Papers, Newsletters, Reports & StatementsNotes on the Death Penalty in Islamic Perspective

Preliminary Statement

Islam allows the imposition of the death penalty in its criminal justice system and draws authority from the following verses of the Holy Qur’an:

1. “… (D)o not kill the soul which Allah has forbidden, except by way of justice; thus He has commanded that you may learn wisdom.” [VI:151]

2. “… (W)hoever slays a soul, unless it be for manslaughter or for mischief in the land, it is as though he slew all men; and whoever keeps it alive, it is as though he kept alive all men…” [V:32]

The two verses lay down the basic principles for the death penalty in Islam.

First Principle: Death penalty is allowed.

Second Principle: It can only be done with due observance of the requirements of justice.

Third Principle: It is specified only for certain offenses.

Fourth Principle: Although allowed, the preference is still to save life by exercising mercy.

The First Principle

A reading of the pertinent verses in the Holy Qur’an reveals that killing a person as a consequence of a crime is not absolute nor unconditional. In fact, VI:151 begins with a negative injunction and renders “killing” as an exception and conditioned on “justice”. The death penalty is allowed due to the prescriptive verses, but it is not mandatory owing to the constant exhortation that showing mercy to the offender is always preferable. Its strict imposition, therefore, is left to the discretion of governments and their judicial system.

In II:178-179 of the Holy Qur’an, God says: “O you who believe, al qisas (the law of equality) is prescribed for you in lieu of murder: the free for the free, the slave for the slave, and the female for the female. But if the killer is forgiven by the brother (or relatives) of the slain, then grant any reasonable demand and compensate him with a fair compensation. This is a concession and a mercy from you Lord… In the law of equality there is (saving of) life for you, O ye men of understanding, that ye may restrain yourselves.”

Muslim scholar Dr. Tariq Ramadan in his article “An International Call for Moratorium on Corporal Punishment, Stoning and the Death Penalty in the Islamic World” (April 5, 2005), wrote: “Considering that the opinions of most scholars, regarding the comprehension of the texts and the application of hudud, are neither explicit nor unanimous (indeed there is not even a clear majority), and bearing in mind that political systems and the state of the majority Muslim societies do not guarantee a just and equal treatment of individuals before the law, it is our moral obligation and religious responsibility to demand for the immediate suspension of the application of the hudud which is inaccurately accepted as an application of Shari’a…”

This recommendation takes an empirical view on the Islamic society and judicial system vis-à-vis the propensity of men to commit crimes and the reformatory possibilities that await an offender. It advances the view that not all criminal justice systems operate infallibly, and further, that crime may be a factor of a society whose welfare may not have been fully attended to by the state. It posits that in a less perfect world, the harsh consequences of penalties must be mitigated, particularly if such entails the deprivation of life.

The Second Principle

The death penalty can only be imposed by the state observing appropriate judicial procedures, in terms of safeguards to the rights of the accused and the evidence required for criminal conviction. The primordial presumption of innocence unless proven guilty is supported by the principle of istidlal which is the presumption that a state of things (eg. innocence of the accused) continues until proof (eg. required evidence of guilt) is offered that the state has ceased. As to the required weight of proof to support a finding of guilt, the testimonies of credible witnesses usually prove crucial. In the crime of adultery for instance, the testimony of four male eye-witnesses are required for conviction. This shows that even in evidentiary matters, the tendency of the judicial system is not to impose the death penalty when doubt or inconclusiveness are present in the case.

Imposing the death penalty may be a right of a victim against the offender, but it is not to be determined and executed by the victim or the relatives of the victim themselves. The essence of justice requires judicial determination, and such determination requires appropriate proceedings to establish the truth in the case; and once the truth or the fact of guilt is incontrovertibly established, the state presides over the execution of the penalty. The only participation by the offended party is in providing proof of guilt and exercising mercy over the guilty, if they so desire.

The Third Principle

Scholars are unanimous that the cases over which death penalty can be imposed are limited to only two general classifications: 1. Intentional murder or qatl (where the option is reposed on the victim’s family); and 2. Spreading mischief on earth or fasaad fi l-ard which refers to undermining authority or destabilizing the state. What constitute mischief on earth is open to interpretation by the ulama and fuqaha, and usually include waging war against God or hirabah (like rebellion against duly constituted authority), banditry, piracy, pillage, plunder, rape, adultery, apostasy and even homosexual activity. With all due respect to our scholars, if one were to categorize each of these crimes in connection with the real meaning of fasaad fi l-ard one realizes that some of those enumerated herein do not really constitute undermining or destabilizing the state or authority. In fact, the Holy Qur’an itself provides that the hadd penalty for adultery is one hundred lashes , and does not mention stoning to death, unlike in other fasaad crimes where the penalty of death is specifically prescribed.

This subject requires extensive study to sift through the nuances of the offenses, the evidence required and propriety of imposing the death penalty on the different circumstances obtaining. For purposes of this paper, it suffices to say that modern scholars have argued that private offenses that do not threaten the existence of the state should not be meted out the capital punishment of death.

The Fourth Principle

This principle is the hallmark of the humanity and pragmatism of Islam. While emphasizing the importance of penalty as a deterrent, it also opens the way for the reform of the criminal by the allowing the mercy of God and man save a criminal from the death penalty.

There are numerous verses in the Holy Qur’an and sayings of the Prophet Muhammad (SAW) advocating mercy and forgiveness, but a particular hadith of the Prophet Muhammad (SAW) goes this way: “Do your best to avoid mandatory punishments. If you can find a way for the accused, let him go. It is better for the ruler to err in granting a pardon than to err in enforcing a punishment.” [Related by Al-Tirmidhi in his Sunan, 1344] This is similar to the our penal law rationale for requiring proof of guilt beyond reasonable doubt and prohibiting self-incrimination as well as imposing rules on inadmissibility of certain evidence, to establish the guilt of the accused.

By Way of a Final Note

The classical, mainstream interpretation of certain verses of the Holy Qur’an provided support for the imposition of the death penalty, but there are also numerous verses and ahadith of the Prophet Muhammad (SAW) that call for the exercise of mercy and forgiveness, and the non-imposition of the death penalty. The primary argument of those who advocate it is that it is an effective deterrent against crimes which undermine society, and thus, helps promote justice, orderliness and the well-being of society. Those who oppose it argue that the main message of the Holy Qur’an and the actuations and words of the Prophet Muhammad (SAW) are for forgiving the offender and giving him or her the chance to reform during his lifetime. Islamic law has also imposed strict requirements in finding a person guilty of a crime that is punishable by death because the primary intention of the law being to regulate and reform society, an errant member of such society must also be regulated and allowed to reform himself, and killing him is not the way to achieve that.

Whatever, the pros and cons are, I personally believe that the criteria imposed by the general classification of fasaad fi l-ard may be used to reconcile the conflicting views. The imposition of the death penalty should be conditioned on the nature and gravity of the crime and its tendency to undermine and destabilize the very structure of state, government and society. The first task of our legislators therefore is to determine which of the crimes in our penal books fall under this category. Their second task is to provide adequate, workable safeguards to ensure that the innocent are not wrongly punished. All these are to be carried out within the ambit of a truly humane and just society.

ALLAHu alam.