The Demand for Legal Reform and the Misinterpretation of Shariah

M R Hasan

We must remember that Islam ensures justice for both the plaintiff and the defendant. If the defendant has committed such a grave crime against humanity, the worldly punishment prescribed by Allah for them is as severe as the punishment in the Hereafter is terrifying.

Whenever extreme inhuman incidents like child rape, brutal murders, or similar atrocities occur in Bangladesh, a strong demand arises from various quarters of society to introduce 'Shariah law' to ensure exemplary and the harshest punishment for the culprits. At the same time, a strange polarization is created within the nation regarding the true nature of Shariah law.

The majority of those demanding Shariah law believe that the only function of Shariah is to execute certain visible penal codes (Hudud), such as punishing the criminal with the death penalty by burying them waist-deep in the soil and stoning them publicly (Rajm), or amputating limbs. They cite examples of certain external punishments from the Middle East or Arab countries. Their perception is that merely implementing these punishments verbatim will eliminate all crimes from society overnight. On the other hand, under the guise of progressiveness, a group of Islamophobes takes this debate as a perfect opportunity to attack Islam. They tactfully spread propaganda that Islam is an extremely 'misogynistic' religion. They claim that Islamic Shariah law supposedly punishes the raped woman, i.e., the victim herself, on charges of adultery. They propagate that according to Shariah, it is impossible to judge a rape without four eyewitnesses, and if the victim cannot present four witnesses, she will herself fall into a legal trap.

In fact, the main reason behind these misleading claims is some fragmented explanations given by Shariah experts in various Fiqh and Fatwa books, and the consideration of adultery and rape under the same punishment (as the Hadd for Zina) in many cases in conventional codified Islamic law. However, the contexts of these two crimes are completely different. Adultery (Zina) is committed with the mutual consent and willingness of the man and the woman, where both parties are equally guilty. On the other hand, rape is committed entirely by force, where the victim is absolutely oppressed (Mazlum), and according to the fundamental principles of Islamic law, she bears no liability for this crime.

Essentially, this Islamophobic group and a class of fatwa-mongers provide completely fabricated and fragmented interpretations of the verses of Surah An-Nur. Declaring the punishment for adultery (Zina), Allah says in the Holy Quran: "The fornicatress and the fornicator, flog each of them with a hundred stripes. Let not pity withhold you in their case, in a punishment prescribed by Allah, if you believe in Allah and the Last Day..." (Surah An-Nur, 24:2).

"Adultery is committed with the mutual consent and willingness of a man and a woman, where both parties are equally guilty. On the other hand, rape is committed entirely by force, where the victim is absolutely oppressed, and according to the fundamental principles of Islamic law, she bears no liability for this crime. [...] There is not even the remotest possibility in the Shariah given by Allah to enforce Hadd on a raped woman."

In this verse, Almighty Allah has specifically determined the punishment for 'adultery' or Zina committed with mutual consent. But some Shariah courts and fatwa-mongers, utterly devoid of reality, make a fatal legal error by considering 'rape' as adultery under this verse. Because of this erroneous fatwa, in many countries governed by Shariah law, the raped woman is conversely accused of adultery and subjected to these one hundred lashes, which is completely contrary to the principles of Islam.

At the same time, they drag in verse 4 of Surah An-Nur, making their fabricated, erroneous fatwas even more misleading; where it is stated: "And those who accuse chaste women and then do not produce four witnesses - lash them with eighty lashes..." (Surah An-Nur, 24:4).

Clearly, in this verse, Almighty Allah has spoken about the punishment for 'slandering' or falsely accusing someone of adultery (Qazf), not as a condition for the trial of rape. Since the punishment for adultery in Islam is extremely severe—one hundred lashes, during the execution of which there is even a possibility of the criminal's death—Allah has imposed this inviolable condition of four male eyewitnesses so that no one can falsely smear the character of any woman. If someone cannot bring four male witnesses, the accuser themselves will conversely face eighty lashes. Allah has created this strict safeguard primarily to protect women's honor and ensure social security, so that no woman faces punishment due to false accusations made by others without committing any crime.

Yet, when forceful 'rape' was equated with ordinary adultery, a tragedy of extreme injustice was created. Now, an oppressed woman who is a victim of rape, while seeking justice, is instead being asked to produce four male witnesses—which is practically impossible in reality.

It does not end here; fatwa experts have conducted further meticulous research and added a condition that the testimony of any woman is not acceptable in cases of Hadd and Qisas (punitive criminal offenses); even though there is no such gender-based prohibition in the Holy Quran. Furthermore, it is said that those male witnesses must also be extremely pious, devout, and socially recognized as just (Adil). Consequently, the verse of the Quran that was revealed to 'protect' women from false accusations, caught in the web of reactionary and narrow fatwas, has today been turned into a weapon to almost permanently block the path for a raped woman to attain justice under the conventional so-called Shariah law.

Refutation of Misinterpretation:

In fact, in Islam, the legal terminology and trials for adultery committed by mutual consent (the punishment for which is 100 lashes) and rape committed by force or at gunpoint are completely different. Rape fundamentally falls under 'Ikrah al-Zina' (forced adultery) or 'Hirabah' (the crime of armed robbery and disrupting public safety). The eternal principle of Islam is—there is no compulsion in this religion. In light of this principle, the Messenger of Allah said, "Allah has forgiven my Ummah for their mistakes, forgetfulness, and what they are forced to do (Ikrah)." (Ibn Majah). Therefore, there is not even the remotest possibility in the Shariah given by Allah to enforce Hadd on a raped woman. Gazi Shamsur Rahman, in Section 13 of the first chapter of his book 'Codified Islamic Law', included rape under 'Hirabah'. He wrote, "'Hirabah' means disrupting public safety by deteriorating the law and order situation through an attack with organized force. Looting wealth, outraging modesty, murder, and bloodshed are included in it." The mob justice or mob terrorism frequently carried out in our country under the banner of the so-called 'Tawhidi Janata', provoked by groups trading in religion, falls under 'Hirabah' (Fasad fil Ard) according to the specific definition of Islamic Shariah.

In verse 33 of Surah Al-Ma'idah of the Holy Quran, four specific and severe punishments have been prescribed for the perpetrators of Hirabah. Based on the type, extent, and severity of the crime, the judge or the state will apply these punishments. Allah says, "Indeed, the penalty for those who wage war against Allah and His Messenger and strive upon earth [to cause] corruption (Hirabah) is none but that they be killed or crucified or that their hands and feet be cut off from opposite sides or that they be exiled from the land. That is for them a disgrace in this world; and for them in the Hereafter is a great punishment."

One of the main streams of Islamic Shariah (especially according to Maliki Fiqh and modern jurists) considers rape committed through force or the display of weapons as 'Hirabah' or a society-destroying, catastrophic crime. Therefore, according to the provisions of Hirabah, punishing the rapist—based on the nature and severity of his crime—with the death penalty, public crucifixion, amputation of hands and feet from opposite sides, or long-term imprisonment by completely isolating him from society, is the Shariah revealed by Allah.

By pointing out some prevalent erroneous fatwas, the progressive quarters want to claim that Allah's laws are incompatible with the modern age. But the harsh reality is that people today are victims of injustice due to man-made, flawed laws and a procrastinating judicial system, a major proof of which is the courts of Bangladesh. According to the latest judicial statistics, 151,317 cases are currently pending in the country's Women and Children Repression Prevention Tribunals, among which 30,000 are more than 5 years old.

Despite the legal obligation for disposal within 180 working days, a joint study by the Supreme Court and BRAC showed that the average disposal time for a case is about 1,370 days (almost four years), and the hearing dates have to be changed an average of 22 times for a verdict. Even after all this, the final conviction rate subject to proving the crime under this law is only 3 percent; the vast majority of the remaining cases cannot sustain themselves due to a lack of evidence.

The social picture behind this massive number of cases is even more alarming. Long-term reviews by legal aid and human rights organizations show that a large portion of these cases are fake allegations filed as a result of family feuds, land disputes, or personal enmity. Even a report by 'BLAST' revealed that about 80 to 90 percent of cases under the Women and Children Repression Act ultimately turn out to be baseless or false. Due to the misuse of this non-bailable law, on the one hand, many innocent people are being socially and mentally destroyed without trial; on the other hand, buried under the mountain of fake cases, oppressed women who are the actual victims of abuse are being permanently deprived of justice. As a result, the culture of impunity is deepening in society.

In the last 20 months in Bangladesh, 1,890 children have been victims of rape and sexual abuse, of whom 643 children have lost their lives (Source: Bangladesh Pratidin). Among them, in the last four months, 118 girls have been raped and 17 have been murdered (Source: BBC). The recent incident of Ramisa has shaken every person in Bangladesh and pushed the parents of daughters towards trauma. When a seven-year-old girl like Ramisa, or even innocent four-year-old children, are brutally raped, is it logical that the law of ordinary adultery applies to them? Absolutely not. Therefore, it is impossible for Allah's laws to be such illogical laws. In fact, according to Allah's Shariah, such incidents cause catastrophe in society, meaning they fall under 'Hirabah'. Because this crime is a crime against society and the state, a crime against humanity. Because these rapists are not just harming a single person, but they are holding the peace, security, and public life of the entire society hostage. The famous jurist of the Maliki Madhhab, Ibnul Arabi (Rh.), stated very clearly on this issue: "Rape or forced molestation is the most severe form of Hirabah. Because if wealth is looted, it is possible to get it back, but if a person's honor or chastity is violated, it can never be returned."

There are different degrees to the severity of a crime. For example, if that child or woman is brutally murdered after rape, then naturally the provision of 'a life for a life' will apply there. Allah Ta'ala has said, "Qutiba 'alaikumul qisasu fil qatla" (Decreed upon you is legal retribution for those murdered - Surah Al-Baqarah 178). 'Qisas' means equal retaliation. In the Holy Quran, Allah further clarified: "And We ordained for them therein a life for a life, an eye for an eye, a nose for a nose, an ear for an ear, a tooth for a tooth, and for wounds is legal retribution (Qisas). But whoever gives [up his right as] charity, it is an expiation for him. And whoever does not judge by what Allah has revealed - then it is those who are the wrongdoers." (Surah Al-Ma'idah 45). According to the principle of Qisas, these demonic rapists and murderers will certainly receive an equal blow for every blow. Only then will it be justice.

Yet, even after this irrefutable provision, a group of Islamophobes and a class of so-called Muftis nonchalantly want to claim that—without producing four male witnesses, rape supposedly cannot be tried under Shariah law! The question arises, is Islamic law a law to cover up the criminal's crime or hide sins? It is a matter of regret that many scholars are also unable to present the correct Fiqhi answers to these modern and logical questions before the general public.