Islam prefers mercy over retributionWritten by Dr Mohamed Azam Mohamed Adil
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.
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