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The decision to execute Bangladeshi-origin Nazrul Islam Abdul Basir and woman Siti Akhtar on serious charges of allegedly committing ‘illegitimate and indecent acts’ inside a mosque located in the holy city of Mecca in Saudi Arabia has created a sensation all over the world. According to an official statement issued by Saudi Arabia’s Interior Ministry, both foreign nationals were given the death penalty under a special category of Sharia law called ‘Tazir’ in Islamic jurisprudence. As soon as this decision came into effect, there has been a strong outcry from the capital of Bangladesh, Dhaka to the international diplomatic circles, because the Bangladesh government directly alleges that the Saudi government neither gave any formal information to the Bangladeshi embassy nor provided any opportunity for legal assistance before hanging its citizens. After this incident, a legal debate has started all over the world as to which crimes can be given death penalty in Islam and whether taking life for any non-violent act on the basis of discretionary power is in accordance with the principles of Islamic justice.
In Islamic jurisprudence and Sharia law, any crime is divided into three major legal categories based on its seriousness, level of evidence and rights of the victim. There is a provision for taking life i.e. death penalty under all these three sections, but their conditions, standards of testimony and procedures are completely different from each other:
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Hudud: These are crimes that are considered direct ‘violations of the rights of Allah’. Their definition and their punishments are already prescribed literally in the Holy Quran and Hadith. These include serious cases such as zina (adultery), ittidad (abstinence), dacoity (hiraba) and rebellion by a married person. In Hudud crimes, if the crime is proved with strong evidence, then the judge i.e. Qazi has no legal authority to change, forgive or reduce the punishment.
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Qisas: This is the legal principle of ‘equitable revenge’ and retaliation, which applies only in cases of murder or intentional infliction of grievous bodily harm. Under QISAS, if a person kills someone, the relatives and legal heirs of the killed person have the right to demand death penalty for the murderer from the court. However, in Kisas there is also a big humanitarian option of ‘Diya’ i.e. blood money (compensation/bloodshed), where the victim’s family can spare the life of the criminal by accepting compensation if they wish.
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Tajir: This is called ‘discretionary power’ of the judge. This includes all those crimes whose definite punishment has not been prescribed in the Quran or Hadith. In cases of Tajir, the Qazi or judge, based on his discretion, social influence and situational knowledge, decides whether an act is considered a crime or not, and if the crime is proven, then the culprit should be given a warning, financial penalty, flogging, imprisonment or in exceptional circumstances, death penalty. Since there is no codified written penal code in Saudi Arabia, the Qazis there have unlimited legal powers under Tajir.
Saudi Arabia’s Interior Ministry, in its detailed explanation, clearly said that the death sentence to the Bangladeshi couple has been awarded using Tajir’s special right. The official argument of the Saudi judiciary and government is that this act was not just an ordinary social crime, but this crime was committed within the walls of a mosque in Mecca, the holiest place on earth. According to Saudi officials, this act has deeply hurt the sanctity, dignity and sanctity of the place of worship. The Ministry believes that deliberate serious violation of the sanctity of the holy place and the time of worship is an unpardonable crime that tears apart the moral fabric of the society, hence the judge considered it absolutely appropriate to give death penalty under Tajir to both of them to set a strong example of social prevention and public discipline.
After this execution, a large section of Islamic jurists and Mufti-e-Karam around the world are questioning the legal validity of this decision. Experts of Islamic Fiqh argue that this decision does not seem to be in accordance with the basic spirit of Islamic justice, the main reasons for which are as follows:
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Limited scope of death penalty in Tajir: The majority of Islamic scholars and jurists believe that the basic purpose of Tajir is to reform the criminal and prevent society from crime, and not to take life in retaliation. According to traditional Fiqh, the death penalty should be limited only to Hudud and Qisas, where there are extremely strict and rigorous tests of testimony.