By: Prof. Abdul Wahid Sheikh-osman
The graphic images of the recent public execution in Mogadishu ignited a firestorm and raised some basic questions on morality, religion and law.
Some people saw it as barbaric action and a return to the medieval justice or Stone Age. Others passionately argued that the punishment must fit the crime (specially in lawless Mogadishu ) and, therefore, Mr. Omar received what he deserved for “taking” the life of an innocent Quran teacher.
Notwithstanding the emotionally charged exchanges and the usual politically motivated accusations on both sides, this essay attempts to shed light on whether Islamic Law, as found in its original texts, sanctions the method of execution we all saw on our computer screens.
Is knifing someone to death in public, and in a broad daylight, an acceptable form and method of execution under Islamic law? Should there be moratorium on executions or corporal punishments until properly instituted authority is in place? Who has -should have- the right to enforce or carry out Qisas in Islam, anyway?
Before we answer these questions, let us consider few undisputable facts about Islamic Law.
Fact # 1
Under Islamic Law, (as in the case of 38 US States, the U.S. Gov't and U.S. Military), the death penalty is totally legitimate and appropriate form of punishment on certain crimes. There has been no single credible Islamic jurist or scholar in history that opposed death penalty in all cases without exception. The legal bases for this principle is overwhelming both in the Quran and Sunnah and is found, among other sources, in the Quranic verse that reads:
"And for you in equitable retribution there is Life, 0 people of understanding, that you may ward off evil" (Al Baqarah: 179)
Fact # 2
Under Islamic law, the family of the victim has the right to carry out the execution of the willful murderer based on the Qurnic verse that reads:
“Nor take life - which Allah has made sacred - except for just cause. And if anyone is slain wrongfully, we have given his heir authority (to demand qisas or to forgive): but let him nor exceed bounds in the matter of taking life; for he is helped (by the Law).” (Al Israa: 33)
Also the average age of puberty, according to most juristic opinions, is 15 years for boys. Based on this, some opinions within the mainstream Sunni jurisprudence maintain that a 15 years old family member of a victim found to be of “sound judgment” could, in fact, carry out the execution. The group's argument is largely based on inferences from the Quranic verse that reads:
“Prove orphans till they reach the marriageable age; then, if you find them of sound judgment, deliver over unto them their fortune…” (An-Nisa': 6) [1]
Fact # 3
While the family of the victim has to right to seek retribution from the offender, Islam highly encourages the victim's family to forgone the retaliation as an act of charity.”
“ O ye who believe! The law of equality is prescribed to you in cases of murder: the free for the free, the slave for the slave, and 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, this is a concession and a Mercy from your Lord. After this whoever exceeds the limits shall be in grave penalty” (Al Baqara: 178)
Method of Execution Under Sunni Islam
I. Classic View
A) Hanafis and Hanbali's
The Hanafi and Hanbali Schools maintain that the execution can be carried out with a “weapon” only, regardless of the manner in which the homicide was committed.
The groups support their view by citing a tradition of the prophet, reported by Ibn Majah and Al Bazaar, in which the prophet (PPUH) said “No Qisas without sword”. According to the group, the use of the word “sword” (Seif, in Arabic) in the Hadith is “narrowly tailored”, meaning it ought to be given a distinct meaning that applies only to the term “weapon” in the classic and traditional sense and not to all objects, no matter how deadly. Thus, the executioner cannot use other tools, such as knife, to execute the offender. The use of an object other than a weapon, the group further argue, amounts to mutilation (Muthla) and torture (Ta'deeb), both of which are prohibited under Islamic Law . [2]
B) Shafi'is and Malik's
The Shafi'is and Malikis, on the other hand, permit the executioner to use an object similar to the murder weapon and to use it in a manner similar to the one in which the murder was committed (this, perhaps, explains why in the predominantly Shafi'i Somali society, the “judge” ordered Mr. Omar to be knifed to death). The group, however, mandate the use of a weapon as execution tool if the use of other objects prolongs the offender's suffering.
To support their argument, the group cites the following evidences:
First:
Two verses from the Quran that refer to the proportionality of punishment to the crime. The verses read:
“ And if ye do catch them out, catch them out no worse than they catch you out: But if ye show patience, that is indeed the best (course) for those who are patient. (Al Nahl: 126)
“The prohibited month for the prohibited month,- and so for all things prohibited,- there is the law of equality. If then any one transgresses the prohibition against you, Transgress ye likewise against him. But fear Allah, and know that Allah is with those who restrain themselves. (Al baqarah: 194)
Second:
A “questionable” tradition from the prophet, reported by Al Beyhaqi in his “ Al Sunan ” from Bara'a Bin Azib, in which the prophet reportedly said, “…whoever burns someone to death shall be burned……….”. However, both the Sanad (chain of reporters) authenticity of the Hadith and its rule making force were deemed unreliable by the previous group.
The group cited another Hadith, authenticated by Imam Muslim in his Sahih , where the prophet ordered the head an adult murderer be smashed between two rocks after being found guilty of murdering a minor girl by smashing her head between two rocks.
Third:
The group theorized that; since Qisas crimes are based upon the criminological assumption of retribution, inflicting upon the murderer the same pain and suffering that the victim suffered is the only way to achieve the deterrence power of the Qisas. [3]
Ironically, Muslim jurists expressed the above opinions at the same historical juncture when the normal methods of execution in the rest of the world included things such as throwing the condemned into a quagmire, hanging from gallows, burning to death. For instance, under the reign of Henry VIII, of England (1491-1536), boiling to death was one of the penalties approved in 1531, and there are records to show people boiled for up to two hours before death took them.
II. The Modern Islamic View
The modern Islamic jurists support the principle of proportionality of punishment to the crime. However, they emphasize that no execution should be carried out unless there is:
A) A verifiable adjudicated decision by properly instituted court of law having jurisdiction thereof.
B) A proper supervision by competent executive and judicial authority.
Also, in order to avoid the possibility of torture and mutilation, many cotemporary Islamic scholars highly recommend the use of the modern “ painless” and instantaneous ways to execute prisoners such as the Lethal Injection, Electric Chair or Hanging. [4]
There is no doubt that the residents of Mogadishu have suffered enough from lawlessness. Unlike those of us in the Diaspora whose lives and properties are protected by local police or sheriff's deputies, they have no law enforcement agencies or proper judicial system to resort to for protection. It, therefore, would seem natural for them to institute such tribunals, Islamic or non-Islamic, as they deem appropriate to protect their lives and deter the ruthless, incorrigible , hardened, and habitual criminals in Mogadishu who are committing most abominable atrocities and terrorize the residents on daily bases. By the same token, however, it seems to me perfectly legitimate for anyone to constructively critique such courts and demand that they live up to the objectives they are genuinely intended to achieve and to provide safeguards that ensure equality and fairness in the administration of justice.
The proliferation of this “one-court, one –judge, one-time ” style of justice in Somalia brought judicial chaos. On one hand, the people of the lawless Somalia desperately need to seek redress from an adjudication courts on daily bases, on the other hand, they often are left at the mercy of a one single “religiously” appointed or militia-based judge whose decisions are neither appealable nor subject to any form of review.
This local “court system” cries for urgent reform. The local communities need to create an “Appeals Board” or “Accountability Council” alongside these “courts”. Members of the Board shall consist of local intellectuals, Islamic scholars and others with judicial and religious training (and there are plenty of them in Mogadishu and elsewhere). The main task of the Board should be to conduct a much-needed, community based--and cost-effective--judicial oversight on these “one-judge” courts in capital punishment cases.
The Board should also be entrusted with the responsibility of scrutinizing the evidence collection methods and, more importantly, ensuring the conformity of the overall judicial process with the true Islamic teachings and international principles and norms of justice.
Surely, there are any numbers of homicide victims in Mogadishu everyday who lose their lives in ways that are far more brutal than the manner in which Mr. Omar was executed. While every life is precious yet, I chose to comment on Mr. Omar's case because it is radically different in a significant way. Simply put, it was an execution carried out presumably in the name of the “society” and the outcome of an “adjudicated decision” issued by a “court of law”.
That “system of justice”, no matter how inadequate, deserved an attention and close scrutiny as well.
With that said, it is crucial to point out, in conclusion, that; executing someone with a knife --and in “slow motion”- almost always leads to torture, slow death or mutilation, something Islam prohibited. Alternatively, there are other instantaneous and “painless” methods of execution that are consistent with the Islamic principle of “mercy in killing”, a key Islamic requirement even in slaughtering animals.Therefore, knifing someone to death is, in my view, indefensible on Islamic bases.
Abdul Wahid SheikhOsman is an Adjunct Professor at the University of Minnesota Law School and a regular contributor to Hiiraan Online on legal matters.. He can be reached at: E-mail: [email protected]
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[1] Al Kasani. “Al bada'i Al Sanai”, Vol. 7, p. 245.
Ibn Qudamah. “Al Mughni”, Vol. 7, p.745 .
Al Nawawi. “Al Muhadab” , Vol. 2, p. 188.
Al Dardeer. “ Al Sharh Al Kabir”, Vol. 4, p. 258.
[2] Ibn Qudamah, “Al Mughni”, Vol. 7, p. 680-688.
Al Kasani, “Al Bada'i Al Sanai”, Vol. 7, p 340.
[3] Ibn Rish Al Hafid. “Bidayat Al Mujtahid”, Vol. 2 p. 396.
Al-Khateeb Al-Shirbini. “Mughni Al- Muhtaj Fi Sharh al –Minhaj”, Vol. 4, p 44.
Al Nawawi. “Al Muhadab”, Vol. 2, p. 187.
Ibn Al Juza'i, “Al Qawanin Al Fiqhiya”, p. 340.
[4] Al Zarqa'a, Ustad Mustafa. “Al Madkhal Al Fiqhi Al A'am”, p. 328.
Awdah , Abdul Kader. “Al Tashri' Al Jina'I Al Islami”, Vol. 2, p. 154.