Capital Punishment:
An Islamic Perspective
By Dr Shahid Athar
US
In
the US, 38 states have re-instituted capital punishment,
and 3,000 prisoners are on death row. The homicide
rate in 12 states, which do not have capital punishment,
is higher than those who have it. Afro-Americans
claim that in certain states, they receive an
unduly higher proportion of the death penalty.
To date in the USA, 45 men have been executed,
only to have their innocence proved later on.
The fairness of implementation of death penalty
laws from state to state is a major issue. Many
defendants had neither adequate counsel, nor could
they afford a private one during their trials.
On the other hand, it is claimed that the rich
and influential, black or white, can get away
with the crime by hiring the most expensive trial
lawyers.
Although capital punishment has been around for
thousands of years, its status has always been
questioned. The human rights groups discuss whether
or not it is legally sound, the law enforcement
agencies argue whether or not it is useful and
effective, and the legislature discusses whether
or not it is cost-effective. However, it is hardly
ever discussed as an issue of faith.
We must consider capital punishment from the aspect
of a giver of life and death. “He who created
life and death, that He may test which of you
is best in deed. He is the mighty, the forgiving.”
(Qur’an 67:2) “No one can die except
by God’s permission, the terms being fixed
as by writing.” (Qur’an 3:145) Life
is sacred. “Do not take the life which God
has made sacred except in (the course of) justice.”
(Qur’an 6:151)
Thus it is clear that the giver of life and death
is God Himself alone, and anyone acting on His
behalf must act according to His principles. “We
decreed for the children of Israel that whosoever
kills a human being for other than man slaughter
or corruption on earth, it would be as if he killed
all mankind; and whosoever saves one life, it
would be as if he had saved the life of mankind.”
(Qur’an 5:32)
Capital punishment is mentioned in the Holy Qur’an
as well as in the Old Testament as a form of retaliation
(qisas). “And we prescribe for
them therein the life for a life, the eye for
the eye, the nose for the nose, the ear for the
ear, the tooth for the tooth, and for wounds of
retaliation. But whosoever forgives it (in the
way of charity), it shall be expiation for him.
Whosoever judges not by that which God has revealed,
such as wrongdoers.” (Qur’an 5:45).
A similar verse is seen in the Old Testament (Exodus
21:23-25.) In the New Testament, the law of retaliation
was omitted. “You have heard it said, an
eye for an eye and a tooth for a tooth, but I
say to you, do not resist one who is evil but
if anyone strikes you on the right cheek, turn
to him the other also.” (Matthew 5:38-39).
However, these New Testament verses should be
interpreted in the light of another of Jesus’
statement, “Think not that I have come to
abolish the law and the prophets. I have come
not to abolish them but to fulfill them.”
(Matthew 5:17).
Capital punishment was prescribed in the Old Testament,
not only in lieu of murder, but 18 other crimes
also including adultery, blasphemy and homosexuality.
In the Bible, the penalty is death for blasphemy.
“When he blasphemes in the name of the Lord,
he shall be put to death.” (Leviticus 24:16)
Salman Rushdi, in those days, did not need a fatwa.
Thus it is clear that Islam did not initiate the
law of capital punishment; it was there in the
Old Testament, and Islam added the concept of
blood money, which was practiced by Arabs before
the Qur’an was revealed. The concept of
blood money can be compared with the modern concept
of compensation to the victim or the wronged party.
There are crimes for which the death penalty may
be justified: i.e. in lieu of an unjust and proven
murder, life for life.
The punishment for homicide in Islam could be
either qisas (retaliation) or payment
of diya (blood money). This is mentioned
in Qur’an as the punishment for homicide
as either killing of the murderer or payment of
compensation to the next of kin if they do not
insist on retaliation (qisas). Qur’an
says, “O you who believe, retaliation is
prescribed for you in the matter of murder, the
free man for the free man, the slave for the slave,
the female for the female, but if any remission
is met to him by his brother (brother in faith),
then grant any reasonable demand and compensate
him with handsome gratitude. This is alleviation
and mercy from your Lord, and whosoever transgresses
after this for him, there will be a painful punishment.
In qisas, there is life for you, for
men of understanding, in order that you may become
God conscious.” (Qur’an 2:178-179)
For accidental homicide, there is a different
law mentioned. “Never should a believer
kill a believer unless by mistake, and whoever
kills a believer by mistake should free a believing
slave and pay compensation to the family of the
deceased, unless they remit it freely.”
(Qur’an 4:92). Thus, taking these verses
together, it is clear that no qisas or
retaliation is owed for accidental homicide, but
compensation is allowed.
Islam’s emphasis on the sanctity of life
extends not only to individuals but also to the
unborn, which it considers a living person. Thus,
if a pregnant woman in the stage of viable pregnancy
is injured, for example, by a thief to the extent
that she aborts or delivers a dead fetus, the
thief can be charged with murder of the fetus;
and the law of qisas will apply unless
the mother forgives him and accepts the blood
money.
Islamic laws are based on justice as one of the
attributes of God Himself is Al-Adil (The
Just One). Therefore, justice must be applied
to those to who have done injustice. The main
question is who should apply the justice. Certainly,
it cannot be an individual taking the law into
his own hands and applying capital punishment
to the murderer. A Sharia court comprised of judges
who are familiar and expert in the Islamic laws
is the best authority. An Islamic judge, however,
may turn the case over to the next of kin for
a compassionate judgment.
The secular justice system is a questionable authority
in Islam. Most often, the secular law and justice
system is flexible and changes according to public
opinion. Islam is not a religion of individuals
or public opinion. We are told in Qur’an
that “It is not fitting for a believing
man or believing woman to have an opinion in their
affairs when God and His messenger have decided
an affair for them. And whoever is rebellious
to God and His messenger, has gone astray in an
error manifest.” (Qur’an 33:36).
Islamic law of capital punishment cannot be hastily
applied by a king or court without due investigation
and proof. Circumstantial evidence alone cannot
be used to take away someone’s life.
Confession by the criminal himself four times
is the best witness. However, other witnesses
can be used by the court. The eye-witnesses should
have known high moral quality and standing in
the community. Usually two male witnesses or one
male and two female witnesses are needed.
Once the capital punishment has been prescribed
by the court of Sharia, it should be carried out
in a public ceremony. The purpose is to give a
lesson to the witnesses present as a reminder
and as a deterrent. There should be no sympathy
in their hearts or protest against a just, legal
system, and the punishment prescribed for an evil
crime. There should be no public cheering or shouts
of protest.
The emphasis in Islam is not on punishment itself
but the reform of the criminal as well as a reminder
to those who are witnesses to the punishment.
We believe that after receiving the due punishment
in this world, the murderer in the life hereafter
will not be questioned about it, and will receive
his due share of rewards for the good he might
have done in this life. For this reason, before
the administration of capital punishment, he is
advised to perform the ritual prayer and pray
to God for his forgiveness before he departs this
world.
The present capital punishment law in the USA
varies from state to state, and it is claimed
that it is more biased against Afro-Americans.
To the contrary, Islamic law, if correctly applied,
will be uniform in each state and will not discriminate
against any race, color or gender.
The Divine Justice and Wisdom cannot be compared
to the ever-changing man-made laws. The rights
of the criminal cannot be the same as those of
the innocent victims and civilians. The latter
cannot be sacrificed over the former. By eliminating
the criminal from the scene, the Divine Justice
seeks to protect innocent civilians from future
crimes of the serial killer at large. However,
life is priceless, of the victims of the homicide
as well as of the murderer.
