Contemporary Issues Part 2 (Criminal Justice)

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Bilal Philips

Channel: Bilal Philips

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Bismillahirrahmanirrahim, the name of Allah, the Beneficent, the Most Merciful. I'd like to welcome you dear viewers to another na series, contemporary issues

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in which we look at a variety of

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ideas or concepts, which have become very popular in the world today.

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promoted by Western civilization accepted by Muslim countries, to varying degrees, or by the intellectual elite, or the educated elements of the society, you know, where these ideas have become very popular, and they challenge the fundamental concepts which are held by Islam. With regards to these various issues.

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The topic that we'll be looking at today, is a very vast topic. And it's a topic concerning criminal justice, the Islamic legal system, and how its laws are applied.

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What people tend to focus on, is that the criminal justice system of Islam is very harsh. It's referred to as being medieval, you know, primitive in a variety of different terms used because the image given of the application of Islamic law is really one of chopping off of hands and chopping off of heads and lashings and stonings. And, you know, this is the general image given that, you know, this is just something impractical in our time something which modern civilization has left behind, no longer applicable, and if no, no benefits, rarely something which was primitive, the general impression given. However,

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when we look at the issue of criminal justice, and perhaps at the core of it is the issue of capital punishment, which has been banned by the UN as well as the ECC. We look at it and how it has developed in western civilization, for example, in America and the West in general, the main goals behind Western penology, you could say were three, one, retribution, that is justification, looking to the past, that is punishment or revenge,

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to deterrence, and that was looking to the future, and that is prevention,

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and three reformation, to reform the individual to make that individual a better personality, a better character to be released back in society. These are the basic principles behind Western penology. However,

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from as early as the as the late 30s, we find a report of the departmental committee on corporal punishment in England, stating that corporal punishment was of no value as a deterrent, and should be abolished.

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In 1952, Justice Hugo black the United States of America, he wrote that retribution is no longer the dominant objective of criminal law. reformation and rehabilitation of offenders have become important goals of criminal jurisprudence. And in 1972, Justice Thurgood Marshall, again of the United States Supreme Court, he wrote punishment for the sake of retribution is not permissible under the Eighth Amendment.

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In the same year, California as capital punishment law was declared unconstitutional.

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For some criminologists, rather, reformation has become synonymous with cure.

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The criminal was no longer considered to be a bad man, but a sick man

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and the convict needed treatment. He was genuinely ill, perhaps physically, almost certainly, mentally and psychologically. It was the approach which Western criminal justice took, and in 1965 in England, the death penalty was abolished.

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However, some seven, some five years later, in 1970, when the Home Secretary announced that 172 convicted murderers have been released from prison since 1960. That's

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Over a period of 10 years, he pointed out that most of them had only served nine years or less for their of their statutory life sentence.

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Only five served 12 or more years, nine served six or less than one completed only six months. And these were not cases of mistaken judgments where they were revising judgment. These are people who are convicted murderers. But due to the change in attitudes, good behavior in prison, people were being led out, somebody murdered somebody, and was led out after six months

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12

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or nine of them were dead out after six years or less after murdering somebody. And of course, the reality is that these individuals are being led out into the public, a number of them ended up killing others and ended up back in jail again for further murders.

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Today, Western phonologists have admitted that the penal system has utterly failed in reforming and rehabilitating criminals. The reality is that the petty criminal who enters into the system

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sits, spends time with well trained hardened criminals. And he comes out prepared now he's got all the information he needs to go on to major crime. So it becomes a training ground for criminals. And the society ends up paying for their crimes by providing them with housing, food, clothing and shelter for the period of their sentence. So the society pays for the crime.

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In the Islamic systems, punishments are based, are placed basically in three categories. One category known as her dude, and these are the fixed punishments which have been set by Allah in the Quran, or by the statements of the Prophet Mohammed Salaam.

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And these are considered to be rights of God.

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The There are six basic offenses which come under that heading those that is of drinking, alcohol, theft, armed robbery, illicit sex, and that includes homosexual pedophilic and bestiality type,

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sexual deviations, sexual slander, apostasy, all of these are included in this system.

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The second group are referred to as cases or retaliatory punishments, where an injury or murder takes place, and an equivalent punishment is set for that. And this is considered under the headings of the rights of people.

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And the third category is that of Taseer, or what may be called discretionary punishments where no specific punishments are set aside in the law, where the judge may, depending on his own

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ruling depending on how he sees the seriousness of a particular crime, he may prescribe of any particular punishment. Now,

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of course, these punishments cannot reach the level of those of the produce themselves, the ones which are fixed by a law, but in terms of the application of Islamic law, because

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when we're going to judge, is this applicable? is it relevant, is it beneficial, etc, we have to look to see what are the effects? What you find is that during the Ottoman administration of the Arabian Peninsula, the Hadoop punishments were discontinued. But by the late 20s, after the Saudi regime reintroduce them, the crime rates had fell noticeably. And this has continued basically, in Saudi Arabia, you find the level of crime is quite low. If you compare, you know, 8 million people in in England in the Saudi Arabia, compare them to 8 million people in New York City, and you compare a pair that crime rates. I mean, it's like night and day, the number of murders which take

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place, you know, for execution, most people are executed for murder, you know, which is for quickly, surely, shortly after the crime is actually committed. You know, the number of people who are executed murders in Saudi Arabia in a year, it'd be equivalent to those who are murders which take place in New York City in a week.

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I mean, we're talking about

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vast differences, whether it is robbery theft, you know, the variety of different crimes, you find that the, the difference is is is enormous.

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There's also another example, which was shown within six months after the Sharia, as Islamic law was introduced in the Sudan.

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And

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at the time, Jonathan Amiri the ruler, the president, he had released 13,000 prisoners,

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decreeing that Islamic law was not applied in their sentencing. So there are some 13,000 prisoners received released, in spite of all that, within six months of the application of Sharia, they found that crime had decreased by over 40%.

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This is the proof

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application of Islamic law does have a deterrent effect in the society itself.

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What we find, also, with regards to murder, I mean, there's a

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different approach to it in

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the western system, where murder is left up to the state to decide what do we do with this person who's committed murder, whereas from the Islamic point of view, it's an issue of the rights of human beings, where they have the right to decide if this person is to be left free, then it's those people who have suffered the family that has suffered the loss. They're the ones who have the right to decide in this regard. Some Western

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criminologists you know, have challenged and I've spoken against this change in attitude. For example, Goodhart in 1953, it stated, retribution and punishment is an expression of the community's disapproval of crime. And if this retribution is not given recognition, then the disapproval may also disappear, very wise statement. And

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it indicates is challenging the trend which was taking place in the West, and other villages, Leo page had written law exists for the protection of the community, it is not necessary to show that capital punishment is an absolute preventative of murder, or even that it is only a deterrent. If it can be shown that it is more effective as a deterrent than any other punishment, then I shall be satisfied that it should be retained, to hold otherwise, is surely to forget the innocent victims of murder in the interest of their murderers. And I have no doubt at all, that the fear of the gallows is the most powerful of all deterrence. This is the these are the reflections of some Western

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leaders, you know, in the face of this change in attitude in the west towards punishing murders. And, in fact, over the last 30 years, 20, especially the last 20 years, the the application of capital punishment has been reintroduced into most of the states or many of the states in the United States. And, you know, as it's picking up, we find, again, a new wave, which is spearheaded by the Pope and others, you know, against the application of

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capital punishment.

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From this American perspective,

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where capital punishment

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is applied in a somewhat arbitrary way, there is some validity to objections raised against it,

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when studies were done back in the 60s, and it showed that black Americans seem to be sentenced to death, for crimes that white Americans were not, they both commit the same crime. But the chances of a black American being sentenced to death was far greater. So many of them were on death row, greatly disproportionate to their presence in the society, the number of crimes which they committed, you know, they, the civil rights movement, challenge, this issue of application of the death penalty, because it seemed to be unfair. And and to some degree, this kind of

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practice continues. So there is a an element of reason here for not applying it, but not applying it in this unjust way. But the issue of not applying it to somebody who murders is in fact merely an encouragement to murder in the society.

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Of course, when Islamic law is applied, you know, in any given society, it does not stop, or they call crimes of passion, a person out of, you know, just exploding on an instant killed somebody. I mean, no matter what laws you set up, it's not going to stop that person that you know who explodes and does that, but it will stop the premeditated murders, it will cut it down. Because when a person is making his plots and his plans, and he thinks of the consequences, if he thinks the consequences are well, okay, maybe I'll have to go to jail for a few years. If they catch me.

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That's one thing. But now they think that, hey, I will lose my life, if they catch me. And that's another thing.

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And people who plan, do think these things over. And I'm sure that knowing that your life will be taken will cause people to think a lot of people to think twice, thrice, etc.

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But as I said, from the Islamic perspective, when it comes to murder and how the law is applied,

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there are options. It is not automatic execution, but execution is there. That's the first option. But then there is also dia, that is where the family accepts that the person pays a

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compensation for the loss or for the death of that person, then this option is there, and as well as the person may be pardoned, but this is left up to the family to those who suffer the loss. This is not up to the state to make this kind of decision.

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So where are the family members agreed to let somebody off without any punishment, they can do it

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without payment of any fine, they can do it. It's up to them. And this is to allow for circumstances which may happen in the family where the family knows full well, you know that the father or the son or whatever was involved in this crime, you know, deserved it, or they had created a circumstance which precipitated this, maybe somebody a relative or some friend or a neighbor, whatever ended up killing somebody who was goaded into it or something like this. They're the ones who can make that kind of decision. Whereas as a general rule, the law will be applied

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swiftly once the evidence is there, but again, the evidence has to be 100%. That cannot be doubt. It's not just a question of fingerprints, or a murder weapon. There has to be evidence which is incontrovertible. It cannot be you know, you cannot find out later on Oh, this was a mistake. No, the law is only applied when it is absolutely sure as the problems as elements said, leave aside the produce the fixed laws, whenever there is doubt.

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This is as far as we can go in this segment of the program, the viewers and we hope to continue looking into some issues of the punishments in Islamic law in our coming segments. Thank you for being with us, and I bid you farewell Salaam Alaykum warahmatullahi wabarakatuh