for one month”, “strong evidence of malice in a child aged 7–14 years of age” and “blacking the face or using a disguise whilst committing a crime”. The Black Act of 1723, created as many as 50 capital offences for various acts of theft and poaching. The reform of capital punishment could be traced back to 1808 when Sir Samuel Romilly sought to have the death penalty removed from the statue books for minor crimes such as pick pocketing. In 1813, he introduced a Bill in the House of Commons “to repeal so much of the Act of King William as punishes with death the offence of stealing privately in a shop, warehouse or stable, goods of the value of 5s”, in other words what we now call shoplifting. The Bill was thrown out by the House of Lords.

Contrast this with the Islamic approach to capital punishment. As we know Islam prescribes capital punishment for three offences, namely, murder, adultery and apostasy. But think again. Even in the case of so vile a deed as murder, the Qur’an though threatening Divine Punishment for the offender in the hereafter allows him a reprieve if the relatives of the victim are willing to forgive him and in lieu of putting him or her to death accept blood money for the crime. In the case of adultery, the Qur’an stipulates that four witnesses witness the act while it is being committed, and this refers to the act of penetration itself. This condition makes proof of adultery a very difficult one to establish and one cannot escape the conclusion that it is mainly intended as a psychological deterrent to impress on those who ever think of indulging in it the seriousness of the offence and to prevent its getting public acceptance and being indulged in freely as we often find today in the west. The Islamic punishment for fornication, which is illicit sex between unmarried couples is a hundred lashes each for the man and woman, but this too has to established by four reliable witnesses. As for apostasy or blasphemy, the offender is given a chance to repent before the punishment could be applied and here too we would find that the Shari’ah is much more lenient than the draconian apostasy and blasphemy laws that existed in countries like England well up to the eighteenth century.

Indeed as late as 1697 Thomas Aikenhead, a young twenty year old medical student at the University of Edinburgh was hanged for making blasphemous statements such as calling the Old Testament ‘Ezra’s fables’, and the New Testament ‘the History of the Imposter Christ’ based upon the evidence given by his erstwhile friends. The summation of the indictment noted that Aikenhead claimed that he ‘preferred Mahomet to the blessed Jesus’. Aikenhead’s biggest offence allegedly was that he was more loyal to the Prophet than to any of the warring Christian dispositions. Aikenhead was charged under Scotland’s blasphemy act. The 1661 Act passed by the first Scottish Parliament under Charles II mandated death for one who ‘not being distracted in his wits shall rail upon or curse God, or any of the persons of the blessed Trinity’. Aikenhead was found guilty of cursing and railing against God the Father and the Son, denying the incarnation and the Trinity, and scoffing at the Scriptures. Despite submitting a petition for leniency he was hanged and buried on the road to Leith.

We also know that the English Criminal Code as late as the 18th century, inflicted some of the most terrible punishments on those found guilty of high treason which also meant adhering to a form of Christianity other than the established Anglican Church. Thus with the profession of their faith declared as high treason many Catholics in England and Ireland suffered a very painful death. The unfortunate victims would be hung by the neck from a scaffold, being cut down and disemboweled while still alive after which their heads would be severed from their bodies and their corpses divided into four quarters.
Let us now consider the punishment for theft for which crime as we had seen earlier an English minor could be executed even as late as the eighteenth century just for stealing a loaf of bread.

Islam it is true prescribes the amputation of the hand for theft:
Says the Qur’an (5:38): “Cut off the hands of the thief, male or female, as a recompense for that which they committed, a punishment by way of example from Allah. And Allah is All-Powerful, All-Wise”.

It is however established in the Sunnah that only the right hand from the wrist joint would be removed for the first offence, the left foot for the second, the left hand for the third and the right foot for the fourth.

This is no doubt a harsh punishment, but let us now consider the conditions attaching to its application. Firstly a minor (child before puberty), insane (one not in his proper senses) or sleeping (sleepwalking) person cannot be subjected to the punishment, nor can it be applied to one stricken by poverty who steals out of hunger or in a time of famine or war. Further, the intention of stealing should be clearly established. The item stolen must also have a considerable value, which is to say that it should be worth over three silver dirhams, in other words the equivalent of 1.6 grammes of gold which in today’s context would be an item worth over USD 40 or its equivalent in other currencies.

But that’s not all. The stolen item should have been removed from the secure custody of its owner, in other words a place meant for safeguarding such an item such as a safe or cupboard in the protection of one’s home. For instance, a drawer in a cupboard would be an appropriate place to keep jewellery while a fenced enclosure would be an appropriate place to keep livestock. Thus one who steals jewellery left unprotected in a public place or an animal straying out of its pen cannot be subjected to the punishment. This it could be seen that the punishment of amputation would only be applicable when the owner of the item has taken every possible step to protect his property and is not guilty of its negligence by leaving it in an area that is easily accessible to the public. By extension, those who share a common residence thereby having access to an item of value such as family members whether they be one’s child or spouse or even a servant or guest will not be liable to the punishment.

Furthermore, the theft should have been committed by stealth when no one was around. As such, thefts in public places in broad daylight even when no one is looking around at that particular time will not incur the punishment. Nor will appropriating an item by force, except in cases of armed robbery in which case the perpetrator will be treated as a rebel and subjected to the amputation of the right hand and left foot which is prescribed in the Qur’an for such criminals. Although this might strike one as surprising, the fact is that the one who seizes an item forcibly could be identified and the item recovered either by enlisting the help of others in the vicinity or by resorting to the strong arm of the law. The point here is that the perpetrator can be identified and the goods recovered without much difficulty unlike in the case of a thief who steals by stealth and whose identity remains unknown.

In addition, to prove the theft, two witnesses are required, though a confession from the thief would suffice. Even at this stage, the victim could pardon the thief by gifting the stolen item to him or her before he or she is taken to the judge or legal authorities for redress.

In fact, it is said that throughout the nearly four centuries of Islamic rule in the Ottoman Empire which encompassed a good part of the Muslim world until as late as 1916 there were only a handful of cases of amputation for theft which obviously applied to hardcore criminals who would have persisted in their crimes at the expense of innocent Muslims.

And to think I was once horrified as a child when I watched the well known CBS television mini-series ‘Kane and Abel’ (1985) aired on local television. A nicely woven story no doubt, but one which seems to have been biased against the Turks and the larger Muslim world. One part of the story has the Polish hero Abel escaping from the Germans and Russians and making his way to the Turkish dominions where out of hunger he grabs an apple when the salesman refuses to accept his obsolete banknotes. No sooner he walks away taking a bite from it, he is apprehended by Turkish guards who take him to the executioner to amputate his hand, but is saved by a diplomat who conveys him to the Polish Consulate whence he migrates to the United States to start life anew.

Looking back I now realize that the tale spun here is a travesty of facts, for no Islamic regime nor the Turks who very well knew how to apply the Shari’ah are ever known to have cut off the hand of a man who stole out of hunger or stole something as insignificant as an apple. Furthermore the act itself as portrayed in the film was technically not theft but misappropriation which does not invite amputation, but rather imprisonment or some form of corporal punishment such as whipping at the most.

The punishment portrayed in the film and several others of its ilk perhaps reflect the harsh nature of western punishments not very long ago. But to confound the facts and attribute them to Islam is simply not acceptable and should be exposed for what it is.
Another salient aspect of Islamic penal law is that it is applicable irrespective of the status of the individual. Whether a prince or pauper, all are equally subject to it. The Prophet Muhammad (Peace Be Upon Him) himself is known to have declared: “Those before you were destroyed because when a noble among them stole, they let him be, but when the weak among them stole, they carried out the legal punishment on them. By Allah, if Fatima the daughter of Muhammad were to steal, Muhammad would cut off her hand” (Sahih Bukhari). This is in the fairness of things and is a far cry from the dark ages of Europe when only the poor were punished and the rich got away on the basis of their noble blood.

Today in our egalitarian age, the west too has come to realize the fairness of the principle of equal punishment for equal offence, but surprisingly there are still those in the West including some so-called human rights and women’s rights groups who get sentimental when it comes to applying equal punishment to women on the grounds that the tender nature of their sex demands that they should not be subjected to capital or corporal punishment. This is quite surprising when we consider that it is these very same human rights and women’s rights groups that campaign for the equal treatment of women. It would appear that these groups have now taken upon themselves a new crusade of campaigning against Islamic law on the grounds that it is harsh towards women, whereas in reality it only advocates equal treatment for all and sundry – whether man or woman.

Such attitudes when we stop to think about it are merely a reflection of patriarchal values such as prevailed in the repressive society of Victorian-era England when women were expected to be simply women and the plaything of men. The underlying notion here was that they could not be held responsible for their actions which in effect meant depriving them of a human status. And to think that there are those in our enlightened times who think like the bigots of a bygone age.

One can only hope that these ridiculous patriarchal perceptions under the guise of modern values do not filter into Islamic societies. Take the recent case of Kartika Sari Dewi Shukarno, a Malaysian Muslim woman sentenced to be caned for drinking beer who recently had her punishment commuted by the state’s sultan who we are told had decided to spare her the caning due to the ‘negative publicity’ it had generated. The caning was halted at the last minute, it is said, following an ‘uproar’ in the media and among rights activists. This is despite the fact that the woman concerned had pleaded guilty and did not even appeal her sentence. She had as befitting a true Muslimah not only repented, but also stated that she should be punished and that too in public. Her Islamic conscience would have no doubt militated against being deprived of a punishment prescribed in Islam, the punishment for the consumption of alcohol being no less than forty lashes.

Had the punishment been carried out at the time, she would have been the first woman to be caned in Malaysia. Three other Muslim women were caned this year for illicit sex, becoming the first Malaysian Muslim women to be caned. Their cases did not draw as much attention because the caning was kept secret until after it was done. Subsequently, the women appeared before local media and said they deserved the punishment.

This amply demonstrates that the Shari’ah is no stranger to the Muslim world. But to gain public acceptance, the public must first be made aware of the truth – that the Shari’ah is not what the West portrays it to be.