Is the application of qisas, the death penalty in Islamic law, still relevant today? The issue has been raised once again, as dozens of Indonesian migrant workers, including Satinah, face the threat of execution in Saudi Arabia.
Like Satinah, they may be saved if they pay compensation (diyat) as demanded by the families of their victims. But this compensation mechanism is not always effective in saving someone from the death penalty.
The qisas is explicitly referred to in the Koran. This lex talionis (an eye for an eye legal code) is not unique to Islam, as it had existed in Jewish law and, well before that, in the code of Hammurabi the king of Babylon.
The Koran states that a qisas does not function as a death penalty per se; rather it should “give life” (walakum fi al-qisas hayah). Therefore, the qisas is intended as a deterrent effect and, therefore, a “life given” to others, though so far it hasn’t seemed to be every effective in Saudi Arabia.
The main problem is whether the workers who are convicted of killing their employers meet the requirements of being punished by the qisas.
A number of scholars in the kingdom have said the qisas verdict for many migrant workers charged with such crimes is unfair, as it seems many of the killings took place under tremendous pressure on the defendants and were, therefore, more akin to self-defense.
Nevertheless, the criticism does not invalidate the existence of the qisas itself. In conservative Islamic jurisprudence or fiqh, not every claim of self-defense is accepted as eliminating the qisas punishment. If someone is driven to kill another because the latter has threatened his life, such as a terrorist, a rebel, robber and so on, then the killer is not exposed to the qisas penalty.
Such self-defense in a life-threatening situation, or daf al-sha’il, is made on the grounds that, among other things, (1) there is no other alternative to protect oneself except by killing the other, and (2) that the killing was commensurate with the level threat.
But the above definition of self-defense still depends on whether the facts and evidence presented in court meet the principle of fairness, which is the spirit of qisas. Thus, the qisas can still be imposed in the event that, say, a migrant worker’s act of murder is judged to have exceeded the level of threat from her employer.
Here lies the problem of conservative fiqh, which contains fewer discussions about the limits of justice. Justice is the universal substance of all Islamic legal dictums. The Koran mentions in many verses the commands of justice (‘adl, qisth, qisthas). Thus, the execution of qisas should not injure the sense of justice.
What is lacking in conservative fiqh is the philosophical study of the limits of justice, especially since the meaning of justice changes through different eras. Nowadays, the wish for an end to the death penalty is loudly voiced by human rights activists.
Within the spirit of justice, the qisas should therefore be replaced with other forms of punishment. In fact, there are many Muslim-majority countries that do not apply qisas. Saudi Arabia, however, prefers a literal interpretation of Koranic text, and so it is hard for human rights discourse to penetrate clerical
Another criticism of qisas is proposed by Tariq Ramadan, a renowned professor at Oxford University, with his call for a “moratorium of the death penalty”.
He says most scholars in the Islamic world today have concluded that the death penalty (either qisas for murder or stoning for adulterers) is “almost never applicable”. Criminal sanctions (hudud) in the form of the death penalty, according to Ramadan, should function as a deterrent. That is, if the purpose of the prevention of murder by qisas has not been effective, then it should not be applied.
Ramadan’s study revealed that qisas was more often applied to those who were weak, members of minorities, and those who were marginalized — and rarely imposed upon the economically strong or those close to the ruling elite.
Inequality and the frequent abuse in the application of qisas today, according to Ramadan, had become the social context that could annul, or suspend, the application of qisas; hence, his call for the moratorium.
This desire for a moratorium of qisas should be continuously voiced toward Saudi Arabia — especially given the widespread reports of abuse against our workers and the unfair application of justice in the kingdom.