English – Death penalty, Madrid, 14-15 July 2009

Death penalty in the legislative drafts and declarations of human rights in the Arab and Muslim countries

By

Sami A. ALDEEB ABU-SAHLIEH

Text presented to the Seminar « Towards a global moratorium on the death penalty, the case of Arab Countries », 14-15 July 2009, Madrid

Introduction

In February 2007, Ensemble contre la peine de mort (Together against death penalty) organized in Paris a congress. It announced the involvement of Sheikh Ali Jumma Mufti of Egypt. Some weeks before the congress, it indicated that the Mufti won’t be there, but that he will send his representative. During the congress, we learned that the representative of the Mufti won’t be there, but he will send a declaration to the participants. When the declaration had to be read, the organizers apologized that they didn’t receive the declaration.

Either the promoters were naive, or they ignored the Islamic norms. How could they imagine that the highest religious authority of Egypt can be against death penalty whereas this sanction is foreseen in the Koran and the Sunnah?

Today few Arab and Muslim countries abolished death penalty, mainly because of the classic Islamic norms. We won’t see here the current laws, but the drafts of the Arab and Muslim countries, their declarations of human rights and the drafts of constitutions established by Muslim movements. Then we will say why it is necessary to abolish death penalty and how to do it.

Presentation of these drafts

Several drafts of criminal codes have been prepared in the Arab countries.

1) The Egyptian draft of criminal code (1982). It is part of many drafts aiming to make the Egyptian legislation more in conformity with Muslim Law.

2) The draft of criminal code prepared by the Arab League (1996), establish by the Council of the Arab Ministers of Justice in conformity with Muslim Law.

3) The draft of criminal code prepared by the Cooperation Council for the Arab States of the Gulf (1997). It is nearly a faithful copy of the one prepared by the Arab League.

Death penalty in these drafts

These three drafts have three parts:

1. A first general part. It covers the enforcement of law in time and space and the general norms concerning the offenses, the sanctions and the protective measures.
2. A second part is dedicated to Islamic offenses and sanctions (hudud and qasas).
3. A third party is dedicated to the discretionary offenses and sanctions (ta’azir).

These drafts foresee as sanction death penalty, amputation, flogging, payment of the blood price, jail, fines and other punitive measures. Death penalty applies either in the setting of the Islamic offenses and sanctions, or in the setting of the discretionary offenses and sanctions.

Presentation of the constitutional drafts and declarations

• Constitutional draft of the Muslim brothers, 1952.

• Constitutional draft of the Party of liberation, 1952.

• Constitutional draft of the Azhar, 1978.

• Constitutional draft of Wasfi, 1980.

• Constitutional draft of the Islamic Council, 1983.

• Constitutional draft of Jarishah, 1984.

On the other hand, many Arab and Islamic Declarations on human rights have been elaborated.

Death penalty in the constitutional drafts and the Islamic declarations

The death penalty is admitted implicitly or explicitly by the constitutional models and the Islamic declarations. Some clearly specify that the criminal Islamic norms should be applied.

Death penalty in the Arab declarations

These declarations do not mention the application of the Islamic criminal norms. Some of them emphasize the right to life, but only the Libyan and Moroccan declarations aim to abolish the death penalty. The others tend to limit its application.

Why is it necessary to be against death penalty?

I am opposed radically to death penalty, whatever is the crime committed.

• The society must fully assume its responsibility instead of executing individuals who are victims of this society before being sometimes guilty towards it.

• As long as a person breathes, he has the right to amend; to deprive him of life means to deprive him of this right.

• The absence of guarantees against mistrial, the arbitrariness of political authorities and opposition.

• The evolution of the society. The evolution of the society requires the freedom of speech. The death penalty serves to silent people and therefore to block any evolution. The abolition of death penalty is an essential condition of the evolution of the Arab and Muslim society. By abolishing the death penalty one doesn’t only make an act of charity towards the individual, but towards the whole society.

How to abolish death penalty?

When your clock rings at noon 13 times, there is something wrong; you need a total check up. The death penalty has connections with a lot of factors. Two of these factors deserve our attention.

The religious factor

Islamic law is based on the idea that the law is decided by God who decides what is bad and what is good … including death penalty. We must therefore question this assertion. Several measures can be taken to undermine religious norms that prescribe death penalty:

• Divide the two sources of Islamic law: the Quran and the Sunnah.

• Divide the Koran into two parts: This is the theory of Taha, hanged on

18 January 1985

• Abandonment of the concept of revelation and desecration of holy books as foreseen by the Egyptian philosopher Zaki Najib Mahmud (d. 1993).

• Review the concept of revelation: this is not a word of God to man, but a word of man about God, with all that this word may contain as imperfection.

The factor of abuse: the victim becomes executioner

To deprive someone of life is the supreme expression of human aggressiveness. Aggressiveness is a psychic illness whose recovery requires the diagnostic of its cause.

One of the aggressiveness causes is abuse. The victims of the persecutions become often executioners. To create a cruel man it is sufficient to submit him to the cruelty and to accustom him to the taste of blood, preferably since his most tender childhood. So he loses all compassion towards others.

The first violence to which are exposed Muslim, Jewish and American children is circumcision. We start by cutting down and we end up cutting the heads. We must therefore abolish circumcision if we want to abolish death penalty.