Shariah Response To Mandatory Death Penalty
There is a steady growth pattern in the global trend, including in Muslim countries, towards the abolition of the death penalty. For countries that have retained the death penalty, data shows that their numbers are decreasing. Be it as it may, the trend is to suspend and avoid the death punishment either by granting a pardon by the head of state or imposing an executive moratorium.
There has been much debate in Malaysia on the recent government decision to abolish the country’s mandatory death penalty. The opponents believed that the death penalty is against human rights because humans were created by God. For God gives life, and He is the one who takes it back. On the other hand, supporters of the mandatory death penalty believed that such punishment serves as a deterrent for serious crimes such as murder.
Among the offences carrying the mandatory death penalty under the Penal Code are Section 121- waging war against the Yang di-Pertuan Agong; Section 121A – offences against the Yang di -Pertuan Agong; Section 132 – abatement in the armed forces; Section 194 – giving or fabricating false evidence with intent to obtain a conviction for an offence of murder; Section 302 – Murder; Section 305 – abetting suicide; Section 364 – kidnapping with an intention to murder; Section 374A – hostages; Section 396 – gang robbery and murder, and sections 3 and 3A of the Firearms Act 1971.
The most debated Act concerning the mandatory death penalty is under Section 39B (1) of the Dangerous Drugs Act 1952. The Act, however, was amended in 2017 to provide the judge discretion, under certain circumstances, to substitute the death punishment with life imprisonment. In other words, the death penalty is no longer mandatory.
As of today, almost 2,000 death penalty cases, mostly involving drug trafficking offences, have been suspended following the implementation of the 2018 moratorium and are awaiting the Pardon Board’s decision to be released.
Section 302 of the Penal Code provides that a conviction for murder with the intent to kill another person will result in a mandatory death sentence. Those who believe that the mandatory death penalty should be retained for such an offence argue that intentionally killing a person is cruel, and has no proportionate retribution except for such retaliation. This is in line with Article 5 of the Federal Constitution which provides that “No person shall be deprived of his life or liberty except in accordance with the law”.
Under the shariah criminal law, the death penalty is generally provided under prescribed punishments (hudud) and just retaliation (qisas) for offences for which the Quran or hadith stipulate a punishment. The four hudud offences that carry the death penalty are banditry (hirabah), rebellion (bughah), apostasy (riddah), and adultery (zina muhsan). Intentional killing (qatl al-‘amd) carries the death punishment under just retaliation (qisas).
For that matter, the government’s move to abolish the mandatory death penalty for murderers is actually in line with Islamic teachings. Under the law of just retaliation (qisas), which covers murder and injury, the form of punishment is an equivalent retaliation or payment of blood money (diyat) to the victim’s family. In essence, qisas is considered an individual offence that affects the interests of individuals (haq al-fard/’ibad). Therefore, the victim’s family has an option either for the perpetrator to be killed under just retaliation or to forgive him and/or accept blood money (diyat). Hence, in qisas, the death penalty is not mandatory.
Although blood money (diyat) is an alternative to the death penalty, there are various juristic views on the subject. Some jurists considered it a punishment (uqubah) and not compensation (dhaman), some view it as compensation (dhaman), while some others believe that it is somewhere in between punishment (uqubah) and compensation (dhaman).
In a Policy Issue Paper by IAIS entitled “Death Penalty in Shariah and Contemporary Law: A Comparative Analysis”, the authors believe that the shariah does provide capital punishment for murder, but allows room for discretion, forgiveness and peaceful settlement as notably mentioned in the Quran and hadith. Thus, reducing or minimising recourse to the death penalty is not only in line with the global trend but one that is also in harmony with Islamic principles.
It is argued that the Quran refers to qisas in several verses (al-Baqarah, 2:178; al-Shura, 42:40; al-Isra’, 17:33), yet in all of these verses, the strong emphasis is on forgiveness and peaceful settlement between the parties. The law of qisas is originally prescribed in the Torah as life for life, eye for eye, nose for nose etc., but the Quran goes further by prescribing that “…if any remission is made by the brother of the slain, then grant any reasonable demand and compensate him with handsome gratitude.”(al-Baqarah, 2:178).
On the same subject, it is provided in another verse: “One who forgives and reconciles, his reward will be from God” (al-Shura, 42:40). The victim and his relatives are also advised against excess in retaliation (al-Isra’, 17:33).
It is also reported that the Prophet Muhammad SAW emphasised forgiveness in all qisas cases that were brought before him. The Prophet advised parties not to insist on retaliation, but to consider reconciliation through the payment of blood money (diyat) or opting for forgiveness.
It is reported that Malik b. Anas has narrated from the Prophet Muhammad SAW that: “No case of qisas came before the Prophet in which he did not advise grant of forgiveness.” In another hadith narrated by Abu Hurayrah, the Prophet also said: “When a person grants forgiveness (to an act of injustice he suffered), God Most High increases him in honour.”
Taking all the above arguments into consideration, it is strongly advised that qisas was not the preference of the Prophet SAW and should not be carried out. The parties involved should reconcile, either opting for blood money or granting forgiveness.
Although Malaysia still maintains the death penalty, the approach to abolishing the mandatory death penalty has been seen as a new development in line with international trends.
The amendment of the Dangerous Drugs Act 1952 in 2017 saw a decrease in the death penalty execution for drug trafficking offences, and this can be considered a positive step towards repealing the mandatory death penalty for the offence.
In addition, the government will also examine and conduct further studies on the proposed substitute sentences for 11 other offences carrying the mandatory death penalty and 22 offences carrying the death penalty but subject to the discretion of the judge.
This is to ensure that these substitute sentences are commensurate with the offences committed, especially involving the crime of murder.
A comprehensive mechanism should be studied by the authorities, where the victim’s family is appointed as a member of the Pardon Board provided in Article 42 (5) of the Federal Constitution . Here, the victim’s family plays a major role and should advise the Pardon Board to consider whether the perpetrator shall be killed in accordance with the law of qisas or to substitute it with blood money (diyat) which is a huge amount of money to be given to the victim’s family, or for the victim’s family to grant a pardon.
As for the blood money (diyat), it can be incorporated into section 426 of the Criminal Procedure Code where a compensation is made to the victim’s family. In sum, we can conclude that the death penalty under qisas is not mandatory