This document is a translation of a speech by Dr Hamdy Murad, an Islamic thinker and Professor of Sharia at Al-Balqa Applied University, Jordan,

at a seminar, The Death Penalty in the Arab World, held in July 2007 in Amman, Jordan. The Arabic text can be found on pages 282-286 of the publication Studies on the Death Penalty and the Right to Life in the Arab World. Penal Reform International is not responsible for the documents content. The organisation is making the English version available because of the interest in Dr Hamdy Murads speech expressed by non Arabic speakers.

Islam and Capital Punishment

Islam uses, where possible, penalties that are milder than capital punishment. Islam stipulates strict conditions that prevent arbitrary administration of any penalty, no matter how mild it is, in order to achieve relative Divine Justice in life compared to Absolute Divine Justice in the Hereafter. Because justice is only relative in this life, Sharia stresses averting punishments (Hudud) if suspicions arise. Prophet Mohammed said: Avert punishments if suspicions arise. Suspicion means that for any offence that cannot proved 100%, so to speak, punishments should be averted. This is the purpose of Sharia. Unfortunately, sometimes this purpose is not properly understood even by some Islamic legislators, who take this rule too far, in a way that results in loose application of Sharia. Suspicion means the presence of deficiency in absolute certainty. If suspicion arises, the punishment set for a certain offence must be prevented and milder penalties should be sought. This is usually left to the discretion of the just judiciary. Decisive Sharia regulations specify five objectives. After the first objective, which is the preservation of religion, comes the protection of life. Every attempt should always be made to avert capital punishment. If we looked deeper into the many details of these principles, we would discover many rules that regulate the use of the death penalty. This leads me to the offences punishable by death in Islamic Sharia, and the way in which this penalty is regulated. According to the Koran, the Prophetic Traditions (Hadith), Immams, and the practice followed by Islamic society, the death penalty should be imposed on murderers. This rule is to such an extent detailed that the penalty is almost suspended. There is also a very important question in Islamic Sharia that some of our scholars do not pay attention to: If the person evaded punishment in this life, would this be the end and will injustice prevail? No. Absolute justice will be achieved without doubt. God gave us responsibility and made it possible to establish justice in this life. We always have to have certainty without suspicion in order to avoid expected or potential injustice. It is not right to impose any punishment based on suspicions. If there is the slightest doubt, a judge may not impose any punishment, to avoid injustice. Divine Justice cannot be achieved in this life, but it will definitely be achieved in the Hereafter. Justice must base its judgment on facts, not suspicions.

What is the definition of murderer. A murderer is a person who kills another person for no reason. Some may say that the reason is useless or is not sufficient to commit the murder. The answer is that the certainty of the person being a murderer must be 100%; allow me to use that expression. If the percentage is lower, no matter what the reason, then suspicion arises in this case. That means it is necessary to change the death penalty to a milder penalty. I did not reach this as a result of my own discretion but from understanding of the religious texts, even if other scholars may disagree with me. This is my understanding of the Prophetic Hadith: Avert punishments if suspicions arise. What is suspicion. Suspicion arises if the percentage of certainty becomes 99% instead of 100%. If suspicion arises, God orders us to immediately replace the penalty with a milder punishment. Consequently, a murderer is a person who kills for no reason, just for the mere desire of killing. The least reason establishes suspicion. Sharia does not accept emotional reasons for murder, because they lead to dilemmas. For example, many would say: people who commit this crime could escape punishment. They harass a person. They would kill him. We say if the murderer evaded punishment in life, would he be able to get away with it in the Hereafter? We are talking about the Sharia ordained by God to achieve justice relatively for us in life and He achieves absolute justice in the Hereafter. If a murder is committed, the relatives are given an opportunity to pardon or forgive the murderer. Moreover, in Koran, forgiveness and pardon are the foundations on which a Muslims life in society is based. Taking the life of that murderer, even if he deserves that punishment, does not achieve the justice requested by God, as God gives the opportunity of reconciliation through forgiveness. Divine Laws were not set in vain. What is the definition of relatives. According to the judiciary, consanguineous relatives are the relatives of the murdered, and if one of them opposes the death penalty imposed on a murderer, the murderer should not be executed. I hope we realise this accuracy in the Sharia legal order, which differs greatly from secular laws. The dimension that involves the relatives is marvellous. We know that reconciliation between the relatives of the murderer and relatives of the murdered has always existed in our Islamic and Arab customs and societies. People intervene to reach reconciliation and mutual agreement, not to abolish the right of anyone. They intervene to honour and value the aggrieved parties, asking for pardon and forgiveness with modesty, humiliation and admission of guilt. It must be stressed that no pressure should be involved to achieve justice. But, there should be an appeal to the relatives of the murdered. Otherwise, reconciliation will not be reached. Justice must be realised voluntarily, without practicing social, political or security pressure. Even customs and traditions should not bring about any pressure. Reconciliation should be voluntary. Taking advantage of timid people is an unacceptable, blatant injustice.

The death penalty imposed on the murderer in Sharia, if regulated in our secular laws, would render execution almost impossible. The other aspect is that imposing the death penalty on the married adulterer/adulteress is agreed upon with Ijma (consensus), Authenticated Traditions (Hadith Sahih), the Sunnah of Prophet Mohammed and the companions. God regulated this issue with the tightest moral measures that achieve justice. Adultery is not certain unless the penis is seen inserted. Such issues can be openly discussed in Sharia. It must fulfill the conditions of sexual intercourse that is known by instinct. Otherwise, it is not adultery and it cannot be subject to this penalty but to other discretionary punishments. Even if a man and a woman are found in a closed room and naked in bed in a position that implies adultery in the imagination of the mind, it will not be considered adultery without four witnesses seeing the penis inserted. Accordingly, a discretionary penalty is imposed as appropriate. Sharia pays attention to the nature of society and to the facts found in society before considering penalties. Here comes the question: How to verify insertion? To be verified through four witnesses. The verification of witnesses integrity is a complicated branch in Sharia. Not for the purpose of complication but to avert the penalty. The judiciary must use rules that differ from the law we apply. Sharia obliges the judge to verify accurately the file of the witness and if any suspicion arises before or after, the person will not be accepted as a witness. This means any suspicion affects the validity of his testimony according to Sharia and not citizenship regulations. If two witnesses testified that that a particular witness lied to them before the consideration of a certain issue, his testimony would not be considered by the judge, in order to avoid injustice. Accordingly, the principle is not to prove the accusation but to avert the penalty. And this is basic in Islam in order to attain justice. Concerning witnesses, if the testimony of one witness of the four witnesses was confused; the four witnesses would be charged with slander. If the testimonies of the four witnesses are even 100% and if the four witnesses agreed upon watching and being certain of the crime of adultery accompanied with actual insertion, their testimony will be admitted but any other description is refused and the witness will be whipped, a hundred lashes each. Islam aims at accuracy and elimination of suspicion. The third crime punishable by death in Sharia is banditry. It is accurately defined as the act of brigandage through killing in order to rob, plunder and infringe on the rights of other persons. This differs from the crime of theft on which the penalty imposed is to cut the hand of the thief. We are talking here about murder. Banditry threatens security and safety in life. Banditry is to kill for the purpose of robbery and plunder, and according to Sharia the death penalty should be imposed for this crime. The right hand is to be cut first then the left leg then the left hand then the right leg; in a crucified position. A shocking punishment indeed! But when we look closely into it, we will be relieved,

not for evading the penalty but for establishing justice. There must be no suspicion regarding the crime of murder. Oppressors have to be repeat offenders who take banditry as a profession. Those who commit crimes once or for a particular reason are not to be treated like them. Banditry is when a person dedicates himself to an organised crime to murder people for robbery and plunder, disturbing their security and stability on the road. Islam imposed a strict penalty because this crime results in the absence of security and stability, in addition to the existence of fear and horror that prevent people from leaving their houses. But Sharia also laid down regulations whereby if these conditions are realised, then it is an organised crime that aims at corruption, and accordingly death penalty will be imposed. Under Sharia, over the past fifteen centuries, the number of cases where the death penalty was prescribed for committing this crime has not exceeded 10. I am not talking about the twentieth century because it is excluded, nor about the Arab and Muslim countries these days as they do not apply Sharia at all. There is another dimension concerning the conditions we mentioned. The regulations of Sharia can only be applied in a mature, Islamic educated society that is familiar with the respective regulations, morals and laws. This is a principal issue. These regulations should not be applied in an Islamic society that is not mature or in which the reasons of righteousness are absent. We do not deny what is stated in the Koran or what is agreed upon by all scholars. The conditions stated for executing the death penalty are very balanced and show an outstanding miracle and accurate balance. On the one hand, they demand that the regulations be applied and on the other they prevent them from being applied, according to regulations and conditions. Accordingly, the purpose is not only deterrence, but also establishing justice, considering the spiritual, social, moral and educational aspects. There is a group of factors that interact with the soul. Absolutely, the death penalty must be imposed on the murderer. Yet, when we explore the conditions and details, we find that Islam is much more merciful than all the laws applied on earth. Avoiding punishment in secular laws results in injustice, while the conditions and regulations set to avert the death penalty signifies the utmost Islamic Justice. Sharia contains laws that serve two purposes as far as capital punishment is concerned: establishment of justice and prevention of arbitrary execution. Sharia puts conditions to awake in the human soul motives other than deterrence, moral motives to achieve relative justice. Accordingly, Sharia gives the Commander of the Muslims, the ruler or law according to our traditions, the permission to make decisions according to what conforms to the status quo and the circumstances of society. We talked about the immaturity of Islamic society these days and the suspension of the death penalty to establish justice. If the death penalty is executed in society while it is immature, this will be an outrageous injustice.

Then, we are against all capital punishment stipulated in the laws applied in the Arab, Islamic, Western and Eastern countries, because they do not achieve the Divine Justice that seeks preservation of life by all possible means. In addition, trials concerning the death penalty are seldom fair, and when justice becomes rare, the judgment must be immediately suspended to avoid injustice.