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Who can be given Capital Punishment in Islam?

In response to a question on the cowardly attack on the life of Malala, Mawlana Tariq Jamil said in the program of Kamran Khan in Geo News that in Islam there could only be three reasons why a person could be killed. There are several questions that need to be answered in view of his response. I will answer the following questions in the order they appear here: Can I criticize a scholar of his stature? Can we make a statement on an issue different from what the Qur’an has mentioned on it? Is it okay to declare that punishment for extra-marital sex is killing the person when the Qur’an clearly mentions it is hundred lashes? Is it justifiable to lay down a condition to people belonging to other religions that while they have a moral duty to convert to our religion, we can’t convert to theirs? In case we do, we’ll be killed. Is there a consensus of opinion on the fact that there is capital punishment for apostasy and adultery?

I find it extremely surprising that fans of some religious scholars get upset when their revered personality is criticized. The truth is that criticism is what causes all of us to remain alert and looking for truth. If we stop criticizing ourselves and others, we will never be able to know if what we are saying and doing is correct or not. We are in the danger of getting intellectually and spiritually stale in the absence of it. However, it is important that criticism should be made politely and it ought to be directed towards the ideas of a person and not his personality. And the more important and popular a person is, the more important it is that his ideas be criticized by those who think they aren’t correct, because he is influencing many others by his ideas because of his popularity.

When we discuss issues that have been dealt with in the Quran, it is imperative that we quote the Quran on such issues, because everyone, including the prophet, alaihissalam, was responsible to follow the Quran. When the Quran has answered most clearly the question as to who can be justifiably killed, there is no reason why any other source should even be quoted for the purpose of answering it. The Quran says clearly: “Whoever kills a soul – except in retaliation for another soul (that got killed) or for (creating) mischief on earth – it is as if he has killed the entire mankind.” (5:32) The Quran is a clear book, and this statement of it should be counted as one of its most unequivocal verdicts which leaves no room for any disagreement. Ignoring this clear statement to accommodate another one which someone heard someone else saying, attributing it finally to the prophet, alaihissalam, when that other statement is not even matching with the Quranic verdict is unfortunate to say the least.

It’s a popular traditional point of view that if a married man or woman indulges in extra-marital sex, the guilty should be stoned to death (rajm). This understanding is there despite the fact there is a clear mention in the Qur’an that the punishment for Zina (extra-marital sex) is hundred lashes (24: 2). Such is the status of the Quran in the eyes of many Muslims that they believe that the Quranic verdict has been superseded by the mention in hadith. It’s not an occasion for me to go into details of it, but it should be sufficient to clarify my position to mention here that the Quran talks about the possibility of a married woman committing adultery and yet talks of the possibility that she gets the same punishment of hundred lashes on committing the crime (24: 8). In another passage, it talks about the punishment of Zina for a married slave-girl to be half of what a free woman would get (4:25) which obviously rules out the possibility of stoning to death as a punishment. The fact is that the occasions of stoning to death reported during the lifetime of the prophet can only be explained by placing them in the category of crime of mischief on earth, like cases of rape etc.

Can a person who announces he is no more a Muslim after he was one be killed for taking that decision? Most traditional Muslims believe that a Murtad (apostate) must face death. Quite apart from the fact that such a punishment has nothing to do with Islamic Shari’ah, the fact is that it would be a very strange rule that while people from other faiths are encouraged to convert to Islam, if a Muslim decides to convert likewise, he will face death. If this is not an inconsistent policy, what else is inconsistency? The fact of the matter is that the immediate addressees of all messengers were given an ultimatum after a clear, effective communication of the message that if they would continue to reject faith and oppose the messenger, they will face death either through natural calamities or the sword of believers. Such punishments have nothing to do with universally applicable Shari’ah law. It was meant to be specific for the era of the prophet and in that era too only when God asked it to be implemented.

The punishments of death for married adulterer and apostate are claimed to be legitimately Islamic on the plea that there is a consensus of opinion (ijma) among Muslim scholars on the understanding that such was the case. The fact is that if the prophet, alaihissalam, was also bound to follow Quranic verdicts, one might argue, why could ijma be ever presented to undo what the Quran has clearly presented? Apart from that, the interesting fact is that many of the famous scholars of the second, third, and fourth century hijrah have clarified that no ijma on any issue is possible except for what is clearly mentioned in the Qur’an and the authentically transmitted Sunnah. Imam Shafi’i, Imam Ahmad Ibn Hanbal, Imam Ibn Hazm, Imam Taimiyyah, and Imam Razi are some of the scholars who have criticized the popular concept of ijma. In other words, there is no ijma’ even on what constitutes ijma. What can be more unfortunate than the fact that a vague source of information such as ijma whose very identity and definition is seriously in question should be utilized to silence the verdict of a book that had come to guide the entire mankind.