30 August 2011

Severe Penalties and Human Rights

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When it comes to Islam and human rights, the biggest rub in joining the two comes from the hudud. That’s a word that means “limits” – here, the limits God has imposed on wrongful behavior, or the prescribed penalties in classical Islamic law. Most of these are still on the books in Saudi Arabia, and to a lesser extent, in Afghanistan, Pakistan, Sudan, to name a few: stoning of adulterers, capital punishment for murderers and for those who convert from Islam (apostasy), and amputation of hands for thieves.

If you read my blogs on Shari’a, you will know that whatever consensus there was among the five main schools of Islamic law up until the eighteenth century became seriously eroded in the modern period. From the imposition of western codes of law by colonial rulers, to drastic sociopolitical changes wrought by the advent of nation-states, to the multiplication of new reformist ways of thinking and interpreting the texts (often followed by fundamentalist backlashes) – all these factors and more mean that the hudud affect the lives of very few Muslims today.

The stoning of adulterers, for example, happened rarely in Islamic history, mostly because it was so hard to prove in court. According to the law, four witnesses had to have seen the act of intercourse with their own eyes. What is more, any false witness would receive a hundred lashes. Now, justice is never served evenly in any country, so there must have even been cases like the one Jesus was called upon to judge: a woman is accused of adultery and about to be stoned, but her partner was nowhere in sight.

As far as amputating thieves’ hands, it continues in Saudi Arabia and in Nigeria’s northern states that proclaimed Shari’a law in 2000. But judges do not systematically order an amputated limb for every act of theft. Many distinctions apply, as does the consideration of extenuating circumstances. Nevertheless, such a penalty does contravene current norms of human rights. It fits the category of “cruel and inhumane punishment.” That is precisely why 98% of Muslims today live in countries where it isn’t allowed.

Now for the more interesting issue of apostasy. Many readers will remember the case of Abdul Rahman, the Afghan found with a Bible in 2006, who was then arrested and put on death row. In the end it took loads of international pressure to have him exiled to Italy.

Then in February of this year another Afghan who embraced Christianity, Said Musa, was on the verge of being executed, causing an international uproar that eventually overturned his case. He too was fortunate. Many others, however, in several countries (with or without such a law on the books) have been killed by family members or have simply disappeared.

To be honest, the prevailing mood today seems decidedly conservative. When the popular young British imam, Usama Hasan, openly taught in 2008 that people had the right to choose any religion they wanted – and change again, if they so chose, he was viciously attacked by many conservative Muslims, including through websites based in the west.

That same year the Grand Mufti of Egypt (i.e., the highest religious official and head of the prestigious Al-Azhar University), Ali Gomaa, created a stir in many circles by making an official pronouncement to the effect that a Muslim might leave Islam to embrace another faith. The Qur’an makes it clear, he insisted, that this is a decision that only involves the individual and God, and that his/her punishment only would come on the Last Day, presumably hellfire. Here are some verses he quoted:

“Unto you your religion, and unto me my religion” (Q. 109:6)

“Whosoever will, let him believe, and whosever will, let him disbelieve” (Q. 18:29)

      “There is no compulsion in religion. The right direction is distinct from error” (Q. 2:256)

Unconfirmed rumors have it that he retracted this some days later in an address in Arabic to a Muslim audience. After all, it flies in the face of pre-modern Islamic law, both Sunni and Shi’i. The Maldivian scholar Abdullah Saeed who directs the National Centre of Excellence for Islamic Studies at the University of Melbourne, Australia, put it this way: “It is true that in classical Islamic law there was almost unanimous agreement among the jurists that if a Muslim converts to another religion he or she should be punished by death.”

Of late, as I said, the conservative mainstream of Islam seems to be hardening its position on this issue and it’s no secret that countries like Saudi Arabia, Sudan, Afghanistan and Mauritania still have laws that make apostasy a capital crime. Even in more “moderate” countries like Malaysia, Muslims (about 60% of the population) who leave the faith are sent to a “rehabilitation camp” to be reindoctinated. Al-Jazeera ran an excellent documentary in 2007 on the case of a Muslim woman who married a Hindu. Since according to Islamic law Muslim women cannot marry non-Muslims (on the ground that the children follow their father’s religion), her parents took away her three-year old daughter and informed the Shari’a court about her situation. She was forcibly separated from her husband and daughter (for details, see this YouTube video).

In passing, let me add that this unyieldingness is also evidenced by the rising tide of extremism in Pakistan, particularly with regard to the blasphemy laws. Naturally, there is a strong political dimension to this controversy: the neighboring war in Afghanistan, the military pressure exerted by the Taliban-affiliated tribes in the Northwest, and the need for the religious parties to solidify their alliance to break the power of Ali Zardari’s government. But this is a popular law too: the former governor of Punjab’s stand against it cost him his life, as happened to the only Christian minister, Shahbaz Batti, who was gunned down on his way to work in March 2011.

Then there was the international furore over a 45-year-old Christian woman, Aasia Bibi, jailed for allegedly speaking against the Prophet in a village scuffle – a totally Muslim village apart from her family. This of course is not apostasy – she’s a Christian woman – but considering the fact that all possible witnesses are Muslim and therefore likely unsympathetic, the charges of blasphemy are hardly fair, if indeed the law in the first place had any validity in our day and age. She is still in jail at this writing, awaiting the execution of her death sentence, or, if she’s lucky, a presidential pardon. [update: she was finally acquitted in 2018, though under house arrest for close to a year; she finally arrived in Canada in May 2019].

Yet, despite these worrisome developments, winds of change are blowing as well, and Abdullah Saeed, professor of Islamic Studies in Melbourne, Australia, is one of many high-profile scholars who have spoken out against this traditional interpretation of the law of apostasy. Just this spring, he contributed two articles to The Public Discourse on the issue of apostasy in Islam. In our pluralistic world of the 21st century, he argues, lots of people enter and exit many different faiths, Islam being one of them. So Muslims have to face this problem head-on. He writes,

“Should we Muslims continue to follow the age-old ‘law’ of apostasy, punished by the death penalty, and force converts to come back to Islam literally on pain of death at a time when ‘freedom of religion’ is considered a universal human right? If a person genuinely converts to another religion, what right do others have to force him or her to change their mind? Why should we human beings play God’s role in such an important and personal matter? At the end of the day, isn’t belief an issue between a person and God, as the Quran declares?”

This is the theme of his first article – what the Qur’an says about apostasy. To sum it up, there is nothing in the Qur’an that says that conversion from Islam should be punished by death. The logic of its teaching is that people, once they hear the message, have the freedom to believe or disbelieve. God will punish them or reward them in the hereafter. For instance, “And if they surrender themselves unto Him, they are on the right path; but if they turn away – behold, your duty is no more than to deliver the message: for God sees all that is in [the hearts of] His creatures” (Q. 3:20).

 In fact, there is no evidence that Muhammad ever imposed this penalty on people who left the Islamic faith for their former faith. To the contrary, in the best collection of hadiths (reports of what the Prophet Muhammad said and did), al-Bukhari, we read about a man who came to Medina, converted to Islam, but changed his mind. He asked Muhammad for permission to leave Medina and go back to his home and to his former faith. Muhammad let him go with no punishment whatsoever.

 The reason all the classical schools of Islamic law agreed on the death penalty is because of how several hadiths had been interpreted, writes Saeed, in his article, "Hadith and Apostasy." The most influential one is this: “Whoever changes his religion, kill him.” Saeed has two main objections to the use of this hadith. First, it only surfaced 25 years after the death of the Prophet (its transmitter, Ibn Abbas, was only 12 years old at that time). The occasion, it was said, was the caliph Ali’s decision to burn some heretics. Ibn Abbas then quotes this hadith in support, not of their being burnt to death (that was forbidden, he objected), but of their execution by the sword. Saeed reasons,

“It is strange that such an important message remained hidden for decades after the death of the Prophet. Ali, being a Muslim from his early childhood, one of the Muslims closest to the Prophet, and an advisor to the first three caliphs of Islam, should have known of such a penalty if it existed at the time of the Prophet, particularly since it involved taking a life, not a small matter.”

Saeed’s second objection is that the hadith is too vague: it implies that anyone leaving any religion should be killed. That makes no sense. So jurists over time added all kinds of limitations to this statement: it refers only to conversion from Islam; it excludes those who converted under pressure, as well as women and children (at least for the Hanafi school). Saeed’s point: such a hadith is open to many interpretations.

 But the true reason for rejecting this and other similar hadiths (and a few verses in the Qur’an quoted by those in favor of capital punishment) is a consideration of the historical context. And here we rejoin a growing number of scholars today who reject the traditional interpretation. The context was all out war between Medina and Mecca. People who shed their Muslim identity were in effect joining the enemy. This was state treason, which in most states still today is a capital crime.

 Jamal Badawi, a Canadian Muslim raised in Egypt, is a prolific author and speaker around the world, and has been active in several Muslim organizations in North America over the years. A known conservative with old ties to the Muslim Brotherhood in Egypt, his views have moderated over time. You can read his fatwa (legal opinion) on this issue on the Islamic Society of North America website. Quoting many others conservatives like himself, his conclusion runs parallel to Saeed’s:

"In the context of the besieged early Muslim community, apostasy was a major threat to the nascent Muslim community. Taking a passive attitude towards it would have jeopardized the very emergence of the Muslim community."

The founder of the Islamist movement in Tunisia, Rashid Ghannushi, was jailed as a young man for starting a political party that was already threatening President Ben Ali’s own grip on power in the early 1980s. In prison he wrote was to become his doctoral thesis, “The General Liberties of the Islamic State,” in which he argues against the death penalty for apostasy and for democratic procedures in any Muslim-majority country. Democracy, he argued, is not just good because governments are responsive to their people’s wishes, or because citizens enjoy civil and political freedoms. It is also necessary in order to ensure religious freedom. People of different faiths should have the right to proselytize, as long as it is done with respect.

 After two decades of exile in the UK, Ghannushi has now come back to Tunisia after the revolution. As the veteran leader of the Islamist movement, however, he has decided to step down from any formal leadership. He will let younger men and women run for election. But in all his interviews with the press, he says he’s thrilled with the new Tunisia. “And don’t worry about the Islamic parties,” he tells reporters. “We will play by all the democratic rules. Freedom is too important to us!”

 In the first half I mentioned the issue of blasphemy. Just as I find encouragement in the growing number of high profile Muslim leaders reinterpreting the Qur’an and Hadith on the issue of apostasy, so I believe that hardliners will increasingly find themselves isolated, even in Muslim-dominated areas. The following is a telling sign.

 As it turns out, it was Pakistan that launched a yearly campaign in the UN since 1999, and particularly in its Human Rights Council, to pass resolutions against religious defamation – in effect an anti-blasphemy law sponsored by the largest Muslim worldwide body, the Organization of the Islamic Cooperation (OIC, 57 member countries). After some positive support from a wide array of countries, many states realized that this was a thinly veiled strategy to marshal support for the kind of laws Pakistan, Saudi Arabia and Iran already have at home. In March of this year in Geneva, sensing that for the first time it would be defeated, the OIC quietly dropped the issue (see forthcoming book by Nina Shea and Paul Marshall, Silenced: How Apostasy and Blasphemy Codes are Choking Freedoms Worldwide, Oxford University Press, November 2011). The tide may be turning.

 Freedom of thought and freedom of religion, just like other human rights, are more and more taken for granted by Muslims everywhere. Are there headwinds of reaction and traditionalism? Of course there are. But, it seems to me, the mother ship – the Muslim mainstream – is seems to be slowly heading in a reformist direction.