Displaying items by tag: rahmah
There is a steady growth in the global trend, including in Muslim countries, towards abolishing the death penalty.
For countries that have retained the death penalty, data shows that their numbers are decreasing.
Be that as it may, the trend is to suspend and avoid the death penalty punishment either by granting a pardon by the head of state or imposing an executive moratorium.
There has been much debate in Malaysia on the recent government decision to consider abolishing the country's mandatory death penalty.
Opponents of the death penalty believe it is against human rights because humans were created by God. For God gives life, and He is the one who takes it back.
Among the offences carrying the mandatory death penalty under the Penal Code are Section 121 for waging war against the Yang di-Pertuan Agong; Section 121A for offences against the Yang di-Pertuan Agong; Section 132 for abatement in the armed forces; Section 194 for giving or fabricating false evidence with intent to obtain a conviction for an offence of murder; Section 302 for murder; Section 305 for abetting suicide; Section 364 for kidnapping with an intention to murder; Section 374A for taking hostages; Section 396 for gang robbery and murder, and sections 3 and 3A of the Firearms (Increased Penalties) Act 1971.
The most debated law concerning the mandatory death penalty is Section 39B (1) of the Dangerous Drugs Act 1952.
The act, however, was amended in 2017 to provide the judge with discretion, under certain circumstances, to substitute the death punishment with life imprisonment. In other words, the death penalty is no longer mandatory.
As of today, the lives of almost 2,000 people on death row, mostly involving drug-trafficking offences, are in limbo following the 2018 moratorium on the death penalty, and are awaiting the Pardon Board's decision to be released.
Section 302 of the Penal Code provides that a conviction for murder with the intent to kill another person will result in a mandatory death sentence.
Those who believe that the mandatory death penalty should be retained for such an offence argue that intentionally killing a person is cruel, and has no proportionate retribution except for such retaliation. This is in line with Article 5 of the Federal Constitution, which provides that: "No person shall be deprived of his life or liberty except in accordance with the law".
Under shariah criminal law, the death penalty is generally provided for under prescribed punishments (hudud) and just retaliation (qisas) for offences for which the Quran or hadith stipulates a punishment.
The four hudud offences that carry the death penalty are banditry (hirabah), rebellion (bughah), apostasy (riddah), and adultery (zina muhsan). Intentional killing (qatl al-'amd) carries the death penalty under qisas.
The government's move to abolish the mandatory death penalty for murder is actually in line with Islamic teachings.
Under the law of just retaliation, which covers murder and injury, the form of punishment is an equivalent retaliation or payment of blood money (diyat) to the victim's family.
In essence, qisas is considered an individual offence that affects the interests of individuals (haq al-fard/'ibad). Therefore, the victim's family has an option either for the perpetrator to be killed under just retaliation or to forgive him and/or accept blood money. Hence, in qisas, the death penalty is not mandatory.
Although blood money is an alternative to the death penalty, there are various juristic views on the subject.
Some jurists consider it a punishment (uqubah) and not compensation (dhaman), some view it as dhaman, while others believe that it is somewhere in between punishment and compensation.
In a policy issue paper by the International Institute of Advanced Islamic Studies entitled "Death Penalty in Shariah and Contemporary Law: A Comparative Analysis", the authors believed that shariah did provide for capital punishment for murder, but discretion, forgiveness and peaceful settlement were allowed and notably mentioned in the Quran and hadith.
"Thus, reducing or minimising recourse to the death penalty is not only in line with the global trend but one that is also in harmony with Islamic principles."
It is argued that the Quran refers to qisas in several verses (al-Baqarah, 2:178; al-Shura, 42:40; al-Isra', 17:33). Yet in all of these verses, the strong emphasis is on forgiveness and peaceful settlement between the parties.
The law of qisas was originally prescribed in the Torah as a life for life, an eye for eye, a nose for nose etc., but the Quran goes further by prescribing that "...if any remission is made by the brother of the slain, then grant any reasonable demand and compensate him with handsome gratitude."(al-Baqarah, 2:178).
On the same subject, it is provided in another verse: "One who forgives and reconciles, his reward will be from God." (al-Shura, 42:40). The victim and his relatives are also advised against excess in retaliation (al-Isra', 17:33).
It was also reported that the Prophet Muhammad emphasised forgiveness in all qisas cases that were brought before him.
The Prophet advised parties not to insist on retaliation, but to consider reconciliation through the payment of blood money or opting for forgiveness.
It was reported that Malik bin Anas narrated from the Prophet Muhammad that: "No case of qisas came before the Prophet in which he did not advise grant of forgiveness."
In another hadith narrated by Abu Hurayrah, the Prophet also said: "When a person grants forgiveness (to an act of injustice he has suffered), God Most High increases him in honour."
Taking all the above arguments into consideration, it is strongly advised that qisas was not the preference of the Prophet and should not be carried out. The parties involved should reconcile, either opting for blood money or grant forgiveness.
Although Malaysia still maintains the death penalty, the approach to abolishing the mandatory death penalty has been seen as a new development in line with international trends.
The amendment of the Dangerous Drugs Act 1952 in 2017 saw a decrease in executions for drug trafficking, and this can be considered a positive step towards repealing the mandatory death penalty for the offence.
In addition, the government will also examine and conduct further studies on the proposed substitute sentences for 11 other offences carrying the mandatory death penalty and 22 offences carrying the death penalty but subject to the discretion of the judge. This is to ensure that these substitute sentences are commensurate with the offences, especially murder.
A comprehensive mechanism should be studied by the authorities, where the victim's family member is appointed to the Pardons Board provided for in Article 42 (5) of the Federal Constitution.
Here, the victim's family plays a major role and should advise the Pardons Board to consider whether the perpetrator should be killed in accordance with the law of qisas or to substitute it with blood money, which is a huge amount of money to be given to the victim's family, or for the victim's family to grant a pardon.
As for blood money, it can be incorporated into Section 426 of the Criminal Procedure Code where a compensation is made to the victim's family.
In sum, we can conclude that the death penalty under qisas is not mandatory.
The writer is director-general of the Institute of Islamic Understanding Malaysia.
No nation is built in a day. Our nation’s potential and attributes as it is known today is an accumulation of its rich historical experience. The historical journey of our great nation reached an important milestone on Sept 16, 1963, six years after its independence, when Malaysia was formally announced as an independent and sovereign federation.
Without a doubt, the formation of Malaysia marks only the beginning of our nation’s ascension towards greater heights. I pray that this blessed motherland will flourish as a nation that firmly stands on equal footing with others, and even more, especially in addressing the many challenges at the global stage.
Since its inception, Malaysia derives its strength from the ability of its people to remain united in the face of diversity.
“Diversity is Malaysia, and Malaysia is diversity”. Diversity is such an integral element to Malaysia that without it, our nation will cease to exist. Diversity and multiculturalism have long been a perennial challenge to governments worldwide and many have failed miserably by pandering to “easy” solutions that promise unity at the expense of diversity.
Malaysia has always been a staunch defender of ethnic, racial, cultural and religious diversity, and has no intention of stopping now. While we continue to debate on the issues surrounding national identity, lest we forget the shining example provided by the fore-founders of this nation who chose to preserve diversity within their mould of unity, as opposed to moulding unity through uniformity.
Amidst our struggle to trust one another and prolonged contestations over which specific ethnicity owns the country, our forefathers and predecessors have long deliberated the ideal model for Malaysia.
Sabah and Sarawak are the sparks that gave birth to the formation of Malaysia. The Borneo states are exemplary microcosms of Malaysian diversity since both have thrived within a plural society, and have “tasted” or “savoured” the sweetness of living in a multi-cultural society for generations.
Nevertheless, diversity remains a challenge for us. After 62 years of independence, we continue to argue about “who owns Malaysia?”. We continue to spread narratives of victimisation where a particular ethnic group is being oppressed by another. Even more worrying is the trend of (mis)using religion as a tool against diversity. Unfortunately, until today, we remain trapped in the endless habit of seeing each other through the lens of ethnic egotism (or egoism).
The formal establishment of a state called Malaysia only marked the first steps of a long journey which now brings us to the phase of New Malaysia. In this phase, we strive to develop and strengthen the cores of economic prosperity, social cohesion and public well-being for all Malaysians, excluding none. The current challenge is how to deal with the ever-growing calls for narrow racial and religious narratives, often for the sake of guarding specific selfish interests.
Shouldn’t the interest of the country become our most significant concern?
It is unforeseeable that a more unifying narrative that promotes a single Malaysian nation (that includes all ethnicity, sex, and religion) can flourish if prejudice and negative sentiments based on ethnicity or religion continue to increase in our inter-ethnic relationships.
As diversity is both a celebrated and inescapable reality in Malaysia, there is a pressing need to have a cultural bridge built on sincere trust and deep love for one another. In this regard, we pave the following acronym R.A.H.M.A.H which carries six qualities: Amicable (Ramah), Peaceful (Aman), Harmonious (Harmoni), Genial (Mesra), Universal (Alami) and Respectful (Hormat).
We desire a united and strong nation that can realise the Shared Prosperity vision in which all citizens would reap a fairer portion of the economic “harvest”, in addition to propelling the nation’s economy towards reclaiming its status as a “roaring” Asian Tiger.
We cannot afford any compromise on efforts that harm or destroy our nation’s diversity under the guise of unity. Religion offers us ample guidance in addressing diversity. Islam, as the religion of the Federation, teaches us that diversity is a deliberate creation of God in which healthy interaction is vital towards cultivating a harmonious society.
The core principle of “universal compassion” (Rahmatan Lil Alamin), which is underpinned by the principles of peace and harmony, is the unifying thread that will bind our diverse society. It is a principle that will ensure everything is preserved peacefully in its proper place. This is the challenge that we have undertaken to safeguard the trust (Amanah) of the nation.
Some would argue that Malaysia could have opted for an “easier” solution which prioritises uniformity (or homogeneity) at the expense of diversity. Defending diversity, however, is the right and wise decision, especially since Malaysia has become one of the world’s leading models in terms of commitment towards diversity and its quest for peace and harmony.
This is a success story that needs to be preserved. We should put our lives to defend it. Our enemies are those who try to undermine diversity by spreading “viruses” of discord that fan racial and religious hatred, often for a purported “cause”. What kind of “cause” leads to hate and hostility? Do we wish to let everything our nation has built fall into ruins merely for the sake of a “struggle”?
What should be our first struggle is to safeguard our diversity by striving to provide a “mould” that allows and protects diversity while having a unique identity of its own. This “mould” represents our beloved state of Malaysia, and the diversity it protects are us the Malaysian people.
Let’s protect our nation and preserve our diversity, and pray that our country will progress into a nation respected by friend and foe. To that end, together, we embrace diversity as we embark on an ark of peace and harmony.
Selamat Hari Malaysia.
The writer, the MP for Parit Buntar, is a minister in the Prime Minister’s Department
Published in: The New Straits Times, Friday 20 September 2019