Death penalty under criminal law and syariahWritten by Mohammad Hashim Kamali
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