death penalty news September 23, 2005
KAZAKHSTAN: Kazakhstan trial jury to judge using capital punishment It is planned to allocate KZT 4 bln 875 mln from the republican budget for initiation of trial jury, panel salary, stationary acquisition expenditures, equipment and alteration of premises, travel allowances. The final sum of expenses will be approved at 2007 budget. As specialists of Legislation Department of Justice Ministry said, according to the draft law "On Jurors" the jury will consider primarily criminal cases liable to death penalty. The chosen continental model of trial by jury entrusts annual assignment of the list of potential jurors to the local executive powers. The composition of the court envisages the participation of 2 professional judges and 11 jurors. People under 25, or those having criminal record, judges, lawyers, prosecutors, law enforcement officers, military men and civil servants are not allowed to participation in trial jury. To date draft law "On Jurors" is under consideration of the deputies of the Majilis of the Parliament of Kazakhstan. (source: Kazinform) BANGLADESH: Re-defining of Hudood laws needed It is also important to note that one should read all the verses on hudood punishments before coming to any conclusion about the nature of the punishment. Take cutting off hands, for example. Does it mean really cutting off the hands of a thief physically? If we take another verse of similar nature in the Chapter on Yusuf i.e. 12:31 which says, "So when she heard of their device, she sent for them and prepared for them a repast, and gave each of them a knife and said (to Joseph): Come out to them. So when they saw him, they deemed him great, and cut their hands (wa qatta'ana aydiyahunna) (in amazement), and said: Holy Allah! This is not a mortal. This is but a noble angel." Obviously here the words wa qatta'ana aydiyahunna does not mean they literally cut their hands but that they injured their hands. If we similarly read the verse 5:38 it would not mean cut off hands of thieves but symbolically injure their hands so that they remember it and do not repeat the crime in future. It should not mean cutting off the palm of the thief and render him afflicted for life. Also, we must read it in conjunction with the verse 5:33 wherein the minimum punishment for dacoity is imprisonment (aw yunfauna in al-ard). Thus when the minimum punishment for dacoity is imprisonment how can the punishment for a lesser crime i.e. theft could be cutting off hands. Thus the word qat'a should be interpreted not literally but differently. In Arabic when they say qata'a lisanahu it does not mean they cut off his tongue but it means they silenced him. At the most qat'a yad could be taken as an exemplary punishment for a very serious crime and ordinarily such punishment should not be inflicted for less serious crime. Instead efforts should be made, as pointed out, to reform the person. It is also important to note that in Islam one cannot demand duty without conceding corresponding rights. Thus if it is duty of an individual not to steal, it is his right to have all his physical and intellectuals need met by the society to lead a dignified life by affording him appropriate opportunities. Unfortunately, the Islamic world has interpreted this verse quite mechanically and have not read it along with other verses on this subject and neither have they tried to seen it in the overall context of the Islamic philosophy and values as pointed out. Thus there is need to revise the law particularly in the modern context where human dignity and human rights have central place. Another debatable had punishment is stoning the adulterer or adulteress to death which is known as rajm punishment. The Qur'an, of course, does not mention this punishment at all. The Qur'an mentions only flogging for zina. Thus we read in the verse 24:2 "The woman and the man guilty of adultery or fornication, flog each of them with a hundred stripes: Let not compassion move you in their case, in a matter prescribed by God, if ye believe in God and the last Day: And let a party of the believers witness their punishment." In Arabic the word zina means both adultery as well as fornication as there are no separate terms in Arabic. The 'ulema' maintain that here the punishment of flogging prescribed is for fornication and not for adultery. And that for adultery the punishment is rajm i.e. stoning to death. In fact, stoning to death was the punishment in the Jewish law. According to Bukhari (23:61) this punishment of rajm was given by the Prophet to a Jew and a Jewess and others were prescribed before the revelation of this chapter. That Islam never meant to prescribe rajm is clear from the verse 4:25, where it is stated expressly that the punishment for adultery in the case of slave-girls, when they are married, is half the punishment which is inflicted on free married women. But if the Qur'an meant to inflict stoning to death how could it have been halved? The Kharijites also concluded from the verse 4:25 that punishment both for adultery and fornication is same i.e. flogging and not stoning. But strangely enough many 'ulema' maintain that there was a verse in the Qur'an prescribing rajm but it was eaten by a goat and could not be included in the compilation. I think this is very dangerous line of argument. This way we are exposing the Qur'anic text to not being final and others could argue that other verses were deleted. One should not take this route at all. Moreover, nowhere else the Qur'an prescribes stoning as punishment. There is unanimity on the fact that one has to produce four witnesses who have witnessed the act of penetration before such punishment could be inflicted on the guilty. Now it is impossible to produce four witnesses to have seen the act of penetration (not simply of being together) and hence whole thing generally depends on self-confession. Very few persons will confess to the crime. This creates very peculiar situation - a man generally escapes by denying having had committed zina and gets exonerated but this is not possible for women, particularly if she gets pregnant and does not have marital status at the time of rape. Thus she is automatically implicated and sentenced. Because of this mostly women are being implicated and punished for adultery in the Muslim countries. This is serious anomaly in the law as it is applied in the Muslim countries and has to be urgently remedied. Women are often victims of rape (not of adultery or fornication) but she cannot prove rape as there are no four witnesses. This is totally unjust and instead of punishing the rapist such a law punishes the victim. The law should be such as to be just, as justice is very central to Islam. There is urgent need to bring about reform in this law as it operates in Muslim countries. First of all capital punishment for adultery is not warranted as it is not mentioned in the Qur'an and there is no unanimity as far as hadith literature on the subject is concerned. As pointed out the law should be enacted in the spirit of the four fundamental values of the Qur'an i.e. justice (adl), benevolence (ihsan), compassion (rahmah) and wisdom (hikmah). The law, which does not reflect these values will not be able to produce desired results. Instead it will boost up crime rate. Also, today due to spread of education on one hand, and increased awareness of human rights on the other under democracies (and to an extent even under non-democratic regimes) women's rights have assumed much greater importance. No law which is unjust to women - and present hudood laws are unjust to women - can be sustained. Human dignity is of seminal importance under human rights regime but in Muslim societies women, more often than not, are treated as lesser citizens and tend to be unequal before the law, especially in matters of hudood laws. Since more often than not, women are victims of rape, relevant law must be applied very sensitively and with attitude of justice and compassion. But it has been observed that while applying hudood laws, women are treated quite harshly and men, often guilty of committing rape are set free. It should be otherwise. The relevant Qur'anic verses clearly indicate that incidence of adultery and rape should be stopped. If the law is harsh on women and soft on men this can never be realised. It should be harsh on men and soft on women. In patriarchal societies men tend to be aggressors. If these changes were brought about it would be quite in keeping with divine intention as divine intention is to do justice with weaker sections of society as the Holy Scripture declares in the verse 28:5. The moral dynamics of society, according to the Qur'an, is derived from struggle between what the Qur'an calls mustad'ifin (weaker sections) and mustakbirin (powerful sections) and, of course, the Qur'an is on the side of mustad'ifin. The Shari'at laws cannot be simply based on one verse prescribing punishment but has to be seen in the total perspective of the Qur'anic philosophy. Our jurist so far confined their understanding of these verses only to these prescriptive verses. Thus whole methodology of formulating Shari'ah laws has to be rethought. We must come out of the old framework of the Shari'ah laws and a new paradigm has to be evolved. Our jurists are unable to challenge the old paradigm developed by early jurists of the classical period. Today only those jurists who combine knowledge of Qur'an and hadith with that of modern society can play useful role. It is wrong to maintain that what was evolved by classical jurists is as sacrosanct as the Qur'an itself. A new philosophy of jurisprudence matching with that of the Qur'an, on one hand, and with that of modern society needs to be evolved. The Qur'anic values are highly relevant in all ages but their applications needs to be updated from time to time to maintain their relevance. The traditional jurists have failed to do that. We, therefore, greatly need new jurists who could fully appreciate the Qur'anic value system and modern needs and bring about conformity between the two. (source: Islam and Modern Age, July, 2005; The (Bangladesh) Independent) NIGERIA: Group writes NASS, opposes death penalty for juveniles The Human Rights Law Service (HURILAWS) has sent a letter to the National Assembly expressing opposition to the recommendations of the Committee on Judicial and Legal Reforms of the just concluded National Political Reforms Conference (NPRC) in favour of retention of capital punishment for juveniles. In the letter dated September 16, 2005 and exclusively released to Daily Independent, HURILAWS Executive Director, Ms Frances Ogwo, argued that the NPRC's position contained in Chapter 10, Recommendation 7 of its final report negates the human rights movement of the global community towards abolition of death penalty in its entirety. The rights group called for the passage of a pending bill for the suspension of death penalty for a 10-year period, which would allow for proper and exhaustive debate on whether death penalty should be retained or thrown out from the Constitution. "The Human Rights Law Service calls on honourable members of the National Assembly not to adopt the recommendations of the Committee on Judicial and Legal Reforms of the just concluded National Political Reforms Conference, which is in favour of retaining capital punishment even for juveniles. "You may recall that HURILAWS has a pending bill on Moratorium on Death Penalty before the National Assembly. We use this opportunity to urge you to pass this bill in order to freeze executions for at least a decade, during which time Nigerians can come together, debate the issue and decide whether the death penalty should be retained in our statute books or not," the letter further requested. Explaining HURILAWS' objection to the recommendation, Ogwo stated that it is in conflict with that of another group of experts instituted by President Olusegun Obasanjo to study the necessity or otherwise of the death penalty. "HURILAWS objects to this recommendation for several reasons. The first is that the world is fast moving towards abolition of death penalty in its entirety. Again, it is inconceivable that the committee should recommend capital punishment for juveniles, who are protected by law against such severe punishment. Moreover, the National Study Group on Death Penalty instituted by the president, recommended abolition of death penalty in it's entirety after extensive consultations with the Nigerian people and after the committee received several memoranda, both from HURILAWS and other organisations, urging them to recommend abolition or at best a moratorium," Ogwo said. (source: independentng.com)
