The hysteria of Brunei’s sharia-based penal code

bru sy1Sheikh Alomgir Ali

ON the 30th of April 2014, the Sultan of Brunei announced the introduction of Islamic laws relating to criminal justice. May the 1st was the official enforcement date for the first phase of the ‘Syariah[1] Penal Code Order’, which incorporates Islamic laws into the existing criminal justice system. The Sultan stated: “Today I place my faith in, and am grateful to Allāh the almighty, to announce that tomorrow, Thursday 1st May 2014, will see the enforcement of sharī‘ah law phase one, to be followed by the other phases,” he said, according to the AFP news agency.

This incident can be discussed from a number of different angles, ranging from the motives of such a move to the overall method used to implement such measures. However, this article will primarily focus on two issues: an analysis of the reaction of the international community and a response to the reaction.

The reactions
From amongst the reactions, the UN’s human rights office said this month it was deeply concerned about the changes, alleging that women typically bore the brunt of punishment for crimes involving sex.

“It’s a return to medieval punishment,” said Phil Robertson, deputy Asia director for Human Rights Watch. “It’s a huge step back for human rights in Brunei and totally out of step with the 21st century.”[2]

There were further statements of concern from the Ministry of Defence and other bodies as well. A spokesman for the Foreign Office said: “We are concerned about Brunei’s decision to introduce a sharia criminal code. Ministers have raised questions about the law’s implications and pressed for a lenient approach.”[3]

There was even a celebrity-driven boycott of a hotel owned by the Sultan of Brunei whereby people gathered outside the building holding placards with provocative and sensationalist statements like “Stop Brunei’s Taliban-like laws”[4] against the Sultan and his wish to implement laws derived from the same religion that the Taliban happen to follow.

Putting aside the case of Brunei for a moment, is it really wrong for an independent, autonomous nation to implement a system that it believes to be appropriate, especially if the majority of the people also wish for such a system?

Is it wrong to implement medieval rules?
Has the essence and the philosophy of the Islamic penal code been misunderstood and are Islamic laws barbaric and inhumane?

Is sharī’ah another term for the Islamic penal code?

It is critically important that we understand the reality of these questions and their answers because the above points are shaping the discourse of the current situation in Brunei.

‘Medieval Practices’

‘Backwards’, ‘outdated’, ‘stone age’ are all loaded terms that we often hear in the media with the aim to malign some of the teachings and practices of Islam. It is true that Islam promotes practices that were practiced centuries ago; however that does not necessarily mean that such practices are wrong or are no longer viable. In fact, in all societies you will find medieval practices, whether it be related to trade, like the use of currency, or penal code, like the concept of imprisonment, and so on.

In reality, such methods of argumentation are indicative of a fallacious method of debating; namely the use of the Argumentum ad Novitatem (appeal to novelty) argument.This is essentially when someone prematurely claims that an idea or proposal is correct or superior, exclusively because it is new and modern, and hence anything that is old is considered to be no longer viable. Investigation may prove these claims to be true for particular cases, but it is a fallacy to prematurely conclude this only from the general claim that all novelty is good. Although there may be correlations between novelty and positive traits in certain cases, like technology for example, we cannot make that an absolute reality for all matters in life, especially when dealing with values and traditions.

Muḥammad Quṭb noted that it is not surprising that many Europeans adopt such an argument since they had a very dark history that was marred by the oppression of the church and because they had experienced the ‘dark ages’.[5]

The opposite of an appeal to novelty is an appeal to tradition, in which one argues that the “old ways” are always superior to new ideas. This likewise is not an absolute truth as well, however as Muslims we must concede that certain laws and practices are more appropriate, not because they are older, but because they originate from the Divine and hence are the best for humanity whether we realise it or not. In the very first chapter of the Qur’ān Allāh (subhānahu wa ta’ālā) teaches us how to supplicate to him:

“Guide us to the straight path, the path of those whom you have favoured…”[6]

Notice how the past tense has been used to illustrate how we, as Muslims, should aspire to follow the footsteps of the righteous that came before us, by following their examples that were set for us.

The above point should serve as a strong lesson for Muslims who knowingly or unknowingly[7] lack confidence in the divine scripture and its injunctions. It is unfortunate that some minds hesitate in declaring the excellence and perfection of some of the laws of Allāh (subhānahu wa ta’ālā), and in many cases this is due to their lack of certainty in Allāh (subhānahu wa ta’ālā):

“But who is better than Allāh in judgment for a people who are certain [in faith]?”[8]

Therefore, the one who lacks certainty will be denied from seeing the excellence and perfection of the laws of Allāh (subhānahu wa ta’ālā).

It is also interesting to note that the Argumentum ad Novitatem and its implications was used by the disbelievers during the time of the Prophet (sallAllāhu ‘alayhi wasallam):

“And among them are those who listen to you, but We have placed over their hearts coverings, lest they understand it, and in their ears deafness. And if they should see every sign, they will not believe in it. Even when they come to you arguing with you, those who disbelieve say, “This is not but legends of the former peoples.”[9]

This brings us to the next question:

Has the essence and the philosophy of the Islamic penal code been misunderstood?

The sharī’ah is the only real system that tackles the matter of crime and punishment from all angles at the same time. In Islam, dealing with crime doesn’t begin with confirming whether the crime was committed; rather it begins firstly by seeking to prevent crime from occurring in the first place in a unique manner. Allāh (subhānahu wa ta’ālā) and His Messenger (sallAllāhu ‘alayhi wasallam) addressed the heart first to be conscious of Allāh (subhānahu wa ta’ālā) which would then impact the person’s behaviour:

“Indeed there is a morsel of flesh in the body; if it becomes sound the rest of the body will be sound, and if it becomes corrupt, the rest of the body will be corrupt. Indeed, that morsel of flesh is the heart.”[10]

He also (sallAllāhu ‘alayhi wasallam) said:

“Be conscious of Allāh (subhānahu wa ta’ālā) wherever you may be, and follow up a sin with a good deed and it will erase it, and behave well towards people.”[11]

It is also interesting to note that the relationship between man and law in secular societies is predominantly that of enforcement, whereas in Islam, it is essentially a matter of conscious and voluntary obedience. The difference in premise has a huge impact in the manner in which people interact with the law and which can be suitably exemplified by the Prohibition act in America in the early 1920s, in which the production and sale of alcohol was largely banned. The act led many people to go underground to produce and sell alcohol which eventually led to the flourishing of organised crime. However, when alcohol was prohibited during the time of the Prophet (sallAllāhu ‘alayhi wasallam), it was said that the streets of Madīnah were flowing with alcohol without the need of strict enforcement. This is because the hearts of the Muslims were conscious of an all-Seeing Creator who could see all of their hidden actions.

‘Ā’ishah (radiy Allāhu ‘anha) said:

“Know that the first thing that was revealed was a Sūrah from the mufaṣṣal[12] chapters, and in it was mentioned Paradise and the Fire, and so when the people embraced Islam, the Verses regarding legal and illegal things were revealed. If the first thing to be revealed was: ‘Do not drink alcoholic drinks.’ people would have said, ‘We will never leave alcoholic drinks,’ and if there had been revealed, ‘Do not commit illegal sexual intercourse, ‘they would have said, ‘We will never give up illegal sexual intercourse’.”

This doesn’t mean that an Islamic society will be free from crime or that members of the society will be like angels. However, a society that has members that are God-conscious will naturally be more law-abiding and more distant from crime. This is because a godless society is more prone to crime if its people believe they can escape being caught and charged for crime.

Moreover, the intention of punishing someone for a crime is not to merely punish them, but also to deter people from committing the crime in the first place. Hence in an abstract sense the punishments for certain crimes may seem harsh, but in actuality they are serving a higher purpose in preventing the crime occurring.

Allāh (subhānahu wa ta’ālā) says regarding the law of retribution:

“And there is for you in legal retribution [saving of] life, O you [people] of understanding, that you may become righteous.”[13]

It is not sufficient to look at the criminal himself when he commits the crime, but the consequences it has on the society and the minds of others have to be taken into consideration. Whilst the threat of pain may be inflicted on some criminals, the overall benefit the society receives from that will be unimaginably greater, as can be seen from the virtually zero theft statistics historically in countries where this was applied.

Another aspect that has to be considered as well is that when a person is penalised under Islamic law it acts as expiation for the sin itself. The Prophet (sallAllāhu ‘alayhi wasallam) said regarding being penalised for certain crimes: “And whoever indulges in any one of them and gets punished for it in this world, that punishment will be an expiation for that sin. And if one indulges in any of them, and Allāh conceals his sin, it is up to Him to forgive or punish him (in the Hereafter).”[14]

bru syHaving such an attitude towards criminal law is what leads people to even confessing their crimes without even being caught! Take the example of Mā’iz bin Mālik (radiy Allāhu ‘anhu):

“O Messenger of Allāh! Purify me,” whereupon he said: “Woe to you, go back, ask forgiveness from Allāh (subhānahu wa ta’ālā) and turn to Him in repentance.” He (the narrator) said that he went back not far, then came back and said: “O Messenger of Allāh! Purify me.” Whereupon Allāh’s Messenger (sallAllāhu ‘alayhi wasallam) said: “Woe to you, go back and ask forgiveness of Allāh (subhānahu wa ta’ālā) and turn to Him in repentance.” He (the narrator) said that he went back not far, when he came back and said: “O Messenger of Allāh! purify me.” Allāh’s Messenger (sallAllāhu ‘alayhi wasallam) said as he had said before. When it was the fourth time, Allāh’s Messenger (sallAllāhu ‘alayhi wasallam) asked: “From what am I to purify you?” He said: “From adultery”, Allāh’s Messenger saw) asked if he was insane. He was informed that he was not insane. He asked: “Has he drunk wine?” A person stood up and smelt his breath but noticed no smell of wine. Thereupon Allāh’s Messenger (sallAllāhu ‘alayhi wasallam) asked: “Have you committed adultery?” He said: “Yes.” He then finally made a pronouncement about him and he was stoned to death.

The people had been divided into two groups about Mā’iz. One of them said: “He is destroyed for his sin has overwhelmed”, whereas another said: “There is no repentance more excellent than the repentance of Mā’iz, for he came to Allāh’s Messenger (sallAllāhu ‘alayhi wasallam) and placing his hand in his hand said: ‘Stone me’.” This controversy about Mā’iz remained for two or three days. Then the Messenger of Allāh (sallAllāhu ‘alayhi wasallam) came to them (his Companions) as they were sitting. He greeted them with salutation and then sat down and said: “Ask forgiveness for Mā’iz bin Mālik.” They said: “May Allāh (subhānahu wa ta’ālā) forgive Mā’iz bin Mālik.” Thereupon Allāh’s Messenger (sallAllāhu ‘alayhi wasallam) said: “He (Mā’iz) has made such a repentance that if that were to be divided among a nation, it would have been enough for all of them.”[15]

Is the Islamic Penal Code barbaric?

It must be made clear from the onset that the reason why Muslims primarily accept Islamic laws is because we believe that they are divine and it is a duty upon Muslims to accept them whether they agree with our inclinations or not. Allāh (subhānahu wa ta’ālā) says:

“Warfare is ordained for you, though it is hateful unto you; but it may happen that you hate a thing which is good for you, and it may happen that you love a thing which is bad for you. Allāh knows, whilst you know not.”[16]

This is a point that differentiates a Muslim and a non-Mulim’s outlook of Islamic law. Therefore, for non-Muslims to appreciate our acceptance of Islamic law, they must understand that we do so because of our belief that Allāh (subhānahu wa ta’ālā) legislates for us laws that are best for us whether we realise their benefits or not. Otherwise, if our acceptance or rejection of Islamic law was based on our own personal preference, we would have no need for Divine guidance from Allāh (subhānahu wa ta’ālā) since it would have to be measured against our own personal preference.

“What is [the matter] with you? How do you judge? Or do you have a scripture in which you learn, That indeed for you is whatever you choose? Or do you have oaths [binding] upon Us, extending until the Day of Resurrection, that indeed for you is whatever you judge? Ask them which of them, for that [claim], is responsible.”[17]

Whilst man in the 21st century has achieved so much in terms of technology and advancement, there has been no other creation that has inflicted so much harm on the planet and its inhabitants more than the human race. Whether we realise it or not, our minds are limited in scope in determining what is best for mankind unless we seek guidance from the one who knows us the best: our Creator.

“Should He not know, He that created? And He is the One that understands the finest mysteries (and) is well-acquainted (with them).”[18]

Our views about what laws are best for mankind cannot be deemed correct by our mere conviction of them or our admiration of them. Allāh (subhānahu wa ta’ālā) says:

“[They are] those whose effort is lost in worldly life, while they think that they are doing well in work.”[19]

Hence, whilst some minds may consider certain Islamic laws as being barbaric, others will consider them to be the essence of justice, just like how a child may view certain disciplinary measures of his parents to be extremely harsh and unfair, but due to the wisdom and foresight of the parents, those measures are in the best interests of the child even though he may not realise that.

Thus, it has to be made clear that Allāh (subhānahu wa ta’ālā) may issue rulings that may differ with our deficient intellects. Therefore, the discourse surrounding the Islamic penal code should not revolve around whether it is barbaric or not, but rather whether it is truly Divine or not and where these laws originate from. This discussion can only be made fruitful though if we free ourselves from our own personal biases and inclinations.

Notes:
[1] Sharī’ah

[2] http://www.theguardian.com/world/2014/apr/30/sultan-brunei-sharia-penal-code-flogging-death-stoning

[3] http://www.independent.co.uk/news/world/asia/international-outcry-as-brunei-introduces-sharia-law-and-takes-country-back-to-the-dark-ages-9308088.html

[4] http://www.blogcdn.com/slideshows/images/slides/260/563/9/S2605639/slug/l/womens-rights-lgbt-and-human-rights-groups-protest-sultan-of-bruneis-human-rights-policies-1.jpg

[5] See Ḥawla Taṭbīq ash-Sharī’āh, by Muḥammad Quṭb p.76-101, Maktabah as-Sunnah, Cairo, Egypt.

[6] Al-Qur’ān 1:5-6

[7] Such as by calling for a suspension of the Islamic penal code without the desire to re-implement them or by claiming that the implementation of the penal code would oppose the higher objectives of the Sharī’ah.

[8] Al-Qur’ān 5:50

[9] Al-Qur’ān 6:25

[10] Agreed upon (Bukhāri and Muslim)

[11] Tirmidhi

[12] Chapters 50-114 of the Qur’ān according to one understanding of the scholars.

[13] Al-Qur’ān 2:179

[14] Al-Bukhāri

[15] Muslim

[16] Al-Qur’ān 2:216

[17] Al-Qur’ān 68:36-40

[18] Al-Qur’ān 67:14

[19] Al-Qur’ān 18:104

Ustadz Alomgir has a BA in Arabic & English language and has studied Arabic and Islamic studies in Cairo. He is currently pursuing a degree in Shariah at al Azhar University in Cairo. He has translated a number of books and holds weekly Tafseer classes in London and is a regular Khateeb in a number of mosques in London. He also taught Arabic and Islamic studies at the Tayyibun Institute in London and is currently an instructor for the Sabeel retreats and seminars.

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