The right to life and death in syariahWritten by Dr Mohamed Azam Mohamed Adil
The right to life is one of the fundamental aspects of human rights.
Without this right, people risk losing other rights such as freedom of religion, freedom of speech and opinion, freedom of movement, property ownership rights, and many more.
Protecting the right to life is foundational to the building of a civilisation, without it, it is impossible to sustain a civilised culture and achieve technological advancement.
Hence, jurists and philosophers are unanimous in considering this right to be inalienable and non-negotiable.
While the Syariah recognises the right to life of each and every human, it also posits that humankind is the prize of God’s creation.
Because humans were created by God, a human’s right to life ultimately belongs to God. For God gives life, and He is the one who takes it back. Therefore, human lives are sacred according to the Syariah, and it is a crime to take another human’s life without just cause. In this regard, Syariah has prescribed retaliation (qisas) that prescribes the death penalty for intentional murder.
The right to life is also ranked as one of the most important objectives of the Syariah (Maqasid Syariah). While some Muslim scholars have contended that preservation of life should come after the preservation of religion, there are many who argued that preservation of life should be prioritised foremost. This is based on the argument that without life, man cannot live and preserve the religion in the first place. The prohibition of suicide and murder are clearly enshrined in the Quran: “... and do not throw [yourselves] with your [own] hands into destruction” (Q2:195) and “…whoever kills a believer intentionally, his recompense is Hell, wherein he will abide eternally, and Allah has become angry with him and has cursed him and has prepared for him a great punishment” (Q4:93).
However, Syariah does allow the taking of one’s life through the appropriate legal processes in pursuit of justice, like in the case of murder. Even so, the next-of-kin of the victim is given the option to forgive the murderer by taking a diyat (blood money) for the Right of Man (haq al-adami) part, yet the authorities may still punish the offender for violation of the Right of God (haq Allah) or the community’s right. Other Syariah offences that warranted the death penalty include adultery committed by married persons (zina muhsan), and hirabah (highway robbery and terrorism).
However, over the last two decades, public opinion on the application of the death penalty has shifted. The United Nations (UN) through its Human Rights Council, for instance, has called for the abolition of the death penalty. Consequently, many countries have abolished the death penalty. Until the end of 2017, 142 countries have abolished the death penalty in their general laws, while 106 countries have abolished laws prescribing death sentences for all criminal offences.
This shows that the world trend is to eliminate the death penalty.
Even in countries that still uphold the death penalty like Iran and Malaysia, there has been a declining trend in its execution.
For example, Malaysia has taken a positive step by amending the Dangerous Drugs Act 1952 in 2017 which could lower the mandatory death sentence to life imprisonment.
This abolitionist trend, however, poses a challenge to Islamic criminal law due to the latter’s prescription of death sentences for certain crimes.
For Muslims, there is a moral obligation to remain faithful to the injunctions provided by Islamic law.
A Muslim judge cannot simply replace the prescribed punishment with another without a strong justification.
However, a judge is allowed to refuse to take up a case, or under certain circumstances impose a lighter sentence by means of discretionary laws (ta’zir).
Not all death sentences in Islamic law are fixed and irreversible. Punishments in Islamic criminal law can be divided into two categories:
(i) the right of God, where the crime is committed against God, in which the punishment cannot be negotiated; and,
(ii) the right of human beings, where the crime is committed against another fellow human being.
For example, under the law of qisas, the next-of-kin can either opt for the death sentence or substitute it with diyat (blood money). Additionally, while the Islamic laws are considered divine, Syariah does allow withholding its injunctions in the case of drought or other extreme exigencies.
From the above discussion, it can be concluded that the death penalty in Islamic criminal law cannot be repealed except in the case of qisas where it can be replaced with diyat payment. Despite international pressure to repeal death sentences under the Syariah criminal law, it can still be practised provided that it does not violate the international law and in accordance with Article 6 of the ICCPR 1966 which excludes serious cases.
For hudud crimes involving serious offences such as hirabah (highway robbery and terrorism) the application of the death penalty can still be justified. In the case of adultery committed between married persons (zina muhsan), the Quran prescribes four eye witnesses for proof, which is almost impossible to provide.
Hence, the punishment of zina in almost all cases is reduced to ta’zir, which the sentencing judge can determine and quantify.
The only punishment that the Quran provides is 100 lashes of the whip for all proven cases of zina. The death punishment for zina is not mentioned in the Quran but only found in the tradition (Sunnah).
Abolishing death sentences as provided in the Second Optional Protocol and other international laws may be realised in the case of ta’zir (discretionary) sentences that prescribe capital punishment.
Abolishing the death penalty for ta’zir offence will not raise any question on the issue of right to life from an Islamic perspective.
The writer is associate professor and deputy chief executive officer of International Institute of Advanced Islamic Studies (IAIS) Malaysia.
Published in: New Straits Times, Friday 2 November 2018
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