The case of Asia Bibi, a Christian who was sentenced to death in Pakistan for alleged blasphemy against the Prophet Muhammad ﷺ, has thrown the spotlight on Islamic law (sharia) and its judiciary. Predictably the west has used the case to attack sharia as barbaric and label Islamic courts as kangaroo courts where no justice is served. The status of non-Muslims living under Islamic rule is also under fire where they are viewed as an oppressed minority subject to the tyranny of the Muslim majority.
This article is not a detailed judicial analysis of the case but simply a list of 10 points from sharia which are relevant to this issue. The full Pakistan Supreme Court judgement can be read for more detail on the evidence used in the case itself.
Insulting the Prophet Muhammad ﷺ is a red line that can never be crossed
Allah (Most High) says in the Holy Qur’an:
وَالَّذينَ يُؤذونَ رَسولَ اللَّهِ لَهُم عَذابٌ أَليمٌ
“As for those who insult the Messenger of Allah, they will have a painful punishment.”
The west will always cite freedom of speech as an excuse to insult and defame religion and prophets as we see them doing with Prophet Jesus son of Mary (peace be upon him). Despite this the Muslim ummah remain firm that this is a red line that cannot be crossed. The Ottoman Caliph Abdul-Hamid II prevented France from hosting Henri de Bornier’s Mahomet play in 1890 and a future Caliphate will defend all the prophets on the world stage.
Qadi Iyad states: “Know that all who curse Muhammad, may Allah bless him and grant him peace, or blame him or attribute imperfection to him in his person, his lineage, his deen or any of his qualities, or alludes to that or its like by any means whatsoever, whether in the form of a curse or contempt or belittling him or detracting from him or finding fault with him or maligning him, the judgement regarding such a person is the same as the judgement against anyone who curses him. He is killed as we shall make clear. This judgement extends to anything which amounts to a curse or disparagement. We have no hesitation concerning this matter, be it a clear statement or allusion.” (Kitab al-Shifa bi-Ta‘rif Huquq al-Mustafa)
Extra-judicial punishments are not permitted
It must be made clear that all hadd-punishments must be implemented by a legitimate Islamic State (Caliphate) through an officially appointed judge (qadi).
Muslim ibn Yasār said: Abū ‘Abdillāh, a man from the Sahābah, would say:
مسلم بن يسار قال: كان أبو عبد الله رجل من الصحابة يقول: الزكاة والحدود والفيء والجمعة إلى السلطان
‘Zakāt, Hudūd, Fay’ (spoils) and Jum‘ah are (consigned) to the Sultān.’ (Imām al-Tahāwī as mentioned in Fath al-Bārī of Hāfiz Ibn Hajar al-‘Asqalānī)
Ibn Muflih al-Hanbali (rh) said in al-Furoo’ (6/53): ‘It is haraam for anyone to carry out a hadd punishment except the ruler or his deputy. This is something on which the fuqaha’ of Islam are unanimously agreed, as was stated in al-Mawsoo’ah al-Fiqhiyyah (5/280): The fuqaha’ are unanimously agreed that the one who should carry out hadd punishments is the ruler or his deputy, whether the punishment is transgressing one of the limits of Allaah, may He be exalted, such as zina, or a transgression against another person, such as slander.’
Al-Qurtubi said: ‘There is no dispute among the scholars that qisaas (retaliatory punishments) such as execution cannot be carried out except by those in authority who are obliged to carry out the qisaas and carry out hadd punishments etc, because Allaah has addressed the command regarding qisaas to all the Muslims, and it is not possible for all the Muslims to get together to carry out the qisaas, which is why they appointed a leader who may represent them in carrying out the qisaas and hadd punishments.’ (Tafseer al-Qurtubi, 2/245, 246)
Pakistan is a Republican Federal Democratic Nationalist state and does not implement an Islamic judiciary
The Pakistan constitution clearly states that, ‘Pakistan shall be a Federal Republic to be known as the Islamic Republic of Pakistan’, and although like most Muslim countries it includes the article ‘Islam shall be the State religion of Pakistan’ this doesn’t make it an Islamic State implementing sharia.
Therefore it is no surprise that miscarriages of justice occur frequently within the judiciary of Pakistan since the judiciary is not based on Islam.
The Islamic Judiciary has decisional-independence
Decisional independence is the idea that the judge should be able to decide the outcome of a trial solely based on the law and case itself, without letting the media, politics or other things sway their decision.
It’s clear that the judiciary in Pakistan does not have decisional-independence from political pressure either at home or abroad. This is why so many ordinary Muslims do not accept the judgement of the courts and instead turn to wide-scale protesting.
The EU at the beginning of this year said that renewal of the Generalised System of Preferences (GSP) plus facility and future financial assistance in the pipeline will be linked to a positive outcome on Asia Bibi, well informed sources in the Ministry of Foreign Affairs told Business Recorder.
This echoes the Raymond Davis case where he was freed by the courts even though he murdered two men in Lahore.
Islamic courts are not kangaroo courts
The burden of proof for hadd-punishments is extremely high, the only acceptable evidences being:
- confession made without duress
- trustworthy witnesses
- documentary evidence.
The judge must be just, a knowledgeable faqih (jurist) and aware of how to apply sharia rules to different realities.
الْقُضَاةُ ثَلَاثَةٌ: وَاحِدٌ فِي الْجَنَّةِ، وَاثْنَانِ فِي النَّارِ، فَأَمَّا الَّذِي فِي الْجَنَّةِ فَرَجُلٌ عَرَفَ الْحَقَّ فَقَضَى بِهِ، وَرَجُلٌ عَرَفَ الْحَقَّ فَجَارَ فِي الْحُكْمِ، فَهُوَ فِي النَّارِ، وَرَجُلٌ قَضَى لِلنَّاسِ عَلَى جَهْلٍ فَهُوَ فِي النَّارِ
“The judges are of three types: one is in heaven, the other is in fire. As for the one who is Jannah, he is the man who knows the truth and judges by it, whereas the one who knows the truth and aggrieves it in judgment, he is in fire. And the man who judges for the people on ignorance is also in fire.” [Abu Dawud]
Innocent until proven guilty
The Presumption of Innocence exists in an Islamic judicial court where the defendant is innocent until proven guilty.
The Prophet Muhammad ﷺ said: “It is the plaintiff who should provide the evidence, and the oath is due on the one who disapproves.” (Al-Baihaqqi)
Judge cannot pass judgement based on his personal biases
While the judge may hold personal opinions regarding a person or a religion, or have immense love for the Prophet ﷺ this cannot cloud his judgement.
Allah (Most High) says in the Holy Qur’an:
وَلا يَجرِمَنَّكُم شَنَآنُ قَومٍ عَلىٰ أَلّا تَعدِلُوا
Do not let hatred for a people incite you into being unjust.
Ibn Abu Bakrah reported: My father wrote to Ubaidullah ibn Abu Bakrah who was a judge, saying: Do not pass a judgment between two people while you are angry, for I heard the Messenger of Allah ﷺ say, “The judge should not judge between two people while he is angry.” (At-Tirmidhi 1334)
Confessions must be given in court and free from duress
Extra-judicial confessions are not valid and any confession must be made in a judicial court in front of a judge. The confession is not automatically accepted and it must be examined to see if the defendant is mentally stable and understand what they have admitted to.
Imam Ali narrated that the Prophet Muhammad ﷺ said, ‘No hadd punishment is to be carried out on someone who admits wrongdoing if he is subjected to harshness. If you chain or detain or threaten someone, then his admission is not valid.’ (Musannaf abdur-Razzaq, 7199; Fiqh al-Imam Ali 1/348)
Jabir b. Samura reported: As he was being brought to Allah’s Messenger ﷺ I saw Ma’iz b. Malik-a short-statured person with strong sinews, having no cloak around him. He bore witness against his own self FOUR TIMES that he had committed adultery, whereupon Allah’s Messenger ﷺ said: ‘Perhaps (you kissed her or embraced her).’ He said: ‘No. by Allah, one deviating (from the path of virtue) has committed adultery.’ (Muslim 1692)
These are clear evidences that confessions must be verified and made freely without coercion.
Witnesses must be cross examined and not automatically accepted
There are many conditions of witnesses in Islam and the sharia texts have specified those witness statements which cannot be accepted. These are:
- untrustworthy people (ghayr ‘adl)
- those harboring hostility (against whom they testify)
- those on whom the Hudd of defamation (qazf) has been applied
- traitors (whether male or female)
- the servant who is completely preoccupied with his work
- a son for the favor of his father and vice versa
- and a woman in the favor of her husband and vice versa
The two most relevant in this case are conditions 1 and 2.
As for rejecting the testimony of untrustworthy people this is due to Allah’s (Most High) saying:
وَأَشهِدوا ذَوَي عَدلٍ مِنكُم
“Call two upright men from among yourselves as witnesses”
Ahmad ad-Da’our states: ‘These texts have stipulated that the witness be trustworthy (‘adl). The meaning (mafhoom) of these texts is that that the testimony of the untrustworthy people cannot be accepted. Previously we have mentioned the definition of trustworthy (‘adl) as being abstaining from that which the people consider violation to uprightness (isiqaamah). So, whoever does not abstain from that which the people consider violation to uprightness is unreliable/untrustworthy, thus his testimony is not accepted.’
If a witness has a dispute with the defendant and harbours hatred against them then their testimony is not accepted. It is up to the judge to make this judgement based on cross examination of the witnesses.
Ahmad reported from ‘Amr b. Shu’ayb from his father who narrated from his father that the Messenger ﷺ said: ‘The testimony of a traitor is not allowed, nor someone who harbors hatred to his brother.’ (Ahmed)
Even if trustworthy witnesses are brought their testimony is not automatically accepted. They must be cross examined and ultimately it is up to the judge to decide whether to accept or reject their testimony.
Ahmad ad-Da’our states: ‘As for the fact that the testimony is definite does not mean the judge is obliged to give judgement according to it. This is because it is based on certainty for the witness, but the judge might have a reality that contradicts this testimony. He might even have a definite text, which contradicts this testimony, or the witness is likely lying, in his view. Therefore, the judge is not obliged to judge according to a testimony even if it was given on the basis of certainty, rather he has the choice to accept it or reject it.’ (Ahkaam al-Bayyinaat)
Non-Muslim citizens (dhimmi) are treated justly by all state institutions
The dhimmi will have full access to judicial due process and the principles discussed above will be applied to them as they are applied to Muslims.
The Prophet Muhammad ﷺ wrote to the people of Yemen: ‘Whoever is adamant upon Judaism or Christianity will not be tormented for it, and they are obliged to pay the jizya.’ (Abu ‘Ubayd)
The Prophet Muhammad ﷺ said, ‘The diyyah (blood money) of the Jews and Christians is like the Muslim’s diyyah.’ (Narrated from Amru bin Shuaib from his father from his grandfather)
It is narrated in a hadith that the Messenger of Allah ﷺ killed a Muslim for a mu’ahid (citizen of a state who we have a treaty with) and said, ‘I am the most noble of those who fulfil their dhimmah’.” (Al-Bayhaqi)