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LONDON, Sep 21 2011 (IPS) - Islamic regimes look for provisions and precedents to carry out the death sentence in the name of Islam. But, says Dr. Mohammad Al-Habash, director of the Islamic Studies Centre in Damascus, they are not looking enough at 13 provisions within the Quran to commute the death sentence to a lesser punishment.
Regimes have the death penalty in place for many more crimes than mentioned in the Quran, Habash told IPS at a conference on the death penalty held by the rights group Penal Reform International in London this week. “In Mauritian law there are 361 crimes that can invite the death penalty. In Yemen, there are 312 crimes that can be punished with death, and the same in Saudi Arabia. But in the Holy Quran there is only one crime.”
There is a provision for the death penalty only for murder, says Habash, who is also a member of the Syrian parliament. But alongside this one provision, there are 13 tools for a judge to cancel the death sentence, he says. “For example, God did not mention Al-Qassas, which provides for the death sentence for murder, without mentioning Al-Afou, which means forgiveness. Sharia asks a judge to use these 13 tools to fight against the death penalty.”
Under Al-Afou, the family of a victim can forgive. “All members of the family of the victim have the right to forgive. If even just one among 20 says they forgive, or says they are looking for Dia (financial compensation from the killer’s family), the judge must avoid the death penalty. Even if a small baby from the victim’s family says so, the judge must avoid the sentence, and wait for the baby to grow to the age of 18 to confirm if he or she wants the death penalty or not.”
A judge acting under Sharia law cannot in any case order execution without first considering the position of the victim’s family in a civil claim, Habash says. The right to demand or to forgive goes first to the family, not to the judge in a case where capital punishment could be ordered.
Yet another tool is “Choubouhat” under which a judge must refuse the death penalty if any doubts arise about the culpability of the accused. For example, “if the killer was under the influence of alcohol, or if he did not understand what might be the punishment for such crime.”
But Habash acknowledges that this is not as simple a matter as a reading or interpretation of the Quran. “You do need to look also at the history of Islamic heritage,” he says. The death sentence comes more from that tradition than from the text of the Quran, he explains.
“Islamic legislation is itself a result of the practices of courts during history. In Islamic history, as with Christian history, European history, you can find a lot of use of the death penalty. It’s in the tradition, not in the book.”
The dispute goes beyond differences over an interpretation of the text and an interpretation of tradition. As Mustapha Bouhandi, professor of comparative religion in Casablanca in Morocco told IPS earlier, Arab countries retain the death penalty because they “do not want to lose their most important instrument of repression…the death penalty is for them an effective means to eliminate opposition leaders, or at least to intimidate and curb them.”
Often these opponents are liquidated without trial, even without their families ever hearing of their execution or being able to arrange a funeral, Bouhandi said. “Where there are trials, justice in the Arab world does not enjoy a good reputation. It depends on the wishes of the ruling powers. Every death sentence, even in non-political cases, is politically influenced.”
Maryam Namazie from the Council of Ex-Muslims of Britain and Equal Rights Now told IPS in an earlier interview that use of the death penalty is closely related to the political situation in these countries.
“Islam is fundamentally no different from other religions in that death is prescribed for a large number of transgressions in all of them,” she said. “However, because it is linked to a political movement with state power in many instances, the medievalism of religious rule becomes the law of the land.
“So in Iran, for example, stoning is a legally sanctioned form of execution with the law even specifying the size of the stone to be used in killing someone. Clearly, when the law and in many instances the state is divinely ordained, abolishing the death penalty becomes all the more difficult.”
But a change in laws in these countries may need a return to the question of what is in the Quran and what comes from tradition. Habash says it is a view shared by many Islamic scholars “that this kind of punishment belongs to the old testament (of Islam). Prophet Mohammad tried to use such punishment for some years. After that the Holy Quran said, No, and that such punishment has been cancelled.”
Are many Islamic countries then looking at Islamic tradition rather than at the Quran itself to justify use of the death penalty? “There are divisions on this within Islam,” Habash acknowledges. “Some scholars believe we have to follow the traditions of Prophet Mohammad, and that there is not enough proof that this kind of punishment has been cancelled.”
Such differences have led to different punishments for adultery, for instance. Some places carry out death by stoning. Others go by the punishment prescribed by the Quran itself of handing out up to 100 lashes, Habash says.
The majority of Islamic countries reject punishment such as death by stoning for adultery, he says. “You can find such punishment handed out by the Taliban, and in Somalia. But even in Saudi Arabia I have not heard of such punishment for at least 30 years.”
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