Following the United Nations General Assembly’s call in June 2007 for the abolition of the death penalty on the grounds of protecting human rights, the then minister in the Prime Minister’s Department, Datuk Seri Nazri Abdul Aziz, announced in October 2008 that the Malaysian government was considering withdrawing the mandatory death sentence for drug offences and replacing it with jail terms.
Death punishment for murder, terrorist acts, treason, kidnapping, rape, possession of fire-arms and drug trafficking applies to this day in Malaysia.
The Dangerous Drugs Act 1952 provides for the mandatory death sentence for possessing and distributing drugs.
But total abolition has remained a debated topic ever since.
The proponents of human rights, including the Malaysian Bar, the Human Rights Commission or Suhakam and Lawyers for Liberty have called for the abolition of the death penalty as no studies have proved that it is a deterrent to serious crime, and that in the event of a miscarriage of justice, the penalty is irreversible.
As for the mandatory death sentence for drug trafficking, they have further argued that the experience of many countries, including Malaysia, showed that most of those caught under draconian drug laws are not the big timers the laws are meant to target.
Besides, there is no evidence that the death penalty is effective as a deterrent to curb drug trafficking, its production and its sale.
The proponents of the death penalty draw attention to the need to protect society from serious crime and the predicament faced by the victims and family members of murdered victims who demand the capital punishment.
Imprisoning the criminal for 20 to 25 years is costly for the taxpayer and perhaps inhumane.
Broadly, syariah law applies the death penalty to four crimes — murder, terrorism, adultery and apostasy.
The first two are prescribed in the Quran, which makes murder liable to the death penalty under qisas (just retaliation) and makes terrorism (hirabah) also subject to the capital punishment.
As for apostasy (riddah) and adultery (zina), it is the sunnah (ways of the prophet) not the Quran, that makes them liable to the death penalty.
The Quran refers to apostasy in no fewer than 21 places, yet in all of them, the offence carries severe punishment in the hereafter.
As for zina, the Quran provides 100 lashes of the whip for all cases proven by four eyewitnesses which is almost impossible to obtain — hence all cases of zina are likely to be given alternative punishments.
The death punishment for apostasy and adultery is based on the authority of the hadith (words of the prophet) that falls short, however, of decisive (mutawatir) evidence.
It is then argued that a discrepancy between the Quran and the hadith on issues of life and death must naturally be determined by referring to the Quran.
The Quran refers to qisas in several verses, yet in all of them there is a strong emphasis on forgiveness and reconciliation between the parties.
Prophet Muhammad emphasised forgiveness in all qisas cases that were brought to him for adjudication and consistently advised the parties not to insist on retaliation, but to reconcile through the payment of blood money (diyah) or grant of forgiveness.
This would suggest that qisas carries the death punishment which is, however, not mandatory.
Hirabah is described in the Quran as the “waging of war on God and His Messenger and the spreading of corruption on earth”, which provides for punishments, such as execution, mutilation of limbs and banishment.
Muslim jurists have also understood hirabah, also known as qat‘al-tariq, to mean highway robbery, banditry and terrorism which involves with or without killing, theft and looting.
They have differed widely over the order and choice of punishment for them, but the majority of Sunni schools authorise the head of state to select one or more of these punishments in proportion to the severity of the crime.
In summary, hirabah, like qisas, carries the death punishment, but since it is subject to stipulations and the discretion of the head of state, it also fails to qualify as mandatory death.
Can a death sentence be imposed on the basis of taczir (deterrent) principle in serious crimes other than murder and terrorism?
Imam Malik and some jurists of the Hanbali school have allowed for a Muslim to spy on other Muslims who work for the enemy who spread heresies.
But the majority, including the Shafini, Hanafi, and some followers of the Hanbali schools maintain that the death punishment may not be imposed under taczir.
Imam Abu Hanifah, however, has held out that the ruler may punish recidivists and hardened criminals to death under taczir.
In summary, the syariah law is restrictive on the death punishment and when it is allowed, it is carried out with stipulations and has the possibility of repentance, reconciliation, or alternative punishment.
There is no clear case for mandatory death punishment in syariah — lest it compromises the impartiality of justice.
Syariah jurists, however, leave it to the head of state the possibility of him deciding otherwise if public interest (maslahah) dictates it.
Mohammad Hashim Kamali is founding chief executive officer of the International Institute of Advanced Islamic Studies Malaysia.
Published in: New Straits Times, Sunday 2 June 2019
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