Sharia and the death penalty: how Islamic is ‘marah maru’?

 

Government…can’t be trusted to control its own bureaucrats or collect taxes equitably or fill a pothole, much less decide which of its citizens to kill.

–  Helen Prejean, ‘Dead Man Walking’ 

by Azra Naseem

On July 1, a Maldivian lawyer was brutally murdered, his body stuffed into a dustbin. On June 4,  militant Islamists tried to murder Hilath Rasheed, the country’s only openly gay rights activist and a rare voice advocating secularism in the Maldives. On 30 May,  a 65-year-old man was killed on the island of Manafaru by robbers after his pension fund. On the same day, in Male’ a 16-year-old school boy was stabbed multiple times and left to bleed to death in a public park. On April 1, a 33-year-old man was stabbed to death in broad daylight by two men on a motorbike.  On February 19, a twenty-one-year-old life was taken in a case of ‘mistaken identity’.

Amidst the increasing violence and decreasing value of life, calls for restoration of the death penalty are growing. It is normal for a society experiencing unprecedented levels of crime to demand the death penalty as a solution. In the Maldives, however, the whole debate is framed within the precincts of religion, touted as a return to ‘Islamic justice.’

This is not to say other ways of looking at it are completely absent from the discourse.There’s Hawwa Lubna’s examination of the death penalty within a rule of law framework in Minivan, and Mohamed Visham’s somewhat confused and confusing analysis of its pros and cons in Haveeru, for example. Such discussions are, however, pushed to the fringes as the theme of ‘Islamic justice’ takes precedence.

My question is, how Islamic is this call for ‘Marah Maru’ [death for death]? Is revenge what underpins provisions for the death penalty in Sharia?

The Qur’an mandates that everyone has a right to life, unless a court of law demands killing: “Nor take life — which Allah has made sacred — except for just cause.”1

What is not being said in the Maldivian debates on the death penalty is that although the Qur’an provides for situations in which the death penalty can be imposed, all such situations are carefully laid out with stringent evidentiary requirements that discourage carrying out a death sentence.

And, in all situations where capital punishment can be imposed, it offers alternative punishments that allow the death penalty to be avoided. 2

Among the three types of crimes for which the death penalty can be imposed in Sharia–hudud, qisas, and the ta’zir– murder belongs to the Qisas category. Qisas are offences proscribed by the Qur’an or Sunnah, but are subject of personal claims, rather than offences against Islam. Qisas deals with murder or bodily injury. The Qur’an allows retaliation against the individual who commits a Qisas crime, but also clearly demonstrates a strong preference for forgiveness.3

We have often heard in the current Maldivian debate the call for an ‘eye for an eye’, a ‘life for life’, citing the Qur’an; what we do not hear is the rest of the verse.

We ordained therein for them:

“Life for life, eye for eye,

Nose for nose, ear for ear,

Tooth for tooth, and wounds

Equal for equal.”

But if Anyone remits the retaliation

By way of charity, it is

An act of atonement for himself.

And if any fail to judge

By (the light of) what Allah

Hath revealed, they are

(No better than) wrongdoers. 4

 

The law of equality

Is prescribed to you

In cases of murder:

The free for the free,

The Slave for the Slave,

The woman for the woman.

But if any remission

Is made by the brother

Of the slain, then grant

Any reasonable demand,

And compensate him

With handsome gratitude 5

The right for the family of a murder victim to demand harm is balanced by the opportunity for family members to accept payment, or diya, for their loss instead of demanding that the perpetrator be punished. This is reflected in the fact that, generally, the Qur’an expresses a preference for diya over qisas 6 It says, for instance, that the Muslim who chooses diya will be rewarded in heaven:

It is part of the Mercy

Of Allah that thou dost deal

Gently with them.

Wert thou severe

Or harsh-hearted,

They would have broken away

From about thee: so pass over

(Their faults), and ask

For (Allah’s) forgiveness

For them; and consult

Them in affairs (of moment).

Then, when thou hast

Taken a decision

Put thy trust in Allah.

For Allah loves those

Who put their trust (in Him) 7

The question is, when Sharia so emphasises forgiveness over punishment, why is the emphasis of the Maldivian death penalty debate on punishment over forgiveness? In the murder of lawyer Ahmed Najeeb, for instance, the breathtakingly rapid investigation and court case revealed that two members of Najeeb’s eight inheritors chose diya over death, preferring not to take a life for a life.

When, according to the Qur’an and Sunna, diya is the more honourable choice, why was the choice of these two relatives Najeeb not highlighted in the national discourse as motivated by ‘Islamic values’ and, therefore, praiseworthy?

Why is ‘truly Islamic’ justice only portrayed as ‘an eye for eye, a life for a life’?

Not only is the reluctance to punish found in the Qur’an, it is also the case in the Sunnah. A’isha, the wife of the Prophet said, for instance, to:

avoid condemning the Muslim to Hudud whenever you can, and when you can find a way out for the Muslim then release him for it. If the Imam errs it is better that he errs in favour of innocence…than in favour of guilt.8

There is another narrative from the Prophet’s life that demonstrates he actively encouraged his followers to ward off punishment by looking for uncertainties that would create reasonable doubt, making the punishment impossible.

Maa’iz b. Malik was a person who presented himself to the Prophet, confessing Zina and requesting purification with the hadd. His story is scattered through the books of Hadith in numerous narrations. The Prophet repeatedly told him to go back and seek Allah’s forgiveness. After he kept returning, the Prophet made a number of attempts to make sure there was no doubt. He sent his Companions to Maa’iz’s people to inquire if he was known to be insane. He was informed there was no evidence of insanity nor was was he known to have any defect in his mind. He then asked them whether he was intoxicated, and the Companions smelled his mouth and informed him that they could not detect any signs of alcohol on his breath. Only then did the Prophet implement the hadd of stoning. In additional narrations of this same story, the prophet asked Maa’iz some specific questions to avert possible doubt:

“Perhaps you only kissed her or flirted with her or gazed at her.” Maiz replied, “No”. He then asked, “Did you have physical intercourse with her?” He replied, “Yes,” and only then was he ordered to be stoned.9

Quite clearly, Islamic justice is based on the ethos of forgiveness rather than punishment.

This understanding of the Sharia is being left out of the Maldivian debate–as it was left out of much of Western discourse on Sharia in the last decade–by those calling for an end to the moratorium on the death penalty. It is a suspension that has lasted from 1953 till now, and one that more closely reflects the Quranic understanding of Sharia.

Given that all parties pushing the death penalty are framing it as re-introduction of an ‘Islamic justice’ system, it is wrong that they are all ignoring the emphasis that the system places on finding alternatives to taking a life for a life.

It raises the question of whether the real motives behind the call for the death penalty is politics rather than justice itself, Islamic or otherwise. Leading the call are the usual suspects–prominent legal players such as Attorney General Azima Shakoor, Prosecutor General Ahmed Muizz and Home Minister Mohamed Jameel Ahmed–who have all expressed their desire for restoration of the ‘Islamic justice’ of the death penalty. And the Chief Justice Ahmed Faiz has–incredibly–described the beleaguered Maldivian justice system as capable of meting out capital punishment justly.

For politicians, imposing the death penalty at a time of unprecedented violence such as now provides the opportunity for appearing tough on crime—always a vote-attracter among a population battling with rising crime rates. Especially when a crucial election is nigh. Their assumption is that if the State were only brave enough to take upon itself the power to kill, everyone else would cease to do so.

Furthermore, it provides a rare and valuable opportunity to flex political muscle at a time when the government is weak and its legitimacy is in question.

For the Islamists, it is the means with which to enforce a particularly harsh interpretation of Sharia on the Maldivian people in the name of Islam.

Given the situation, it is shocking that no member of the community of ‘Islamic scholars’ in the Maldives have come forward to emphasise understandings of Sharia and Islamic jurisprudence that highlight forgiveness and mercy as virtues much more deserving of Allah’s approval than revenge– even where justified by law.

Does the lack of an alternative view mean that in the last decade or so Islamists have established such a hegemony over Maldivian religious thought that it prevents any other views from being offered to the public?

Does it mean there are no ‘Islamic scholars’ in the country with an understanding of Islam that is not Islamist?

Show 9 footnotes

  1. Abdullah Yousuf Ali, The Meaning of the Holy Qur’an 17:33 (11th ed.2004) (1425 A.H.)
  2. Elizabeth Peiffer, The Death Penalty in Traditional Islamic Law and as Interpreted in Saudi Arabia and Nigeria, 11 Wm.&Mary J. Women & L.507 (2005)
  3. Ibid
  4. Note 1, 5:45
  5. Ibid 2:178
  6. Elizabeth Peiffer, Ibid
  7.  Note 1, 3:159
  8. Islamic Criminal Law and Procedure: Introduction, Matthew Lipmann et al. eds., 1988)
  9. cited in Abu Zyd, ‘The Face of Mercy in Islamic Law’, American Open University, 2005

    6 comments

    1. failAgain

      stop pretending to be an islamic-expert and leave it to the ones who really understand the religon more than you, seriously.

    2. Nihan

      It is this very inclination towards violence rather than empathy that has created such misguided impressions on the majority of Non-Islamic people. The need to exert fear & control over the people of the Maldives has been the preferred option in dealing with rebellion of any kind against the government.
      With all the twisted, violent, misguided, unethical things happening in the Western World, Europe, Australasia, etc. (Non-Islamic states)…..why is it that there seems to be so many Muslim people who are living in these countries? Why cant we learn to live with tolerance & mutual understanding of all the other people around us, from whatever background, religion, ideals they may have in-cooperated in their lives.

    3. Afu

      Just to note that an Islamic scholar did emphasize the importance of forgiveness. Sheikh Hussein Rasheed was on RTV with Ibra talking about it. Aisha H. Rasheed [I believe Sheikh Hussein's daughter with a Masters in Shariah?] has written a thought provoking article in June issue of Dharuma magazine emohasizing on the merits of forgiveness rather than marah maru.

      • DhivehiSitee

        Thank you for pointing that out. I will try and find links to both sources and add them to the post. If you happen to have the links, please send them on.

    4. Mohamed Maldivian

      Very good article.
      What I like to add : even if Sharia would be applied – which I do not favour – then the Sharia needs to be updated. It has been written for the society some 800+ years ago.

    5. Pingback: Speak up, stop the death penalty in the Maldives |

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