The elite or privileged of society are the most likely to get away with various forms of injustice. This is also a despairing reality in Pakistan. Privilege is natural and comes in various forms (race, tribe, gender, wealth, geography) and sometimes you are helpless to do anything about it. However, when we are enjoying a privileged status, we must first recognize our privilege and then utilize it to help those who are disadvantaged, as this is the spirit of the sunnah of The Holy Prophet Muhammad (SAW).
We are all familiar with the hadith about Fatima bint al-Aswad al-Makhzumiya who was caught stealing and she was brought to the Prophet (SAW). Usamah bin Zaid pleaded for leniency on her behalf since she belonged to a wealthy and privileged tribe. The Holy Prophet (SAW) rebuked Usamah’s appeal and said, “Nations who came before you were destroyed because if a rich person stole, they would let him go. But if a poor person stole, they would cut off his hand. By the One in whose hand is the soul of Muhammad, if Fatima bint Muhammad were to steal, I would cut off her hand.”
Many people in Makkah thought that the Prophet (SAW) would be lenient because of his overall kindness and compassionate nature. They assumed he would pardon the woman from his tribe and maintain the status quo, but, the status quo was the problem.
Allah (SWT) tells us in the Quran “We punished them when they became oppressors,” nations were destroyed due to the injustice by the powerful to only oppress/punish the weak of society while the “nobles” or “elite” who committed crimes escaped punishment.
In not showing leniency, the Prophet (SAW) was making a point by saying that if my Fatima were to commit the same crime, I would punish her the same way I would punish your Fatima; that is, being privileged is irrelevant in cases of justice. He (SAW) is teaching us that his decision was not based on vengeance or on now having ascendancy over the Banu Makhzum; it was based on justice and having privilege would no longer be a justification to avoid justice. The Prophet (SAW) was also a victim of Fatima bint al-Aswad al-Makhzumiya’s thefts but he does not mention this.
“Those who came before you” refers to the Bani Israel (Children of Israel). They used to be guilty of discriminating between rich and poor criminals, as they would punish the weak very harshly, and excuse the elite. This was one of the complaints of Issa (AS) to the Pharisees.
In Matthew 23:23 Jesus is reported to have said, “Woe to you, scribes and Pharisees, hypocrites! You practice your religion very well, but you have neglected the weightier matters of the law: justice, and mercy, and faith.” Issa (AS) was sent to bring back the spirit of the law and correct its misuse.
During the time of Caliph Umar (RA), the Muslims suffered from famine and there was a rise in theft not out of greed but because they were hungry and desperate. He (RA) suspended the penalty for this crime because he recognized that the situation had changed. Umar (RA) was a member of the elite himself but he did this for the sake of the poor.
Many scholars understood this when framing the objectives of Islamic law (maqaasid al-sharia) that if you are not providing people the wherewithal to attain happiness, survival, and success then you have no right to punish them when they resort to unacceptable means to achieve that success and happiness. Opening the ways of good is far more important than preventing the ways of bad.
Abdur Rahman, one of the sons of Caliph Umar (RA), was once caught drunk in Egypt and the governor at the time was Amr ibn Al-As (RA) who wanted to spare him the shame of punishing him publicly. He didn’t want to embarrass the Khalifah by penalizing his son, so, he symbolically punished him in the privacy of his own home. When this news reached Umar (RA), he asked that his son be sent to Madinah to be publicly punished. Amr thought he was doing Umar (RA) a favor, but, Umar (RA) was determined on carrying out justice even though it was against his son.
Abu Bakr As-Siddiq (RA) said in his very first khutba as Khalifah, “The weak one amongst you will be considered amongst the strong (elite) in my eyes until I get his right back In Sha Allah. And the strong ones (i.e., the elite) are weak in my eyes until I am able to take rights back from them In Sha Allah.”
He was making a declaration in his inaugural speech that the elite would not receive preferential treatment. However, nowadays in most Muslim countries, the elite are not punished the way the less privileged are. This was the reason Dr. Tariq Ramadan called for a suspension of the hudud punishments – because they being unfairly applied only to the less fortunate in society.
The goal of the law is to promote equity therefore if it is being applied unfairly and is promoting inequity, then it’s not serving its purpose.
