Postponing the execution of breastfeeding women is a humanitarian imperative - Maat Foundation for Peace, Development and Human Rights

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Postponing the execution of a nursing woman is a humanitarian imperative

10 November, 2009

An introduction worksheet
For the seminar held under the title

Towards a legislative amendment to postpone the execution of a nursing mother.

Cairo, November 10, 2009

Introduction:

The death penalty has always been a blatant example of a violation of human rights and an assault on the most important and most dangerous of human rights, which is the right to life. It is a very cruel and extremely dangerous punishment. The human right to life is one of the rights that a creature cannot violate under any pretext. Life is endowed by God Almighty and he has the unity of the right to Grab it.

Perhaps that is what has called many international conventions to call for the abolition of this penalty, but that is what has called some countries to abolish this punishment permanently or to restrict it because it is limited to some crimes of special seriousness and it is worth noting that many international organizations interested in the execution file acknowledge There is no relationship between the application of the death penalty and the extent of crimes in society, which implies that the punishment did not achieve the required deterrence.

However, despite the many negative effects that result from this punishment, which is considered a crime in itself, many countries still apply it widely, which in itself constitutes a violation of all humanitarian considerations, and what the organizations concerned with this is seeking is to work to narrow the scope Applying the penalty and providing the minimum guarantees necessary for its application.

The issue of applying the death penalty becomes more severe and more dangerous if it is related to the effect of the punishment on a person other than the person who is executed in his right to the punishment, so why not if this third party is a child who has not committed any crime deserving of punishment or deprivation of any of his rights, the most important of which is his right to receive Adequate care in his early years, on which he builds his entire life, so the child's right to breastfeeding is automatically established for him at birth, and no one may deprive him of this extremely important right.

Hence the interest - Maat - in calling for an attempt to give everyone his right. If society had decided - and a waste of many considerations - to take revenge on the mother for her crime that she committed, then it is not permissible under any circumstances to extend this revenge to affect the child who did not commit any crime that justifies the diminution. One of his rights, the principle is that the infant should not be deprived of his mother for a crime that was not the cause of it. If we have not yet been able to abolish this punishment, then restricting its scope and limiting its impact on the criminal only becomes a necessity that imposes itself, so it is not a requirement but a right whose achievement provides justice in its lowest form.

The working paper in our hands aims to present the most important international instruments calling for the abolition or restriction of this punishment, and then to the countries that have worked to achieve this and Egypt's position in particular, then we explain the position of Islamic law and psychologists and education on this matter, and then highlight an explanation of the role proposed by the Foundation Maat to adopt a campaign to pass legislation to execute a pregnant mother.

The death penalty is - as we mentioned - a punishment that carries great risks. Therefore, many international treaties have called for the abolition of the death penalty, including:
1 - The International Covenant on Civil and Political Rights of December 16, 1966: which came into force on March 23, 1976, which states in its first article that: The right to life is an inherent right of every human being and that the law shall protect this right and no one may be arbitrarily deprived of his life. Regarding the covenant’s position on executing a pregnant mother, Paragraph (5) stipulated that “the death penalty may not be imposed for crimes committed by persons under the age of eighteen years, and this punishment shall not be executed by pregnant women.”
2 - The Second Optional Protocol to the International Covenant on Civil and Political Rights, which seeks to abolish the application of punishment completely, and thus applies to the situation of the pregnant mother and other cases.
3- The Sixth Protocol to the European Convention for the Protection of Human Rights “The Convention on the Abolition of the Death Penalty in Peacetime” and it applies to all cases, including the nursing mother
4- Protocol No. 13 to the European Convention on Human Rights. Which aims to abolish the application of the punishment completely and therefore it applies to the case of the pregnant mother and other cases.
5- Protocol to the American Convention on Human Rights. Which aims to abolish the application of the punishment completely and therefore it applies to the case of the pregnant mother and other cases.
6- The African Charter on the Rights of the Child of 1990 - which came into force on November 29, 1999 - which states in its 30th article: “States parties to this charter undertake to provide special treatment to mothers who are about to give birth and mothers of infants and young children and to ensure that no judgment is passed. Death penalty for such mothers ”.
7 - The Arab Charter on Human Rights and adopted by the Sixteenth Arab Summit on May 23, 2004, Article 7 of it stipulates that “The death sentence may not be executed against a pregnant woman until she gives birth, nor on a breastfeeding mother until two years have passed since the date of birth. Conditions prevail over the interest of the infant.
8- The United Nations General Assembly Resolution on December 18, 2007, which called for the suspension and suspension of the death penalty, in which the General Assembly voted by 104 votes for the abolition decision in exchange for 54 votes, while 29 countries abstained.

If international covenants related to human rights in general have agreed on the need to reduce this punishment, but the countries of the world have varied their positions, from a group that recognizes the human right to life and the impermissibility of this right being violated and thus abolished the death penalty to a group that still adheres to its signature: -
The number of countries that have abolished the death penalty has reached 91, including (Ivory Coast - Senegal - Canada - Turkmenistan - Bhutan - Greece - Turkey - Djibouti), while 11 countries have abolished the death penalty for ordinary crimes, and 32 countries have abolished the death penalty in practice, As for the countries that still retain this punishment, the number has reached 63.

As for the execution of breastfeeding women, we find that the positions of some Arab and Islamic countries regarding it were as follows:
Sudanese legislation:
The Prisons Organization and the Treatment of Inmates Law of 1992 included in its Article No. 193, Paragraph Two “If the prison director finds, before carrying out the death penalty, that the convict is pregnant or breastfeeding, he must stop the execution of the punishment and inform the chief justice to postpone the execution until after childbirth or the lapse of two years after breastfeeding if The fetus was alive ”.

Right legislation:
The last paragraph of Article (532) of the Yemeni Criminal Procedures Law stipulates that the death penalty for a nursing and pregnant woman should be suspended temporarily until she gives birth or completes her breastfeeding for two years and is imprisoned until the time of execution and finds someone to sponsor him afterwards.
Article (484) of the Yemeni Penal Code requires that the provisions in penalties not be implemented on official holidays or holidays related to the religion of the convicted person, and the implementation of the pregnant woman shall be suspended until she gives birth to her pregnancy and the breastfeeding woman until her child is breastfed in two years and there is someone to sponsor him and be imprisoned until the execution is completed.

Algerian legislation:
Article (155) stipulates that the death penalty shall not be carried out on a pregnant woman or a breastfeeding child under twenty-four months.
Bahraini Legislation:
A provision in Article (334) of the Bahraini Criminal Procedure Code “The execution of the death penalty for pregnant women shall be suspended until three months after their delivery.”

As for Libyan legislation:
He makes it only two months, as Article (436) of the Code of Criminal Procedure states, “The execution of the death penalty for pregnant women shall be suspended until two months after delivery.”

The Arab Republic of Egypt was among the countries that retained the death penalty, as the number of crimes punishable by death reached 105 crimes, distributed among the various laws as follows:

* Penal Code 44 crimes.
* Military Judgment Law 41 crimes.
* Drugs Act 19 crimes.
* The Weapons and Ammunition Act is one crime.

It is noticeable that it is a huge number despite the constitutional texts affirming the right to life and the need to maintain it, including Article 57 of the Egyptian Constitution, which states that “Every attack on the personal freedom or the privacy of citizens and other public rights and freedoms guaranteed by the constitution is a crime that criminal proceedings are not dropped. The civil rights arising from it are not subject to the statute of limitations. The state guarantees fair compensation for those who have been subjected to the assault.

** As for the breastfeeding woman sentenced to death, it was the first time for the law to guarantee her special protection, since the matter has become related to the right of the child, who must obtain all of his rights without any derogation, in accordance with the constitutional provisions that stipulate the need to provide appropriate conditions for the child in order for a normal upbringing to arise. And, including Article No. 10 of the Constitution, which states: “The state guarantees the protection of motherhood and childhood, takes care of children and youth, and provides them with the appropriate conditions for the development of their talents.”

We also find that the Egyptian legislature allowed a mother sentenced to imprisonment to keep her child for two years, as the Prisons Law stipulated in its Article No. 20 that “her child shall remain with the imprisoned woman until he reaches the age of two years. If she does not want him to stay with her or has reached this age, then he shall be delivered to his father or For whomever you choose from among the relatives, if the child does not have a father or relatives to sponsor him, the prison director or his warden must notify the governor or director to take care of him outside the prison in one of the shelters and notify the imprisoned mother of his whereabouts and facilitate her seeing him at periodic times in the manner indicated by the internal regulations. We find that the legislator has recognized the right of the child to receive due care for him in his early years. Rather, the Child Law, in the interest of him to achieve the greatest amount of justice for this child and to ensure that he receives adequate care, has urged that the period of stay under the care of his mother is four years instead of Two years, however, despite all these texts, and despite all considerations, the Prisons Law comes to state in Article 68 of it: “The execution of the death penalty for pregnant women shall be suspended until two months after their birth.”

From the presentation of both the twenty and the sixty-eighth text, the strange paradox and the severe contradiction that occurred in the Egyptian legislator becomes clear. While recognizing the right of the child to complete breastfeeding if his mother is sentenced to imprisonment, he is not allowed to do so if he was sentenced to death despite There is no justification for distinguishing between the two cases, the child's right is fixed to him as soon as he is born, regardless of any influences he has no part in it, as if the law recognizes the same right at times and denies it at other times.

If the right is one and its owner is the same person, then what is the legislator’s mind if he puts a strange and unjustified distinction? Was it not the first to equalize the two cases, granting the child his right to receive full breastfeeding in his most dangerous years and delaying the execution of his condemned mother until he completes the first two years, as he was allowed To stay with her for the same two years if she is sentenced to prison?

Since Islamic law is the primary source of legislation in Egypt according to Article 2 of the constitution, which states: “Islam is the religion of the state, and the Arabic language is its official language, and the principles of Islamic law are the main source of legislation.” It is important to point out the glorious position of Sharia on this thorny topic .

Just by looking at the teachings of Sharia, it becomes clear to us that Islam categorically supports the idea of postponing the execution of the breastfeeding until the completion of breastfeeding, with evidence drawn from more than one source of legislation, starting with the Qur’an and passing through the noble Sunnah and the sayings of the Companions to the established interests and jurisprudential rules.

1- The Holy Quran:
The Holy Quran emphasizes the need for a child to complete two years breastfeeding. The Almighty said, “And mothers breastfeed their children for two full years,” as he said, “Campaign and his separation for thirty months”.

2- The Noble Prophet's Sunnah:
The Messenger, may God’s prayers and peace be upon him, from the actual and verbal Sunnah confirms the necessity to postpone the execution of the breastfeeding until the completion of the breastfeeding, and that is the case known as the “Ghamidian woman” which came to the Messenger, may God’s prayers and peace be upon him, requesting that the punishment for adultery be established on her and she was pregnant. He greeted, “Wait until she gives birth.” Then she came after she gave birth and said to her, “Wait until you breastfeed him.” When she came to him and weaned the boy while walking next to her, and he held his hand a crumb of bread to eat, he commanded it to be thrown away, just as he, may God bless him and grant him peace, said: “The boy has no milk better than milk his mom ".

3- As for the sayings of the Companions:
He said Ali Ibn Abi Talib, may God be pleased with him, that he said: (There is no milk with which a boy was fed a greater blessing on him than a nation's milk).
It also states that a man entered the imam on (God bless his face) and confessed to committing the theft and asked him to sign the punishment for theft on him, so Imam al-Hassan came out. Imam Ali was born and returned with a bundle of money from the house of Muslims’s money and handed it over to the thief to carry out his livelihood after he justified his action in need. He saw the imam One of the greatness of religion, which considers life as a divine gift that cannot be touched unless the clergy see it today, and therefore we can cut off the perpetration of crime by other means, as did the Imam of the Faithful.

4- Sending Interests:
It is known that the infant’s failure to bear the effects of punishment for a crime in which he has no sin is an interest that must be taken into account in all cases and whatever the offense his mother committed, in addition to the rule of ease in Islam which supports the principle that “there is neither harm nor harm”, it is not permissible to The child is harmed by the act of his mother, as he is not guilty of the crimes she has committed, and it is certain that Islam is the jewel of mercy, that is, mercy after mercy for the child?

As for the opinions of Islamic law jurists in this matter, we find that the Malikis see the right to implement the ruling immediately after the birth because God Almighty has the right to be fulfilled, while the Hanafis said that the matter is related to two things: that there is a fulfilled life in the mother that will be wasted whenever there is a day With payment without harm, it is more important to me as a Muslim, then I have a child who does not take from his mother only breastfeeding, which may be replaced by artificial feeding or bringing a nurse who does the same purpose, but rather takes from his mother with breastfeeding the feelings, feelings and sentiments of the real mother.

Some also believe that each case must be judged as an individual case and not a case of society, that the law generalizes the ruling, but rather it is considered in some cases, and the execution of one of her presence is expected to harm society by exploiting the period of breastfeeding, matters that are crimes against the law, and others hope for better. From her evil, her execution is postponed until the completion of breastfeeding.

Psychologists believe that the most dangerous stages of childhood are the first six years, especially the first two years, as the absence of the mother during it leads to psychological disorders for the child, and may even lead to schizophrenia, as the role of the mother at this stage goes beyond breastfeeding for the purpose of feeding, as it has many psychological effects, so the presence of the mother next to the child in its stages The first leads to him receiving enough attention and developing his self-confidence.
Psychologists have confirmed that a child who loses his mother in the first two years is prone to severe depression because he is deprived of love, tenderness, housing and reassurance. Those things whose availability leads to building a strong child with a normal personality, and we find that this behavior on the part of scholars has been a stable principle since the time of Ibn Sina, who He mentioned in his book (Al-Qanoon): “As for how he breastfed, he should breastfeed as much as possible with his mother’s milk, for it resembles the food with the essence of what he preceded from his food while he is in the womb, I mean his mother’s menstruation, for it is the same.
It has also been mentioned in the Encyclopedia of Family Health that: “Medical research has shown that breastfeeding has several advantages. There is no doubt that formula milk is similar in composition to breastmilk, and yet it lacks certain components found in breast milk, for example: breast milk can Protecting your baby from any infections and giving his body immunity against it, and the composition of breast milk changes with the change in the needs of the child, while the composition of the formula remains constant and does not change.

It has also been proven that children who received breastfeeding achieve good results in scientific development tests, as the fatty acids present in breast milk help the child's brain development properly.
This is in addition to the enormity of the danger that may occur if the nursing infant is executed only two months after birth, which leads to the artificial feeding of the child and loses a measure of health and psychological care that is urgently needed. Rather, we fear indicating the possibility of rejection of formula and the risk that this may lead to His life.
The American Academy of Low-Weight Pediatrics recommends mother's milk, as the benefits of breast milk for weak infants, as studies have shown that breast milk provides health protection alongside food because: -
Mother's milk has no analogues from other types of milk, God Almighty has made it appropriate to provide for the needs of the child day after day, as in the first days it contains large quantities of digested proteins that help to strengthen immunity
It also reduces exposure to intestinal flu and respiratory infection that affects the infant through the bottle, as the presence of antimicrobial substances in breast milk.
Breast milk also contains a sufficient amount of protein and sugar in proportions suitable for the child.

No one can deny the important role played by civil society organizations, which adopt all the issues of concern to society and mobilize and raise them, and contribute to the formation of public opinion and the creation of a system of unions that operate in a logical manner subject to logical standards and agreed rules and conditions, as it is one of the most important mechanisms Reform and development of societies, as their existence means the existence of political participation and national belonging. There is no existence of a democratic state without the presence of civil society institutions capable of interacting with society and addressing its problems, providing oversight, advice, guidance, and following up on state plans and programs.

And based on the paramount importance that the issue of the death penalty in general and the execution of a breastfeeding mother occupied in particular, which constitutes a humanitarian imperative that cannot be overlooked, these organizations have begun to launch campaigns to stimulate the abolition of the death penalty through various national and regional strategies. The issue of abolishing the death penalty should be at the forefront of its priorities, based on its belief in the sanctity of human life. Therefore, it called for narrowing the death penalty to the point of reaching its abolition and putting in place alternative penalties for this punishment so that we open the way for the rehabilitation of the convict and his reintegration into society.
As a result of the effectiveness of civil society organizations, most countries stopped issuing death sentences in cases brought before their courts, including “Tunisia, Palestine, Algeria, Lebanon, and Morocco”. These organizations also formed a number of coalitions in various countries of the world, so that their main goal is to abolish the death penalty, such as the coalition. The Regional Coalition Against the Death Penalty, the Congolese Coalition Against the Death Penalty in Los Angeles in 2004 and the International Coalition Against the Death Penalty in Rome 2002, in addition to a number of Arab coalitions such as the Tunisian Coalition, the Moroccan Coalition, the Algerian Coalition and the Palestinian Coalition.
And based on the special importance that Maat Center attaches to the topic of abolishing the death penalty, it has carried out many reports, studies and workshops that work against the death penalty until the establishment of the Egyptian Federation Against the Death Penalty was announced at the conclusion of the workshop held by Maat Center in cooperation and coordination with the International Organization for Reform The Criminal and Oman Center for Human Rights Studies, on June 20, 2007, also held a number of round tables aimed at setting controls on the death penalty.
In view of the special importance and the extreme risk related to the execution of the breastfeeding woman, Maat calls on the Egyptian civil society institutions to pay special attention to this issue, so that they are based on coordination among themselves in order to enable them to work according to a joint plan based on the integration of efforts and the distribution of roles and responsibilities, and work on issuing specialized reports and campaigns Organized lobbying and focused campaigns to postpone the execution of breastfeeding mothers.