To what extent is the court affected by the judgment of the Mufti [Muslim religious scholar who gives fatwas, religious opinions based on his explanation of Islamic law. The Mufti in this article is the Mufti of the state] that a certain defendant deserves death penalty?
Is it legitimate for the court to disagree with the Mufti’s judgment to commute the sentence, in spite of his ratification of the death penalty?
These are important and necessary questions, especially with the current state of ambiguity after the Mufti’s ratification of the death penalty to Nurse Aida and the court’s ten years imprisonment sentence. The question was put to his virtue Dr. Nasr Farid Wasel, Mufti [of Egypt], who answered profusely to clarify the ambiguity which confused some people.
"Law obliges reference of cases in which the death penalty is considered to the Mufti of the state prior to giving sentence. The mufti is required to explain the legitimate judgment [from an Islamic point of view] for such a case," says Dr. Wasel. ’The judicial authority only refers [a case to the Mufti] if it is totally convinced through hard evidence and proofs that the crime deserves capital punishment. Being a matter of life and death, the sentence is not given but remains suspended until the Mufti’s opinion about the punishment.’
"According to the general rule, suspicion favors the defendant. The death penalty is pronounced only if there is total assurance that the defendant deserves capital punishment as retribution for a crime committed against another person and the community."
"When a case is referred to the Mufti for his legitimate opinion, it is referred to him without the court’s judgment, but with all the papers and documents. Then the case is reviewed with counselors who are specialized in Islamic jurisprudence and who have a lot of legal experience. During the case, we take into consideration the legal matters before producing the legitimate judgment.’
"If punishment requires retribution," continues his virtue [meant it the Mufti], "we explain the legitimate reasons and evidence. We also explain whether it is a matter of jurists’ disagreement. The case is then sent back to court which reviews our legitimate judgment and gives its own sentence. Mufti’s judgment only explains whether the punishment is a legitimate one or not."
Q: To what extent do both judgments agree?
A: "In most cases, about 99.9% of the court sentences agree with our judgment. In law, any suspicion favors the defendant. Sentences must be agreed upon by all involved opinions. On the side of the jurisprudence we have to "avoid punishment on basis of suspicion" [This is given as a quote in the article, probably because it is based on a hadith, however no reference was given], because the death sentence is one of God’s divine rules, either a public or a private right. In this concern, there is a general consent and great care that the penalty doesn’t include death unless the evidence is beyond doubt. Complete confidence is to reach what is called the death penalty, retribution in Islamic jurisprudence or supporting penalty which also means death."
Q: To what extent are you, mufti of the state, convinced before explaining a legitimate judgment to execute someone?
A: "When a judgment is made, I’m convinced that it is the minimum punishment. I look into cases in which evidence and the documents describe things we can’t imagine humans would do this. Retribution or the death penalty gives life to the community. God said ’In the Law of Equality there is (saving of) life to you.’ [Qur’an 2:179] Indeed, death or retribution is part of the divine rule. It is also human rights for convicted murderers to receive punishment for what they did to other persons and the community. In some rare cases there are suspicions in which my soul is not confident. In such cases, retribution or the death penalty is never judged. In those rare accomplice cases in which more than one person participates in the crime, we give the accomplice a commuted judgment which estimation is left to the court according to evidence. But again, only in the rarest of cases does our judgment differ from the court’s sentence. And in the end, it’s the court that has admittance, evidence and responsibility.’
Q: Shouldn’t we judge reason only?
A: "We face premeditated murder. Murder corrupts the land, community and life, eventually. Capital punishment is not reached without evidence to convince one totally that this penalty is suitable to the crime or maybe even less than it should be. If we judge human reason only without regulations set by religion, scriptures and [divine] rules, to avoid the effects of other factors than reason, we would judge retribution, retribution without any hesitation,’
Q: Don’t you ever feel some regret?
A: "If the convicted was brought to life once again, we would still hold him guilty. What happens in some crimes is unbelievable, for example, when a safe and secure person tries to help someone else, then is taken away, killed and cut into pieces which are distributed in different places, and then robbed. This is unbelievable."
Q: Don’t you face cases of special type.. being sure that all murder cases are somehow special?
A: "Among the currently counseled cases that stirred emotions is one of a son who killed his father for material reasons, then put the body under a train to run over it so it becomes unrecognizable. Such depravity, to kill your own father in this horrifying way. He is not human in any way, he is the devil in a human form. When I judge such cases," continues Dr. Wasel, "I feel very offended. If Islam permitted revenge, this man would be killed and cut into pieces like he did. But Islam does not permit that kind of revenge. A sheep won’t be harmed if skinned after slaughtered, and there’s equality in retribution. But here we can not achieve equality. For that reason, Islam made retribution by taking his life. However, I cannot achieve equality in the cutting matter. We can cut off a person’s hand or finger if he has cut off another person’s hand or finger, but not when it comes to killing. Islam honors human beings alive and dead, we don’t make examples of such killers because we preserve this honoring."
Q: And is the punishment someone gets not sufficient for the right of people and God.
A: "There is disagreement among jurists when it comes to this point," answers his virtue. "But the opinion of most jurists is that if punishment was in retribution, and the murderer accepted it, did not think of the accident as lawful, and admitted the wrong he did; the preponderant opinion is that the murderer received his punishment in this world. His destiny in the other world is in the hands of God. In most cases, if the murderer was killed in our world, admitting his fault and repenting, God forgives. From a constitutional and point of view of jurisprudence, the mufti’s opinion is necessary because the judge can not sentence someone who doesn’t deserve that sentence. He needs to be totally convinced, and still all opinions must agree. This is the Islamic jurisprudence. If disagreement occurred, e.g. I am for the death penalty and the court is against it, the disagreement may have happened because the documents we reviewed indicated suspicion from a mufti’s point of view. Such suspicion ceases because the judge sees and reads what we don’t."
Q: Your virtue, let’s take a look at a closer example: The lawsuit of nurse Aida from Alexandria.
A: The "Lower court gave the death sentence and referred the case to me. From the happenings, proofs and admittance, I judged death penalty. When the case was appealed for entirely legal matters concerning procedures, the Court of Appeal sentenced to 15 years. However, our judgment was, based upon the evidence presented, capital punishment. Any doubt is in the favor of the defendant.’
Q: Do you feel disturbed when your opinion differs from the courts judgment?
A: "It happens in some cases that after our opinion is given, the high court cancels the decision and sends it to another court which asks our opinion once again. If no new proofs surfaced we make the same decision again. The court may find through the hearings something that raises doubts. Any lawsuit has two parts," continues the mufti, "Objective and legal. There might be a certain deficiency in the legal side of the case, for example in the reasons for judgment. At this point the Court of Cassation refers the case again to the Criminal Court which may confirm the first judgment and refer it to the Mufti or make another judgment. If the first judgment is confirmed by the Criminal Court it will be approved by the Court of Cassation. The Court of Cassation is concerned with the legal side of the case while we are concerned with the objective side. This applies in particular to death sentences", adds the Mufti. "We never find contradictions with legitimate judgments, because each side has its own part. If the death penalty was not applied, there would no contradiction with the religious judgment. On the contrary if it [the death penalty] was applied in contradiction to the religious judgment, this [the decision on that person’s punishment] would be related to the judicial side of the case."
Q: Is there an increase in cases that deserve execution? And is there a change in type of such cases?
A: "Actually there is an increase," answers Dr. Wasel. "Rape lawsuits in particular. They result from ’disorder’ within the social structure. Pure materialism and lack of faith increases rapes. We consider rape as ’wage war’ (Haraba) even if the raped woman is not killed. Rape itself deserves execution. God said ’The only reward of those who make war upon Allah and His messenger and strive after corruption in the land will be that they will be killed or crucified, or have their hands and feet on alternate sides cut off, or will be expelled out of the land.’ [Qur’an 5:33] The death penalty is a kind of retribution. Regrettably, cases of such crimes are now more numerous than before. We used to consider them an irregularity, but now it’s becoming a phenomenon. All the community must work together -- family, schools and media -- to prevent whatever the reasons are behind crimes that deserve death penalty."
