Death penalty for apostasy – is there a consensus?
1. The situation in Muslims states
The situation in the Muslim States today is not consistent when it comes to the issue of freedom of religion generally – while some States allow it with some restraints(81), others restrict it severely(82).
There do not seem to be an agreement among the Muslims on whether this means that one is free to change his religion.
This lack of consensus was illustrated by Abdullah Saeed(83) when he referred to the incident in 1948 when the representative of Pakistan to the United Nations disagreed with the representative of Saudi Arabia. The latter raised an objection to Article 18 of the Universal Declaration of Human Rights, in particular, to the freedom to change one’s religion but the former supported the said Article 18 on the basis that the Quran allows a person to believe or not to believe.
Mayer was of the view that one of the problems faced when dealing with Islamic Law is the fact that unlike the Roman Catholics which has the Vatican Church to pronounce doctrine, Islam as a religion is “decentralised”(84). This led and is leading to many Muslims reinterpreting the Quran and moving away from the old school of thought(85).
2. Death penalty – argument against
Nowhere in the Quran is death penalty imposed for apostasy. The Quran warns against it, deplores it but reserves punishment for it in the next life(86).
As for the many hadiths referred to to support the death penalty, Abdullah Saeed helps us understand the historical context:-
“The earliest Muslim community of Medina at the time of the Prophet was preoccupied with the threat to its survival from external and internal opponents. …A person had to belong to one group or the other: the Muslims or their opponents. A person leaving one group was bound to join the other. …Given the state of war that existed between Muslims and their non-Muslim opponents throughout much of the prophet’s time in Medina, the reported declaration that the apostate should be put death seems reasonable”(87).
As such, the argument is that in the cases used to support the death penalty for apostasy, the death penalty was imposed not so much for the act of apostasy but for those who “repudiate Islam, join the enemy and struggle to inflict harm on the Muslim community and Islam”(88).
The view that the death penalty imposed on the apostates in the hadiths was for the offence of defecting to the enemy to wage war against the Muslim community is consistent with the view that women and minor apostates do not deserve the death sentence as the women and minors in that historical context do not participate in war. If the punishment of death was to be imposed on apostasy alone, it does not make sense why there should be any exceptions or discrimination.
It is submitted that this view has merit. The act of apostasy is one committed against God and it shall be that the God himself shall punish the apostate. A spiritual offence will reap a spiritual consequence.
It is submitted further that this view appears to be consistent with the Quran’s stand that there should be no compulsion in religion. This stand should apply equally to one who wants to convert into the Islam faith as well as one who wants to convert out.
It is also submitted that for such a serious punishment, there must be express and unequivocal provision in the Shar’ia – especially in the Quran.
As such, it appears that there is possibility that the Shar’ia Law can go hand in hand with modern international human rights law. Mayer is of the view that the “rich material and complex legacy of Islamic civilisation offer many avenues for meshing human rights law with Islamic values”(89). However, progress is impeded(90).
Even if it is accepted that the Shar’ia Law imposes death penalty for apostates, there are views that such laws were only applicable to the early Muslim community in Medina and as such of no relevance today(91).
3. The real issue behind apostasy?
Mayer questions the motivations of those who insist on death penalty for apostates despite the alternative views available and wonders whether their real concern is over religion or over some other matter(92).
Siraj Sait observes that reservations in the CRC were mainly due to political contingencies, not the Shar’ia. He suggests that the reservations could be motivated by the fear of “Western values infiltrating the Muslim society” or “the prospect of an independent thinking new generation well positioned to challenge their authoritarian policies”(93).
Mayer seems to agree when she noted that “…[t]here is fear that the individual may attempt to assert excessive rights that could harm the authority of the state or undermine the moral order of society. Islam is viewed in these schemes as a device for restricting individual freedoms and keeping the individual in a subordinate place vis-à-vis the government and society”(94).
While these views cannot be proven for sure, what is certain is that there is no general agreement or consensus on the issue of apostasy. Unless domestic law provides for its criminalisation expressly, there will be uncertainty on how the Shar’ia Law will be applied. In the present on-going case of the Afghan who is on trial for apostasy(95), while many say that he may be executed if found guilty, no one can be certain of that.
It is submitted therefore that if basis of the said reservations is the restriction on apostasy, then the reservations will be incompatible with the objects and purpose of the CRC on the basis that it is vague and uncertain.
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(81) For instance, freedom of religion is guaranteed in Turkey (Article 24 of the Constitution) and Tunisia (Article 5 of the Constitution)
(82) For example, Saudi Arab, Sudan and Yemen have laws against the offence of apostasy which is punishable by death
(83) See note 55 above at page 14
(84) Gustafson & Juviler – Religion and Human Rights – Competing Claims? M.E. Sharpe, Inc 1999, at 180
(85) Ibid - Mayer views that with the rise of literacy, Muslims are reading the Quran and the Prophet Muhammad’s accounts and are extracting their own lessons
(86) See Quran 2:217, 3:87, 3:106, 4:137
(87) See note 55 above at pg 60
(88) Ibid
(89) See note 84 above at 188
(90) Ibid, pg 189 Mayer quotes examples of people like Prof Abdol Karim Sorush, MM Taha and feminists Fatima Mernissi, Toujan Faisal and Taslima Nasreen who have been harassed – and in the case of MM Taha, executed – due to their attempts at progress
(91) See note 44 above, pg 169. a famous advocate of this view is Mahmud Muhammad Taha, the leader of the Sudanese Republican movement who was executed in 1985 as an apostate for his radical views
(92) Ibid pg 158
(93) See note 3 above, pg 35, 49
(94) See note 44 above, pg 81-82 I&HR
(95) See note 77 above
The situation in the Muslim States today is not consistent when it comes to the issue of freedom of religion generally – while some States allow it with some restraints(81), others restrict it severely(82).
There do not seem to be an agreement among the Muslims on whether this means that one is free to change his religion.
This lack of consensus was illustrated by Abdullah Saeed(83) when he referred to the incident in 1948 when the representative of Pakistan to the United Nations disagreed with the representative of Saudi Arabia. The latter raised an objection to Article 18 of the Universal Declaration of Human Rights, in particular, to the freedom to change one’s religion but the former supported the said Article 18 on the basis that the Quran allows a person to believe or not to believe.
Mayer was of the view that one of the problems faced when dealing with Islamic Law is the fact that unlike the Roman Catholics which has the Vatican Church to pronounce doctrine, Islam as a religion is “decentralised”(84). This led and is leading to many Muslims reinterpreting the Quran and moving away from the old school of thought(85).
2. Death penalty – argument against
Nowhere in the Quran is death penalty imposed for apostasy. The Quran warns against it, deplores it but reserves punishment for it in the next life(86).
As for the many hadiths referred to to support the death penalty, Abdullah Saeed helps us understand the historical context:-
“The earliest Muslim community of Medina at the time of the Prophet was preoccupied with the threat to its survival from external and internal opponents. …A person had to belong to one group or the other: the Muslims or their opponents. A person leaving one group was bound to join the other. …Given the state of war that existed between Muslims and their non-Muslim opponents throughout much of the prophet’s time in Medina, the reported declaration that the apostate should be put death seems reasonable”(87).
As such, the argument is that in the cases used to support the death penalty for apostasy, the death penalty was imposed not so much for the act of apostasy but for those who “repudiate Islam, join the enemy and struggle to inflict harm on the Muslim community and Islam”(88).
The view that the death penalty imposed on the apostates in the hadiths was for the offence of defecting to the enemy to wage war against the Muslim community is consistent with the view that women and minor apostates do not deserve the death sentence as the women and minors in that historical context do not participate in war. If the punishment of death was to be imposed on apostasy alone, it does not make sense why there should be any exceptions or discrimination.
It is submitted that this view has merit. The act of apostasy is one committed against God and it shall be that the God himself shall punish the apostate. A spiritual offence will reap a spiritual consequence.
It is submitted further that this view appears to be consistent with the Quran’s stand that there should be no compulsion in religion. This stand should apply equally to one who wants to convert into the Islam faith as well as one who wants to convert out.
It is also submitted that for such a serious punishment, there must be express and unequivocal provision in the Shar’ia – especially in the Quran.
As such, it appears that there is possibility that the Shar’ia Law can go hand in hand with modern international human rights law. Mayer is of the view that the “rich material and complex legacy of Islamic civilisation offer many avenues for meshing human rights law with Islamic values”(89). However, progress is impeded(90).
Even if it is accepted that the Shar’ia Law imposes death penalty for apostates, there are views that such laws were only applicable to the early Muslim community in Medina and as such of no relevance today(91).
3. The real issue behind apostasy?
Mayer questions the motivations of those who insist on death penalty for apostates despite the alternative views available and wonders whether their real concern is over religion or over some other matter(92).
Siraj Sait observes that reservations in the CRC were mainly due to political contingencies, not the Shar’ia. He suggests that the reservations could be motivated by the fear of “Western values infiltrating the Muslim society” or “the prospect of an independent thinking new generation well positioned to challenge their authoritarian policies”(93).
Mayer seems to agree when she noted that “…[t]here is fear that the individual may attempt to assert excessive rights that could harm the authority of the state or undermine the moral order of society. Islam is viewed in these schemes as a device for restricting individual freedoms and keeping the individual in a subordinate place vis-à-vis the government and society”(94).
While these views cannot be proven for sure, what is certain is that there is no general agreement or consensus on the issue of apostasy. Unless domestic law provides for its criminalisation expressly, there will be uncertainty on how the Shar’ia Law will be applied. In the present on-going case of the Afghan who is on trial for apostasy(95), while many say that he may be executed if found guilty, no one can be certain of that.
It is submitted therefore that if basis of the said reservations is the restriction on apostasy, then the reservations will be incompatible with the objects and purpose of the CRC on the basis that it is vague and uncertain.
__________________________________
(81) For instance, freedom of religion is guaranteed in Turkey (Article 24 of the Constitution) and Tunisia (Article 5 of the Constitution)
(82) For example, Saudi Arab, Sudan and Yemen have laws against the offence of apostasy which is punishable by death
(83) See note 55 above at page 14
(84) Gustafson & Juviler – Religion and Human Rights – Competing Claims? M.E. Sharpe, Inc 1999, at 180
(85) Ibid - Mayer views that with the rise of literacy, Muslims are reading the Quran and the Prophet Muhammad’s accounts and are extracting their own lessons
(86) See Quran 2:217, 3:87, 3:106, 4:137
(87) See note 55 above at pg 60
(88) Ibid
(89) See note 84 above at 188
(90) Ibid, pg 189 Mayer quotes examples of people like Prof Abdol Karim Sorush, MM Taha and feminists Fatima Mernissi, Toujan Faisal and Taslima Nasreen who have been harassed – and in the case of MM Taha, executed – due to their attempts at progress
(91) See note 44 above, pg 169. a famous advocate of this view is Mahmud Muhammad Taha, the leader of the Sudanese Republican movement who was executed in 1985 as an apostate for his radical views
(92) Ibid pg 158
(93) See note 3 above, pg 35, 49
(94) See note 44 above, pg 81-82 I&HR
(95) See note 77 above
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