Apostasy or Irtidad in Arabic literally means to ‘backslide.’ In Islamic terminology it is ‘turning away from Islam’ or ‘severing the ties with Islam’ and a person who abandons Islam is called an apostate. The Quran, the divine and the supreme source of Islamic Law, does not prescribe any earthly punishment for an act of apostasy. It only speaks of God’s punishment of the apostate in the Hereafter; that he be held responsible for his ‘treason to religion’ after clear guidance has shown to him and that he had accepted it before abandoning it. ‘His deeds shall be of no effect on the Day of Judgment’ is the essence of the Quranic clause stipulated as verse 28 of Surah Muhammad chapter 47.
However, from the Prophet’s example one can find conflicting reported traditions (in Sihah Sittah) where at one point in time he disapproved the very act of apostasy without inflicting any punishment on the apostate and on the other hand he is reported to have ordered to execute those who change their religion of Islam. The learned scholars today including Dr. Jamal Badawi claim that all such reports in which the Prophet has ordered executions were deemed weak and unauthentic by hadith scholars. For example, the famous scholar Muhammad Ash-Shawkani wrote that there were problems with the isnad (chain of narration) of these reports and thus they are not considered to be reliable, especially in a serious matter such as capital punishment.
Under different schools of Islamic law, Hanafite theory excludes some categories from capital punishment: (1) Women; who are kept in hostage instead. They shall be beaten every three days in order to affect their return to Islam. (2) Hermaphrodites; (3) Discriminating minors; their acts of apostasy are deemed legally valid by the Hanafites although according to other Schools, no minor is qualified to produce an acceptable apostasy, (4) Converts to Islam.
The Malikite school of thought equally recognizes the death penalty for an act of apostasy but with a condition attached that prior to apostasy the apostate needs to have been “a good Muslim.” In Malikite theory, a person who embraced a faith by merely pronouncing the Shahadah (Islamic Creed, i.e. there is no God but Allah, Muhammad is the Messenger of Allah) without conforming to religious orthodoxy (such as daily prayers) would not be considered qualified to perform a legally valid act of apostasy. The other schools, however, makes no such distinctions. The classic schools, with the exception of Hanafites, acknowledge the possibility of revocation and repentance by the apostates.
Imam Shafi holds the view that whoever pronounces the Shahadah was regarded as a Muslim. It is irrelevant how often the Muslim broke away from Islam, on the subsequent pronouncement of Shahadah by the former apostate he will be saved from the death penalty. But if an apostate does not repent or does not pronounce the Islamic Creed again, he will be executed.
Shi’ite law equally forbids the execution of female apostates and imposes solitary confinement during which they shall be beaten at the hours of the Salah.
It is vehemently argued by those belonging to either of the schools of law that since there exist traditions from the Prophet of executing the apostates this punishment must continue to apply till eternity but they did not appreciate the fact that there also exist several authentic ahadith where the Prophet does not imposed death penalty or does not himself carry out the punishment but rather shows a mere disapproval on the act of a person (Muslim) severing his ties with Islam. In order to reach to a sound conclusion the learned jurists of the day must observe and analyze all the traditions on the subject to decipher the whole truth of it instead of relying on selected traditions that might help people to manipulate legal principles only.
However, it can be argued that if it was the divine law to execute the apostate then the Prophet should have implemented that immediately without any second thought and all scholars ought to be unanimous on this point. For Example, the Quran prescribes cutting of hands as the punishment for theft in Surah Maidah chapter 5, verse 38; one hundred lashes as punishment of Zina (Unlawful Intercourse) is one hundred lashes in Surah Noor chapter 24, verse 2; eighty lashes as punishment for Qazf (False accusation of Unlawful Intercourse to Women) in Surah Noor chapter 24, verse 4 etc. Every jurist is unanimous on all the punishments of said crimes but not so on apostasy.
Furthermore, the classical jurists argue that an apostate per se is the danger to the Islamic society and therefore should be killed. It can be counter-argued that classical jurists are pre-supposing that a person will pose a threat to the society which may not be true in every case. A person can also apostate without intending to harm the Muslim society. Should the classic interpretation be then change with changing circumstances? The answer ought to be in the affirmative per the Islamic law standards as well because the interpretation of the Islamic law changes with time and age to keep the divine law progressive whereas the primary sources cannot change being divinely inspired. At the time when those great scholars of law as mentioned above were formulating the legal principles they faced peculiar circumstances owing to which they opined in the way they have on the issue of apostasy. Today the circumstances have changed and so the law should be too. This is the essence of Islamic law and this is what is permissible in Islamic law through the mode of Ijtihad, to interpret the Quran and Sunnah of the Prophet in true spirit.
In conclusion, the law imposing death penalty for an act of apostasy must be reviewed and re-examined in the light of primary sources of Islamic Law by the doctors of law and by a way of suggestion as a student of law such a penalty may only be imposed in extreme circumstances where the apostate poses a potential threat to the Islamic state.
The writer is a law graduate from the University of London and is a partner and legal Adviser at Danishwar Advocates|Advisers, Lahore.