Crime Rates: The Case AGAINST Hudud & Capital Punishment

(This is the English adaptation of my previous post in Dhivehi language under the title, 'Shari'ah, Death Penalty and the Maldives. It is not a direct translation. Additional information have been provided based on the comments I received on the Dhivehi language article.)

DISCLAIMER:

1. Yes, the title was meant to be provocative: it was meant to provoke thought and open-mindedness. Not a string of insults and verbal abuses, or calls for me to repent. Please read this article before you reach a verdict on the title! 
2. I AM A MUSLIM. I believe in Islam (the whole of it, and not bits and pieces of it). And I am NOT an apologist Muslim either, who believes in the 'convenient' parts of Islam and is undecided on what is perceived to be 'inconvenient'.
3. This article does NOT address the issue of Hudud in general. It addresses the issue with a backdrop of a certain time, a certain place, under certain circumstances.

The makers of the Constitution of the Republic of Maldives - passed and gazzeted in 2008 - gave full recognition to the Islamic heritage and culture of the island nation when they made Islamic principles a yardstick against which the constitutionality and validity of all Maldivian laws and regulations ought to be measured (Article 10(b) of the Constitution). This being the case, it cannot be anything but shameful that 'implementing Islamic Shari'ah' - and it ought to be noted that in this context, 'Islamic Shari'ah' stands for , and ONLY for, corporal punishments - has become a mere mantra chanted - by masses and leaders alike - in the face of one social or legal calamity or the other that hits the nation; a marketing slogan to shout out in order to garner support for one political stand or the other.

Time and time again in the Maldives - along side periodical highs in crime rates, or upon the discovery of a particularly gruesome crime - calls arise to 'implement Islamic Shari'ah' with special emphasis on the death penalty. The idea among Maldivians seems to be something like this: if you 'implement Islamic Shari'ah' on just one gangbanger, just one murderer, just one child abuser, just one rapist, JUST ONE, no one else will dare to even think of committing such a horrendous crime. Many of the Islamic scholars in Maldives, too - wrongly, in my humble opinion - give similar meaning to the deterrent factor in Islamically-prescribed punishments of Hudud stating in sermon after sermon and fatwa after fatwa, that the main problem in Maldivian society is that we don't 'implement Islamic Shari'ah' and don't treat criminals harshly enough. 

What has led me to speak out on this issue at this juncture is that a bill has entered the People's Majlis, for the third time, with the pretext that the death penalty is the one and only God-given solution for this country drowning in its own blood. Every time an MP - first one belonging to the then-ruling MDP, then an independent, now one from PPM - proposed to compel the government to implement the death penalty, it was following an 'inspiration' that 'Islamic Shari'ah' is the lone solution to the country's crime problem.

To take a look at the contents of the bill proposed by Mr. Ahmed Mahloof, member of Galolhu Dhekunu constituency, the bill is an amendment to Section 21 of the Clemency Act, which currently allows the President to commute death sentences to life imprisonment. The bill removes such authority and requires the executive to implement the death sentence should the Supreme Court uphold it. Now, looking at the above stated provision from a Shari'ah perspective, the provision is in clear contradiction with Islamic principles relating to Qisas; once first-degree murder is proven against an accused, only the heirs of the victim - not the State - have the right to pardon the convicted murderer.

Having said that, one cannot help but wonder why 'Islamic Shari'ah' is being presented as synonymous to the death penalty and corporal punishment? Is capital punishment - and are Hudud, for that matter - the first and foremost line of defense presented by Islam to prevent criminal activity? Perhaps, there's something we're missing here? Perhaps, maybe, possibly, Islam has preventive mechanisms other than corporal punishments - mechanisms that focus more on building and developing core Islamic values in the society - in store that need to be employed prior to any implementation of harsh punishments that affect the very life of human beings?

True; in Islam, there are certain corporal punishments prescribed against certain crimes that would detriment the social fabric of an Islamic society. But, note that these punishments are meant to PROTECT morals that are already part of the society's value system, not to implant new morals into the society. The development of moral and ethical values in the society, no matter what school of thought you refer to, is a job for generation builders: parents, educators, etc.; not for law enforcement officers and security forces, and certainly not for executioners! The death penalty is not, and will never be, a viable solution for a society faced with a moral crisis.

Hudud, I believe, should be a step taken after, and ONLY after, reasonably implanting Islamic values in society: true belief in the Almighty, respect for authority, chastity and morality, proper maintenance of public peace and order, sanctity of public and private property, as well as the value of intellect and sanity.

This belief is one founded on evidences from Qur'an and Sunnah, writings and opinions of classic and contemporary scholars, as well as logical derivations that support the view that a gradualist approach should be taken towards the full implementation of Islamic Shari'ah under the current circumstances. It should be noted at this juncture that the very idea of gradualism in the implementation of Shari'ah is one upon which contemporary Islamic scholars have divided opinions.

While one group of scholars - notable among them Sheikh Yusuf Al-Qaradawi - rely on Qur'anic and prophetic evidences that illustrate gradualism in the very revelation of Islamic rulings, the other rely on general Qur'anic injunctions that command Muslims to rule in accordance to Allah's revelations and forbids them from following their whims and fancies. The latter group rejects evidences put forth by the earlier, stating that such evidences illustrate a gradualism that was adopted during the transition from the Jahiliyyah of pre-Islamic period to the Islamic rule; and it is not the case here. The earlier group of scholars admonish the latter for being too idealistic; too removed from the reality of Muslim societies, where, they argue, a Jahiliyyah is truly in place, and state that to start implementing certain injunctions of the Islamic Shari'ah under the current circumstances will in fact be against the values of compassion and justice promoted by Islam; that to implement those injunctions in the current circumstances will NOT be to rule in accordance with Allah's revelation. Supporters of gradualism in the implementation of Shari'ah, such as Muhammad Salim Al-Awwa, state that to implement Hudud in today's Egypt, for example, is impossible because the Shari'ah conditions for the implementation of Hudud are not fulfilled in the society. What strengthens this argument further is the fact that Sayyidina Umar (may Allah be pleased with him) had halted the implementation of the prescribed Hadd of amputation against thieves during the year of famine which hit the Muslim lands during his caliphate.

Looking at the situation in Maldives, it might strike one as intriguing that one of the main reasons why I am AGAINST the implementation of the death penalty currently in the Maldives is actually the very corner stone of the case presented by its PROPONENTS: hiking crime rates. While the proponents are under the illusion that its implementation will bring an abrupt stop to crimes in general, and violent crimes in particular, I argue that penalising criminals is too passive a response to the crime problem faced by our country. Crime is an issue that needs to be addressed proactively; a growing cancer in our society that we need to strike at its roots.

Many surveys and studies have been carried out in the Maldives in order to understand the causes of escalating crime rates in the small island nation; some conducted by international bodies; some others by the government; a few even by non-governmental organisations. One main cause that has come to light, especially for the growing involvement of the youth in criminal activities and violent gangs, is congestion in the capital city of Male' which houses a majority of Maldivians. Former Home Minister, Mr. Mohamed Shihab, made note of this back in 2010, and his statement was later reiterated by Police spokesperson Sgt. Ahmed Shiyam.

Another important factor leading to the increase of criminal activity among the youth is the high divorce rates. Maldives is proudly - and I say it with every bit of sarcasm possible - the country with the highest divorce rates in the Asia/Pacific, with crude divorce rate being 3 times higher than the average rate in the region. Research has continually shown a link between delinquency in young people and the break down of their family structure.

Now, consider young Maldivian generations: trapped in the concrete jungle of Male', caught up in the middle of the raging divorce and alimony battle between their parents, finding nothing to do and going out to aimlessly roam the streets on which gangs, drugs and violence are rampant.

The most important ingredient in this horrific brew is still missing: the lack of good parenting among many Maldivian parents; the lack of a good education system; the lack of a social structure to prevent crime.

Maldives has become a breeding ground for rape, child abuse and other violent crimes of sexual nature. Only last year, a 19-year old young man was arrested on suspicion of raping a bed-ridden, mentally impaired woman of 74. In the meantime, the kind of moral guidance that the youth receive at home is that 'Well, boys will be boys after all!' In this country where gang violence, assault and murder have become an epidemic, bullying, which research shows is an early warning of violent tendency, in schools is an issue that is almost completely neglected. A blame game had followed the untimely death of a 13-year old student of Majeediyya School back in 2005, but no real action was ever taken. As for many parents, they like to think 'My darling child' will not beat anyone up. Pre-marital and extra-marital sex is so much the norm in Maldives, that even if a man and woman are dragged out of a room stark naked, no one would so much as blink. In many cases, women (mostly because they get pregnant) get convicted easily of Zina, but men rarely do. In just as many cases, women go through unspeakable emotional and physical pain in order to undergo illegal abortions. Brothels and back-alley abortion houses; they USED to be shocking. Not anymore. What kind of parental guidance is given to youngsters regarding sexual behaviour? Children, sometimes as young as 10 years old, watch r-rated movies without any adult supervision. Note that 'r-rated' is a rating done by the Motion Picture Association of America. What kind of rating do you think such movies will get if rated according to Islamic values? It is quite normal in the Maldives that teens have boy/girl-friends. For many, it is not because they intend to build a life with the other partner; it just isn't cool to be the only single person among your peers. When a teen's girl/boy-friend comes to see him/her, in many Maldivian families, the parents empty out the teen's bedroom so they can have privacy. I know; I have had teen-aged friends! Add easily available alcohol and drugs to the recipe. Now, what do you expect from this society?!

Just as Muslim lands were hit by a year of famine during the caliphate of Umar (may Allah be pleased with him), Muslim lands today are suffering from a greater famine; our societies are starved of moral values!! The sky-rocketing crime rates are a clear indication of that fact.

I think it would only be right to address some of the logical inconsistencies in the arguments brought forward by proponents of corporal punishments, especially those who propagate it in the name of Islam. The arguments they bring forward go something like this: (1) We want to implement Islamic Shari'ah - they mean, corporal punishments, of course -  because they are deterrents; (2) Western countries that don't implement Shari'ah, such as the US, are facing huge crime problems. Then they go on the defensive and say that (3) it's nonsensical to reject Shari'ah based on human rights because countries considered to be champions of human rights, such as the US, do implement the death penalty. If US States do implement capital punishment, and they also face rising crime rates, quite obviously the death penalty alone does not have the deterrent effect that they're supposing it has. If one were to look at the murder statistics of US states that do implement the death sentence and states that don't, one will find that states that do NOT have capital punishment legislation have continuously had less murders than the states that DO have capital punishment legislation. This is a clear indication that the states that do not have death penalty statutes are doing something right; something that is sustainably, and - to a certain extent - successfully acting as a deterrent against murder.

A friend recently told me that 'it is utter desperation that leads ppl to support the idea [of the death penalty] itself.' I believe he might very well be right. But utter desperation to do what? If the goal is - as it seems to be - to put away the criminals for good, people in their utter desperation are supporting the wrong idea. What comes with harsher punishment, in the criminal justice system, is a stricter burden of proof on the prosecution. When it comes to punishments such as Qisas and Hudud, Islamic evidence principles are so strict that the crime has to be proven beyond any doubt. (True; Maldivian laws and legal practices have shown discrepancies from this general rule. But don't blame the theory when the practice is non-compliant!!) The point to be made here is that even without strict corporal punishments in place, the Prosecutor General's Office is having a tough enough time presenting evidences to prove that the accused on the stand is the perpetrator of the crime. The death sentence will only make it harder to do so; and will, thereby, help free suspected criminals rather than putting them away.

The mistake many Maldivians - masses and leaders alike - make is to oversimplify things. They think that because classic Islamic texts say that Qisas and Hudud are deterrents against crime, they are deterrents against crime no matter what the real circumstances on the ground may be. The equation isn't as simple as:
                                'Hudud is negatively correlated to Crime Rates;
                                 Therefore No Hudud = Crimes
                                                      Hudud = No Crimes.'
It just isn't that simple. The fact of the matter is, that crime rates is the very corner stone of the case AGAINST Hudud. Not the case for it.