Is it possible and necessary to have voices from Islam that are both against and for a moratorium on the death penalty? I think it is necessary, as what shapes discourse in the Muslim communities of Muslim-majority countries can influence policies in those countries. In Indonesia, for instance, an interpretation of sharia promoting a moratorium on the death penalty has been raised, but it is unfavorable to many Muslim scholars.
Amid the uproar concerning the death penalty for Indonesian migrant workers in Saudi Arabia, as well as that of drug convicts in Indonesia, opposing voices in the name of Islam are barely heard. Nahdlatul Ulama (NU), the largest Muslim organization in Indonesia, considered moderate by many, condemned the death penalty for migrant workers in Saudi Arabia, yet supported the death penalty for drug convicts. But in general, the death penalty is a non-issue for Islamic organizations.
First, this is maybe because death penalty cases in general scarcely touch the issue of Muslim identity politics — many so-called secular Muslims are on both sides of the debate. Second, capital punishment, along with corporal punishment, is prescribed in Islamic scripture so it is very difficult, though not impossible, to have a voice of Islam that is against the death penalty.
However, 21st century Muslims should review the practices of the death penalty in Muslim-majority countries and this can be done even within the realm of Islamic teachings or sharia. Here are the premises.
Sharia by many Muslims nowadays is reductively understood in terms of legalistic formulae. Sharia is associated with corporal and/or capital punishment, as if sharia is nothing but a penal code and punishments. Yet sharia literally means the way or path. In Koranic terminology, it means the path toward an objective representative of the supreme virtue of Islam, which is justice (some would add dignity of human beings and mercy and love for all creatures).
Muslim scholars, ranging from reformists, rationalists, even literalists, would agree that the supreme value promoted by Islam when it comes to dealing with relationships among individuals and/or communities is justice, as explicitly stated and commanded by God many times in the Koran. The mercy that Islam would bring to the world is justice.
Any action leading to injustice, in whatever name, including in the name of Islam, is therefore un-Islamic and should be opposed by Muslims. All Islamic legal opinions that are against justice are thus against the sharia of Islam.
As God has commanded Muslims to be “bearers of witness with justice”, as the Koran states, Muslims should share the notion once voiced by Martin Luther King Jr. that “injustice anywhere is a threat to justice everywhere”. All unjust punishments should be an Islamic issue, including questions over the death penalty of Indonesian migrant workers and foreign and local drug convicts.
Now, the question is how justice is manifested in punishment. The traditional fiqh (Islamic law and jurisprudence) is still lacking discussion of the philosophy of justice compared to advanced discourse in the secular realm, which has led to the concept of restorative justice, distinguished from retributive justice. The idea of qisas (an eye for an eye) is mostly understood as a deterrent and/or equal retaliation within retributive justice.
Nevertheless, Muslim scholars advocating a moratorium on the death penalty are echoing these arguments: corporal punishment, stoning or the death penalty cannot be implemented within an unjust system of governance, judiciary, or an unequal society, given the fact that those punishments are irreversible.
In this view, a just system is a prerequisite of such irreversible punishments. An unjust system is considered one of the shubuhat (ambiguities) based upon which the irreversible punishment must not be applied, as the Prophet Muhammad said. Included in that unjust system are dictatorships that are still embraced by many Muslim-majority countries, where the weak and poor are more likely to be punished than the wealthy and powerful.
That is the argument posed by some NU leaders in criticizing Saudi Arabia’s death penalty for Indonesian migrant workers, given frequent reports of torture and other dehumanizing practices by employers.
With regard to restorative justice, Mutaz M. Qafisheh from Hebron University in the International Journal of Criminal Justice Sciences wrote that Islamic jurisprudence had many alternatives to original punishments known in modern restorative justice systems, such as compensation (diya), conciliation (sulh) and pardon (afw). These mechanisms are stated in the Koran and were exemplified by the Prophet. Qafisheh also says that classical Muslim scholars had unique mechanisms derived from the wider principles of Islam that can be understood as restorative means, such as repentance (tawba), intercession (shafaa), surety (kafala) and expiation (kafara).
He concludes: “By looking at the philosophy of penalty as detailed by Islamic jurisprudence […] restorative justice does exist. It exists as the general rule. Retributive justice is the exception.”
That kind of reinterpreting of Islamic scripture should be advanced by today’s Muslim scholars if Muslims want to be able to respond to the discourse of international human rights.
Also, for the Muslims who are so obsessed with the rules textually prescribed in the scripture, we should consider the notion that God’s revelation is not only in the text (ayat qauliyyah) but exists also in the universe (ayat kauniyyah), in the way human beings behave. Modern sociology and criminology should be juxtaposed and mirrored with traditional fiqh by Muslim jurists in their interpretations of the scripture.
— published in the Jakarta Post, May 8, 2015