Tuesday, July 01, 2008

Chief Justice of India praises Islamic penal code as deterrent against crime

From Mohammed Siddique, TwoCircles.net

Hyderabad: The Chief Justice of India K G Balakrishnan has hailed the Islamic penal code saying they were effective in deterrence against the criminal offenders. Addressing a workshop on "Growing Crimes – deterrent punishment : search for appropriate theory of punishment", organized by the organization of Retired Judges and NALSAR University at the Andhra Pradesh High Court Balakrishnan gave the example of Gulf countries. "People say the laws in those countries were harsh but it is a fact that because of the harsh punishments, the crime rate in those countries is very low". Women can move around even at midnight with out any fear, he said. Even traffic rules were so strict that there were very few traffic accidents in those countries.

He recalled that till 1857, Islamic penal system was in force in India and the law and order situation in the country was very good. "The introduction of Indian Penal Code was a good move but the law and order situation in the country did not remain the same", Chief Justice said.

Pointing out that in contrast to the Gulf countries, India was a democratic country. "But in our country neither the women can move around with out fear nor there is any respect for the traffic rules", he said.

Pointing out that there were 8000 judges in the country to deal with the criminal offences, the Chief Justice expressed his concern over the huge disparity in sentences awarded by different judges for the similar crimes. The disparity is so huge that they range from six months to life imprisonment for the crimes of the similar nature, he said.

He was also unhappy that the system of granting bails was not working properly and some bail petitions were pending in the courts for fifteen years. "As a results jail in the country were full of under trial prisoners".

Justice AR Lakshmanan, chairman, Law Commission of India said that 56 lakh criminal cases were pending in the courts in the country.

Source

2 comments:

Anonymous said...

salams

i have one question which i hope you can answer as soon as possible.

the khaleef rules according to quran and sunnah, but is there such a thing as an administrative law in islam ie building permits, traffic regulations etc?

does one draw a distinction btw a legislative and admin law - can you provide an answer if possible, jazakalahair

Islamic Revival said...

Assalam wa alaikum

Islam has left the administrative regulations for the Khaleefah to decide, he can choose whatever is the best and most efficient from the permitted styles. Once he has adopted these rules then they become binding upon the citizens as the adoption of the Khaleefah is binding. The following is an explanation regarding the administrative system from the book 'Organisations (Apparatus) of the Khilafah state' by Hizb ut-Tahrir:

Administrative System (People's Welfare)

Running the government's business and the people’s affairs is carried out by offices, departments and administrations, whose task is to ensure the management of the State's business and the discharge of the people’s interests. Each office (Maslaha) will be headed by a general manager, and each department (Da'ira) and administration (Idara) will be headed by a director who will run its affairs and be directly responsible for it. These directors will be answerable to the general director in charge of their offices, departments or administrations from a professional side, and answerable to the Wali and the ‘Amil with regards to abiding by the rules and general regulations.

The Messenger of Allah (saw) used to discharge the affairs and appoint secretaries for the administration. Thus, the Messenger (saw) used to discharge the affairs of the people in Al-Madinah, solve their problems and organise their relations, secure their needs and direct them to that what suited them. All of these matters are of the administration issues that ease their life without problems or complication.

In matters of education, The Messenger of Allah (saw) made the ransom of the unbelieving prisoners of war teaching ten Muslim children, where ransom was in return of the spoils, which is a property of the Muslims. Thus, securing education is from the interests of the Muslims.

In healthcare, the Messenger of Allah (saw) was given a doctor as a gift, but he assigned him to the Muslims. The fact that the Messenger of Allah (saw) received a gift and he did not use it, nor did he take it, rather assigned it to the Muslims is evidence that healthcare is one of the interests of the Muslims.

In regards to employment, the Messenger of Allah (saw) directed a man to buy a robe and then an axe and collect firewood and sell to the people instead of begging from them, where somebody might give him while another would resist. Thus, solving the problems of work was also one of the Muslims' interests. Ahmad reported a hadith and Al-Tirmidhi approved it, he said:

« أن رجلاً من الأنصار أتى النبي صلى الله عليه وسلم فسأله، فقال: أما في بيتك شيء؟ قال: بلى... قال: ائتني بهما، فأتاه بهما، فأخذهما رسول الله صلى الله عليه وسلم= بيده فقال: من يشتري هذين؟... قال رجل: أنا آخذهما بدرهمين، فأعطاهما إياه وأخذ الدرهمين، فأعطاهما للأنصاري وقال: اشترِ بأحدهما فانبذه إلى أهلك، واشترِ بالآخر قدوماً فائتني به، فأتاه به، فشد فيه رسول الله صلى الله عليه وسلم عوداً بيده ثم قال: اذهبْ واحتطبْ وبعْ، فلا أرينك خمسة عشر يوماً، ففعل، فجاء وقد أصاب عشرة دراهم... »

"A man from the Ansar came to the prophet (saw) and asked him (sadaqah): The Messenger (saw) said: Don't you have any thing in your house? He said: Yes. He said: Bring them to me. He brought them to him. The Messenger of Allah (saw) took them in his hand, and said: Who would buy these two? A man said: I would take them for two dirhams. He gave them to him and took the two dirhams. He gave them to the Ansari and said: Buy food with one and give it to your family and buy with the other an axe and bring it to me. He brought it to him. Then he tied with his hand a rod to it and said: Go and collect firewood and sell, and do not let me see you for fifteen days. He did that, and came back having ten dirhams".

Al-Bukhari reported that the Messenger of Allah (saw) said:

« لأن يأخذ أحدكم أحبلة، فيأتي بحزمة من حطب على ظهره، فيبيعها، فيكف بها وجهه، خيراً له من أن يسأل الناس، أعطوه أو منعوه »

"It is better for any one of you to take a rope and bring a bundle of firewood on his back, and sell it, and thus protect with it his face (of begging) than to beg the people, who might give him or reject."

In the issue of roads, the Messenger of Allah (saw) organised the roads at his time by making the road of seven arms in case of dispute. Al-Bukhari narrated from Abu Hurairah:

« قضى النبي صلى الله عليه وسلم إذا تشاجروا في الطريق الميتاء بسبعة أذرع »

"The prophet (saw) decided in case there was a dispute the road would be of seven arms".

The narration by Muslim says:

« إذا اختلفتم في الطريق جعل عرضه سبعة أذرع »

"If you had dispute over the road make its width seven arms".

This was administrative organisation at that time, and if there was need for wider than that it is allowed according to the opinion of Shafi'i.

The Messenger of Allah (saw) has also prevented transgression against the road. Tabarani reported in Al-Sagheer:

« من أخذ من طريق المسلمين شبراً طوقه الله يوم القيامة من سبع أراضين »

"Whoever took of the road of Muslims a hand span, Allah would encircle him from seven earths on the Day of Judgement."

In matter of irrigation, Al-Zubayr disputed with a man from Al-Ansar regarding irrigating from a stream of water flowing in their lands. The Messenger of Allah (saw) said:

« اسقِ يا زبير ثم أرسل الماء إلى جارك »

"O Zubayr irrigate and then send the water to your neighbour".

There is agreement over the hadith, and the words are from Muslim.

Thus, the Messenger of Allah (saw) used to run the affairs of the Muslims and solve their problems easily and simply, without complication. He would seek the help of some Sahabah in conducting that, thus the managing of the affairs of the people is an organisation entrusted with the Khaleefah or he appoints over it a competent manager who takes charge of it. This is what we adopt so as to reduce the burden of the Khaleefah, particularly since the affairs of the people have increased and branched out. Accordingly, there will be an organisation for the people's affairs entrusted with a competent manager, and run by styles and means that facilitate for the citizens their living, and provide to them the necessary services without complication, rather easily and simply.

This system consists of administrations, departments and directorates. The administration is the overall management of any government affair, such as citizenship, transportations, money, coinage, education, health, agriculture, employment, roads and others. This administration will undertake the management of its own affairs and all the departments and directorates under its control. The department will run their own affairs and those of the directorates under its control. The directorate will also run its own affairs and the affairs of all the sections and divisions under its control.

The purpose of establishing these administrations, departments and directorates is to manage the State's affairs and to discharge the people's interests.

In order to guarantee the smooth running of these administrations, departments and directorates, directors must be appointed to take charge of them. For each administration, a general director will be appointed to take direct charge of it and to supervise all the departments and directorates that come under it. For each department and for each directorate a manager is appointed to be directly in charge of his department or directorate and to be responsible for the sections and divisions affiliated to it.

The Administrative System is a Style and Not Ruling

The administrative system is a style used to perform a task, and is also one of the means used for that, so it does not require specific evidence. It is sufficient for it to have general evidence that indicates its origin. It would be wrong to say that these styles are human actions, which should therefore be conducted according to the divine rules. This is because the evidence for these actions has come in regards to their origin in a general form, thus it includes all actions that branch out from that origin, unless there is divine evidence that relates to a subsidiary action, in the case of which the action must follow that evidence. For instance Allah (swt) says:

وَآتُوا الزَّكَاة

"And pay out the Zakat" [TMQ 73:20]

Which is a general evidence. Then the evidences came regarding the subsidiary actions which branched out from it, such as the amount of Nisab, the Zakat collectors and the categories of things from which Zakat is to be taken. All these are actions derived from "And pay out the Zakat". There are no evidences to be found about the manner by which the Zakat collectors have to collect the Zakat; for example do they go riding or walking? Do they hire other employees to help them or not? Do they collect it according to records? Do they have to establish headquarters where they would all meet? Would they have warehouses where they would store everything they had collected? Would these houses be underground or built like grain houses? Would the cash Zakat be collected in bags or coffers? All these actions and the like are, in fact, subsidiary actions originating from "And pay out the Zakat." They are all covered by the general evidence as there are no specific evidences for them; and this is the case with all the styles. Thus, the style is an action subsidiary to an action i.e. the origin that has general evidence. Therefore, the style does not require evidence, because the evidence of its origin serves as evidence for it as well.

Therefore, the administrative styles can be taken from any system unless there is a specific text that prevents taking a particular administrative style. Otherwise, it is allowed to take the administrative styles if they were suitable to run the work of the administrative organisations and to discharge the affairs of the people. This is because the administrative style is not a divine rule that requires divine evidence. This is the reason of that Umar (ra) took the style of the deewan for recording the names of the army and the citizens for the sake of distributing the funds to them, which come from the public & the state properties, in form of grants or salaries.

Abid Ibn Yahya reported on the authority of Al-Harith Ibn Nufayl that ’Umar consulted the Muslims about the recording of Dawawin, and Ali Ibn Abi Talib suggested: ‘Divide all the funds you collect each year and do not keep any of them.’ ’Uthman Ibn ’Affan said: ‘I see that there are a lot of funds being distributed amongst people, and if they are not counted in order to know who has taken and who has not, I fear that the matter could get out of hand.’ Upon this Al-Waleed Ibn Hisham Ibn-l-Mughira said: ‘I was in Ash-Sham and I noticed that its kings had introduced a Deewan and recruited soldiers, so why don't you do the same?’ ‘Umar took his advice and summoned ’Aqeel Ibn Abi Talib and Makhrama Ibn Nufayl and Jubayr Ibn Mat'am who were young men from Quraysh and said: ‘Prepare a house to house census.’

When Islam reached Iraq, the Deewan of payments and funds collection continued as before. The Deewan of Ash-Sham was in Latin for it had been part of the Roman Empire, and the Deewan of Iraq was in Persian for it had been part of the Persian Empire. In the time of ’Abdul Malik Ibn Marwan the Deewan of Ash-Sham was converted to Arabic, i.e.. in the year 81 AH. Several Dawawin were then set up according to necessity and depending on the need for them in running the people's interests. Dawawin for the armed forces were introduced for registration and grant purposes, and others were introduced to record the fees and claims of all transactions. Another Deewan was introduced for the ‘Amils and Walis to record each appointment and each removal and other Dawawin were used in the treasury (Baiyt-ul-Mal) to record revenues and expenses and so on. The introduction of a Deewan was according to the need for it, and its style varied over the years due to the difference in styles and means.

A chief was appointed for each Deewan along with other employees, and in some cases the chief was allowed to appoint the employees himself, and they were sometimes appointed for him.

A Deewan will thus be set up according to need, along with the styles and means that would help discharging that need. It is permitted to have different styles and means according to the area, or Wilayah or country.

With regards to the responsibility of such civil servants, they are hired employees and at the same time citizens. At a professional level they are answerable to their own directorate manager, and as citizens they are answerable to the rulers whether these are Walis, the assistants or the Khaleefah. They have to abide by the Shari'ah rules and the administrative systems.

The Policy of Administration of the Interests

The policy of administration of the interests is based on the simplicity of the system, speed in processing the tasks and the competence of the administrators. This is taken from the nature of processing the interest, for the person who requires a service needs to have it quickly and efficiently processed. The Messenger of Allah (saw) said:

« إن الله كتب الإحسان في كل شيء، فإذا قتلتم فأحسنوا القِتْلَة، وإذا ذبحتم فأحسنوا الذبح …»

"Verily Allah has enjoined the perfection to everything; so when you kill, do so in a good way and when you slaughter, slaughter in a good way" narrated by Muslim from Shaddad ibn Aws.

Therefore, the perfection in executing the actions is ordered by the Shari'ah. To achieve this, the administration should observe three qualities. 1, the simplicity of the system which would lead to the ease of processing, whereas complication would lead to hardship. 2, the speed in processing the transactions which would spare people of unnecessary delay. 3, the ability and competence of the employees. This is required to perfect the task and is even required for the performance of the task itself.

ws