accentuated by the principles detailed in the Quran and the Hadiths, which serve
as fundamental sources of guidance for Muslims. These sacred texts introduce the
concept of qisas, or retribution, as a core principle of Islamic law (Sharia).
Qisas mandates that the punishment for murder should be proportionate to the
crime, emphasizing the sanctity of human life and the necessity for justice.
Furthermore, the application of qisas extends beyond religious doctrine to
become a matter of state law in numerous Muslim-majority nations. State
authorities in these countries are responsible for ensuring that justice is
dispensed in accordance with both Islamic legal principles and secular legal
frameworks. This dual jurisdiction highlights the importance of qisas as a legal
and moral obligation within Islamic societies, while also acknowledging the
intricate interplay between religious doctrine and state governance in matters
of justice and law enforcement.
The Quran offers guidance on the concept of qisas in various verses. For
instance, in Surah Al-Baqarah (2:178-179), it states: ‘O believers! The law of
retaliation applies to you in cases of murder – a free man for a free man, a
slave for a slave, and a female for a female. However, if the offender is
forgiven by the victim’s guardian, then a fair blood-money should be determined
and paid with courtesy. This is a gesture of compassion and forgiveness from
your Lord. But whoever exceeds these limits will face a painful punishment.’
According to The Clear Quran translated by Dr. Mustafa Khattab, those who
deliberately murder a believer will be condemned to Hell, where they will reside
eternally. Allah will hold them in contempt, curse them, and inflict upon them a
severe retribution.
There is disagreement among Muslim jurists regarding the appropriate punishment
for Muslims who murder Dhimmis (non-Muslims). While Hanafi jurists advocate for
the death penalty, some Muslim jurists do not. Contemporary scholars, including
‘Awdah and El-Awa, have explored this issue. An analysis of both classical and
modern Islamic law literature suggests that the Hanafi viewpoint is preferable.
This preference stems from its stronger evidentiary basis and alignment with the
collective well-being of Muslims and non-Muslims in the present era.
In Islamic jurisprudence, qisas grants the victim’s family the right to seek
retribution against the offender, ensuring justice for the harm caused.
Nevertheless, the Quran underscores forgiveness and reconciliation, presenting
alternatives to retaliation. If the family decides against pursuing qisas, they
can opt for diyya, a form of compensation given by the perpetrator or their
family to the victim’s family as reparation for the loss. This provision
facilitates the restoration of social harmony and offers a resolution method
that prioritizes mercy and reconciliation over strict retribution.
In Islamic jurisprudence, the execution of qisas is carried out by state
authorities through a structured judicial process, ensuring impartiality and
adherence to established legal protocols. The evidentiary standards for
conviction in qisas cases are rigorous, necessitating strong and convincing
proof of the accused’s guilt. Furthermore, Islamic law guarantees the accused
the right to a fair trial and the chance to mount a defense, embodying the
principles of due process and procedural fairness inherent in Islamic
jurisprudence. This safeguards the rights of both the victim and the accused
throughout the legal process.
In numerous contemporary Muslim-dominant nations, the execution of qisas
displays substantial disparity, showcasing diverse legal governance strategies
and interpretations of Islamic law. Some countries, like Saudi Arabia and Iran,
strictly adhere to Sharia law in qisas matters, with judicial decisions guided
by Islamic legal principles and jurisprudence. In these nations, qisas is
applied based on traditional Islamic law interpretations, with state authorities
responsible for dispensing justice in accordance with religious tenets.
On the other hand, other Muslim-majority nations, such as Turkey and Indonesia,
have embraced legal systems that integrate secularism and Western legal
traditions. In these countries, while Islamic law holds cultural and symbolic
significance, legal frameworks are primarily grounded in secular principles
derived from European legal systems. Consequently, the implementation of qisas
may be influenced by secular legal norms, procedural requirements, and human
rights considerations, reflecting a hybrid approach to justice that balances
religious tradition with modern legal principles.
While qisas serves as a mechanism for justice and deterrence in Islamic legal
tradition, concerns persist regarding its application in certain contexts.
Critics contend that qisas may disproportionately impact marginalized
communities, as socioeconomic disparities can influence access to legal
representation and fair treatment within the judicial system. Moreover, there
are apprehensions about the potential for abuse or misuse of qisas, particularly
in cases where societal power dynamics favor certain individuals or groups over
others.
Furthermore, debates arise regarding the effectiveness of qisas as the sole
means of achieving justice in contemporary societies. In complex legal
landscapes shaped by evolving societal norms and human rights principles, there
is a growing recognition of the need for nuanced approaches to justice that
consider rehabilitation, restitution, and reconciliation alongside punitive
measures. As such, discussions around qisas often encompass broader questions
about the compatibility of traditional legal frameworks with modern conceptions
of justice and human rights.
Conclusion:
In Islam, the retribution for murder is based on the principle of qisas, which
allows for proportionate punishment against the perpetrator. However, Islamic
law also values forgiveness and reconciliation, providing opportunities for the
victim’s family to pardon the offender or receive compensation (diyya) instead
of pursuing qisas.
The implementation of qisas varies in different Muslim-majority countries,
influenced by cultural, legal, and societal factors. While some nations strictly
follow Sharia law and apply qisas as prescribed, others may incorporate elements
of secular law or offer alternative punishments for murder cases.
Within Islamic legal scholarship, there is ongoing debate and interpretation
regarding the application of qisas, considering mitigating circumstances,
evidence, and the broader goals of Islamic law. Ultimately, the approach to
murder punishment in Islam aims to balance justice with mercy, reconciliation,
and social harmony within the framework of Islamic legal principles and societal
norms.
Reference:
- https://www.jstor.org/page-scan-delivery/get-page-scan/26567175/0
Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565
