Sajjad Akbar
MPhil Researcher, Department of Theology and Philosophy, Al-Azhar University, Cairo
(Part two of a five-part series. Part one showed that neither possible scenario of the case provides a clear Shariah basis for this death sentence.)
2. Did This Execution Violate the Maqasid al-Shari'ah?
The fundamental purpose of Islamic law, the Maqasid al-Shari'ah, is to protect five things: religion, life, intellect, lineage and property. Among these, the protection of life (hifz al-nafs) is one of the foremost necessities (daruriyyat). The Qur'an says: "Do not kill the soul which Allah has made sacred, except by right." (al-An'am, 6:151) The Prophet ﷺ specified three grounds on which a Muslim's blood becomes lawful: adultery by a married person, a life for a life, and abandoning the religion and separating from the community. Every punishment in the Shariah has a purpose. The core purpose of ta'zir is reform and deterrence; if the offender is killed, whom does the reform serve? Which purpose of the Shariah did this execution fulfil, and which did it violate?
First: How great was the corruption? Death as ta'zir is permissible only when an offence causes corruption or widespread destruction in society. Saudi Arabia itself imposes death as ta'zir for crimes such as drug trafficking and terrorism, where harm spreads through society and puts many lives at risk. Measure the present case against this. Did they commit serial rape, treason or espionage? Did they repeatedly smuggle drugs or alcohol? Was there coercion or violence? Loss of life or property, or a threat to public safety? A record of repeated offences? Had the Saudi authorities provided such information, we would have heard it. There is no justifying their offence; it was certainly vile. But it was confined to a private sphere and was non-violent. It is a grave sin whose harm relates first of all to their own Hereafter, but its social harm was in no way an anarchy capable of shaking the foundations of state, society or religion. Moreover, three years and three months of imprisonment had already largely achieved the purpose of ta'zir. What purpose of the Shariah, then, did going to the extreme of death achieve?
Second: Whose corruption was it really? According to a claim in some media outlets, not yet independently verified, a third person secretly filmed the incident and spread it on social media. If true, that person committed several grave offences in the eyes of the Shariah: secret filming and spying, which are forbidden; spreading indecency among the believers, for which the Qur'an warns of a painful punishment in this world and the next (al-Nur: 19); and, for publicising an accusation without four witnesses, liability to the hadd for slander (qadhf) (al-Nur: 4). Added to this are the spreading of sin and the violation of people's honour. The public controversy over the sanctity of the holy site arose mainly through that person's publicity.
Third: How far was the sanctity of the Haram violated? Such an act in the Haram is undoubtedly a grave sin, contrary to the sanctity of the holiest mosque. But fiqh distinguishes sharply between sinning openly and sinning in private. The Messenger of Allah ﷺ said: all of my Ummah will be pardoned except those who sin openly (Bukhari and Muslim). If they acted out of public view, then the mosque's sanctity was publicly damaged by the later publicity, carried out, according to unverified reports, by the third person who filmed and spread the video.
Fourth: Was the image of the religion protected or damaged? The Messenger of Allah ﷺ rejected the proposal to kill Abdullah ibn Ubayy, leader of the hypocrites, so that people would not say that Muhammad kills his companions (Bukhari). The social and religious reaction to a punishment is thus also part of the Maqasid al-Shari'ah. An unpublished verdict, a family and country kept in the dark, and a punishment harsher than the hadd have together put Islamic law itself in the dock worldwide. The result was not hifz al-din, the protection of religion, but disrepute for it.
Next part: Offences within Makkah: precedents in the Islamic tradition
