Apostasy – Part II. Apostasy Laws and Religious Liberty.

Liberty

“According to Shariah every individual is at liberty to
hold any belief or religious opinion he chooses and
nobody is allowed to compel him to renounce his belief,
religious opinion, accept some other belief or prohibit
him to express his religious opinion.” — Adbul
Qadir ‘Oudah, Criminal
Law of Islam, Vol. I, . p. 31.

No Liberty

“An apostate is one who abandons Islam and embraces another religion. According
to the Shariah an apostate is open to homicide. Hence
if some one kills him of his own accord he will not be accountable as a wilful
murderer whether he kills him before or after allowing him the option to repent.
For
every excess in the state of apostasy is warrantable.” — Adbul Qadir ‘Oudah, Criminal
Law of Islam, Vol. IV, . p. 19-20.

Summary: According to Muslim scholars, Islam is the supreme paradigm of religious liberty, surpassing all other religions in its toleration of divergent view points. As a proof-text to buttress their assertion, they point to the ayah, “There is no compulsion in religion” (al-Baqarah 2:256). They argue that every individual is free to accept or reject any belief without compulsion.

However, in the very next breath, the same Muslim scholars may state that any Muslim who dares to leave the religion of Islam, the Islamic government must execute him, because it is a hudd punishment. And, if the State will not behead the apostate, individual Muslims have a divine duty to carry out the punishment. As a result, it is clear that Islamic shari’a law is opposed to religious liberty.

In Apostasy: Part I. What does Islamic Scholarship say? many different Muslims scholars were quoted to show that it is a hudd crime for any Muslim to leave the fold of Islam. All four orthodox schools (madhhabs) of Shari’a law call for the death of any male who apostatizes from Islam. Except for the school of Hanafi, females must be executed too.

Now it is remarkable that Islamic scholars vigorously argue that Islam is at the very forefront of religious freedom, saying that individuals are free to hold any belief or religious opinion, and that no one should be compelled to accept or to renounce a particular belief system. All this sounds wonderfully tolerant, enlightened, and liberating. Yet, apparently, these same Muslim scholars aren’t able to see the irrational disconnect between their religious freedom statements and their statements on the Shari’a apostasy laws.

They say that individuals are free to hold any religious belief, but they turn around and say that an individual Muslim is not free to hold some religious beliefs. It is an irrational and illogical to claim that an individual is free and, at the same time, to claim that an individual is not free. Such statements violate the basic law of thought, the law of non-contradiction.

However, in reality, where Islam has the most influence in a nation, religious freedom is non-existent. For example, Saudi Arabia has no churches, synagogues or temples. Neither does it allow the scriptures of the divine prophets (the Old and New Testaments) within its borders. It punishes any Muslim who leaves the religion of Islam. So, all the talk about Shari’a law and religious liberty is just a friendly disguise to hide the shackles that grip Muslims in the prison of Islamic ideology.

Once again, the dual character of Islam became clear. Islam has two sets of teeth, like elephants. One is ivory, which makes it elegant and majestic; the other set of teeth is hidden inside its jaws, and is used to chew and crush. All those sweet peace talks of Islam relate to the time and place of weak Islam in early years. But whenever and wherever Muslims were and are strong, they have another set of cruel laws and conduct. Tell me why the national flags of many Muslim countries have swords on them – a sword is not for shaving beards, it’s only for killing. — Muhammad bin Abdulla, Now I Am Guided, In: Leaving Islam: Apostates Speak Out, Edited by Ibn Warraq, Prometheus Books, Amherst, NY, 2003, p. 297

Below are quotations from an Islamic Shari’a scholar. Firstly, you will notice in the blue-colored section his warm comments on religious liberty — they are wonderful indeed. Here he seems like a true libertarian and an enthusiastic champion of religious human rights. But, secondly, you will be shocked to learn that the person who champions religious liberty is the same person who champions the execution of any Muslim who leaves the religion of Islam. His warm and tolerant attitude toward religious diversity has turned into a cold, steely and bloody sword of death. Thirdly, you will be amazed at the ease with which this seemingly intelligent person proposes mutually contradictory ideas, all the while considering himself to be perfectly sane and rational.

Religious Liberty

(23) Doctrine of Liberty

One of the fundamental principles of the Shariah is the doctrine of liberty. The Shariah has affirmed liberty in its best forms, guaranteeing the freedom of thought, belief and expression. Let us
discuss these freedoms one by one.

(24) Freedom of Thought

By affirming the freedom of thought the Shariah has delivered man from the shackles of superstitions, myths, traditions and habits. It enjoins that man should give up everything that does not appeal to reason. It tells us that it is absolutely essential to give a careful thought to everything, judge all things by the standard of reason and accept only what reason acknowledges and reject all that it disapproves. The Shariah does not allow us to accept or say anything without thinking over it.

The very message of Islam is grounded in reason. In its affirmation of the existence of Allah, in its call to Islam and insistence on belief in the Prophet and the Holy Book, the Quran in the main, concentrates on teaching the people to think and contemplate and on trying to awaken their reason, and adopt all possible methods for persuading them to reflect over the creation of the heavens and earth as well as their own creation and over the existence of all created things and all the sensible phenomena so that they may know Allah and be able to distinguish between good and evil.

There are innumerable verses in the Holy Quran in which the principle of freedom of thought has been expounded and the use of reason emphasized. The following verses may be cited in this connection:—

“Lo! in the creation of the heavens and the earth, and the difference of night and day, and the ships which run

Page 29

upon the sea with that which is of use of men and the water which
Allah sendeth down from the sky, thereby reviving the earth after its death, and dispensing all kinds of beasts therein and (in) the ordinance of the winds, and the clouds obedient between heaven and earth are signs (of Allah’s sovereignty) for people who have sense”‘ (2:164)

“Say (unto them, 0 Muhammad): I exhort you unto one thing only:
that ye awake, for Allah’s sake, by Twos and singly, and then reflect.” (34: 46)

“Have they not pondered upon themselves? Allah created not the heavens and earth, and that which is between them, save with truth and for a destined end.” (30: 8)

“Say: Behold what is in the heavens and the earth!” (10:102)

“So let man consider from what he is created. He is created from
a gushing fluid. That issues from the loins and ribs.” (84: 5-7)

“Will they not regard the camels how they are created? And the
haven, how it is raised? And the hills, how they are set up? And the earth, how it is spread?” (88: 17-20)

“Lo! therein verily is a reminder for him who hath a heart,
or giveth ear with full intelligence.” (50: 37)

“But only men of understanding really heed.” (3: 7)

The Quran warns the people against suspension of their faculty of reason, keeping it indolent and following others blind-fold; against
superstitions and belief in myths, and against indeliberate adherence to traditions and customs. If they behave in this manner, they will hardly be different from or become even worse than animals, for they would then be following others without deliberation and without allowing their reason to sit in judgement at their words and deeds. Reason is the only faculty bestowed by Allah on man that marks him off from animals. If he allows this faculty to remain inert and gives up thinking, he will become an animal or even worse.

“And when it is said unto them. Follow that which Allah has
revealed, they say: We follow that wherein we

found our fore fathers. What! Even though their fore fathers were
wholly unintelligent and had no guidance? The likeness of those who believe (in relation to the messenger) is as the likeness of those who calleth until that which heareth naught except a shout and cry. Deaf, dumb, blind, therefore they have no sense.” (2: 170-171)

“Have they not travelled in the land, and have they hearts
wherewith to feel and ears wherewith to hear? For indeed it is not the eyes that grow blind, but it is the hearts, which are within the bosoms, that grow blind.” (22: 47)

“Already have we urged into hell many of the jinn and humankind, having hearts wherewith they understand not, and having eyes wherewith they see not, and having ears wherewith they hear not. These are the beast-nay, but they are worse! They are the neglectful.”

Man may think of anything and may adopt any mode of thinking he chooses. He cannot be censured for his thought, even if he thinks of those acts prohibited by the Shariah; for the Shariah does not censure the mind and does not call anyone to account for thinking of any unlawful word or .feed. A person is taken to account only when an unlawful word has been said or an unlawful act has been committed by him. The Prophet (S.A.W.) says the same thing in the following words:—

“Allah has forgiven my Ummh for any idea that may come into its
mind so long as it does not act upon such an idea or utters it.”

(25) Freedom of Belief

The Islamic Shariah is the first law in the history of the world to guarantee the freedom of belief. It does not only guarantee this freedom but also goes further to protect and lend it maximum
support. According to Shariah every individual is at liberty to hold any belief or religious opinion he chooses and nobody is allowed to compel him to renounce his belief, religious opinion, accept some other belief or prohibit him to express his religious opinion.

But the Shariah is a practical law. It does not stop at merely declaring the freedom of belief. It clearly lays down the procedure to protect it. This consist of two methods:—

(i) It is incumbent upon every individual to respect another individual’s right to belief as well as action thereon. No person can coerce another person into accepting any particular faith or renouncing his or her faith. If his belief is at variance with that of the latter, he should try to convince him by persuasion, making him realise the error involved in his belief. If he is convinced and willingly renounces his belief, well and good. But if he does not
acknowledge the error, it is not permissible to coerce him, nor is it in any way justified to exercise one’s influence so as to force him to give up his religion. It is enough for discharging one’s duty to explain the error inherent in the belief of a person professing a
different religion. Having this done, one has shown him the right way and guided him to the right path. One can find injunctions to this effect in the Holy Quran:—

“There is no compulsion in religion”. (2:256)

“And if thy Lord willed, all who are on the earth would have believed together. Wouldst thou (Muhammad) compel men,
until they are believers?” (10: 100)

“Remind them, for thou art but a remembrance Thou art not at all
ward over them” (89: 21-22)

“But the messenger has no other charge than to convey the message plainly.” (24: 54)

(2) It has been enjoined upon the believer himself that he should guard his faith and strive to champion it. He should refrain from adopting a negative attitude in this respect. If he finds that he is no longer able to defend and champion his faith, he should migrate from the place where his faith is not respected to a place where it is respected and where he is allowed the opportunity to profess it above board. If a believer has the strength to migrate but he does not do so, he is doing a wrong to himself even before he is oppressed by the person with a different belief. Such a believer is also guilty of a great sin, for which he deserves to be punished. But Allah does not overburden a man who does not have the strength to migrate. The following verses of the Holy Quran elucidates this point:—

“Lo! as for those whom the angels take (in death) while they wrong themselves, (the angels) will ask: In what were ye engaged? They will say: we were oppressed in the land (The angles) will say: Was not Allah’s earth spacious that they could have migrated therein? As for such, their habitation will be hell, an evil journey’s end”.

Except the feeble among men, and the women, and the children, who are unable to devise a plan and are not shown a way.

As for such, it may be that Allah will pardon them. Allah is ever clement, for giving. (IV: 97-99)

By guaranteeing the freedom of belief to all the people including the Muslims and the non-Muslims the shariah has exhibited the highest degree of sublimity. It has given the non Muslim citizens of an Islamic state the right to profess their religion and express their belief, openly perform their religious rites, keep their places of worship occupied and set up schools for teaching their religion. Take for example, the Jews. They were allowed by the Islamic states complete freedom to their synagogues and’ to worship according to their custom. They also had their schools in which the religion of Moses was freely taught. Again they were at liberty to write about their religion and try to prove its superiority over other systems of belief by comparing it with the latter within the limits of propriety and morality and without prejudice to the peace and tranquillity of the State. The Christian scholars representing various schools of thought were also allowed similar freedom. Every Christian sect had its churches and schools in the Islamic State where its members freely worshipped and taught creed freely. Besides, they wrote and published books on their
religion without any interference.

(26) Freedom of Speech

The Islamic Shariah does not merely provide for freedom of expression. It recognizes this freedom as the right of every individual. It goes even a step further and declares the freedom of speech as an obligation with respect to morality, common weal,
institutional matters and prevention of evils.

Allah says in the Holy Quran:—

“And there may spring from you a nation who invite to goodness and enjoin right conduct and forbid indecency.” (3: 104)

Those who, if we give them power in the land, establish and enjoin
kindness and forbid inequity.” (22:41)

The Holy Prophet has taught the same thing in the following traditions:—

“If any one of you sees an evil, he should rub it out with his own hands. If he does not have the strength to do this, he should verbally denounce it. But if he is unable to do even this much, then he should deem it vicious at heart and this is the nadir of the weakness of one’s faith.”

Again,

“To speak the truth in the face of a tyrant is the best form of Jihad (Crusade).

There is yet another tradition of the Holy Prophet which runs as follows:—

“Faith consists in exhortation and goodwill.”

“O Prophet of Allah,” asked his companions, “for whom do you mean?”

The Prophet replied, “For Allah, for His Prophet, for His book, for the leaders of Muslims as well as the Muslim people in general.”

The Prophet has said in another Tradition, “Hamza bin Abdul Muttalib is the leader of martyrs. He was the man who enjoined upon a tyrant to do good and forbade him to do evil. He was punished with death for committing this crime.”

Although every individual has the right to speak or use his pen in defence of his faith, but this right does not constitute unqualified freedom. One can exercise this right only within the limits of social decorum and morality and on condition that it is not repugnant to the injunctions of Shariah. The Islamic Shariah affirmed the freedom of speech and writing right at the time of its revelation, imposing simultaneously such restrictions on the exercise of this right as guarantee safeguards against encroachment on these rights or against the abuse of the freedom of speech. The Prophet of

Islam was the first to have announced this freedom and to have called the people to make use of it. But he was at the same time the first person on whose freedom of expression restrictions were
imposed. It was necessary to restrict his freedom because his word and deed were to serve as a model for humanity. It was also necessary to make the people realize that the prophet himself, not to speak of ordinary men, did not enjoy unrestricted freedom of
expression notwithstanding the fact that Allah says of him:

“And most surely you conform (yourself) to sublime morality” (68:
4 )Allah commanded the Holy Prophet (S.A.W.) to convey his message to the people, persuade them to believe in his prophethood and, by disputation, try to goad the disbelievers reason and awaken their hearts. Nevertheless, the Prophet was not allowed unqualified freedom of expression. On the contrary a procedure was laid down for him for inviting the people to the path of Allah and for disputation with the disbelievers. It was made incumbent upon him to carry out his mission judiciously with good counsel, converse with them in the
best possible manner to shun stupid people, refrain from saying anything indecent and from reproaching the people worshipping false gods. These were the restrictions imposed by Allah upon the Holy Prophet’s freedom of speech. It was made clear to him that this freedom was not absolute. The condition under which such freedom is provided for in the Shariah is that it should not be misused or should not be used in a manner which may
offend others.

These restrictions imposed on the freedom of expression benefits all the individuals and nations, pave the way for progress and generate the feelings of fraternity and love. It also engenders and
fosters the atmosphere of confidence among individuals and institutions, brings about a consensus on truth among the leaders, inducing them to cooperate with one another. Consequently personal and factional slogans are done away with. This is the kind of atmosphere lacking in modern age and the world is striving in vain to find ways and means to create it.

The comprehensive character of the principle of Shariah pertaining to the freedom of expression may well be judged

from the fact that modern legal experts are divided into two groups in spite of their long experience. One of these groups favours unqualified freedom of expression with a few restrictions in the field of general administration only. But it attaches no importance to morality. This begets only hatred, animosity and factionalism leading to social disorder and anarchy. The other group favours imposition of restrictions on any opinion that is at variance with the position held by those in power. If this idea is put into practice, it will repress freedom of thought and expression and virtuous people would be kept away from governmental affairs. This would give rise to dictatorship, social unrest and revolutions.

The Islamic Shariah is opposed to the concepts of both licence and a complete denial of liberties which are dominant in modern states. Islam basically advocates freedom of expression. But it
imposes at the same time certain restrictions thereon in order to safeguard morality, social propriety and smooth running of general administration; for, without these restrictions, freedom of expression cannot produce the desired results. The individual enjoying this freedom can be prevented from giving offence to others only when they are restrained from saying anything that may prejudice morality, social decorum and maintenance of
law and order. Obviously nobody can have a right to
transgression and offence, the denial of which might be tantamount to depriving him of something he is entitled to.

Doubtless, the Islamic Shariah allows every citizen to say anything without transgressing the prescribed limits; that is, a citizen
should abstain from vituperation, defamation, calumniation and from telling lies. He should rather try to rally the people round himself with prudence and good counsels. He should talk to them politely, refrain from uttering anything evil and avoid stupid persons.. The people will naturally lend ear to what a person adhering to the above principles has to say and attach due importance to it. Another advantage of the restrictions on the freedom of expression is that the person observing them will have good relations with other people and the community, as a whole, will be able to carry on the task of promoting common welfare
effectively.

The following verses of the Holy Quran constitute the

charter of the freedom of expression.

“Call unto the way of thy lord with wisdom and fair exhortation and
reason with them in the better way” (16: 125)

“Keep to forgiveness (O Muhammad) and enjoin kindness, and turn away from the ignorant.” (8: 199)

“When the foolish one’s address them (they) answer peace.”
(25: 63)

“Revile not those unto whom they pray beside Allah lest they wrongfully revile Allah through ignorance.” (6: 109)

“Allah loveth not the utterance of harsh speech save by one who
hath been wronged.” (4: 148)

“And argue not with the people of the scripture unless it be in (a
way) that is better, save with such of them as do wrong”. (29: 46)

There were the three aspects of the freedom of expression which the Islamic Shariah presented at a time when the people’s mental horizon was limited by traditions and they could not think beyond
their ancestors’ practice. They naturally resented any change in their beliefs on account of their outlook on life. Only the powerful people and those in authority among them enjoyed freedom of expression and thought. That was why the Muslims of the earliest period had to face great difficulties and persecuted in their
missionary work. They were brutally tortured for changing their belief and were compelled by every possible means to abandon their new faith. The heathens lost no opportunity to perpetuate atrocities on the Muslims. Whenever the Muslims spoke to propagate their faith, they were silenced and no sooner they stood up to offer their prayers than their watchdogs busied themselves to torture them.

From what has been stated above, it will be seen that expounding the principle of freedom of expression did not keep abreast with the process of social evolution as it did not care to fulfil the needs
of the society at that stage of development, for this principle was not acceptable to the world then. The Shariah provided for this freedom so that the society might be set on the path of progress, the people lifted from the abyss of ignorance and depravity and above all, the

Shariah itself might attain to perfection and become in-variable and perpetually applicable.

The provisions of Shariah with respect to individual liberty and limitations thereof are so flexible and comprehensive that they need no change or modification, for the Shariah in itself does not admit of any amendment. All its injunctions are general and flexible enough to withstand the test of time in all circumstances.

The Islamic Shariah affirmed the doctrine of individual liberty eleven centuries before the modern law; for it was introduced into the latter as late as at the end of the eighteenth and beginning of
the ninetenth centuries. Before that the concept of liberty was unknown to the man-made law. The thinkers and reformers in the west and those who ventured to criticise the official religion were severely punished. This is a historical fact. Viewed in the light of history, the claim that Europe was the first to champion individual freedom, would turn out to be utter falsehood. This utterly false claim is based on the ignorance of Shariah which may be condoned in the case of westerners. But how can we escape the charge of subscribing to it?

Quotation from: ‘Oudah, Adbul Qadir, Criminal Law of Islam, Translated by S. Zakir Aijaz, Kitab Bhavan, New Delhi, India, 1999 (Improved edition), Volume I. p. 29-38.

Last edited 2-9-2003

Religious Cruelty

(377) (b) Apostate (Murtad)

An apostate (Murtad) may be defined as a Muslim who renounces the faith of Islam. In other words apostasy in the Shariah terminology applies to a Muslim alone. If a non-Muslim renounces his religion, he is not treated as an apostate or ‘murtad.’

According to the Shariah taking ‘murtad’s‘ life is an impunitive act or one exempt from punishment. Hence if some one kills him, he will not be deemed as wilfully guilty, whether he does so before allowing the apostate a chance to repent or thereafter; for as long as the offender persists in apostasy, he is open to any maltreatment with impunity.

The general rule in this regard is that the apostate should be punished by the competent authority and if any body else kills him he commits a wrong act as he encroaches on the power vested in such authority. But the person in question will be liable to punishment for his act being prejudicial to the power of the compentent [sic] person and not for homicide. This is the view advocated by the jurists belonging to all the

1. There are two reasons for the vulnerability of an apostate’s life. As long as he remains a Muslim he enjoys guarantee of security because of Islam. No sooner he ceases to be a Muslim than the umbrella of security is withdrawn and his life becomes vulnerable. The second reason is that the penalty of death incurred by an apostate is a hud punishment and not a tazeer or penal punishment. The Holy Prophet has allowed homicide in three cases: “in the case of one who reverts to infidelity after embracing Islam; and one who, being married commits adultery and one who commits murder without any reason.” The Prophet also commands: “Kill the person who renounces his faith.” In short the punishment of apostasy is death penalty. Thus if one keeps in view the punishment prescribed for apostasy, it turns out to be an offence whose agent’s killing is impunitive. But as the basis of apostasy is deviation from Islam which, in its turn, constitutes the basis of the offender’s security, only the first of the above reasons is kept in view in treating the life of an apostate as vulnerable.

2. The jurists have laid down the condition that before applying the injunction pertaining to apostasy the offender should be called upon to repent. If he refuses, then he should be killed.

Page 258

four Schools. However, a dissident view is also to be found in the Malikite school of thought. According to this view, although an apostate is insecure, his killer will be liable to penal punishment and compensation will also be paid to the Bait-ul-Mal or state treasury. The jurists advocating the foregoing view argue that it is obligatory to call upon the apostate to repent and that he turns an infidel as the result of apostasy. Any one killing an infidel takes the life of a person whose murder is a wrongful act. That is why compensation or dyat for his life must be paid to the Bait-ul-Mal or the exchequer of. Islam; for Bait-ul-Mal alone is the heir of an apostate. In other words, the advocates of this view hold on the one hand that the guarantee of security is invalidated by apostasy and, on the other hand, maintain that an infidel is secure. The discrepency inherent in this view is obvious enough to reject it as fallacious. We may oppose it by maintaining that as long the apostate is a Muslim, he is secure by virtue of Islam and when he deviates from Islam or reverts to infidelity he is no longer secure and that security is ensured by the agreement of protection or peace and not by virtue of infidelity. As the apostate does not come under either of the agreements, he cannot be treated as enjoying the right of security after his reversion to infidelity.

The killer of an apostate is liable to punishment for encroaching on the power of competent authority or for the contempt of such authority when the competent authority reserves the right of exercising such power to himself. But if the courts or other judicial institutions do not award punishment for the offence of apostasy, as is generally the case with courts in Islamic countries today,
then these competent institutions are not empowered to award punishment to the killer of an apostate and also it will be wrong to treat the killer as guilty of encroaching on the powers of such institution; for the killer would be liable to punishment only when the institutions in question assume the responsibility

1. (a) Al Bahrul-Raiq, Vol 5, p. 125.

(b) Al Muhazzab, Vol 2, p. 238,

(d) Al Iqna, Vol. 4, p. 301.

2. Al Shahrul Kabeer, lil Durdeer, Vol. 4, p. 12 i 259

259

of enforcing the injunctions of which the individuals take upon themselves to enforce, the latter can never be called to account for encroaching on the powers of the former.

A general rule laid down by the Shafi’ee school in this respect is that a vulnerable person has the right to security against another vulnerable person. Hence an apostate will be liable to punishment for killing another apostate. If he does so, he will be treated as guilty of wilful homicide, even if he rejoins the fold of Islam later on. On the contrary if a Muslim takes the life of an apostate, he will not be deemed a killer. The same general rule will according to the majority of the Shafi’tes, be applicable to the case of killing of an
apostate by a Zimmi (a non-Muslim protege of an Islamic state). The Shafi’te apply this rule indiscriminately to all the vulerables, but the jurists of other schools do not accept it.

Under the Islamic Shariah the killing of an apostate is an bligation imposed upon every individual rather than a right inasmuch as punishment for apostasy constitutes a hud which must need be enforced.

The modern laws in force are at odds with the Shariah on this point. They do not treat a mere change of religion as punishable. They rather apply the concept of Shariah to a person who deviates from the system on which the society is based. Thus the communist states punish their citizens for renouncing communism. Similarly the Fascist states punish their citizens for rebelling against their system and for supporting communism or democracy. The democratic Countries are at daggers drawn with the communist or Fascist systems and treat them as criminal.
In other words, violation of the basic systems of the society occupies the same position in the modern laws as does rebellion against the Islamic system in the Shariah. As Islam constitutes the basis of Islamic social order, revolt against Islam is punishable. It may be inferred from the foregoing discussion that the Shariah and the modern laws are not at variance in principle. They
differ only in the application of principles. The Shariah treats Islam as the basis of the society, which naturally calls for the punishment of apostasy in order to ensure the

1. (a) Asna ul-Matalib, Vol. 4, p. 13.

(b) Sharh-ul-Ansari A lal Behjah Vol. 5, pp. 3-4,

2. Sharh-ul Ansari Alal Behjah Vol. 5, p. 3. 260

260

security of the social system. The man-made laws in force, on the contrary, regard a social ideology instead of religion as the basis of social order. That is why they do not treat change of faith as unlawful. They rather impose a ban on every ideology inconsistent with the one on which rests the wharp and woof of the society regulated by them.

The existing Egyptian penal law has been framed on the pattern of modern laws in force. Thus it does not provide for any punishment for apostasy, although the social order of all the Islamic countries rests on Islam. But absence of a provision for the punishment of apostasy in the Egyptian law does not mean that apostasy is lawful. On the contrary, apostasy according to the provisions
of the Shariah is a capital crime. These provisions are still valid, will continue to be so as long as Islam exists and cannot be, rescinded or suspended by the man-made laws in force. Hence if any one kills an apostate, he will on no account be liable to punishment and cannot be treated as guilty of encroaching on the powers of competent authority; for he does a lawful act and discharges
his duty imposed by the Shariah.

It may be noted that although the Egyptian penal law contains no provision for the punishment of an apostate, yet it does not prejudice any act done as a right in good faith in pursuance with a provision of the Shariah. (see Clause 60 of the Egyptian penal law). The clause is enough to warrant exemption of the killer of an apostate from punishment. It may be said that killing of an
apostate is an obligation and not a right. The answer to such an objection is that an obligation is equal and ever transcendental to a right. Now if we look at the matter from the standpoint of the person who is the object of killing, then the act in question amounts to the right of the agent, for such act is justified both as a right and an obligation and the offender who is to be killed
cannot challenge it as the agent is competent to do the act both as a right and as an obligation. But if we look at the matter from the standpoint of moral and religious responsibility, obligation occupies a position of higher order than right inasmuch as obligation must need be fulfilled, whereas the exercise of right is optional. In other words, the difference

1. See Article 191.

261

between obligation and right manifests itself when a responsible or obligated person is held accountable for omitting an obligatory act; for omission of such act makes him liable to punishment; whereas relinquishment of a right entails no punishment. Hence if a person vested with the right of doing an act and having the choice to exercise it or not can be exempt from accountability for doing a legitimate act, then one under the obligation to do it will be the more exempt as he would be doing an act which is incumbent upon him to do.

In addition, article No. 7 of the Egyptian law contains a provision to the effect that the law of the land cannot prejudice the personal rights bestowed by the Islamic Shariah. As a matter of fact, if we take into consideration the obligatory aspect of the act in question the obligations imposed by the Shariah are also tantamount to personal rights. Let us take for example medical practice. It is obligatory for a qualified doctor and under the Shariah it is mandatory. But the Shariah at the same time provides for the right of the medical practitioner to wound his patient or cut off any part of his body. Killing of an apostate is an obligation of every individual and he is responsible to the law-maker for it but at the same time it also assumes the character of a right vested in the obligated person. Again, it is the duty of an executioner to kill a person condemned to death. But the execution of such duty also gives him the right to behead the person sentenced to death by decapitation. But we need not offer this explanation. We believe that all such provisions of the law as are repugnant to Islamic Shariah are null and void.

262

Quotation from: ‘Oudah, Adbul Qadir, Criminal Law of Islam, Translated by S. Zakir Aijaz, Kitab Bhavan, New Delhi, India, 1999 (Improved edition), Volume II. p. 258-262.

22. Apostate

An apostate is one who abandons Islam and embraces another religion. According to the Shariah an apostate is open to homicide. Hence if some one kills him of his own accord he will not be accountable as a wilful murderer whether he kills

There are two reasons for declaring an apostate open
to homicide:

1. An apostate enjoys security by virtue of his Islam before he abandons it. By turning a renegade he forfeits his right to security and thus exposes himself to homicide. Says the holy Prophet:” I have been commanded to wage a war against the people until they profess that Allah is the only object of worship and I am His prophet. If they acknowledge this, their life and property are sexism from me, except they owe some duty and for that they are accountable to Allah,”

2.According to the Shariah, the capital punishment prescribed for an apostate is the nature of a hud and not of tazeer. Says the Prophet (S.A W) Killing of a Muslim is warrantable on three grounds: Adoption of infidelity after embracing Islam, committing
adultery after marriage aid committing homicide wrongfully.

Again, “Whoever renounces the Islamic faith kill him“. The Shariah does not admit of the remission of a hud or the deferment thereof. Hence one guilty of apostasy is open to homicide and its punishment is imperative. If some ore carries out the hud so prescribed and kills the apostate of his own accord, be is to be deemed to have taken life one subject to the Allah’s hud, just as he may have killed a married adulterer.

Page 19

him before or after allowing him the option to repent. For every excess in the state of apostasy is warrantable.

As a rule, killing of an apostate is the responsibility of public authority. If any one kills him without permission he will be guilty of transgression and will as such be liable to punishment. But he will be punished for the infringement of public authority and not for homicide in itself. This is the position of all the four schools of Islamic jurisprudence. Imam Malik, however, holds a different view altogether. According to him, an apostate is insecure (not impeccable) but his killer will be liable to tazeer and he will have to pay blood price to the Bait-ul-mal. He argues that the choice of repentance must be given to the apostate, for on turning an apostate he becomes an infidel. If any one takes his life, he
kills an infidel and killing of an infidel is unwarrantable and the killer is under the obligation to pay the blood price to the Bait-ul-mal, which alone is the rightful heir of the infidel. According to his view, apostasy invalidates the right to the security of life and infidelity ensures this right. The discrepancy here is obvious which is enough to reject the opinion in question. It may also be asserted for the refutation of such a view that by virtue of being a Muslim one acquires the right to security, while infidelity invalidates it since an infidel acquires the right to security owing to an agreement of refuge, assumption of responsibility to protect, pledge etc., and as none of such guarantees of security applies to an apostate, he will not remain secure on turning an infidel.

The laws in force are at variance with the Shariah in that these laws do not provide for any punishment for abandoning one’s faith. The reason [is] that they are enframed on secular basis, hence logic demands that change of religion does not entail any penalty under such legislation. The Shariah on the other hand owes its origin to the religion of Islam and, therefore, it is quite natural that it lays down punishment for abandoning the faith.

The Egyptian law like other modern laws in force is

1.The jurists have laid down the rule that before executing the death penalty of an apostate, he should be given the option to repent. If he does [not] avail of such option, he must be put to death.

2.Al Bahrul-Raiq, vol. 5, p. 125; AL Iqna’a, vol 4, p. 301; Al Muhazzab vol. 2, p. 238; Muwahib-ul-Jaleel, vol. 6, p. 233.

3.Al Sharh-ul-Kabeer lil Durdeer, vol. 4, p. 271.

secular in nature and that is why there is [no] provision in it for the punishment of an apostate. But absence of such provision does not mean that apostasy is lawful and incurs no penalty. On the contrary apostasy under the Shariah is an offence punishable by death. The relevant provisions of the Shariah are still valid and cannot be suspended. No secular legislation can annul these provisions as has been explained in this book in the context of the
ingredients of crime. Therefore, if any one kills an apostate he will not be liable to punishment for homicide inasmuch as he does an act warrantable under the Shariah and exercises one of the rights he enjoys.

1. The reader is referred to the portion of this book relating to the Exercise of Right and Fulfilment of Obligation.

Quotation from: ‘Oudah, Adbul Qadir, Criminal Law of Islam, Translated by S. Zakir Aijaz, Kitab Bhavan, New Delhi, India, 1999 (Improved edition), ISBN: 81-7151-273-9 (set), Volume IV. p. 19-21.