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DRINKING
The punishment
of drinking had been fixed at eighty stripes by ‘Umar (raa) during his period
after he had consulted the members of his shūrā. In the time of the Prophet (sws),
this offence was punished by punching and kicking the offender and by beating
him by twisted sheets of cloth and by the twisted pieces of trunk of date-palms.
The Caliph Abū Bakr (raa) had decreed that this crime be punishable by forty
stripes and ‘Umar (raa) in his own times increased it to eighty stripes when he
saw that people were not desisting from it. In the words of Ibn Rushd:
The general
opinion in this regard is based on the consultation of ‘Umar (raa) with his
members of the shūrā. This session of this shūrā took place during his period
when people started indulging in this habit more and more. ‘Ali (raa) opined
that, by analogy with the punishment of qadhaf, its punishment should also be
fixed at eighty stripes. It is said that while presenting his arguments on this
he had remarked: when he (a person) drinks, he will get intoxicated and once he
gets intoxicated, he will utter nonsense; and once he starts uttering nonsense,
he shall falsely accuse other people. (Bidāyat-al-Mujtahid, Vol 2, Pg 332)
It is evident
from this that this punishment has not be fixed by the Sharī‘ah. It is only the
prerogative of the Prophet (sws) to regard anything as Sharī‘ah and if he has
done so in a particular case, Abū Bakr (raa) or ‘Umar (raa) can in no way alter
it. It is clear that if the Prophet (sws) punished such criminals by beating
them, he did so not in the capacity of a law-giver but in the capacity of a
Muslim ruler. His successors punished such criminals by whipping them with forty
and eighty stripes respectively in the capacity of rulers. Consequently, it can
be safely said that the punishment of drinking is not a hadd; it is a ta‘zīr, which the
parliament of an Islamic State can adopt and if needed legislate afresh in this
regard.
APOSTASY
The prevailing
concept about apostasy has arisen by not understanding a hadīth. This hadīth has
been narrated by Ibn ‘Abbās (raa) in the following way:
Execute the
person who changes his faith. (Bukhāri: Kitāb
Istatabat-al-Murtaddīn)
Our jurists
regard this verdict to have a general application for all times upon every
Muslim who renounces his faith. In their opinion, this hadīth warrants the death
penalty for every Muslim who becomes a disbeliever. In this matter, the only
point in which there is a disagreement among the jurists is whether an apostate
should be granted time for repentance, and if so what should be the extent of
this period. The Hanafite jurists though, exempt women from this punishment.
Apart from them, there is a general consensus among the jurists that every
apostate, man or woman, should be punished by death.
In our
consideration, this opinion of our jurists is not correct. The verdict
pronounced in this tradition does not have a general application but is only
confined to the people towards whom the Prophet (sws) had been directly
assigned. The Qur’ān uses the words mushrikīn and ummiyyīn for these people. We
now elaborate upon our view.
In this world,
we are well aware of the fact that life has been endowed to us not because it is
our right but because it is a trial and a test for us. Death puts an end to it
whenever the period of this test is over, as deemed by the Almighty. In ordinary
circumstances, He fixes the length of this period on the basis of His knowledge
and wisdom. In special circumstances, when a prophet is assigned towards a
nation, the span is governed by another Divine law which has been explained in
the Qur‘ān in detail. It is based upon certain premises which must be understood
beforehand: A prophet is the final authority on this earth about matters which
pertain to faith. No other person can illustrate and explicate the essentials of
faith in a better manner. He uses his extraordinary powers of intellect and
reasoning to deliver and disseminate the truth revealed to him. He exposes the
truth in its ultimate form after which a person can have no excuse but
stubbornness and enmity to deny it. We have indicated before that God's purpose
in endowing life to people is to test whether they accept and uphold the truth
when it comes to them. In these special circumstances, the truth is unveiled to
them in its purest form by no other a personality than a prophet. If they then
deny it, there is no possibility whatsoever that a further extension in life can
induce them to accept it. It is at this juncture that the Divine law sanctions
the death sentence for them.
The sentence
is enforced upon them in one of the two ways depending upon the situation which
arises. In the first case, after performing Itimām-al-Hujjat
upon his nation, a prophet and his companions not being able to achieve
political ascendancy in some other territory migrate from their people. In this
case, Divine punishment descends upon them in the form of raging storms,
cyclones and other calamities which completely destroy them. Historically
speaking, the tribes of ‘Ād and Thamūd and the people of Noah and Lot besides
many other nations met with this dreadful fate, as has been mentioned in the
Qur’ān. In the second case, a prophet and his companions are able to acquire
political ascendancy in a land where after performing Itimām-al-Hujjat upon
their people they migrate. In this case, a prophet subdues his nation by force,
and executes them if they do not accept faith. It was this situation which had
arisen in the case of the Prophet (sws). On account of this, the Almighty bade
him to declare that the people among the ummiyyīn who will not accept faith
until the day of Haj-i-Akbar (9th AH.) will be given a final extension by a
proclamation made in the field of ‘Arafāt on that day. According to the
proclamation, this final extension would end with the last day of the month of
Muharram, during which they must accept faith, or face execution at the end of
this period. The Qur’ān says:
When the
forbidden months are over, slay the idolaters wherever you find them. Seize
them, surround them and every where lie in ambush for them. But if they repent
and establish regular prayers and pay Zakāh, then spare their lives. God is
oft-forgiving and ever merciful. [9:5]
A hadīth
illustrates this law in the following manner:
I have been
ordained to fight against these people until they testify to the oneness of God
and assent to my prophethood, establish regular prayers and pay Zakāh. If they
accept these terms, their lives will be spared except if they commit some other
violation that demands their execution by Islamic law. (Bukhāri: Kitāb-al-Imān)
This law, as
we have stated before, is specifically meant for the ummiyyīn or the people
towards whom the Prophet (sws) had been directly assigned. Apart from them, it
has no bearing upon any other person or nation. So much so, that even the people
of the Book who were present in the Prophet's times were exempted from this law
by the Qur’ān. Consequently, where the death penalty for the ummiyyīn has been
mentioned in the Qur’ān, adjacent to it has also been stated in unequivocal
terms that the people of the Book shall be spared and granted citizenship if
they pay Jizyha. The Qur’ān says:
Fight against
those among the people of the Book who believe not in God nor in the Last Day,
and who do not forbid what God and His Prophet have forbidden and do not accept
the religion of truth as their own religion, until they pay Jizyha out of
subjugation and lead a life of submission. [9:29]
There is a
natural corollary to this Divine law as obvious as the law itself. As stated
above, the death penalty had been imposed upon the ummiyyīn if they did not
accept faith after a certain period. Hence, it follows that if a person among
the ummiyyīn after accepting faith reverts to his original state of disbelief,
he must face the same penalty. Indeed, it is this reversion about which the
Prophet (sws) has said ‘Execute the person who changes his faith.’
The relative
pronoun ‘who’ in this hadīth qualifies the ummiyyīn just as the words ‘the
people’ (Al-Nās) in the hadīth quoted earlier are specifically meant for the
ummiyyīn. When the basis of this law as narrated in these Āhadīth exists in the
Qur’ān with a certain specification, then quite naturally this specification
should also be sustained in the corollary of the law. Our jurists have committed
the cardinal mistake of not relating the relative pronoun ‘who’ with its basis
in the Qur’ān as has been done in the case of ‘the people’ (Al-Nās). Instead of
interpreting the tradition in the light of the relationship between the Qur’ān
and Sunnah, they have interpreted it in the absolute sense, totally against the
context of the Qur’ān. Consequently, in their opinion the verdict pronounced in
the tradition has a general and an unconditional application. They have thereby
incorporated in the Islamic Penal Code a punishment that has no basis in the
Sharī‘ah.
There is no
doubt whatsoever that this death penalty was prescribed only for the ummiyyīn
who lived during the Prophethood of Mohammad (sws), be they the idolaters or
others like Waraqah Ibn Nawfal, a cousin of the Prophet's wife, Khadījah (raa),
who was originally among the ummiyyīn and had later accepted Judaism or
Christianity. It is absolutely evident that now if a Muslim becomes an apostate
and is also not a source of nuisance for an Islamic State, he cannot be
administered any punishment merely on the basis of apostasy.
(Adapted from
Ghamidi's ‘Mīzān’)
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