DOCSLIB.ORG

Role of Islamic Jurisprudence in the Penal Code of Afghanistan Mohammad Saleem Karemzai

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
Role of Islamic Jurisprudence in the Penal Code of Afghanistan Mohammad Saleem Karemzai © 2019 JETIR June 2019, Volume 6, Issue 6 www.jetir.org (ISSN-2349-5162) Role of Islamic jurisprudence in the penal code of Afghanistan Mohammad Saleem Karemzai Assistant professor, Department of Islamic law, Syed Jamaluddin Afghan University, Kunar, Afghanistan. Abstract The Penal Code of Afghanistan was enacted in 1387 with 916 articles. The enactment of this code led to the annulment of previous Penal Code code. The role of the Islamic Jurisprudence is clearly visible in this code. Crimes in the new penal code are divided into two parts- Tazir crimes and determinate crimes (these crimes are being discussed in full details below). The third article mentioned that determinate crimes such as Hudud and Qisas and Diyyat shall be dealt with on the basis of Islamic Sharia, Hanafi School. And punishments for Tazir crimes have been specified in a manner, where there is maximum and minimum limit for judges to decide between. Moreover, the specified punishments in this law for Tazir crime, in general, are in agreement with Islamic Sharia, which I will discuss in details. Finally, we have reached the conclusion that the Penal Code does not contradict Islamic Sharia. Research questions: Some of the questions which have been answered in this article To what extent the Islamic jurisprudence is included in the New Penal Code? What are the types of punishments classified in the Penal Code? Does the new Penal Code include the implementation of Hudud crime? What are the arguments which tell us about the role of Islamic jurisprudence in the Penal Code? Method of research It is a comparative study. This article comparatively discusses Afghanistan’s Penal Code and Islamic Sharia by analyzing the role of Islamic Jurisprudence in Afghanistan’s Penal Code. Introduction Afghanistan is one of the Islamic states, ruled by different regimes with contrasting ideologies. Changes in the political order led to changes in the legal systems in Afghanistan over the course of time. Every regime implemented laws compatible with its policies because every regime after overseeing its policies and goals would bring changes in the legal system. Afghanistan as an Islamic country with a 99% Muslim population, people always preferred to live under the Islamic legal system. In 2001 when a democratic government came into being after ousting the Taliban, Afghanistan legal system witnessed considerable changes. One significant change was the enactment of the Afghanistan New Penal Code which nullified and voided previous Penal Code. Mainly two questions compelled me to write an article on the role of Islamic jurisprudence in the new Penal Code. Firstly, some people have doubts about whether the New Penal Code contradicts and contravene Islamic Sharia or not? Also, what is the role of Islamic jurisprudence in the new Penal Code? JETIR1907F88 Journal of Emerging Technologies and Innovative Research (JETIR) www.jetir.org 653 © 2019 JETIR June 2019, Volume 6, Issue 6 www.jetir.org (ISSN-2349-5162) In this article, I will thoroughly discuss the role of Islamic Jurisprudence in the Afghanistan Penal Code. Whether this code contravene Islamic Sharia or not? Also, will discuss different punishments prescribed for crimes Penal code During the seventh century, Islam reached Afghanistan, and with the passage of time slowly and gradually people converted to Islam. However, it was during the reign of Hisham ibne Abd al-Malik and Umar bin Abdul-Aziz of Umayyad Caliphate that the majority of Afghans converted to Islam, but it was Mutasim Billah who connected Afghanistan to the Islamic world. In 977 Ghaznavi empire was founded in Afghanistan. Under the Ghaznavi Empire, people would solve their problems under the rulings of Islam, especially under Islamic jurisprudence. When in 1800 Amir Abdul Rahman became the ruler, for the first time he initiated the process of legislation of Islamic jurisprudence which led to the codification and enactment of certain laws. Later on, Amir Habibullah Khan accepted Serajul Ahkam as a legal code, which is the interpretation of the principles of the jurisprudence of “Mujalatul Ahkam 99”. These principles were, in reality, part of the Usmani Empire’s legal system, in which Islamic jurisprudence had been codified in principles. These principles were originated from the thoughts of the Hanafi School’s scholars. In addition, during Habibullah khan’s reign, a code called “Nizam Nama” also existed which was a credible source of laws. Moreover, during the reign of Amanullah Khan, some laws were enacted, which eventually paved the way towards the inclusion of Islamic jurisprudence in laws. In 1355 (lunar year), for the first time, the penal code was enacted and implemented across the country. The first article clearly says that this law contains punishments for Tazir1 crime and other crimes. All the transgressors shall be punished according to the rulings of Islamic Jurisprudence (First article:3). The first article in the penal code signifies that the Islamic jurisprudence has been included and the code is based on it. However, after sometimes, Afghanistan was in turmoil and faced different problems- from external aggressions to civil wars. Therefore, the implementation of Penal Code was not an easy task and had faced various challenges. Also, in the former Penal Code financial punishments for Tazir crimes were determined on the basis of the value of old Afghan currency. When Hamid Karzai became the president of Afghanistan in 2001, the new Afghan currency replaced old Afghani banknotes. It was not possible to fine criminals on the basis of currency which did not exist and had lost its value. Also, new crimes which did not exist earlier became prevalent in the country. The former Penal Code had not included and estimated the new crimes that arose after some time. Therefore, a need was felt to include punishments for new crimes which the former Penal Code did not expect to happen. The new penal code was passed by both houses of parliament, which comprises 916 articles. This code, in general, does not have any contradictions with the Islamic jurisdiction. The third article clearly says that this code, like previous code, includes Tazir crimes and punishments for them. Punishments for Hudud2, Qisas3 (retaliation in kind) and Diyyat 4crimes are included and transgressors of these crimes are punished on the basis of Islamic jurisprudence. (64:4) 1 Tazir: refers to punishment for offenses at the discretion of the judge (Qadi) or ruler of the state 2 Hadud: under Sharia, are rules stated in the Quran and the Hadiths, and whose violation is deemed in Islam as a crime against God, and requires a fixed punishment. 3 Qisas: Qisas means retaliation, this principle is available against the accused, to the victim or victim's heirs, when a Muslim is murdered, suffers bodily injury or suffers property damage 4 Diyyat: is an arabic word which means “blood money”, Diyyat is the financial compensation paid to the victim or heirs of a victim in the cases of murder, bodily harm or property damage. JETIR1907F88 Journal of Emerging Technologies and Innovative Research (JETIR) www.jetir.org 654 © 2019 JETIR June 2019, Volume 6, Issue 6 www.jetir.org (ISSN-2349-5162) The aforementioned article specifies the role of Islamic jurisprudence in the new Penal Code, by delineating punishments for crimes such as Hudud, Qisas and Diyyat based on Islamic jurisprudence, Hanafi School. Also, punishments for Tazir crime have been determined in detailed manner. Classification of Penalties of Afghanistan Penal Code on the basis of determinate and indeterminate penalties First, those specified or fixed punishments which are mentioned under the Penal Code of Afghanistan. These punishments are Hudud Punishment, Qisaas punishment, and Diyyat. We will explain these punishments one by one in the following lines: Hudud: the word Hudud or Had is an Arabic term which means those punishments that are specified in Sharia or Islamic Law. It is called Hudud because the amount of punishment is determined and there is no judge or judiciary can change it either by increasing or decreasing. Under article 5 of the Penal code stipulates that Hudud punishments shall be implemented according to the Hanafi school of thought or jurisprudence. In Hanafi school there are five types of crimes which have determined punishments or Hudud punishments. These include punishment for drinking alcohol (had shrub Khamr), the punishment of prostitution (Had Zinna), punishment of slandering (had qadaf), punishment of theft (Had Sariqa), and punishment of robbery (Quta ul Tareeq). Therefore, in the above-mentioned crimes, if the conditions are fulfilled, determined punishment or penalty shall be inflicted on the offender. Qisaas: It is also one of the physical punishment for the offender who inflicted any bodily injury to another person or killed someone else without lawful justifications. In Qisas the offender is given the same and reciprocal punishment as he did with someone else. For example, if someone cut an organ of another person or kill someone else, his/her same organ shall also be cut or be killed if (s)he found guilty. There are some conditions for the punishment of Qisaas, that the crime of Qisaas should be done with the intention of the offender, the second condition is that the punishment should not be severed or more than what the perpetrator has inflicted on the victim. For example, if someone cut the hand of another person intentionally, then a judge can order the cutting of his hand too as he did with the victim. Diyyat: this is a monetary penalty on the one who injures or kills someone else, but not with the intention of doing so. The difference between this type of crime and the previous one is that in the previous there is always the intention of the offender, but in later one there is no intention of the accused even though in both the cases the harm would be the same.
Load more

Recommended publications
  • The Punishment of Islamic Sex Crimes in a Modern Legal System the Islamic Qanun of Aceh, Indonesia
    CAMMACK.FINAL3 (DO NOT DELETE) 6/1/2016 5:02 PM THE PUNISHMENT OF ISLAMIC SEX CRIMES IN A MODERN LEGAL SYSTEM THE ISLAMIC QANUN OF ACEH, INDONESIA Mark Cammack The role of Islamic law as state law was significantly reduced over the course of the nineteenth and twentieth centuries. This decline in the importance of Islamic doctrine has been attributed primarily to the spread of European colonialism. The western powers that ruled Muslim lands replaced much of the existing law in colonized territories with laws modeled after those applied in the home country. The trend toward a narrower role for Islamic law reversed itself in the latter part of the twentieth century. Since the 1970s, a number of majority Muslim states have passed laws prescribing the application of a form of Islamic law on matters that had long been governed exclusively by laws derived from the western legal tradition. A central objective of many of these Islamization programs has been to implement Islamic criminal law, and a large share of the new Islamic crimes that have been passed relate to sex offenses. This paper looks at the enactment and enforcement of recent criminal legislation involving sexual morality in the Indonesian province of Aceh. In the early 2000s, the provincial legislature for Aceh passed a series of laws prescribing punishments for Islamic crimes, the first such legislation in the country’s history. The first piece of legislation, enacted in 2002, authorizes punishment in the form of imprisonment, fine, or caning for acts defined as violating Islamic orthodoxy or religious practice.1 The 2002 statute also established an Islamic police force called the Wilayatul Hisbah charged 1.
    [Show full text]
  • Islamic Law Across Cultural Borders: the Involvement of Western Nationals in Saudi Murder Trials
    Denver Journal of International Law & Policy Volume 28 Number 2 Spring Article 3 May 2020 Islamic Law across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials Hossin Esmaeili Jeremy Gans Follow this and additional works at: https://digitalcommons.du.edu/djilp Recommended Citation Hossin Esmaeili & Jeremy Gans, Islamic Law across Cultural Borders: The Involvement of Western Nationals in Saudi Murder Trials, 28 Denv. J. Int'l L. & Pol'y 145 (2000). This Article is brought to you for free and open access by Digital Commons @ DU. It has been accepted for inclusion in Denver Journal of International Law & Policy by an authorized editor of Digital Commons @ DU. For more information, please contact [email protected],[email protected]. ISLAMIC LAW ACROSS CULTURAL BORDERS: THE INVOLVEMENT OF WESTERN NATIONALS IN SAUDI MURDER TRIALS HOSSEIN ESMAEILI AND JEREMY GANS* I. INTRODUCTION On 11 December 1996, a 51-year-old Australian nurse, Yvonne Gil- ford was found dead in her room in the King Fahd Military Medical Complex in Dhahran, Saudi Arabia.! Within days, two British nurses, Deborah Parry and Lucille McLauchlin, were detained by Saudi au- thorities and later tried and convicted for Gilford's murder.2 These in- cidents spawned a familiar tale of international diplomacy: two gov- ernments, facing conflicting domestic pressures when the nationals of one country are subjected to the laws of another, solve their problem at the executive level once the criminal justice system proceeds to the pu- nitive stage. This culminated in the release of both nurses and their deportation to Britain on May 19 1998.s However, the outcome of the Gilford trial also turned on an unusual legal circumstance: the eventual resolution was dependant on a decision by a citizen of a third country, Frank Gilford, a resident of Australia, whose only connection to the events was that he was the victim's * Dr.
    [Show full text]
  • Sterner Response Toward Rape in Line with Islamic Law: Special Reference to Pakistan
    Indonesian Journal of Advocacy and Legal Services ISSN: 2686-Sterner2085 (Print) Response Toward ISSN: Rape in 2686 line -with2611(Online) Islamic Law Vol. 3 No. 1 (2021): 51-90 DOI: 10.15294/ijals.v3i1.45597 Submitted: 11 January 2021 Revised: 11 February 2021 Accepted:30 April 2021 Sterner Response Toward Rape in line with Islamic Law: Special Reference to Pakistan Shahzeb Shahid1* 1 Punjab University, Pakistan *Corresponding Email: [email protected] Abstract: This paper tends to examine the nature of rape crime under Islamic law in order to take sterner action against this crime in line with Islamic law. As the Holy Quran does not directly deal with rape crime, for this reason, there is a wide range of disagreement among jurists regarding the issue of rape crime. Rape is not a single dimension issue, therefore, this paper is meant to shed light on issues related to rape such as whether or not rape is a separate crime? When does sexual intercourse amount to rape? What does Islam prescribe punishment for a person who is coerced to commit rape? Does Islam permit abortion for raped women? Why marital rape does not exist in Islam? Whether rapist may be awarded punishment of lashes, Imprisonment or death as t‘azir or syasah? This paper finds out what Zina (fornication) is under Islamic law because in Islamic jurisprudence only coerced zina is regarded as rape. Thus, this paper is classifying rape in the same category as Zina. By classifying rape as a subset of Zina can only sort out the juridical issues that are emanating from coerced Zina.
    [Show full text]
  • Is Diya a Form of Clemency?
    \\jciprod01\productn\B\BIN\34-1\BIN104.txt unknown Seq: 1 15-FEB-16 10:53 IS DIYA A FORM OF CLEMENCY? Daniel Pascoe* INTRODUCTION ................................................... 150 R I. BACKGROUND ON DIYA ................................... 152 R A. Diya as a Pre-Islamic Tribal Tradition ................. 152 R B. Diya in Classical Islamic Law ......................... 154 R II. THE CONTEMPORARY PRACTICE OF DIYA ................. 157 R A. The Relevant Countries ................................ 157 R B. Trends in Modern Diya Practice ....................... 158 R III. DEFINING “CLEMENCY” AND “PARDON” GRANTS ......... 162 R A. Brief Background to the Clemency Power ............. 162 R B. Types of Clemency .................................... 163 R IV. VARIETIES OF DECISION-MAKERS BEHIND CLEMENCY OR PARDONS ................................................. 166 R V. DISCUSSION: DIFFERENCES AND SIMILARITIES ............. 167 R A. Differences between Diya and Clemency and Pardons . 167 R B. Similarities between Diya and Clemency and Pardons . 169 R CONCLUSION: IMPLICATIONS FOR HUMAN RIGHTS LAW AND SCHOLARLY DISCOURSE ................................... 176 R ABSTRACT Under Islamic Sharia Law, diya is the payment of “blood money” to compensate for death or injury caused by a serious offense against a person and to provide the perpetrator relief from retaliation in kind. The question of whether diya in a murder case constitutes a form of clemency or pardon — that is, a final non-judicial relief against a death sentence, commonly granted by the executive — is an important issue that has not been sufficiently addressed by scholars of Islamic Law or by scholars of capital punishment. In this Article, I argue that while diya may bear many conceptual similarities to clemency and pardon as understood in secular common law systems, diya should not be exclusively considered through this lens for the purposes of the interpretation of international human rights law and for the future * Assistant Professor, School of Law, City University of Hong Kong.
    [Show full text]
  • HIST351-2.3.2-Sharia.Pdf
    Sharia 1 Sharia . šarīʿah, IPA: [ʃaˈriːʕa], "way" or "path") is the code of conduct or religious law of Islamﺷﺮﻳﻌﺔ :Sharīʿah (Arabic Most Muslims believe Sharia is derived from two primary sources of Islamic law: the precepts set forth in the Qur'an, and the example set by the Islamic Prophet Muhammad in the Sunnah. Fiqh jurisprudence interprets and extends the application of Sharia to questions not directly addressed in the primary sources by including secondary sources. These secondary sources usually include the consensus of the religious scholars embodied in ijma, and analogy from the Qur'an and Sunnah through qiyas. Shia jurists prefer to apply reasoning ('aql) rather than analogy in order to address difficult questions. Muslims believe Sharia is God's law, but they differ as to what exactly it entails.[1] Modernists, traditionalists and fundamentalists all hold different views of Sharia, as do adherents to different schools of Islamic thought and scholarship. Different countries and cultures have varying interpretations of Sharia as well. Sharia deals with many topics addressed by secular law, including crime, politics and economics, as well as personal matters such as sexuality, hygiene, diet, prayer, and fasting. Where it enjoys official status, Sharia is applied by Islamic judges, or qadis. The imam has varying responsibilities depending on the interpretation of Sharia; while the term is commonly used to refer to the leader of communal prayers, the imam may also be a scholar, religious leader, or political leader. The reintroduction of Sharia is a longstanding goal for Islamist movements in Muslim countries. Some Muslim minorities in Asia (e.g.
    [Show full text]
  • Islam: Crime and Punishment Justice
    Islam: Crime and Punishment Justice The Qur’an describes God as just. Because God is just, justice must be of the highest importance for all Muslims The Qu’ran says that God wants people to treat each other fairly and to establish justice: “God commands justice, the doing of good…and He forbids all shameful deeds and injustice.” Surah 16:90 Muslim’s believe that it is part of their role as vicegerents of God’s creation to behave justly to other people and to ensure that the world is run in a fair way. Allah commands Muslims to be just that means the unjust must be punished, “God commands justice and good conduct to all… and he forbids all immorality, bad conduct and oppression” Surah 16:90 Every Muslim is free to choose good or bad behaviour (freewill) and must accept that their actions will affect their relationship with God and the society around them. Muslims will be judged on Judgement day “People beware of injustice, for justice shall be darkness on the Day of Judgement”. There are many hadith (sayings of the Prophet Muhammad) in which Muhammad is shown as acting justly and telling Muslims to treat everyone justly and equally. “Stand up firmly for justice, as a witness to God, even as against yourselves or your parents or your kin, and whether it be against rich or poor.’” Surah 4:35 Shari’ah For Muslims the fair way to act justly is through Shari’ah, literally “a path to be followed”, It is a system of law covering moral, social, economic, political and religious life, based on the Qur’an and the Sunnah and is used by Muslims to make moral decisions.
    [Show full text]
  • The History of Jihad: from Muhammad to ISIS
    ADVANCE PRAISE FOR THE HISTORY OF JIHAD “Robert Spencer is one of my heroes. He has once again produced an invaluable and much-needed book. Want to read the truth about Islam? Read this book. It depicts the terrible fate of the hundreds of millions of men, women and children who, from the seventh century until today, were massacred or enslaved by Islam. It is a fate that awaits us all if we are not vigilant.” —Geert Wilders, member of Parliament in the Netherlands and leader of the Dutch Party for Freedom (PVV) “From the first Arab-Islamic empire of the mid-seventh century to the fall of the Ottoman Empire, the story of Islam has been the story of the rise and fall of universal empires and, no less importantly, of never quiescent imperialist dreams. In this tour de force, Robert Spencer narrates the transformation of the concept of jihad, ‘exertion in the path of Allah,’ from a rallying cry for the prophet Muhammad’s followers into a supreme religious duty and the primary vehicle for the expansion of Islam throughout the ages. A must-read for anyone seeking to understand the roots of the Manichean struggle between East and West and the nature of the threat confronted by the West today.” —Efraim Karsh, author of Islamic Imperialism: A History “Spencer argues, in brief, ‘There has always been, with virtually no interruption, jihad.’ Painstakingly, he documents in this important study how aggressive war on behalf of Islam has, for fourteen centuries and still now, befouled Muslim life. He hopes his study will awaken potential victims of jihad, but will they—will we—listen to his warning? Much hangs in the balance.” —Daniel Pipes, president, Middle East forum and author of Slave Soldiers and Islam: The Genesis of a Military System “Robert Spencer, one of our foremost analysts of Islamic jihad, has now written a historical survey of the doctrine and practice of Islamic sanctified violence.
    [Show full text]
  • Qisas and Diyat Ordinance Allows Honor Killings to Go Unpunished in Pakistan
    PALO ARTICLE 2/7/2009 4:24 PM A CHARADE OF CHANGE: QISAS AND DIYAT ORDINANCE ALLOWS HONOR KILLINGS TO GO UNPUNISHED IN PAKISTAN Stephanie Palo ABSTRACT This study begins with the story of Samia Sarwar. At age 17, Samia married her cousin through an arranged marriage. When Samia tried to obtain a divorce, her relatives hired an assassin to kill her. Although this was a murder, Pakistani law allowed Samia’s mother and uncle, the most apparent accomplices in her murder, to remain free. As expected, under the Qisas and Diyat Ordinance, Samia’s parents forgave the murderer they hired to kill their daughter. Since 1999, several amendments to Pakistan’s Penal Code (PPC), particularly the 2004 amendment and the Protection of Women (Criminal Laws Amendment) Act of 2006, introduce legislative action to end honor killings and gender discriminatory legal practices in Pakistan. Until the Qisas and Diyat Ordinance is removed from the PPC, however, perpetrators of honor killings need not fear retribution because many commit their crimes with the consent of family members. Pakistan must revoke its Qisas and Diyat Ordinance in order to stop these heinous murders from going unpunished and to prevent discrimination against women within Pakistan in accordance with international human rights law. This article will examine all aspects of the Qisas and Diyat Ordinance and its significance to the women and laws of Pakistan: its place within Pakistan’s parallel legal systems; the history of Shariah laws and the birth of the Qisas and Diyat Ordinance; the role of Islam in the perpetuation of the Qisas and Diyat Ordinance; how the tradition of honor killings finds a safe haven in the Qisas and Diyat Ordinance; how the act runs counter to the constitution of Pakistan; and how the Qisas and Diyat Ordinance violates international law.
    [Show full text]
  • Introduction to Islamic Law CONTENTS Page COURSE
    1 Introduction to Islamic Law CONTENTS Page COURSE INFORMATION 2 COURSE OUTLINE 2 Book Information 3 Grading Policy and Assessment 3 Syllabus: ISLAMIC JURISPRUDENCE 4 MUSLIM LAW 8 Course Material/Brief Points: ISLAMIC JURISPRUDENCE 10 MUSLIM LAW 37 Some Readings in Islamic Jurisprudence 58 Some Readings in Muslim Law 58 The Quran Translations 58 The Hadith Translation 58 Dictionaries 58 Additional Material Sources 58 2 COURSE INFORMATION COURSE NAME/SEMESTER: Spring 2015 Section # 22657 Course 5397 Introduction to Islamic Law Course Area: International Law PROFESSOR: SHAHZADO SHAIKH (Adjunct) Contact: 832-908-0635 [email protected] Credits: 3 Time: 7:30p-9:00p MW Room: Exam: 05/09/15 9am-12pm Prerequisites/Skills/Course Requirement: No prior course work is required. First Day Assignments: No Senior Upper Level Writing Requirement: No Students may meet: 6:30p-7:30p MW Students can also contact to set up appointment. Location: UH LC Course Outline: Based on a belief system of a divine origin, Shariah envisages, both, a religion and a social order. The course seeks to introduce core textual (as the basic source), theological (belief system), and legal components, along with historical impact, while examining different phases, through its sources and methodologies, leading to development of schools of opinions and legal theories. The course will examine texts, history and current issues in Islamic Law and its enforcement. It will also study principles, concepts and terminology of Islamic Jurisprudence and Muslim Law, It will introduce some aspects of Islamic law pertaining to substantive areas, like constitutional, commercial, international, and criminal laws; and some specific areas like marriage, divorce, child custody; succession and wills.
    [Show full text]
  • U4 Expert Answer: Islamic Approaches to Corruption
    Islamic Approaches to Corruption Query: “Please can you provide examples of specifically Islamic approaches to tackling www.U4.no corruption. I am particularly interested in the Middle East / North Africa Region but www.transparency.org also in examples from elsewhere. For example, has Sharia law been successfully www.cmi.no applied in relation to dealing with corruption? Is there any evidence on the advantages or otherwise of adopting a more emphatically religious perspective rather than a Authored by: secular or political approach” Marie Chêne Transparency International [email protected] Purpose: Victoria Jennett Ph.D U4 Helpdesk “To inform discussion and possible programming in relation to corruption in the Transparency International MENA region.“ [email protected] Reviewed by: Content: Robin Hodess Ph.D Transparency International [email protected] • Part 1: Introduction : Corruption in the face of Traditional Islamic Values Date: • Part 2: Islamic Legal and Institutional Framework against Corruption 5 June,2007 • Part 3: Application of Sharia Law in relation to Corruption • Part 4: Further Reading Part 1: Introduction: Corruption in the face of Traditional Islamic Values There is a rich tradition in Islamic heritage of high moral standards, ethics, values and norms of behaviour, which govern personal, professional and business life. These standards, ethics and values have much in common with other world religions and as such it may be more useful and unifying to invoke these values as common cultural values, rather than to promote them as purely Islamic values. Nevertheless, in the time of growing religious fundamentalism, Sharia and religious laws provide a normative framework that is likely to give more weight, impact and legitimacy to anti-corruption initiatives in the context of Islamic countries.
    [Show full text]
  • Restorative Justice in Islam
    RESTORATIVE JUSTICE IN ISLAM Restorative Justice in Islam: Should Qisas Be Considered a Form of Restorative Justice? Susan C. Hascall* INTRODUCTION The development of criminal punishments in the West is a subject of interest for scholars in various fields.1 One of the foundational ideas has been that the movement away from corporal punishment to other forms of punishment, such as imprisonment, has been an improvement. But, such ideas have not gone unquestioned. In Discipline and Punish: the Birth of the Prison, Michel Foucault asserts that the movement away from the punishment of the body and towards the imprisonment of the body through the widespread institution of the prison has resulted in an even more heinous form of punishment: the punishment of the soul.2 In addition, Foucault contends that the focus on rehabilitation in prisons encourages criminality.3 Although he does not directly advocate restorative justice ideas, his criticism of the prison system has given rise * Assistant Professor of Law, Duquesne University, B.A. Texas A&M University, M.A. The Wichita State University, J.D. Washburn University. The author would like to thank her research assistant, Carly Wilson, for all her help with this article. She would also like to thank the editorial board of the Berkeley Journal of Middle Eastern and Islamic Law for their editorial advice and suggestions. 1. When this article refers to the term “the West” what is meant is historically Christian majority countries such as those in Western Europe and the United Kingdom and their former colonies that were populated by immigrants from Europe including the United States, Canada, New Zealand and Australia.
    [Show full text]
  • PAKISTAN Appeal to Ban Public Flogging
    PAKISTAN Appeal to ban public flogging Amnesty International welcomes the decision of the federal cabinet on 2 October 1995 to approve a bill which seeks to abolish public flogging of prisoners in all cases in which whipping is not imposed as a hadd or mandatory punishment prescribed by Islamic law. The organization is aware that this legislation - if approved by both Houses of Parliament -will reduce the number of sentences of whipping considerably as the punishment of whipping is rarely imposed as a hadd punishment. However, Amnesty International believes that the punishment of whipping is a cruel, inhuman and degrading punishment and efforts should be made to abolish it altogether. As long as the punishment of whipping remains on the statute book as a hadd punishment for a number of offences it can be imposed and implemented. Amnesty International now appeals to parliamentarians of all parties to approve the bill to partly abolish public flogging as a first step towards the eventual complete abolition of public flogging. Recent cases of public flogging Before the Hudood Ordinances (see below) were passed, the punishment of whipping was not imposed by regular courts; however, it was carried out in jails for disciplinary reasons. During the martial law period (1977 to 1985), criminal and political prisoners were publicly flogged. Since 1979, when the Hudood Ordinances were promulgated, the punishment of flogging has been frequently imposed - most often for sexual offences or the consumption of alcohol - and is often carried out, almost always in public. In July 1995, Zameen Khan was publicly whipped in Nishtar Park in Karachi.
    [Show full text]