[Deathpenalty] death penalty news----worldwide

[Rick Halperin]

May 15



GLOBAL:

Islam, justice and the death penalty



Is it possible and necessary to have voices from Islam that are both against 
and for a moratorium on the death penalty?

I think it is necessary, as what shapes discourse in the Muslim communities of 
Muslim-majority countries can influence policies in those countries.

In Indonesia, for instance, an interpretation of sharia, promoting a moratorium 
on the death penalty has been raised, but it is unfavourable to many Muslim 
scholars. Amid the uproar concerning the death penalty for Indonesian migrant 
workers in Saudi Arabia, as well as that of drug convicts in Indonesia, 
opposing voices in the name of Islam are barely heard.

Nahdlatul Ulama (NU), the largest Muslim organisation in Indonesia, considered 
moderate by many, condemned the death penalty for migrant workers in Saudi 
Arabia, yet supported the death penalty for drug convicts.

But in general, the death penalty is a non-issue for Islamic organisations.

First, this is maybe because death penalty cases in general scarcely touch the 
issue of Muslim identity politics - many so-called secular Muslims are on both 
sides of the debate.

Second, capital punishment, along with corporal punishment, is prescribed in 
Islamic scripture so it is very difficult, though not impossible, to have a 
voice of Islam that is against the death penalty.

However, 21st century Muslims should review the practices of the death penalty 
in Muslim-majority countries and this can be done even within the realm of 
Islamic teachings or sharia. Here are the premises.

Sharia by many Muslims nowadays is reductively understood in terms of 
legalistic formulae. Sharia is associated with corporal and/or capital 
punishment, as if sharia is nothing but a penal code and punishments. Yet 
sharia literally means the way or path. In Koranic terminology, it means the 
path toward an objective representative of the supreme virtue of Islam, which 
is justice (some would add dignity of human beings and mercy and love for all 
creatures).

Muslim scholars, ranging from reformists, rationalists, even literalists, would 
agree that the supreme value promoted by Islam when it comes to dealing with 
relationships among individuals and/or communities is justice, as explicitly 
stated and commanded by God many times in the Koran. The mercy that Islam would 
bring to the world is justice.

Included in that unjust system are dictatorships that are still embraced by 
many Muslim-majority countries [...]

Any action leading to injustice, in whatever name, including in the name of 
Islam, is therefore un-Islamic and should be opposed by Muslims. All Islamic 
legal opinions that are against justice are thus against the sharia of Islam.

As God has commanded Muslims to be "bearers of witness with justice", as the 
Koran states, Muslims should share the notion once voiced by Martin Luther King 
Jr that "injustice anywhere is a threat to justice everywhere".

All unjust punishments should be an Islamic issue, including questions over the 
death penalty of Indonesian migrant workers and foreign and local drug 
convicts.

Now, the question is how justice is manifested in punishment. The traditional 
fiqh (Islamic law and jurisprudence) is still lacking discussion of the 
philosophy of justice compared to advanced discourse in the secular realm, 
which has led to the concept of restorative justice, distinguished from 
retributive justice.

The idea of qisas (an eye for an eye) is mostly understood as a deterrent 
and/or equal retaliation within retributive justice.

Nevertheless, Muslim scholars advocating a moratorium on the death penalty are 
echoing these arguments: corporal punishment, stoning or the death penalty 
cannot be implemented within an unjust system of governance, judiciary, or an 
unequal society, given the fact that those punishments are irreversible.

In this view, a just system is a prerequisite of such irreversible punishments. 
An unjust system is considered one of the shubuhat (ambiguities) based upon 
which the irreversible punishment must not be applied, as the Prophet Muhammad 
said.

Included in that unjust system are dictatorships that are still embraced by 
many Muslim-majority countries, where the weak and poor are more likely to be 
punished than the wealthy and powerful.

That is the argument posed by some NU leaders in criticising Saudi Arabia's 
death penalty for Indonesian migrant workers, given frequent reports of torture 
and other dehumanising practices by employers.

With regard to restorative justice, Mutaz M Qafisheh from Hebron University in 
the International Journal of Criminal Justice Sciences wrote that Islamic 
jurisprudence had many alternatives to original punishments known in modern 
restorative justice systems, such as compensation (diya), conciliation (sulh) 
and pardon (afw).

These mechanisms are stated in the Koran and were exemplified by the Prophet. 
Qafisheh also says that classical Muslim scholars had unique mechanisms derived 
from the wider principles of Islam that can be understood as restorative means, 
such as repentance (tawba), intercession (shafaa), surety (kafala) and 
expiation (kafara).

He concludes: "By looking at the philosophy of penalty as detailed by Islamic 
jurisprudence [...] restorative justice does exist. It exists as the general 
rule. Retributive justice is the exception."

That kind of reinterpreting of Islamic scripture should be advanced by today's 
Muslim scholars if Muslims want to be able to respond to the discourse of 
international human rights.

Also, for the Muslims who are so obsessed with the rules textually prescribed 
in the scripture, we should consider the notion that God's revelation is not 
only in the text (ayat qauliyyah) but exists also in the universe (ayat 
kauniyyah), in the way human beings behave. Modern sociology and criminology 
should be juxtaposed and mirrored with traditional fiqh by Muslim jurists in 
their interpretations of the scripture.

(source: Opinion, Azis Anwar Fachruddin; The writer is a graduate student at 
the Centre for Religious and Cross-cultural Studies at Gadjah Mada University, 
Yogyakarta----Asia News Network)