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Should the Islamic punishment for adultery be reconsidered?
By Syed Shahabuddin

In October 2001, a Muslim woman named Safiya was sentenced to death by stoning (rajm) by the Islamic Sharia Court at Sikota in North Nigeria. She got a reprieve because the Islamic Appeal Court ruled in March, 2002 that the act of adultery was committed before it was made an illegal act.

In August, 2002, a 30-year-old Muslim widow named Amina Lawal has been sentenced to Rajm by the Islamic Shariah Court at Bakori in State of Katsina, also in North Nigeria. Amina had an 8 month old daughter. The Appeal Court rejected her appeal but stayed the execution of the sentence till the end of the weaning period. Ahmadu Ibrahim and Fatima Usman convicted of adultery also stand sentenced to death by stoning. They are also awaiting the Order of the Appellate Court.

Already the sentences have evoked worldwide condemnation and protest. One can easily imagine world reaction as and when the sentences are carried out and receive worldwide publicity in the electronic media.

No doubt only a few Muslim countries have this law on their books, perhaps only Afghanistan, Iran, Nigeria and Saudi Arabia but the attitude of millions of people towards Islam perhaps forever will be determined by the sight and sound of the TV coverage and the printed words in the newspapers.

It, therefore, becomes the duty of all Muslims and specially the ulama (Religious Scholars) everywhere to examine whether Islam indeed prescribes this punishment for zena i.e. unlawful sexual intercourse between a man and a woman.

Islam stands for sexual purity and considers all sexual intercourse outside the marital bond as sinful. Thus it makes no distinction between adultery and formication or discriminates between the two situations: both parties are unmarried or one of the parties or both are married.

The Quran is the ultimate source of the Shariah because Allah has guaranteed its integrity. The Quran prescribes flogging. It does not even mention the word 'stoning' or 'death by stoning' (Rajm). Verse 24-2 says:

"The woman and the man guilty of adultery or fornication flog each of them".

So how has this pre-Islamic punishment crept into Islam? Muslim jurists think that the Quranic punishment in Verse 24(2), applies only to fornication and that in the case of adultery, the Sunnah of the Prophet prescribes stoning to death.

The most accepted collection of Hadith Sahih al Bukhari has 4 entries under 3829, 8804, 8805 and 8824 which refer to stoning by death. The case under 4829 involved Jews who were stoned to death in accordance with the Law of the Torah. 8805 says: "A married man from the tribe of Bani Aslam who had committed illegal sexual intercourse and bore witnesses four times against himself was ordered by the Prophet (s.a.s.) to be stoned to death". 8804 and 8824 overlap each other. And in both the narrator acknowledges his ignorance of whether the stoning to death was carried out before or after the revelation of Quranic Verse 24-2.

The Hadith is very clear but is silent on the question whether stoning to death was ordered by the Prophet before or after the revelation of the Verse 24-2.

It is well known that the Quran was revealed in stages over 23 years. Until revelation on a specific point was received by the Prophet, he followed the law of Moses or the Traditions of Abraham but once a revelation was received, there was no question of his substituting it by his own will or by the law of Moses. In any case, there is no record in Sahih al Bukhari or any other accepted compendium of the Traditions of the Holy Prophet of another Rajm (death by stoning) carried out under the command of the Prophet.

Some scholars support 'Rajm' by attributing a statement to the second Caliph Omar that a revelation on the subject had been received but had been lost. It is generally accepted that the Quran was compiled in its present form during the period of the third Caliph Othman. Some scholars maintain that the compilation was already available during the life-time of the Prophet or during the Caliphate of the first Caliph Abu Bakr.

Hence there is an obvious discrepancy and the statement attributed to Caliph Omar needs to be rejected for being prima facie erroneous. And also because it is the firm faith of the Muslims that the Quran includes every word that was revealed by Allah to the Prophet and not a word has been lost or added to the revelation.

Apart from the brutality of the 'Rajm', repugnant to conscience, here is an element of gender injustice in the operation of the traditional law which allows the male partner to get scot-free, even if he has coerced and raped the female. If the woman lodges a complaint, her complaint is taken as a testimony against herself and, therefore, amounts to admission and requires no further evidence while it is necessary to get 4 witnesses against the man. Also the woman may bear a child, as in Amina's case, which is admitted as evidence of zena against the woman. Man suffers from no such disability.

Amina has, however, named the man who has fathered her daughter. But the Shariah Court is too conservative to apply the genetic test! One recalls in this connection the case in Pakistan when a blind girl was raped but punished on the basis of her own complaint!

Another aspect is the relative guilt and the degree of culpability. Flogging can be more or less but 'Rajm' becomes an ultimate, irreversible punishment. In the multi-religious world we live in, there may be cases of criminal liaison between a Muslim man and a non-Muslim woman or vice-versa. This would raise a serious problem relating to conflict of laws. Shall both be dealt with under a common law or after being found guilty of the alleged misdemeanour, shall each be sentenced according to the law applicable to him or her? In a non-Muslim state like the UK or India, which has a common criminal law, both shall be sentenced under the same law. But it is not clear what will be the case in an Islamic State. The Islamic family law does not apply to the non-Muslims. Does the criminal law apply?

This raises another interesting question: In many non-Muslim States, Muslim citizens are demanding recognition or promulgation of Islamic family law. Anti-Muslim forces in rebuttal club the civil with the criminal and demand that if Muslims are allowed exemption from common civil code and the Islamic family law, then they should also be subject to the Islamic criminal law as well.

In several Muslim countries there is public pressure for the promulgation of the Shariah Law. In Nigeria, which is a federal State, some constituent states which have Muslim majority have adopted the Shariah law including the Criminal Law but the federal government, though Nigeria as a whole has a Muslim majority, has declared that it shall block execution by stoning of persons condemned by Shariah Courts. But that may lead to a constitutional crisis, if the federal supreme Court overrules the judgement or the federal parliament nullifies it by adopting a general or particular law or the federal government revokes it on a mercy petition or simply imposes its fiat. In Pakistan, the Federal Shariat Council has decided to reconsider the Hudood after the recent gangrape of a woman under the orders of a tribunal council. Iran is also reported to have 'signalled its willingness to consider an alternative punishment' after a series of visiting dignitaries from Europe raised the question.

A possible course can be for the eminent jurists from the Muslim world to reconsider the question of permissibility of 'Rajm' on the sound basis that since a Hadith may be unauthentic, it cannot overrule a clear mandate of the Quran as the Prophet could not possibly have violated the mandate of the Quran after the revelation of the relevant verse.

Since there is no equivalent in Islam of the Synod of the Bishop of the Catholic Church or the Dharam Sansad of the VHP in India to review questions of Islamic law, the nearest equivalent, the International Ifta Academy associated with the Rabita al Alam al Islami, Mecca, though not fully representative of all sects and denominations, may have to undertake the task.

The real challenge to Islam in the 21st Century is to rewrite the fiqh but for this it has to throw up a genius who can combine the knowledge and wisdom of the five acknowledged Imams (Abu Hanifa, Shafii, Malik, Hanbal and Jafar Sadiq), to consider the new questions that have arisen, since the gates of Ijtihad were closed in the 10th Century, and formulate answers in the light of the Quran and the authoritative Traditions of the Prophet which are the only two pillars on which the Shariah rests.

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