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Supporting Moratorium on Capital Punishment

Reprieve for the Condemned and Islamic Law

October 10th was marked as anti-death penalty day worldwide. Its sham
that government’s July 2nd decision to commute the death sentence of
7400 death row prisoners that was applauded across the globe is yet to
be honoured by deed. Despite undertakings by Prime Minister Gillani
before the parliament and reaffirmed by the newly elected President
Zardari in his inaugural press-conference. The lives of 7400 death row
inmates still hangs by a narrow thread and their prayers of
deliverance to Almighty Allah thus far remains unanswered, though they
have fasted and repented through the blessed month of Ramadan. It’s
reported that a few have been already executed since the announcement
is alarming and scandalous
The coalition leadership, like my brother (Mirza Tahir Hussain) have
spent long terms in jails often on questionable evidence and know from
experience how vital it is to reform the outdated system. That is
increasingly used to settle social, political and sectarian grudges.
Due to commitments of the world-wide coalition against the death
penalty and our extensive lobbying efforts the EU sponsored UN
resolution was passed last year with overwhelming majority to abolish
the death penalty world-wide.

Islamic law is also underpinned by strong notions of mercy and
compassion despite stereotypical characterization of Islam that
implies it is a medieval, retributive and oppressive religion. Even
when the Archbishop of Canterbury Dr Williams and Lord Philips (the
highest judge in England) stand up to defend the application of Sharia
in matters of personal and civil law in England, they are condemned
furiously. Sharia conjures up the most horrific images of public
beheadings, stoning and amputations that flash before the public’s
imagination. However those with slightest of knowledge would know
better that as in all religions, there are ‘progressive’ and
‘conservative’ strands of thought and Islam is no exception.

There is so much diversity within the Muslim-world even with many
aspects of religious doctrine both in law and practice. This is
vividly demonstrated with regards to the application of capital
punishments. Almost 30 of the 60 ‘Islamic’ countries have abolished or
have moratoriums in place. For instance the Republic of Maldives lead
by a conservative, Al-Ahzar educated head of state, has not executed
anyone for the last 55 years. Another example is Brunei Darussalam
ruled by a Sultan, has not carried out any death sentence for over
half a century. Benin, Ghana, Niger, Tanzania, Surinam, Tonga and
Tunisia had moratoria for over 10 years. Although Algeria, Kazakhstan
and Mali have death penalty on the statute book, they have decided to
freeze all executions.

Another set of countries have abolished the death penalty altogether
for all crimes namely Albania, Bosnia, Djibouti, Kyrgyzstan,
Mauritius, Senegal, Tajikistan, Turkey and Turkmenistan.

Whilst conducting research for this article I spoke with a number of
muftis and jurists in these countries and majority were of the view
that this is indeed in conjunction with Quranic principles of
clemency.
Although the ‘law of equivalence is ordained for murder’ however the
word Qisas has a lot wider meaning in the Arabic lexicon. ‘The
objective of punishment can be achieved short of death or execution’
to use a phrase from one of the conversations.

The Holy Quran contains about 6,219 verses; however no more than 600
in particular deal with legal matters, mainly with areas of family law
such as divorce, marriage, inheritance and prohibitions. Only a few
mention capital offences with punitive injunctions. The latter are of
two types namely, ones where the punishment has also been prescribed
by the Quran, secondly those where the punishment is left to Ulu’
al-Amr (experts) or jurists to determine as per exigencies of
particular circumstances. For example, in the case of intoxicants
(wine), its prohibition is ordained but the punishment has not been
prescribed for its non-observance.

The verses dealing with capital offence of murder and carry punitive
measures have an emphasis on clemency are quoted as follows;

“O believers, ordained for you is Qisas (pursuit of the offender
through due process of law) for the murdered; the free for the free,
the slave for the slave, the woman for the woman [murder is a
punishable crime as everybody is equal before the law regardless of
status and gender. The offender is alone responsible for their actions
not the wider clan or his/her master so to avoid collective punishment
which was a common practice in pre-Islamic times amongst Arabs]. But
he who is pardoned some of it by his brother [brother mean the wider
brotherhood of believers, the Muslim community or State because not
all victims have a blood brother] should be dealt with equity, and
recompense (for blood) paid with grace. This is a concession from the
Lord and a kindness. He who transgresses in spite of it shall suffer
painful punishment. In Qisas there is life (and preservation). O men
of sense, you may haply take heed for yourselves. (Al-Baqarah 2-178/9)

That Qisas, in the Qur’anic terminology, is not lex talionis or law of
retribution has been implied by many translators of the Quran. The law
of retribution is mentioned in Chapter five, the Feast (5-32 & 45)
with reference to the children of Israel and the Law of Moses. Qisas
is unique in its meaning; it can not be simply translated as
‘retaliation’. The ‘literal’ meaning of this word from the classic
Arabic lexicons is ‘to pursue someone’ or ‘to investigate by following
ones footsteps’ [for references see Taj al-Arus (Dictionary), by Imam
Muhibb al-Din abu-l-Faid Murtada] Although Al-Raghib Al-Isfahani, in
Al-Mufradat fi Gharib al-Quran, The Dictionary of the Quran, does say
‘blood in pursuit for blood’ is deduced by the learned scholar and is
his understanding of the verse.

In this case the criminal is pursued in such a way that he/she is held
accountable. It means that in the Quran, no crime shall remain
untracked and calls for a flawless and firm system of investigation
and due process of law to bring to account the culprit and provide
security and peace for society.

It is not for a believer to take a believer’s life except by mistake
and he who kills a believer by mistake should free a slave who is a
believer, and pay blood-money to the victim’s family unless they
forego it as an act of charity…. But he who has no means (to do so)
should fast for a period of two months continuously to have his sins
forgiven by God, and God is all-knowing and all-wise.

And there (in the Torah) We had ordained for them a life for a life,
and an eye for an eye, and a nose for a nose, and an ear for an ear,
and a tooth for a tooth, and for wounds retribution, though he who
forgoes it out of charity, atones for his sins. And those who do not
judge by God’s revelations are unjust. (Al-Ma’idah 5-45)

..Nor take life, which Allah has made sacred, except for just cause.
And if anyone is slain wrongfully, We have given his heir authority,
(to redress); but let him not exceed bounds in the matter of taking
life: for he is helped (by the same Law). (Surah Bani Isra’il’, 17-33)

Everybody should be treated justly it is said in sura, Al-Nahl, The Bees;

Verily God has enjoined justice and benevolence, the giving of gifts
to your relatives and forbidden indecency, impropriety and oppression.
(The Bees, 16-90)

Even the enemy should be treated with fairness and justice without bias;
O you who believe, stand up as witnesses for God in all fairness, and
do not let the hatred of a people deviate you from justice. Be just:
This is closest to piety and beware of God. Surely God is aware of all
you do. (The Feast , Al-Ma’idah, 5-8)

It’s obvious that the above verses are addressed to the wider
community of believers and not just the victim and the offending
party. Since the affairs of society are regulated and constituted by
State, the instrument of God’s mercy as mentioned in the Holy Quran
can be exercised by both the agency of man (individual) and the State.

Right of the freedom of religion also finds explicit expression in the
Quran. There is the complete freedom to adopt or forsake whatever
religion one likes.

There is no compulsion in matter of faith. Distinct is the way of
guidance now from error. He who turns away from the forces of evil and
believes in God, will surely hold fast to a handhold that is strong
and unbreakable, for God hears all and knows everything. (Al-Baqarah
2:256)

No human being can be subservient to another. Nobody can have the
right to rule other people and browbeat them into following one’s
religion. Not even the Prophet of God had that right.

“No human has the right, even though God may have given him a ‘code of
laws’ or the power to enforce it or even Prophet-hood that he should
say unto mankind: ‘Be subservient to me instead of God’ (Al-‘Imran
3-79)

It is apparent from these verses that capital offence for blasphemy is
repugnant to Quran and Sunnah (the examples of the noble Prophet).

In the Holy Quran there is no punishment for ‘Murtad’ (an apostate).
When freedom of religion is the basic principle, then why should there
be a punishment for change of religion or for that matter blasphemy?
Since no punishment for such offences is to be found in the primary
sources of Islamic Law or life and examples of the Prophet Mohammed
himself, then we need to re-examine these outdated laws imposed by the
cruel Kings during periods of turmoil when Muslims felt vulnerable to
abuse and slander. It’s about time these laws are scrutinized,
reformed and brought into line with 21st century realities and
universal human rights norms which are in accordance with Quranic
principles. This viewpoint finds concurrence with the comprehensive
report of Pakistan’s Council of Islamic Ideology published in 2007.

The death penalty is unnecessarily invoked when justice and legality
can be achieved with alternative punishments. The message of the Holy
Prophet Mohammed is one of mercy, compassion and sanctity of life. The
Quran clearly states that; ‘retribution (eye-for-eye) shall be
forgiven out of charity so that those who forego it, will atone
thereby sins of the past (5:45).’ In this verse the law of retribution
is described. Both Jews and Muslims are encouraged to forego it out of
charity which underpins the strong notions of mercy that are found
throughout the Quran.

I am sure all these 30 or so Muslim countries weren’t bewitched and
succumbed to the ‘pressure’ from the ‘West’ as is being suggested in
the case of Pakistan that merely granted a reprieve as per PPP
governments long held policies and publicly stated commitments.
Besides they won overwhelming backing at the ballot box and are
empowered through the democratic process to carry forward their
programme. This reprieve is not the first act of clemency granted by
the State: there are several major cases in law and practice which had
the approval of the Supreme Court of Pakistan.

It is also disconcerting to note that due to the behaviour of
conservative ulema and some states it is inferred that ‘Islam favours
death penalty’. It is obvious that there is no monolithic Islamic
opinion on this issue in the Muslim world. It has probably more to do
with their narrow, selective interpretations of Quran, the traditions
and the unreliable precedents from history. As for Gulf States, it’s
the block-voting habits of these nations along with other retentionist
states like China, Singapore, Japan and USA at international forums
and their tactics designed to thwart the emerging international
consensus on human rights world-wide. Their speeches and arguments are
based upon narrow notions of culture, religion, nationality and
revolve around ‘surrendering’ national sovereignty to International
Human Rights Instruments and the International Court at The Hague. In
spite of misconceptions, Islamic law is balanced and objective with
strong undercurrents of moderation and sympathy for the subjugated.
Punishments ordained are meant to be free of any spirit of vengeance
or torture with strong emphasis on reconciliation and social harmony.

However, there are wider aspects of this issue in Pakistan that remain
a great concern to the international community and to those of us who
have been adversely affected by it personally. Whilst recognizing that
miscarriage of justice occurs in all countries and the West is no
exception (ones of the reasons why death penalty has been abolished
together in over 90 countries, despite the fact that some of them have
well developed criminal justice institutions). Pakistan, it seems, is
more susceptible to it than other places mainly due to the confused
combination of secular and religious laws which run parallel to each
other, neither of which are implemented in true spirit and form. For
instance at the time independence in 1947 death penalty was invoked
for just two crimes, namely murder and treason. Today 27 crimes carry
the death sentence, including blasphemy. The sentence is applied
arbitrarily. There is consensus emerging amongst reasonable and
objective jurists and civil society that Pakistan needs serious help
for reform.

The Asian Development bank loaned $400 million to improve the criminal
justice system. However more is needed to be done in terms of
organisational reform, judical independence that is free from cultural
and political manipulations, as well as sectarian influences favouring
a particular school of thought.

Several other reports indicate that the criminal justice system in
Pakistan needs a complete overhaul. The judges are over-worked. Only
600 magistrates deal with 70% of the cases for a population of 170
million, compared with 30,000 magistrates in UK dealing with a
population of 50 million people. Lengthy appeal processes leads to
overcrowding in prisons. In addition to cultural and religious
insensitivities, financial constraints are also a major factor. Also,
Pakistan has rudimentary defence counsels that are paid approximately
Rs500 per case and no legal aid is available for defendants. A
majority of those sentenced to death are poor, whilst those who are
able to afford legal representation and happen to come from the
minority communities such as the Ahmadi’s and Christians who continue
to face religious discrimination and bias. The probation and
rehabilitation service is considerably undeveloped and often
non-existing in practice. The welfare of inmates and those released
having spent long time in prison are left to fend for themselves or at
the mercy of society and the charities. The forensic facilities are
outdated with broken equipment and laboratories that are not fit for
purpose altogether. Hence the overwhelming reliance is placed on oral
and circumstantial evidence that is calculatedly exploited by clever
litigants, often resulting in gross miscarriages of justice.

It’s apparent that the higher penalties are the exception and not the
norm in Quran. The emphasis is overwhelmingly towards rehabilitation
of the offender, monetary compensation for the victim’s kin,
forgiveness and atonement. Fraught as Pakistan’s situation is at the
moment, lawlessness and terrorism only increases if we over step the
rule of law itself. Human history, behaviour sciences and statistics
indicate that societies based upon fairness and respects for human
rights are peaceful and pluralistic then those that practice vengeance
and retribution.

Under such circumstances it is expedient to exercise prudence and
echoing the word of Amir-ul Momineen, Hazrat Umer bin Khtab, “better
to set free 100 offenders than to put to death an innocent person.�?
Another reformer Caliph Umar ibn Abdul-Azîz has said “Better that I
should err a thousand times in pardons rather than err once in the
application of a penalty.�?

Moratorium is a much safer alterative because the element of ‘mistake’
can not be ruled out under the conditions that currently prevail in
Pakistan and justice can serve its course without executions.

Religious extremism traces its roots in the widespread hate speech spread by clerics, groups and individuals. Such ideas further indoctrinate the masses with false notions of violence and a perceived glorious past; the state should take coercive messages to stop this dissemination of propaganda.

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