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Posted: September 11, 2002

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Perspective

 
A call for a moratorium

by Hesham A. Hassaballa

In March, an Islamic tribunal in northern Nigeria sentenced a 30-year-old woman, Amina Lawal, to death by stoning for having a child out of wedlock. The father in the case escaped prosecution due to a "lack of evidence." This may surprise many, but the Amina Lawal case argues strongly for an immediate moratorium on the implementation of the Shariah penal code, similar to the moratorium imposed on executions in Illinois by Governor George Ryan.

The reason for my call is not because of the Shariah’s "medieval barbarism," as the August 22 Chicago Tribune editorial put it. I take vehement exception to this characterization. The Shariah is a body of religious laws derived from the Qur’an, Islam’s Holy Scripture, and the tradition of the Prophet Muhammad (peace be upon him). It is a comprehensive guide for Muslims on how to conduct their lives in accordance with God’s will, and it includes an entire set of penal codes.

Some of the punishments, such as the stoning to death of adulterers, are indeed harsh. This harshness, however, reflects the seriousness of the crimes committed. Thus, murderers are executed; thieves get their hands amputated. On the surface, adultery may not seem to be that serious of a crime. Adultery, however, threatens to destroy the very fabric and foundation of society: the family. We all have seen how many good families have been decimated by an extra-marital affair by either spouse. Islamic law seeks to nip this threat in the bud by imposing a very strict punishment for those who commit adultery.

That is not the end of the story, however. Due process is essential in any case brought forth in an Islamic court. Take adultery, for instance. Islamic law requires a burden of proof so high that it is practically impossible to send someone to his or her death. For someone to be convicted for adultery in an Islamic court, four adult witnesses to the act of intercourse are required as evidence. If this burden of proof is not met, such as having only three witnesses, capital punishment cannot be meted out, and the accuser is then punished for slander. In fact, the overwhelming majority of Islamic legal scholars do not even accept pregnancy as sufficient proof of adultery to warrant a sentence of death by stoning.

Chopping off the hands of thieves does seem a bit barbaric. If the thief, however, steals out of poverty, then the penalty of amputation is not carried out. Why? The State failed in its obligation to provide for its citizens. In fact, Umar, the second Caliph, suspended the penalty of amputation for thieves because he could not provide sustenance for every citizen. Amputation is reserved for thieves who steal out of greed, not want.

Which takes me back to my call for a moratorium; there is no one, so far, that is qualified to justly mete out Islamic justice. The Lawal case is a perfect example of this. First, Lawal was not married, so the penalty of death by stoning does not even apply. Second, it was obvious that four witnesses to the act of intercourse were not produced; the father was released due to "lack of evidence." Thus, not only was the sentence inappropriate, it was handed down unjustly. In fact, her accusers should be prosecuted, under the same Islamic law, for slander. While I am no Islamic legal scholar, it is painfully obvious that justice was not done in this case. My heart goes out to Amina Lawal, my sister in faith, and I pray that God grants her victory in her case.

Unfortunately, this problem is not limited to Nigeria. In Iran, Afghanistan, and other countries, scores of women have been stoned to death for adultery, in the name of Islamic penal law. Funny how it is always the women who get stoned, eh? Although I am a Muslim who tries to apply the Shariah in his daily life, I feel a moratorium on the implementation of Shariah penal codes is necessary until Muslim scholars and laity get their act together and find judges who know how to apply the law appropriately. It is better, in my mind, not to apply the penal codes at all than to apply them haphazardly and unjustly.

Still, it is important to point out that misapplication of a law does not necessarily mean the law itself is barbaric. The Shariah, in and of itself, is not sexist and barbaric. That is the Islamophobic party line. Many of those who apply the penal codes of the Shariah, however, are ignorant and sexist. They are the problem, not the Shariah itself. In fact, no system of justice is independent of those charged to apply and enforce it. In Texas, a mentally retarded inmate was executed. Right here in Illinois, we have witnessed more than a dozen men being released from death row after being exonerated by DNA testing. Is it fair to characterize American laws and the entire criminal justice system as "barbaric," executing the mentally retarded and condemning to death the innocent? Of course not. The Shariah must be accorded this same treatment.

Hesham A. Hassaballa is a Chicago physician and columnist for Beliefnet.com and the Independent Writers Syndicate.  He is also contributing author to the forthcoming book Taking Back Islam: American Muslims Reclaim Their Faith, due to be released by Rodale in November 2002.

Source:

by courtesy & © 2002 Hesham A. Hassaballa
 
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