(Islamic Perspective)
Musdah Mulia[1]
Islam Respects Universal Human Rights
Although the term Human Rights was unknown
at the time Islam was introduced to the Arab people in the 7th century AD,
Islam was already teaching the principles of respecting human beings and
humanity. The essence of the teachings of Islam is tauhid, that there is
only one creator, God. Aside from God, there are only beings. That is why only
God shall be worshipped, praised and revered as well as be the One on whom we
shall put all our hopes and needs.
Among God’s creations, human beings are the
most perfect (Q.S. al-Isra’, 17:70) and therefore other beings should respect
them as a sign of devotion to the Divine Creator. Humans are beings with
dignity and must be respected without prejudice to race, ethnic origins,
religion, color, language, gender or other primordial constraints. What
distinguishes one human being from another is only his/her quality of faith
(Q.S. al-Hujurat 49:13) and when it comes to the matter of faith only God
Almighty has the authority to judge. A true tauhid view will direct a
person towards a true relationship with God as well as with human beings or hablun
minallah and hablun minannas.
One
form of respect for human beings is by safeguarding their subsistence, their
lives should not be taken (QS. 27:33; 5:32), also they should not, for any
reason, suffer physical and psychological pain (QS. 5:45). All human beings
must have protection from acts of discrimination, exploitation, and violence
without exception. The hadith of the Prophet as narrated by Bukhari
elaborates explicitly: “For your life, your property, and your dignity are
sacred, as sacred as this day (haji wada/ the last haj pilgrimage by the
Prophet’) in this month, and this land of yours until you shall meet
with your God in the end of days (HR. Bukhari).”
But going further than merely rhetoric, the
Prophet had already implemented the principles of equality and respect for
human beings among the very heterogenic people of Madinah as was set out in the
Madinah Charter. The charter basically underlined 5 main basis for life as a
people and as a nation, namely the principle of brotherhood in Islam, all Muslims from different
backgrounds are brothers; the principle of helping and protecting one another,
the people of Madinah with their various race, religions, and languages must
help each other in facing their enemies, the principle of protecting the
ill-treated, the principle of counseling one another, and the principle of
freedom of religion.
Those principles are based on the teachings
of Islam, such as QS. Al-Baqarah, 2:256 (there shall be no coercion in
practicing religion); al-Kafirun, 1-6 (recognition of religious
pluralism); Yunus, 99 (prohibition of forcing others to embrace Islam); Ali
Imran, 64 (urging people of the book to find a concession and reaching a
converging point / kalimatun sawa’); and al-Mumtahanah, 8-9
(counsel to do good, to be just, and helping non-Muslims who do are not hostile
to them and who do not expel them).
Unfortunately, the teachings of Islam that uphold values of humanity,
pluralism, and inclusivism have not been widely disseminated among the people
so it is not surprising that the face of the Muslim community in various
regions appear more menacing and hostile, very different from the portrait
generally shown by Muslims of the earlier generation, particularly during the
life of the Prophet and Khulafa Rasyidin, who were very tolerant, full of amity
and brotherhood.
In order to assure that the teachings of
Islam accommodate the wellbeing of humans, Iman al-Ghazalo (died 1111 AD) tried
to formulate the basic objective of Islam’s syaria or what is known as maqashid
al-syari’ah, which is, first, to preserve the soul or preserve one’s
life (hifz al-nafs). For how can
a human being do good deeds without being alive. Second, to preserve the freedom
of opinion and expression (hifz al-aql / to preserve the mind). Third,
to preserve religion (hifz ad-din).
Fourth, to ensure reproductive rights so
that human existence is preserved. Fifth, to ensure property rights (right to
wealth), which is the right to employment at fair wages, as well as the right
to have guarantee of protection and welfare. Those five basic rights are what
later became known as al-kulliyah al-khamsah. It means that all
diversities in humans are enhanced to protect those five basic rights.
Therefore, when we find religious teachings
that are in contradiction to the preservation of those basic rights, those
teachings must be revised and reinterpreted in order to respond to the demands
of achieving wellbeing for humans. On the basis of the formulation of those
five basic rights, it is evident how the teachings of Islam revealed during the
seventh century are very appreciative and accommodative of Basic Human Rights
values as is set out in the Universal Declaration drawn up during this 20th
century.
The
Right to Live is Human Rights
The right to live and the eradication of
all forms of the death penalty is declared, among others, in the Universal
Declaration of Human Rights (1948), the Convention for the Protection of Human
Rights and Fundamental Freedoms (1950), and the Charter of Fundamental Rights
of the European Union (2002). In the latter mentioned instrument of Basic
Rights, it is stated: Article 2 (1) Everyone has the right to live: (2) No one shall
be condemned to the death penalty, or executed. Article 19: (1) Collective
expulsions are prohibited; (2) No one may be removed, expelled or extradited to
a state where there is a serious risk that he or she would be subjected to the
death penalty, torture or other inhumane or degrading treatment or punishment.
The Basic Principles of Punishment in Islam
Islamic teaching is not compatible with the
death penalty. Why? Because, there at least four basic principles of punishment
in Islam.
First of all, punishment should be
universal in nature, in that it can stop people from perpetrating a crime, it
can make criminals repent and teach them a lesson, and act as a deterrent to
others not to carry out criminal acts. In this matter, the scholars of Islamic criminal
law agree that punishment is a deterring measure before crime is performed as
well a preventive step, for the perpetrator as well as for other people, when
the criminal act has been carried out.
Secondly, the enforcement of those
punishment measures should be in accordance with the need of the people and
benefit them. If, for the sake of the people’s wellbeing, more severe
punishments are needed, then the punishments should be made more stringent; on
the other hand, if more lenient punishments benefit the people, then the
punishment should be made lighter. If,
for the good of the people and in order to maintain stability, a criminal must
be executed or jailed, then such a criminal should be executed or imprisoned
for life, so long as he does not repent
or try to improve himself. That is why such a punishment should always
take into consideration the benefit for the people, and in this case, the sense
of justice.
Third, all forms of punishment that can
assure and attain personal benefit and peace for the people are punishments
that have been stipulated and must thus be carried out.
Fourth, punishments in Islam are not a form
of retaliation, but more as measures of corrective steps towards a criminal
offender. The punishments stipulated by Islam in all their various forms are in
proportion to the crime perpetrated. In regards to this, ibn Taimiyah (a Mazhab
Hanbali fiqh expert) said: "Punishments are stipulated as God’s
benevolence for all His worshippers, derived from God’s grace for his devotees
and from His will to do the best for them.
That is why punishments in Islam should always
be in accordance with God’s grace and
goodwill, just like a father would teach his child or like a doctor would treat
his patient. As a result, different punishments should be imposed on different
criminal offenders, in proportion to
the different crimes perpetrated.
Abdul Kadir Audah (died 1373 H/1945 M), an
expert on Islamic criminal law from Egypt, says that the principle of
punishments in Islam may be concluded as two basic substances, which is to
address all forms of criminal acts by disregarding the perpetrator and
improving the perpetrator’s attitude as well as addressing all forms of
criminal acts. Addressing all forms of
criminal acts is aimed at preserving stability in the community, while
addressing the perpetrator has the objective to correct the attitude and
behavior of the perpetrator. Thus, he says, punishment for all forms of
criminal acts perpetrated must be for the benefit and peace of the people who
desire it.
The
need to abolish the Death Penalty
Some experts reveal that the death penalty
originates from religious sacred sacrifice rituals, where human beings are
sacrificed to appease the gods. Another view says that the origin of the death
penalty was rooted in the desire for revenge or vendettas passed down through
generations in dynasties. The types of ancient and heinous punishments are no
longer relevant for people who are becoming more and more civilized and have
learned to respect human rights.
There are at least eight reasons why the
death penalty should be abolished.
First, the death penalty is in contradiction with the
essence of all religious teachings and faiths that venerate the importance of
preserving life as God the Creator’s greatest blessing. In Islam, for example,
all the teachings uphold the dignity of human beings as the God’s most perfect
and best creatures. Death penalties is an affront to the Greatness and
Mightiness of God. Not one person has the right to end another person’s life,
only God the Creator has that right. He gave life and He should be the only One to take life. Not other human
beings or creatures. For whatever reason and motivation. Religious teachings
should be accommodative towards humanitarian values. Religion should be totally
pro-humanity.
Second, the death penalty is in contradiction with values of
democracy. An intense study into the background and use of the death penalty in
the world shows that at present, the death penalty is imposed in less democratic
countries. Therefore we need to understand why most democratic nations have
abolished the death penalty.
Third, the death penalty is in contradiction with the
principles of human rights. The execution of the death penalty always reflect a
negation of a human being’s right to love, a non-derogable human right in life.
The death penalty degrades the dignity of human beings.
Fourth, the death penalty is merely a form of aggression.
History has long shown the death penalty has been used as a tool for aggression
against critical, pro-democracy groups who have been branded as rebels, all for
the sake of maintaining power. The concrete example of this is the death
penalty imposed on rebels in Hungary, Taiwan, Somalia and Suriah.
Fifth, the death penalty is only a form of political
revenge. Look at what happened to Zulfikar Ali Bhutto in Pakistan (executed on
April 4, 1979 on a conviction of having murdered his political rival). That was
clearly a political excuse. Not a measure to establish justice and prosperity.
Sixth, the death penalty is too often imposed on persons not
proven guilty. The execution of the death penalty is often carried out hastily,
without sufficient proof.
Seventh, the death penalty is often used as the most effective
way to conceal tracks in a legal case or obliterate evidence in an intelligence case.
Eighth, the death penalty apparently does not lower the number
of criminal offenders or deter them. An intense study in a number of countries
that still impose the death penalty shows that the crime rate in those
countries rise significantly every year.
Latest data show promising symptoms. There
are more and more countries that have abolished the death penalty. Some do it
gradually, while others do it at once. A report in 2000 notes that 74 nations
have abolished the death penalty for all forms of crime, 11 countries abolish
it for purely criminal acts, 38 nations abolish the death penalty in practice,
and the remaining 71 countries still maintain the death penalty.
The
Solution: Develop a Law-abiding Society
Then, what should be done? I would like to propose the solution as
follows:
1.
Improve the quality of
education for the people though cheap, quality and affordable education for all
the people, particularly for those from the low-income group;
2.
Improve the welfare of the
people by providing as many job opportunities as possible and create economic
policies that are pro-poor;
3.
Improve the quality of health
for the people by providing health facilities and infrastructure that are help
the poor and isolated communities;
4.
Improve the quality of the
judicial system through revisions of discriminative laws, recruitment of
judiciary officials who are qualified and professional, as well as carry out
bureaucratic and administrative judiciary reforms so that justice and truth is
upheld.
5.
Enhance a sense of justice
for the people through dissemination and internalization of values of decency
and religious teachings that are accommodative towards humanitarian values. Not
religious teachings that sow the seeds of hatred for one another.
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