07.01.2016 (26.03.1437)

Media Release - Law, Justice and Punishment

In all cultures and social structures, to ensure the well being of mankind, there is a legal system and a judiciary based on fair and just principles. Especially, Law, Justice and Punishment are needed to uphold the moral values of the society and to nurture the ethical goals.

When individuals violate the rights of the others and norms established for the well being of the society have been infringed, recourse to Law, Justice and Punishment will be warranted. Let us pay attention to what the major religions teach on this subject.   

When we examine the Buddhist scripture, Agganna Suthra of Deega Nikaya, states how anomalous behavior started at the very beginning of human life on the Earth. According to this Suthra, immoral behaviors like theft, falsehood, fraud and sexual misconduct were found in society. Therefore, they wanted to appoint a leader to control this situation. The leader thus appointed was called the ‘King’. When immoral things happened, it was the King who dispensed justice o an equitable manner. It is worthy to note that abstaining from sexual misconduct is a precept in ‘Pancha Sila’.

Gunasena Gamage, in his book “Law and Judicial System In The Old And The Mediaeval Periods” states in page 106 that capital punishment was meted out for rape and sexual misconduct by the Sinhala Kings.     

Law and Punishment in the teachings of Christianity could be found in the Holy Bible. We have quoted a few verses from the Holy Bible particularly regarding the punishment for sexual misconduct. 

“And the man that committeth adultery with another man's wife, even he that committeth adultery with his neighbour's wife, the adulterer and the adulteress shall surely be put to death”. (Leviticus 20 : 10)

“If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman, and the woman: so shalt thou put away evil from Israel. If a damsel that is a virgin be betrothed unto an husband, and a man find her in the city, and lie with her; Then ye shall bring them both out unto the gate of that city, and ye shall stone them with stones that they die”. (Deuteronomy 22 : 22 – 24)

The Law and Punishment for sexual misconduct according to Hinduism could be found in ‘Manusmriti’ an important source book in Hinduism.

“A man who is not a Brahmin ought to suffer for adultery” (Manusmriti 8 : 359)

“But if any man through insolence forcibly contaminates a maiden, two of his fingers shall be instantly cut off”  (Manusmriti 8 : 367)

According to the above teachings quoted from other religions, all sexual activities outside the marital bond are not approved and consider it as a serious immoral act. Serious punitive measures have been sanctioned to prevent the humanity and to protect the moral and ethical values of society.  Next let us pay attention to the Islamic teachings.  

The main intention of the Islamic Law is to remove the difficulties the people are facing and to find appropriate solutions to problems and complications faced by them. Sharia is encouraging people to be virtuous and pious and guide mankind to build a close relationship with God. With security, mutual cooperation, with a sense of oneness, with mutual trust, being helpful to each other, promoting goodness, preventing each other from all evil activities detestable to God are indispensable in all societies to ensure human well being. 

Protecting the religion is one of the prominent responsibilities of Sharia. Religion plays a pivotal role in human life. Success here and the hereafter depends on following the teaching of the religion correctly. 

Protection of life is another important aspect of Sharia. None has the right to annoy or destroy other living beings. Islam teaches that the lives of others are non-violable and to damage innocent lives is considered as a major sin.  

Protecting the intellect is another important objective of Sharia. A Muslim must always be decorous and calm. To attain this state it is essential to abstaining from all forms of intoxicants. Intoxicants and other similar materials which confuse intellect and mind are harmful to individual and society.   

Protecting the wealth and property is another important aspect included in Sharia. The sense of personal protection will be accomplished only by protecting the wealth and property which is a result of human labor.  Individual wealth and property has to be protected from theft and coercion, which occupy an important facet of individual security.

Maintaining the lineage in a pure and a faultless manner takes a place of priority in Sharia. All sexual relationships during pre-marital or outside the wedlock is completely taboo and it is considered as an offence needing punishment. The basic unit of human society is the family. Main factor that destroys the institution of family is the sexual misconduct, which destabilizes the entire society.

Sexual activity and reproduction are common to human beings and to the animals. One of the main differences between animals and human beings is that human beings limit sexual activity to marital bond and as a result protecting the purity of lineage and building a responsible relationship. As a result of sexual misconduct this sacred relationship will be destroyed and doors of making human beings on par with animals will be opened.  

Sharia takes a strong stand against pre-marital sex, sex outside the marital bond, prostitution, all forms of sexual misconduct, and factors that encourages to such transgressions.   

Islam requires following criteria to be fulfilled in establishing the guilt in a case of sexual misconduct.

1. Four persons’ eye witness that they have seen the sexual intercourse of the penetration of male’s sexual organ into female’s sexual organ. There were no information received of any incident in the history of Islam, proving of four persons’ eyewitness and punishing them in accordance with it. If observed of the present increase of sexual misconduct it might be necessary to apply this condition of proving with eyewitnesses in a future era.
2. If by confession, that is, admitting of one is guilty of sexual misconduct in the courts, without any force, then the court has to give the verdict of punishment. After the confession if the confession is withdrawn in the courts, then, at such situation the verdict of punishment cannot be given by the courts. If an allegation was brought on married female or male of a sexual misconduct and proved in the courts according to the above mentioned term, then, the punishment of stoning to death has to be given according to the Islamic law.
3. 100 times of whipping is the punishment for unmarried person, provided the proving should comply with the above-mentioned term.

It can be observed very clearly that the purpose of deterrent punishment is to weaken these types of misconducts in the society and encouraging to create a well-mannered and well-cultured society. From the difficult terms mentioned above in proving the allegation, it is obvious that the purpose of the Islamic law is not giving importance for punishing but to save the people from social misconduct.

There have been so many contradicting opinions arising on the verdict of punishment of death penalty given to the Sri Lankan house-maid.

The reason for giving this verdict is, as understood, that this married woman who has sexually misconducted herself has confessed herself as guilty of this crime. At this juncture there are some points to understand:

1. Mostly due to the lack of knowledge of Arabic Language and the Islamic Law, does the house-maid know what is the offense she had accepted to be guilty of?
2. Have the Translators informed her of the actual explanation of her offense?
3. Have Sri Lankan Embassy in KSA taken legal action at the proper time on behalf of the house-maid?
4. Has the Sri Lanka Foreign Employment Bureau (SLFEB) given proper information about the Rules & Regulations of the countries to the males and females leaving for employment abroad?
5. When a woman travels a long distance away from home, either her husband or a male who is not permitted to marry her (like father, brother, son, etc.) should accompany her as security. This is known as the “Mahram” in Islamic principle. Furthermore, Islam does not permit the separation of husband and wife for a long period of time. If this principle of Islam had been practiced by all parties concerned, such situations could have been avoided.

6. The SLFEB should take needful action with the prospective Employer abroad, when females are sent to Middle-East countries for employment, to safeguard the Islamic Principle of “Mahram”, that is, to accompany the husband or a permitted security. The Employment Contract should be organized with this Islamic concept in mind.

Therefore, we believe, instead of criticizing the Islamic Law one should try to understand its core meaning and the purpose of the Law that helps building humanity with a moral etiquette and a well-mannered society. In the mid of the frauds and mal-practices in the society where there is no much change in its moral damages we all have to commit ourselves to stop such situation in the world. We hope this house-maid’s court case will be dealt in a clearer and justifiable manner by the authorities concerned. We expect that the SLFEB would take careful steps and draw up strategies to safeguard the welfare of the employees in a more advanced manner in the legal procedures to stop such unfavorable incidents to happen in future.