In the face of the controversial blasphemy laws in Pakistan, this two part article examines the parameters of capital punishment in Islamic theology.

There are times when we, the actors of our stage, seek to dictate our collective narratives, for better or for worse. And then there are those occasions when, with the sleight of a hand of the Master Storyteller, we find ourselves implicated in the stories of our own fabrication. Such seemed to have been the case for the local village cleric, Hafiz Mohammed Khalid Chisti, who filed the First Information Report against a young Christian girl, Rimsha Masih, last month on the charges of desecrating the Qur’an. The world watched, aghast, as a young girl with down’s syndrome was dragged into prison under the infamous blasphemy laws that accord the death penalty for insults to religion and that have long been exploited to settle personal vendettas. In fear of reprisals and mob violence, the Christian community of the village fled to the nearby areas. Then, in a sweep of grand irony, the accuser became the culprit, arrested for orchestrating the blasphemy charges to target the Christian community of the village. With the young Rimsha was released on bail in guarded helicopters, the leading ulema at long last convened to discuss the misuse of the blasphemy laws.

But amidst real concerns for the girl’s safety from threats of mob violence, has this really been the “victory of justice” as hailed in international headlines? While the case of Rimsha Masih has finally opened the window of internal scrutiny in Pakistan, unravelling the web of procedural abuses of the blasphemy law, it must also raise a concomitant issue to the spectre of our analysis: the parameters of capital punishment in Islamic theology.

Whither the Death Penalty? A History and an Analysis

While the issue of capital punishment has been debated and re-examined in many parts of the world today, a multitude of voices from within Muslim countries claim that its abolition would be contrary to Islam. The reasons for this resistance are, in fact, rooted more in politics, amidst various secularist and Islamist trends competing to assert their legitimacy over the state. Often in the internal factionalism of Islamist trends, the stronger or more punitive the stance, the more faithful it is deemed to be to the Islamic reference.  Much in the same manner, the political origins of the “blasphemy enterprise” in Pakistan also emerged against the backdrop of Zia ul Haque’s Islamization campaign during the Soviet invasion of Afghanistan, even though its legal precedents (ironically) date back to British colonial law. But notwithstanding the political context, it is undeniable today that the categorical death sanction for various offences, including blasphemy, thrives on a body of religious opinions on what constitutes the Shar’iah.

Islamic law rests upon two distinct, albeit inter-related, concepts: Shar’iah (in Arabic: the path) and Fiqh (jurisprudence). The former, as the literal translation suggests, represents a broad set of norms, the spirit of the letter, or guiding principles as articulated in the Qur’an and the Sunnah. Fiqh, on the other hand, is a set of legal opinions that Muslims jurists over time, and in their various contexts, have extrapolated from the fundamental sources of the Qur’an and the Sunnah. Fiqh as an implementation of the Shar’iah in the socio-political realm is necessarily mutable in accordance to its time, setting, and also interpretation. Today the term “Shar’iah law” is constantly evoked in the mantra of some Islamists as well as self-styled western pundits, as a confused amalgamation of the two distinct concepts, and with little discretion. In this monolithic form, the term “Shar’iah law” which owes much credit for its existence and legitimacy to many western commentaries, represents no more than a set of religious opinions deemed immutable by “religiously credible” sections of the population.

In Islamic jurisprudence, the legal basis of the “death penalty” for blasphemy (sabb) has been commonly associated with a concomitant question of apostasy (irtidād), with blasphemy taken as an offence on a higher degree. While justifications of the death penalty for apostasy can be found in the literature of jurisprudence (fiqh) developed over centuries by Muslim jurists, this is a far cry from a consensus on the issue.  Notwithstanding the fact that apostasy or even insults to religion were never punished during the lifetime of the Prophet, the death penalty for apostasy was developed during the first century of Islam’s expansion and elaborated by the jurists of what is now accepted as the four schools of jurisprudential thought (Hanafi, Maliki, Shafi and Hanbali). Writing in the early centuries of Islam’s expansion, these jurists mandated the death penalty for instances of apostasy and/or blasphemy, but disagreed among themselves in the interpretation and implementation of istitāba (repentance following apostasy). The concept of istitāba, or repentance following an act of apostasy or blasphemy, was derived from the Qur’anic verse:

“Those who believe then reject Faith, then believe (again) and (again) reject Faith and go on increasing in unbelief – Allah will not forgive them, nor guide them on the way.” (4:137)

Ironically scholars arguing to the contrary have cited the same verse to emphasize that, in fact, there is no worldly punishment prescribed for the rejection or denigration of faith. Although the literature of fiqh developed by the early jurists serves as an important reference in Islamic law to date, much the same way as legal precedents are treated in the common law tradition, Muslim scholars and reformers over time have argued against the blind imitation (taqlid) of the established schools of thought. Mohammed Abdu, an Egyptian scholar from al-Azhar in the early twentieth century, for instance, upheld the authority of the Qur’an and the Sunnah, but was critical of the sacrosanct status accorded to the schools of fiqh. Based on the understanding of human history as a process of renewal, revival and reform, he stated: “I do not abide by any authoritative consensus for the sake of abiding by authority. I defer only to reasoned evidence.” In the same vein, another Egyptian scholar from al-Azhar in 1926, Sheikh Ali Abd ar Raziq, re-examined the issue of apostasy in Islamic jurisprudence. According to Abd ar Raziq, what was termed as the “Riddah (apostasy) wars” during the time of Abu Bakr were not fought by apostates of religion per se, but by those who had also opposed Abu Bakr on political grounds and had committed treason.

More recently, the Tunisian Islamist leader of the Ennahda Party, Rached Ghannouchi, ruled out the death penalty for apostasy, arguing that the punishment was historically applicable only in acts that constituted as military insurrection. Ghannouchi, much like Abd ar Raziq, highlighted the disagreement among the sahaba (companions of the Prophet) over fighting the murtaddun (“apostates”) during the time of Abu Bakr to indicate that the jurisprudential treatment of apostasy, even historically, was open to debate. Today, a number of Islamic scholars including Javaid Ahmed Ghamdi, Dr Zaheer Khalid and Dr. Khalid Masood highlight the limited prescription of capital punishment within Islam and argue against corporal punishment for apostasy or blasphemy. In so doing, they cite, among others, the following verses:

“And if your Sustainer had pleased, surely all those who are in the earth would have believed; Will you (O Muhammed) then force men until they become believers?” (10:99)

“And have patience over what they say, and leave them with noble (dignity).” (73:10)

“When you hear the signs of Allah held in defiance and ridicule, you are not to sit with them unless they turn to a different theme.”(4:140)

Swiss academic and Islamic scholar, Tariq Ramadan has also called for an international moratorium on corporal punishment in general, until a new consensus is reached through renewed debate and dialogue among scholars and jurists of Islam.

But if there is indeed a sanction for capital punishment in Islam, what are its actual parameters in the Qur’an or the Sunnah? Contrary to the widely held perception, capital punishment, in the light of the Qur’an and the Sunnah, is not a mandatory decree. The Qur’an states: “Do not kill a soul that Allah has made sacred for you, except through the due process of law (illa bil- haq).” 6:151. This exceptional endorsement is given under two clear pretexts: acts of intentional homicide where there is a risk of endangering more lives, and acts that spread “mayhem” (fasād) in society. As far as the second pretext for capital punishment is concerned, the Qur’an speaks of fasād in a verse that appears in a setting of a war. Although the term can be broadly used and loosely interpreted in Muslim vernacular, the second chapter of the Qur’an provides an extensive commentary on the concept of fasād (i.e. the act of spreading mayhem or mischief on earth). More specifically, the intensity of the criminal offence embodied in the concept of “fasad” is given in the following description:

“And remember We took your Covenant: shed no blood amongst you, nor turn out your own people from your homes; and this ye solemnly ratified, and to this you were witness. (84) After this it is ye, the same people, who slay among yourselves, and banish a party of you from their homes; assist (their enemies) against them, in guilt and transgression; and if they come to you as captives, ye ransom them, though it was not lawful for you to banish them.” (2:85)

The Qur’an lays out the principle of proportionality in retaliation, as embodied in the decree “an eye for an eye”, but each endorsement is followed by an emphasis on forgiveness and clemency as a more superior quality. Another alternative exists in the form of compensation or restitution to the families of the victims, as embodied in the concept “blood money”. For contemporary examples on the applicability of these principles, one could simply consider the debates of post-apartheid South Africa or post-conflict societies, where the demands of justice often call more urgently for economic redistribution, than for retribution per se. The flip side of the same debate, however, rests upon the notion that peace without some level of accountability is not justice. Intriguingly enough, Dr. William Schabas in his study “Islam and the Death Penalty”, has argued that the position on the death penalty within the Islamic doctrine would seem to be same as that in the Fifth Amendment to the United Constitution or the European Convention on Human Rights.

Today a number of anti-abolitionists have seized an exceptional endorsement in the Qur’an as a categorical imperative. But its endorsement in the Qur’an and the Sunnah is not an end in and of itself; it is largely flexible, and conditional on the greater objectives of justice. While it is true that the death penalty may be justified as “Islamic” in very limited circumstances, largely in instances of war or even otherwise, it is equally evident that the abolition of the death penalty is definitely not “un-Islamic”.

After all, the same Muslims who resist alternatives to punitive measures pay homage to the God who declares: “And verily, My Mercy overcomes My Wrath.” (Sahih Bukhari)

The views expressed in this article are the author’s own and do not necessarily reflect Fair Observer’s editorial policy.

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