I have explained in this series, and in last week’s article that the punishment for apostasy in Islam is a discretionary one, which means that it is determined in every case according to its circumstances and the nature of the offense. This view represents a departure from the traditional one which looks at apostasy as an offense meriting a mandatory, or hadd, punishment, which must be enforced in every case, and cannot be subject to any reduction, or total or partial pardon.
Prescribing a discretionary punishment for apostasy does not contravene the constitutional and legal principles that guarantee freedom of belief. These principles ensure that such freedom is established within the framework of public order and moral values. Such public order in an Islamic state does not approve that protection is given for public renunciation of Islam. To do so, the state would lose its status as an Islamic state. On the other hand, apostasy in private, with the apostate keeping his beliefs to himself, is a different matter. No one will pursue such an apostate or try to establish his apostasy in order to punish him. According to correct views, Islamic law leaves such a person to be judged by God, who may punish or pardon him as He wills.
Nor does the establishment of a discretionary punishment for apostasy constitute a violation of the principles that ensure the right to free speech and criticism. Such freedoms, normally guaranteed by state constitutions, are exercised within the law. In an Islamic state, any law that allows the public renunciation of Islam is deemed to be unconstitutional.
It is contrary to the basic principle upon which the Muslim community is founded. Indeed, a Muslim state is required to preserve these principles and implement them, using all its authority and machinery for the purpose.
Moreover, defining the punishment of apostasy as discretionary, as confirmed by a host of Qur’anic, Hadith and Fiqh evidence, invalidates the view, held by a broad section of scholars, which considers an apostate as having no self-immunity which protects him from being killed. It is indeed this view that encouraged a group of individuals to kill Dr. Farag Foudah when they saw that some of his writings indicated his renunciation of Islam and considered him an apostate. Thus, when we establish that apostasy is an offense incurring a discretionary punishment, the very concept of losing self-immunity as a result of apostasy collapses.
There will be no room for saying that once a person is considered by a group of people to have committed apostasy, then he loses self-immunity, and becomes liable to be killed by any individual. To say so is to make his killer liable to no punishment for killing a human being.
The only punishment he may incur is one for taking the law into his own hands, without waiting for the process of the law to take effect. This type of punishment is described by scholars as ‘usurping the ruler’s authority’.
Indeed the very idea of ‘loss of self-immunity’ cannot be approved by contemporary Islamic ijtihad. A person accused of any offense, including the offense of apostasy, cannot be considered guilty without a public trial before an ordinary court of law, not before any emergency, special, or military court, of any type.
In such a trial, the accused must have all the guarantees of a public hearing that gives him a full scope for defending himself, examining his arguments and presenting his doubts for proper discussion. He may not be considered an offender unless the offense has been clearly established. To say otherwise is to disregard the legal procedure for establishing offenses, which is upheld by Islamic law. A basic principle of this legal procedure is that every person is regarded as innocent of any offense, until proven guilty according to the due process of the law. Hence, we deny the very idea of allowing the loss of self-immunity by any person in any situation, except by a court judgment arrived at after a trial that conforms to all proper legal procedures. It is only after such a judgment is made that a person may forfeit his right to life, through committing an offense incurring the death penalty. No one may be punished in advance of such a sentence, or through usurping the legal authority of the courts.
It is to be noted at this point that the last quarter of the twentieth century witnessed a broad movement in a number of Arab countries to formulate the rulings of Islam into proper laws that may be applied through the courts. This movement was successful in the enactment of a number of laws derived from, or attributed to, Islamic law in Libya and Sudan. Likewise bills were drafted in Egypt, Kuwait (where two bills were prepared within the penal law, the UAE and other countries.
Those engaged in drafting these laws and bills had to sort out many points where different schools of Islamic Fiqh have substantial differences. The recent upturn in Islamic scholarship and the activities of the advocates of Islam, which prepared the way for such legislative movement, have been able to prove that there is no need to conform to a particular school of Islamic Fiqh with all its details. In fact, it advocated freedom of selection from different schools on the basis of evidence and what clearly serves the interests of the Muslim community. This has encouraged scholars to unhesitatingly venture into the exercise of scholarly effort, or ijtihad, al beit in the limited sense of making a scholarly preference based on stronger supporting evidence.
One of the problems facing such bills was to determine what stolen property qualifies for the implementation of the mandatory punishment, defined in the Qur’anic verse: "As for the man or the woman who is guilty of stealing, cut off their hands in requital for what they have wrought, as an exemplary punishment ordained by God. God is Almighty, Wise." (5: 38) The problem facing the bill drafters focused on finding answers to two basic questions:
1. Is it necessary for implementing the mandatory punishment that the stolen property should be safely kept in a particular place at the time when it is stolen? This is known as ‘property security’.
2. Should the stolen property have a minimum value for the punishment to be enforced? In other words, should the punishment apply in any case of theft, no matter how small the value of the stolen property may be? This question determines whether there is a threshold for the specified punishment to apply.
We will look into these two questions and the problem facing the law drafters next week, God willing.
